United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.A., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Bell, CA, Employer

__________________________________________

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Docket No. 18-1798

Issued: December 31, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On September 25, 2018 appellant filed a timely appeal from a September 10, 2018 merit 

decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal 

Employees’ Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has 

jurisdiction over the merits of this case.

ISSUES

The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s 

wage-loss compensation and medical benefits, effective March 24, 2017, as he no longer had 

residuals or disability causally related to the accepted July 30, 2016 employment injury; and 

(2) whether appellant has met his burden of proof to establish continuing disability or residuals on 

or after March 24, 2017.

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On July 30, 2016 appellant, then a 66-year-old maintenance mechanic, filed a traumatic 

injury claim (Form CA-1) alleging that he experienced left knee pain when on that date his left 

knee buckled, causing him to lose control and fall on the floor while in the performance of duty. 

He stopped work on the date of injury.

2

 

By decision dated September 22, 2016, OWCP accepted left knee sprain (medial collateral 

ligament). 

In a report dated August 25, 2016, Dr. Lawrence A. Feiwell, a Board-certified orthopedic 

surgeon, examined appellant’s left knee and noted that he was wearing his knee brace backwards. 

Appellant had a slight limp, but there was no instability to varus or valgus stress. He had moderate 

medial joint line tenderness without effusion. Dr. Feiwell diagnosed unilateral primary 

osteoarthritis of the left knee, sprain of medial collateral ligament of left knee, as well as spinal 

stenosis, and other intervertebral disc degeneration of the lumbar region. He recommended 

appropriate use of knee brace and opined that appellant was totally disabled from work. 

On September 22, 2016 Dr. Feiwell found that appellant’s had persistent knee pain at all 

times and had not benefited from pain medication. A physical examination revealed varus 

alignment, slight effusion, and 1+ laxity to valgus stress. Patellar crunch testing was positive and 

range of motion was 0 to 124 degrees with pain. Dr. Feiwell diagnosed end-stage osteoarthritis of 

the left knee and recommended a left total knee replacement. 

OWCP referred appellant to Dr. Michael J. Einbund, a Board-certified orthopedic surgeon, 

for a second opinion evaluation to determine the nature and extent of his accepted employmentrelated conditions. In his October 18, 2016 report, Dr. Einbund reviewed a statement of accepted 

facts (SOAF), history of injury, and the medical evidence of record. He conducted a physical 

examination and found that the left knee revealed severe pain medially. Appellant’s range of 

motion measured from approximately 0 degrees to approximately 115 degrees. There was no sign 

of motor weakness or instability. There was tenderness medially. Appellant ambulated with a 

significant limp. There was no obvious motor weakness in his lower extremity musculature. 

X-rays of the left knee revealed bone-on-bone medially and there was no evidence of fracture or 

dislocation. Dr. Einbund opined that the work injury of July 30, 2016 did not cause or contribute 

to appellant’s underlying osteoarthritic left knee condition. He explained that on July 30, 2016 

appellant suffered a twisting injury to the left knee which resulted in a simple strain. Dr. Einbund 

concluded that there were no injury-related factors of disability and the factors of disability which 

were present at that time all related to his preexisting, underlying left knee osteoarthritis. He 

 

2 The present claim was assigned OWCP File No. xxxxxx021. Appellant had a previous claim under OWCP File 

No. xxxxxx686, accepted for right knee strain and meniscal tear due to stepping sideways onto a catwalk on 

March 5, 1995. OWCP authorized a partial medial meniscectomy and debridement of the medial femoral condyle, as 

well as the undersurface of the patella, on November 17, 1995. Appellant also had a previous claim under OWCP 

File No. xxxxxx561, accepted for left shoulder impingement, right foot contusion, right knee contusion, and 

aggravation of right knee osteoarthritis due to stepping on a drain plate and falling at work on March 15, 2003. OWCP 

further authorized a left shoulder arthroscopy on July 14, 2003, a right total knee replacement on March 5, 2004, and 

an irrigation and debridement of subcutaneous hematoma of the right knee on March 17, 2004. Appellant’s claims 

have not been administratively combined.
3

asserted that appellant’s osteoarthritis condition was consistent with age-related changes and his 

simple sprain injury was immobilized and had improved. There was no noted edema present and 

the acute pain had diminished. Dr. Einbund noted that the total left knee replacement had already 

been recommended in 2012 long before appellant’s injury of July 30, 2016. He concluded that 

appellant’s accepted left knee sprain had resolved and did not require any further medical 

treatment. Dr. Einbund opined that appellant’s need for left total knee replacement was not work

related. He found that the medical records revealed the deterioration and natural progression of 

the left knee osteoarthritis. Dr. Einbund determined that appellant had reached maximum medical 

improvement and was capable of limited-duty work with restrictions of lifting, pushing, and 

pulling no more than 10 pounds. 

On November 7, 2016 appellant underwent an unauthorized left total knee replacement 

surgery, performed by Dr. Feiwell. 

In a February 7, 2017 letter, OWCP, relying on Dr. Einbund’s October 18, 2016 second 

opinion report, notified appellant that it proposed to terminate his wage-loss compensation and 

medical benefits as his accepted condition had ceased without residuals. It afforded him 30 days 

to submit additional evidence or argument. 

In response, appellant submitted a February 21, 2017 report from Dr. Jacob E. Tauber, a 

Board-certified orthopedic surgeon, who noted that appellant was experiencing constant pain in 

the left knee, which increased with walking or standing, flexing and extending the knee, and 

climbing or descending stairs. Additionally Dr. Tauber also noted swelling, popping, and clicking. 

He opined that there was no question that his need for surgery was related to his work duties. 

Dr. Tauber explained that appellant’s work duties of squatting, kneeling, bending, and twisting for 

26 years contributed to the degeneration of the knee. Additionally, he opined that there was an 

overcompensation for appellant’s work-related right knee conditions under OWCP File Nos. 

xxxxxx561 and xxxxxx686. Dr. Tauber opined that, given the fact that the right knee condition 

caused a left knee aggravation, appellant’s left knee would, at a minimum from this one incident 

alone, be a consequential injury. He further opined that without question there was a work-related 

contribution to appellant’s left knee condition. 

By decision dated March 24, 2017, OWCP terminated appellant’s wage-loss compensation 

and medical benefits, effective that date. It found that the weight of the evidence was represented 

by Dr. Einbund. 

Appellant subsequently submitted a March 28, 2017 report from Dr. Feiwell, who 

diagnosed bilateral primary osteoarthritis of the knees and indicated that appellant clearly had endstage osteoarthritis since 2012. Dr. Feiwell stated that he had not been authorized to treat 

appellant’s left knee, but felt that should he develop increasing symptoms that he would be a 

candidate for total left knee replacement surgery on a work-related basis due to compensating for 

his previously accepted right knee condition under OWCP File No. xxxxxx686. He stated that he 

clearly established that appellant’s need for a left total knee replacement before his injury on 

July 30, 2016, but performed the surgery on November 7, 2016 on a nonwork-related basis. 

Dr. Feiwell opined that appellant was temporarily totally disabled for six weeks, pending 

reevaluation, while recovering from his knee replacement surgery. 
4

On April 7, 2017 appellant requested an oral hearing before a representative of OWCP’s

Branch of Hearings and Review. In an August 23, 2017 letter, he requested a review of the written 

record in lieu of an oral hearing. 

By decision dated October 10, 2017, an OWCP hearing repetitive completed a review of 

the written record affirmed the March 24, 2017 termination of appellant’s wage-loss compensation 

and medical benefits, but found the evidence received after the termination decision, namely the 

report of treating physician, Dr. Feiwell, created a conflict in the medical opinion evidence with

second opinion physician, Dr. Einbund. The case was remanded to OWCP for referral to a Boardcertified specialist for a rationalized medical opinion regarding whether appellant’s left knee 

osteoarthritis and subsequent total left knee replacement were causally related to the accepted 

employment incident; and, if so, to determine what periods he was disabled and provide work 

restrictions. 

OWCP referred appellant to Dr. James M. Fait, a Board-certified orthopedic surgeon and 

impartial medical examiner (IME) to resolve the conflict in the medical opinion evidence. In his

May 18, 2018 report, Dr. Fait reviewed a SOAF and appellant’s medical history and records. He 

conducted a physical examination and found a mildly antalgic gait, favoring the left lower 

extremity. Appellant did not use a cane or assistive device. He did not wear a brace on the neck, 

back, or upper or lower extremities. There was diffuse tenderness to palpation throughout the 

entire lower lumbar spine on the right and left in the lower lumbar paravertebral musculature; 

however, no paraspinal spasm was noted. Straight-leg raise testing and Lasègue’s testing were 

both negative bilaterally. Examination of both knees showed no varus or valgus malalignment of 

the right or left knee and no soft tissue swelling or effusion about the right or left knee was seen. 

There was no erythema or warmth noted about the right or left knee and the extensor mechanism 

was intact in both knees. Both knees demonstrated trace opening to varus-valgus and 

anteroposterior stress, all with stable end-points. There was no patellofemoral crepitation 

bilaterally and the patellae tracked centrally bilaterally. There was no significant medial or lateral 

joint line tenderness about the right or left knee and the calves were soft and nontender bilaterally. 

On standing assessment, there was slight loss of the plantar arch in both the right and left feet with 

slight valgus malalignment of the hindfoot on both and right and left. Otherwise, there was no 

significant deformity or abnormality of the lower extremities appreciated on examination. Dr. Fait 

opined that appellant’s accepted July 30, 2016 employment injury caused a medial collateral 

ligament strain injury that did not result in the need for total knee replacement. He further opined 

that it did not aggravate, participate, or accelerate the need for knee replacement. Dr. Fait also 

opined that appellant’s left knee osteoarthritis condition was not causally related to the accepted 

March 5, 1995 employment injuries to the right knee, left shoulder, and right foot. He found no 

indication that an injury to the left knee occurred as a result of this incident and no indication that 

it caused sufficient gait impairment to result in aggravation or acceleration of the osteoarthritis of 

the left knee. Dr. Fait concluded that there were no periods of disability with respect to the left 

knee for either the March 5, 1995 or July 30, 2016 work injuries. He opined that appellant did not 

continue to suffer residuals from his employment-related left knee condition and did not require 

additional physical limitations for work. 

By decision dated September 10, 2018, OWCP denied modification of its prior decision. 

It found that the special weight of the evidence was represented by Dr. Fait who opined that 
5

appellant’s left knee osteoarthritis and subsequent surgery were not consequential injuries causally 

related to the accepted March 5, 1995 and July 30, 2016 employment injuries. 

LEGAL PRECEDENT -- ISSUE 1

Under FECA, once OWCP has accepted a claim it has the burden of proof to justify

termination or modification of compensation benefits.3 OWCP may not terminate compensation 

without establishing that the disability ceased or that it was no longer related to the employment.4 

Its burden of proof includes the necessity of furnishing rationalized medical opinion evidence 

based on a proper factual and medical background.5

Section 8123(a) of FECA provides in pertinent part: if there is disagreement between the 

physician making the examination for the United States and the physician of the employee, the 

Secretary shall appoint a third physician who shall make an examination.6 This is called a referee 

examination and OWCP will select a physician who is qualified in the appropriate specialty and 

who has no prior connection with the case.7 When there exist opposing medical reports of virtually 

equal weight and rationale and the case is referred to an IME for the purpose of resolving the 

conflict, the opinion of such specialist, if sufficiently well-rationalized and based upon a proper 

factual background, must be given special weight.8

ANALYSIS -- ISSUE 1

The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss 

compensation and medical benefits, effective March 24, 2017, as he no longer had residuals or 

disability causally related to his accepted conditions.

OWCP accepted appellant’s claims for left knee sprain due to turning and falling on the 

floor at work on July 30, 2016. It properly referred him to Dr. Einbund for a second opinion 

evaluation to determine the nature and extent of his accepted employment-related condition.

In his October 18, 2016 report, Dr. Einbund opined that appellant did not suffer residuals 

from his employment-related left knee condition and did not require additional work limitations.

He accurately summarized the relevant medical evidence, provided detailed findings on 

examination, and reached conclusions about appellant’s condition which comported with his 

 

3 L.L., Docket No. 18-1426 (issued April 5, 2019); C.C., Docket No. 17-1158 (issued November 20, 2018); I.J., 59 

ECAB 408 (2008); Vivien L. Minor, 37 ECAB 541 (1986).

4 A.D., Docket No. 18-0497 (issued July 25, 2018). In general the term disability under FECA means incapacity 

because of injury in employment to earn the wages which the employee was receiving at the time of such injury. See

20 C.F.R. § 10.5(f).

5 R.P., Docket No. 17-1133 (issued January 18, 2018).

6 5 U.S.C. § 8123(a).

7 20 C.F.R. § 10.321.

8 K.S., Docket No. 19-0082 (issued July 29, 2019).
6

findings. The Board finds that Dr. Einbund’s opinion is sufficiently well-rationalized and based 

on a proper factual and medical history such that his opinion is entitled to special weight in 

establishing that appellant had no ongoing employment-related disability or medical residuals.9

The remaining evidence submitted prior to OWCP’s termination of appellant’s wage-loss 

compensation and medical benefits is insufficient to overcome the special weight accorded to

Dr. Einbund. Appellant’s treating physician, Dr. Feiwell, continued to opine that appellant’s left 

knee condition was the compensable consequence of cumulative trauma at work. However, 

without more by way of medical rationale, his reports are insufficient to create a new conflict in 

medical opinion or to overcome the special weight properly accorded to Dr. Einbund.

10

 Thus, the 

Board finds that OWCP properly terminated appellant’s wage-lost compensation and medical 

benefits effective March 24, 2017.

LEGAL PRECEDENT -- ISSUE 2

After termination or modification of compensation benefits, clearly warranted on the basis 

of the evidence, the burden for reinstating compensation benefits shifts to the claimant.11 In order 

to prevail, the claimant must establish by the weight of the reliable, probative, and substantial 

evidence that he or she had employment-related residuals or disability which continued on or after 

termination of compensation benefits.12

ANALYSIS -- ISSUE 2

The Board further finds that appellant has not met his burden of proof to establish 

continuing employment-related residuals or disability on or after March 24, 2017.

Following the termination of appellant’s wage-loss compensation and medical benefits, an 

OWCP hearing representative properly determined that a conflict in medical opinion arose 

between appellant’s treating physician, Dr. Feiwell, who opined in his March 28, 2017 report that 

appellant was temporarily totally disabled for six weeks while recovering from his knee 

replacement surgery, and Dr. Einbund, who opined that appellant had no ongoing medical 

residuals and required no additional physical limitations for work. OWCP properly referred 

appellant to Dr. Fait for an impartial medical examination to resolve the conflict.

In his May 18, 2018 report, Dr. Fait opined that appellant’s accepted July 30, 2016 

employment injury caused a medial collateral ligament strain injury that did not require the need 

for a total knee replacement. He further found that it did not aggravate, participate, or accelerate 

the need for a total knee replacement. Dr. Fait opined that appellant’s left knee osteoarthritis 

condition was not related to the accepted March 5, 1995 employment injuries to the right knee, left 

 

9

Id. See also R.R., Docket No. 19-0173 (issued May 2, 2019).

10 Supra note 8.

11 B.W., Docket No. 18-0949 (issued July 23, 2019); C.V., Docket No. 17-1159 (issued April 6, 

2018); Wentworth M. Murray, 7 ECAB 570, 572 (1955).

12 Id.
7

shoulder, and right foot. He concluded that there were no periods of disability with respect to the

left knee for either the March 5, 1995 or July 30, 2016 work injuries, and appellant did not require 

additional physical limitations for work. Dr. Fait accurately summarized the relevant medical 

evidence, provided detailed findings on examination, and reached conclusions about appellant’s 

condition which comported with his findings. 

The Board finds that Dr. Fait’s opinion is sufficiently well rationalized and based on a 

proper factual and medical history such that his opinion is entitled to special weight in establishing 

that appellant had no continuing employment-related disability or medical residuals on or after 

March 24, 2017.

13

The remaining evidence is insufficient to overcome the special weight accorded to Dr. Fait. 

Appellant’s treating physician, Dr. Feiwell, continued to opine that appellant’s left knee condition 

was the compensable consequence of cumulative trauma at work. However, as he was on one side 

of the conflict, his reports, without more medical rationale, are insufficient to create a new conflict 

in medical opinion or to overcome the special weight properly accorded to Dr. Fait.14 

The Board thus finds that appellant has not submitted sufficient medical evidence to 

establish that he has continuing residuals or disability on or after March 24, 2017 due to the 

accepted employment injury.15 Appellant, therefore, has not met his burden of proof.

Appellant may submit new evidence or argument with a written request for reconsideration 

to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. 

§§ 10.605 through 10.607.

CONCLUSION

The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss 

compensation and medical benefits, effective March 24, 2017, as he no longer had residuals or 

disability due to the accepted July 30, 2016 employment injury. The Board further finds that he

has not met his burden of proof to establish continuing employment-related residuals or disability 

on or after March 24, 2017.

 

13 Supra note 8. See also R.R., supra note 9.

14 Supra note 8.

15 Id.
8

ORDER

IT IS HEREBY ORDERED THAT the September 10, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: December 31, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board