United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.H., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

FEDERAL AIR MARSHAL SERVICE, 

Chelsea, MA, Employer

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Docket No. 19-1604

Issued: October 9, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

CHRISTOPHER J. GODFREY, Deputy Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On July 22, 2019 appellant filed a timely appeal from a January 25, 2019 merit decision of 

the Office of Workers’ Compensation Programs (OWCP)1and a February 21, 2019 nonmerit 

decision. Pursuant to the Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. 

§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.3

 

1 Appellant timely requested oral argument before the Board. 20 C.F.R. § 501.5(b). By order dated October 5, 

2020, the Board exercised its discretion and denied the request, finding that the arguments on appeal could adequately 

be addressed based on the case record. Order Denying Request for Oral Argument, Docket No. 19-1604 (issued

October 5, 2020). The Board’s Rules of Procedure provide that an appeal in which a request for oral argument is 

denied by the Board will proceed to a decision based on the case record and the pleadings submitted. 20 C.F.R. 

§ 501.5(b).

2 5 U.S.C. § 8101 et seq.

3 The Board notes that, following the February 21, 2019 decision, OWCP received additional evidence. However, 

the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record 

that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the 

Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this 

additional evidence for the first time on appeal. Id.
2

ISSUES

The issues are: (1) whether OWCP properly terminated appellant’s wage-loss 

compensation benefits, effective January 25, 2019, as his accepted March 4, 2004 bilateral knee 

injuries had ceased without residuals; and (2) whether OWCP properly denied appellant’s request 

for reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

This case has previously been before the Board.4 The facts and circumstances of the case 

as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts 

are as follows.

On April 15, 2004 appellant, then a 27-year-old air marshal, filed a traumatic injury claim 

(Form CA-1) alleging that he injured his knees when thrown to the ground during a ground fighting 

training exercise while in the performance of duty. OWCP accepted the claim for a right medial 

meniscal tear with lateral collateral ligament sprain and chondromalacia of the patella, and a left 

knee contusion. On August 12, 2004 Dr. Mark J. Bulman, a Board-certified orthopedic surgeon, 

performed authorized right knee arthroscopy with debridement of the lateral tibial plateau and 

posterior horn of the lateral meniscus. He diagnosed a chondral flap injury of the lateral tibial 

plateau and fraying of the posterior horn of the lateral meniscus. 

Following intermittent work absences, appellant separated from the employing 

establishment, effective December 21, 2004. On September 21, 2007 he returned to full-time 

private sector work as a juvenile probation officer within prescribed medical limitations. 

By decision dated November 29, 2007, OWCP found that appellant’s actual earnings of 

$564.32 a week as a juvenile probation officer fairly and reasonably represented his wage-earning 

capacity. It paid him compensation for loss of wage-earning capacity based on the difference 

between his actual earnings and the current pay rate for his date-of injury position. Beginning 

October 21, 2008, appellant worked in a series of private-sector security jobs in an office setting. 

In a January 20, 2009 report, Dr. Anthony Lombardo, a Board-certified orthopedic 

surgeon, noted appellant’s symptoms of right knee pain and the “locking up” of the left knee. He 

diagnosed derangement of the right lateral meniscus, arthritis of the right lower leg, derangement 

of the posterior horn of the left medial meniscus, and left knee pain. Dr. Lombardo restricted 

appellant to light-duty work. He noted in a January 28, 2010 report that x-rays of both knees were 

essentially normal. In a January 27, 2011 yearly follow up report, Dr. Lombardo found appellant’s 

condition unchanged.5

On November 20, 2018 OWCP referred appellant for a second opinion examination, along 

with a statement of accepted facts (SOAF), a set of questions, and the medical record to Dr. John 

Hearst Wellborn, Jr., a Board-certified orthopedic surgeon, to determine whether appellant was 

 

4 Docket No. 08-1973 (issued May 1, 2009).

5 Appellant also submitted a February 5, 2014 report by a physician whose signature is illegible, and a January 21, 

2015 report from Martin Kramer, a physician assistant. 
3

able to return to work as an air marshal and whether appellant continued to have residuals of his 

accepted conditions. 

In a December 11, 2018 report, Dr. Wellborn noted his review of the SOAF and medical 

records. He diagnosed chronic derangement of the posterior horn of the lateral meniscus of the 

right knee. Dr. Wellborn noted that OWCP had “not sent the operative report from 2004, but from 

reviewing the SOAF [appellant] has been accepted to have a medial meniscus tear, but reviewing 

the records he has report of having partial lateral meniscectomy done which would be objective 

residual of injury at work.” He opined that he could not explain why appellant experienced chronic 

postoperative right knee pain as imaging studies were normal and appellant did not have arthritis. 

On December 20, 2018 OWCP notified appellant that it proposed to terminate his wageloss compensation as the weight of the medical evidence, as represented by the report of

Dr. Wellborn, established that appellant no longer had continued disability from work as a result 

of his accepted employment injury. It afforded appellant 30 days to submit additional evidence or 

argument if he disagreed with the proposed action. 

Appellant subsequently submitted a January 6, 2019 letter by Dr. Bertrand Vandeville, a 

Board-certified family practitioner, referring him to Dr. Piers Barry, a Board-certified orthopedic 

surgeon, to evaluate appellant’s chronic right knee problem and to determine if appellant could 

return to his date-of-injury position. 

By decision dated January 25, 2019, OWCP terminated appellant’s wage-loss 

compensation benefits, effective that day, finding that the report from Dr. Wellborn constituted 

the weight of the medical evidence and established that he was capable of performing the physical 

requirements of his date-of-injury position. OWCP noted that the claim remained open for medical 

benefits. 

On February 8, 2019 appellant requested reconsideration. He contended that Dr. Bulman 

and Dr. Wellborn agreed that the accepted right knee condition was permanent. 

In support of his request, appellant submitted a December 27, 2018 left knee x-ray report, 

an attorney authorization, and copies of evidence previously of record. 

By decision dated February 21, 2019, denied appellant’s request for reconsideration of the 

merits of his claim. 

LEGAL PRECEDENT -- ISSUE 1

Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify 

termination or modification of an employee’s benefits.6 After it has determined that, an employee 

has disability causally related to his or her federal employment, OWCP may not terminate 

compensation without establishing that the disability has ceased or that it is no longer related to 

 

6 D.G., Docket No. 19-1259 (issued January 29, 2020); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 

197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
4

the employment injury.

7

 OWCP’s burden of proof includes the necessity of furnishing rationalized 

medical opinion evidence based on a proper factual and medical background.8 

ANALYSIS -- ISSUE 1

The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation, effective January 25, 2019.

OWCP accepted appellant’s claim for a right medial meniscal tear with lateral collateral 

ligament sprain and chondromalacia of the patella, and a left knee contusion. It subsequently 

terminated his wage-loss compensation based on the report of Dr. Wellborn, a second opinion 

examiner.

Dr. Wellborn noted in his December 11, 2018 report, that he had not been provided a copy 

of the 2004 operative report, and that he could not identify the etiology of appellant’s postoperative 

right knee pain. The Board notes, however, that a complete, legible copy of Dr. Bulman’s 

August 12, 2004 operative note was scanned into the imaged case record on June 17, 2004 and on 

several subsequent dates. 

Medical opinion evidence not based on a complete factual and medical history is of greatly 

diminished probative value.9 Once it undertook development of the medical evidence, OWCP had 

the responsibility to do so in a manner that would resolve the relevant issues in the case.10 As 

such, it should have obtained a supplemental report based upon a complete and accurate medical 

history.11 The Board finds that, as Dr. Wellborn’s medical opinion was not based upon the 

complete medical record because he had not reviewed the 2004 operative report, his opinion is 

insufficient to represent the weight of the medical evidence.

12

 

As Dr. Wellborn’s report is of diminished probative value, the Board finds that OWCP has 

not met its burden of proof to terminate appellant’s wage-loss compensation, effective 

January 25, 2019.13

 

7 See R.P., Docket No. 17-1133 (issued January 18, 2018); Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. 

Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 ECAB 541 (1986).

8 W.J., Docket No. 18-1376 (issued March 27, 2019); M.C., Docket No. 18-1374 (issued April 23, 2019); Del K. 

Rykert, 40 ECAB 284, 295-96 (1988).

9 R.D., Docket No. 17-0415 (issued April 13, 2018); Victor J. Woodhams, 41 ECAB 345 (1989); Leonard J. 

O’Keefe, 14 ECAB 42, 48 (1962) (where the Board held that medical opinions based on incomplete history have little 

probative value).

10 Id.

11 W.J., supra note 8; Del K. Rykert, supra note 8.

12 See W.J., supra note 8; see also R.D., supra note 9.

13 In light of the Board’s disposition of issue one, issue two is rendered moot. 
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CONCLUSION

The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation, effective January 25, 2019. 

ORDER

IT IS HEREBY ORDERED THAT the February 21 and January 25, 2019 decisions of 

the Office of Workers’ Compensation Programs are reversed.

Issued: October 9, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board