United States Department of Labor

Employees’ Compensation Appeals Board

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K.W., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

New Orleans, LA, Employer

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Docket No. 18-0055

Issued: March 8, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

On October 9, 2017 appellant, through counsel, filed a timely appeal from a September 13, 

2017 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The appeal 

was docketed as No. 18-0055.

On April 19, 2016 appellant, then a 47-year-old city carrier, filed a traumatic injury claim 

(Form CA-1) alleging that on April 18, 2016 his right knee became swollen when a dog attempted

to attack him and he protected himself while in the performance of duty. He stopped work on 

April 19, 2016. By decision dated May 12, 2016, OWCP accepted appellant’s claim for right knee 

sprain. It paid continuation of pay benefits and wage-loss compensation benefits on the 

supplemental rolls. On December 2, 2016 OWCP expanded appellant’s claim to include right 

knee medial meniscus tear and right knee osteoarthritis.

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

On September 8, 2016 and February 21, 2017 appellant underwent right knee arthroscopic 

surgery. He continued to receive medical treatment.

In a July 14, 2017 report, Dr. Alois J. Binder, a Board-certified orthopedic surgeon, noted 

appellant’s history of right knee pain and lateral and medial meniscus tears. He related that 

appellant was currently four months post status right knee arthroscopy and still continued to have 

moderate pain and buckling sensations while ambulating. Upon physical examination of 

appellant’s right knee, Dr. Binder explained that because appellant had failed a long course of 

conservative measures, he recommended right total knee arthroplasty. 

On July 18, 2017 Dr. Binder formally requested authorization for total right knee 

arthroplasty.

OWCP referred the request to Dr. Nathan Hammel, a Board-certified orthopedic surgeon 

and OWCP district medical adviser. In an August 14, 2017 report, Dr. Hammel opined that the 

proposed total right knee replacement surgery was not medically necessary to treat appellant’s 

April 18, 2016 employment injury. Dr. Hammel explained that the medical evidence submitted 

lacked historical elements, examination findings, and clear imaging findings to determine that the 

request was medically necessary. He noted that the medical records had no discussion of 

appellant’s functional limitations, recent weight bearing x-rays, or reporting of body mass index 

to ensure reduction of risk of infection. 

By letter dated August 16, 2017, OWCP informed appellant: “the request for right knee 

total knee replacement is denied.” It explained that there was insufficient evidence of record to 

establish that the proposed surgery was medically necessary to treat his accepted injury.2

On August 28, 2017 appellant, through counsel, requested a telephonic hearing before a 

hearing representative from OWCP’s Branch of Hearings and Review. He submitted additional 

reports by Dr. Binder regarding treatment for his right knee injury. 

By decision dated September 13, 2017, an OWCP hearing representative denied 

appellant’s request for a hearing before the Branch of Hearings and Review. He noted that there 

was no final, adverse decision of record upon which an appeal could be made. 

The Board has duly considered the matter and finds that this case is not in posture for 

decision. In its August 16, 2017 letter, OWCP notified appellant that his physician’s request for 

authorization of right knee surgery was denied. The Board finds that this correspondence apprised 

appellant of an adverse action and constituted an appealable decision.3 It contained findings of 

fact and a statement of reasons.4 The August 16, 2017 letter notified appellant that his request for 

authorization was denied and indicated that the basis for the denial was explained in the August 14, 

2017 district medical adviser’s report. As the August 16, 2017 letter was an appealable decision, 

there was an adverse, final decision on the record upon which an appeal could be made, contrary 

 

2 The August 16, 2017 correspondence did not include a notice of appeal rights or an appeal request form. 

3 See C.M., Docket No. 16-1569 (issued May 3, 2017).

4 20 C.F.R. § 10.126.
3

to OWCP’s finding in its September 13, 2017 hearing representative decision. Because appellant’s 

August 28, 2017 hearing request was timely filed within 30 days of the August 16, 2017 decision, 

he was entitled to a hearing before a hearing representative from OWCP’s Branch of Hearings and 

Review.5

The case shall be remanded to OWCP for proper consideration of appellant’s August 28, 

2017 request for a telephonic hearing.

IT IS HEREBY ORDERED THAT the September 13, 2017 decision of the Office of 

Workers’ Compensation Programs is set aside and remanded for further action consistent with this 

decision of the Board.

Issued: March 8, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

 

5 A claimant is entitled to a hearing or review of the written record as a matter of right only if the request is filed 

within the requisite 30 days as determined by postmark or other carrier’s date marking and before the claimant has 

requested reconsideration. 5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.616(a).