United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.B., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Diamond Bar, CA, Employer

__________________________________________

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Docket No. 20-0692

Issued: November 20, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 10, 2020 appellant filed a timely appeal from an August 16, 2019 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 to consider the merits of this case.2 

ISSUES

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

wage-loss compensation and medical benefits, effective November 10, 2015, as she no longer had 

residuals or disability causally related to her accepted right knee sprain; and (2) whether appellant 

 

1 5 U.S.C. § 8101 et seq. 

2 The Board notes that, following the August 16, 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

has met her burden of proof to establish continuing residuals or disability causally related to her 

accepted right knee sprain on or after November 10, 2015.

FACTUAL HISTORY

On April 27, 2013 appellant, then a 55-year-old city carrier, filed an occupational disease 

claim (Form CA-2) alleging that on or before February 25, 2013 she sustained bilateral knee pain 

and swelling due to factors of her federal employment including standing, sitting, and getting in 

and out of her delivery vehicle. On the reverse side of the form, Supervisor C.H. controverted the 

claim, explaining that appellant had been off work for eight months since an April 10, 2012 

cervical spine surgery, authorized under OWCP File No. xxxxxx469,3and had recently returned 

to work on a mounted delivery route with frequent absences for physical therapy. 

In a February 25, 2013 statement, appellant noted the gradual onset of right knee swelling 

and immobility in late 2010, when she was working a collection and Express Mail route. She had 

been restricted to limited-duty due to the accepted neck and back conditions under OWCP File No. 

xxxxxx469. 

In a February 25, 2013 duty status report (Form CA-17), Dr. Edward Mittleman, a Boardcertified family practitioner, diagnosed bilateral knee derangement.4

In a development letter dated May 20, 2013, OWCP notified appellant of the factual and 

medical deficiencies of her claim. It advised her of the type of evidence required and provided a 

questionnaire for her completion. OWCP afforded appellant 30 days to submit the necessary 

evidence. 

In response, appellant provided an April 25, 2013 narrative report by Dr. Mittleman, noting 

that she had been off work for cervical discectomy and fusion from March 30, 2012 through

January 6, 2013, when she returned to limited-duty work. He noted that she had left knee 

arthroscopy in 1985. On examination, Dr. Mittleman observed limited flexion in both knees. He 

obtained x-rays of both knees, which demonstrated degenerative joint disease. Dr. Mittleman 

diagnosed right knee degenerative joint disease, bilateral chondromalacia, bilateral medial 

meniscus degeneration, and left lateral meniscus degeneration. He attributed these degenerative 

changes to employment activities requiring repetitive impact loading, including prolonged 

 

3 Under OWCP File No. xxxxxx469, OWCP accepted that appellant sustained lumbar disc degeneration, 

displacement of a cervical disc without myelopathy, cervical disc degeneration, and brachial neuritis. Appellant’s 

claims have not been administratively combined. 

4 A March 15, 2013 computerized tomography (CT) scan of the left knee demonstrated retropatellar and 

suprapatellar effusions, attenuation and thinning of the anterior horns of the medial and lateral meniscus indicating 

degenerative joint disease, and a curvilinear ossific density medial to the medial femoral condyle indicating mild 

Pellegrini-Stieda syndrome. A March 15, 2013 CT scan of the right knee demonstrated sclerosis of the medial plateau 

indicative of degenerative joint disease, minimal narrowing of the retropatellar joint space with effusion, narrowing 

and thinning of the anterior and posterior horns of the medical meniscus, and an almost bone-on-bone appearance of 

the anterior aspect of the medial tibiofemoral joint indicative of advanced degeneration of the anterior horn of the

medial meniscus. 
3

walking, and repetitive squatting. Dr. Mittleman noted work restrictions in periodic reports 

through April 10, 2014. 

In a May 21, 2013 report, Dr. Charles Herring, a Board-certified orthopedic surgeon, 

summarized appellant’s history of injury and treatment, noting that she underwent left knee 

surgery in 1985. On examination, he observed bilateral knee effusion, positive right patellar 

ballottement test, and left patellofemoral crepitus. Dr. Herring diagnosed degenerative joint 

disease of both knees and bilateral medial meniscal tears. He opined that repetitive squatting, 

stooping, kneeling, and stair climbing caused “disruption in the [knees] and wearing away of the 

articular cartilage and the meniscus, which is evident by physical examination” and imaging 

studies. Dr. Herring prescribed physical therapy. 

On July 26, 2013 OWCP accepted the claim for sprain of the right knee. 

Appellant subsequently submitted an October 29, 2013 report from Dr. Herring, diagnosing 

degenerative joint disease of both knees and bilateral medial meniscal tears.

On April 24, 2014 OWCP referred appellant, the medical record, and a statement of 

accepted facts (SOAF) to Dr. Steven M. Ma, a Board-certified orthopedic surgeon, for a second 

opinion regarding the nature and extent of the accepted right knee condition. Dr. Ma submitted a 

May 21, 2014 report in which he reviewed the SOAF and the medical record. On examination, he 

noticed a penny-sized reddened area on the front of both knees due to a May 17, 2014 fall. Dr. Ma 

diagnosed nonindustrial bilateral knee arthritis, nonindustrial osteopenia of both knees, status post 

nonindustrial left knee arthroscopy in January 1985, and a resolved right knee sprain. He opined 

that the diagnosed bilateral degenerative knee conditions were unrelated to factors of appellant’s

federal employment and that the accepted right knee sprain had resolved without residuals. 

In a July 15, 2014 report, Dr. Herring opined that walking for prolonged periods during 

appellant’s 32-year career as a letter carrier had caused degenerative changes to both knees.5

OWCP found a conflict of medical opinion between Drs. Herring and Mittleman, for 

appellant, and Dr. Ma, for the government, regarding the nature and extent of the employmentrelated knee condition. To resolve the conflict, it selected Dr. Leisure Yu, a Board-certified 

orthopedic surgeon, as an impartial medical examiner. OWCP provided him a SOAF, a copy of 

the medical record, and a list of questions. In a January 7, 2015 report, Dr. Yu reviewed the SOAF 

and medical record. He noted that the accepted injury occurred when appellant was performing 

her “usual and customary work,” and that her knee pain began in January 2013 when she was “not 

actively working and when [appellant] was resting and recovering from” cervical spine surgery 

under OWCP File No. xxxxxx469. On examination, Dr. Yu observed mildly restricted range of 

motion of both knees. He diagnosed degenerative joint disease of both knees, bilateral medial 

meniscal degeneration, and left knee lateral meniscal degeneration. Dr. Yu opined that appellant’s 

bilateral knee arthritis was either idiopathic in nature or related to the prior left knee injury, as she 

had no other history of trauma. He noted that the accepted work factors had not precipitated or

aggravated her knee conditions, and that the accepted right knee sprain had ceased without 

 

5 Dr. Herring and Dr. Mittleman provided periodic chart notes through January 8, 2015 noting continued bilateral 

knee symptoms. 
4

residuals or the need for additional treatment. Dr. Yu estimated that appellant would have attained 

maximum medical improvement on May 25, 2013, three months after the right knee sprain 

diagnosis. 

In February 24 and March 12, 2015 reports, Dr. Basimah Khulusi, a Board-certified 

physiatrist, diagnosed an acute exacerbation of degenerative right knee osteoarthritis. She held 

appellant off work through May 15, 2015.

In a May 19, 2015 report, Dr. Herring noted a large effusion of the right knee with medial 

and lateral joint line tenderness. He diagnosed degenerative joint disease of the right knee, bilateral 

medial meniscal degeneration with medial meniscal tear, left lateral meniscal degeneration, status 

post left knee arthroscopy, and possible reflex sympathetic dystrophy syndrome. Dr. Herring 

prescribed a diagnostic stellate ganglion block and physical therapy. 

In a June 15, 2015 report, Dr. Khulusi disagreed with Dr. Yu’s opinion. She opined that 

climbing in and out of a delivery vehicle created torque forces on appellant’s knees that caused

repetitive joint trauma. Additionally, pushing and pulling heavy hampers, walking on uneven 

terrain, bending, and squatting created stress forces on both knees, contributing to cumulative joint 

trauma. Dr. Khulusi opined that the identified work factors caused acute exacerbation of 

degenerative joint disease of the right knee and accelerated degenerative joint disease and meniscal 

degeneration of both knees. She continued to hold appellant off work.6

By an August 5, 2015 notice, OWCP provided appellant with a proposed termination of

her wage-loss compensation and medical benefits, because the medical evidence of record 

established that she no longer had any residuals or continuing disability from her accepted work 

injury. It determined that the special weight of the medical evidence rested with Dr. Yu. OWCP 

afforded appellant 30 days to submit additional evidence or argument, in writing, if she disagreed 

with the proposed termination. 

In response, appellant submitted a July 20, 2015 report by Dr. James A. Kim, a Boardcertified anesthesiologist specializing in pain management, who administered a right knee 

injection and prescribed medication. 

In an August 20, 2015 report, Dr. Khulusi contended that OWCP mischaracterized the 

accepted injury as a right knee sprain, whereas appellant had sustained an occupationally relateddegenerative condition of the right knee joint and meniscus. She contended that Dr. Yu found no 

evidence of a right knee sprain as appellant had never had one. Dr. Khulusi opined that repetitive 

torque and loading forces on both lower extremities greatly accelerated progression of 

degenerative joint disease of both knees. She opined that these conditions totally disabled 

appellant from work commencing February 25, 2015. 

By decision dated November 19, 2015, OWCP terminated appellant’s wage-loss 

compensation and medical benefits effective November 10, 2015. It found that the special weight 

 

6 Appellant participated in physical therapy treatments in July and August 2015. 
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of the medical evidence rested with Dr. Yu, OWCP’s impartial medical examiner, who concluded 

in his January 7, 2015 report that the accepted right knee sprain had ceased without residuals. 

On November 30, 2015 appellant requested a telephonic hearing before a representative of

OWCP’s Branch of Hearings and Review regarding the November 19, 2015 termination decision.

OWCP subsequently received November 10, 2015 and March 10, 2016 reports, wherein

Dr. Khulusi noted appellant’s symptoms of continued bilateral knee pain. On examination,

Dr. Khulusi observed warmth in both knees with severe tenderness over the medial tibial plateau. 

She diagnosed an acute exacerbation of degenerative joint disease of the right knee, bilateral 

chondromalacia, bilateral medial meniscal degeneration, right medial meniscal tear, and rule out 

osteochondral injuries on the right. Dr. Khulusi opined that repetitive trauma during appellant’s 

decades as a letter carrier greatly accelerated the osteoarthritic degenerative process in both knees 

beyond what would be expected for someone of appellant’s age. 

Dr. Hosea Brown III, a Board-certified internist, provided February 9 and May 10, 2016 

reports, maintaining appellant on modified duty. 

By decision dated August 15, 2016, an OWCP hearing representative affirmed the 

November 19, 2015 termination decision, based on Dr. Yu’s opinion as the special weight of the 

medical evidence. 

On January 17, 2017 appellant requested reconsideration. She submitted August 9, 2016 

reports by Dr. Brown again maintaining appellant on limited duty. 

In December 6, 2016 reports, Dr. Khulusi reiterated appellant’s previous diagnoses. She 

noted that appellant wore bilateral knee braces and ambulated using a cane, walker, or scooter. In 

a report dated December 22, 2016, Dr. Khulusi contended that appellant’s 1985 left knee surgery 

was unrelated to her current condition as she had been asymptomatic for 27 years before the current 

onset of symptoms. 

By decision dated February 22, 2017, OWCP denied modification of the August 15, 2016 

decision, finding that Dr. Yu’s impartial medical opinion continued to represent the special weight 

of the medical evidence. 

On February 21, 2018 appellant, through her then representative, requested 

reconsideration. 

In a February 15, 2018 report, Dr. Khulusi noted that contrary to Dr. Yu’s assertion that 

appellant’s bilateral knee symptoms began while appellant was recuperating from cervical spine 

surgery from March 30, 2012 to January 6, 2013, she had been working for seven weeks before 

presenting for treatment of bilateral knee pain. She provided Form CA-17 reports through 

April 10, 2018, noting work restrictions reiterating prior diagnoses. 

By decision dated May 22, 2018, OWCP denied modification of the February 22, 2017 

decision, finding that Dr. Yu’s opinion continued to represent the special weight of the medical 

evidence. 
6

On May 20, 2019 appellant, through her then-representative, requested reconsideration of 

the May 22, 2018 decision. She contended that OWCP’s referral physicians failed to properly 

review the medical record. Appellant provided reports from Dr. Khulusi dated from August 27, 

2018 to February 27, 2019 noting work restrictions. 

By decision dated August 16, 2019, OWCP denied modification of the May 22, 2018 

decision, finding that Dr. Khulusi’s additional reports did not address whether appellant had 

continuing residuals or disability due to her accepted condition. 

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.7 After it has been determined that,

an employee has a disability causally related to his or her employment, OWCP may not terminate 

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

the employment.8 Its burden of proof includes the necessity of furnishing rationalized medical 

opinion evidence based on a proper factual and medical background.9

The right to medical benefits for an accepted condition is not limited to the period of 

entitlement for disability compensation.10 To terminate authorization for medical treatment, 

OWCP must establish that appellant no longer has residuals of an employment-related condition 

which require further medical treatment.11

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.”

12

 In situations where 

there exist opposing medical reports of virtually equal weight and rationale and the case is referred 

to an impartial medical specialist 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.

13

 

7 Z.D., Docket No. 19-0662 (issued December 5, 2019); see R.P., Docket No. 17-1133 (issued January 18, 2018); 

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

8 See R.P., id.; Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. 

Minor, 37 ECAB 541 (1986).

9 See R.P., id.; Del K. Rykert, 40 ECAB 284, 295-96 (1988).

10 Z.D., supra note 7; see R.P., id.; T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005); A.P., 

Docket No. 08-1822 (issued August 5, 2009). Furman G. Peake, 41 ECAB 361, 364 (1990).

11 See R.P., id.; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002); Furman G. 

Peake, id.

12 5 U.S.C. § 8123(a).

13 D.M., Docket No. 18-0746 (issued November 26, 2018); R.H., 59 ECAB 382 (2008); James P. Roberts, 31 

ECAB 1010 (1980).
7

The Federal (FECA) Procedure Manual provides that the findings of an OWCP referral 

physician or impartial medical specialist must be based on the factual underpinnings of the claim, 

as set forth in the SOAF.14 When OWCP’s referral physician or impartial medical specialist does 

not use the SOAF as the framework in forming his or her opinion, the probative value of the 

opinion is diminished or negated altogether.15

ANALYSIS -- ISSUE 1

The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective November 10, 2015.

OWCP properly declared a conflict in medical opinion evidence between Drs. Herring and 

Mittleman, for appellant, and Dr. Ma, for the government, and referred appellant, the SOAF, a list 

of questions, and the medical evidence of record to Dr. Yu, for an impartial medical evaluation,

pursuant to 5 U.S.C. § 8123(a). 

Dr. Yu, however, provided a conflicting history of injury in his January 7, 2015 report. He 

indicated both that the accepted right knee sprain occurred while appellant was in the performance 

of her customary duties and that her symptoms had begun while she was off from work

recuperating from cervical spine surgery prior to January 2013. This discrepancy casts doubt on

Dr. Yu’s understanding of the facts of appellant’s claim.16 Furthermore, he opined that her

bilateral knee arthritis was either idiopathic in nature or related to the prior left knee injury, as she 

had no other history of trauma. Dr. Yu noted that the accepted work factors had not precipitated 

or aggravated her knee conditions, and that the accepted right knee sprain had ceased without 

residuals or the need for additional treatment. Given his failure to acknowledge the accepted 

employment condition, Dr. Yu’s opinion is, therefore, of diminished probative value regarding 

OWCP’s termination of her wage-loss compensation and medical benefits.17

The Board therefore finds that OWCP has not met its burden of proof to terminate 

appellant’s wage-loss compensation and medical benefits, effective November 10, 2015, as the 

medical evidence of record is insufficient to establish that she no longer had residuals or disability 

causally related to her accepted right knee sprain.

CONCLUSION

The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective November 10, 2015.18

 

14 Federal (FECA) Procedure Manual, Part 2 -- Claims, Statement of Accepted Facts, Chapter 2.810.11a 

(September 2019). 

15 Id. at Chapter 3.600.3(10) (October 1990).

16 A.C., id., S.R., Docket No. 19-1229 (issued May 15, 2020).

17 Supra notes 15 and 16; see also P.E., Docket No. 19-0837 (issued October 20, 2020).

18 In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.
8

ORDER

IT IS HEREBY ORDERED THAT the August 16, 2019 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: November 20, 2020

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board