United States Department of Labor

Employees’ Compensation Appeals Board

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J.M., Appellant

and

DEPARTMENT OF JUSTICE, FEDERAL 

CORRECTIONAL INSTITUTION, 

Ashland, KY, Employer

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Docket No. 21-0071

Issued: August 27, 2021

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 22, 2020 appellant, through counsel, filed a timely appeal from a September 8, 

2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). 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

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 5 U.S.C. § 8101 et seq.

3 The Board notes that following the September 8, 2020 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 has met its burden of proof to terminate appellant’s 

wage-loss compensation, effective May 24, 2020, as he no longer had disability causally related 

to the accepted February 24, 2016 employment injury; and (2) whether appellant has met his 

burden of proof to establish continuing residuals or disability causally related to his accepted 

February 24, 2016 employment injury on or after May 24, 2020.

FACTUAL HISTORY

On February 25, 2016 appellant, then a 54-year-old correctional officer, filed a traumatic 

injury claim (Form CA-1) alleging that, on February 24, 2016, he sustained a right knee injury 

when he was assaulted by an inmate which developed into an altercation then a chase while in the 

performance of duty. OWCP accepted the claim for complex tear of right medial meniscus and 

right knee effusion.4 Appellant stopped work on February 24, 2016 and returned to work on 

May 20, 2016 in a light-duty position. On September 13, 2016 the employing establishment 

advised that it could no longer accommodate appellant with a limited-duty assignment as of 

September 10, 2016. OWCP paid appellant wage-loss compensation on the supplemental rolls as 

of September 13, 2016 and on the periodic rolls as of June 25, 2017. On September 3, 2019 it

expanded acceptance of the claim to include temporary aggravation of right knee osteoarthritis. 

Appellant underwent an OWCP-authorized right total knee arthroplasty on September 9, 2019, 

which was performed by Dr. Felix Cheung, a Board-certified orthopedic surgeon. 

On September 17, 2019 appellant was seen at an emergency department by Dr. Kevin 

Franks, an osteopathic physician specializing in emergency medicine for the recent onset of right 

knee pain following his total knee replacement surgery. He diagnosed knee pain. In a 

September 17, 2019 consultation note, Dr. William Fravel, Board-certified in family medicine, 

related that appellant’s clinical examination and laboratory findings were consistent with normal 

postoperative changes following a right total knee arthroplasty without any current clinical concern 

for infectious etiology or blood clot on his workup. Appellant continued under Dr. Cheung’s care 

for post right total knee arthroplasty and he underwent physical therapy. 

In an October 23, 2019 report, Dr. Cheung reported that appellant’s range of motion of the 

right knee was “acceptable, but not great.” He noted that there was no evidence of infection and 

appellant’s right knee x-rays taken that day revealed a well-fixed, press-fit, cruciate stabilizing 

right knee total knee replacement in excellent position without evidence of failure.

In December 6, 2019 and January 17, 2020 reports, Dr. Cheung indicated that appellant’s

right knee x-rays taken that day indicated that the right total knee replacement remained in 

excellent position without evidence of failure. 

In a February 19, 2020 report, Dr. Cheung noted that since appellant’s total knee 

replacement surgery, he had pain globally in the knee and an area of tenderness over the medial 

femoral condyle. Dr. Cheung provided an assessment of painful right total knee replacement. He 

 

4 Appellant has prior claims involving the right lower extremity. Under OWCP File No. xxxxxx455, OWCP 

accepted that appellant sustained a right knee sprain on February 14, 2003. Appellant underwent surgery on April 15, 

2003 for a right medial meniscus tear. Under OWCP File No. xxxxxx339, OWCP accepted an April 1, 2011 sprain 

of other specified sites, right knee and leg.
3

indicated that appellant was stable despite some mid flexion instability and stiffness both in flexion 

and extension and point tenderness over the medial femoral condyle. Dr. Cheung recommended

that appellant wear a knee brace to help improve stability and to determine if his knee would “scar 

down.”

In a February 24, 2020 attending physician’s report (Form CA-20), Dr. Cheung checked a 

box marked “Yes” indicating that appellant was able to resume regular full-duty work with no 

restrictions as of December 2, 2019. He further noted that appellant was advised of his work status

on December 2, 2019. 

In a March 20, 2020 letter, OWCP, relying on Dr. Cheung’s February 24, 2020 Form CA20, notified appellant that it proposed to terminate his wage-loss compensation as the weight of 

the evidence from Dr. Cheung established that he was no longer disabled from work as a result of 

the February 24, 2016 employment injury. It afforded him 30 days to submit additional evidence 

or argument. 

In a letter dated April 20, 2020, which OWCP received on April 22, 2020, appellant’s 

counsel requested an extension of time to respond to the notice of proposed termination. He 

indicated that appellant had been unable to see his physician as the physician’s office was closed 

due to the “shut down.”

By decision dated April 22, 2020, OWCP terminated appellant’s wage-loss compensation, 

effective May 24, 2020. It found that the weight of the evidence was represented by Dr. Cheung 

in his February 24, 2020 Form CA-20 report. OWCP noted that no additional argument or 

additional evidence had been received.

On May 1, 2020 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review, which was held telephonically on 

August 3, 2020. 

In a May 20, 2020 Form CA-20, Dr. Cheung opined that appellant had been totally disabled 

from September 19, 2019 onward. In his attached May 20, 2019 report, he indicated that he 

performed appellant’s right total knee replacement in September 2019 and that appellant always 

had some pain and swelling in the knee post-surgery. Dr. Cheung noted that he had tried to send 

appellant back to work in December, but appellant was upset because he believed that he could 

not perform his date-of-injury job duties and there was no light-duty work available. He reported

appellant’s physical examination findings, noting that the right knee wound had no evidence of 

infection, but mild swelling, range of motion to 130 degrees, mid flexion instability and an antalgic 

gait. Dr. Cheung reported that May 2, 2020 x-rays demonstrated a well-fixed press-fit, cruciate 

substituting right total knee replacement in excellent position without evidence of failure. He 

outlined appellant’s medical course regarding appellant’s painful right total knee replacement and 

opined that a revision surgery may give appellant a little more stability. Dr. Cheung indicated that 

he liked to wait a year from the time of the total knee replacement surgery to see if there was any 

improvement. He noted his agreement that appellant could not return to work based on the job 

description appellant provided. Dr. Cheung provided work restrictions, which he indicated were 

presented by appellant, so that appellant would not be a danger to himself or his coworkers while 

he performed his job duties. He indicated that he would see appellant in about three months’ time

to determine whether revision surgery should be scheduled.
4

On June 10, 2020 OWCP referred appellant along with a statement of accepted facts 

(SOAF) to its District Medical Adviser (DMA) regarding the medical necessity of proposed 

revision total knee arthroplasty. In a July 2, 2020 report, Dr. Todd Fellars, a Board-certified 

orthopedic surgeon serving as the DMA, agreed with Dr. Cheung that the proposed revision total 

knee arthroplasty was causally related and medically necessary. He indicated that the medical 

record documented that appellant has mid flexion instability, which caused symptoms and which 

prevented his return to work. The DMA noted that, while there is no sign of infection, if appellant 

continued to have instability, he would never be able to return to work. He also noted that the 

proposed revision surgery was the standard of care for the diagnosed problem given appellant’s 

mid flexion instability. Based on the DMA’s July 2, 2020 report, OWCP authorized a right 

revision total knee arthroplasty.

In a July 29, 2020 report, Dr. Cheung reiterated that appellant had some right knee mid 

flexion stability and mechanical issues. He noted that appellant’s right knee symptoms had 

improved with a knee brace. Dr. Cheung noted that appellant was tentatively scheduled for 

revision surgery in September, because he liked to wait at least a year following surgery to see 

whether further improvement would occur.

By decision dated September 8, 2020, an OWCP hearing representative affirmed OWCP’s 

April 22, 2020 termination decision. The hearing representative found that appellant’s treating 

physician had indicated that he could return to light and full duty.

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.5 OWCP may not terminate compensation 

without establishing that the disability had ceased or that it was no longer related to the 

employment.6 Its burden of proof includes the necessity of furnishing rationalized medical opinion 

evidence based on a proper factual and medical background.7

ANALYSIS -- ISSUE 1

The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation, effective May 24, 2020. 

In terminating appellant’s wage-loss compensation benefits effective May 24, 2020, 

OWCP found that the weight of the evidence was represented by Dr. Cheung’s February 24, 2020 

Form CA-20 report. In that report, Dr. Cheung checked a box marked “Yes” indicating that

appellant was able to resume regular full-duty work with no restrictions as of December 2, 2019. 

 

5 See S.H., Docket No. 19-1855 (issued March 10, 2021); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 

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

6 G.T., Docket No. 18-01302 (issued October 22, 2019); A.G., Docket No. 18-0749 (issued November 7, 2018); see 

I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 ECAB 734 (2003).

7 See T.M., Docket No. 19-1068 (issued March 30, 2021); R.R., Docket No. 19-0173 (issued May 2, 2019); Del K. 

Rykert, 40 ECAB 284 (1988).
5

However, the Board notes that Dr. Cheung, in his February 19, 2020 report which was 

contemporaneous to his February 24, 2020 Form CA-20 report, provided an assessment of painful 

right total knee replacement. He indicated that appellant had some right knee mid flexion 

instability and stiffness both in flexion and extension and point tenderness over the medial femoral 

condyle, and he recommended that appellant wear a knee brace to help improve stability and that 

he would see him back in about three months to see how things were going. These reports, which 

are five days apart, demonstrate an inconsistent opinion on appellant’s ability to return to work. 

Because OWCP relied on Dr. Cheung’s inconsistent opinions, OWCP failed to meet its burden of 

proof in terminating appellant’s wage-loss compensation benefits effective May 24, 2020.8

CONCLUSION

The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation, effective May 24, 2020, as he no longer had disability causally related to the 

accepted February 24, 2016 employment injury.

ORDER

IT IS HEREBY ORDERED THAT the September 8, 2020 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: August 27, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

8

In light of the Board’s finding with regard to Issue 1, Issue 2 is moot.