United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.C., Appellant

and

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Kansas City, MO, 

Employer

__________________________________________

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Docket No. 20-1396

Issued: November 22, 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

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On July 20, 2020 appellant, through counsel, filed a timely appeal from a January 23, 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 January 23, 2020 decision, appellant submitted additional evidence to 

OWCP. However, the Board’s Rules of Procedureprovides: “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

medical benefits, except for those related to her left knee medial meniscus tear, effective 

December 17, 2015; (2) whether appellant has met his burden of proof to establish continuing

residuals on or after December 17, 2015.

FACTUAL HISTORY

On February 23, 2012 appellant, then a 51-year old clerk, filed a traumatic injury claim 

(Form CA-1) alleging that on February 19, 2012 she sustained injury to her hand, knees, ankles, 

and body when she caught her foot on a mail tray and fell to the floor while in the performance of 

duty. She did not stop work, but she began working in a limited-duty position without wage loss 

on February 20, 2012. OWCP initially accepted appellant’s claim for sprains of the knees and 

ankles.4

On December 17, 2012 OWCP expandedappellant’s accepted conditions to include a neck 

sprain, sprains of the heels, and aggravation of L4-5 disc protrusion, and aggravation of L4-5 and 

L5-S1 annular tears. On February 1, 2013 it expanded her accepted conditions to include 

aggravation of L5-S1 disc protrusion and bilateral wrist sprains. On June 5, 2013 OWCPexpanded

her accepted conditions to further include medial meniscus tear of the left knee. On July 16, 2013

Dr. Prem Parmar, a Board-certified orthopedic surgeon, performed OWCP-authorized left knee 

surgery, including arthroscopy with debridement of patellar chondromalacia and plice excision.5 

In September 2013, Dr. Parmar recommended that appellant undergo arthroscopic surgery on her 

right knee, which he believed was necessitated by residuals of her accepted employment injury.

On October 11, 2013 OWCP referred appellant, along with a statement of accepted facts 

(SOAF) and series of questions to Dr. Edward J. Prostic, a Board-certified orthopedic surgeon, for 

a second opinion examination and evaluation. It requested that Dr. Prostic indicate whether 

appellant had continuing employment-related residuals and whether right knee surgery was 

necessitated by the February 19, 2012 employment injury.

In a November 4, 2013 report, Dr. Prostic discussed appellant’s factual and medical history 

and reported the findings of his physical examination. He noted that appellant complained of pain 

in her neck, back, and all extremities, and that she exhibited limited cervical motion and abnormal 

quadriceps angles of the knee, greater on the right than on the left. Dr. Prostic advised that he 

doubted that right knee surgery “would be helpful at this time” and noted that “the current 

difficulties in the right knee are very likely the same as in the previous ‘right knee sprain.’”

In a November 6, 2013 report, Dr. Parmar indicated that appellant continued to have left 

knee symptoms after her July 16, 2013 surgery, and that she had some chondromalacia of her right 

4 Under a separate prior claim, assigned OWCP File No. xxxxxx289, OWCP accepted that on July 3, 2003 appellant 

sustained a bulging disc at L5-S1. Under another separate prior claim, assigned OWCP File No. xxxxxx344, OWCP 

accepted that on August 10, 2005 appellant sustained a left ankle sprain, and sprain/strains of the right shoulder/arm, 

right knee/leg, and of the thoracic and lumbar regions. OWCP administratively combined the files for OWCP File 

Nos. xxxxxx289, xxxxxx344, and xxxxxx300, designating the latter as the master file.

5 Appellant stopped work for the period July 15 through 29, 2013 and OWCP paid wage-loss compensation for 

disability from work on the supplemental rolls for this period.
3

knee due to the February 19, 2012 fall at work. He also advised that appellant continued with 

“issues with her wrists and ankles,” which were related to the February 19, 2012 employment 

injury.

OWCP requested a supplemental report from Dr. Prostic to clarify his opinion on the issue 

of appellant’s employment-related residuals. In a November 8, 2013 report, Dr. Prostic noted, “I 

have no objective evidence to indicate that the left ankle sprain, right ankle sprain, left heel sprain, 

right heel sprain, right wrist sprain, left wrist sprain, cervical spine sprain, or lumbar spine 

aggravation of L4-5 and L5-S1 disc protrusion and annular tears is [sic] still active.”

On January 8, 2014 OWCP determined that there was a conflict in the medical opinion 

evidence regarding whether appellant had residuals of her accepted employment injuries, other 

than her left knee employment injury/conditions, which was determined to have not resolved. In 

order to resolve the conflict, it referred appellant, along with a SOAF and series of questions to

Dr. David J. Clymer, a Board-certified orthopedic surgeon, for an impartial medical examination 

and evaluation. OWCP requested that Dr. Clymer evaluate whether appellant required right knee 

surgery due to employment-related residuals and whether her various other accepted employment 

conditions, other than those relating to the left knee, had resolved.

In a February 25, 2014report, Dr. Clymer discussed appellant’s factual and medical history 

and reported the findings of his physical examination. He noted that appellant had a primary 

complaint of right knee pain, but also had moderate generalized areas of discomfort in the back 

and upper extremities, as well as mild generalized irritability in her right ankle and hind foot. 

Appellant exhibited mild patellar crepitus in both knees. Dr. Clymer discussed the diagnostic 

testing for appellant’s right knee and opined that appellant had minor patellofemoral 

chondromalacia, which the February 19, 2012 fall at work might have aggravated. He indicated 

that there was no significant localized cartilage instability, ligament injury, or meniscus tear in the 

right knee and opined that, therefore, the likelihood of significant symptomatic improvement with 

right knee arthroscopy was “rather low.” Dr. Clymer recommended continued conservative nonsurgical treatment for the right knee. He noted that, with regard to the multiple other areas of 

sprains and strains involving the ankles, heels, wrists, neck, and lumbar spine, “I see nothing today 

on my objective clinical exam[ination] nor in the history and review of records which would 

suggest there is a significant ongoing problem in these areas which would require further 

treatment.” Dr. Clymer further indicated, “I believe the sprains and strains in general have 

resolved.” He opined that appellant could work a job that involved moderate sedentary duties and 

moderate standing and walking.

In a notice dated May 20, 2014, OWCP advised appellant that it proposed to terminate her 

medical benefits, except for those related to her left knee. It informed her that the proposed 

termination action was justified by the well-rationalized February 25, 2014 report of Dr. Clymer, 

the impartial medical specialist. OWCP advised appellant that this report carried special weight 

with respect to employment-related residuals and afforded her 30 days to submit evidence 

challenging the proposed termination action.

Appellant submitted additional medical evidence, including reports of Dr. Parmar from 

May and June 2014. 

By decision dated July 3, 2014, OWCP terminated her medical benefits except for those 

related to her left knee medial meniscus tear, effective July 3, 2014.
4

On July 22, 2014 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings of Review. A telephonic hearing was held on 

February 9, 2015. By decision dated April 29, 2015, OWCP’s hearing representative reversed the 

July 3, 2014 decision, finding thatDr. Clymer’s February 25, 2014 report did not contain sufficient 

medical rationale to resolve the conflict in the medical opinion evidence regarding employmentrelated residuals. The representative remanded the case to OWCP and directed that appellant be 

referred back to Dr. Clymer for additional evaluation regarding the extent of appellant’s 

employment-related residuals, to be followed by the issuance of a de novo decision. 

On remand OWCP referred appellant to Dr. Clymer for examination and evaluation, and 

requested a supplemental medical report regarding whether appellant continues to possess one or 

more of the accepted employment conditions. In an August 3, 2015 report, Dr. Clymer reported 

the findings of his August 3, 2015 examination of appellant. He indicated that appellant reported 

chronic neck discomfort and stiffness, chronic midback discomfort, chronic low back discomfort,

chronic bilateral hand pain/numbness/weakness, chronic bilateral knee pain, and chronic bilateral 

ankle and heel discomfort. Dr. Clymer noted that, during the examination, appellant exhibited 

subjective discomfort upon palpation in these regions. He provided a discussion of appellant’s 

diagnostic testing, noting that it showed some degenerative processes in the neck, wrists, knees, 

ankles, and low back. Dr. Clymer advised that the opinions he expressed in his February 25, 2014 

report remained unchanged. He noted, “[w]hile I feel [appellant] may well have sustained various 

areas of sprain and strain as a result of the work-related fall on February 19, 2012, the objective 

clinical examination and multiple objective radiographic studies have not revealed evidence of any 

significant structural injuries which I feel would be clearly benefited by further surgical 

intervention.” Dr. Clymer indicated that appellant’s subjective symptoms were certainly 

significant and diffuse, involving multiple areas, but noted that it was unlikely that any aggressive 

or surgical measures would be of any clear benefit. He posited that surgical intervention at 

appellant’s neck, wrists, knees, ankles, and back might even worsen her conditions in those 

regions. Dr. Clymer indicated that appellant might have significant ongoing subjective 

complaints, which would significantly limit the subjective sense of her ability to continue 

functioning at work. He advised that a more conservative approach with encouragement, activity, 

and moderate use of medications afforded the best opportunity to allow appellant to continue 

functioning and working in a safe and comfortable fashion.

By decision dated December 17, 2015, OWCP terminated appellant’s medical benefits,

except for those related to her left knee medial meniscus tear, effective thatsame date, based on 

the February 25, 2014 report of Dr. Clymer as clarified by his August 3, 2015 supplementalreport.

On December 30, 2015 appellant, through counsel, requested a telephonic hearing before 

a representative of OWCP’s Branch of Hearings of Review. A telephonic hearing was held on 

August 1, 2016. By decision dated September 14, 2016, OWCP’s hearing representative affirmed 

the December 17, 2015 decision.

On March 6, 2017 appellant requested reconsideration of the September 14, 2016 decision. 

She submitted a December 7, 2016 report from Dr. Parmar who reported physical examination 

findings and indicated, “[i]t is my impression and still has been since I first saw her that she has 

this work-related accident of February 2012. Appellantsustained injuries to both her wrists, knees, 

and ankles.” In a February 7, 2017 report, Dr. Regina M. Nouhan, an osteopath and Boardcertified surgeon, indicated that appellant had a cervical disc condition and bilateral carpal tunnel 

syndrome as a direct result of her work duties. In a February 16, 2017 report, Dr. Kathryn 
5

Cameron, an osteopath and Board-certified family practitioner, opined that appellant had a bulging 

disc at C4-5 and herniated disc at C5-6, which constituted unresolved conditions related to the 

February 19, 2012 employment injury.

By decision dated November 14, 2017, OWCP denied modification of the September 14, 

2016 decision. 

On November 13, 2018 appellant requested reconsideration of the November 14, 2017 

decision. She submitted January 17 and October 25, 2018 reports from Dr. Parmar who 

maintained that appellant had a chondral injury to her right knee and bilateral ankle sprains, with 

likely synovitis, which were due to her February 19, 2012 employment injury. In a June 26, 2018 

report, Dr. Nouhan opined that the diagnosed conditions of bilateral carpal tunnel syndrome, left 

ulnar nerve syndrome, and right wrist tendinitis were caused by the February 19, 2012 fall at work. 

By decision dated January 3, 2019, OWCP denied modification of the November 14, 2017 

decision. 

On December 28, 2019 appellant requested reconsideration of the January 3, 2019 

decision. She submitted an October 9, 2019 report from Dr. Parmar who opined that she continued 

to have bilateral knee and ankle conditions related to the February 19, 2012 employment injury. 

In October 18 and 21, 2019 reports, Dr. Cameron maintained that appellant had disc protrusions 

and annular tears at L4-5 and L5-S1, which were related to the February 19, 2012 employment 

injury.6

By decision dated January 23, 2020, OWCP denied modification of the January 3, 2019 

decision.

LEGAL PRECEDENT -- ISSUE 1

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

justify termination or modification of an employee’s benefits.7 The right to medical benefits for 

an accepted condition is not limited to the period of entitlement for disability compensation.8 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.9 OWCP’s 

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

on a proper factual and medical background.10

6 Appellant also submitted an October 1, 2019 report from Dr.Nouhan,which was similar to a previously submitted 

February7, 2017 report.

7 L.L., Docket No. 18-1426 (issued April5, 2019); C.C., Docket No. 17-1158 (issued November 20, 2018); I.J., 59 

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

8 A.G., Docket No. 19-0220 (issued August 1, 2019); A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58 

ECAB 524 (2007); KathrynE. Demarsh, 56 ECAB 677 (2005); Furman G. Peake, 41 ECAB 361, 364 (1990).

9

See A.G., id.; James F. Weikel, 54 ECAB 660 (2003); PamelaK. Guesford, 53 ECAB 727 (2002).

10 See R.P., Docket No. 17-1133 (issued January18, 2018).
6

Section 8123(a) of FECA provides that if there is a disagreement between the physician 

making the examination for the United States and the physician of an employee, the Secretary shall 

appoint a third physician (known as a referee physician or impartial medical specialist) who shall 

make an examination.11 For a conflict to arise, the opposing physicians’ opinions must be of 

virtually equal weight and rationale.12 In situations where the case is properly 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

ANALYSIS -- ISSUE 1

The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s 

medical benefits, except for those related to her left knee meniscus tear, effective 

December 17, 2015.

OWCP properly determined that there was a conflict in the medical opinion evidence 

between Dr. Parmer, appellant’s attending physician, and OWCP’s referral physician, Dr. Prostic, 

on the issue of whether appellant continued to have residuals of his accepted conditions, which 

necessitated medical treatment. In order to resolve the conflict, OWCP properly referred appellant, 

pursuant to section 8123(a) of FECA, to Dr. Clymer for an impartial medical examination and an 

opinion on the matter.14 

In a February 24, 2014 report, Dr. Clymer discussed the diagnostic testing for appellant’s 

right knee and opined that appellant had minor patellofemoral chondromalacia, which the 

February 19, 2012 fall at work might have aggravated. He indicated that there was no significant 

localized cartilage instability, ligament injury, or meniscus tear in the right knee and opined that, 

therefore, the likelihood of significant symptomatic improvement with right knee arthroscopy was 

“rather low.” Dr. Clymer recommended continued conservative nonsurgical treatment for the right 

knee. He noted that, with regard to the multiple other areas of sprains and strains involving the 

ankles, heels, wrists, neck, and lumbar spine, “I see nothing today on my objective clinical 

exam[ination] nor in the history and review of records which would suggest there is a significant 

ongoing problem in these areas which would require further treatment.” Dr. Clymer further 

indicated, “I believe the sprains and strains in general have resolved.”

The Board finds that Dr. Clymer’s February 25, 2014 report is not sufficiently well 

rationalized to carry special weight and to justify OWCP’s termination of appellant’s medical 

benefits, except for those related to her left knee meniscus tear.

15

 Dr. Clymer provided only a 

11 5 U.S.C. § 8123(a); see E.L., Docket No. 20-0944 (issued August 30, 2021); R.S.,Docket No. 10-1704 (issued 

May 13, 2011); S.T.,Docket No. 08-1675 (issued May 4, 2009); M.S., 58 ECAB 328 (2007).

12 P.R., Docket No. 18-0022 (issued April9, 2018).

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

ECAB 1010 (1980).

14 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.” 5 U.S.C. § 8123(a).

15 See supra note 12.
7

cursory and minimal discussion of the multiple medical conditions accepted as caused by the 

February 19, 2012 employment injury. With respect to the resolution of these conditions, he

simply noted, without elaboration, that he believed “the sprains and strains in general have 

resolved.” The conditions accepted by OWCP included a neck sprain, bilateral sprains of the 

wrists, knees, ankles, and heels, and aggravation of L4-5 disc protrusion and L4-5, and aggravation 

of L5-S1 annular tears. Dr. Clymer did not provide any discussion of how and when each of these 

conditions resolved. The fact that he failed to provide adequate medical rationale in support of his 

opinion renders it of limited probative value on the issue of continuing employment-related 

residuals and the need for medical treatment.

16

 

In an August 3, 2015 supplemental report, Dr. Clymer advised that the opinions he 

expressed in his February 25, 2014 report remained unchanged. He noted, “[w]hile I feel 

[appellant] may well have sustained various areas of sprain and strain as a result of the workrelated fall on February 19, 2012, the objective clinical examination and multiple objective 

radiographic studies have not revealed evidence of any significant structural injuries which I feel 

would be clearly benefited by further surgical intervention.” Dr. Clymer indicated that appellant’s 

subjective symptoms were certainly significant and diffuse, involving multiple areas, but noted 

that it was unlikely that any aggressive or surgical measures would be of any clear benefit.

The Board notes that Dr. Clymer’s August 3, 2015 supplemental report is of limited 

probative value on the underlying issue of the case because it does not provide any further 

discussion, fortified with medical rationale, to explain how and when appellant’s multiple accepted 

medical conditions had resolved such that he would not require medical benefits to treat those 

conditions. In fact, Dr. Clymer acknowledged that appellant had a number of symptoms in each 

of the bodily regions where OWCP accepted employment-related conditions. He emphasized that 

surgical intervention was not recommended, but he did not adequately explain why appellant 

would not continue to have employment-related residuals, which would necessitate some form of 

medical treatment. 

Because there remains an unresolved conflict in the medical opinion evidence regarding 

employment-related residuals and the need for medical treatment of continuing employmentrelated conditions, the Board finds that OWCP failed to meet its burden of proof.17

CONCLUSION

The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s 

medical benefits, except for those related to her left knee meniscus tear, effective 

December 17, 2015.18 

16 See Y.D., Docket No. 16-1896 (issued February 10, 2017). See also supra note 9.

17 See L.H., Docket No. 17-1859 (issued May10, 2018); R.R.,Docket No. 15-0380 (issued April10, 2015).

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

ORDER

IT IS HEREBY ORDERED THAT the January 23, 2020 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: November 22, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board