United States Department of Labor

Employees’ Compensation Appeals Board

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J.A., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Brick, NJ, Employer

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Docket No. 21-0912

Issued: February 18, 2022

Appearances: Case Submitted on the Record

Robert D. Campbell, Esq., for the appellant1

Office of Solicitor, for the Director

ORDER REVERSING CASE

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

On May 24, 2021 appellant, through counsel, filed a timely appeal from a March 23, 2021 

merit decision of the Office of Workers’ Compensation Programs (OWCP).2 The Clerk of the 

Appellate Boards assigned Docket No. 21-0912.

This case has previously been before the Board on a different issue. 3 The facts and 

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

relevant facts are as follows. 

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 The Board notes that following the March23, 2021 decision, appellant submitted additional evidence to OWCP 

and with his appeal to the Board. 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.

3 Docket No. 15-0421 (issued June1, 2015).
2

On April 9, 2013 appellant, then a 45-year-old letter carrier, filed a traumatic injury claim 

(Form CA-1) alleging that on that date he injured his right knee when he tripped over uneven 

pavement on a walkway and fell on his right knee while in the performance of duty. OWCP 

accepted his claim for right knee medial meniscus tear and right knee contusion. On November 27, 

2013 appellant underwent OWCP-approved right knee arthroscopic surgery and stopped work. 

OWCP paid him wage-loss compensation on the supplemental rolls, from November 27, 2013 

until he returned to full-duty work on March 8, 2014.4

On September 16, 2014 OWCP received a request from Dr. William F. Kennard, a Boardcertified general surgeon, seeking authorization for right knee arthroscopic surgery.

In a February 20, 2020 letter, OWCP informed appellant that it had authorized right knee 

arthroscopic surgery.

In letters dated September 23 and October 2, 2020, Dr. Kenneth S. Klein, a Board-certified 

orthopedic surgeon, explained that due to the COVID-19 pandemic and cancelation of selective 

surgeries, appellant could not undergo his previously approved surgery. He indicated that 

appellant’s right knee condition had not changed and that surgery was still medically necessary. 

Dr. Klein requested that OWCP again authorize appellant’s right knee arthroscopic surgery. 

In an October 5, 2020 report, Dr. Nathan Hammel, a Board-certified orthopedic surgeon 

serving as the DMA, reviewed the evidence of record and responded “No” indicating further that 

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

appellant’s accepted right knee injury as the magnetic resonance imagingscan did not demonstrate 

a tear. 

By decision dated October 23, 2020, OWCP denied authorization for right knee 

arthroscopic surgery based on the October 5, 2020 report of the DMA.

On November 9, 2020 appellant, through counsel, requested a review of the written record 

by a representative of OWCP’s Branch of Hearings and Review. 

By decision dated March 23, 2021, a hearing representative affirmed the October 23, 2020 

decision. 

The Board, having duly considered this matter, finds that OWCP improperly rescinded 

authorization for appellant’s right knee arthroscopic surgery. 

As OWCP attempted to rescind its prior authorization for surgery, it must follow its 

established procedures for rescission.5 Its procedures require a proposed and final decision 

4 Appellant subsequently filed a notice ofrecurrence (Form CA-2a) on May27, 2014 alleging that on May 22, 2014 

he sustained a recurrence of his April 9, 2013 employment injury. OWCP converted the claim to a new occupational 

disease (Form CA-2) claim assigned OWCP File No. xxxxxx034. It accepted that claim for aggravation of right knee 

contusion and aggravation of right knee medial meniscus tear and paid appellant wage-loss compensation on the

periodic rolls, effective July 26, 2015. On December 21, 2015 appellant filed another Form CA-2 alleging that he 

aggravated his posterior medial meniscus tear as a result of his federal employment. OWCP assigned that claim 

OWCP File No. xxxxxx424 and accepted it for aggravation of pre-existing right knee medial meniscus tear. It has 

administratively combined these claims,with the current claim serving as the master file. 

5 L.M., Docket No. 16-1464 (issued November 1, 2017).
3

rescinding the original finding.6 These procedures further provide that a rescission decision should 

contain a brief background of the claim, discuss the evidence on which the original decision was 

based, and explain why OWCP finds that the decision should be rescinded.

Herein, OWCP failed to provide a proposed decision rescinding the authorization for 

surgery.

7

 It has, therefore, not complied with its own procedures and thus, failed to meetits burden 

of proof to rescind its prior authorization for surgery.

8

 Accordingly,

IT IS HEREBY ORDERED THAT the March 23, 2021 merit decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: February 18, 2022

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

6 Federal (FECA) Procedure Manual, Part 2 --Claims, Disallowances,Chapter 2.1400.19(b) (February 2013).

7

See S.C., Docket No. 19-1045 (issued July 24, 2020); S.R.,Docket No. 12-1404 (issued December 11, 2012).

8

See S.R., Docket No. 09-2332 (issued August 16, 2010) (once OWCP accepts a claim, it has the burden of 

justifying the termination or modification of compensation benefits; this holds true where OWCP later decides that it 

erroneously accepted a claim). T.H., Docket No. 15-1372 (issued September 20, 2016); Ixtala Ccihuatl, 49 ECAB 

427 (1998); supranote 6 at Chapter 2.1400.19.c. (February 2013).