United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.H., Appellant

and

DEPARTMENT OF THE ARMY, WALTER 

REED ARMY MEDICAL CENTER, 

Washington, DC, Employer

__________________________________________

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Docket No. 23-0503

Issued: July 20, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On February 28, 2023 appellant filed a timely appeal from a September 14, 2022 merit 

decision and a February 6, 2023 nonmerit 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 over the merits of this case.

ISSUES

The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s wageloss compensation and medical benefits effective September 14, 2022 as she no longer had 

disability or residuals causally related to her accepted February 15, 1996 employment injury; and 

(2) whether OWCP properly denied appellant’s request for an oral hearing or review of the written 

record as untimely filed, pursuant to 5 U.S.C. § 8124(b).

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On February 23, 1996 appellant, then a 53-year-old cook, filed a traumatic injury claim 

(Form CA-1) alleging that on February 15, 1996 she injured her left ankle and right knee when she 

slipped and fell while in the performance of duty. OWCP accepted the claim for a right lateral 

meniscus tear, left ankle strain, and a sprain of the right knee and leg. Appellant stopped work on 

February 15, 1996. On July 18, 1996 she underwent a right knee arthroscopic debridement. 

Appellantreturned to modified work on October 1, 1996, stopped work on November 6, 1996, and 

returned to modified work on December 21, 1996. She stopped work again on February 26, 1997 

and did not return. Appellant underwent left Achilles tendon surgery on June 17, 1997 and a right 

knee arthroscopic debridement in 2001. OWCP paid her wage-loss compensation for disability on 

the periodic rolls.

In a progress report dated February 17, 2020, Dr. Daniel D. Lahr, a Board-certified

orthopedic surgeon, evaluated appellant for left posterior tibial tendinitis and arthritis of the right 

knee which he attributed to her accepted employment injury. He noted that she was unable to 

stand or walk for a significant amount of time and had “difficulty performing her job duties.”

Dr. Lahr attributed appellant’s arthritis to her injury and recommended a total knee replacement.

On December 3, 2021 OWCP requested that appellant submit a report from her attending 

physician addressing her current condition and work limitations. 

In a December 29, 2021 work restriction evaluation (Form OWCP-5c), Dr. Lahr found that 

appellant was totally disabled from employment. 

On February 17, 2022 OWCP referred appellant to Dr. Rafael Lopez, a Board-certified 

orthopedic surgeon, for a second opinion examination. 

In a report dated March 19, 2022, Dr. Lopez discussed appellant’s history of injury and 

advised that he had reviewed the medical evidence of record. On examination he found negative 

anterior and posterior drawer tests, a negative McMurray’s test, and no joint line tenderness. 

Dr. Lopez further found no evidence of “significant swelling, crepitation, instability, spasm, or 

atrophy” of the bilateral knees or left ankle and foot and a mild valgus deformity of the right knee. 

He diagnosed a right lateral meniscus tear, a sprain of the right knee and right leg, and left ankle 

strain. Dr. Lopez opined that appellant had no residuals or disability due to her accepted 

employment injury and could resume her usual employment. He further recommended no further 

medical treatment as she had reached maximum medical improvement.

On April 22, 2022 OWCP requested that Dr. Lahr review Dr. Lopez’ March 19, 2022 

report and explain whether he agreed that appellant had no further disability or residuals due to 

her accepted employment injury. It afforded him 30 days to submit his response.

In a Form OWCP-5c dated May 14, 2022, Dr. Lahr found that appellant could perform 

sedentary work for eight hours per day, with no standing, bending, or stooping.

On July 13, 2022 OWCP notified appellant of its proposed termination of her wage-loss 

compensation as the weight of the evidence established that she no longer had any employmentrelated residuals or disability due to her accepted February 15, 1996 employment injury. It
3

afforded her 30 days to submit additional evidence or argument if she disagreed with the proposed 

termination. 

By decision dated September 14, 2022, OWCP terminated appellant’s wage-loss 

compensation and medical benefits effective that date. It found that the March 19, 2022 report 

from Dr. Lopez constituted the weight of the evidence and established that she had no disability 

or residuals causally related to her accepted February 15, 1996 employment injury. The decision 

was sent to appellant’s address of record.

On October 5, 2022 appellant advised that she had not received the termination decision. 

OWCP sent her another copy of the decision. 

In an October 17, 2022 Form OWCP-5c, Dr. Lahr found that appellant was disabled from 

employment. 

In a memorandum of telephone call (Form CA-110) dated December 29, 2022, appellant

related that she provided her doctor with her appeal request. She asked for another copy of 

OWCP’s decision, which OWCP mailed to her on that date. 

In correspondence dated January 6, 2023 and postmarked January 12, 2023, appellant 

requested a review of the written record and an oral hearing before a representative of OWCP’s 

Branch of Hearings and Review.

By decision dated February 6, 2023, OWCP denied appellant’s request for an oral hearing 

or review of the written record, finding that it was untimely filed. It further exercised its discretion 

and determined that the issue in the case could equally well be addressed by a request for 

reconsideration before OWCP along with the submission of new evidence.

LEGAL PRECEDENT -- ISSUE 1

Once OWCP accepts a claim and pays compensation, it has the burden of justifying 

modification or termination of an employee’s benefits.2 After it has determined that an employee 

has disability causally related to his or her federal employment, OWCP may not terminate 

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

the employment.3Its burden of proof includes the necessity of furnishing rationalized medical 

opinion evidence based on a proper factual and medical background. 4

2

See T.C., Docket No. 20-1163 (issued July 13, 2021); R.H., Docket No. 19-1064 (issued October 9, 2020); PaulL. 

Stewart, 54 ECAB 824 (2003).

3 P.T., Docket No. 21-0328 (issued May 2, 2022); A.T., Docket No. 20-0334 (issued October 8, 2020); E.B., Docket 

No. 18-1060 (issued November 1, 2018).

4 T.C., supra note 2; C.R., Docket No. 19-1132 (issued October 1, 2020); G.H., Docket No. 18-0414 (issued 

November 14, 2018).
4

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

entitlement for disability.5 To terminate authorization for medical treatment, OWCP must 

establish that appellant no longer has residuals of an employment-related condition, which would 

require further medical treatment.6

ANALYSIS -- ISSUE 1

The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss 

compensation and medical benefits effective September 14, 2022 as she no longer had disability 

or residuals causally related to her accepted February 15, 1996 employment injury.

In order to determine the extent and degree of any employment disability or residuals, 

OWCP referred appellant to Dr. Lopez. Dr. Lopez discussed appellant’s history of injury and 

provided examination findings showing no evidence of swelling, crepitus, instability, spasm, or 

atrophy of the bilateral knees and ankle and a mild valgus deformity of the right knee. He further 

found a negative McMurray’s test, negative drawer tests, and no joint line tenderness. Dr. Lopez 

diagnosed a right lateral meniscus tear, a sprain of the right knee and right leg, and left ankle strain. 

He opined that appellant had no further disability or residuals of her accepted employment injury 

and could return to her regular work duties. Dr. Lopez determined that she required no further 

medical treatment.

Dr. Lopez based his opinion on a proper factual and medical history and findings on 

physical examination. On examination he found no objective findings supporting continued 

residuals or disability due to the accepted conditions.7 The Board therefore finds that OWCP 

properly relied upon the reports of Dr. Lopez in terminating appellant’s wage-loss compensation 

and medical benefits.8

The remaining evidence submitted prior to OWCP’s termination of appellant’s wage-loss 

compensation and medical benefits is insufficient to show that she had continued employmentrelated residuals or disability due to her accepted employment injury. In a report dated 

February 17, 2020,Dr. Lahr opined that appellant had arthritis of the right knee due to her accepted 

employment injury and left posterior tibial tendinitis. He indicated that she was unable to stand or 

walk for a significant period and had difficulty performing work duties. Dr. Lahr attributed 

appellant’s right knee arthritis to her accepted employment injury. However, OWCP has not 

accepted right knee arthritis as employment related. Dr. Lahr did not specifically address how any 

5 E.J., Docket No. 20-0013 (issued November 19, 2020); L.W., Docket No. 18-1372 (issued February 27, 2019); 

Furman G. Peake, 41 ECAB 361 (1990).

6 A.J., Docket No. 18-1230 (issued June 8, 2020); R.P., Docket No. 18-0900 (issued February 5, 2019).

7

See E.J., Docket No. 20-0013 (issued November 19, 2020). 

8

See L.B., Docket No. 19-1380 (issued February 11, 2020); L.S., Docket No. 19-0959 (issued September 24, 2019).
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current disability or need for medical treatment was causally related to the accepted employmentrelated conditions and thus his report is of little probative value. 9

 

In a Form OWCP-5c dated December 29, 2021, Dr. Lahr found appellant disabled from 

employment. On April 22, 2022 OWCP provided Dr. Lahr with the March 19, 2022 report of

Dr. Lopez to review and discuss. In a May 14, 2022 Form OWCP-5c, Dr. Lopez indicated that 

appellant could work full time in a sedentary capacity performing no standing, bending, or 

stooping. His form reports, however, are of limited probative value as they fail to provide medical 

rationale explaining how she had continuing disability or residuals causally related to the accepted 

employment injury.10 

Appellant may submit new evidence or argument with a written request for reconsideration 

to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. 

§§ 10.605 through 10.607.

LEGAL PRECEDENT -- ISSUE 2

Section 8124(b)(1) of FECA provides that “a claimant for compensation not satisfied with 

a decision of the Secretary is entitled, on request made within 30 days after the date of the issuance 

of the decision, to a hearing on his or her claim before a representative of the Secretary.”11 Sections 

10.617 and 10.618 of the federal regulations implementing this section of FECA provide that a 

claimant shall be afforded a choice of an oral hearing or a review of the written record by a 

representative of the Secretary.12 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. 13

Although there is no right to a review of the written record or an oral hearing if not requested 

within the 30-day time period, OWCP may within its discretionary powers grant or deny 

appellant’s request and must exercise its discretion.14

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied appellant’s request for either an oral hearing 

or review of the written record as untimely filed, pursuant to 5 U.S.C. § 8124(b).

9

See P.B., Docket No. 21-0894 (issued February 8, 2023); M.L., Docket No. 20-1682 (issued June 24, 2021);K.E., 

Docket No. 17-1216 (issued February 22, 2018).

10 See L.S., Docket No. 19-0959 (issued September 24, 2019); J.F.,Docket No. 17-1716 (issued March 1, 2018).

11 5 U.S.C. § 8124(b).

12 20 C.F.R. §§ 10.616, 10.617.

13 Id. at § 10.616(a).

14 M.F.., Docket No. 21-0878 (issued January 6, 2022); W.H.,Docket No. 20-0562 (issued August 6, 2020); 

P.C.,Docket No. 19-1003 (issued December 4, 2019); Eddie Franklin, 51 ECAB 223 (1999);Delmont L. Thompson, 

51 ECAB 155 (1999).
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In correspondence dated July 6, 2023 and postmarked July 12, 2023, appellant requested 

either an oral hearing or a review of the written record before a representative of OWCP’s Branch 

of Hearings and Review; however, this request was made more than 30 day s after OWCP’s 

September 14, 2022 decision. The September 14, 2022 decision was properly addressed and 

mailed in the ordinary course of business and thus presumed to have been received under the 

mailbox rule.15 Section 8124(b)(1) is unequivocal on the time limitation for filing a request for a 

hearing.16 Assuch, the request was untimely filed, and appellant was not entitled to an oral hearing 

or review of the written record as a matter of right.17

The Board further finds that OWCP, in its February 6, 2023 decision, properly exercised 

its discretionary authority, explaining that it had considered the matter and denied appellant’s 

request for an oral hearing or review of the written record as her claim could be equally well 

addressed through a reconsideration request.

The Board has held that the only limitation on OWCP’s authority is reasonableness. An 

abuse of discretion is generally shown through proof of manifest error, clearly unreasonable 

exercise of judgment, or actions taken which are contrary to both logic and probable deductions 

from established facts.18 In this case, the evidence of record does not indicate that OWCP abused 

its discretion by denying appellant’s request for an oral hearing. Accordingly, the Board finds that 

OWCP properly denied her request for an oral hearing, pursuant to 5 U.S.C. § 8124(b), as untimely 

filed.

CONCLUSION

The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss 

compensation and medical benefits effective September 14, 2022 as she no longer had disability 

or residuals causally related to her accepted employment injury. The Board further finds that 

OWCP properly denied appellant’s request for an oral hearing as untimely filed, pursuant to 5 

U.S.C. § 8124(b).

15 See C.W., Docket No. 21-0943 (issued February 17, 2023); James A. Gray, 54 ECAB 277 (2002).

16 See supra note 3; K.N., Docket No. 22-0647; G.H., Docket No. 22-0122 (issued May 20, 2022).

17 See D.R., Docket No. 22-0361 (issued July 8, 2022); D.S., Docket No. 21-1296 (issued March 23, 2022); P.C., 

supra note 14.

18 See S.I., Docket No. 22-0538 (issued October 3, 2022); T.G., Docket No. 19-0904 (issued November 25, 2019); 

Daniel J. Perea, 42 ECAB 214 (1990).
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ORDER

IT IS HEREBY ORDERED THAT the September 14, 2022 and February 6, 2023 

decisions of the Office of Workers’ Compensation Programs are affirmed.

Issued: July 20, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board