United States Department of Labor

Employees’ Compensation Appeals Board

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K.C., Appellant

and

DEPARTMENT OF THE ARMY, TOOELE 

ARMY DEPOT, Tooele, UT, Employer

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Docket No. 23-0128

Issued: July 18, 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

JANICE B. ASKIN, Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On November 3, 2022 appellant filed a timely appeal from a September 28, 2022 merit 

decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal 

Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has 

jurisdiction to consider the merits of this case.

ISSUE

The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss 

compensation, effective September 28, 2022, as he no longer had disability casually related to his 

accepted July 14, 1980 employment injury.

1 The Board notes that, following the September 28, 2022 decision and on appeal, appellant submitted additional 

evidence. 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

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

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.

On July 14, 1980 appellant, then a 25-year-old mechanics helper, filed a traumatic injury 

claim (Form CA-1) alleging on that date he injured his right knee while in the performance of duty.

He stopped work on that date. OWCP accepted the claim for dislocation of the right patella and 

temporary aggravation of chondromalacia. Appellant returned to light-duty work on January 29, 

1981 and sustained a recurrence of total disability on June 1, 1981. OWCP paid wage-loss 

compensation on the periodic rolls beginning May 31, 1982. 

On March 2, 2017 OWCP referred appellant, a statement of accepted facts (SOAF), and 

series of questions for a second opinion evaluation with Dr. Leslie J. Harris, a Board-certified 

orthopedic surgeon, to determine appellant’s work-related disability and medical residuals due to

his July 14, 1980 employment injury.

In a March 16, 2017 report, Dr. Harris reviewed the SOAF and medical records and 

performed a physical examination. He opined that only a small portion of appellant’s current 

symptoms were secondary to patellofemoral arthritis which developed as a consequence of the 

original patellar dislocation and chondromalacia of the patella. Dr. Harris opined that, due to 

appellant’s work-related patellofemoral arthritis and appellant’s additional lateral and medial 

compartmental right knee arthritis, appellant was unable to return to his date-of-injury position as 

he could not stoop, squat, kneel, or crawl for extended periods. He also provided restrictions on 

walking or standing for eight hours and lifting over 50 pounds.

On August 4, 2021 OWCP requested that appellant provide a medical report from his 

attending physician within 30 days. No response was received.

On December 22, 2021 OWCP referred appellant, a SOAF and a series of questions to

Dr. Qing-Min Chen, a Board-certified orthopedic surgeon, for a second opinion examination.

In a report dated January 31, 2022, Dr. Chen recounted appellant’s history of work-related 

right knee injury in 1980. He reviewed the SOAF and medical treatment. Dr. Chen diagnosed 

work-related right patellofemoral post-traumatic osteoarthritis, dislocation of the right patella and 

temporary aggravation of chondromalacia of the right patella as well as nonwork-related right knee 

medial and lateral compartment osteoarthritis. He opined that the work-related patella injury 

caused patellofemoral post-traumatic osteoarthritis, but that the medial and lateral right knee 

compartments should not have been affected. Dr. Chen found no right knee instability and 

concluded that this suggested that appellant’s main issue was likely due to his osteoarthritic 

changes of the right knee medial and lateral compartments. He advised that appellant’ accepted 

work-related conditions had not resolved and that appellant’s patellofemoral post-traumatic 

osteoarthritis would not resolve until he underwent a total knee replacement. Dr. Chen emphasized 

that the patellofemoral joint was only one-third of the knee and that the other two-thirds of 

appellant’s knee, the medial and lateral joints, were also osteoarthritic, but not work related. He 

3 Docket No. 02-2297 (issued April 11, 2003).
3

concluded that appellant could return to his date-of-injury position as appellant’s right knee pain 

was largely attributable to the medial and lateral compartments, while appellant’s patellofemoral 

osteoarthritis only made up a minor component of his right knee pain and arthritis.

In a notice dated February 9, 2022, OWCP proposed to terminate appellant’s wage-loss 

compensation because he no longer had disability or residuals causally related to his accepted 

employment injury. It based its proposed finding on Dr. Chen’s opinion that appellant was no 

longer disabled and could return to work. OWCP afforded appellant 30 days to submit additional 

evidence or argument challenging the proposed termination.

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

compensation, effective that date. It based its finding on Dr. Chen’s January 31, 2022 second 

opinion report opining that appellant’ no longer had any disability due to his accepted employment 

injury. On April 7, 2022 appellant requested a review of the written record from a representative 

of OWCP’s Branch of Hearings and Review.

By decision dated June 29, 2022, OWCP’s hearing representative reversed the March 14, 

2022 termination decision finding that Dr. Chen’s January 31, 2022 report did not sufficiently 

explain how appellant could return to his date-of-injury position. He further noted that Dr. Chen 

had opined that appellant’s patellofemoral osteoarthritis made up only a minor component of 

appellant’s right knee pain and that this focus on the percentage of disability suggested that he was 

unaware that there was no apportionment under FECA.

On July 1, 2022 OWCP requested that Dr. Chen provide additional medical rationale 

supporting his opinion that appellant was no longer disabled from work. In a July 8, 2022 

supplemental report, Dr. Chen recounted that appellant’s employment injury was accepted for 

right knee patella chondromalacia secondary to dislocation of the patella. He explained that the 

knee has three compartments, and that appellant’s main issue was pain in his right knee attributable

to arthritic changes in the medial and lateral compartments of the right knee, rather than the 

patellofemoral compartment. Dr. Chen opined that appellant’s patellofemoral osteoarthritis only 

made up a minor component of his right knee pain and arthritis. He also reported that there were 

no objective findings of instability. Dr. Chen described the job duties of a heavy mobile equipment 

mechanic helper including moderate physical effort with the need for occasional lifting up to 75

pounds. He concluded that the pain in appellant’s right knee was not coming from the 

patellofemoral joint, but from the other two compartments of the right knee which were not 

accepted as employment related.

In a notice dated August 18, 2022, OWCP proposed to terminate appellant’s wage-loss 

compensation based on Dr. Chen’s opinion that appellant was no longer disabled and could return 

to work. It afforded appellant 30 days to submit additional evidence or argument challenging the 

proposed termination.

In a narrative statement, appellant alleged that Dr. Chen did not perform a thorough 

examination.

By decision dated September 28, 2022, OWCP terminated appellant’s wage-loss 

compensation, effective that date, based on Dr. Chen’s second opinion report.
4

LEGAL PRECEDENT

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

termination or modification of an employee’s benefits.4 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.5 OWCP’s burden of proof includes the necessity of furnishing rationalized 

medical opinion evidence based on a proper factual and medical background. 6

ANALYSIS

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

wage-loss compensation, effective September 28, 2022.

In his July 8, 2022 supplemental second opinion report, Dr. Chen noted his review of 

appellant’s medical history and indicated that appellant’s physical examination revealed objective 

findings of tricompartmental right knee osteoarthritis. However, he attributed appellant’s 

disability from work as due to lateral and medial compartment osteoarthritis and found that the 

accepted condition of patellofemoral osteoarthritis only made up a minor component of his right 

knee pain and arthritis. Dr. Chen also opined that the pain in the right knee was not coming from 

the patellofemoral joint and that appellant’s accepted employment injury did not prevent his return 

to his date-of-injury position. 

The Board finds thatDr. Chen’s opinion does not comport with the requirements of FECA,

and does not contain sufficient medical reasoning to establish that appellant no longer had 

disability due to his accepted employment injury.7 There is no apportionment under FECA.8 Any 

contribution to appellant’s disability by the accepted condition would render his disability 

compensable.9 The factors that, determine probative medical evidence include the opportunity for 

and thoroughness of examination performed by the physician, the accuracy or completeness of the 

physician’s knowledge of the facts and medical history, the care of analysis manifested, and the 

medical rationale expressed by the physician on the issue addressed to him by OWCP. 10 Therefore,

4

See B.L., Docket No. 22-0812 (issued December 29, 2022); 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).

5

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

Vivien L. Minor, 37 ECAB 541 (1986).

6 B.L. id.; K.W., Docket No. 19-1224 (issued November 15, 2019); see M.C., Docket No. 18-1374 (issued April23, 

2019); Del K. Rykert, 40 ECAB 284, 295-96 (1988).

7 C.B., Docket No. 20-0629 (issued May 26, 2021); A.G., Docket No. 20-0187 (issued December 31, 2020); see

J.W., Docket No. 19-1014 (issued October 24, 2019); S.W., Docket No. 18-0005 (issued May 24, 2018).

8 M.M., Docket No. 20-1524 (issued April20, 2021); J.B., Docket No. 17-2021 (issued August8, 2018); G.G., 

Docket No. 17-0504 (issued August 8, 2017); Beth C. Chaput, 37 ECAB 158 (1985) (it is not necessary to show a 

significant contribution of employment factors to a diagnosed condition to establish causal relationship).

9

Id.

10 B.L., supra note 4; James T. Johnson, 39 ECAB 1252 (1988).
5

Dr. Chen’s second-opinion report is of diminished probative value. The Board thus finds that 

OWCP failed to meet its burden of proof.11

CONCLUSION

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

wage-loss compensation, effective September 28, 2022.

ORDER

IT IS HEREBY ORDERED THAT the September 28, 2022 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: July 18, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board

11 Id.