United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Baltimore, MD, Employer
__________________________________________

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Appearances:
Michael Perticone, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-197
Issued: April 25, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 5, 2013 appellant, through her attorney, filed a timely appeal from an
August 28, 2013 merit 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.
ISSUE
The issue is whether appellant established an employment-related condition or disability
after August 15, 2012, when OWCP terminated her compensation benefits.
FACTUAL HISTORY
On January 29, 2010 appellant, then a 37-year-old letter carrier, sustained injuries in a
motor vehicle accident while in the performance of duty. On April 15, 2010 OWCP accepted the
claim for cervical, thoracic and lumbar sprains, laceration of the spleen and an abdominal wall
1

5 U.S.C. § 8101 et seq.

contusion. Appellant returned to a light-duty position and then stopped working on
April 22, 2010. She received compensation for wage loss.
In a report dated July 20, 2010, the attending physician, Dr. Robert Cadogan, a Boardcertified family practitioner, diagnosed thoracolumbar sprain with facet injuries and right knee
patellofemoral pain. He advised that appellant remained disabled.
Appellant was referred by OWCP to Dr. Robert Smith, a Board-certified orthopedic
surgeon, for a second opinion examination. In a report dated August 6, 2010, Dr. Smith
reviewed a history of injury and results on examination. With regard to the accepted sprains, he
found that the conditions had resolved. With respect to the abdominal contusion and spleen
laceration, appellant was at maximum medical improvement. Dr. Smith noted that her right knee
condition had not been accepted as employment related and stated that April 2010 testing
showed chondromalacia, not a post-traumatic condition.
OWCP found that a conflict in medical opinion between Dr. Cadogan and Dr. Smith. It
referred appellant to Dr. Edward Cohen, a Board-certified orthopedic surgeon, selected as the
impartial referee physician to resolve the conflict. In a report dated November 16, 2010,
Dr. Cohen provided a history and results on examination. He diagnosed neck and back sprains
“with subjective residuals only,” preexisting degenerative lumbar disc disease, resolved right
knee contusion and preexisting chondromalacia patella of the right knee.
On March 22, 2011 OWCP advised appellant that her claim had also been accepted for a
right knee sprain. By letter dated June 16, 2011, it advised her that it proposed to terminate her
wage-loss and medical benefits, as the report of Dr. Cohen represented the weight of the medical
evidence.
By decision dated July 20, 2011, OWCP terminated appellant’s compensation for wageloss and medical benefits.
On July 28, 2011 appellant requested an oral hearing.
In a decision dated October 5, 2011, an OWCP hearing representative reversed the
July 20, 2011 decision. The hearing representative noted that the claim had been accepted for a
right knee sprain and Dr. Cohen had not reviewed the diagnostic tests dated April 1, 2011. The
case was remanded for a supplemental report from Dr. Cohen.
In a report dated December 8, 2011, Dr. Cohen listed results on examination and
reviewed the medical records. He opined that appellant had reached maximum medical
improvement and he saw no need for ongoing treatment to the back or knee as a result of the
employment injury.
By decision dated January 17, 2012, OWCP terminated appellant’s compensation for
wage-loss and medical benefits.
Appellant requested an oral hearing before an OWCP hearing representative. In a
decision dated April 12, 2012, the hearing representative reversed the January 17, 2012 decision.

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The hearing representative found that Dr. Cohen did not provide a fully rationalized medical
opinion. OWCP was directed to request a supplemental report.
In a report dated April 19, 2012, Dr. Cohen stated that he had reviewed the medical
evidence of record. He opined that his opinion remained unchanged. Dr. Cohen stated that there
was no disabling condition to the right knee and the recent magnetic resonance imaging scan
showed mild effusion with no evidence of any damage or alteration to an anatomical structure.
OWCP advised appellant by letter dated May 17, 2012 that it proposed to terminate her
compensation. On May 29, 2012 appellant submitted a February 14, 2012 report from
Dr. Michael Dvorkin, a Board-certified orthopedic surgeon, who advised that radiographs
showed patellofemoral arthritis. On April 3, 2012 Dr. Dvorkin stated that she had right knee
surgery on March 14, 2012, noting that foreign bodies were removed from what appeared to be a
traumatic injury to the iliofemoral condyle. In a report dated May 3, 2012, he stated that
appellant had made good progress and would benefit from physical therapy and should remain
out of work.
The medical evidence from Dr. Dvorkin was sent to Dr. Cohen for review. In a report
dated July 3, 2012, Dr. Cohen stated that appellant’s ongoing knee complaints were related to
osteoarthritis of the knee, an ordinary disease of life.
By decision dated August 15, 2012, OWCP terminated compensation for wage-loss and
medical benefits effective that date. It found that Dr. Cohen represented the weight of the
medical evidence.
Appellant requested a hearing before an OWCP hearing representative, which was held
on December 6, 2012. By decision dated February 13, 2013, the hearing representative affirmed
the termination of compensation. The hearing representative found the weight of the evidence
was represented by Dr. Cohen.
On March 15, 2013 appellant requested reconsideration and submitted additional
evidence. In a report dated February 26, 2013, Dr. Dvorkin stated that he treated her for a
work-related injury on January 29, 2010. Appellant had a debridement of the medial femoral
condyle and patellofemoral joint due to her traumatic injury. On February 28, 2013 Dr. Dvorkin
noted that the March 14, 2012 surgery found an osteochondral traumatic injury of the medial
femoral condyle and degenerative arthritis of the patellofemoral joint. He stated, “In regard to
causality, I feel that the January 29, 2010 injury sustained to the knee joint included damage to
the medial femoral condyle, traumatic in origin, consistent with an osteochondral injury as well
as some fragmentation of the medial femoral condyle from the injury resulting in loose bodies.
[Appellant] also clearly had underlying degenerative arthritis of the medial femoral condyle and
the patellofemoral joint.” Dr. Dvorkin reported that she was asymptomatic prior to the work
injury and, although her arthritis was preexisting, he believed the accident caused exacerbation
of the underlying degenerative arthritis as well as damage to the medial femoral condyle and
loose bodies. Appellant also developed a deep venous thrombosis postoperatively and required a
blood thinning medication, which was related to the work injury since the injury required
surgical intervention.

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By decision dated August 28, 2013, OWCP reviewed the case on its merits and denied
modification of the August 15, 2012 decision.
LEGAL PRECEDENT
After termination or modification of benefits, clearly warranted on the basis of the
evidence, the burden for reinstating compensation benefits shifts to appellant. In order to prevail,
appellant must establish by the weight of the reliable, probative and substantial evidence that she
had an employment-related condition or disability which continued after termination of
compensation benefits.2
5 U.S.C. § 8123(a) provides that when there is a disagreement between the physician
making the examination for the United States and the physician of the employee, a third
physician shall be appointed to make an examination to resolve the conflict.3 When there are
opposing medical reports of virtually equal weight and rationale, the case must be referred to an
impartial specialist, pursuant to 5 U.S.C. § 8123(a), to resolve the conflict in the medical
evidence.4 Although a physician may be selected as a referee physician, if there is no conflict
with respect the specific issue considered, the physician is considered a second opinion physician
and the report is considered for its probative value.5
ANALYSIS
OWCP terminated compensation for wage-loss and medical benefits effective
August 15, 2012. This decision was reviewed by an OWCP hearing representative in a decision
dated February 13, 2013. Appellant did not appeal from the February 13, 2013 decision, which
reviewed the termination of compensation, to the Board within 180 days. For decisions of
OWCP issued on or after November 19, 2008, the Board’s jurisdiction is limited to appeals
which are filed within 180 days from the date of issuance of OWCP’s decision.6
Appellant obtained reports from Dr. Dvorkin dated February 26 and 28, 2013 and
submitted the evidence to OWCP with a request for reconsideration. The burden of proof shifted
to her to establish a continuing employment-related condition or disability after August 15, 2012.
Appellant has submitted medical evidence from Dr. Dvorkin who found an aggravation
of her underlying right knee degenerative arthritis as well as damage to the medial femoral
condyle and loose bodies. Dr. Dvorkin discussed the findings from the March 14, 2012 knee

2

Talmadge Miller, 47 ECAB 673, 679 (1996); see also George Servetas, 43 ECAB 424 (1992).

3

Robert W. Blaine, 42 ECAB 474 (1991); 5 U.S.C. § 8123(a).

4

William C. Bush, 40 ECAB 1064 (1989). This is called a referee or impartial examination. 20 C.F.R. § 10.321.

5

B.P., Docket No. 13-196 (issued March 26, 2013); R.B., Docket No. 11-1616 (issued March 1, 2012); see also
Cleopatra McDougal-Saddler, 47 ECAB 480 (1996).
6

See 20 C.F.R. § 501.3(e).

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surgery and addressed how the conditions were causally related to the accepted employment
injury.
Dr. Cohen disagreed with Dr. Dvorkin with respect to a continuing employment-related
right knee condition. He stated that the osteoarthritis was unrelated to the employment injury
and that all residuals of the accepted conditions had ceased. Although Dr. Cohen had been
selected as a referee physician, there was no conflict at the time of selection with respect to an
aggravation of degenerative arthritis or a medial femoral condyle injury. There had been no
probative medical opinions on regarding an aggravation of degenerative arthritis or medial
femoral condyle injury and there was no disagreement under 5 U.S.C. § 8123(a). With respect to
this issue, Dr. Cohen is a second opinion physician.
The Board finds that a conflict exists between Dr. Dvorkin and Dr. Cohen with respect to
the causal relationship between the employment injury and an aggravation of right knee
degenerative arthritis, medial condyle damage and the other findings from the March 14, 2012
surgery. Pursuant to 5 U.S.C. § 8123(a), the case will be remanded for selection of a referee
physician and resolution of the conflict. After such further development as OWCP deems
necessary, it should issue an appropriate decision.
CONCLUSION
The Board finds the case is not in posture for decision and is remanded to OWCP for
additional development.

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ORDER
IT IS HEREBY ORDERED THAT the August 28, 2013 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further action
consistent with this decision of the Board.
Issued: April 25, 2014
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Portland, ME, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 11-1274
Issued: September 15, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 10, 2011 appellant filed a timely appeal from a March 31, 2011 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act (FECA)1 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 properly found an overpayment of $26,941.88 was
created from July 26, 2003 to December 18, 2010 due to a failure to deduct health benefit
insurance premiums; (2) whether OWCP properly denied waiver of the overpayment; and
(3) whether OWCP properly determined the overpayment would be recovered by deducting
$200.00 from continuing compensation payments.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
Appellant filed a claim for a traumatic injury (Form CA-1) on November 26, 1990. The
claim was accepted for a cervical sprain, acute cerebrovascular disease, brachial plexus lesions,
cervical spondylosis without myelopathy, diplopia and headache. As of July 13, 2002 appellant
had stopped work and received compensation based on loss of wage-earning capacity. The
payments did not deduct for her health benefit insurance (HBI) premiums.
On December 22, 2010 OWCP received information regarding appellant’s health benefit
insurance enrollment. The evidence established that appellant was enrolled in the Federal
Employee’s Health Benefit (FEHB) plan since 1989 under enrollment code 105. A
memorandum dated August 12, 2003 from the employing establishment indicated that effective
July 26, 2003 FEHB enrollment was being transferred because she was receiving OWCP
benefits.
By letter dated February 9, 2011, OWCP advised appellant of a preliminary
determination that an overpayment of $26,941.88 was created because it failed to deduct HBI
premiums from compensation paid July 26, 2003 to December 18, 2010. As to how the amount
was calculated, OWCP did not provide additional information. The record contains a worksheet
dated January 26, 2011 stating that for the period July 26, 2003 to December 18, 2010 the HBI
premium for enrollment code 105 was $26,941.88. With regard to fault, OWCP found appellant
was not at fault in creating the overpayment. Appellant was advised to submit relevant financial
information regarding waiver of the overpayment within 30 days. She did not respond.
By decision dated March 31, 2011, OWCP finalized the $26,941.88 overpayment of
compensation. It denied waiver of the overpayment as appellant had not submitted any financial
information. In addition, OWCP found the overpayment would be recovered by deducting
$200.00 from her continuing compensation payments every 28 days.
LEGAL PRECEDENT -- ISSUE 1
The regulations of the Office of Personnel Management (OPM), which administers the
FEHB Program, provides guidelines for the registration, enrollment and continuation of
enrollment for federal employees. In this connection, 5 C.F.R. § 890.502(b)(1) provides: “An
employee or annuitant is responsible for payment of the employee’s share of the cost of
enrollment for every pay period during which the enrollment continues. In each pay period for
which health benefits withholdings or direct premium payments are not made but during which
the enrollment of an employee or annuitant continues, he or she incurs an indebtedness due to the
United States in the amount of the proper employee withholding required for that pay period.”
In addition, 5 C.F.R. § 890.502(d) provides: “An agency that withholds less than or none
of the proper health benefits contributions from an individual’s pay, annuity or compensation
must submit an amount equal to the sum of the uncollected deductions and any applicable
agency contributions required under section 8906 of the Title 5, United States Code, to OPM for

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deposit in the Employees Health Benefits Fund.” When OWCP deducts less than the proper
health benefit premium for the coverage selected, an overpayment of compensation is created.2
ANALYSIS -- ISSUE 1
The record establishes that appellant enrolled in the FEHB program under enrollment
code 105. There is no indication that she ever withdrew her enrollment while receiving
compensation benefits. According to the evidence of record, the compensation payments
appellant received from July 26, 2003 to December 18, 2010 did not include any deduction for
HBI premiums. As noted, when OWCP deducts less than the proper HBI premium for the
coverage selected, there is an overpayment created. The Board finds that an overpayment was
created in this case with respect to HBI premiums that were not deducted for this period.
As to the amount, however, the record contains little probative evidence. As the Board
has explained, OWCP needs to support its findings as to the amount of an overpayment for
failure to deduct HBI premiums.3 The only evidence in the record is a worksheet that does not
explain how the amount was determined.4 There is no documentation from OPM or other
relevant source regarding the proper amount of the HBI premiums for any specific year or
specific period. The evidence of record does not provide appellant or the Board enough
information to determine if the calculation of the overpayment amount was correct. A
computerized worksheet that simply indicates the premium for enrollment code 105 was
$26,941.88 for the period covered is not sufficient documentation. A claimant is entitled to an
overpayment decision that clearly explains how the amount was calculated.5
Moreover, the evidence raises additional questions regarding the appropriate amount of
compensation. The evidence of record indicates that the compensation paid since July 13, 2002
was based on an adjustment for a wage-earning capacity resulting from actual earnings. The
Board is unable to find evidence that a formal wage-earning capacity determination based on
actual earnings was issued. In addition, there is no evidence that a continuing offset of
compensation for actual earnings was proper, as OWCP indicated appellant was not working.6
The case will be remanded to OWCP for a proper determination as to the amount of the
overpayment. OWCP should issue an appropriate preliminary determination regarding the
amount of the overpayment. As to the waiver and repayment issues, the Board will not consider

2

See John Skarbek, 53 ECAB 630 (2002).

3

G.K., Docket No. 08-1620 (issued July 2, 2009).

4

It is not clear from the record that this worksheet was provided to appellant.

5

See Jenny M. Drost, 56 ECAB 587 (2005).

6

Actual earnings that do not represent wage-earning capacity may be offset from compensation, but only during
the periods where appellant was working. D.W., Docket No. 10-361 (issued December 23, 2010); Federal (FECA)
Procedure Manual, Part 2 -- Claims, Reemployment, Determining Wage-Earning Capacity, Chapter 2.814.7(d)(3)
(June 1996).

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theses issues at this time.7 On remand appellant will have an opportunity to submit and have
OWCP consider relevant financial evidence on these issues. OWCP should also issue a decision
with respect to compensation paid since July 13, 2002, explaining how the pay rate was
determined and the compensation calculated.
CONCLUSION
The Board finds an overpayment was created due to the failure to deduct HBI premiums
from July 26, 2003 to December 18, 2010, but the case requires further explanation as to the
amount. The case is not in posture for decision with respect to waiver and repayment. In
addition, the Board finds that on remand OWCP should issue a decision regarding the use of an
adjusted wage-earning capacity pay rate since July 13, 2002.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 31, 2011 is affirmed with respect to fact of overpayment
and fault and set aside and remanded with respect to amount, waiver and recovery.
Issued: September 15, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

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On appeal, appellant stated that she was unable to meet the 30-day requirement with respect to submission of
evidence on the waiver issue, and the record indicated appellant did not submit relevant evidence prior to the
March 31, 2011 decision.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Baltimore, MD, Employer
__________________________________________

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Appearances:
J. Steven Huffines, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0281
Issued: July 17, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 17, 2016 appellant, through counsel, filed a timely appeal from a July 19,
2016 merit decision and an October 14, 2016 nonmerit 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.

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.

SSUES
The issues are:
(1) whether OWCP properly terminated appellant’s wage-loss
compensation and medical benefits, effective July 20, 2015, as she no longer had any residuals or
disability causally related to her accepted June 1, 2012 employment-related injury; (2) whether
appellant met her burden of proof to establish continuing disability after July 20, 2015; and
(3) whether OWCP properly denied appellant’s request for reconsideration of the merits of her
claim, pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On June 1, 2012 appellant, then 52-year-old mail clerk, filed a traumatic injury claim (Form
CA-1) alleging that, on that date, she sustained injuries to her left arm/shoulder when she tripped
and fell over a skid rack while in the performance of duty. OWCP accepted the claim for left
shoulder sprain and disorder of the bursa and tendons and paid compensation benefits on the
supplemental rolls. Appellant underwent OWCP-authorized arthroscopies to her left shoulder on
August 23, 2012 and on December 2, 2013. OWCP paid her wage-loss compensation benefits on
the supplemental rolls as of August 23, 2012, and on the periodic rolls as of January 12, 2014.
To determine the status of appellant’s accepted conditions and disability, OWCP referred
appellant to Dr. Robert A. Smith, a Board-certified orthopedic surgeon, for a second opinion
evaluation. In an October 31, 2014 report, Dr. Smith reviewed the statement of accepted facts
(SOAF) and the medical record and reported his examination findings. He opined that appellant
was at maximum medical improvement (MMI) relative to the June 1, 2012 employment injury as
of October 31, 2014 and further, that she did not require any additional treatment or diagnostic
testing related to the accepted injury. He noted that there were no objective injury or surgical
residuals identified on examination. Dr. Smith opined that appellant could return to full-time,
regular duty as a postal clerk. He also noted that functional capacity examination (FCE) results
were pending.
On December 2, 2014 OWCP received appellant’s October 30, 2014 FCE report, which
noted a light-work capacity. On May 12, 2015 it requested that Dr. Smith provide an addendum
report based on review of the October 30, 2014 FCE report and progress notes from appellant’s
treating physician regarding post diagnostic arthroscopy, arthroscopic limited debridement of
glenohumeral joint, arthroscopic revision subacromial decompression, and arthroscopic-assisted
biceps tenodesis-subpectoral, which was performed on December 2, 2013.
In a December 2, 2014 report, Dr. Umasuthan Srikumaran, a Board-certified orthopedic
surgeon, agreed with the FCE determination that appellant could perform light-duty work. In his
December 11, 2014 report, he again indicated that appellant’s limitations were due to her pain
complaints. Dr. Srikumaran also noted that a magnetic resonance imaging (MRI) scan showed
intact rotator cuff, tendinopathy and unchanged labral degeneration were noted.
In a May 22, 2015 addendum, Dr. Smith reported that the October 30, 2014 FCE study
indicated that appellant was capable of full-time light-duty work with limitations. However,
during his examination, appellant gave submaximal effort. Dr. Smith further reported that the
limitations noted appear to be due to appellant’s subjective complaints rather than any truly

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objective abnormality, such as muscle atrophy or nerve deficit. Taking into account the above
information, Dr. Smith found that there was no reason to change his previous opinion that appellant
had reached MMI on October 31, 2013 and that she could return to full-time regular-duty work
as a postal clerk.
On June 9, 2015 OWCP notified appellant of its proposed termination of her entitlement
to wage-loss compensation and medical benefits based on the opinion of Dr. Smith, the second
opinion physician, who opined that there were no residuals or disability causally related to the
June 1, 2012 work injury. Appellant was provided 30 days to submit additional information.
In a June 25, 2015 report, Dr. Robert W. Macht, a general surgeon, noted the history of
injury, appellant’s medical course and his examination findings. Diagnoses of the left shoulder
included rotator cuff tendinitis, biceps tendon degeneration, labral degeneration and fraying,
glenohumeral joint synovitis and subacromial bursitis and adhesions, which were determined at
the time of her December 2, 2013 surgical procedure. He indicated that appellant had reached
MMI with regard to her left shoulder by October 31, 2014 and provided an impairment rating
based on appellant’s limited range of motion. Dr. Macht reported that appellant was not capable
of performing full-time regular duty work due to her problems with her left shoulder. He further
reported that it was unlikely that there would be significant improvement at any time in the near
future that would enable her to perform useful service as a full-time regular-duty postal clerk.
Dr. Macht explained that, based on her examination, history and complaints, she was unable to lift
heavy objects, push and pull a heavy cart, perform prolonged actions above head and throw things
with weight above head. He opined that she suffered with significant residuals and restrictions
because of her current problems with her left shoulder.
By decision dated July 21, 2015, OWCP finalized the notice of proposed termination of
appellant’s wage-loss compensation and medical benefits, effective July 20, 2015. It accorded the
weight of the medical evidence to Dr. Smith, the second opinion physician.
On August 3, 2015 appellant, through counsel, requested an oral hearing before an OWCP
hearing representative. A telephonic hearing was held on December 29, 2015. Counsel argued
that Dr. Smith failed to address the additional conditions that Dr. Macht had discussed in his report,
and that OWCP failed to address the fact that appellant’s restrictions limited her from performing
full-time full-duty work, including her date-of-injury position. Appellant testified that Dr. Smith’s
evaluation was short and inadequate, lasting about 10 minutes.
Following the hearing, counsel submitted a January 5, 2016 letter with additional evidence
and argument. He requested that an October 5, 2015 letter be included in the hearing record as his
final argument for the reversal of the termination decision and/or remand of the claim for a lessbiased impartial medical examiner.3 In that October 5, 2015 letter, counsel stated that Dr. Smith
appeared to base his opinion that appellant’s limitations were subjective on the 2014 FCE
examination, which indicated that she may not have used maximum effort on all of the tests. He
argued that since the 2014 FCE examination was conducted and since Dr. Smith’s evaluation,
other physicians had observed appellant’s functional and physical limitations. Dr. Smith noted
3
Counsel indicated that he had previously submitted his October 5, 2015 letter. That letter however is not found
in the case record prior to this January 2016 submission.

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that Dr. Macht correctly stated that the earlier FCE had no bearing on her impairment evaluation
conducted nearly a year later and argued that Dr. Macht’s impairment report contradicted
Dr. Smith’s findings as there were positive findings of restricted range of motion. Counsel also
argued that appellant was a priority mail clerk who could no longer perform the duties of her job
description. Additional evidence including an October 9, 2014 MRI scan of the left shoulder was
submitted.
In an August 6, 2015 report, Dr. Srikumaran reported that appellant was 20 months post
left diagnostic arthroscopy, arthroscopic limited debridement of glenohumeral joint, arthroscopic
revision subacromial decompression, and arthroscopic-assisted biceps tenodesis-subpectoral. He
reported that she was working part-time light duty and managing well, but the employing
establishment wanted her to return to full duty. Dr. Srikumaran reported examination findings and
provided an assessment of left shoulder pain. He indicated that appellant was able to tolerate six
to eight hours light-duty desk work and, as she continued to have pain, recommended no heavy
lifting, reaching and overhead pulling.
Dr. Macht, in an August 11, 2015 report, Dr. Macht indicated that appellant had more than
a work-related shoulder sprain. As evidenced by her history, he indicated that she had
impingement syndrome, rotator cuff tendinitis, biceps tendon degeneration, labral degeneration
and synovitis. Dr. Macht stated that he reviewed the October 2014 FCE report and found that it
confirmed range of motion loss. He advised that the range of motion loss was worse than what he
had found on June 23, 2015 as it was self-limited. Dr. Macht explained why his range of motion
results were better but were still indicative of an abnormality. He also noted that there appeared
to be some disagreement concerning appellant’s work requirements. Dr. Macht stated that
appellant reported that she had to push and pull heavy mail containers that weighed over 100
pounds and lift 70-pound mailbags or more without assistance. He indicated that appellant would
not be able to lift a maximum of 30 pounds continuously or intermittently and that her restrictions
were less than that.
By decision dated March 11, 2016, an OWCP hearing representative affirmed the July 21,
2015 decision. The hearing representative found that Dr. Smith’s opinion constituted the weight
of the medical evidence in the termination of appellant’s wage-loss compensation and medical
benefits. Also, the medical evidence submitted was insufficient to establish that appellant had
ongoing disability or related residuals of the accepted work injury.
On April 18, 2016 OWCP received appellant’s reconsideration request from her counsel.
New evidence was submitted.
In a March 29, 2016 report, Dr. Macht noted that OWCP accepted conditions of sprain of
left shoulder and upper arm and disorder of bursa and tendons in left shoulder region and that those
conditions would not warrant surgery. However, since OWCP approved surgery, he opined that
the diagnoses from the second surgery were causally related to the work injury and the first
procedure. He noted that the October 9, 2014 MRI scan of the left shoulder confirmed the rotator
cuff tendinitis and labral degeneration and fraying. Dr. Macht advised that appellant had a normal
left shoulder prior to the June 1, 2012 employment injury. He stated that she was right hand
dominant and advised that her left shoulder diagnosis demonstrated on MRI scan and/or surgery
are causally related to the June 1, 2012 employment injury. Dr. Macht provided restrictions and

4

opined that appellant remained disabled from any postal service occupation that required the use
of the left arm and shoulder and provided restrictions.
In an April 12, 2015 report, Dr. Srikumaran stated that appellant’s left shoulder pain began
after a fall onto her shoulder at work on June 1, 2012. Appellant left shoulder pain worsened over
several months and she did not report a history of any pain in the shoulder or any injury of the left
shoulder prior to the employment injury. Dr. Srikumaran noted that her evaluation, which included
her symptoms, signs and imaging, was consistent with biceps tendinitis and superior labral tear
from anterior to posterior (SLAP tear), which he opined were causally related to the June 1, 2012
employment injury. He noted that the first surgery on August 23, 2012 performed a debridement
and decompression, but did not address the biceps tendon. Dr. Srikumaran noted that a biceps
tenodesis was performed to address the SLAP tear and biceps tendinitis, in addition to the revision
subacromial decompression and debridement on December 2, 2013. He indicated that one year
after surgery, appellant’s subjective shoulder value was 75 percent. Objective assessment revealed
good range of motion with some limitations and good strength, with ongoing pain with some
overhead motions. Dr. Srikumaran opined that considering there were no symptoms or issues in
her left shoulder prior to the work injury, appellant’s current condition was related to her work
injury and the subsequent care she received. At no time during her care have her initial conditions
fully resolved; rather, they have been managed with various modalities. Dr. Srikumaran opined
that appellant was at MMI from her surgery. However, because appellant had ongoing pain with
overhead motion, he recommended light or administrative duty only with restrictions on overhead
lifting, reaching and pulling with the left arm.
By decision dated July 19, 2016, OWCP denied modification of the March 11, 2016
decision. It found that the additional reports from Dr. Macht and Dr. Srikumaran did not support
ongoing work-related disability as the physicians failed to provide a rationalized medical opinion
explaining how appellant’s current conditions were related to the work injury and/or subsequent
treatment for the effects of the work injury.
On September 30, 2016 appellant, through counsel, requested reconsideration.
evidence was submitted in support of the request.

New

In a September 1, 2016 medical note, Dr. Srikumaran reiterated his opinion set forth in his
April 12, 2015 report. He stated that considering that appellant had no symptoms or issues with
her left shoulder prior to the work injury, appellant’s current condition was related to her work
injury and the subsequent care she received. At no time during her care had her initial conditions
fully resolved; rather, they have been managed with various modalities. Dr. Srikumaran opined
that appellant was at MMI from her surgery. Because of her ongoing pain with overhead motion,
he recommended light or administrative duty only with restrictions on overhead lifting, reaching
and pulling with the left arm.
In a September 21, 2016 report, Dr. Macht indicated that he reviewed Dr. Smith’s
October 31, 2014 report and found that there was no evidence that the effects of the work injury
had ceased. He noted that in the examination section, Dr. Smith noted abnormal flexion and
abduction range of motion findings upon which an impairment could be assigned. Dr. Macht
stated that Dr. Smith offered no explanation of why he concluded that appellant’s examination was
limited by “subjective factors” and he did not explain why subjective factors limited abduction

5

and flexion and not internal rotation, external rotation, adduction and extension. He also took issue
with Dr. Smith’s finding that appellant had reached MMI in light of the fact his examination stated
that she had a surgical residual of scars and the October 9, 2014 shoulder MRI scan which showed
evidence of her acromioplasty and acromial decompression. Dr. Macht also continued to opine
that the diagnoses based on the operative notes should be accepted conditions.
By decision dated October 14, 2016, OWCP denied appellant’s request for reconsideration
as she had not raised an argument or submitted evidence sufficient to warrant reopening her case
for further review of the merits under section 8128(a). It found that the submitted evidence was
substantially similar to evidence previously of record and reviewed.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim, it has the burden of justifying termination or modification of
compensation. After it has been determined that an employee has disability causally related to her
employment, OWCP may not terminate compensation without establishing that the disability had
ceased or that it was no longer related to the employment.4 OWCP’s burden of proof includes the
necessity of furnishing rationalized medical opinion evidence based on a proper factual and
medical background.5 Furthermore, the right to medical benefits for an accepted condition is not
limited to the period of entitlement for disability. To terminate authorization for medical
treatment, OWCP must establish that a claimant no longer has residuals of an employment-related
condition that requires further medical treatment.6
ANALYSIS -- ISSUE 1
The Board finds that the weight of the medical evidence is represented by the thorough,
well-rationalized opinion of Dr. Smith, OWCP’s referral physician. The October 13 and May 22,
2014 reports from Dr. Smith establish that appellant no longer had any residuals or disability as a
result of her accepted employment injury.
In his October 13, 2014 report, Dr. Smith reviewed the SOAF and the medical record and
reported his examination findings. He noted active range of motion findings and stated that
appellant’s limitations were due to subjective factors. Dr. Smith opined that appellant was at MMI
relative to the June 1, 2012 employment injury as of October 31, 2014 and that she did not require
any additional treatment or testing related to the incident. He noted that, while she had subjective
residuals of shoulder pain that limited her shoulder motion, there were no objective injury or
surgical residuals identified on examination. Given the benign clinical presentation, Dr. Smith
opined that appellant could return to full-time, regular duty as a postal clerk. He also noted that
FCE results were pending. In a May 22, 2015 addendum, Dr. Smith reviewed the October 30,
2014 FCE report and noted that, during the examination, appellant gave submaximal effort. He
indicated that the limitations appeared to be due to appellant’s subjective complaints rather than
4

Jason C. Armstrong, 40 ECAB 907 (1989).

5

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

6

Mary A. Lowe, 52 ECAB 223 (2001); Wiley Richey, 49 ECAB 166 (1997).

6

any truly objective abnormality, such as muscle atrophy or nerve deficit. Accordingly, Dr. Smith
found that there was no reason to change his previous opinion that appellant had reached MMI
with regard to the June 1, 2012 employment injury on October 31, 2013 and that she could return
to full-time regular-duty work as a postal clerk.
The Board has reviewed the October 13 and May 22, 2014 opinions of Dr. Smith and finds
that his opinions have reliability, probative value, and convincing quality with respect to his
conclusions regarding the relevant issue of the present case. Dr. Smith provided a thorough factual
and medical history and accurately summarized the relevant medical evidence, including the FCE.7
He provided medical rationale for his opinion by explaining that appellant no longer had objective
evidence of her June 1, 2012 work injury. Dr. Smith explained that appellant had an elevated level
of symptomology given the lack of objective organic findings from the clinical examination. He
indicated that there did not appear to be any additional requirement for treatment, testing, or
activity modification with regard to the accepted employment incident. Dr. Smith’s opinion was
based on a review of appellant’s medical record, including objective studies, and his physical
examination. His opinion was well rationalized and represents the weight of the medical
evidence.8
In a December 2 and 11, 2014 reports, Dr. Srikumaran, appellant’s treating physician,
noted that appellant’s limitations were based upon her pain complaints. He offered no explanation
as to whether appellant had residuals of the accepted conditions. While Dr. Srikumaran also noted
MRI scan findings of tendinopathy and unchanged labral degeneration, these are not accepted
conditions. The Board has held that medical evidence without an opinion regarding the cause of
an employee’s condition is of limited probative value.9 Thus, Dr. Srikumaran’s opinion was of
diminished probative value.
In his June 25, 2015 report, Dr. Macht noted appellant’s history of injury, her medical
course and his examination findings. He also noted that diagnoses following her December 2,
2013 arthroscopic procedure included rotator cuff tendinitis, biceps tendon degeneration, labral
degeneration and fraying, glenohumeral joint synovitis and subacromial bursitis and adhesions.
Dr. Macht indicated that appellant reached MMI with regard to her left shoulder by October 31,
2014 and provided an impairment rating based on limited range of motion. He also opined that
appellant suffered significant residuals and restrictions because of her current problems with her
left shoulder and she was not capable of performing full-time regular duty at the employing
establishment. However, Dr. Macht’s report is of limited probative value because he did not
provide any medical rationale in support of his opinions. His findings are based primarily on
appellant’s subjective complaints and limited range of motion. Dr. Macht did not discuss the
results of the October 29, 2014 FCE and to what extent she self-limited that examination.
Furthermore, OWCP has not accepted the diagnoses stemming from the second operation as
causally related to the June 1, 2012 work injury. While Dr. Macht discussed additional conditions,
7

See Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1957).

8

M.K., Docket No. 15-1903 (issued May 6, 2016).

9
C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009); Ellen L. Noble,
55 ECAB 530 (2004).

7

he provided no discussion or explanation as to how the employment-related accepted conditions
or related surgeries caused or resulted in the diagnosed conditions. The Board notes that the only
accepted conditions were left shoulder sprain and disorder of the bursa and tendons. The additional
conditions diagnosed by Dr. Macht have not been accepted as work-related conditions. He failed
to provide any opinion that these conditions were caused or aggravated by appellant’s June 1, 2012
work injury. The Board has held that medical evidence that does not offer any opinion regarding
the cause of an employee’s condition is of limited probative value on the issue of causal
relationship.10
The remainder of the medical evidence, including the October 9, 2014 MRI scan report,
fails to offer any opinion regarding the cause of appellant’s current condition and is of limited
probative value on the issue of causal relationship.11
The Board finds that OWCP properly terminated appellant’s wage-loss compensation and
medical benefits, effective July 20, 2015 as the medical evidence of record established that
appellant no longer had residuals or disability causally related to the accepted conditions of left
shoulder sprain and disorder of the bursa and tendons.12
LEGAL PRECEDENT -- ISSUE 2
As OWCP met its burden of proof to terminate appellant’s compensation benefits, the
burden shifts to appellant to establish that any subsequent disability is causally related to the
accepted injury.13
To establish a causal relationship between the claimed condition, as well as any attendant
disability and the employment event or incident, an employee must submit rationalized medical
evidence based on a complete medical and factual background supporting such a causal
relationship.14 Causal relationship is a medical issue and the medical evidence generally required
to establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition, disability and the specific employment
factors identified by the employee.15

10

See A.H., Docket No. 16-1828 (issued August 17, 2017).

11

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., supra note 9.

12

See J.V., Docket No. 16-1246 (issued December 9, 2016); L.C., Docket No. 12-1177 (issued August 19, 2013).

13

See Joseph A. Brown, Jr., 55 ECAB 542 (2004); Manuel Gill, 52 ECAB 282 (2001).

14

G.T., 59 ECAB 447 (2008); Elizabeth Stanislave, 49 ECAB 540 (1998).

15

See N.T., Docket No. 14-0694 (issued February 19, 2016).

8

ANALYSIS -- ISSUE 2
Following OWCP’s July 21, 2015 decision terminating appellant’s wage-loss
compensation and medical benefits, effective July 20, 2015, appellant submitted additional
medical evidence, which she alleged established that she was entitled to compensation after
July 20, 2015 due to residuals of her work injuries.
The Board has reviewed the additional evidence submitted by appellant and finds that it is
not of sufficient probative value to establish that she had residuals of her accepted June 1, 2012
employment injury after July 20, 2015. None of the additional reports submitted by appellant
provide detailed medical rationale to establish continuing disability or residuals due to the accepted
employment conditions and, therefore, the new evidence of record is insufficient to create a
conflict with Dr. Smith’s reports.
In his August 11, 2015 report, Dr. Macht attempted to clarify his June 25, 2015 report. He
related that, by history, appellant had additional conditions of impingement syndrome, rotator cuff
tendinitis, biceps tendon degeneration, labral degeneration and synovitis. The Board notes,
however, that these additional conditions were not accepted as employment related by OWCP.
Where an employee claims that a condition not accepted or approved by OWCP was due to an
employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury through the submission of rationalized medical evidence.16
Dr. Macht failed to offer a rationalized medical opinion that appellant had work-related disability
or need for medical care after July 20, 2015, or that the additional conditions mentioned were
employment related. As Dr. Macht failed to provide an opinion that appellant was disabled from
work on or after July 20, 2015 due to the June 1, 2012 employment injury, this report is insufficient
to meet appellant’s burden of proof.17
In his March 29, 2016 report, Dr. Macht opined that the diagnoses from the second surgery
were causally related to the work injury and the first operation. He noted that the October 9, 2014
MRI scan of the left shoulder confirmed the rotator cuff tendinitis and labral degeneration and
fraying. Dr. Macht explained that appellant had a normal left shoulder prior to the June 2, 2012
accident and that since OWCP approved surgery, her left shoulder diagnosis demonstrated on MRI
scan and/or surgery were causally related to the June 1, 2012 employment injury. However, other
than noting that appellant did not have a left shoulder condition prior to the work injury, Dr. Macht
did not provide a rationalized medical opinion explaining how appellant’s current
conditions/symptoms are causally related to the work injury. The Board has held that an opinion

16

Jaja K. Asaramo, 55 ECAB 200, 204 (2004).

17

Medical reports without adequate rationale on causal relationship are of diminished probative value and do not
meet an employee’s burden of proof. Ceferino L. Gonzales, 32 ECAB 1591 (1981). The opinion of a physician
supporting causal relationship must rest on a complete factual and medical background supported by affirmative
evidence, address the specific factual and medical evidence of record and provide medical rationale explaining the
relationship between the diagnosed condition and the established incident or factor of employment. See Lee R.
Haywood, 48 ECAB 145 (1996).

9

that a condition is causally related because the employee was asymptomatic before the injury is
insufficient, without adequate rationale, to establish causal relationship.18
In an August 6, 2015 report, Dr. Srikumaran provided an assessment of left shoulder pain.
He noted that appellant was only able to tolerate six to eight hours light-duty desk work. The
Board notes that Dr. Srikumaran failed to provide a firm medical diagnosis other than left shoulder
pain. It is not possible to establish the cause of a medical condition if the physician has not
provided a diagnosis, but only notes pain.19 The Board has consistently held that pain is a symptom
of a condition, not a compensable medical diagnosis.20 For this reason Dr. Srkumaran’s report is
also insufficient to establish continuing employment-related disability.
In his April 12, 2015 report, Dr. Srikumaran summarized his medical treatment of
appellant and explained that appellant’s first arthroscopic procedure on August 23, 2012 did not
address the biceps tendon issues which he opined were causally related to the June 1, 2012
accident. He noted that a biceps tenodesis was performed to address the SLAP tear and biceps
tendinitis, in addition to the revision subacromial decompression and debridement on
December 2, 2013. Dr. Srikumaran opined that considering there were no symptoms or issues
regarding her left shoulder prior to the work injury, appellant’s current condition was related to
her work accident and the subsequent care she received. Again, other than noting that appellant
did not have a left shoulder condition prior to the work injury, Dr. Srikumaran did not provide a
rationalized medical opinion explaining how appellant’s diagnosed conditions were related to the
accepted injury. As previously noted, an opinion that a condition is causally related because the
employee was asymptomatic before the injury is insufficient, without adequate rationale, to
establish causal relationship.21
Because appellant has not submitted reasoned medical opinion evidence sufficient to
establish that she suffered from employment-related residuals or disability on or after July 20,
2015 as a result of her accepted June 1, 2012 employment injury, the Board finds that she has not
met her burden of proof.22
LEGAL PRECEDENT -- ISSUE 3
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against payment of compensation at any time on his own motion or on application.23

18

T.M., Docket No. 08-0975 (issued February 6, 2009); Michael S. Mina, 57 ECAB 379 (2006).

19

See B.P., Docket No. 12-1345 (issued November 13, 2012) (regarding pain); C.F., Docket No. 08-1102 (issued
October 10, 2008) (regarding pain).
20

C.F., id.

21

See supra note 16.

22

Supra note 14.

23

5 U.S.C. § 8128(a).

10

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.24
A request for reconsideration must also be received by OWCP within one year of the date
of OWCP’s decision for which review is sought.25 If the request is timely, but fails to meet at least
one of the requirements for reconsideration, OWCP will deny the request for reconsideration
without reopening the case for review on the merits.26
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim under 5 U.S.C. § 8128(a).
In her September 26, 2016 request for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law, or advance a new and relevant legal
argument not previously considered. Thus, she is not entitled to a review of the merits of her claim
based on the first and second above-noted requirements under section 10.606(b)(3).
Along with her reconsideration request, appellant provided a September 1, 2016 report
from Dr. Srikumaran, and a September 21, 2016 report from Dr. Macht.
Although
Dr. Srikumaran’s September 1, 2016 report was not previously considered by OWCP, the Board
finds that it is substantially similar and duplicative of evidence previously considered and reviewed
by OWCP. In his September 1, 2016 medical note, Dr. Srikumaran reiterated his opinion set forth
in his April 12, 2015 report, which OWCP addressed in its July 19, 2016 decision. He continued
to opine that appellant’s current condition was related to her work injury and the subsequent care
she received as she had no symptoms or issues in her left shoulder prior to the work injury.
Dr. Srikumaran further opined that because of her ongoing pain with overhead motion, appellant
could only work light or administrative duty with restrictions on overhead lifting, reaching and
pulling with the left arm. The Board has held that evidence or argument that repeats or duplicates
evidence previously of record has no evidentiary value and does not constitute a basis for
reopening a case.27
In his September 21, 2016 report, Dr. Macht explained why he disagreed with Dr. Smith’s
October 31, 2014 report. He contended that Dr. Smith had noted abnormal flexion and abduction
range of motion findings, but offered no explanation of why he concluded that appellant’s
examination was limited by “subjective factors.” Dr. Macht also continued to opine that the
24
20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
25

Id. at § 10.607(a).

26

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

27

E.M., Docket No. 09-0039 (issued March 3, 2009).

11

accepted conditions should be expanded to include the diagnoses based on the operative notes.
The Board has found that OWCP properly relied on the opinion of OWCP’s referral physician,
Dr. Smith, in terminating appellant’s compensation effective July 20, 2015. It was further
determined that while Dr. Macht discussed additional conditions and continuing disability, his
opinion regarding causal relationship was of limited probative value. The arguments presented by
Dr. Macht in his September 21, 2016 report are substantially similar to his prior opinions and have
previously been considered by OWCP. The Board has held that the submission of evidence which
duplicates or is substantially similar to evidence already in the case record does not constitute a
basis for reopening a case.28
As these medical reports do not constitute relevant new and relevant evidence, the Board
finds that OWCP properly refused to reopen appellant’s case for further consideration of the merits
of her claim under 5 U.S.C. § 8128(a).
On appeal counsel argues that appellant’s continuing restrictions and additional conditions
following the first surgery are causally related to her June 1, 2012 work injury. He further argues
that it was error for OWCP to rely on Dr. Smith’s opinion. However, appellant’s own
disagreement with Dr. Smith’s findings is irrelevant to the medical issue in the case, which can
only be resolved through the submission of probative medical evidence from a physician.29 As
previously discussed, Dr. Smith provided a well-rationalized medical opinion, based on the entire
medical record and his examination findings that the effects of the work injury have ceased. The
medical evidence from appellant’s physicians failed to support ongoing work-related disability or
residuals as they did not provide a rationalized medical opinion which explained how appellant’s
current conditions/symptoms were related to the June 1, 2012 work injury or the subsequent
treatment for the effects of the work injury.
CONCLUSION
The Board finds OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective July 20, 2015 as she no longer had any residuals or
disability causally related to her accepted June 1, 2012 employment injury. The Board also finds
that appellant has not met her burden of proof to establish residuals or continuing disability after
July 20, 2015 causally related to the accepted employment injury. Finally, the Board finds that
OWCP properly denied appellant’s request for reconsideration of the merits of her claim pursuant
to 5 U.S.C. § 8128(a).

28

See J.R., Docket No. 17-1083 (issued November 17, 2017).

29
K.H., Docket No. 14-1824 (issued May 4, 2015); L.G., Docket No. 09-1517 (issued March 3, 2010); Gloria J.
McPherson, 51 ECAB 441 (2000).

12

ORDER
IT IS HEREBY ORDERED THAT the October 14 and July 19, 2016 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: July 17, 2018
Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

13


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
San Francisco, CA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 11-1039
Issued: February 15, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On March 17, 2011 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) merit decision dated September 22, 2010 denying his
emotional condition claim. The appeal was docketed as No. 11-1039. After due consideration,
the Board finds this case is not in posture for a decision.
This consolidated case record has previously been before the Board. On July 18, 1988
appellant filed an emotional condition claim (File No. xxxxxx052) alleging harassment and
discrimination relating to his medical condition, Acquired Immune Deficiency Syndrome
(AIDS). In an October 17, 1991 decision, the Board found that appellant had established a
compensable factor of employment by virtue of comments made by his supervisor to his
coworkers regarding his sexual orientation and human immunodeficiency virus (HIV)-positive
status and remanded the case for development of the medical evidence.1 Thereafter, OWCP
accepted the claim for anxiety and dysthymic disorder.
On March 15, 2004 appellant filed a second occupational disease claim (File No.
xxxxxx904) alleging anxiety and depression resulting from harassment and discrimination due to
1

Docket No. 91-313 (issued October 17, 1991).

his medical condition, AIDS. By order dated January 27, 2006, the Board set aside OWCP’s
June 17, 2005 denial of appellant’s claim and remanded the case for consolidation of File Nos.
xxxxxx052 and xxxxxx904 and further development of the medical evidence.2
In a March 23, 2006 decision, OWCP denied appellant’s claim. By decision dated
September 1, 2006, an OWCP hearing representative vacated the March 23, 2006 decision and
remanded the entire combined case record for completion of the Board’s instructions, including
the directive to obtain an impartial medical examination to resolve the conflict in medical
opinion evidence. In an order dated August 19, 2008, the Board dismissed appellant’s appeal for
lack of jurisdiction, noting that OWCP had not yet complied with the directive of both the Board
and OWCP’s hearing representative to obtain a referee opinion.3
In a decision dated April 13, 2009, OWCP denied appellant’s claim on the grounds that
he had not established a compensable factor of employment. In a June 16, 2010 decision, the
Board set aside the April 13, 2009 decision, finding that OWCP had failed to properly review
and consider all evidence of record.4
The record contains a 32-page report dated February 6, 2009 from Dr. Morton L.
Kurland, a Board-certified psychiatrist, who performed an impartial medical examination in
accordance with the Board’s directive.5
In a September 22, 2009 decision, OWCP denied appellant’s emotional condition claim
on the grounds that he had not established a compensable factor of employment, finding that
although the evidence established that appellant’s supervisor had discussed his HIV status with
coworkers, the discussions were administrative matters and there was no error or abuse on the
part of the employing establishment. The claims examiner stated that “medical evidence was not
reviewed for this decision.”
The Board finds that this case is not in posture for a decision.
OWCP found that appellant had established that his supervisor and manager had
discussed his HIV status and sexual orientation; it determined, however, that the discussions did
not constitute error or abuse of administrative matters. On remand, OWCP should further
develop the evidence regarding this issue in light of the Board’s ruling in its October 17, 1991
decision that appellant had established a compensable factor of employment by virtue of
comments made by his supervisor to his coworkers regarding his sexual orientation and HIVpositive status.

2

Docket No. 05-1629 (issued January 27, 2006). The Board notes that following a referee medical examination,
OWCP concluded on April 13, 2009 that appellant continued to experience residuals of his accepted conditions, and
File No. xxxxxx052 remains open for medical treatment.
3

Docket No. 07-1746 (issued August 19, 2008).

4

Docket No. 09-1343 (issued June 16, 2010).

5

The record also contains a 2-page supplemental report from Dr. Kurland dated March 16, 2009.

2

Further, Board precedent requires OWCP to review all evidence received prior to the
issuance of its final decision.6 In the instant case, Dr. Kurland’s February 6, 2009 32-page
referee report, which was received in File No. xxxxxx052 on March 2, 2009, was properly before
OWCP in this case pursuant to its consolidation with File No. xxxxxx904. The Board has held
that unless a claimant alleges a compensable factor of employment substantiated by the record, it
is unnecessary to address the medical evidence.7 In this case, however, the Board had in two
prior appeals directed OWCP to obtain and review a referee opinion before issuing a decision.
Therefore, OWCP was required to review and consider the referee reports, which may very well
contain factual information that would assist OWCP in determining whether appellant has
alleged a compensable factor of employment.
The Board, therefore, will set aside the September 22, 2010 decision and remand the case
to OWCP to fully consider the evidence which was properly submitted prior to the
September 22, 2010 decision and the issuance of a de novo decision on the merits of the claim.
IT IS HEREBY ORDERED THAT the September 22, 2010 decision is set aside and
the case is remanded for action consistent with the terms of this order.
Issued: February 15, 2012
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6

See William A. Couch, 41 ECAB 548 (1990).

7

See Barbara J. Latham, 53 ECAB 316 (2002).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.E., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
OFFICE OF HEARINGS & APPEALS,
Birmingham, AL, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1750
Issued: March 12, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 29, 2009 appellant, through her attorney, filed a timely appeal from October 22,
2008 and May 20, 2009 merit decisions of the Office of Workers’ Compensation Programs
denying her claim for augmented compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant is entitled to augmented compensation because her mother
is a dependent under 5 U.S.C. § 8110(a)(4).
FACTUAL HISTORY
On December 15, 2005 appellant, then a 55-year-old legal assistant, filed an occupational
disease claim alleging that she sustained bilateral carpal tunnel syndrome causally related to
factors of her federal employment. The Office accepted the claim for bilateral carpal tunnel

syndrome. Appellant underwent a right carpal tunnel release on April 5, 2006 and a left carpal
tunnel release on June 7, 2006.
On February 26, 2008 appellant filed a claim for a schedule award. She listed her mother
as a dependent on the claim form. By decision dated July 3, 2008, the Office granted appellant
schedule awards for a five percent permanent impairment to each upper extremity. The awards
ran for 31.2 weeks from August 16, 2006 to March 22, 2007. The Office paid compensation at
the rate of 66 2/3 of appellant’s weekly compensation applicable to claimants without
dependents.
On September 17, 2008 appellant’s attorney requested that the Office pay her
compensation at the augmented rate of 75 percent of her weekly compensation applicable to
claimants with dependents. He submitted a 2007 federal income tax return (Form 1040) showing
that appellant claimed her mother as a dependent.
By letter dated September 26, 2008, the Office requested that appellant provide additional
information supporting her contention that her mother was a dependent as defined under the
Federal Employees’ Compensation Act.1
On October 1, 2008 appellant completed a dependent checklist provided by the Office.
She indicated that her mother was unmarried and received $470.00 monthly as supplemental
security income (SSI) from the Social Security Administration.
By decision dated October 22, 2008, the Office denied appellant’s request for augmented
compensation. It determined that her mother did not qualify as a dependent under the Act as she
received SSI income and thus was not totally dependent on appellant.
On October 30, 2008 appellant, through her attorney, requested a telephone hearing. At
the telephone hearing, held on February 11, 2009, she related that her mother lived with her and
received SSI but no other form of benefits except for Medicare and Medicaid. Appellant
asserted that her mother was unable to walk and had dementia. She paid for her mother’s meals
and personal items, cared for her, administered her medication and transported her to medical
appointments. Appellant’s attorney argued that the SSI income that her mother received was
inconsequential and did not disqualify her as a dependent under the Act. The attorney asserted
that appellant’s mother would be a ward of the state if it were not for her daughter’s care.
By decision dated May 20, 2009, the hearing representative affirmed the October 22,
2008 decision. She found that as appellant’s mother received SSI she was not wholly dependent
on appellant for support and thus was not a dependent as defined under the Act.
LEGAL PRECEDENT
Section 8110(b) of the Act provides that a disabled employee with one or more
dependents is entitled to compensation at the augmented rate of 75 percent of his or her pay.2
1

5 U.S.C. §§ 8101-8193.

2

Id. at § 8110(b).

2

Section 8110(a)(4) of the Act states: “For the purpose of this subsection, ‘dependent’ means
parent, while wholly dependent on and supported by the employee.”3 In Williams L. Rogers,4 the
Board defined “wholly dependent” as follows: “The generally accepted understanding of
‘wholly dependent,’ … is that the person claiming such dependency status must have no
consequential source or means of maintenance other than the earnings of the employee.”5
The Board has held that a person may be wholly dependent on the employee though the
person claiming may have some slight earnings or savings of her own or some other slight
property. Such disregard of slight earnings, savings or property is consistent with the generally
accepted view that disregards inconsequential sources or means of maintenance.6
ANALYSIS
The Office accepted appellant’s claim for bilateral carpal tunnel syndrome. By decision
July 3, 2008, it granted her a schedule award for a five percent permanent impairment of each
upper extremity. On September 17, 2008 appellant’s attorney requested that the Office pay her
the schedule award at the augmented rate as her mother qualified as her dependent. Appellant
related that her mother received $470.00 per month from social security and also qualified for
Medicare and Medicaid benefits. She paid for her mother’s meals, cared for her and transported
her to medical appointments. Appellant also claimed her as a dependent on her federal income
taxes.
In order for a parent to qualify as a “dependent” under the Act she must be “wholly
dependent on and supported by the employee.”7 The Board has defined “wholly dependent” to
mean that the person claiming dependent status must have no other consequential sources of
maintenance.8 The question in this case, consequently, is whether the receipt by appellant’s
mother of $470.00 per month in social security benefits is inconsequential.
In Joan L. Harris,9 the Board found that the claimant was not entitled to augmented
compensation because her mother did not qualify as a dependent under section 8110(a)(4) of the
Act. The Board determined that the mother’s receipt of $284.30 per month in social security
benefits was not an inconsequential or slight source of maintenance and affirmed the Office’s
decision finding that the claimant’s mother was not wholly dependent on the employee for her
support. In Jim C. Thaxton,10 the Board held that $223.00 a month in social security benefits
3

Id. at § 8110(a)(4).

4

1 ECAB 191 (1948).

5

Id. at 194.

6

See Howard A. Fredricks, 55 ECAB (2003); Josephine Bellardita, 48 ECAB 362 (1997).

7

5 U.S.C. § 8110(a)(4).

8

William L. Rogers, 1 ECAB 191 (1948).

9

33 ECAB 1620 (1982).

10

36 ECAB 346 (1984).

3

was not an inconsequential or slight source of maintenance for the claimant’s mother, and that
she therefore could not be considered “wholly dependent” on the claimant so as to entitle her to
augmented compensation. In John P. Gass,11 the Board found that the $450.00 per month in
social security benefits was not an inconsequential or de minimus source of maintenance by the
claimant’s mother and that she was thus not “wholly dependent” on the claimant within the
meaning of section 8110(a)(4). In Josephine Bellardita,12 the Board found that the claimant’s
mother did not qualify as a dependent based on her receipt of $480.00 per month in social
security benefits and $117.00 per month in pension benefits.
The Board finds that appellant’s mother is not “wholly dependent” on her for purposes of
the Act. Appellant’s receipt of $470.00 in social security benefits cannot be characterized as an
inconsequential or slight source of maintenance to qualify her as being wholly dependent within
the generally accepted meaning of section 8110(a)(4). Even though her mother may qualify as
her dependent for income tax purposes, the terms of the Act are specific as to the method and
amount of payment of compensation; neither the Office nor the Board has the authority to
enlarge the terms of the Act nor make an award of benefits under any terms other than those
specified in the statute.13 Even though appellant may provide substantial financial assistance, her
mother is not be considered “wholly dependent” on her, within the meaning of section
8110(a)(4) of the Act, because she received more than an inconsequential amount from another
source during the relevant period. Accordingly, she is not entitled to augmented compensation.
CONCLUSION
The Board finds that appellant is not entitled to augmented compensation because her
mother is a dependent under section 8110(a)(4).

11

40 ECAB 394 (1988).

12

48 ECAB 362 (1997).

13

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 20, 2009 and October 22, 2008 are affirmed.
Issued: March 12, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.G., Appellant
and
U.S. POSTAL SERVICE, LUDLAM BRANCH,
Miami, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Joanne M. Wright, for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0111
Issued: October 5, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 3, 2020 appellant, through her representative, filed a timely appeal from a
June 10, 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 to consider the merits of this case.
ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective October 27, 2015, as she no longer had
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 yea r 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.

disability or residuals causally related to the accepted August 6, 2014 employment injury; and
(2) whether appellant has met her burden of proof to establish continuing employment-related
disability or residuals, on or after October 27, 2015, due to the accepted August 6, 2014
employment injury.
FACTUAL HISTORY
On August 7, 2014 appellant, then a 63-year-old city carrier, ﬁled a traumatic injury claim
(Form CA-1) alleging that on August 6, 2014 she injured her right knee when she twisted to get
into her vehicle while in the performance of duty. 3 She stopped work on September 11, 2014.
OWCP initially accepted appellant’s claim for right knee patellar strain. It paid her wage-loss
compensation for disability from work on the supplemental rolls, commencing
September 22, 2014.
On May 18, 2015 OWCP expanded its acceptance of appellant’s claim to include right
knee lateral meniscus tear.
On May 20, 2015 OWCP referred appellant, together with a statement of accepted facts
(SOAF), the medical record, and a series of questions, to Dr. Gilbert D. Beauperthuy-Rojas, a
Board-certified orthopedic surgeon, for a second opinion examination to determine the extent and
degree of any remaining disability due to her August 6, 2014 work-related injury.
Dr. Beauperthuy-Rojas, in a June 26, 2015 report, noted appellant’s history of injury on
August 6, 2014 and his review of the SOAF and medical evidence of record. He discussed findings
on physical examination and obtained weight-bearing x-rays. Dr. Beauperthuy-Rojas diagnosed
advanced degenerative arthropathy of the right knee consistent with appellant’s subjective
complaints and objective findings on physical examination and weight-bearing x-ray. He noted
that the diagnosed condition was most probably secondary to a progression of a degenerative tear,
which appellant exhibited preinjury. Dr. Beauperthuy-Rojas advised that appellant was unable to
perform her city carrier duties, but she could perform sedentary work with restrictions, eight hours
per day. He further advised that appellant’s accepted conditions of right knee lateral meniscal tear
and patellar strain had resolved. Dr. Beauperthuy-Rojas maintained that her prognosis related to
her right knee advanced degenerative arthropathy was poor without surgical intervention, which
included total knee replacement. He opined that the diagnosed right knee condition was not
secondary to appellant’s August 6, 2014 employment injury. In an accompanying work capacity
evaluation (Form OWCP-5c) dated June 26, 2015, Dr. Beauperthuy-Rojas reiterated appellant’s
work capacity and listed permanent work restrictions.
By notice dated August 21, 2015, OWCP advised appellant that it proposed to terminate
her wage-loss compensation and medical benefits based on Dr. Beauperthuy-Rojas’ opinion that
the August 6, 2014 accepted conditions had ceased without residuals or disability. It afforded her
30 days to submit additional evidence or argument challenging the proposed termination.

3

Appellant has a prior claim under OWCP File No. xxxxxx278, for a traumatic left knee injury. OWCP accepted
that claim for medial meniscal tear. It administratively combined OWCP File No. xxxxxx278 and the current claim
under OWCP File No. xxxxxx410, with the latter serving as the master file.

2

OWCP subsequently received medical evidence, including reports by Dr. Edward
Lazzarin, an orthopedic surgeon, who provided a preoperative diagnosis of complex tear lateral
meniscus and postoperative diagnoses of complex tear of the right lateral and medial meniscus,
medial and lateral femoral chondromalacia, hyperplastic synovitis, and adhesions. Dr. Lazzarin
recommended physical therapy for both knees. On December 2, 2014 he performed right knee
arthroscopic surgery with partial medial and lateral meniscectomy, partial synovectomy, medial
and lateral femoral chondroplasty, and lysis adhesions.
Appellant responded to OWCP’s August 21, 2015 proposed termination notice in a letter
dated September 21, 2015. She contended that the SOAF reviewed by Dr. Beauperthuy-Rojas was
inaccurate as it did not include her claim for a left knee injury under OWCP File No. xxxxxx278
and indicated that she stopped work on September 26, 2014 rather than on September 11, 2014.
Additionally, appellant contended that Dr. Beauperthuy-Rojas’ opinion on causal relationship was
speculative and unsupported by medical rationale. She also asserted that he was asked leading
questions regarding her work capacity by OWCP.
By decision dated October 27, 2015, OWCP terminated appellant’s wage-loss and medical
compensation benefits effective that date, finding that the medical evidence submitted was
insufficient to outweigh Dr. Beauperthuy-Rojas’ opinion that she no longer had residuals or
disability due to her August 6, 2014 employment injury.
OWCP received additional medical evidence, including an office visit note dated
November 26, 2014 by Dr. Barbara M. Muina, an internist. Dr. Muina noted that appellant
presented for a regular follow-up visit. She reported examination findings and diagnosed, among
other things, knee osteoarthritis. Dr. Muina advised that appellant was in optimal medical
condition to undergo knee surgery with moderate risk.
On November 3, 2015 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review regarding the October 27, 2015 decision.
OWCP continued to receive medical evidence, including an August 11, 2016 letter in
which Dr. Muina noted that appellant’s severe bilateral knee osteoarthritis for which she
underwent surgery in 2014 was probably accelerated by working many years as a mail carrier.
Dr. Muina advised that appellant was currently unable to work.
In an August 29, 2016 decision, an OWCP hearing representative affirmed the October 27,
2015 decision. He found that Dr. Muina’s August 11, 2016 report was insufficiently rationalized
to outweigh Dr. Beauperthuy-Rojas’ opinion that appellant no longer had employment-related
residuals or disability.
On August 9, 2017 appellant, through her representative, requested reconsideration.
OWCP thereafter received correspondence dated June 26, 2017 from Dr. Muina.
Dr. Muina noted her history of treating appellant for over 20 years. She believed that her
diagnosed condition of bilateral knee osteoarthritis or degenerative osteoarthritis was causally
related to her physical work duties as a mail carrier that she had performed for over 30 years since
November 26, 1984. Dr. Muina opined that appellant’s 1995 employment-related left knee injury
under OWCP File No. xxxxxx278 and 2014 employment-related right knee employment injury
3

under the current file, OWCP File No. xxxxxx410, which required surgery , both contributed to her
osteoarthritis. She further opined that appellant’s current left knee problems should be considered
consequential to her employment-related right knee injury.
On September 21, 2017 OWCP determined that there was a conflict in the medical opinion
evidence between Dr. Muina, the attending physician, and Dr. Beauperthuy-Rojas, OWCP’s
referral physician, as to whether appellant sustained an aggravation of arthritis in her left knees as
a consequence of her August 6, 2014 employment injury and whether she had continuing disability
related to her August 6, 2014 work injury. In order to resolve the conflict, it referred appellant,
together with a SOAF and the medical record, to Dr. Peter Millheiser, a Board-certified orthopedic
surgeon, for an impartial medical examination and an opinion on causal relationship, and the extent
of disability. This SOAF noted that it superseded all previously-issued SOAFs.
In a December 12, 2017 report, Dr. Millheiser noted his review of the SOAF and the
medical evidence of record. He described the August 6, 2014 employment injury and noted that
appellant’s claim was accepted for right knee lateral meniscal tear and patella sprains.
Dr. Millheiser also noted that she retired from the employing establishment in November 2015.
On physical examination he reported that appellant was in no acute distress. Appellant had a
halting shuffling gait. She walked with her knees kept in a very stiff position with minimal bending
of the knees and used a three-pronged cane. The right knee was more valgus than the left knee.
There were well-healed scars on both knees. Range of motion was minus 5 to 90 degrees on both
knees. There was mild medial and lateral joint line tenderness. There was no significant effusion.
Motion of the knees caused mild discomfort with mildly positive Apley tests bilaterally. A
Lachman test was negative. There was no varus-valgus instability. There was crepitus in both
knees. Appellant did not use an orthosis. Dr. Millheiser indicated that an x-ray examination of
the right knee showed moderate patellofemoral degenerative changes with moderate degenerative
changes in the lateral and medial compartments, and narrowing of the medial compartment. An
x-ray examination of the left knee showed marked patellofemoral degenerative changes with very
marked medial compartment narrowing and marked medial degenerative changes with moderate
lateral degenerative changes and moderate narrowing of the lateral compartment. Dr. Millheiser
diagnosed bilateral knee osteoarthritis, the accepted conditions of lateral meniscal tear of the right
knee, and medial meniscal tear of the left knee, and post-arthroscopy of both knees. He related
that appellant’s bilateral knee arthritis was obviously a preexisting problem as osteoarthritis is a
condition that takes years to develop, especially with the amount of arthritis she had in the right
knee. Dr. Millheiser also noted that she was 22 years status post left knee surgery, which was
performed in 1995 regarding a work-related left knee injury. He maintained that appellant’s
bilateral knee osteoarthritis was not caused by the August 6, 2014 employment injury.
Dr. Millheiser noted that her left knee osteoarthritis may have been exacerbated when excess
pressure was put on it due to her right knee employment injury and subsequent surgery, but this
would not materially affect the underlying arthritis of the left knee. He opined that appellant’s
preexisting right knee osteoarthritis was temporarily aggravated by her August 6, 2014 work
injury. Dr. Millheiser indicated that, although the torn meniscus was removed and chondroplasty
was performed, the knee would have deteriorated due to the osteoarthritis. In response to the
questions posed by OWCP, he related that appellant’s bilateral knee osteoarthritis worsened due
to the natural history of the condition. Dr. Millheiser concluded that appellant was unable to
perform her date-of-injury city carrier position due to her worsening nonwork-related bilateral

4

knee osteoarthritis and set forth her physical restrictions. In an accompanying Form OWCP-5c
dated December 12, 2017, he reiterated his opinion regarding appellant’s work capacity.
OWCP, by decision dated January 24, 2018, denied modification of the August 29, 2016
decision, finding that the special weight of the medical evidence rested with Dr. Millheiser’s
impartial medical opinion that appellant no longer had residuals or disability causally related to
her August 6, 2014 employment injury.
On January 19, 2019 appellant, through her representative, requested reconsideration. In
support of her reconsideration request, she submitted a November 12, 2018 report from Dr. Julian
Naranjo, a Board-certified anesthesiologist specializing in pain medicine. Dr. Naranjo noted a
history that appellant’s bilateral knee pain began four years ago. He also noted a history of her
medical treatment. Dr. Naranjo reported examination findings and provided assessments of pain
in the right and left knee and low back, other chronic pain, and bilateral knee osteoarthritis.
By decision dated April 12, 2019, OWCP denied modification of the January 24, 2018
decision, finding that Dr. Naranjo’s November 12, 2018 report was insufficient to establish that
appellant had continuing residuals of her accepted August 6, 2014 employment-related conditions
or that she sustained a left knee condition as a consequence of the August 6, 2014 employment
injury.
On March 14, 2020 appellant, through her representative, again requested reconsideration.
She submitted a narrative report and bilateral knee x-ray reports dated July 11, 2019 from
Dr. Alexander van der Ven, a Board-certified orthopedic surgeon. Dr. van der Ven noted
appellant’s history of bilateral knee pain that had worsened over the past 10 years and resultant
medical treatment. He provided findings on physical and x-ray examination of both knees.
Dr. van der Ven provided assessments of right and left knee osteoarthritis, and right and left knee
pain.
In a decision issued on June 10, 2020, OWCP denied modification of its April 12, 2019
termination decision.
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.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

4

See D.B., Docket No. 19-0663 (issued August 27, 2020); D.G., Docket No. 19-1259 (issued January 29, 2020);
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

the employment. 5 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.6
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.7 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. 8
Section 8123(a) provides that, 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. 9 When there are opposing reports of virtually
equal weight and rationale, the case must be referred to an impartial medical specialist, pursuant
to section 8123(a) of FECA, to resolve the conflict in the medical evidence. 10
ANALYSIS -- ISSUE 1
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective October 27, 2015, as she no longer had residuals
or disability causally related to the accepted August 6, 2014 employment injury.
OWCP found that a conflict in medical opinion existed between Dr. Muina, appellant’s
treating physician, who opined that appellant had bilateral knee osteoarthritis resulting from both
her accepted 1995 employment-related left knee injury under OWCP File No. xxxxxx278 and her
employment-related right knee injury under OWCP File xxxxxx410, and Dr. Beauperthuy-Rojas,
OWCP’s second opinion physician, who found that appellant no longer suffered residual disability,
or a consequential injury, due to her August 6, 2014 right knee employment injury. The Board
finds, however, that Dr. Beauperthuy-Rojas did not reference appellant’s work-related left knee
injury in her claim under OWCP File No. xxxxxx278, while Dr. Muina referenced appellant’s
work-related bilateral knee conditions in her claims under OWCP File Nos. xxxxxx278 and
xxxxxx410. Consequently, the Board finds that the probative value of Dr. Beauperthuy-Rojas’
opinion is of diminished probative value and not of equal weight to create a conflict in medical
opinion with Dr. Muina.
5

See D.G., 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

K.W., Docket No. 19-1224 (issued November 15, 2019); see M.C., Docket No. 18-1374 (issued April 23, 2019);
Del K. Rykert, 40 ECAB 284, 295-96 (1988).
7

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); Kathryn E. Demarsh, 56 ECAB 677 (2005); Furman G. Peake, 41 ECAB 361, 364 (1990).
8

K.W., supra note 6; see A.G., id.; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727
(2002); Furman G. Peake, id.
9

5 U.S.C. § 8123(a); L.T., Docket No. 18-0797 (issued March 14, 2019); Shirley L. Steib, 46 ECAB 309,
317 (1994).
10

D.B., supra note 4.

6

OWCP had referred appellant to Dr. Millheiser for an impartial medical examination,
however, as no true conflict existed in the medical evidence at the time of the referral to
Dr. Millheiser, the Board finds that his report may not be accorded the special weight of an
impartial medical specialist and should instead be considered for its own intrinsic value. 11 The
referral to Dr. Millheiser is, therefore, considered to be that of a second opinion evaluation.12
Dr. Millheiser, in his December 12, 2017 report, noted appellant’s history, and his review
of the SOAF, and medical evidence of record. He described the August 6, 2014 employment injury
and noted appellant’s accepted conditions of right knee lateral meniscal tear and patella sprain.
Dr. Millheiser found essentially normal findings on examination of both knees and diagnosed
bilateral knee osteoarthritis, the accepted conditions of lateral meniscal tear of the right knee and
medial meniscal tear of the left knee, and post-arthroscopy of both knees. He opined that
appellant’s bilateral knee osteoarthritis was not caused by the August 6, 2014 employment injury.
Dr. Millheiser explained that the natural history of the osteoarthritis was that it worsened over
time. He attributed appellant’s inability to perform her date-of-injury city carrier position and
resultant work restrictions to her worsening nonwork-related preexisting bilateral knee
osteoarthritis.
The Board finds that a conflict in medical opinion exists between Dr. Muina and
Dr. Millheiser regarding the issues of a consequential injury resulting from appellant’s August 6,
2014 employment injury and whether she had disability or residuals causally related to the same
work injury.13 Thus, OWCP did not meet its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective October 27, 2015.14

11

See L.G., Docket No. 20-0611 (issued February 16, 2021); F.R., Docket No. 17-1711 (issued September 6, 2018).

12

See L.G., id.; M.G., Docket No. 19-1627 (issued April 17, 2020); S.M., Docket No. 19-0397 (issued August 7,
2019) (the Board found that at the time of the referral for an impartial medical examination there was no conflict in
medical opinion evidence; therefore, the referral was for a second opinion examination); see also Cleopatra
McDougal-Saddler, 47 ECAB 480 (1996) (the Board found that, as there was no conflict in medical opinion evidence,
the report of the physician designated as the impartial medical specialist was not afforded the special weight of the
evidence, but instead considered for its own intrinsic value as he was a second opinion specialist).
13

See R.M., Docket No. 20-0452 (issued March 4, 2021); C.R., Docket No. 19-1132 (issued October 1, 2020).

14

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

7

ORDER
IT IS HEREBY ORDERED THAT the June 10, 2020 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: October 5, 2021
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

8