United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.F., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Ponca City, OK, Employer 

__________________________________________ 

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Docket No. 14-2012 

Issued: November 13, 2015 

Appearances: Case Submitted on the Record

Debra Hauser, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On September 18, 2014 appellant, through counsel, filed a timely appeal from a May 14, 

2014 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 OWCP properly denied appellant’s claim for an injury alleged to 

have occurred during a second opinion examination. 

FACTUAL HISTORY 

On March 28, 2014 appellant, then a 38-year-old city carrier, filed a traumatic injury 

claim (Form CA-1) alleging that he sustained a knee injury on March 5, 2014. In a narrative 

statement dated April 8, 2014, he stated that he was referred to Dr. Dennis Foster, a Board-

 1

 5 U.S.C. § 8101 et seq. 
2

certified orthopedic surgeon, for a second opinion examination on March 5, 2014. Appellant 

alleged that while performing clinical tests, including a McMurray’s test, Dr. Foster used force 

that was sufficient to cause significant swelling and pain in appellant’s left knee. He stated he 

had originally filed a recurrence claim for this incident, but was told by OWCP to file a claim for 

a new injury. 

Appellant submitted an April 17, 2014 report from Dr. David Sparks, an orthopedic 

surgeon, who noted that appellant reported pain and swelling since his second opinion 

examination. In a report dated April 24, 2014, Dr. J. Arden Blough, a Board-certified family 

practitioner, recorded a history including a September 24, 2012 left knee injury and a left knee 

arthroscopic surgery. He related that during an examination Dr. Foster placed pressure on 

appellant’s knee while performing an orthopedic test. Appellant stated that he heard a loud 

popping sound, followed by pain and swelling. Dr. Blough diagnosed an acute recurrence of left 

knee sprain/strain, acute recurrence of left knee medial meniscus tear. 

By decision dated May 14, 2014, OWCP denied appellant’s claim. It stated in pertinent 

part: 

“Specifically, your case is denied because the evidence is not sufficient to 

establish that the injury and/or medical condition arose during the course of 

employment and within the scope of compensable work factors. The reason for 

this finding is that you were not at work performing your work duties at the time 

of the alleged incident. You were attending a second opinion examination at the 

time of the alleged injury, which is not in the scope of your employment duties 

therefore the injury did not arise out of the course of your employment.” 

LEGAL PRECEDENT 

With respect to consequential injuries, it is an accepted principle of workers 

compensation law that, when the primary injury is shown to have arisen out of and in the course 

of employment, every natural consequence that flows from the injury is deemed to arise out of 

the employment, unless it is the result of an independent intervening cause which is attributable 

to the employee’s own intentional conduct.2

 The basic rule is that a subsequent injury, whether 

an aggravation of the original injury or a new and distinct injury, is compensable if it is the direct 

and natural result of a compensable primary injury.3

 

ANALYSIS 

In the present case, the record indicates that appellant was referred to Dr. Foster for a 

second opinion examination on March 5, 2014, pursuant to a prior claim for compensation 

involving the left knee. On March 28, 2014 appellant filed a traumatic injury claim alleging that 

he sustained a left knee injury as a result of Dr. Foster’s second opinion examination. By 

decision dated May 14, 2014, OWCP denied the claim, finding that appellant was not in the 

 2 Albert F. Ranieri, 55 ECAB 598 (2004). 

3 See A. Larson, The Law of Workers’ Compensation § 10.01 (November 2000). 
3

performance of duty as he was not performing his work duties at the time of the alleged incident. 

No citation to Board case law or other authority was provided. OWCP’s decision is factually 

correct in that appellant was not in the performance of duty when the alleged injury occurred. 

The Board finds, however, that OWCP did not properly adjudicate the claim in this case. An 

injury which results from medical treatment for a compensable injury is in itself compensable.4

In the case of D.G.,

5

 the claimant had alleged a right shoulder injury which occurred 

during an examination by an OWCP referral physician. The Board held that appellant’s claim 

that an injury occurred during a medical examination connected with his compensable claim was 

not in a posture for Board. After discussing the law of consequential injuries noted above, the 

Board found that “Any medical condition resulting from an authorized examination or treatment 

may form the basis of a compensation claim for impairment or disability, regardless of the 

compensability of the original claim.”6

 

The Board has previously considered allegations of consequential injury caused by 

medical treatment for a claim already accepted as compensable. The Board has found that 

chiropractic treatment of the neck had caused a new, consequential injury.7

 Moreover, a reaction 

to a myelogram required by OWCP, which caused the claimant to miss work for several days, 

was found by the Board to be a compensable period of disability.8 The Board has also remanded 

an appeal for further development on whether appellant had a herniated lumbar disc, and if so, 

whether that herniated disc was caused by appellant’s participation in a work hardening 

program.9

In D.N.,10 the Board remanded an appeal for further development of the issue of whether 

appellant’s claimed left shoulder injuries were the result of a surgical procedure to remove a 

spinal stimulator. The Board again remanded an appeal to OWCP for a determination of whether 

appellant developed arachnoiditis from steroid injections administered to treat right leg and 

lumbar conditions.11

In the present case, appellant was referred for a second opinion examination and OWCP 

must determine whether the authorized examination caused a new injury. On return of the case 

record, OWCP should: (1) combine the case record with the prior left knee claim; and (2) make 

proper findings based on the relevant factual and medical evidence as to whether appellant 

 4 Id. 

5

 Docket No. 11-1074 (issued March 22, 2012). 

6 Id.; see also G.S., Docket No. 13-57 (issued August 26, 2013); K.D., Docket No. 11-16 (issued 

August 16, 2011). 

7 D.C., Docket No. 07-1180 (issued December 17, 2007). 

8 Garre R. Davis, 48 ECAB 612 (1997). 

9 Andy C. Bielun, Docket No.03-569 (issued July 17, 2003). 

10 Docket No. 09-651 (issued April 20, 2010). 

11 Helen E. Zanatta, Docket No. 00-1361 (issued April 3, 2002). 
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sustained a consequential left knee injury as a result of the March 5, 2014 examination. After 

such further development as is deemed necessary, OWCP should issue a de novo decision. 

CONCLUSION 

The Board finds the case is not in posture for decision and is remanded to OWCP for 

proper findings on the issues presented. 

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated May 14, 2014 is set aside and the case remanded for further 

action consistent with this decision of the Board. 

Issued: November 13, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board