United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.L., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

FEDERAL EMERGENCY MANAGEMENT 

ADMINISTRATION, Forest Hills, NY, Employer 

__________________________________________ 

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Docket No. 15-0902 

Issued: July 15, 2015 

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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 March 24, 2015 appellant, through counsel, filed a timely appeal from a February 6, 

2015 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 sustained an injury on November 10, 2012 in the 

performance of duty. 

FACTUAL HISTORY 

This case has previously been before the Board. The facts relevant to the instant appeal 

will again be set forth. 

 1

 5 U.S.C. § 8101 et seq. 
2

On July 25, 2013 appellant, then a 56-year-old transportation security administration 

officer, filed a traumatic injury claim alleging that on November 10, 2012 he injured his right 

knee while climbing into a bunk in the performance of duty. He did not stop work. 

On June 28, 2013 Dr. Brett M. Barnhart, a Board-certified orthopedic surgeon, noted that 

appellant had a history of knee pain for 15 years that “seemed to get more painful here recently 

after he went for Hurricane Sandy relief for 43 days in Nov[ember]/Dec[ember] and was 

climbing into a bunk.” He diagnosed right lower leg joint pain and localized osteoarthrosis of 

the right lower leg. Dr. Barnhart noted that appellant’s pain was of “insidious onset, with 

gradual progression” and that he had “some pain associated with working in a ship in 

New York....” 

A July 8, 2013 magnetic resonance imaging (MRI) scan study of the right knee revealed a 

complex posterior horn medial meniscal tear and osteoarthritis, especially of the medial 

compartment. 

In a progress report dated July 17, 2013, Dr. Barnhart reviewed the results of the MRI 

scan study and diagnosed a right tear of the medial cartilage of the knee. He indicated that 

appellant related a history of anterior and medial pain “of insidious onset, with gradual 

progression....” Dr. Barnhart recommended arthroscopic surgery. 

In a form report dated July 19, 2013, Dr. Barnhart reviewed appellant’s history of right 

knee pain, increasing beginning around eight months earlier. He diagnosed moderate 

degenerative arthritis and a medial meniscus tear of the right knee. Dr. Barnhart indicated that 

he was not able to determine whether the diagnosed condition was caused or aggravated by the 

described employment activity without additional evaluation. 

In a statement dated July 26, 2013, appellant related that on November 10, 2013 he was 

stationed on a ship as part of a surge capacity team. He stated, “As I was attempting to climb up 

to the bunk by stepping on an approximately two-inch wide angle iron step, then slide under the 

side safety rail of the bunk, I felt a pain in my right knee. I thought it was a pulled muscle or 

tendon and continued to work.” In May 2013, appellant sought treatment from a specialist, who 

diagnosed a meniscal tear. 

On August 1, 2013 Dr. Barnhart performed a right knee partial medial meniscectomy, 

patellofemoral chondroplasty, and a medial femoral chondroplasty. In a form report dated 

August 19, 2013, he found that appellant could return to work with restrictions. 

By decision dated September 5, 2013, OWCP denied appellant’s claim after finding that 

the medical evidence was insufficient to establish that he sustained a diagnosed condition 

causally related to the accepted November 10, 2012 work incident. 

Appellant appealed to the Board. In a decision dated March 7, 2014, the Board affirmed 

the September 5, 2013 OWCP decision finding that the medical evidence was insufficient to 

show that he sustained an injury to his right knee on November 10, 2012.2

 

 2

 Docket No. 14-41 (issued March 7, 2014). 
3

In a report dated September 30, 2013, received by OWCP on May 22, 2014, Dr. Barnhart 

indicated that appellant began experiencing right knee pain when he climbed into a bunk while 

working to provide relief after Hurricane Sandy. He also described a history of recurrent knee 

pain over a period of years that “seemed to get worse after the relief efforts.” Dr. Barnhart 

diagnosed a tear of the medial meniscus of the right knee status post partial meniscectomy and 

right osteoarthrosis of the lower leg. He noted that in his initial evaluation he was unaware that 

appellant’s pain resulted from an injury though he did reference pain while working on a ship for 

Hurricane Sandy relief. Dr. Barnhart obtained a current history of injury from appellant as 

experiencing “severe pain and a pop when he twisted the right knee stepping onto a bunk step to 

climb into the top bunk....” He stated: 

“I believe that [appellant] had some preexisting knee DJD [degenerative joint 

disease] but he did not seem to be symptomatic. I have no evidence of whether he 

did or did not have a preexisting meniscus tear although it is unlikely that he did 

considering that he was essentially asymptomatic. The twisting injury certainly 

describes a mechanism that could lead to a meniscus tear and certainly could have 

aggravated [appellant’s] previously minimally symptomatic DJD. I do think that 

his injury on November 10, 2012 caused or contributed to his diagnosis of [a] 

medial meniscus tear and symptomatic DJD.” 

In a report dated November 7, 2014, Dr. James R. Morse, who specializes in family 

medicine, noted that appellant experienced constant right knee pain after an “injury during the 

clean-up from [H]urricane Sandy.” He related that appellant experienced stiffness and swelling 

and difficulty performing extensive walking and standing even after his meniscal surgery. 

Dr. Morse stated, “[Appellant] had none of these problems prior to going to [employing 

establishment] support for [H]urricane Sandy.” 

On November 18, 2014 appellant, through counsel, requested reconsideration. 

By decision dated February 6, 2015, OWCP denied modification of its prior merit 

decision.3

 It found that the medical evidence was insufficient to show that appellant sustained a 

diagnosed condition as a result of the accepted work incident. OWCP noted that Dr. Barnhart 

relied upon an accurate history of twisting his right knee while getting into a bunk, but that he 

described his injury as occurring when he slid under the safety rail climbing onto the top bunk. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA4

 has the burden of establishing the essential 

elements of his or her claim, including the fact that the individual is an “employee of the United 

States” within the meaning of FECA; that the claim was filed within the applicable time 

 3

 OWCP indicated that it was denying modification of the Board’s March 7, 2014 decision; however, the Board’s 

decision became final after 30 day of issuance and is not subject to further review except by the Board. See 20 

C.F.R. § 501.6(d). Appellant timely requested reconsideration of the prior OWCP decision issued September 5, 

2013 within one year of the last merit decision issued by the Board on March 7, 2014. 

4

 5 U.S.C. § 8101 et seq. 
4

limitation; that an injury was sustained while in the performance of duty as alleged; and that any 

disability and/or specific condition for which compensation is claimed are causally related to the 

employment injury.5

 These are the essential elements of each and every compensation claim 

regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6

To determine whether an employee sustained a traumatic injury in the performance of 

duty, OWCP must determine whether “fact of injury” is established. First, an employee has the 

burden of demonstrating the occurrence of an injury at the time, place and in the manner alleged, 

by a preponderance of the reliable, probative and substantial evidence.7

 Second, the employee 

must submit sufficient evidence, generally only in the form of medical evidence, to establish a 

causal relationship between the employment incident and the alleged disability and/or condition 

for which compensation is claimed.8

 An employee may establish that the employment incident 

occurred as alleged, but fail to show that his or her disability and/or condition relates to the 

employment incident.9

ANALYSIS 

By prior appeal decision dated March 7, 2014, the Board determined that the June 28, 

July 17 and 19, and August 19, 2013 reports from Dr. Barnhart had failed to establish that 

appellant sustained an injury on November 10, 2012. On November 18, 2014 appellant timely 

requested reconsideration before OWCP and submitted additional medical evidence.10

In his report dated September 30, 2013, Dr. Barnhart noted that appellant had right knee 

pain for years but that the pain increased after he climbed into a bunk while providing relief after 

Hurricane Sandy. He diagnosed right lower leg osteoarthrosis and a tear of the right medial 

meniscus. Dr. Barnhart also diagnosed preexisting DJD of the right knee and a possible 

preexisting right meniscal tear, though he advised that a preexisting tear was unlikely given 

appellant’s lack of symptoms prior to the incident. He obtained a history of appellant hearing a 

pop and feeling pain when he twisted his knee stepping up to climb onto a bunk. Dr. Barnhart 

opined that appellant’s twisting injury could have aggravated his DJD and torn his meniscus and 

concluded that the November 10, 2012 incident caused or contributed to the diagnosed 

conditions. He did not, however, rely on an accurate history of injury, as appellant did not 

previously describe a twisting injury to his knee.11 Additionally, Dr. Barnhart’s finding that 

twisting could have torn appellant’s meniscus and aggravated his preexisting DJD is couched in 

 5 Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55 ECAB 179 (2003). 

6 See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004). 

7 David Apgar, 57 ECAB 137 (2005); Delphyne L. Glover, 51 ECAB 146 (1999). 

8 Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404, 407 (1997). 

9 Id.

10 Supra note 3. 

11 Joseph M. Popp, 48 ECAB 624 (1997). 
5

speculative terms and thus of little probative value.12 Further, he did not fully explain how the 

incident caused or aggravated the medial meniscus tear and DJD. Without a firm diagnosis 

supported by medical rationale, Dr. Barnhart’s report is of little probative value.13

On November 7, 2014 Dr. Morse noted that appellant experienced pain after cleaning up 

from Hurricane Sandy and continued to experience stiffness, swelling, and problems with 

prolonged walking or standing. He noted that appellant did not have these difficulties prior to 

his work in the aftermath of Hurricane Sandy. A medical opinion that a condition is causally 

related to an employment injury because the employee was asymptomatic before the injury but 

symptomatic after it is insufficient, without supporting rationale, to establish causal 

relationship.14

As discussed, the mere fact that a condition manifests itself during a period of 

employment is not sufficient to establish causal relationship.15 Temporal relationship alone will 

not suffice.16 The Board finds that the medical evidence of record fails to establish that appellant 

sustained a right knee condition causally related to the accepted November 10, 2012 employment 

incident. 

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

reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and 

20 C.F.R. §§ 10.605 through 10.607. 

CONCLUSION 

The Board finds that appellant has not established that he sustained an injury on 

November 10, 2012 in the performance of duty. 

 12 Rickey S. Storms, 52 ECAB 349 (2001) (while the opinion of a physician supporting causal relationship need 

not be one of absolute medical certainty, the opinion must not be speculative or equivocal. The opinion should be 

expressed in terms of a reasonable degree of medical certainty). 

13 See Samuel Senkow, 50 ECAB 370 (1999) (finding that, because a physician’s opinion of Legionnaires disease 

was not definite and was unsupported by medical rationale, it was insufficient to establish causal relationship). 

14 Cleopatra McDougal-Saddler, 47 ECAB 480 (1996). 

15 20 C.F.R. § 10.115(e) 

16 See D.I., 59 ECAB 158 (2007). 
6

ORDER 

IT IS HEREBY ORDERED THAT the February 6, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: July 15, 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