United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

P.F., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Warsaw, IN, Employer 

__________________________________________ 

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Docket No. 16-0693 

Issued: October 24, 2016 

Appearances: Case Submitted on the Record

Joseph E. Allman, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On February 24, 2016 appellant, through counsel, filed a timely appeal from an 

August 31, 2015 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 over the merits of the case. 

ISSUE 

The issue is whether OWCP properly denied authorization for right knee arthroplasty. 

 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. 
2

FACTUAL HISTORY 

On March 18, 2014 appellant, then a 47-year-old rural letter carrier filed a traumatic 

injury claim (Form CA-1) alleging that on January 13, 2014, after deicing her mail truck and 

delivering mail, she returned to her office and experienced severe bilateral knee pain and 

swelling.3

 She indicated that she had previously fractured her right knee at work on January 15, 

2009 and that her left knee was damaged due to overcompensating for her right knee injury.4

 

OWCP accepted appellant’s claim for post-traumatic arthritis of the right lower leg. Appellant 

worked intermittently thereafter until she stopped completely on June 20, 2014. 

The record contains treatment reports from Dr. Gregory M. Sassmannshausen, a Boardcertified orthopedist, from March 18, 2009 to April 30, 2014, for bilateral knee pain related to 

repetitive standing and walking required at her job as a letter carrier. On April 9, 2009 

Dr. Sassmannshausen performed a right knee arthroscopy with partial medial meniscectomy and 

diagnosed right knee posterior horn medial meniscal tear. On April 19, 2010 he performed a 

right knee arthroscopy with loose body removal and chondroplasty of the patellofemoral lateral 

compartment. A magnetic resonance imaging (MRI) scan of the right knee dated April 23, 2014, 

revealed tricompartmental degenerative changes most advanced in the patellofemoral 

compartment. 

Appellant came under the treatment of Dr. Steven Fisher, a Board-certified orthopedist, 

on May 15 and 22, 2014, for post-traumatic arthritis of the right knee. Dr. Fisher noted that she 

had sustained a work-related injury to her right knee in 2009 and underwent arthroscopic surgery 

in 2009 and 2010. He noted giving injections and oral medications. Dr. Fisher diagnosed right 

knee degenerative arthritis secondary to anserine bursitis and neuroma of the infrapatellar branch 

of the saphenous nerve. He noted conservative modalities failed and recommended a total right 

knee arthroplasty. 

On May 27, 2014 Dr. Fisher submitted a general medical and surgical authorization 

request for a right knee arthroplasty. He noted that a right knee MRI scan dated April 23, 2014 

revealed tricompartmental degenerative arthritis with grade 2 and 3 chondromalacia in the 

medial and lateral compartments. Dr. Fisher noted that she had previous arthroscopy in 2009 

and 2010, which documented cartilage loss and removal of loose bodies from the knee. 

Appellant continued to complain of disabling pain consistent with these findings and was treated 

with oral anti-inflammatories and cortisone injections which did not alleviate her pain. 

Dr. Fisher opined that she continued to have residuals of her work-related conditions which 

precluded her from working as a letter carrier. He further opined that appellant could work in a 

 3

 In a memorandum dated June 13, 2014, OWCP noted that appellant consistently complained of bilateral knee 

pain both before and after the January 13, 2014 incident relating her condition to repetitive duties of delivering mail 

daily. Based on appellant’s statements, it developed her claim as an occupational disease rather than a traumatic 

injury claim. 

4

 On January 20, 2009 appellant filed a traumatic injury claim alleging that on January 15, 2009 while delivering 

mail she stepped onto a porch and twisted her right knee and fell backward hitting her head, claim number 

xxxxxx173. OWCP accepted her claim for concussion, sprain of neck, contusion of the right knee and lower right 

leg and torn right meniscus. It authorized April 9 and 19, 2010 right knee arthroscopies. This claim was 

consolidated with the current claim before the Board, claim number xxxxxx653. 
3

sedentary capacity with the ability to stand as needed. Dr. Fisher recommended a total knee 

arthroplasty to alleviate her pain long-term. 

Appellant filed a Form CA-7, claim for compensation for total disability for the period 

beginning June 20, 2014. On September 4, 2014 OWCP denied her claim. Appellant requested 

an oral hearing. 

In a decision dated February 19, 2015, a hearing representative reversed the 

September 4, 2014 OWCP decision. The hearing representative noted that Dr. Fisher had 

provided sufficient evidence that appellant could not perform unrestricted duty due to her 

accepted right knee condition and therefore she was entitled to compensation beginning 

June 20, 2014.5

 The hearing representative instructed OWCP to combine claim numbers 

xxxxxx173 and xxxxxx653 and develop the case with regard to her request for a right total knee 

arthroplasty. 

On March 4, 2015 OWCP referred appellant to Dr. Nathan A. Fogt, an osteopath and 

Board-certified orthopedist, for a second opinion examination, regarding the status of her 

accepted condition and the need for a right knee replacement. In a March 26, 2015 report, 

Dr. Fogt indicated that he reviewed the records provided and provided results on examination. 

He noted Dr. Sassmannshausen, on April 9, 2009, had performed a right knee arthroscopy with 

partial medial meniscectomy and diagnosed right knee posterior horn medial meniscal tear and 

mild grade 2 chondromalacia changes of the patella and on April 26, 2010 performed an 

arthroscopy finding a loose body. Dr. Fogt noted an April 23, 2014 right knee MRI scan showed 

tricompartmental degenerative changes most advanced in the patellofemoral compartment. He 

noted findings of a nonantalgic gait with a cane, no focal motor or sensory deficits and negative 

straight leg raising bilaterally. With regard to the right knee appellant had extremely 

hyperintense pain response to even the lightest touch, she showed withdrawal behavior when one 

moved towards her knee, there was no effusion, the collateral ligaments appear to be intact, and 

range of motion was 5 to 120 degrees. Dr. Fogt opined that she had active residuals from the 

accepted conditions based on the review of the records and examination. He opined that 

appellant was unable to return to work secondary to her hyperactive pain response. Dr. Fogt 

noted that her prognosis was extremely guarded and he would be quite hesitant to proceed with a 

total knee arthroplasty under these conditions. He opined that the April 2014 right knee MRI 

scan showed grade 3 changes at the patellofemoral joint, but the remainder of the articular 

surface appeared to be relatively well preserved. Dr. Fogt further noted that given appellant’s 

significant pain response to the lightest touch, an extensive procedure, such as a total knee 

arthroplasty, in this setting would be fraught with potential complications. He recommended a 

pain management trial before any attempt at surgery. Dr. Fogt noted that appellant could not 

perform her letter carrier duties, but she could work in a sedentary position. 

OWCP found that a conflict of medical opinion existed between Dr. Fisher, appellant’s 

treating physician, who diagnosed work-related tricompartmental degenerative arthritis in the 

right knee with grade 2 and 3 chondromalacia in the medial and lateral compartments, and 

disabling pain and recommended a total knee arthroplasty; and Dr. Fogt, an OWCP referral 

 5

 OWCP paid wage-loss compensation beginning June 20, 2014. 
4

physician who opined that appellant had active residuals from the accepted conditions, but given 

her significant pain response to the lightest touch she was not a candidate for the proposed right 

total knee arthroplasty. 

Appellant submitted a July 2, 2015 letter of medical necessity from Dr. Fisher with 

regard to her left knee. Dr. Fisher diagnosed post-traumatic arthritis, degenerative changes, and 

severe pain. He noted changes on appellant’s MRI scan, which reveal edema in the subchondral 

bone and opined that she was a candidate for a total knee replacement. 

To resolve the conflict OWCP, on April 15, 2015, referred appellant to a referee 

physician, Dr. Christopher R. Balint, an osteopath and a Board-certified orthopedist. In a 

July 30, 2015 report, Dr. Balint noted reviewing the record, including the history of her work 

injury. He noted that her history was significant for two arthroscopies of the right knee, one in 

April 2009 which showed patellofemoral chondral changes along with the medial meniscus tear 

and another in April 2010 which revealed the grade 2 and two large loose chondral bodies in the 

medial compartment that were removed. The April 19, 2010 operative report revealed 

significant advancement in chondral changes primarily in the lateral compartment in one year. 

Right knee examination revealed range of motion similar to the left knee. The right knee was 

extremely stable to varus and valgus stress testing. Appellant showed extreme hypersensitivity 

even to touch about the knee and the medial, lateral, and patella knee was stable. She was able to 

stand, but she was very apprehensive of bearing full weight onto the right knee. Dr. Balint 

opined that appellant continued to have active residuals of her right knee condition. Appellant 

was extremely hypersensitive to any touch or palpation about the entire right knee with 

significant pain with any type of ambulation or standing. However, Dr. Balint noted that she had 

no effusion on examination. He noted that at the time of arthroscopy in April 2009, there were 

no signs of any chondral abnormalities. A March 2010 MRI scan revealed extensive chondral 

surface irregularity, loss of the medial patella facet, and partial thickness cartilage loss along the 

posterior aspect of the lateral femoral condyle. Dr. Balint opined that, based on his examination 

and findings, he did not believe that surgery was warranted as a result of the January 2009 work 

injury. He based his opinion on the fact that, since the first MRI scan of March 2009 to the 

arthroscopy dictation of April 2009, there appeared to be advancement and changes intraarticularly primarily to the lateral compartment over one year that were not noted at time of 

arthroscopy. Dr. Balint opined that because of appellant’s hypersensitivity to the right knee, a 

total knee replacement could present great issues with regard to pain control and postoperative 

pain management. He recommended conservative management with cortisone injections as 

warranted, possibly viscosupplementation, oral anti-inflammatories, physical therapy, and 

nonsteroidal anti-inflammatories. Dr. Balint noted that due to appellant’s subjective pain 

complaints regarding her right knee and, with increased discomfort to her left knee due to 

overcompensation, he did not believe that she could work as a letter carrier. He opined that 

sedentary work with no restrictions on the arm would be appropriate. Dr. Balint opined that 

appellant’s condition progressed with advancing patellofemoral symptoms from the March 2009 

MRI scan and the operative notes indicating that there was already obvious patellofemoral 

chondromalacia at that time which had advanced since that time. 

In a decision dated August 31, 2015, OWCP found that Dr. Balint’s opinion represented 

the weight of medical evidence and denied authorization for the total right knee arthroplasty. 
5

LEGAL PRECEDENT 

Section 8103 of FECA provides that the United States shall furnish to an employee who 

is injured while in the performance of duty, the services, appliances, and supplies prescribed or 

recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce 

the degree, or the period of disability, or aid in lessening the amount of monthly compensation.6

 

While OWCP is obligated to pay for treatment of employment-related conditions, the employee 

has the burden of establishing that the expenditure is incurred for treatment of the effects of an 

employment-related injury or condition.7

 

In interpreting this section of FECA, the Board has recognized that OWCP has broad 

discretion in approving services provided under section 8103, with the only limitation on 

OWCP’s authority being that of reasonableness.8

 Abuse of discretion is generally shown 

through proof of manifest error, clearly unreasonable exercise of judgment, or actions taken 

which are contrary to both logic and probable deductions from established facts. It is not enough 

to merely show that the evidence could be construed so as to produce a contrary factual 

conclusion.9

 To be entitled to reimbursement of medical expenses, a claimant has the burden of 

establishing that the expenditures were incurred for treatment of the effects of an employmentrelated injury or condition. Proof of causal relationship in a case such as this must include 

supporting rationalized medical evidence.10 In order for a surgical procedure to be authorized, a 

claimant must submit evidence to show that the surgery is for a condition causally related to an 

employment injury and that it is medically warranted. Both of these criteria must be met in order 

for OWCP to authorize payment.11 

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.12

ANALYSIS 

OWCP accepted that appellant sustained employment-related post-traumatic arthritis of 

the lower leg, concussion, sprain of neck, contusion of the right knee and lower right leg, and 

torn right meniscus. Arthroscopic surgery was authorized on April 9, 2009 and April 19, 2010. 

On May 27, 2014 Dr. Fisher requested authorization for a total right knee arthroplasty. OWCP 

determined that a conflict in medical opinion existed between appellant’s attending physician, 

 6

 5 U.S.C. § 8103; see Thomas W. Stevens, 50 ECAB 288 (1999). 

7 Kennett O. Collins, Jr. 55 ECAB 648 (2004). 

8 See D.K., 59 ECAB 141 (2007). 

9 Minnie B. Lewis, 53 ECAB 606 (2002). 

10 M.B., 58 ECAB 588 (2007). 

11 R.C., 58 ECAB 238 (2006).

12 5 U.S.C. § 8123(a); Guiseppe Aversa, 55 ECAB 164 (2003). 
6

Dr. Fisher, who diagnosed work-related tricompartmental degenerative arthritis in the right knee, 

chondromalacia in the medial and lateral compartments, and disabling pain and recommended a 

total knee arthroplasty; and Dr. Fogt, an OWCP referral physician, who opined that appellant had 

active residuals from the accepted conditions, but given her significant pain response she was not 

a candidate for the proposed right total knee arthroplasty. Consequently, it referred her to 

Dr. Balint to resolve the conflict. 

The Board finds that the weight of the medical evidence rests with the opinion of 

Dr. Balint, the impartial specialist, who examined appellant, reviewed the medical evidence, and 

found that the total right knee arthroplasty was not medically warranted. As noted, for a surgical 

procedure to be authorized, a claimant must show that the surgery is for a condition causally 

related to a work injury and that it is medically warranted. 

In a July 30, 2015 report, Dr. Balint reviewed appellant’s history and reported findings. 

He noted her history, including her two right knee arthroscopies. Dr. Balint noted that 

examination revealed that the right knee was extremely stable to varus and valgus stress testing 

with no effusion, although appellant showed hypersensitivity to touch. He opined that she 

continued to have active residuals of her right knee condition with significant pain with any type 

of ambulation or standing. Dr. Balint noted that, at the time of arthroscopy in April 2009, there 

were no signs of any chondral abnormalities, but that a March 2010 MRI scan revealed extensive 

chondral surface irregularity, loss of the medial patella facet, and partial thickness cartilage loss 

of the lateral femoral condyle. He opined that, based on his examination and findings, the 

proposed right knee arthroplasty was not warranted as a result of the work injury. Dr. Balint 

based his opinion on the fact that, since the first MRI scan of March 2009 and the arthroscopy 

dictation of April 2009, there appeared to be advancement and changes intra-articularly primarily 

to the lateral compartment over one year that were not noted at time of arthroscopy. He opined 

that, because of appellant’s right knee hypersensitivity, a total knee replacement could present 

great issues with regard to her pain control and postoperative pain management. Dr. Balint 

recommended conservative and nonsurgical treatment. 

In situations where the case is referred to an impartial medical specialist for the purpose 

of resolving a medical conflict, the opinion of such specialist, if sufficiently well rationalized and 

based upon a proper factual background, must be given special weight.13 The Board finds that 

Dr. Balint provided a well-rationalized opinion based on a complete background, his review of 

the accepted facts, the medical record, and his examination findings. Dr. Balint’s opinion that 

the total right knee arthroplasty was not medically warranted is entitled to special weight and 

represents the weight of the evidence.14

The only limitation on OWCP’s authority is approving or disapproving service under 

FECA is one of reasonableness.15 In the instant case, appellant requested surgery. OWCP 

obtained an impartial medical examination through Dr. Balint who clearly found the surgery not 

 13 Guiseppe Aversa, id.

14 Id.

15 Daniel J. Perea, 42 ECAB 214, 221 (1990). 
7

warranted. It therefore had sufficient evidence upon which it made its decision to deny surgery 

and did not abuse its discretion. 

On appeal counsel disagrees with the decision denying appellant’s request for right knee 

arthroplasty. He asserts that it was unreasonable for her to be examined by a second opinion 

physician as her long-treating physician determined the surgery was appropriate. However, 

OWCP has the discretion to have a claimant submit to an examination by a physician designated 

or approved by OWCP after the injury and as frequently and at the times and places as may be 

reasonably required.16 There is no evidence showing that the referral to Dr. Fogt was 

unreasonable. Counsel further asserts that the second opinion physician’s report was not of 

sufficient weight to create a conflict of opinion and that the referee physician’s opinion is 

incomplete as he did not have MRI scan films or x-ray films to examine before rendering his 

opinion. As explained the record supports that Dr. Fogt clearly disagreed with Dr. Fisher with 

regard to whether the requested surgery was warranted. This necessitated appellant’s referral to 

an impartial specialist under 5 U.S.C. § 8123(a). Dr. Balint’s report shows that he reviewed the 

medical evidence of record and found the proposed surgery not causally related to the work 

injury and medically unwarranted based on his examination findings and a review of the record. 

OWCP properly acted properly within its discretionary authority to deny authorization for the 

requested surgery. Therefore, the Board finds that OWCP did not abuse its discretion under 

section 8103 in denying approval of right knee surgery. 

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

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

and 20 C.F.R. §§ 10.605 through 10.607. 

CONCLUSION 

The Board finds that OWCP properly exercised its discretion when it denied 

authorization for the recommended surgical procedure to appellant’s right knee. 

 16 William B. Webb, 56 ECAB 156 (2004). 
8

ORDER 

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

Compensation Programs dated August 31, 2015 is affirmed. 

Issued: October 24, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board