United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

W.W., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

ATLANTA VETERANS ADMINISTRATION 

MEDICAL CENTER, Decatur, GA, Employer 

__________________________________________ 

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Docket No. 16-0953 

Issued: November 10, 2016 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On April 4, 2016 appellant, through counsel, filed a timely appeal from a March 11, 2016 

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 this claim. 

ISSUE 

The issue is whether appellant met his burden of proof to establish a right knee injury 

causally related to the accepted May 3, 2014 employment incident.

 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 May 6, 2014 appellant, then a 49-year-old electrician, filed a traumatic injury claim 

(Form CA-1) alleging that on May 3, 2014 he twisted his right knee when he missed the last step 

while descending a ladder. Appellant did not stop work. 

With the claim, appellant submitted a July 8, 2014 work excuse note which reported that 

appellant was being evaluated for knee pain, and unsigned employing establishment health unit 

form reports documenting emergency treatment on May 6 and June 9, 2014. OWCP also 

received the employing establishment’s challenge letter of September 26, 2014 which indicated 

that appellant had a preexisting right knee condition. 

In a September 29, 2014 letter, OWCP advised appellant of the deficiencies in his claim 

and provided him the opportunity to submit additional factual and medical evidence. Appellant 

was advised to complete a questionnaire and that he should submit a detailed narrative medical 

report from his treating physician containing a history of the injury and a medical explanation 

with objective evidence as to how the reported work incident caused or aggravated the claimed 

condition. He was afforded 30 days to submit such evidence. 

In October 10 and 21, 2014 responses to OWCP’s questionnaire, appellant acknowledged 

that he had complaints of right knee pain following left hip replacement surgery in 2009. He 

submitted documents unrelated to medical treatment, and a May 6, 2014 Form CA-16, which 

authorized medical treatment by Dr. Gregory Erens, a Board-certified orthopedic surgeon. 

Several reports from Dr. Erens were received. Reports from 2009 indicated that 

appellant had left hip osteoarthritis and underwent left total hip resurfacing on August 13, 2009. 

Status reports post hip replacement surgery were received. In an April 5, 2012 report, Dr. Erens 

diagnosed left hip osteoarthritis. He noted appellant’s complaints of bilateral knee pain and 

indicated the x-rays had minimal arthritic changes and the left hip was in good position. As 

appellant was having vague symptoms and perhaps swelling of the joints, mainly the left hip and 

both knees, Dr. Erens recommended some additional testing and noted a rheumatology 

consultation could be considered. In a March 6, 2014 report, Dr. Erens noted a history of left hip 

replacement and bilateral knee pain, left greater than right. The possibility of evaluation by a 

rheumatologist was rediscussed. 

A May 3, 2014 employing establishment incident report noted that, on that date, appellant 

missed a step coming down a ladder and twisted his right knee. A May 4, 2014 note from the 

employee health unit indicated that appellant could work limited duty. In a May 5, 2014 form 

report, Dr. Michael B. Miller, an osteopath and chief occupational health physician, found 

appellant could work with restrictions pending an evaluation by an orthopedic surgeon. 

In a May 28, 2014 report, Dr. Erens noted appellant had longstanding bilateral knee pain. 

He reported that on May 9, 2014 appellant injured his right knee at work while descending a 

ladder and heard and felt a pop in the right knee. The x-rays disclosed bilateral knee 

osteoarthritis, worse on the right side. An impression of knee pain was provided. 

A June 25, 2014 magnetic resonance imaging (MRI) scan of the right knee revealed a tear 

of the posterior horn of the medial meniscus. 
3

In a July 8, 2014 report, Dr. Erens indicated appellant was evaluated for right knee pain. 

He noted that appellant reported being limited by knee pain and unable to work from May 28 

through June 30, 2014. 

By decision dated November 3, 2014, OWCP denied the claim, finding that there was no 

medical evidence containing a medical diagnosis in connection with the alleged employment 

incident. 

On November 24, 2014 appellant, through counsel, requested a telephonic hearing before 

an OWCP hearing representative which was held on June 3, 2015. Appellant testified at the 

hearing. He stated that he had right knee pain and arthritis for years prior to May 3, 2014. 

Appellant stated that he saw Dr. Erens for the May 3, 2014 work incident and denied any 

subsequent injury to his right knee. He testified that he told his physicians the history of the 

May 3, 2014 work incident and related that he had not returned to work. 

Evidence was received prior to and after the hearing. Duplicative reports, previously of 

record, were received along with new evidence. 

In a November 18, 2014 report, Dr. Vincent A. Fowble, a Board-certified orthopedic 

surgeon, noted a history of the left hip replacement in 2009 as well as the May 3, 2014 work 

incident. He noted examination findings of no deformity, instability or swelling, full strength 

and intact light touch sensation. Dr. Fowble reported bilateral knee medial joint line tenderness, 

slight restriction of patella mobility left and none right, and full extension of the right knee. He 

reported x-rays showed narrowing of the knee medial compartment and noted his review of the 

June 26, 2014 knee MRI scans. Dr. Fowble diagnosed bilateral knee internal derangement and 

arthritis. 

In a November 25, 2014 report, Dr. Gary Wexler, a Board-certified orthopedic surgeon, 

related that several months prior, appellant had sustained an injury coming off a ladder at work 

and injured his knees. MRI scans of bilateral knees indicated complete tear of the medial 

meniscus. Dr. Wexler provided a diagnosis of knee pain, meniscus derangement, posterior horn, 

medial, and difficulty walking. 

In a December 4, 2014 report, Dr. Fowble indicated that the November 24, 2014 MRI 

scans of both knees confirmed large tears involving the medial meniscus. An impression of 

status post left hip resurfacing and bilateral knee osteoarthritis/internal derangement was 

provided. Dr. Fowble referred appellant to Dr. Wexler for follow-up and arthroscopic surgery. 

On December 11, 2014 appellant underwent right knee arthroscopic surgery with partial 

medial menisectomy and chondroplasty, which was performed by Dr. Wexler. In postoperative 

notes of December 12 and 19, 2014 and January 9 and February 3, 2015, Dr. Wexler noted 

appellant’s progress and treatment for the right knee. 

In a March 10, 2015 report, Dr. Wexler noted that appellant reported right knee 

discomfort. Right knee injections were recommended. In reports of March 12, 24, and 31, 2015, 

Dr. Wexler performed a series of injections to appellant’s right knee. 
4

On May 21, 2015 appellant underwent left knee arthroscopic surgery with partial medial 

menisectomy and chondroplasty performed by Dr. Wexler. Postoperative notes of the left knee 

dated May 22 and 29, 2015 were provided. 

By decision dated July 17, 2015, an OWCP hearing representative modified OWCP’s 

November 3, 2014 decision to accept fact of injury, but it affirmed the denial of the claim as 

appellant had not met his burden to establish causal relationship between the May 3, 2014 work 

incident and a diagnosed right knee condition. 

On July 30, 2015 OWCP received counsel’s letter requesting reconsideration based on 

medical reports from Dr. Fowble and Dr. Wexler. Counsel also submitted a July 30, 2015 letter, 

which contained duplicative reports from Dr. Fowble and Dr. Wexler. 

OWCP received medical reports dated November 18 and December 4, 2014 from 

Dr. Fowble, previously of record. 

In a June 26, 2015 letter, Dr. Wexler indicated that appellant had been a patient of his 

since his work-related injury of May 3, 2014. At that time, he was working on a ladder and fell. 

Dr. Wexler stated that he started to participate in the care of appellant’s bilateral knee injuries 

after this incident. He reported that June 26, 2014 knee MRI scans showed evidence of a 

complex tear of the posterior horn of the medial meniscus for both the right and left knees. 

Dr. Wexler stated that appellant eventually underwent bilateral knee arthroscopic surgery with 

partial medial meniscectomy and chondroplasties of the patellofemoral joints. He opined that 

appellant’s clinical history, his physical examination findings and his MRI scan findings 

suggested a diagnosis of traumatic bilateral knee meniscal tears that were directly related to his 

work injury. Appellant had no preexisting history of knee injury and there was no evidence of 

prior MRI scans or treatment with respect to his knees. Dr. Wexler concluded that the May 3, 

2014 work incident, the fall, led to bilateral knee injuries, which necessitated surgical care. 

By decision dated March 11, 2016, OWCP denied modification of its July 17, 2015 

decision. It found the evidence submitted to be of insufficient probative value to establish causal 

relation. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA has the burden of proof to establish 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 

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.3 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.4

 

 3 Joe D. Cameron, 41 ECAB 153 (1989). 

4 See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999). 
5

In order to determine whether an employee sustained a traumatic injury in the 

performance of duty, OWCP begins with an analysis of whether fact of injury has been 

established. Generally, fact of injury consists of two components that must be considered 

conjunctively. First, the employee must submit sufficient evidence to establish that he actually 

experienced the employment incident that is alleged to have occurred.5

 An employee has not 

met his or her burden of proof in establishing the occurrence of an injury when there are such 

inconsistencies in the evidence as to cast serious doubt upon the validity of the claim.6

 Second, 

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

establish that the employment incident caused a personal injury.7

The medical evidence required to establish causal relationship is generally rationalized 

medical opinion evidence. Rationalized medical opinion evidence is medical evidence which 

includes a physician’s rationalized opinion on the issue of whether there is a causal relationship 

between the claimant’s diagnosed condition and the implicated employment factors. The 

opinion of the physician must be based on a complete factual and medical background of the 

claimant, must be one of reasonable medical certainty and must be supported by medical 

rationale explaining the nature of the relationship between the diagnosed condition and the 

specific employment factors identified by the claimant.8

 Neither the fact that a disease or 

condition manifests itself during a period of employment nor the belief that the disease or 

condition was caused or aggravated by employment factors or incidents is sufficient to establish 

causal relationship.9

ANALYSIS 

Appellant filed a traumatic injury claim alleging that he missed the last step while coming 

down from a ladder and twisted his right knee on May 3, 2014. OWCP accepted that the May 3, 

2014 incident occurred as alleged, but denied the claim as it found that the diagnoses of record 

were not causally related to the accepted incident. 

The Board finds that appellant has not met his burden of proof to establish a right knee 

condition causally related to the accepted May 3, 2014 employment incident. 

Medical reports from Dr. Erens were received. Several reports which predate the May 3, 

2014 incident are not relevant to the current claim. However, they indicate that appellant had a 

history of long-standing bilateral knee pain and x-rays of the knees revealed “minimal arthritic 

changes.” Two months prior to the May 3, 2014 incident, Dr. Erens had suggested in his 

March 6, 2014 report that appellant might want to be evaluated by a rheumatologist with respect 

to his bilateral knee pain. 

 5 Gary J. Watling, 52 ECAB 278 (2001). 

6 S.N., Docket No. 12-1222 (issued August 23, 2013); Tia L. Love, 40 ECAB 586, 590 (1989). 

7 Deborah L. Beatty, 54 ECAB 340 (2003). 

8 Solomon Polen, 51 ECAB 341 (2000). 

9 Dennis M. Mascarenas, 49 ECAB 215 (1997). 
6

In his May 28, 2014 report, Dr. Erens reported that on May 9, 2014 appellant injured his 

right knee at work while descending a ladder and heard and felt a pop in the right knee. The 

x-rays disclosed bilateral knee osteoarthritis, worse on the right side. An impression of knee 

pain was provided. In a July 8, 2014 report, Dr. Erens indicated that appellant was being 

evaluated for knee pain and noted that appellant reported being limited by knee pain and unable 

to work from May 28 through June 30, 2014. His reports, however, are of diminished probative 

value. Dr. Erens diagnosed knee pain and provided a wrong date of injury (May 9, 2014). Pain, 

however, is a description of a symptom rather than a clear diagnosis of a medical condition.10 

Thus, these reports do not contain a diagnosis in connection with the May 3, 2014 work injury 

and are insufficient to establish appellant’s claim.11 

Medical reports from Dr. Fowble were received. In his February 18, 2014 report, 

Dr. Fowble noted the history of appellant’s left hip replacement in 2009 as well as the May 3, 

2014 work incident. He provided examination findings and reviewed diagnostic tests. While 

Dr. Fowble diagnosed bilateral knee internal derangement and arthritis, he offered no opinion as 

to causal relationship between the diagnosed condition and the May 3, 2014 work incident. In a 

subsequent report of December 4, 2014, Dr. Fowble advised that the November 24, 2014 MRI 

scan showed large meniscal tears, but he offered no opinion as to the causal relationship. The 

Board has held that medical evidence which does not offer any opinion regarding the cause of an 

employee’s condition is of limited probative value on the issue of causal relationship.12 A 

medical opinion is especially needed in this case as the record reflects that appellant has 

preexisting knee conditions. Thus, these reports are insufficient to establish appellant’s claim. 

Several reports from Dr. Wexler were received. In his November 25, 2014 report, 

Dr. Wexler noted the history of the May 3, 2014 work incident and diagnosed meniscus damage 

based on knee MRI scan results. He performed a right knee surgery on December 11, 2014 and a 

left knee surgery on May 21, 2015 and provided postoperative reports on appellant’s condition 

following each surgery. However, Dr. Wexler failed to provide an opinion as to causal 

relationship in any of his reports. As previously indicated, medical evidence which does not 

offer any opinion regarding the cause of an employee’s condition is of limited probative value on 

the issue of causal relationship.13 Thus, these reports are insufficient to establish appellant’s 

claim. 

In his June 26, 2015 report, Dr. Wexler diagnosed traumatic bilateral knee meniscal tear 

which he opined was directly related to the May 3, 2014 work injury. However, he provides an 

inaccurate history of injury. Dr. Wexler indicated that appellant had twisted and fallen off the 

ladder and sustained bilateral knee injuries. Appellant advised in his Form CA-1, statements of 

record and in his testimony that he missed the last step of the ladder and twisted his right knee 

only. Dr. Wexler also provided an inaccurate medical history. He stated that appellant’s clinical 

 10 C.B., Docket No. 09-2027 (issued May 12, 2010); Robert Broom, 55 ECAB 339 (2004) (the Board has 

consistently held that pain is a symptom rather than a compensable medical diagnosis). 

11 See F.R., Docket No. 16-1029 (issued August 11, 2016). 

12 See supra note 9. 

13 C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,

58 ECAB 149 (2006). 
7

history, physical examination findings and MRI scan findings suggested a diagnosis of traumatic 

bilateral knee meniscal tears directly related to his work injury. Dr. Wexler’s explanation that 

appellant had no preexisting medical history regarding his knees and that there was no evidence 

of prior MRI scans or treatment with respect to his knees is contrary to the medical evidence of 

record as noted in Dr. Erens earlier reports. The Board has held that medical reports must be 

based on a complete and accurate factual and medical background. Medical opinions based on 

an incomplete or inaccurate history are of limited probative value.14 Dr. Wexler did not provide 

a well-rationalized medical opinion explaining how appellant’s bilateral knee conditions were 

causally related to his accepted employment incident of May 3, 2014, for which he claimed 

injury to the right knee only. 

The additional medical evidence is of limited probative value. The MRI scan reports, 

hospital and surgical reports, while diagnosing a right knee condition, fail to offer a medical 

opinion as to how the reported work incident caused or aggravated a medical condition.15 A 

medical opinion is especially needed in this case as the record reflects appellant has preexisting 

and degenerative knee conditions. Thus, these reports are insufficient to establish appellant’s 

claim. 

The nonmedical evidence in this case is also of no probative value. Causal relationship is 

a medical question that must be established by probative medical opinion from a physician.16

In this case, the Board finds that none of the medical evidence is sufficiently rationalized, 

based upon a specific and accurate history of employment conditions, to establish that his 

conditions were either caused or exacerbated by employment factors.17 Accordingly, the Board 

finds that appellant has not established causal relationship between the work incident and his 

diagnosed conditions. 

On appeal, counsel asserts that OWCP’s decision is contrary to fact and law. As 

discussed above, appellant has not established causal relationship between the May 3, 2014 work 

incident and his diagnosed conditions. 

The Board also notes that the employing establishment issued appellant a Form CA-16 on 

May 6, 2014 authorizing medical treatment. The Board has held that where an employing 

establishment properly executes a Form CA-16, which authorizes medical treatment as a result of 

an employee’s claim for an employment-related injury, it creates a contractual obligation, which 

does not involve the employee directly, to pay the cost of the examination or treatment regardless 

of the action taken on the claim.18 Although OWCP denied appellant’s claim for an injury, it did 

not address whether he is entitled to reimbursement of medical expenses pursuant to the 

Form CA-16. Upon return of the case record, OWCP should further address this matter. 

 14 C.L., Docket No. 14-1585 (issued December 16, 2014); J.R., Docket No. 12-1099 (issued November 7, 2012); 

Douglas M. McQuaid, 52 ECAB 382 (2001). 

15 Supra note 13. 

16 W.W., Docket No. 09-1619 (issued June 2010); David Apgar, 57 ECAB 137 (2005). 

17 Patricia J. Bolleter, 40 ECAB 373 (1988). 

18 See P.H., Docket No. 16-0654 (issued July 21, 2016). 
8

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 appellant did not meet his burden of proof to establish a right knee 

injury causally related to the accepted May 3, 2014 employment incident. 

ORDER 

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

Compensation Programs dated March 11, 2016 is affirmed. 

Issued: November 10, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board