United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

P.S., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Cherry Hill, NJ, Employer 

__________________________________________ 

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Docket No. 17-0802 

Issued: August 18, 2017 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On February 27, 2017 appellant, through counsel, filed a timely appeal from a 

November 16, 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 to consider the merits of this case. 

ISSUE 

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

causally related to an October 4, 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 October 4, 2014 appellant, then a 45-year-old city carrier, filed a traumatic injury claim 

(Form CA-1) alleging that, on the same date while walking to deliver the mail on his route, his 

knee “popped.” He stopped work on October 19, 2014 and was separated from employment on 

October 31, 2014 for unsatisfactory attendance. 

Appellant submitted the first page of an October 4, 2014 form requesting authorization for 

examination and/or treatment (Form CA-16) in which his customer service supervisor authorized 

treatment for his injury described as “right knee buckled” which occurred on October 4, 2014. 

The supervisor noted with a checked box authorizing the health care provider to furnish treatment 

as medically necessary for the effects of the injury. 

Appellant submitted emergency room records, dated October 4, 2014, where he was 

treated for right medial knee pain that started suddenly while walking at work. He reported 

hearing a “pop” and was unable to bear weight on the right leg. Appellant was treated by 

Dr. Robert E. Soper, an osteopath, who diagnosed knee sprain. An x-ray of the right knee 

revealed small to moderate joint effusion with no acute displaced fracture. 

Appellant came under the treatment of Dr. Enrique J. Garcia Pena, a Board-certified 

orthopedist, on October 10, 2014 for a right knee injury. He reported to Dr. Pena that while 

working as a letter carrier walking to deliver mail, he felt his knee giving way, he heard a loud 

pop, and pain ensued. Appellant indicated that he had difficulty ambulating afterward and was 

treated in the emergency room where x-rays were taken. He indicated that he was put in an 

immobilizer brace. Dr. Pena found limited range of motion of the right knee and tenderness over 

the medial joint line. He diagnosed right knee pain, possible meniscal injury and placed appellant 

in a hinged knee brace. A November 25, 2014 magnetic resonance imaging (MRI) scan of the 

right knee revealed mild medial compartment osteoarthrosis with tears of the medial meniscus. 

On December 1, 2014 Dr. Pena related that appellant reported an injury while performing his mail 

carrier duties. He noted tenderness to palpation over the medial compartment, positive McMurray 

sign medially, and full range of motion. Dr. Pena diagnosed right knee pain with medial meniscus 

tear resultant from injury that he sustained while performing his work duties. He advised that 

appellant failed conservative management and he recommended arthroscopic debridement of his 

right knee. 

By letter dated January 7, 2015, OWCP advised appellant that his claim had originally 

been handled as a simple, uncontroverted case which resulted in minimal or no time loss from 

work. The claim was administratively handled to allow limited medical payments, but the merits 

of the claim were not formally adjudicated. OWCP advised that, because the medical bills now 

exceeded $1,500.00, the claim would be formally adjudicated. It requested that he submit a 

comprehensive medical report which contained a reasoned explanation as to how the specific work 

factors contributed to his claimed injuries. No additional evidence was received. 

In a February 9, 2015 decision, OWCP denied appellant’s claim for compensation because 

the medical evidence of record was insufficient to establish a medical condition causally related to 

the accepted work incident. On February 11, 2015 it reissued the February 9, 2015 decision. On 

February 25, 2015 appellant requested an oral hearing. 
3

Appellant submitted an October 10, 2014 workers’ compensation update form from 

Dr. Pena who diagnosed right knee pain and possible ligament tear. Dr. Pena recommended an 

MRI scan. He noted that appellant could not return to work until his symptoms improved. In 

workers’ compensation update forms dated December 1, 2014 and February 17, 2015, Dr. Pena 

diagnosed right knee medial meniscus tear, recommended surgery, and advised that appellant 

could not work. On May 18, 2015 he noted that appellant sustained a work-related medial 

meniscus tear while working as a mail carrier. Dr. Pena noted conservative measures failed and he 

recommended surgery. He noted significant symptoms in the medial compartment and diagnosed 

right knee medial meniscus tear. 

In a September 10, 2015 report, Dr. Pena noted first treating appellant on October 10, 2014 

where he related that in appellant’s work as a mail carrier he was walking and felt his knee give 

way. Appellant heard a loud pop and had pain. A November 25, 2014 MRI scan revealed mild 

medial compartment osteoarthrosis and an irregular vertical tear of the medial meniscus. 

Appellant reported not having these symptoms before the October 4, 2014 work event. Dr. Pena 

noted that appellant had some mild degenerative joint disease, but advised that the meniscal tear 

was not degenerative. He opined that appellant had a medial meniscal tear to his right knee as a 

consequence of his October 4, 2014 work activities. Dr. Pena advised that appellant failed 

conservative care and the arthroscopic surgery was indicated for treatment of his work-related 

right knee injury. He opined that appellant had an acute onset of symptomatology in the course of 

his work with a pop and subsequent swelling of the right knee injury with corroborating MRI scan 

confirming medial meniscal tear. Dr. Pena advised that the findings and history were all 

consistent with appellant’s knee complaint and injury being causally related to his work incident 

of October 4, 2014. 

By decision dated November 18, 2015, an OWCP hearing representative set aside the 

decision dated February 9, 2015 and remanded the matter for further medical development. 

On November 24, 2015 OWCP referred appellant to Dr. Lawrence I. Barr, a Boardcertified orthopedist, to determine if appellant’s medical condition was causally related to the 

accepted work incident. In a December 22, 2015 report, Dr. Barr indicated that he reviewed the 

records provided and examined appellant. He noted that the November 25, 2014 MRI scan 

revealed mild medial compartment osteoarthritis with a tear of the medial meniscus while an 

October 4, 2014 right knee x-ray showed degenerative changes around the medial compartment 

with a small effusion. Right knee examination showed medial and lateral joint line tenderness, 

pain with range of motion, marked crepitus with motion of the right knee, no McMurray’s sign, 

negative Drawer sign, negative Lachman’s test, and intact strength. Appellant pointed to his 

medial thigh as opposed to any joint line areas when complaining of pain. He diagnosed 

degenerative medial meniscal tear and degenerative joint disease and right knee. Dr. Barr opined 

that appellant reached maximum medical improvement and no further treatment was indicated. 

He opined that he did not find causation and noted that appellant simply took two steps, there was 

no twisting injury and he was not on an uneven surface. Dr. Barr indicated that just taking two 

steps did not establish causal relationship for an injury. He noted that the reported mechanism of 

injury would be unlikely to cause a meniscal tear. Dr. Barr indicated that asymptomatic tears, 

particularly of the posterior horn of the medial meniscus, were common and could be 

serendipitously found on MRI scan and degenerative tears could be found without any trauma 

history. He further indicated that there were signs of abnormal illness behavior on examination of 
4

appellant’s right knee. Dr. Barr opined that appellant had degenerative changes on his right knee 

MRI scan. He noted that based on examination findings he did not recommend work restrictions 

or a functional capacity evaluation. In a work capacity evaluation (Form OWCP-5c) Dr. Barr 

noted that appellant was capable of performing his usual job without restrictions and had reached 

maximum medical improvement. 

In a decision dated January 6, 2016, OWCP denied appellant’s claim for compensation 

because the medical evidence did not demonstrate that the claimed medical condition was causally 

related to the accepted work event. 

On January 11, 2016 appellant requested an oral hearing before an OWCP hearing 

representative which was held on April 18, 2016. 

Appellant submitted a January 26, 2016 report from Dr. Pena, who treated appellant for 

chronic right knee pain with mechanical episodic giving way symptoms. Dr. Pena diagnosed tear 

of the posterior horn of the medial meniscus. He noted findings of painful right knee localized 

over the medial joint line. Dr. Pena reviewed Dr. Barr’s report and noted that some parts of the 

report appeared to be inconsistent. He concurred with Dr. Barr’s description of degeneration of 

the medial compartment with irregularity/thinning of the articular cartilage. Dr. Pena disagreed 

with his description of a degenerative meniscus tear, as the tear pattern, after reviewing imaging 

studies on November 25, 2014, indicated that the meniscus tear was indeed a vertical pattern in the 

posterior horn and irregular vertical tear, which was not a typical tear seen in a degenerative knee. 

He noted that degenerative meniscal tears are more typically complex in nature and the appearance 

of the vertical tear would suggest traumatic etiology. Dr. Pena opined that due to appellant’s 

persistent symptoms and previous imaging findings, he recommended hyaluronic injections. On 

March 4, 2016 he diagnosed mild chondromalacia with degenerative joint changes with posterior 

horn tear of the medial meniscus, radial pattern, by MRI scan. Dr. Pena recommended a repeat 

MRI scan. In a March 18, 2016 report, he advised that a new MRI scan showed progression of the 

medial meniscus tear. Dr. Pena diagnosed right knee pain with medial meniscus tear showing 

progressive changes as compared to the previous MRI scan. He recommended arthroscopic 

surgery. On April 6, 2016 Dr. Pena performed a right knee arthroscopy, chondroplasty of 

trochlear groove, medial femoral condyle, partial medial meniscectomy, and medial meniscus 

repair. He diagnosed right knee chondromalacia of trochlear groove, medial femoral condyle, and 

complex tear of the posterior horn of the medial meniscus that extends into the meniscal body of 

the radial component. 

In a decision dated July 1, 2016, an OWCP hearing representative affirmed the decision 

dated January 6, 2016. 

On August 19, 2016 appellant requested reconsideration. He submitted reports dated 

April 12 and July 12, 2016 from Dr. Pena, who noted that appellant was progressing well 

postoperatively. In reports dated August 12 and September 23, 2016, Dr. Pena noted that 

appellant was status post right knee arthroscopy, medial meniscus repair of the posterior horn, and 

had good and bad days. He recommended reordering an MRI scan and MR arthrogram to rule out 

any underlying pathology that might have progressed from the last evaluation. With regard to 

whether his underlying pathology was traumatic or degenerative in origin, he noted it was unusual 

for a patient to have a meniscus tear through ambulation, but with a sharp pain, audible pop, and 

swelling and discomfort that ensued afterwards, it was a typical meniscal tear presentation. 
5

Dr. Pena indicated that the diagnostic arthroscopy showed the appearance of the meniscus in the 

medial compartment to be of vertical origin, which was not consistent with degenerative etiology. 

He further noted that the very mild chondral wear on the medial compartment also indicates that it 

was not a longstanding degenerative condition. Dr. Pena opined that he understood that other 

examining physicians might consider it a rare occurrence that meniscus tear might occur through 

this mechanism of injury, but appellant’s clinical examination, his description of the symptoms, 

MRI scan findings, and intraarticular diagnostic operative findings were consistent with traumatic 

etiology. 

In a decision dated November 16, 2016, OWCP denied modification of the decision dated 

July 1, 2016. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA3 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 of FECA, that an injury was sustained in the performance of duty as alleged and that 

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

the employment injury. These are the essential elements of each and every compensation claim 

regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.4

To determine whether a federal employee has sustained a traumatic injury in the 

performance of duty, it first must be determined whether fact of injury has been established. 

There are two components involved in establishing fact of injury. First, the employee must submit 

sufficient evidence to establish that he actually experienced the employment incident at the time, 

place, and in the manner alleged. Second, the employee must submit medical evidence to 

establish that the employment incident caused a personal injury.5

Rationalized medical opinion evidence is generally required to establish causal 

relationship. The opinion of the physician must be based on a complete factual and medical 

background, 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.6

Section 8123(a) of FECA 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.7

 The implementing regulations 

state that, if a conflict exists between the medical opinion of the employee’s physician and the 

 3 Id. 

4 Gary J. Watling, 52 ECAB 357 (2001). 

5

 T.H., 59 ECAB 388 (2008). 

6 I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989). 

7

 5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008). 
6

medical opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall 

appoint a third physician to make an examination.8 When there exist opposing medical reports of 

virtually equal weight and rationale and the case is referred to an impartial medical specialist for 

the purpose of resolving the conflict, the opinion of such specialist, if sufficiently well rationalized 

and based upon a proper factual background, must be given special weight.9

ANALYSIS 

On October 4, 2014 appellant filed a traumatic injury claim alleging that, while delivering 

mail on that date, he felt a pop in his right knee. In a decision dated November 16, 2016, OWCP 

denied modification of the July 1, 2016 decision denying his claim finding that medical evidence 

did not demonstrate that he sustained the diagnosed injuries as a result of the work incident. 

The Board finds that the case is not in posture for a decision as there is a conflict in 

medical opinion between Dr. Barr, OWCP’s referral physician, and Dr. Pena, appellant’s treating 

physician, both of whom are Board-certified specialists in their respective fields, regarding 

whether appellant sustained a right knee condition as a result of his work incident on 

October 4, 2014. 

In his December 22, 2015 report, Dr. Barr diagnosed degenerative medial meniscal tear 

and degenerative joint disease, right knee. He opined that he did not find causation and noted that 

appellant simply took two steps, there was no twisting injury, and he was not on an uneven 

surface. Dr. Barr noted that the reported mechanism of injury would be unlikely to cause a 

meniscal tear. He advised that asymptomatic tears, particularly of the posterior horn of the medial 

meniscus, were common and degenerative tears could be found without any history of trauma. 

Dr. Barr further indicated that with regard to appellant’s right knee, there were signs of abnormal 

illness behavior on examination. He advised that appellant has reached maximum medical 

improvement and no further treatment was indicated. 

By contrast, a January 26, 2016 report from Dr. Pena reflected treatment for chronic right 

knee pain with mechanical episodic giving way symptoms and a diagnosis of tear of the posterior 

horn of the medial meniscus. He noted reviewing Dr. Barr’s report and noted that some parts of 

the report appeared to be inconsistent. Dr. Pena disagreed with Dr. Barr regarding his description 

of a degenerative meniscus tear, as the tear pattern on the November 25, 2014 imaging indicated 

that the meniscus tear was a vertical pattern in the posterior horn and irregular vertical tear, which 

was not typical of a degenerative knee. He noted that the appearance of the vertical tear suggested 

traumatic etiology. Dr. Pena diagnosed mild chondromalacia with degenerative joint changes with 

posterior horn tear of the medial meniscus, radial pattern by MRI scan and performed arthroscopic 

surgery on April 6, 2016. In other reports, as noted, he continued to indicate that appellant’s 

meniscal tear was traumatic and consistent with the October 4, 2014 work incident. 

The Board therefore finds that a conflict in medical opinion has been created regarding 

whether appellant’s right knee condition is causally related to the accepted work incident of 

October 4, 2014. 

 8

 20 C.F.R. § 10.321. 

9 V.G., 59 ECAB 635 (2008). 
7

Section 8123 of FECA provides that, if there is a disagreement between the physician 

making the examination for the United States and the employee’s physician, OWCP shall appoint 

a third physician who shall make an examination.10

The case will be remanded to OWCP to refer appellant, the medical record, and a 

statement of accepted facts to an appropriate specialist, to obtain an impartial opinion regarding 

whether the October 4, 2014 work injury caused or aggravated the diagnosed right knee 

conditions. Following this and any other development deemed necessary, OWCP shall issue a 

de novo decision in the case. 

CONCLUSION 

The Board finds that the case is not in posture for decision. 

ORDER 

IT IS HEREBY ORDERED THAT the November 16, 2016 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further 

action consistent with this decision. 

Issued: August 18, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 10 Supra note 7.