United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.M., Appellant

and

DEPARTMENT OF THE NAVY, NAVAL 

WEAPONS CENTER, China Lake, CA, 

Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 16-1655

Issued: April 4, 2018

Appearances: Case Submitted on the Record

Sally F. LaMacchia, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 15, 2016 appellant, through counsel, filed a timely appeal from a February 18, 

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 her burden of proof to establish a consequential left 

knee condition causally related to her December 21, 2005 work injury.

 

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

This case has previously been before the Board. The facts and circumstances as outlined 

in the Board’s prior decision are incorporated herein by reference.3 The relevant facts are as 

follows. 

On December 21, 2005 appellant, then a 55-year-old information technology specialist, 

tripped and fell in the performance of duty.4 In August 2006, OWCP initially accepted her 

traumatic injury claim (Form CA-1) for contusions of the right knee and right wrist/hand.5 It 

subsequently expanded the acceptance of the claim to include right carpal tunnel syndrome, 

enthesopathy of the right wrist and carpus, right knee lateral meniscus tear, and psychogenic 

pain. In May 2007, appellant underwent the first of several OWCP-authorized right knee 

surgical procedures.6 In July 2008, she underwent a right carpal tunnel release. Appellant

received wage-loss compensation beginning July 24, 2008. OWCP placed her on the periodic 

compensation rolls effective August 31, 2008. In June 2009, OWCP further expanded the 

acceptance of the claim to include aggravation of right knee degenerative joint disease as an 

accepted condition. It also authorized a right total knee arthroplasty.7

In a July 13, 2009 letter, counsel requested that OWCP expand the acceptance of the 

claim to include left knee degenerative joint disease (osteoarthritis) as an accepted condition.

She claimed that appellant also injured her left knee when she fell at work on 

December 21, 2005. 

By letter dated August 4, 2009, OWCP advised counsel that the record was insufficient to 

support further expansion of the acceptance of the claim to include a left knee consequential 

injury. It afforded appellant 30 days to submit additional medical evidence.

In an August 25, 2009 letter, counsel alleged that OWCP did not clearly identify the 

perceived deficiencies in the current medical record regarding appellant’s left knee condition. It

suggested that OWCP either decide the case on the current record or refer appellant for a second 

opinion evaluation. 

In a September 14, 2009 report, OWCP’s district medical adviser (DMA) advised that the 

medical evidence submitted did not establish that there was a consequential left knee injury. 

 

3 Docket No. 15-1724 (issued February 16, 2016) (the Board affirmed OWCP’s finding regarding reimbursement 

of medical-related travel expenses). 

4 Appellant was walking down the stairs when her left foot got caught on a garden hose that was on the stairs. 

She stumbled and fell to the sidewalk. 

5 Appellant also has an accepted claim (OWCP File No. xxxxxx096) for nose laceration and soft tissue injury to 

both knees and right hand, and cervical strain due to a work-related fall on January 6, 1989. OWCP combined the 

two traumatic injury claims and designated File No. xxxxxx350 as the master file. 

6 On May 31, 2007 Dr. Mohamed Z. Lameer, an orthopedic surgeon, performed an arthroscopic right knee 

synovectomy, and partial medial and lateral meniscectomies. 

7 Dr. Lameer performed the procedure on August 12, 2009.
3

In 2010, appellant changed her treating physician to Dr. Young N. Paik, an orthopedic 

surgeon. In a May 18, 2010 report, Dr. Paik diagnosed left knee severe degenerative joint 

disease and requested authorization for total left knee arthroplasty.

OWCP referred appellant to Dr. Ghol Bahman Ha’Eri, a Board-certified orthopedic 

surgeon, for a second opinion evaluation to determine whether her left knee condition was 

causally related to the accepted December 21, 2005 work injury. In an August 26, 2010 report,

Dr. Ha’Eri noted the history of injury, his review of the medical records and statement of 

accepted facts (SOAF), and presented examination findings. He diagnosed left knee medial 

compartment degenerative joint disease and a degenerative tear of medial meniscus. Dr. Ha’Eri 

opined that those conditions were not medically connected to the work injury as they were 

degenerative in nature. He indicated that appellant’s degenerative joint disease of the left knee 

would gradually worsen and eventually require left knee replacement surgery.

Appellant continued to receive treatment for her accepted right knee condition. She 

subsequently came under the care of Dr. Paul Burton, an orthopedic surgeon, and

Dr. Jonathan K. Lee, a physiatrist. On May 23, 2012 appellant underwent a right knee revision 

arthroplasty.

Appellant and her counsel continued to request coverage for the left knee condition. 

In July 2013, OWCP initiated another second opinion referral to Dr. Ha’Eri to obtain an 

updated opinion on whether appellant’s left knee condition was related to the December 21, 2005 

work injury. An updated SOAF, which included the history of the 1989 work injury,

8

and 

questions were provided. In a September 16, 2013 report, Dr. Ha’Eri noted the history of injury

and his review of the SOAF and the medical record. He presented examination findings and 

diagnosed left knee contusion and possible internal derangement. Dr. Ha’Eri indicated that he 

would address causation of the left knee condition pending new x-ray and magnetic resonance 

imaging (MRI) scans.

In a September 19, 2013 addendum report, Dr. Ha’Eri reviewed a recent September 2013 

x-ray of appellant’s left knee, which was reported to show moderate osteoarthritis especially 

involving the medial joint compartment. He diagnosed a resolved left knee contusion and a 

nonindustrial left knee moderate osteoarthritis. Dr. Ha’Eri indicated that the left knee contusion 

had resolved. He indicated the left knee osteoarthritis was of moderate degree and was 

degenerative in nature and not medically connected to the December 21, 2005 work injury. 

Dr. Ha’Eri further indicated that aggravation was not indicated in this case.

In a March 17, 2014 report, Dr. Shahin Sadik, a Board-certified anesthesiologist, reported 

that appellant had paperwork to have her back and left knee conditions included in her claim. He 

indicated that the right knee injury, which required surgery, led to lengthening of the right leg 

that in turn, caused stress on appellant’s spine and left knee. Dr. Sadik indicated that prior to the 

December 21, 2005 work injury, appellant never had left knee or spine problems. He noted that 

both knees were painful on examination.

 

8 See supra note 5.
4

In a May 27, 2014 report, Dr. Philip H. Conwisar, a Board-certified orthopedic surgeon, 

noted the history of appellant’s work injuries and her complaints of left knee and low back pain. 

He presented examination findings and, in relevant part, diagnosed left knee internal 

derangement and lumbar spondylosis. Dr. Conwisar noted that appellant’s right leg measured 

longer than her left leg. He also indicated that she walked with a significant and severe limp for 

several years due to the multiple problems with the right knee, which was status post revision, 

right total knee arthroplasty, and complex regional pain syndrome, right lower extremity. 

Dr. Conwisar opined, with reasonable medical probability, that the altered gait mechanics, and 

the altered leg length of the right leg had contributed to injury involving the left knee and the 

lumbar spine, aggravating the underlying spondylosis of the lumbar spine and caused it to 

become symptomatic, as well as contributing to and causing left knee pain. He opined that 

treatment for the lumbar spine and left knee was indicated as a consequence of the right knee 

injury. Dr. Conwisar also reviewed Dr. Ha’Eri’s reports and opined that the degenerative joint 

disease of the left knee had been aggravated by the altered gait mechanics and the prolonged gait 

abnormalities related to the 2005 right knee injury. He explained that this caused increased 

pressure on the left knee, which resulted in an aggravation of the underlying condition.

OWCP subsequently determined that a conflict in medical opinion existed between

Dr. Ha’Eri and Dr. Conwisar regarding the cause of appellant’s left knee condition. It scheduled 

an impartial medical examination with Dr. Benjamin Broukhim, a Board-certified orthopedic 

surgeon, to resolve the conflict regarding whether appellant’s left knee osteoarthritis/

degenerative joint disease was causally related to the 2005 work injury.

In a January 6, 2015 report, Dr. Broukhim noted appellant’s work injuries of 1989 and 

2005, his review of the medical records, and presented examination findings. In relevant part, he 

opined that appellant had multilevel degenerative disc disease of the lumbar spine which became 

aggravated and symptomatic as a result of antalgic gait of the right lower extremity as a result of 

the total knee replacement stemming from the December 21, 2005 work injury. Dr. Broukhim 

also opined that appellant had a degenerative tear of the medial meniscus of the left knee with 

degenerative changes at the medial joint line of the left knee. He determined that these 

conditions became symptomatic and aggravated as a result of the antalgic limp resulting from the 

industrial injury of December 21, 2005 with the need for multiple surgeries to her right knee. 

Dr. Broukhim opined that appellant’s lower back and left knee conditions represented an 

aggravation preexisting degenerative changes as a result of the December 21, 2005 work injury, 

for which she required multiple surgeries and revision of the total knee replacement. He 

concluded that the injury and treatment caused significant limb and leg length discrepancy as 

well as reflex sympathetic dystrophy in her right lower extremity. Dr. Broukhim opined that 

appellant required further medical treatment to her left knee and lumbar spine. He also opined 

that appellant was capable of working eight hours per day in a sedentary capacity with 

restrictions as a result of her accepted conditions from the December 21, 2005 work injury.

OWCP subsequently learned that Dr. Broukhim and Dr. Ha’Eri were part of the same 

medical practice. Because of their prior relationship, Dr. Broukhim was disqualified from 

serving as an impartial medical examiner with respect to the conflict between Dr. Ha’Eri and

Dr. Conwisar. OWCP determined that Dr. Broukhim’s report would be treated as a second 

opinion. It also found that the initial conflict remained unresolved. 
5

In a letter dated May 6, 2015, OWCP informed counsel that a procedural error had 

occurred when the impartial medical examination was scheduled with Dr. Broukhim and 

indicated that appellant would be referred for a new impartial examination. It additionally noted 

that Dr. Broukhim’s opinion regarding appellant’s work capacity created an additional conflict in 

medical opinion with Dr. Conwisar and Dr. Shahin A. Sadik, who opined in his March 22, 2015 

report that appellant was unable to return to any type of meaningful work.9

OWCP referred appellant, along with the medical record, a list of questions, and a SOAF, 

to Dr. John D. Kaufman, a Board-certified orthopedic surgeon, for a new impartial medical 

examination to resolve the conflict in medical opinion. In a November 19, 2015 report,

Dr. Kaufman noted appellant’s complaints, the history of the December 21, 2005 work injury,

and his review of the medical reports. He presented examination findings and diagnosed status 

post right total knee arthroplasty in satisfactory position, left knee osteoarthritis primarily medial 

compartment, and lumbar spine degenerative disc disease. Dr. Kaufman opined that there was 

no connection between appellant’s left knee and low back conditions and the December 21, 2005 

work injury. He indicated that evidence based studies did not show any connection between a 

new problem causing a pathological condition in the opposite knee or causing low back 

degenerative disc disease or back pain. Dr. Kaufman explained that appellant’s left knee 

osteoarthritis was degenerative in nature and was not caused by any extra stress because of the 

problems with her right knee. He also stated that there was no evidence to show a relationship 

between altered gait due to problems of one knee producing degenerative changes or pain in the 

other knee. Dr. Kaufman indicated that appellant’s lumbar spine degenerative disc disease was 

not caused by the work injury or by abnormal gait. Medical references were cited in support of 

his opinion on causation. 

By decision dated February 18, 2016, OWCP denied appellant’s request to expand the 

acceptance of the claim to include additional left knee diagnoses. It found the special weight of 

the medical evidence, as represented by Dr. Kaufman’s impartial medical opinion, established 

that the left knee conditions were unrelated to the accepted December 21, 2005 work injury.

LEGAL PRECEDENT

When an employee claims that a condition not accepted or approved by OWCP was due 

to an employment injury, he or she bears the burden of proof to establish that the condition is 

causally related to the employment injury.10

 

9 Dr. Sadik is a Board-certified anesthesiologist who was treating appellant for pain in her low back and bilateral 

knees. Dr. Conwisar referred appellant’s disability status to Dr. Sadik. The issue of continuing disability is not 

presently before the Board. 

10 Jaja K. Asaramo, 55 ECAB 200, 204 (2004). Causal relationship is a medical question, which generally 

requires rationalized medical opinion evidence to resolve the issue. See Robert G. Morris, 48 ECAB 238 (1996). A 

physician’s opinion on whether there is a causal relationship between the diagnosed condition and the implicated 

employment factors must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB 

345, 352 (1989). Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of 

medical certainty, and must be supported by medical rationale, explaining the nature of the relationship between the 

diagnosed condition and appellant’s specific employment factors. Id.
6

When an injury arises in the course of employment, every natural consequence that flows 

from that injury likewise arises out of the employment, unless it is the result of an independent 

intervening cause attributable to a claimant’s own intentional misconduct.11 Thus, a subsequent 

injury, be it 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.12

FECA provides that if there is disagreement between an OWCP-designated physician and 

the employee’s physician, OWCP shall appoint a third physician who shall make an 

examination.13 For a conflict to arise the opposing physicians’ viewpoints must be of “virtually 

equal weight and rationale.”

14

 Where OWCP has referred the case to an impartial medical 

examiner to resolve a conflict in the medical evidence, the opinion of such a specialist, if 

sufficiently well-reasoned and based upon a proper factual background, must be given special 

weight.15

ANALYSIS

On December 21, 2005 appellant tripped and fell at work. OWCP accepted her traumatic 

injury claim for contusions of the right knee and right wrist/hand, right carpal tunnel syndrome, 

enthesopathy of the right wrist and carpus, right knee lateral meniscus tear, psychogenic pain, 

and aggravation of right knee degenerative joint. It also authorized multiple surgeries involving 

the right upper and lower extremities. Appellant later claimed that she developed a 

consequential left knee condition, which OWCP declined to accept as causally related to the 

December 21, 2005 employment injury.

In an August 26, 2010 report, Dr. Ha’Eri, an OWCP referral physician, reviewed 

appellant’s history of a work injury in 1989 and December 21, 2005. He diagnosed left knee 

medial compartment degenerative joint disease and degenerative tear of medial meniscus. 

Dr. Ha’Eri attributed the left knee conditions to a nonindustrial basis as they were of a 

degenerative nature. He subsequently reexamined appellant on September 16, 2003 and 

provided reports dated September 16 and 19, 2013. Dr. Ha’Eri diagnosed left knee moderate 

osteoarthritis, which he opined was degenerative and nonindustrial. He also diagnosed a left 

knee contusion which had resolved, based on his review of the medical records. 

OWCP properly determined that Dr. Conwisar provided in his May 27, 2014 report a 

well-rationalized opinion, based on appellant’s examination and medical history, to support his 

conclusion that the condition of degenerative joint disease of the left knee had been aggravated 

by altered gait mechanics and prolonged gait abnormalities related to the right knee injury, which 

caused increased pressure on the left knee and aggravated the underlying condition. Pursuant to 

 

11 Mary Poller, 55 ECAB 483, 487 (2004); 1 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation 

Law 10-1 (2006).

12 Susanne W. Underwood (Randall L. Underwood), 53 ECAB 139, 141 n.7 (2001).

13 5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321; Shirley L. Steib, 46 ECAB 309, 317 (1994).

14 Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

15 Gary R. Sieber, 46 ECAB 215, 225 (1994).
7

section 8123(a) of FECA, it properly determined that a conflict existed between Dr. Ha’Eri and

Dr. Conwisar regarding whether the left knee osteoarthritis/degenerative joint disease was 

medically connected to the 2005 work injury by aggravation. It referred appellant to

Dr. Broukhim for an impartial medical examination. However, at the time of OWCP’s referral 

of appellant to Dr. Broukhim, the evidence of record revealed that Dr. Broukhim and Dr. Ha’Eri 

were medical associates and worked out of the same office.16 OWCP thus properly found

Dr. Broukhim’s opinion was not that of an impartial medical examiner, but rather a second 

opinion physician.17 Pursuant to 5 U.S.C. § 8123(a) and its procedures, the Board finds that 

OWCP properly referred appellant to Dr. Kaufman for a new referee examination to resolve the 

ongoing conflict in medical opinion evidence between Dr. Ha’Eri and Dr. Conwisar.18

Dr. Kaufman was provided copies of the complete case file, the SOAF, and he personally 

examined appellant. In his November 19, 2015 report, Dr. Kaufman opined that appellant’s left 

knee condition was degenerative in nature and that it was not caused by any extra stress because 

of the problems with the right knee. He also noted that there was no evidence which showed a 

relationship between altered gait due to problems of one knee producing degenerative change or 

pain in the other knee. Dr. Kaufman further opined that appellant’s lumbar spine degenerative 

disc disease was degenerative in nature and not caused by the work injury or by abnormal gait. 

He cited medical references in support of his opinion on causation. 

The Board finds that Dr. Kaufman’s report represents the special weight of the medical 

evidence with regard to the issue of whether appellant’s claim should be expanded to include a 

consequential left knee condition. The Board finds that he had full knowledge of the relevant 

facts and evaluated the course of her condition. Dr. Kaufman is a specialist in the appropriate 

field. His opinion is based on proper factual and medical history and his report contained a 

detailed summary of this history. Dr. Kaufman addressed the medical records and offered his 

own examination findings to reach a reasoned conclusion regarding appellant’s left knee 

condition. As the impartial medical examiner, Dr. Kaufman’s opinion regarding whether 

appellant’s left knee condition is causally related to the employment injury is entitled to special 

weight.19 

On appeal counsel noted the procedural difficulties and many years spent getting OWCP 

to issue a decision on her request for expansion. For the reasons set forth above, the Board finds 

that OWCP properly declared a conflict in medical opinion and that Dr. Kaufman’s opinion 

establishes that appellant’s left knee condition is not causally related to the December 21, 2015 

employment injury.

 

16 See Raymond E. Heathcock, 32 ECAB 2004 (1981) (holding that OWCP could not use the report of one 

physician to resolve a conflict in medical evidence because he was an associate of another physician previously 

connected with the case, and therefore, was not completely independent).

17 See C.D., Docket No. 15-0446 (issued April 27, 2015).

18 Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 

2.810(11)(e) (September 2010); see also William C. Iadipaolo, 39 ECAB 530 (1988).

19 Supra note 15.
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 and 

20 C.F.R. §§ 10.605 through 10.607.

CONCLUSION

The Board finds that appellant has not met her burden of proof to establish a 

consequential left knee condition causally related to her December 21, 2005 work injury. 

ORDER

IT IS HEREBY ORDERED THAT the February 18, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: April 4, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board