United States Department of Labor

Employees’ Compensation Appeals Board

_________________________________________

C.C., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

U.S. CUSTOMS & BORDER PROTECTION, 

Miami, FL, Employer

__________________________________________

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Docket No. 17-1841

Issued: December 6, 2018

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 29, 2017 appellant, through counsel, filed a timely appeal from a June 9, 2017

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 case.3

 

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.

3 The Board notes that following the June 9, 2017 decision, OWCP received additional evidence. However, the 

Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that 

was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board 

for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional 

evidence for the first time on appeal. Id.
2

ISSUE

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

bilateral elbow conditions causally related to the accepted factors of his federal employment.

FACTUAL HISTORY

On January 18, 2016 appellant, then a 64-year-old customs and border protection officer,

filed a traumatic injury claim (Form-CA-1) alleging that he injured his right knee in the 

performance of duty on December 23, 2015. He alleged that he had to repetitively move between 

sitting and standing, and due to the lack of a foot rest in the primary booths at the concourse, this 

resulted in repetitive twisting of his right knee from side to side. Appellant noted that he had three 

right knee ligament tears, which resulted in swelling in the right knee, and pain when turning and 

when seated in chairs without a foot rest or rail. He explained that he was forced to use a brace 

with hinges in order to prevent further damage to his knee. Appellant did not stop work. S.T., a 

supervisor, responded “yes” in response to whether appellant was injured in the performance of 

duty and also as to whether his knowledge of the facts about the injury agreed with statements of 

appellant and witnesses.

A December 30, 2015 right knee magnetic resonance imaging (MRI) scan read by

Dr. Michael Zistkin, a diagnostic radiologist, revealed a lateral meniscus tear, internal 

degenerative signal change involving the medial meniscus, suggestion of a focal tear involving the 

posterior horn centrally, tricompartmental chondral thinning and degenerative change, and a right 

knee joint effusion. There was also nonspecific edema and inflammation within the soft tissues 

surrounding the right knee.

In a January 18, 2016 report, Dr. Fernando Moya, a Board-certified orthopedic surgeon, 

noted that appellant was seen for pain in his right knee joint. He indicated that appellant injured 

his knee before Christmas and had problems with flexion, extension, and using his knee joint. 

Dr. Moya advised that he had reviewed the MRI scan and the findings which included that the 

right knee had a lateral meniscal tear, internal degeneration of the medial meniscus, and early signs 

of three compartment arthritis. Dr. Moya also noted that a January 18, 2016 x-ray of the right knee 

revealed the joint space to be open, a bone spur on the proximal superior aspect of the patella, no 

fracture or dislocation, and no focal bone lesion. He examined the right knee and noted that 

appellant had discomfort with patella tilting, gliding, and grinding. Dr. Moya found focal jointline tenderness, positive effusion, and mild restriction of flexion and extension with lateral joint 

line tenderness. He diagnosed internal derangement of the right knee, a tear of the lateral meniscus 

of the right knee, a tear of the medial meniscus of the right knee, and arthritis of the right knee he 

classified as mild and early.

In a May 26, 2016 report, Dr. Felipe Cubas, a Board-certified orthopedic surgeon, noted 

that appellant injured his right knee and both elbows at work due to repetitive motion. He 

diagnosed right meniscus tear and epicondylitis of the bilateral elbows. Dr. Cubas responded “no”

with regard to whether there were preexisting conditions, with regard to an exacerbation of a 

preexisting condition, and with regard to whether there were other relevant comorbidities. He 

recommended light duty with work restrictions including to limit repetitive motion of the elbow 

and limit activities with the right knee. 
3

In a separate report also dated May 26, 2016, Dr. Cubas noted that appellant was seen for 

follow up of joint pain in the right knee and explained that he was originally seen on 

March 7, 2016. He advised that the original onset was December 23, 2015. Dr. Cubas examined 

appellant and diagnosed medial epicondylitis of the right elbow, worsening, sprain of other 

specified parts of the right knee, subsequent encounter, stable and improved, and medial 

epicondylitis of the left elbow, worsening. His assessment was that appellant could return to duty 

with restrictions including no kneeling, squatting, jumping, running, or climbing ladders, limited 

repetitive motion with the right hand, no exercise of the right arm, no exercise of the right leg, and 

to wear a right knee splint.

In a letter dated June 15, 2016, OWCP informed appellant of the type of evidence needed 

to establish his claim and requested that he submit such evidence within 30 days. It also requested 

that appellant complete a questionnaire describing his injury, the immediate effects, history of any 

other injury, and physicians who were consulted with regarding his claim. OWCP also explained 

the difference between a traumatic injury and an occupational disease. 

Appellant provided a copy of an old traumatic injury claim from December 18, 1987. It 

described an injury to his right knee he suffered while working as a letter carrier.

Appellant provided a July 14, 2016 response. He explained that, on the date, he was injured 

when working at Miami International Airport, in Concourse D, using hand stamps to document 

each passenger’s entry into the country. Appellant noted that the booth he worked in had an 

elevated chair the height of the counter so that he could use the computer, passport scanner, 

biometric scanner, and camera. He explained that there were no foot rails in Concourse D as 

opposed to Concourse J, which was designed with foot rails to support officers as they were 

performing their duties. Appellant noted that his feet could not touch the floor while seated. His 

left foot dangled without support and his right foot was partially supported on a small drawer. The 

twisting to the right to reach the drawer was very uncomfortable. Appellant alleged that 

dismounting from the elevated chair, combined with the lack of a foot rail resulted in a ligament 

injury to the right knee. He noted that, on December 23, 2015, his right knee pain and swelling 

became so severe, that he went to see his physician, Dr. Cubas. Appellant also noted that it was 

the Christmas and holiday season and he was unaware of the nature of his injury until

January 18, 2016, when his orthopedic specialist notified him that workers’ compensation should 

have been applied rather than his health insurance.

Appellant described the immediate effects of his injury, which included pain and an 

inability to walk normally, as he walked with a limp. He also indicated that, when he arrived home 

the night of the injury, he observed gross swelling in the knee. Appellant advised that he first saw

Dr. Cubas on December 23, 2015. He noted that he had a prior history of right knee symptoms 

with the employing establishment in 1987. Appellant explained that he believed he had a traumatic 

injury. 

Appellant also provided witness statements from R.L. and A.P. R.L. noted that in the prior 

year, in November 2015, he asked appellant why he was limping, and appellant indicated that he 

had injured his right knee on the job. A.P. indicated that he had witnessed appellant limping at 

work and saw appellant’s swollen knee. Appellant informed him that he had twisted or snapped 

his knee at the end of their tour of duty in November 2015.
4

In a July 14, 2016, report, Dr. Cubas summarized his treatment of appellant. He explained 

that, on December 28, 2015, he saw appellant for right knee pain. Dr. Cubas related that appellant 

indicated that he suffered from an injury at work due to a lack of foot rest in the primary booths at 

Concourse D and that he was frequently standing and sitting. He noted that a right knee MRI scan 

had been ordered. Dr. Cubas instructed appellant to immobilize the knee and to take antiinflammatories. He reviewed the MRI scan which revealed: a lateral meniscal tear; degenerative 

joint disease (DJD); DJD involvement in medial meniscus; a focal tear involving the medial 

meniscus posterior horn; reactive edema; three compartmental chondral thinning; right knee joint 

effusion; edema; and inflammation within the soft tissues surrounding the right knee.

Dr. Cubas indicated that, on January 12, 2016, appellant was again seen for right knee pain 

and new complaints of right elbow pain that he attributed to repetitive motion of the right arm 

when he was at work stamping documents. He examined appellant’s right elbow and determined 

that it was very tender and swollen on the medial aspect and on the medial epicondyle. Dr. Cubas 

also examined the right knee and found it was tender on the lateral joint line and the entire knee 

was swollen. He recommended a referral to an orthopedic surgeon. Dr. Cubas continued to see 

and treat appellant on January 18, February 11 and 15, 2016. On these occasions appellant had 

continued right knee and right elbow pain. 

Dr. Cubas advised that, on March 7, 2016, appellant returned for a follow up. Although 

appellant’s elbow pain had improved, he still had knee pain. In another follow up on April 12, 

2016, Dr. Cubas noted that appellant was still experiencing right knee and elbow pain that he 

attributed to repetitive tasks at his job. He instructed him to use his opposite arm to stamp. In a 

May 26, 2016 follow-up visit, Dr. Cubas noted that appellant had right knee pain and bilateral 

elbow pain with the right worse than the left.

On June 20, 2016 Dr. Cubas advised that appellant returned for a recheck of his right knee 

and bilateral elbow pain. He noted that appellant was seeing Dr. Moya and had mild improvement 

of the right knee, but elbow pain was progressively worse. Dr. Cubas explained that appellant was 

instructed to return to work with light-duty similar restrictions as in the past, in addition to limit 

repetitive motions of the right arm and hand. He diagnosed: right knee meniscus tear; right elbow 

epicondylitis, medial; and left elbow epicondylitis, medial. 

By decision dated July 25, 2016, OWCP denied appellant’s claim, finding that the evidence

of record was insufficient to establish that the claimed injury and/or event(s) occurred as alleged.

It explained that there were discrepancies with regard to whether appellant actually injured his 

right knee on December 23, 2015 or developed right knee problems over time.

On August 5, 2016 counsel requested a telephonic hearing, which was held before an 

OWCP hearing representative on March 17, 2017. During the hearing, he argued that the claim 

should be treated as an occupational disease claim. Appellant explained his duties and noted that 

he was usually in Concourses D, R, and J. He discussed the passenger entry processing procedures

and noted that he sat in an elevated booth chair/stool greeting and processing passengers. 

Appellant explained that there were no foot rests on the Concourse D level, and that he had to use 

the chair’s foot rest to turn or swivel. He also noted that repeated stamping of passports and 

documents and turning between using the computer and addressing passengers caused his elbow 

problems and radiating pain in his fingers. Appellant indicated that he processed between 600 and 

900 passengers or more on a daily basis. Furthermore, his knee bothered him more than the elbow,

but the elbow and knee pain began at the same time. Counsel argued that Dr. Cubas’ July 2016 
5

report sufficiently addressed the development of appellant’s diagnosed right knee meniscus tear 

and left elbow epicondylitis. He explained that appellant attempted to self-treat himself and 

subsequently sought treatment when his condition did not improve.

In a March 17, 2017 report, Dr. Moya advised that appellant had reached maximum 

medical improvement (MMI) as of March 31, 2017.

In a March 31, 2017 report, Dr. Moya noted that appellant presented with knee pain and

evaluation of his right knee joint. Appellant related to him that he had a trauma at work on

December 23, 2015, when he twisted his right knee joint. Dr. Moya noted that appellant related 

that he had pain and discomfort to his right knee joint with swelling. He related that appellant 

received treatment with medication by mouth, bracing, and an exercise and strengthening program.

Dr. Moya advised that the right knee MRI scan from December 30, 2015 revealed findings that 

were consistent with a lateral meniscal tear and degeneration of the medial meniscus. He also 

related that appellant continued to have pain and discomfort and that he could not recall any prior 

traumas to his right knee joint before December 23, 2015. Dr. Moya noted that appellant indicated 

that he was active and was able to do activities without any limitations. He further noted that 

appellant felt that his knee still flared up at times and he still had pain. Dr. Moya determined that 

appellant did not have full strength or motion. He examined the right knee and found discomfort 

with patella tilting, gliding and grinding, and focal joint-line tenderness. Dr. Moya also found:

positive effusion; mild restriction of flexion and extension; equivocal McMurray test; positive 

bounce and hyperflexion test; instability; negative anterior drawer sign, negative Lachman’s test; 

no pivot shift or glide; no varus laxity in extension or in 30 degrees of flexion; no valgus laxity at 

full extension and knee flexed to 30 degrees; no posterior laxity; no “PCL” insufficiency; and 

negative active quad test. He provided findings for range of motion. 

Dr. Moya diagnosed a tear of the medial meniscus of the right knee, initial encounter and 

a tear of the lateral meniscus of the right knee, initial encounter. He opined that appellant had 

reached MMI and had five percent permanent impairment. Dr. Moya opined that the impairment 

was a direct result of the injuries that he sustained on December 23, 2015. He explained that prior 

to this injury, appellant was active, could not recall any prior traumas, and was able to do activities.

Dr. Moya opined that “[f]rom this injury [of December 23, 2015], appellant tore his meniscus. 

[Appellant] is still having pain and discomfort. He is wearing a brace. [Appellant] does not want 

to have surgery. The injuries that he has to his knee joint are a direct result of the accident of 

[December 23, 2015].” Dr. Moya noted that with regards to his work status, appellant was retired 

from work. However, he indicated that appellant “should be able to do desk work and activities 

of daily living. I am encouraging the patient to continue exercising and strengthen as tolerated.”

By decision dated June 9, 2017, OWCP’s hearing representative affirmed the July 25, 2016

decision, as modified. She found that appellant had established fact of injury as his account of his 

job duties supported that his claim should be considered occupational in nature. The hearing 

representative explained that appellant confirmed that his duties occurred over a period of time. 

She found that the claim remained denied as the medical evidence submitted did not offer a 

sufficient discussion explaining how appellant’s duties resulted in either a meniscal tear, 

degenerative condition, or bilateral epicondylitis. The hearing representative explained that 

appellant had not provided medical evidence from an examining physician explaining an injury,

condition, or diagnosis due to employment. 
6

LEGAL PRECEDENT 

A claimant seeking benefits under FECA4 has the burden of proof to establish the essential 

elements of his or her claim by the weight of the reliable, probative, and substantial evidence, 

including that an injury was sustained in the performance of duty as alleged, and that any specific 

condition or disability claimed is causally related to the employment injury.5

To establish that an injury was sustained in the performance of duty in an occupational 

disease claim, a claimant must submit: (1) medical evidence establishing the presence or existence 

of the disease or condition for which compensation is claimed; (2) a factual statement identifying 

employment factors alleged to have caused or contributed to the presence or occurrence of the 

disease or condition; and (3) medical evidence establishing that the diagnosed condition is causally 

related to the identified employment factors.6

Causal relationship is a medical question, which generally requires rationalized medical 

opinion evidence to resolve the issue.7 A physician’s opinion on whether there is causal 

relationship between the diagnosed condition and the implicated employment factors must be 

based on a complete factual and medical background.8 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.9

ANALYSIS

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

knee and bilateral elbow conditions are causally related to the accepted factors of his federal 

employment.

The relevant evidence submitted by appellant includes reports from Dr. Moya. In his 

January 18, 2016 report, Dr. Moya noted that appellant was seen for pain in his right knee joint

and indicated that it had occurred before Christmas. Dr. Moya reviewed MRI scan findings which 

revealed a lateral meniscal tear, internal degeneration of the medial meniscus, and early signs of 

three compartment arthritis. He also reviewed a January 18, 2016 x-ray of the right knee, which

revealed a bone spur on the proximal superior aspect of the patella, with no fracture or dislocation, 

and no focal bone lesion. Dr. Moya diagnosed: arthritis of the knee, mild and early; tear of the 

lateral meniscus on the right; tear of the medial meniscus on the right; and internal knee 

derangement on the right. In a March 17, 2017 report, he advised that appellant had reached MMI.

However, Dr. Moya did not offer an opinion regarding the cause of appellant’s condition. The 

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

 

4 Supra note 2.

5 20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

6 Victor J. Woodhams, 41 ECAB 345, 352 (1989).

7 See Robert G. Morris, 48 ECAB 238 (1996). 

8 Supra note 6.

9

Id.
7

employee’s condition is of no probative value on the issue of causal relationship.10 Thus, these 

reports by Dr. Moya lack probative value on the issue of causal relationship.

In his March 31, 2017 report, Dr. Moya diagnosed a tear of the medial meniscus of the 

right knee, right, initial encounter and a tear of the lateral meniscus of the right knee initial 

encounter. He opined that appellant reached MMI and had five percent permanent impairment. 

Dr. Moya opined that the impairment was a direct result of the injuries that he sustained on 

December 23, 2015. He explained that, prior to this injury, appellant was active, he could not 

recall any prior traumas, and was able to do activities. The Board notes that Dr. Moya appears to 

suggest that appellant had an injury on a specific day, as opposed to over a period of time as 

testified by appellant during his hearing. Furthermore, Dr. Moya did not describe exactly how 

appellant tore his meniscus on that date. The Board finds that he appeared to suggest that appellant 

did not have prior symptoms to support his conclusion. The Board has held that an opinion finding 

causal relationship because an employee is asymptomatic before an employment injury is 

insufficient, without supporting medical rationale, to establish causal relationship.11 Additionally,

Dr. Moya advised that appellant reported that his work activities aggravated his knee. However, 

he did not provide his own opinion on causal relationship.12 As Dr. Moya did not provide 

sufficient rationale explaining how and why appellant’s activities at work on December 23, 2015 

caused or aggravated a particular diagnosed condition these additional reports lack probative 

value.

13

 

In a May 26, 2016 report, Dr. Cubas noted that appellant injured his right knee and both 

elbows at work. He diagnosed right meniscus tear and epicondylitis of the bilateral elbows. 

Dr. Cubas responded “no” with regard to whether there were preexisting conditions, with regard 

to an exacerbation of a preexisting condition and with regard to whether there were other relevant 

comorbidities. In a separate report also dated May 26, 2016, Dr. Cubas noted that he examined 

appellant and diagnosed: medial epicondylitis of the right elbow; sprain of other specified parts 

of the right knee; subsequent encounter, stable and improved; and medial epicondylitis of the left 

elbow, worsening. He repeated his light-duty restrictions. However, Dr. Cubas did not offer an 

opinion on causal relationship. Rationalized medical opinion evidence is medical evidence which 

includes a physician’s rationalized opinion on the issue of whether there is 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.14 The Board thus finds that these reports of

Dr. Cubas lack probative value on the issue of causal relationship.

 

10 See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

11 See Thomas Petrylak, 39 ECAB 276, 281 (1987). 

12 See A.M., Docket No. 10-205 (issued October 5, 2010) (a physician’s opinion must be independent from a 

claimant’s belief regarding causal relationship).

13 See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not fortified 

by medical rationale is of diminished probative value).

14 D.E., 58 ECAB 448 (2007); G.G., 58 ECAB 389 (2007); L.D., 58 ECAB 344 (2007); A.D., 58 ECAB 149 (2006).
8

In subsequent reports, Dr. Cubas diagnosed: right knee meniscus tear; right elbow 

epicondylitis, medial; and left elbow epicondylitis, medial. However, while he noted that appellant 

attributed his condition to his activities at work, he again did not offer an opinion that the diagnosed 

conditions were causally related to his employment activities.15

The Board has held that the mere fact that a condition manifests itself during a period of 

employment does not raise an inference that there is causal relationship between the two.16 Neither 

the fact that the condition became apparent during a period of employment nor the belief that the 

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

causal relationship.17 

As the evidence of record does not contain rationalized medical evidence explaining how 

and why appellant’s employment duties caused or aggravated a medical condition involving his

right knee and or elbows, appellant has not met his burden of proof to establish an injury causally 

related to the accepted factors of his federal employment.

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 has not met his burden of proof to establish that his right 

knee and bilateral elbow conditions are causally related to the accepted factors of his federal 

employment.

 

15 See supra note 10.

16 See Joe T. Williams, 44 ECAB 518, 521 (1993). 

17 Id.
9

ORDER

IT IS HEREBY ORDERED THAT the June 9, 2017 decision of the Office of Workers’

Compensation Programs is affirmed. 

Issued: December 6, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board