United States Department of Labor

Employees’ Compensation Appeals Board

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D.B., Appellant

and

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, Oxford, WI, Employer

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Docket No. 18-0219

Issued: August 17, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

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 November 7, 2017 appellant filed a timely appeal from a June 28, 2017 merit decision 

of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’

Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over 

the merits of this case.

ISSUE

The issue is whether OWCP abused its discretion when it denied authorization of 

appellant’s left knee surgery.

FACTUAL HISTORY

On January 20, 2015 appellant, then a 33-year-old correctional officer, filed a traumatic 

injury claim (Form CA-1) alleging that on January 15, 2015 he twisted his left foot, ankle, calf, 

and knee when he slipped off the concrete pavement while walking in the snow near a fence at 

 

1 5 U.S.C. § 8101 et seq. 
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work. He stopped work on the date of injury and returned to limited-duty work later on 

January 21, 2015. 

On March 6, 2015 OWCP accepted the claim for tear of the medial meniscus of the left 

knee. It authorized left knee arthroscopy with partial lateral meniscectomy at the anterior horn

and partial synovectomy and chondroplasty of medial femoral condyle performed on March 11, 

2015 by Dr. James J. Foskett, appellant’s attending Board-certified orthopedic surgeon. On 

March 25, 2015 appellant returned to full-duty work.

In an April 23, 2015 medical report, Dr. Foskett noted that appellant was status post the 

authorized March 11, 2015 surgery and still had debilitating left knee pain. He also noted 

appellant’s medical history, which included acute left knee pain, left knee anterior cruciate 

ligament (ACL) reconstruction performed in 2004, repair of a failed left knee ACL, meniscus, 

ligament repair, removal of hardware, etc., and removal of an abscess on the left knee in 2014. 

Dr. Foskett provided a review of systems and discussed examination findings. He provided an 

impression of persistent and debilitating left knee pain with post-traumatic arthritic changes. 

Dr. Foskett also provided an impression of history of prior trauma and ACL reconstruction. He 

noted that appellant reinjured his knee on January 15, 2015 and that, prior to this injury, he had 

been doing satisfactorily. Appellant’s pain had been significantly accelerated by this injury and 

he had persistent debilitating pain despite arthroscopy injection and physical therapy. Dr. Foskett 

advised that, although appellant was relatively young for a total knee replacement, this was likely 

the only salvage procedure which would appreciably relieve his pain. He related that appellant 

was not a good candidate for unicompartmental knee arthroplasty due to his weight, age, and 

having an incompetent ACL. On May 19, 2015 Dr. Foskett requested authorization to perform a 

total left knee arthroplasty. 

On May 29, 2015 OWCP referred the case to an OWCP medical adviser, Dr. Michael 

Hellman, an orthopedic surgeon, for an opinion with respect to the requested surgery. 

On June 10, 2015 Dr. Foskett performed a total left knee arthroplasty and an open lateral 

retinacular release of the left knee for patellofemoral maltracking and dislocation. The 

preoperative diagnoses were left knee severe osteoarthritis and cystic mass on the left anterior 

knee. The postoperative diagnoses were left knee severe osteoarthritis and cystic subfascial mass 

on the left knee, rule out sterile abscess, inclusion with foreign body reaction versus infection.

In a note dated June 11, 2015, Dr. Hellman reviewed the relevant medical evidence, which 

indicated that appellant had preexisting post-traumatic arthritis of the left knee. He concluded that 

surgery should not be authorized. Dr. Hellman explained that appellant’s accepted employmentrelated injury was a ground level low-energy twist of the left knee and that this type of injury 

would not cause any permanent aggravation of his preexisting condition. He reasoned that this 

type of injury was a temporary aggravation of his post-traumatic arthritis. Dr. Hellman further 

reasoned that appellant’s preexisting condition was already severe before the accepted injury 

occurred.

OWCP, by letter dated August 12, 2015, referred appellant, along with a statement of 

accepted facts (SOAF), the medical record, and list of questions, to Dr. Mysore S. Shivaram, a 

Board-certified orthopedic surgeon, for a second opinion to determine whether appellant’s
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June 10, 2015 left knee surgery was medically necessary to treat his January 15, 2015 employment 

injury.

By decision dated August 27, 2015, OWCP denied authorization for the June 8, 2015 left 

knee surgery based on Dr. Hellman’s opinion. It noted that appellant had been scheduled for a 

second opinion evaluation to determine whether the surgery should be authorized. 

Appellant was unable to attend the scheduled appointment with Dr. Shivaram. OWCP 

rescheduled the examination for October 28, 2015. In an October 28, 2015 report, Dr. Shivaram 

reviewed the SOAF and the medical record and reported findings on physical examination. He

diagnosed severe degenerative arthritis of the left knee and status post left total knee replacement 

followed by removal of the total knee prosthesis and subsequent surgical procedure with antibiotic 

spacer in the left knee. Dr. Shivaram noted that x-rays and a magnetic resonance imaging (MRI) 

scan performed following appellant’s January 15, 2015 employment injury revealed the presence 

of a moderate degree of degenerative arthritis of the left knee. The MRI scan revealed no evidence 

of a medial meniscal tear. The lateral meniscus had only an anterior horn of the lateral meniscus 

and there was a questionable tear in the anterior horn of the lateral meniscus. Arthroscopic surgery 

of the left knee revealed no evidence of a medial meniscus tear. There were peripheral 

degenerative changes as shown on the arthroscopic pictures of the knee. The ACL was still intact 

even though it was somewhat lax as indicated in the description of an operative report. Based on 

the above findings, Dr. Shivaram found that the nature of the January 15, 2015 left knee injury 

was not exactly clear. He advised that appellant had a severe injury to the knee in the past and 

also had ACL reconstruction, lateral ligament reconstruction, and patellar ligament repair prior to 

the January 15, 2015 employment injury. Dr. Shivaram maintained that there was no evidence to 

indicate that the accepted work injury aggravated or accelerated appellant’s preexisting severe left 

knee degenerative arthritis. He further maintained that, based on the above discussion, no further 

medical treatment was required for the January 15, 2015 work-related injury. Dr. Shivaram 

advised that no further improvement could be expected since appellant had a left total left knee 

replacement and was awaiting revision of this surgical procedure. He opined that the accepted 

injury did not cause any permanent aggravation or acceleration of appellant’s osteoarthritis of the 

left knee and further opined that OWCP should not approve appellant’s total left knee replacement 

surgery since he had significant degenerative arthritis of the knee prior to the January 15, 2015 

employment injury. 

By decision dated March 31, 2016, OWCP denied authorization for further left knee 

surgery based on the opinions of Drs. Hellman and Shivaram. 

On April 19, 2016 appellant requested an oral hearing before an OWCP hearing 

representative. On December 7, 2016 he requested that his request for an oral hearing be converted 

into a request for a review of the written record by an OWCP hearing representative due to a 

scheduling conflict.

Appellant submitted a December 17, 2016 report from Dr. Foskett, who reviewed

Dr. Shivaram’s October 28, 2015 findings and disagreed with his opinion that the June 10, 2015

left knee surgery should not be authorized. Dr. Foskett noted that appellant’s knee condition was 

complex in nature and nuanced. Prior to the January 15, 2015 work-related injury, appellant

suffered an ACL injury, which was successfully treated by ACL reconstruction. He also had 
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preexisting arthritis, which was significant in his left knee prior to the accepted work injury. 

Dr. Foskett indicated that this was documented at the subsequent arthroscopy he performed and at 

the prior repeat ligamentous reconstruction he performed before the employment injury. He

related that Dr. Shivaram’s evaluation did not consider that given the nature of appellant’s 

previously injured and compromised left knee, an additional lateral meniscal tear could further 

significantly accelerate arthritic degeneration of such a knee. Dr. Foskett opined, with a high 

degree of medical certainty and assurance, that appellant’s January 15, 2015 work injury likely 

contributed to significantly and accelerated his underlying arthritic left knee condition. He 

maintained that the accepted work injury then partially and significantly contributed to his need to 

undergo the 2015 left total knee arthroplasty. Dr. Foskett concluded that, based on the abovereviewed evaluations and findings, it was clear that the accepted employment injury significantly 

contributed to appellant’s need to undergo subsequent total knee arthroplasty.

By decision dated January 27, 2017, an OWCP hearing representative set aside the 

March 31, 2016 decision and remanded the case for further development of the medical evidence. 

She found that, while Dr. Foskett’s December 17, 2016 report was insufficiently rationalized, it 

presented prima facie evidence of a causal relationship between the need to undergo left knee 

surgery and the accepted January 15, 2015 employment injury. On remand the hearing 

representative directed OWCP to obtain the medical records referenced by Dr. Foskett in his 

report. Upon receipt of these medical records, OWCP was directed to prepare an updated SOAF 

and provide the records to Dr. Shivaram for review and to obtain a supplemental report concerning 

whether appellant had a material worsening of a preexisting condition causally related to the 

January 15, 2015 employment injury and, if so, whether the left total knee replacement performed 

on June 10, 2015 by Dr. Foskett was appropriate medical treatment and medically warranted for 

the accepted work injury.

On remand Dr. Foskett submitted his reports and diagnostic test reports performed on his 

behalf dated January 13, 2010 through August 11, 2015, which addressed appellant’s left knee 

conditions, including a large lateral meniscus tear, instability, an ACL tear, and a cystic mass. 

These records also addressed surgeries appellant underwent to treat these conditions and his work 

capacity. 

OWCP, by letter dated April 20, 2017, requested that Dr. Shivaram review the 

accompanying additional reports from Dr. Foskett, reexamine appellant, and provide an opinion 

as to whether he had a material worsening of his preexisting left knee condition due to the 

January 15, 2015 employment injury and whether the total left knee replacement surgery was 

warranted.

In a report dated May 31, 2017, Dr. Shivaram reviewed the SOAF and medical records that 

accompanied OWCP’s April 20, 2017 letter. He noted that, unfortunately, appellant had a severe 

left knee injury as early as 2004. Appellant also had chronic instability of the knee and early 

arthritic changes were seen as early as 2010. He underwent reconstruction of the lateral ligaments 

and revision of the ACL due to chronic instability of the knee. Dr. Shivaram indicated that, with 

long-standing instability of the knee, abnormal joint mechanics would lead to degenerative 

changes of the knee. He further indicated that appellant was seen on several occasions for 

continued knee pain over the course of years and had repeat arthroscopic evaluation of the knee 

for instability and continued knee pain. Dr. Shivaram related that the January 15, 2015 
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employment injury was not very significant based on the presence of mild effusion in the knee and 

no significant changes on a left knee MRI scan and subsequent arthroscopic evaluation of the knee. 

However, he related that subsequent arthroscopy in 2015 revealed significant degenerative 

changes involving the medial compartment and lateral and patellofemoral joint. Dr. Shivaram 

related that appellant was frustrated with his long-standing left knee pain and problems and that a 

total knee replacement was recommended since he had end-stage arthritis. He maintained that,

based on all these findings, his opinion remained that the accepted January 15, 2015 work injury 

did not cause any permanent aggravation or acceleration of appellant’s left knee osteoarthritis. 

Dr. Shivaram related that, as indicated above, appellant had severe degenerative arthritis of the left 

knee at the time of the accepted injury. He reiterated his prior opinion that the left total knee 

replacement should not be approved by OWCP since appellant had significant degenerative 

arthritis of the knee prior to the January 15, 2015 employment injury. Dr. Shivaram noted that, as 

indicated in the medical records, he had ongoing left knee problems with significant pain for 

several years, which ultimately led to further surgical procedure. He indicated that, following the 

left total knee replacement, revision of the left total knee replacement was performed for an 

infected left total knee replacement. Dr. Shivaram reported that appellant was quite satisfied with 

his recovery following the surgical procedure. He also reported that his left knee was stable for 

examination. An examination revealed a well-healed scar and the knee was not warm to touch. 

There was 1+ effusion in the joint and 0 to 110 degrees of range of motion. Alignment of the left 

leg and left knee were satisfactory. Dr. Shivaram related that, at present, appellant advised that he 

could walk for long distances and did not require the use of an assistive device for ambulation. He 

maintained that overall appellant appeared to have a good result following revision arthroplasty of 

the left knee. Appellant had no pain in the left knee. Dr. Shivaram advised that appellant 

experienced left knee pain with constant movement and weather changes. In addition, kneeling, 

excessive climbing, running, etc. aggravated his left knee pain. Ice and rest would resolve 

appellant’s symptoms.

By decision dated June 28, 2017, OWCP again denied authorization for appellant’s left 

knee surgery. Based on Dr. Shivaram’s May 31, 2017 opinion, it found that the June 10, 2015 

total left knee replacement surgery was not necessitated by the accepted January 15, 2015 work

injury.

LEGAL PRECEDENT

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

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

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

the degree or the period of disability, or aid in lessening the amount of the monthly compensation.2 

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

has the burden of proof to establish that the expenditure is incurred for treatment of the effects of 

an employment-related injury or condition.3

 

2 5 U.S.C. § 8103; see L.D., 59 ECAB 648 (2008).

3 Kennett O. Collins, Jr., 55 ECAB 648 (2004).
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In interpreting this section of FECA, the Board has recognized that OWCP has broad 

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

authority being that of reasonableness.4 Abuse of discretion is generally shown through proof of 

manifest error, clearly unreasonable exercise of judgment, or actions taken which are contrary to 

both logic and probable deductions from established facts. It is not enough to merely show that 

the evidence could be construed so as to produce a contrary factual conclusion.5 To be entitled to 

reimbursement of medical expenses, a claimant has the burden of proof to establish that the 

expenditures were incurred for treatment of the effects of an employment-related injury or 

condition. Proof of causal relationship in a case such as this must include supporting rationalized 

medical evidence.6 In order for a surgical procedure to be authorized, a claimant must submit 

evidence to show that the surgery is for a condition causally related to an employment injury and 

that it is medically warranted. Both of these criteria must be met in order for OWCP to authorize 

payment.7

ANALYSIS

The Board finds that OWCP did not abuse its discretion in denying authorization for 

appellant’s June 10, 2015 total left knee surgical procedure.

OWCP accepted that appellant sustained a tear of the medial meniscus of the left knee 

while in the performance of duty on January 15, 2015. It authorized left knee arthroscopy with 

partial lateral meniscectomy at the anterior horn and partial synovectomy and chondroplasty of 

medial femoral condyle performed on March 11, 2015 by Dr. Foskett, an attending physician. 

On May 19, 2015 Dr. Foskett requested authorization for a total left knee arthroplasty due 

to preexisting severe osteoarthritis and a cystic mass on the left anterior knee that were aggravated

by the accepted injury. He performed the surgery on June 10, 2015. Subsequently, in a 

December 17, 2016 report, Dr. Foskett opined that the accepted work-related injury significantly 

contributed to and accelerated appellant’s underlying left knee arthritis which necessitated surgery 

on June 10, 2015. 

By decision dated March 31, 2016, OWCP denied the request for authorization of surgery

based on the opinions of Dr. Hellman, an OWCP medical adviser, and Dr. Shivaram, an OWCP 

referral physician, who opined that appellant’s June 10, 2015 surgery was not necessitated by the 

accepted employment injury. On January 27, 2017 an OWCP representative set aside the 

March 31, 2016 decision, finding that, while Dr. Foskett’s December 17, 2016 opinion was not 

sufficiently rationalized, it was prima facie evidence of a causal relationship between the 

January 15, 2015 employment injury and the June 10, 2015 left knee surgery. She remanded the 

case to OWCP to further develop whether the June 10, 2015 left knee surgery should be authorized. 

On remand OWCP received a response to a request for further opinion from Dr. Shivaram

 

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

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

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

7 R.C., 58 ECAB 238 (2006).
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regarding whether appellant had a material worsening of his preexisting left knee arthritis due to 

the accepted work injury that required surgery. By decision dated June 28, 2017, OWCP denied 

authorization for the June 10, 2015 left knee surgery based on Dr. Shivaram’s report. 

In his May 31, 2017 supplemental report, Dr. Shivaram found that appellant’s preexisting 

left knee condition which warranted total left knee replacement surgery was not caused or 

aggravated by the accepted January 15, 2015 employment-related injury. He noted appellant’s 

medical history which revealed a severe left knee injury dating back to 2004, and chronic 

instability and early arthritic changes were seen as early as 2010 resulting in reconstruction of the 

lateral ligaments and revision of the ACL and repeat arthroscopic evaluation for instability and 

continued knee pain. On physical examination of the left knee, Dr. Shivaram reported essentially 

normal findings with the exception of limited range of motion. Appellant informed him that,

although he experienced left knee pain with constant movement and weather changes, he could 

walk for long distance and did not require the use of an assistive device for ambulation. 

Dr. Shivaram noted that he appeared to have a good result following revision arthroplasty of the 

left knee. He explained that the January 15, 2015 employment injury was not very significant 

based on the presence of mild effusion in the knee and no significant changes on a left knee MRI 

scan and subsequent arthroscopic evaluation of the knee. Dr. Shivaram related that, although the 

2015 arthroscopy revealed significant degenerative changes involving the medial compartment 

and lateral and patellofemoral joint, his opinion remained that the accepted employment-related

injury did not cause any permanent aggravation or acceleration of appellant’s left knee 

osteoarthritis. 

The Board finds that Dr. Shivaram’s opinion that appellant did not sustain a material 

worsening of his preexisting left knee arthritis that necessitated surgery on June 10, 2015 due to 

the January 15, 2015 employment injury represents the weight of the medical evidence in this case.

Dr. Shivaram provided a well-rationalized medical opinion based on a complete factual and 

medical background.

OWCP has discretion with respect to authorization for surgery. As previously noted, abuse 

of discretion is generally shown through proof of manifest error, clearly unreasonable exercise of 

judgment, or actions taken which are contrary to both logic and probable deductions from 

established facts. It is not enough to merely show that the evidence could be construed so as to 

produce a contrary factual conclusion.8 Based on the medical evidence of record, the Board finds 

that it did not abuse its discretion in this case.9

On appeal appellant contends that his physician’s opinion is sufficient to warrant 

authorization of his surgery. An OWCP hearing representative set aside the denial of authorization 

for the June 10, 2015 surgery, finding that, while Dr. Foskett’s opinion that the January 15, 2015 

employment injury significantly contributed to and accelerated appellant’s underlying left knee 

arthritis, which necessitated surgery on June 10, 2015, was not sufficiently rationalized, it 

established prima facie evidence of causal relationship requiring further development of the 

medical evidence. OWCP properly developed the medical evidence to resolve this issue by 

 

8 Supra note 5 

9 See L.C., Docket No. 16-1797 (issued March 10, 2017).
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obtaining additional medical records from Dr. Foskett and referring appellant to Dr. Shivaram for 

another second opinion. Thus, the Board finds that appellant’s argument is not substantiated. 

Appellant further contends on appeal that an OWCP referral physician did not perform a 

complete physical examination, and spent only 20 minutes during his first evaluation and 5 minutes 

during his second evaluation. Dr. Shivaram provided detailed examination findings and a wellrationalized medical opinion based on these findings. The Board finds, therefore, that appellant’s 

argument is not substantiated.

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

to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. 

§§ 10.605 through 10.607.

CONCLUSION

The Board finds that OWCP did not abuse its discretion when it denied authorization for 

appellant’s left knee surgery.

ORDER

IT IS HEREBY ORDERED THAT the June 28, 2017 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: August 17, 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