United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.W., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Plainfield, NJ, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 17-1319

Issued: December 7, 2017

Appearances: Case Submitted on the Record

James D. Muirhead, 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 May 30, 3017 appellant, through counsel, filed a timely appeal from a December 19, 

2016 merit decision and an April 6, 2017 nonmerit 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.

 

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

ISSUES

The issues are: (1) whether appellant has established disability from work on or after 

June 21, 2012 due to a work-related left knee condition; (2) whether OWCP properly denied 

authorization of appellant’s October 22, 2012 left knee surgery; and (3) whether OWCP properly 

denied appellant’s request for reconsideration of the merits of her claim pursuant to 5 U.S.C. 

§ 8128(a).

FACTUAL HISTORY

This case has previously been before the Board.3 The facts as presented in the Board’s 

prior decisions are incorporated herein by reference. The relevant facts are as follows.

OWCP accepted that on October 5, 2009 appellant, then a 34-year-old letter carrier, 

sustained a medial meniscus tear of her left knee due to a fall down stairs at work. The claim 

was assigned File No. xxxxxx003. Appellant stopped work on October 5, 2009 and began to 

receive compensation on the daily rolls.4

On January 12, 2010 Dr. Jeffrey F. Augustin, an attending Board-certified orthopedic 

surgeon, performed a left knee arthroscopy with lateral meniscectomy and excision of plica. The 

surgery was authorized by OWCP.

In a June 17, 2010 decision, OWCP terminated appellant’s wage-loss compensation and 

medical benefits, effective June 17, 2010, because she ceased to have residuals of her October 5, 

2009 work injury as of that date. It based its termination action on a May 30, 2010 report of

Dr. Augustin and a May 3, 2010 report of Dr. Jerome D. Rosman, a Board-certified orthopedic 

surgeon, who served as an OWCP referral physician.

By decision dated November 17, 2010, OWCP modified its June 17, 2010 termination 

decision to reflect that only appellant’s wage-loss compensation was terminated, effective 

June 17, 2010. It explained that the May 12, 2010 notice of proposed termination failed to 

mention that medical benefits related to the October 5, 2009 work injury would be terminated.

On June 21, 2012 appellant filed a traumatic injury claim (Form CA-1) alleging that she 

injured her left knee at work on June 20, 2012 when she stepped down off a curb. She indicated 

that she felt a tug and twist in her knee and heard a popping sound. OWCP assigned the claim 

File No. xxxxxx402.5 

 

3 Docket Nos. 14-1187 and 14-1215 (issued February 2, 2015).

4 Appellant later began to receive compensation on the periodic rolls.

5 This claim was initially developed under File No. xxxxxx402, but beginning in early 2013 the documents for 

this claim were administratively combined with File No. xxxxxx003, the file created for appellant’s October 5, 2009 

employment injury.
3

In an August 9, 2012 decision, OWCP denied appellant’s traumatic injury claim in File 

No. xxxxxx402 because had not submitted sufficient medical evidence to establish that she 

sustained a left knee injury in the performance of duty on June 20, 2012.

On October 22, 2012 Dr. Allen Glushakow, an attending Board-certified orthopedic 

surgeon, performed left knee surgery, including abrasion arthroplasty, chondroplasty, 

arthrotomy, and partial lateral meniscectomy. He noted that during the surgery he observed an 

effusion, an osteochondral fracture of the medial femoral condyle, and an acute tear of the lateral 

meniscus. The surgery was not authorized by OWCP.

By decision dated February 20, 2013, an OWCP hearing representative modified 

OWCP’s August 9, 2012 decision to accept the condition of left knee sprain as occurring on 

June 20, 2012 “with entitlement to medical benefits being limited to the claimant’s emergency 

room visit on June 20, 2012.” He noted, “The district [office’s] denial of the claim for any other 

left knee condition and for benefits subsequent to June 20, 2012 is affirmed.”

In an April 30, 2013 decision, OWCP advised appellant that her claim for a traumatic 

injury on June 20, 2012 was formally accepted for a left knee sprain. It noted that, per the 

hearing representative’s February 20, 2013 decision, authorization for medical treatment was 

limited to treatment at the emergency room on June 20, 2012. OWCP further noted, “If the 

current accepted condition(s) need to be revised or additional complications related to the current 

accepted condition(s) need to be added, your physician should explain in writing, with medical 

rationale, the relationship between any additional condition and the work injury or the current 

accepted condition(s) noted above.”

On May 10, 2013 appellant filed claims for compensation (Form CA-7) for the periods

June 21 through October 21, 2012 and October 22, 2012 through March 18, 2013.

6

The first 

period of compensation was filed under File No. xxxxxx402 and the latter period under File No. 

xxxxxx003. With respect to the period, June 21 through October 21, 2012, OWCP advised 

appellant by letter dated May 13, 2013 that she should pursue her appeal rights associated with 

the February 20, 2013 decision.

In an informational letter dated June 10, 2013, OWCP advised appellant that her claim 

for compensation for the period October 22, 2012 to March 18, 2013 was not payable. It 

explained her that in its November 17, 2010 decision, it had terminated her wage-loss 

compensation, effective June 17, 2010.

In a July 17, 2013 letter received on that date, counsel, on behalf of appellant, sought 

compensation for her October 22, 2012 left knee surgery and any periods of disability related to 

her accepted work-related knee condition. He noted, “[Appellant] underwent surgery by

 

6 The employing establishment advised that appellant’s employment had been terminated, effective November 27, 

2012, due to the expiration of her appointment. 
4

Dr. Glushakow under the above file in October 2012. Clearly, this is new evidence and was not 

available on June 17, 2010. Appellant is now disabled as a result of the effects of the surgery.”

7

In a November 14, 2013 decision, OWCP denied appellant’s July 17, 2013 

reconsideration request, finding that it was untimely filed with respect to the November 17, 2010 

decision and failed to demonstrate clear evidence of error. It indicated that the June 10, 2013 

“decision” for which she was considered to have requested reconsideration was an informational 

letter rather than a final decision of OWCP, and therefore, she could not request reconsideration 

of that decision. OWCP further noted, “Your attorney does not argue that the decision dated 

November 17, 2010 was incorrect when it was issued.”

On January 10, 2014 appellant filed a recurrence claim (Form CA-2a) for disability from 

work due to her work-related left knee condition, commencing June 21, 2012. She filed a similar 

claim under OWCP File No. xxxxxx003 for a recurrence of disability commencing

October 22, 2012. 

In an informational letter dated February 26, 2014, OWCP referenced both of appellant’s 

left lower extremity traumatic injury claims and advised her that it had only accepted that she 

sustained a left knee sprain on June 20, 2012 and that her case was only open for payment of 

medical bills related to an emergency room visit on June 20, 2012. It further noted that appellant 

had previously been provided with appeal rights in connection with prior decisions on this 

matter.

In a March 5, 2014 letter, counsel, on behalf of appellant, indicated that he was 

submitting evidence which he felt supported coverage of her October 22, 2012 surgery. In the 

attached June 25, 2013 report, Dr. Glushakow explained why he felt that appellant’s need for 

repeat left knee surgery on October 22, 2012 was due to her June 20, 2012 injury rather than an 

earlier injury. He noted that, while the October 22, 2012 operative report did not show a tear of 

the medial meniscus, there was an effusion and osteochondral fracture of the medial femoral 

condyle, as well as an acute tear of the lateral meniscus. Dr. Glushakow advised that marked 

synovitis was noted requiring a subtotal synovectomy, all of which was described in the 

operative report. He indicated that appellant had fully recovered from the January 12, 2010 

surgery and that prior operative reports did not note an osteochondral fracture and did not note 

synovitis. Dr. Glushakow noted, “Therefore, the combination of these findings point to the cause 

of [appellant’s] surgery being the incident of June 20, 2012.”

In a March 19, 2014 decision, OWCP denied appellant’s March 5, 2014 request for 

reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of 

error in OWCP’s prior decisions, including its decision dated April 30, 2013.

Appellant appealed to the Board and, in a February 2, 2015 decision,8the Board set aside 

OWCP’s November 14, 2013 and March 19, 2014 decisions, and remanded the case to OWCP 

 

7 Counsel also stated that he wished to “appeal” June 17, 2010 and June 10, 2013 “decisions” of OWCP. As 

noted herein, the June 10, 2013 document was an informational letter rather than a final decision of OWCP.

8

See supra note 3.
5

for further development. The Board found that OWCP improperly determined that counsel’s 

communications on behalf of appellant constituted a request for reconsideration of its 

November 17, 2010 decision, which modified its June 17, 2010 termination decision to reflect 

that only her wage-loss compensation was terminated effective June 17, 2010. The Board found 

that counsel expressly sought compensation for her October 22, 2012 left knee surgery and any 

periods of disability related to her accepted left knee condition(s). Consequently, OWCP 

improperly analyzed appellant’s case and wrongly determined, in its November 14, 2013 and 

March 19, 2014 decisions, that she filed an untimely request for reconsideration and failed to 

demonstrate clear evidence of error in its November 17, 2010 decision. The Board found that 

she had an outstanding claim related to her October 22, 2012 left knee surgery and any periods of 

disability arising after June 21, 2012. The Board remanded the case to OWCP for consideration 

of that claim and directed OWCP to consider all the relevant documents relating to both 

appellant’s accepted October 5, 2009 left knee injury and her accepted June 20, 2012 left knee 

injury. After carrying out this development, OWCP was directed to issue an appropriate decision 

on the matter.

On remand, OWCP issued a June 11, 2015 decision appellant’s request for authorization 

of her October 22, 2012 surgery and her claim for a recurrence of disability commencing

June 21, 2012. It found that she failed to submit sufficient medical evidence in support of her 

claim.

Appellant, through counsel, requested a telephonic hearing with a representative of 

OWCP’s Branch of Hearings and Review. Prior to the hearing, OWCP’s hearing representative 

determined, in a January 8, 2016 decision, that OWCP’s June 11, 2015 decision must be set aside 

and the case remanded to OWCP for further development. She indicated that the case should be 

forwarded to an OWCP medical adviser to address Dr. Glushakow’s medical opinions regarding 

the October 22, 2012 surgery and to discuss whether there were additional medical conditions 

causally related to the work injury of June 20, 2012. OWCP’s medical adviser should be asked 

whether referral to a second opinion examiner would be appropriate. The hearing representative 

noted that, after any additional development deemed necessary, OWCP should issue a de novo

decision as to whether appellant was disabled from June 21, 2012 and continuing and whether 

the left knee surgery on October 22, 2012 was causally related to the June 20, 2012 work event.

On remand, OWCP determined that appellant and the case record should be referred to a 

second opinion examiner. A second opinion examination referral was made to Dr. Timothy 

Henderson, a Board-certified orthopedic surgeon, regarding the surgery and disability matters.

In a report dated November 10, 2016, Dr. Henderson advised that the October 22, 2012 

surgical procedure was not secondary to the work injury that occurred on October 5, 2009. He 

indicated that appellant suffered from a lateral meniscus tear,

9 which was repaired and advised 

that there was no further need for additional treatment regarding the work injury. Dr. Henderson 

noted that she appeared to have recently sustained a new injury to her left meniscus, but that this 

injury would not be a work injury. He indicated that appellant described symptoms of locking in 

the recent past which did not clinically correlate to the work injury. Dr. Henderson did not 

 

9 OWCP accepted appellant’s October 5, 2009 injury for left knee “medial” meniscus tear. 
6

recommend a work capacity evaluation or work hardening program and indicated that she had 

reached maximum medical improvement (MMI). He noted that the June 20, 2012 injury caused 

an aggravation of arthritis, but indicated that the aggravation was temporary and had ceased at 

this time. Dr. Henderson noted that the aggravation caused disability during appellant’s 

employment and posited that she suffered disability from her arthritis. Appellant had partial 

disability related to her degenerative changes and not the work injury. Dr. Henderson also noted 

that she had not been totally disabled from June 21, 2012 and posited that she could perform 

sedentary work.

On November 22, 2016 OWCP requested that Dr. Henderson clarify whether it should 

update the accepted conditions to include aggravation of osteoarthritis in the left knee and 

whether the restrictions provided were due to the work injury of October 5, 2009 or 

June 20, 2012.

In an addendum report dated December 2, 2016, Dr. Henderson indicated that the workrelated aggravation of arthritis was temporary and had ceased at this time. He noted that he 

inadvertently determined that this condition caused disability during appellant’s employment, 

when in fact it was the work incident that caused the disability. Dr. Henderson noted that the 

accepted conditions should not be updated to include aggravation of left knee osteoarthritis.

In a December 19, 2016 decision, OWCP found that appellant had not met her burden of 

proof to establish disability commencing June 21, 2012 due to a work-related condition. It also 

exercised its discretion and denied authorization for her October 22, 2012 left knee surgery. 

On March 9, 2017 counsel, on behalf of appellant, requested reconsideration of OWCP’s 

December 19, 2016 decision. Counsel argued that Dr. Henderson’s November 10 and 

December 2, 2016 reports were not well-rationalized as he did not adequately explain why her

June 20, 2012 employment injury did not cause disability on or after June 21, 2012 or why the 

October 22, 2012 surgery was not necessitated by a work-related condition. 

In an April 6, 2017 decision, OWCP denied appellant’s request for reconsideration of the 

merits of her claim pursuant to 5 U.S.C. § 8128(a). It found that the argument submitted by 

counsel on behalf of appellant did not present a new and relevant legal argument.

LEGAL PRECEDENT -- ISSUES 1 & 2

An employee seeking benefits under FECA10 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 timely filed within the applicable 

time limitation period 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 are 

causally related to the employment injury.11 In general the term disability under FECA means 

 

10 Supra note 2.

11 J.F., Docket No. 09-1061 (issued November 17, 2009).
7

incapacity because of injury in employment to earn the wages which the employee was receiving 

at the time of such injury.12 This meaning, for brevity, is expressed as disability from work.13 

The medical evidence required to establish causal relationship between a claimed period 

of disability and an employment injury is rationalized medical opinion evidence. 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

Section 8103(a) of FECA states in pertinent part: “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 the Secretary of Labor considers 

likely to cure, give relief, reduce the degree or the period of disability, or aid in lessening the 

amount of the monthly compensation.”

15

 

The Board has found that OWCP has great discretion in determining whether a particular 

type of treatment is likely to cure or give relief.16 The only limitation on the OWCP’s authority 

is that of reasonableness.17 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.18 In order to be 

entitled to reimbursement of medical expenses, it must be shown that the expenditures were 

incurred for treatment of the effects of an employment-related injury or condition.19 Proof of 

causal relationship in a case such as this must include supporting rationalized medical 

evidence.20

ANALYSIS -- ISSUES 1 & 2

The Board finds that the case is not posture for decision due to an unresolved conflict in 

the medical evidence between Dr. Henderson, who served as an OWCP referral physician, and

Dr. Glushakow, an attending physician, regarding whether appellant’s October 22, 2012 surgery 

 

12 See 20 C.F.R. § 10.5(f).

13 Roberta L. Kaaumoana, 54 ECAB 150 (2002); see also A.M., Docket No. 09-1895 (issued April 23, 2010).

14 See E.J., Docket No. 09-1481 (issued February 19, 2010).

15 5 U.S.C. § 8103. 

16 Vicky C. Randall, 51 ECAB 357 (2000).

17 Lecil E. Stevens, 49 ECAB 673, 675 (1998).

18 Rosa Lee Jones, 36 ECAB 679 (1985).

19 Bertha L. Arnold, 38 ECAB 282, 284 (1986).

20 Zane H. Cassell, 32 ECAB 1537, 1540-41 (1981); John E. Benton, 15 ECAB 48, 49 (1963).
8

was necessitated by a work-related condition and whether she established disability on or after 

June 21, 2012 due to a work-related condition. 

Section 8123(a) of FECA provides in pertinent part: “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.”

21

 When there are 

opposing reports of virtually equal weight and rationale, the case must be referred to an impartial 

medical specialist, pursuant to section 8123(a) of FECA, to resolve the conflict in the medical 

evidence.22

In his November 10, 2016 report, Dr. Henderson advised that the October 22, 2012 

surgical procedure was not secondary to the work injury, which occurred on October 5, 2009. 

He indicated that appellant suffered from a lateral meniscus tear which was repaired and advised 

that there was no further need for additional treatment regarding the work injury. Dr. Henderson 

noted that she appeared to have recently sustained a new injury to her left meniscus, but that this 

injury would not be a work injury. He indicated that appellant described symptoms of locking in 

the recent past which did not clinically correlate to the work injury. Dr. Henderson did not 

recommend a work capacity evaluation or work hardening program and indicated that she had 

reached MMI. He noted that the June 20, 2012 injury caused an aggravation of arthritis, but 

indicated that the aggravation was temporary and had ceased at this time. Dr. Henderson noted 

that the aggravation caused disability during appellant’s employment and posited that she 

suffered disability from her arthritis. Appellant had partial disability related to her degenerative 

changes and not the work injury. Dr. Henderson also noted that she had not been totally disabled 

from June 21, 2012 and posited that she could perform sedentary work. In an addendum report 

dated December 2, 2016, he indicated that the work-related aggravation of arthritis was 

temporary and had ceased at this time. Dr. Henderson noted that he inadvertently determined 

that this condition had caused disability during appellant’s employment, when in fact it was the 

work incident that caused the disability. He noted that the accepted conditions should not be 

updated to include aggravation of left knee osteoarthritis.

In contrast, Dr. Glushakow explained in his June 25, 2013 report why he felt that 

appellant’s need for repeat left knee surgery on October 22, 2012 was due to her June 20, 2012 

injury rather than an earlier injury. He noted that, while the October 22, 2012 operative report 

did not show a tear of the medial meniscus, there was an effusion and osteochondral fracture of 

the medial femoral condyle, as well as an acute tear of the lateral meniscus. Dr. Glushakow 

advised that a marked synovitis was noted requiring a subtotal synovectomy, all of which was 

described in the operative report. He indicated that appellant had made a full recovery from the

surgery performed on January 12, 2010 and that prior operative reports did not note an 

osteochondral fracture and did not note synovitis. Dr. Glushakow noted, “Therefore, the 

combination of these findings point to the cause of [appellant’s] surgery being the incident of 

June 20, 2012.”

 

21 5 U.S.C. § 8123(a).

22 William C. Bush, 40 ECAB 1064, 1975 (1989).
9

Consequently, the case must be referred to an impartial medical specialist to resolve the 

conflict in the medical opinion evidence between Dr. Henderson and Dr. Glushakow regarding 

whether appellant’s October 22, 2012 surgery was necessitated by a work-related condition and 

whether she established disability on or after June 21, 2012 due to a work-related condition. On 

remand, OWCP should refer her, along with the case file and the statement of accepted facts, to 

an appropriate specialist for an impartial medical evaluation and report including a rationalized 

opinion on this matter. After carrying out this development, it shall issue a de novo decision 

regarding appellant’s claim.23

ORDER

IT IS HEREBY ORDERED THAT the April 6, 2017 and December 19, 2016 decisions

of the Office of Workers’ Compensation Programs are set aside, and the case is remanded for 

further action consistent with this decision.

Issued: December 7, 2017

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

 

23 Given the Board’s disposition of the merits of this case, it is unnecessary to consider whether OWCP properly 

denied appellant’s request for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).