United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

K.A., Appellant 

and 

U.S. POSTAL SERVICE, PROCTOR STATION, 

Tacoma, WA, Employer 

__________________________________________ 

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Docket No. 17-0381 

Issued: July 11, 2017 

Appearances: Case Submitted on the Record

Coby Jones, for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On December 12, 2016 appellant, through her representative, filed a timely appeal from a 

June 17, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).2

 

Pursuant to the Federal Employees’ Compensation Act3

 (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

 Appellant timely requested oral argument before the Board. By order dated April 11, 2017, the Board exercised 

its discretion and denied the request, finding that the issue presented could be adequately addressed based on a 

review of the case record. Order Denying Request for Oral Argument, Docket No. 17-0381 (issued April 11, 2017). 

3

 5 U.S.C. § 8101 et seq. 
2

ISSUE 

The issue is whether appellant sustained a bilateral knee condition causally related to 

factors of her federal employment. 

FACTUAL HISTORY 

On May 1, 2015 appellant, then a 50-year-old city carrier, filed an occupational disease 

claim (Form CA-2) alleging that she sustained disorders due to repeated trauma causally related 

to factors of her federal employment. She did not stop work. OWCP assigned the case file 

number xxxxxx521. 

In an accompanying statement, appellant related that she injured both knees at work on 

May 15, 2013. On November 4, 2014 she resumed work after knee surgery, but her knees 

continued to hurt due to the requirements of her employment. Appellant described in detail her 

job duties. 

OWCP had previously accepted under case file number xxxxxx011 that appellant 

sustained lumbar sprain and bilateral knee and leg sprains on May 15, 2013 when she was 

attacked by a dog while in the performance of duty. On September 16, 2014 Dr. David A. 

Coons, an attending osteopath and Board-certified orthopedic surgeon, performed partial medial 

and lateral meniscectomies with chondroplasties of both knees. Appellant stopped work on 

September 16, 2014 and resumed her usual job on November 3, 2014. OWCP had also accepted 

that she sustained a left ankle sprain and sacroiliac ligament sprain on January 29, 2015 under 

file number xxxxxx217.4

 Appellant worked six hours a day with restrictions following the 

injury.5

 

In support of her May 1, 2015 occupational disease claim, appellant submitted evidence 

relevant to her May 15, 2013 work injury under file number xxxxxx011. In an April 27, 2015 

report, Dr. Coons diagnosed osteoarthritis of both knees aggravated by her work injury and 

employment activities. 

In a report dated May 28, 2015, Dr. Mario G. Alinea, Board-certified in family practice, 

evaluated appellant for knee pain bilaterally and noted that she had a history of meniscal tears 

and degeneration. He advised that after knee surgery she continued to have symptoms that 

prevented her from performing her usual employment. Dr. Alinea diagnosed bilateral 

osteoarthritis of the knees aggravated by her employment injury and job duties. He 

recommended a right total knee replacement. Dr. Alinea related: 

“It is the orthopedic surgeon’s opinion that the events and nature of [appellant’s] 

job over the last 26 years as a letter carrier having to walk long distance, up and 

down hills, climbing up and down stairs and multiple work[-]related injuries to 

her knees are such that this is responsible for the aggravation [of] her knee, which 

 4

 OWCP combined the aformentioned files, with case file number xxxxxx011 serving as the master file. 

5

 OWCP claim file number xxxxxx217 is not before the Board on the present appeal. 
3

has led to a cascade of treatment and is now leading to a need for knee 

replacement.” 

By decision dated June 25, 2015, OWCP denied appellant’s occupational disease claim. 

It found that the medical evidence was insufficient to show that she sustained a diagnosed 

condition as a result of the accepted employment factors.6

Appellant, on July 21, 2015, requested an oral hearing before an OWCP hearing 

representative. At the hearing, held on December 16, 2015, she related that her knees became 

worse when she returned to work. 

By letter dated December 11, 2015, appellant attributed her knee condition to her job 

duties as a letter carrier for 26 years. She discussed her May 15, 2013 knee injuries and noted 

that after her September 16, 2014 surgery she returned to her usual duties in November 2014. 

Appellant’s symptoms worsened due to additional work exposure and she began limping in 

April 2015. She described the job duties to which she attributed her bilateral knee condition. 

In a report dated January 6, 2016, Dr. Coons diagnosed bilateral end-stage osteoarthritis 

of the knees. He noted that bilateral knee surgery on September 16, 2014 confirmed “complete 

loss of cartilage in both the right and left knees.” Dr. Coons reviewed appellant’s history of two 

nonemployment-related knee injuries, a torn left meniscus in August 2006 and a meniscus tear 

on September 23, 2007. Both injuries were treated with surgery that revealed preexisting 

degenerative changes. Appellant’s knee problems increased and she underwent bilateral knee 

surgery on November 16, 2014, following which she resumed her usual work duties. Dr. Coons 

described her work duties as a letter carrier for 26 years, noting that she walked around 20,000 

miles and entered and exited a vehicle hundreds of thousands of times. He related: 

“My medical opinion is that work has certainly been a contributing factor to the 

development of the degenerative changes in her knees. This is especially true 

when we consider that [appellant] was only 41 years old when she had her first 

arthroscopy and was found to have some ‘preexisting’ degenerative changes. 

Arthritis typically develops over a period of time, and it is likely that she began 

having degenerative changes in her 30’s. This time frame is not consistent with 

typical, age[-]related osteoarthritis. It is much more likely that overuse and 

overwork over long periods of time in [appellant’s] occupation permanently 

accelerated and led to the degenerative changes, which were noted at such a 

young age. The biomechanical forces would be excessive cartilage pressure and 

micro-degeneration with recurrent and prolonged twisting, turning, squatting, and 

jumping impact, which are described inherent to her job. These mechanical 

forces were causative of any injury and inflammation cascade leading to the early 

 6

 OWCP noted that appellant underwent a second opinion examination in master file number xxxxxx011. In a 

report dated August 9, 2014, Dr. Justin Sherfey, an osteopath, diagnosed degenerative joint disease of the right knee 

with a progression of preexisting arthritis disease unrelated to the May 15, 2013 work injury an aggravation of right 

knee degenerative joint disease, a medial meniscus tear of the left knee due to the work injury, a temporary 

aggravation of preexisting degenerative joint disease due to the work injury, and a preexisting anterior cruciate 

ligament tear of the left knee. 
4

degenerative changes on a more probable than not basis given the absence of 

predisposing injury or malformation.” 

Dr. Coons recommended bilateral total knee replacements due to appellant’s end-stage 

osteoarthritis, which he found “permanently aggravated and accelerated by her occupation.” 

By decision dated February 17, 2016, OWCP’s hearing representative vacated the 

June 25, 2015 decision. She found that Dr. Coons’ January 6, 2016 report was sufficient to 

require further development of the evidence. The hearing representative instructed OWCP to 

refer appellant for a second opinion examination to determine whether she sustained a bilateral 

knee condition caused or aggravated by factors of her federal employment. 

OWCP initially referred appellant to Dr. Louis Kretschmer, a Board-certified orthopedic 

surgeon, for a second opinion examination; however, it subsequently determined that his report 

and addendum should be excluded from the record.7

 

On May 17, 2016 OWCP referred appellant to Dr. Robert L. Kalb, a Board-certified 

orthopedic surgeon, for a second opinion examination. In a report dated June 2, 2016, Dr. Kalb 

noted that she experienced difficulties beginning in May 2013 after she hurt her knees and back 

during a dog attack. He related that he had reviewed and concurred with Dr. Kretschmer’s 

reports. Dr. Kalb opined that appellant did not sustain arthritis of the bilateral knees due to any 

of her injuries. He further related, “The work requirements of standing, walking, and delivering 

the mail would not in and of themselves by direct cause, aggravation, precipitation, or 

acceleration lead to advanced arthritis with requirement for bilateral knee replacement.” 

Dr. Kalb advised that appellant had no work restrictions as a result of her accepted injuries and 

that her current symptoms were “related to osteoarthritis in her knees, which is not an allowed or 

accepted [w]orkers’ [c]ompensation condition.” 

By decision dated June 17, 2016, OWCP denied appellant’s claim for a bilateral knee 

condition causally related to factors of her federal employment. It found that Dr. Kalb’s opinion 

constituted the weight of the evidence and established that work duties did not cause or 

contribute to her bilateral knee osteoarthritis. 

On appeal counsel contends that the opinion of Dr. Coons was rationalized and based on 

a detailed description of her work duties. He further asserts that Dr. Kalb failed to refer to 

appellant’s work duties and appeared to find that OWCP did not allow bilateral osteoarthritis as 

an accepted condition. 

 7

 OWCP indicated that it was excluding Dr. Kretschmer’s reports due to insufficient rationale as he based his 

opinion on literature rather than the facts of the case. Dr. Kretschmer’s reports, however, do not fall within the 

category of reports which should be excluded from the record. There is no evidence that he performed fitness-forduty examinations for the employing establishment, that OWCP had previously requested an impartial report and 

failed to seek clarification before seeking his opinion; that his reports were obtained through telephone contact, that 

OWCP improperly utilized leading questions, or that it involved surveillance video provided to a referee physician 

directly by the employing establishment. OWCP therefore was not required to exclude Dr. Kretschmer’s reports 

from the record. See Federal (FECA) Procedure Manual, Part 2 -- Claims, Development and Evaluating Medical 

Evidence, Chapter 2.810.12(a) (September 2010); see also D.M., Docket No. 10-0857 (issued January 3, 2011). 

Any error in excluding the physicians’ reports was harmless, however, as it does not affect the outcome of this case. 
5

LEGAL PRECEDENT 

An employee seeking benefits under FECA8 has the burden of proof to establish the 

essential elements of his or her claim, including the fact that the individual is an “employee of 

the United States” within the meaning of FECA, that the claim was filed within the applicable 

time limitation; that an injury was sustained while 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.9 These are the essential elements of each and every compensation claim 

regardless of whether the claim is predicated on a traumatic injury or an occupational disease.10

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

disease claim, a claimant must submit the following: (1) medical evidence establishing the 

presence or existence of the disease or condition for which compensation is claimed;11 (2) a 

factual statement identifying employment factors alleged to have caused or contributed to the 

presence or occurrence of the disease or condition;12 and (3) medical evidence establishing the 

employment factors identified by the claimant were the proximate cause of the condition for 

which compensation is claimed or, stated differently, medical evidence establishing that the 

diagnosed condition is causally related to the employment factors identified by the claimant.13

Section 8123(a) provides that, if there is disagreement between the physician making the 

examination for the United States and the physician of the employee, the Secretary shall appoint 

a third physician who shall make an examination.14 The implementing regulations state that, if a 

conflict exists between the medical opinion of the employee’s physician and the medical opinion 

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

physician to make an examination. This is called a referee examination and OWCP will select a 

physician who is qualified in the appropriate specialty and who has no prior connection with the 

case.15

ANALYSIS 

Appellant attributed her bilateral knee condition to the performance of her work duties as 

a city carrier. OWCP accepted the occurrence of the claimed employment factors. The issue 

 8 Supra note 3. 

9 Tracey P. Spillane, 54 ECAB 608 (2003); Elaine Pendleton, 40 ECAB 1143 (1989). 

10 See Ellen L. Noble, 55 ECAB 530 (2004). 

11 Michael R. Shaffer, 55 ECAB 386 (2004). 

12 Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001). 

13 Beverly A. Spencer, 55 ECAB 501 (2004). 

14 5 U.S.C. § 8123(a). 

15 20 C.F.R. § 10.321. 
6

therefore is whether the medical evidence establishes a causal relationship between the claimed 

conditions and the identified employment factors. 

In support of her occupational disease claim, appellant submitted a May 28, 2015 report 

from Dr. Alinea. Dr. Alinea diagnosed bilateral knee osteoarthritis aggravated by her work 

injury and job duties, noting that her orthopedic surgeon believed that extensive walking, 

climbing stairs, and repeated injuries caused an aggravation of a knee condition and the need for 

knee replacement. 

Dr. Coons, in a January 6, 2016 report, discussed appellant’s history of bilateral knee 

surgery on September 16, 2013 showing a total loss of cartilage in both knees. He noted that she 

had a history of meniscal tears not related to work in 2006 and 2007. Dr. Coons provided a 

description of appellant’s employment duties for the past 26 years as a letter carrier, including 

walking about 20,000 miles and entering and exiting her vehicle hundreds of thousands of times 

over the course of her career. He diagnosed bilateral end-stage knee arthritis. Dr. Coons opined 

that work contributed to the degenerative changes in appellant’s knees, particularly as her 

arthritis began when she was 41 years old and thus was not consistent with osteoarthritis 

resulting from age. He asserted that overuse due to her work duties accelerated and caused 

degeneration due to the biomechanical forces of “excessive cartilage pressure and microdegeneration with recurrent and prolonged twisting, turning, squatting, and jumping impact, 

which are described inherent to her job.” Dr. Coons opined that appellant required bilateral total 

knee replacements due to end-stage osteoarthritis aggravated and hastened by work duties. 

OWCP referred appellant to Dr. Kalb for a second opinion examination. On June 2, 2016 

Dr. Kalb discussed her history of a back and bilateral knee injury in May 2013. He found that 

appellant’s bilateral knee arthritis was not related to either her history of injuries or her job 

duties. Dr. Kalb opined that standing, walking, and mail delivery were not activities that would 

cause, aggravate, or accelerate arthritis severe enough to require knee replacements. 

The Board finds that the case is not in posture for decision due to a conflict in the medical 

evidence between appellant’s physician, Dr. Coons and OWCP’s referral physician, Dr. Kalb. 

As previously noted, when there is disagreement between an OWCP physician and the 

employee’s physician, OWCP will appoint a third physician who shall make an examination.16 

For a conflict to arise, the opposing physician’s viewpoints must be of virtually equal weight and 

rationale.17 The Board finds that the opinions of Dr. Coons and Dr. Kalb to be of virtually equal 

weight. Consequently, the case must be remanded for OWCP to prepare an updated statement of 

accepted facts and refer appellant to an appropriate impartial medical examiner for resolution of 

the conflict regarding whether she sustained a bilateral knee condition causally related to her 

employment duties. After such further development as deemed necessary, it shall issue a de 

novo decision. 

 16 See supra notes 13-14. 

17 See W.S., Docket No. 16-0111 (issued March 14, 2017). 
7

CONCLUSION 

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

ORDER 

IT IS HEREBY ORDERED THAT the June 17, 2016 decision of the Office of 

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

consistent with this opinion of the Board. 

Issued: July 11, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy 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