United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.T., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

FEDERAL AIR MARSHAL SERVICE, 

East Elmhurst, NY, Employer

__________________________________________

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Docket No. 17-1292

Issued: February 8, 2018

Appearances: Case Submitted on the Record

Benjamin R. Zimmermann, 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 24, 2017 appellant, through counsel, filed a timely appeal from a May 4, 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 Together with his appeal request, appellant submitted a timely request for oral argument pursuant to 20 C.F.R. 

§ 501.5(b). By order dated November 2, 2017, the Board exercised its discretion and denied the request as 

appellant’s arguments on appeal could be adequately addressed in a decision based on a review of the case as 

submitted on the record. Order Denying Request for Oral Argument, Docket No. 17-1292 (issued 

November 2, 2017). 
2

ISSUE

The issue is whether appellant met his burden of proof to establish a left knee condition 

causally related to the accepted October 1, 2014 employment incident.

FACTUAL HISTORY

On October 1, 2014 appellant, then a 42-year-old federal air marshal, filed a traumatic 

injury claim (Form CA-1) alleging that he sustained an unspecified left knee condition, which 

allegedly occurred at 9:45 a.m. that day while using an elliptical machine in the employing 

establishment’s gym. His left knee buckled and appellant immediately felt pain and discomfort. 

However, appellant did not stop working that day. 

In an October 7, 2014 attending physician’s report (Form CA-20) Dr. Bruce R. Ross, a 

Board-certified orthopedic surgeon, diagnosed left knee internal derangement. He indicated that 

the condition was employment related, having noted that appellant was on an elliptical machine 

at work when the injury occurred. Dr. Ross also reported that appellant had a similar left knee 

injury that was treated from October 2011 to May 2012.4 He advised that appellant was totally 

disabled as of October 8, 2014.

On October 8, 2014 appellant stopped work and received continuation of pay. He

submitted physical therapy reports dated October 29 and 31, 2014. 

In a November 11, 2014 follow-up report (Form CA-20), Dr. Ross continued to diagnose 

employment-related left knee internal derangement. He also advised that appellant was unable to 

work until further notice. 

In a second report dated November 11, 2014, Dr. Ross noted that appellant had chronic 

pain in the left knee and indicated that the knee had buckled and locked in place, as well. 

Appellant reportedly finished 12 sessions of physical therapy. Upon examination of the knee,

Dr. Ross found an effusion, chronicity, and severe pain to palpation of the fibular head. He 

continued to diagnose internal derangement of the left knee and ruled out occult fibular head 

fracture. Dr. Ross requested additional physical therapy and continued to advise that appellant 

remained disabled and unemployable. 

In a December 18, 2014 development letter, OWCP advised appellant of the deficiencies 

of his claim and afforded him 30 days to submit additional evidence and respond to its inquiries. 

 

4

In a September 29, 2011 report, Dr. Ross noted that appellant tripped on August 31, 2011 injuring his left knee. 

He found that x-rays of the left knee showed mild tri-compartmental degenerative changes and the impression was 

that of an internal derangement of the left knee versus sprain of the knee. A November 21, 2011 magnetic 

resonance imaging (MRI) scan of the left knee revealed nondisplaced fibular head fracture, areas of meniscal 

degeneration within the posterior horn of the medial meniscus, and anterior and posterior horns of the lateral 

meniscus, thickened lateral plica, and small effusion. In a January 26, 2012 report, Dr. Ross noted that appellant 

presented with left knee pain as a result of a work-related injury which occurred on August 31, 2011. He also noted 

that appellant was on an airplane when he tripped and injured his left knee. Dr. Ross diagnosed post-traumatic 

work-related injury to the left knee and pain refractory to conservative treatment. 
3

In response, appellant submitted a December 26, 2014 narrative statement indicating that 

on October 1, 2014 he was assigned a 0900-1700 nonmission office day. He explained that,

during office days, he was permitted to use the gym to work out and that is what he was doing 

when he was injured during regular workhours. 

Appellant further submitted a December 2, 2014 report from Dr. Ross who indicated that 

appellant experienced left knee pain if he sat for more than 2 minutes and also reported that he 

could not stand for more than 10 minutes without the knee becoming painful laterally and 

posteriorly. Dr. Ross found marked pain over the lateral joint line and a positive McMurray’s 

sign. He diagnosed a tear of the lateral meniscus as well as mild osteoarthritis and advised that 

appellant remained unemployable. 

By decision dated January 21, 2015, OWCP accepted that the October 1, 2014 incident 

occurred as alleged, but denied appellant’s claim because he failed to submit evidence containing 

a medical diagnosis in connection with the injury or events. Thus, it concluded that he had not 

established the medical component of fact of injury. 

On January 20, 2016 counsel requested reconsideration. In support of the request, he

submitted a September 1, 2015 report from Dr. Ross, who asserted that appellant had been under 

his care since September 29, 2011 for evaluation and treatment of a left knee injury. Dr. Ross

noted that on September 29, 2011 appellant tripped on a plane and sustained injuries to his left 

knee. He further indicated that on October 8, 2014 appellant had returned to work and stated that 

he reinjured the left knee after the knee buckled. Dr. Ross explained that his initial impression 

was internal derangement of the knee with osteoarthritis. However, on May 20, 2015, appellant 

had an MRI scan of the left knee, which indicated a new partial tear of the mid substance of the 

anterior cruciate ligament. Dr. Ross reported that on June 30, 2015 appellant continued to have 

pain and instability of the left knee. The knee was very unstable and buckled several times a 

day. Dr. Ross informed appellant that surgery would be a good choice. However, with the 

preexisting degenerative changes of the knee, appellant could be left with pain postoperatively. 

Dr. Ross reported that appellant conducted research on the surgery and decided that it was not an 

option for him. He opined that appellant’s two work-related injuries were a direct cause of his 

left knee conditions. Dr. Ross advised that appellant was unable to participate in physical 

activities without significant possibility of the left knee buckling. Dr. Ross concluded that this 

was a permanent injury and noted that appellant’s osteoarthritis would increase over time. 

In a note dated October 8, 2014, Dr. Ross indicated that appellant had reported that his

left knee was buckling while working. His chief complaints were pain, swelling, and instability. 

Appellant stated that in 2011, he had an injury to the left knee and at that time an MRI scan had 

shown a nondisplaced fibular head fracture with meniscal degeneration. No surgery was 

conducted at that time. Dr. Ross diagnosed “[t]ear lateral meniscus posterior horn with mild 

osteoarthritis knee.” 

A May 20, 2015 MRI scan of the left knee demonstrated areas of meniscal degeneration 

again identified within the posterior horn of the medial meniscus as well as the anterior and 

posterior horns of the lateral meniscus, new partial tear of the mid substance of the anterior 

cruciate ligament, and joint effusion. There was no evidence of meniscal tear. Slightly,

thickened medial plica now identified. 
4

In an affidavit dated January 20, 2016, appellant stated that on October 1, 2014 his left 

knee buckled while he was using the elliptical machine in the second floor office gym and he felt 

immediate pain and discomfort in his left knee. At the time of the incident, he stated that he was 

a federal employee who was required to meet qualifying medical and physical fitness standards 

each quarter and he had been regularly engaged in a physical fitness training program since 

starting his employment in January 2002. Appellant reiterated that he was injured on an 

elliptical machine that was purchased by the employing establishment and located inside the 

office gym which he used during office training days. 

By decision dated August 16, 2016, OWCP accepted that the October 1, 2014 

employment incident occurred as alleged, but denied the claim because the medical evidence of 

record failed to establish causal relationship between appellant’s diagnosed conditions and the 

October 1, 2014 work incident. 

On September 12, 2016 counsel requested reconsideration and submitted a February 3, 

2016 report from Dr. Ross who noted that appellant had related to him that his knee buckled, 

reinjuring his left knee on October 1, 2014 while exercising on an elliptical machine while he 

was trying to strengthen the knee and diminish the instability that was occurring. Dr. Ross 

opined that appellant’s previous injury on August 31, 2011 resulted in a nondisplaced fibular 

head fracture and anterior cruciate ligament (ACL) sprain that was responsible for the weakened 

knee joint allowing further injury to enter as a result of the instability. He noted the fact that the 

initial injury had taken place three years earlier led him to believe that there was a partial tear at 

the time, which left the ligament in a weakened state allowing subsequent buckling incidents to 

occur years later. Dr. Ross further opined that the fact that the 2014 incident was described as 

buckling was significant due to the fact that such a description was often made with injuries by 

appellant to the ACL which was already in a debilitated condition. He concluded that appellant’s 

conditions were work related. 

By decision dated November 23, 2016, OWCP denied modification of its prior decision. 

On February 6, 2017 counsel requested reconsideration and submitted an undated report 

from Dr. Ross who explained that a left knee MRI scan showed a new partial tear of appellant’s 

ACL, an injury which was not previously present. He indicated that appellant’s history of his 

knee buckling on October 1, 2014 resulting in pain and swelling, his unsuccessful attempt at 

physical therapy, and his MRI scan showing this new injury was a classic presentation and 

history of an acute ACL tear. Dr. Ross further indicated that the mechanism of injury was also 

classic in that the physical activity appellant was engaged in at work on October 1, 2014 created 

a downward force and impact load that caused the new ACL tear, as well as the resulting pain, 

swelling, and failed course of physical therapy. He noted that in his prior reports he had 

indicated that the ACL may have had a small tear from a prior injury, but the MRI scan findings 

made clear that the injury suffered on October 1, 2014 was an entirely new injury resulting in a 

tear that was not present on appellant’s prior MRI scans. Dr. Ross diagnosed acute ACL tear and 

noted that his only point in addressing the prior injury was that it made appellant’s knee 

susceptible to the tear that occurred on October 1, 2014, which was directly related to the work 

activities appellant was performing that day. 

In a May 4, 2017 statement, the employing establishment confirmed that appellant was 

required to participate in a health, fitness, and wellness program as part of his federal duties and 
5

that he was exercising in the gym located in the approved New York Field Office fitness center 

during regular workhours when the injury occurred. 

By decision dated May 4, 2017, OWCP denied modification of its prior decision. 

LEGAL PRECEDENT

A claimant seeking benefits under FECA5 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.6

To determine whether an employee sustained a traumatic injury in the performance of 

duty, OWCP begins with an analysis of whether fact of injury has been established. Generally, 

fact of injury consists of two components that must be considered in conjunction with one 

another. The first component is whether the employee actually experienced the employment 

incident that allegedly occurred.7 The second component is whether the employment incident 

caused a personal injury.8 An employee may establish that an injury occurred in the performance 

of duty as alleged, but fail to establish that the disability or specific condition for which 

compensation is being claimed is causally related to the injury.9

Causal relationship is a medical question that generally requires rationalized medical 

opinion evidence to resolve the issue.10 A physician’s opinion on whether there is causal 

relationship between the diagnosed condition and the implicated employment factor(s) must be 

based on a complete factual and medical background.11 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 factor(s).12

In any case where a preexisting condition involving the same part of the body is present 

and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation, 

the physician must provide a rationalized medical opinion that differentiates between the effects 

of the work-related injury or disease and the preexisting condition.13

 

5 See supra note 2.

6 20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

7 Elaine Pendleton, 40 ECAB 1143 (1989).

8

John J. Carlone, 41 ECAB 354 (1989).

9 Shirley A. Temple, 48 ECAB 404, 407 (1997).

10 Robert G. Morris, 48 ECAB 238 (1996).

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

12 Id.

13 Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).
6

While the claimant has the burden of proof to establish entitlement to compensation, 

OWCP shares responsibility in the development of the evidence and to see that justice is done.14 

ANALYSIS

OWCP accepted that the October 1, 2014 employment incident occurred as alleged, and 

also accepted that there was a medical diagnosis in connection with the employment incident. 

However, it denied appellant’s traumatic injury claim finding that the medical evidence of record

was insufficient to establish causal relationship between the diagnosed condition(s) and the 

accepted employment incident. The issue, therefore, is whether appellant’s left knee condition 

resulted from the October 1, 2014 employment incident. Counsel argues that the claim should be 

accepted for left knee acute ACL tear. 

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

In his reports of record, Dr. Ross initially diagnosed lateral meniscus tear and mild 

osteoarthritis of the left knee. His later reports noted that appellant had related to him that his 

knee buckled, reinjuring his left knee on October 1, 2014 while he was exercising on an elliptical 

machine, trying to strengthen the knee and diminish instability. Dr. Ross opined that a previous 

work injury on August 31, 2011, where appellant had tripped on a plane, resulted in a 

nondisplaced fibular head fracture and ACL sprain that was responsible for the weakened knee 

joint allowing further injury to occur as a result of the instability. He indicated the fact that the 

initial injury had taken place three years earlier led him to believe that there was a partial tear at

the time, which left the ligament in a weakened state allowing subsequent buckling incidents to 

occur years later. Dr. Ross further explained that the fact that the 2014 incident was described as 

“buckling” was significant due to the fact that such a description was often made by patients who 

had ACL injuries. He indicated that appellant’s history of his knee buckling on October 1, 2014 

resulting in pain and swelling, his unsuccessful attempt at physical therapy, and his MRI scan 

showing this new injury was a classic presentation and history of an acute ACL tear. 

Dr. Ross further indicated that the mechanism of injury was classic in that the physical 

activity appellant was engaged in at work on October 1, 2014 created a downward force and 

impact load that caused the new ACL tear, pain, swelling, and failed course of physical therapy. 

He found that MRI scan findings made clear that the injury suffered on October 1, 2014 was an 

entirely new injury resulting in a tear that was not presented on appellant’s prior MRI scans. 

Dr. Ross opined that appellant’s left knee conditions were causally related to the October 1, 2014 

elliptical incident at work. 

The Board finds that the medical reports by Dr. Ross, which were submitted into the 

record, provide sufficient medical rationale explaining how the accepted employment incident 

caused or contributed to the manifestation of the new ACL tear, which resulted in pain and 

swelling. The reports of Dr. Ross strongly suggest and support a relationship between the 

accepted October 1, 2014 employment incident on the elliptical exercise machine and the new 

 

14 Donald R. Gervasi, 57 ECAB 281, 286 (2005); Jimmy A. Hammons, 51 ECAB 219 (1999); William J. Cantrell, 

34 ECAB 1233, 1237 (1983).
7

left knee ACL tear.15 He provided significant rationale to explain how the described “buckling”

injury had evidenced an ACL injury at the time of the incident and that the physical activity 

appellant was engaged in at work on October 1, 2014 created a downward force and impact load 

that caused the new ACL tear. While the reports by Dr. Ross are not completely rationalized, 

they are consistent in indicating that appellant sustained a new ACL tear due to the accepted 

incident and they are not contradicted by any substantial or factual evidence of record.16

It is well established that proceedings under FECA are not adversarial in nature and 

OWCP is not a disinterested arbiter.17 While the claimant has the burden of proof to establish 

entitlement to compensation, OWCP shares responsibility in the development of the evidence 

and to see that justice is done.18 Thus, the Board will remand the case to OWCP for further 

development to obtain a rationalized medical opinion as to whether appellant’s condition is 

causally related to the accepted employment incident and issue a de novo decision on whether he 

sustained an injury causally related to the accepted October 1, 2014 employment incident, as 

alleged.19

CONCLUSION

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

 

15 See L.F., Docket No. 14-1906 (issued August 13, 2015) (the Board determined that while reports by a 

claimant’s treating physician were not completely rationalized to establish a work-related injury they strongly 

supported a relationship between the employment incident and diagnosed condition and remanded the case for 

OWCP to further develop the medical evidence).

16 See C.T., Docket No. 17-0593 (issued December 15, 2017); E.J., Docket No. 09-1481 (issued 

February 19, 2010). Richard E. Simpson, 55 ECAB 490, 500 (2004); John J. Carlone, 41 ECAB 354, 360 (1989).

17 See Vanessa Young, 56 ECAB 575 (2004).

18 Supra note 14.

19 Supra note 13 at Chapter 2.805.5 (January 2013).
8

ORDER

IT IS HEREBY ORDERED THAT the May 4, 2017 decision of the Office of Workers’

Compensation Programs is set aside and the case remanded to OWCP for further action 

consistent with this decision of the Board.

Issued: February 8, 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