United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.W., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Plainfield, NJ, Employer

__________________________________________

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Docket No. 18-1529

Issued: April 19, 2019

Appearances: Case Submitted on the Record

James D. Muirhead, Esq., 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 August 7, 2018 appellant, through counsel, filed a timely appeal from a March 23, 2018 

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.

ISSUES

The issues are: (1) whether appellant has met her burden of proof to establish disability 

commencing June 21, 2012 due to an accepted work-related left knee condition; and (2) whether 

 

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

OWCP abused its discretion by denying authorization of appellant’s October 22, 2012 left knee 

surgery.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances 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. OWCP assigned 

the claim OWCP File No. xxxxxx003. Appellant stopped work on October 5, 2009 and OWCP 

paid her disability compensation on the daily rolls commencing November 20, 2009.

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 approved by OWCP.4

By decision dated June 17, 2010, OWCP terminated appellant’s wage-loss compensation 

and medical benefits effective June 17, 2010 because she ceased to have residuals from her 

October 5, 2009 work injury as of that date. It based its termination action on a May 3, 2010 report 

of Dr. Augustin and a May 10, 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 while 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 OWCP File No. xxxxxx402.5

By decision dated August 9, 2012, OWCP denied appellant’s claim for a June 20, 2012 

traumatic injury in OWCP File No. xxxxxx402 because she failed to establish the medical 

component of fact of injury.

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

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

 

3 Docket Nos. 14-1187 and 14-1215 (issued February 2, 2015); Docket No. 17-1319 (issued December 7, 2017).

4 OWCP paid appellant received disability compensation on the periodic rolls commencing March 14, 2010.

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

for this claim were administratively combined by OWCP with OWCP File No. xxxxxx003, the file created for 

appellant’s October 5, 2009 employment injury. OWCP has designated OWCP File No. xxxxxx003 as the master 

file.
3

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, a representative of OWCP’s Branch of Hearings and 

Review 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.” OWCP’s hearing representative 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.”

By decision dated April 30, 2013, 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 

February 20, 2013 decision of OWCP’s hearing representative, 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 OWCP File No. xxxxxx402 and the latter period under 

OWCP 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 to 

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

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

By decision dated November 14, 2013, 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 

 

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

November 27, 2012, due to the expiration of her appointment.

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.
4

“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 notice of recurrence (Form CA-2a) under OWCP 

File No. xxxxxx402 for disability from work commencing June 21, 2012 due to her work-related 

left knee condition. On January 30, 2014 she filed a notice of recurrence under OWCP File No. 

xxxxxx003 for a recurrence of disability commencing October 22, 2012 due to her work-related 

left knee condition.

In a March 5, 2014 letter received on that date, counsel requested reconsideration on behalf 

of appellant and 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 which required 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 indicated, “Therefore, the 

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

June 20, 2012.”

By decision dated March 19, 2014, 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 her case 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 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 appellant 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 work-related left knee injury and her accepted June 20, 2012 work-related left 

 

8 Supra note 3.
5

knee injury. OWCP was directed to issue an appropriate decision on the matter after carrying out 

this development.

On remand, OWCP issued a June 11, 2015 decision denying 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 

conducted a preliminary review and 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 hearing representative indicated that OWCP’s medical adviser should be asked whether 

referral to a second opinion examiner would be appropriate. She noted that, after any additional 

development deemed necessary, OWCP should issue a de novo decision as to whether appellant 

was disabled from work commencing June 21, 2012 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 whether surgery was necessitated by 

a work-related condition and disability status.

In a November 10, 2016 report, 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 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. He posited that appellant had partial disability related to nonwork-related

degenerative changes and advised that she had been able to perform sedentary work since 

June 21, 2012.

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. In a 

December 2, 2016 report, Dr. Henderson indicated, “The aggravation of arthritis was temporary 

and has ceased at this time. I inadvertently stated that this caused a disability during the claimant’s 

employment, when in fact, it was the work incident that caused the disability.” Dr. Henderson 

 

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

advised that the accepted conditions should not be updated to include work-related aggravation of 

left knee osteoarthritis.

By decision dated December 19, 2016, 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 

appellant’s 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.

By decision dated April 6, 2017, OWCP denied appellant’s request for reconsideration of 

the merits of her claim pursuant to 5 U.S.C. § 8l28(a). It found that the argument submitted by 

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

Appellant appealed OWCP’s December 19, 2016 and April 6, 2017 decisions to the Board 

and, by decision dated December 7, 2017,10 the Board set aside both decisions and remanded the 

case to OWCP for further development. The Board found that there was an unresolved conflict in 

the medical opinion 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 was necessitated by a work-related condition and whether she had disability on or after 

June 21, 2012 due to a work-related condition. The Board determined that, on remand, appellant 

and the case record must be referred to an impartial medical specialist for examination and a 

rationalized medical opinion on these matters. The Board directed OWCP to issue a de novo

decision regarding appellant’s claim after carrying out this development.

On remand, OWCP referred appellant and the case record to Dr. Michael Wujciak, a 

Board-certified orthopedic surgeon, for an impartial medical examination and opinion regarding 

whether her 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.

In a February 27, 2018 report, Dr. Wujciak discussed appellant’s factual and medical 

history, including the circumstances of her work-related October 5, 2009 and June 20, 2012 left 

knee injuries, and he reported the findings of the physical examination he conducted on 

January 10, 2018. He reported that appellant demonstrated full range of motion of her left knee 

upon distraction. Appellant exhibited diffuse tenderness upon palpation of her left knee but her 

response was deemed to be exaggerated. Dr. Wujciak noted that appellant did not exhibit 

ligamentous laxity in her left knee and he generally indicated that her subjective complaints were 

disproportionately greater than her objective findings. He indicated that, after appellant suffered 

her October 5, 2009 work-related left knee injury, she had a good result from the January 12, 2010 

left knee arthroscopy with lateral meniscectomy and excision of plica. With respect to appellant’s 

June 20, 2012 left knee injury and her October 22, 2012 left knee surgery, Dr. Wujciak indicated 

that Dr. Glushakow found multiple pathologies during the surgery, including an osteochondral 

 

10 Supra note 3.
7

fracture of the medial femoral condyle and a tear of the lateral meniscus, but noted that

Dr. Glushakow failed to describe these conditions with any detail in his brief surgery report.

Dr. Wujciak further advised that he had reviewed a report of an August 24, 2012 MRI scan 

of appellant’s left knee and indicated that it was out of the ordinary for the study to show that the 

left lateral meniscus had normal signal intensity and morphology given that a partial lateral 

meniscectomy was performed on January 12, 2010.11 He asked to review the August 24, 2012 

MRI scan in its original hard copy (or on CD), if it was available, and to review any left knee xrays that were performed. Dr. Wujciak also recommended that the original August 24, 2012 MRI 

scan be reread by an independent third party. He asserted that, with the present documentation 

provided, he could not confirm the multiple pathologies observed by Dr. Glushakow during the 

October 22, 2012 surgery without further objective evidence. In the comments section on page 10 

of the report, Dr. Wujciak indicated, “[A] recommendation for the MRI scan of August 24, 2012 

to be over-read by an independent agent/radiologist is warranted. Also warranted is new x-ray 

study of the knees bilaterally [anteroposterior] standing and lateral, tunnel, and skyline view of the 

left knee, mostly from a forensic perspective.”

12

On March 12, 2018 OWCP requested that Dr. Wujciak provide a supplemental report 

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

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

In a March 13, 2018 report, Dr. Wujciak responded to a question about whether the 

October 22, 2012 surgery was necessary due to a work-related condition by noting that, based on 

the materials supplied and reviewed, he was unable to objectively “determine/diagnose the injuries 

sustained on October 22, 2012.” He indicated that it was apparent that no independent “over-read” 

of the August 24, 2012 MRI scan had been performed. Dr. Wujciak advised that Dr. Glushakow’s 

operative report and office records were insufficient to be used as determinative documentation in 

an independent evaluation.13 He indicated that his “medical/surgical opinions” may or may not 

alter with receipt of additional materials, including an independent over-read of the August 24, 

2012 MRI scan by a Board-certified radiologist, interoperative photographs of the January 12, 

2010 and October 22, 2012 surgeries, and treatment records produced between June 20 and 

July 5, 2012. Dr. Wujciak indicated that reference should be made to the comments on page 10 of 

his February 27, 2018 report.

OWCP sent Dr. Wujciak a number of treatment records dated between June 20 and 

July 12, 2012. In a March 15, 2018 report, Dr. Wujciak indicated that he had reviewed the 

provided records and noted, “My medical/surgical opinions as expressed in my prior report of 

 

11 The case record includes a report of the August 24, 2012 MRI scan which contains an impression of small joint 

effusion, moderate size popliteal cyst, and no evidence for meniscal tear. The report indicated that the left lateral 

meniscus had normal signal intensity and morphology.

12 Dr. Wujciak completed a work capacity evaluation form (Form OWCP-5c) on February 25, 2018 in which he 

indicated that appellant could perform modified duty for four hours per day. 

13 Dr. Wujciak indicated “No” in response to a question regarding whether appellant had established total disability 

on or after June 21, 2012 due to a work-related condition.
8

February 27, 2018 and addendum of March 13, 2018 remain otherwise unchanged. “Comments”

as given on page 10 of prior report remain relevant.”

By decision dated March 23, 2018, OWCP found that appellant failed to meet her burden 

of proof to establish disability from work commencing June 21, 2012 due to a work-related left 

knee condition. It also determined that appellant’s October 22, 2012 left knee surgery was not 

necessitated by a work-related condition. OWCP indicated that the special weight of the medical 

opinion evidence rested with the well-rationalized opinion of Dr. Wujciak, the impartial medical

specialist.

LEGAL PRECEDENT -- ISSUES 1 & 2

An employee seeking benefits under FECA 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 or specific condition for which compensation is claimed is causally related 

to the employment injury.14 In general the term disability under FECA means incapacity because 

of injury in employment to earn the wages which the employee was receiving at the time of such 

injury.15 This meaning, for brevity, is expressed as disability from work.16 The medical evidence 

required to establish causal relationship between a claimed period of disability and an employment 

injury is rationalized medical opinion evidence.

17

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.”

18

 The Board has found that OWCP has great discretion in 

determining whether a particular type of treatment is likely to cure or give relief.19 The only 

limitation on OWCP’s authority is that of reasonableness.20 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.21 

 

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

15 See 20 C.F.R. § 10.5(f).

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

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

18 5 U.S.C. § 8103. 

19 R.C., Docket No. 18-0612 (issued October 19, 2018); Vicky C. Randall, 51 ECAB 357 (2000).

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

21 Rosa Lee Jones, 36 ECAB 679 (1985).
9

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 a work-related injury or condition.22 

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

evidence.23

FECA provides that if there is disagreement between an OWCP-designated physician and 

the employee’s physician, OWCP shall appoint a third physician who shall make an examination.24 

For a conflict to arise the opposing physicians’ viewpoints must be of “virtually equal weight and 

rationale.”

25

 Where OWCP has referred the case to an impartial medical examiner to resolve a 

conflict in the medical evidence, the opinion of such a specialist, if sufficiently well reasoned and 

based upon a proper factual background, must be given special weight.26

ANALYSIS -- ISSUES 1 & 2

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

OWCP had determined that there was a conflict in the medical opinion between

Dr. Glushakow, an attending physician, and Dr. Henderson, an OWCP referral physician, 

regarding whether appellant had work-related disability on or after June 21, 2012 and whether her 

October 22, 2012 left knee surgery was necessitated by a work-related condition. In order to 

resolve the conflict, OWCP properly referred appellant, pursuant to section 8123(a) of FECA, to

Dr. Wujciak for an impartial medical examination and an opinion on these issues.

27

 

OWCP found that the special weight of the medical evidence with respect to these 

disability and surgery authorization issues was represented by the February 27, March 13 and 15, 

2018 reports of Dr. Wujciak. The Board notes, however, that these reports do not contain a clear 

opinion regarding the issues which he was to opine, that is, whether appellant had work-related 

disability on or after June 21, 2012 and whether the October 22, 2012 left knee surgery was 

necessitated by a work-related condition.

When these reports are read collectively it is clear that Dr. Wujciak felt that additional 

documentation was necessary before he could render a final opinion on these disability and surgery 

authorization matters. For example, Dr. Wujciak indicated in the comments section on page 10 of 

his February 27, 2018 report, “[A] recommendation for the MRI scan of August 24, 2012 to be 

over-read by an independent agent/radiologist is warranted. Also warranted is new x-ray study of 

 

22 J.R., Docket No. 17-1523 (issued April 3, 2018); Bertha L. Arnold, 38 ECAB 282, 284 (1986).

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

24 5 U.S.C. § 8123(a); Shirley L. Steib, 46 ECAB 309, 317 (1994).

25 Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

26 Gary R. Sieber, 46 ECAB 215, 225 (1994).

27 See supra notes 24 and 25.
10

the knees bilaterally [anteroposterior] standing and lateral, tunnel, and skyline view of the left 

knee, mostly from a forensic perspective.”

In a March 13, 2018 report, Dr. Wujciak discussed the insufficiencies of the documents in 

the case record, including the reports of Dr. Glushakow, and noted that his “medical/surgical 

opinions” may or may not alter with receipt of additional materials, including an independent overread of the August 24, 2012 MRI scan by a Board-certified radiologist, interoperative photographs 

of the January 12, 2010 and October 22, 2012 surgeries, and treatment records produced between 

June 20 and July 5, 2012. OWCP sent Dr. Wujciak a number of treatment records dated between 

June 20 and July 12, 2012. In a March 15, 2018 report, Dr. Wujciak indicated that he had 

reviewed the provided records and noted that the comments he provided on page 10 of his 

February 27, 2018 report remained relevant.

In a situation where OWCP secures an opinion from an impartial medical specialist for the 

purpose of resolving a conflict in the medical evidence and the opinion from such examiner 

requires clarification or elaboration, OWCP has the responsibility to secure a supplemental report 

from the examiner for the purpose of correcting the defect in the original opinion.28

For the above-described reasons, the opinion of Dr. Wujciak is in need of clarification and 

elaboration. Therefore, in order to resolve the continuing conflict in the medical opinion, the case 

will be remanded to OWCP for referral of the case record, a statement of accepted facts, and if 

necessary, appellant, to Dr. Wujciak for a supplemental report. If Dr. Wujciak is unable to clarify 

or elaborate on his original report or if his supplemental report is also vague, speculative, or lacking 

in rationale, OWCP must submit the case record and a detailed statement of accepted facts to a 

second impartial specialist for the purpose of obtaining his rationalized medical opinion on the 

issue.29 After such further development as OWCP deems necessary, a de novo decision shall be 

issued regarding whether appellant had work-related disability on or after June 21, 2012 and 

whether the October 22, 2012 left knee surgery was necessitated by a work-related condition.

CONCLUSION

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

 

28 Nancy Lackner (Jack D. Lackner), 40 ECAB 232, 238 (1988).

29 Harold Travis, 30 ECAB 1071, 1078 (1979).
11

ORDER

IT IS HEREBY ORDERED THAT the March 23, 2018 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case is remanded to OWCP for action 

consistent with this decision.

Issued: April 19, 2019

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