United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.H., Appellant

and

U.S. POSTAL SERVICE POST OFFICE, 

Malden, MA, Employer

__________________________________________

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Docket No. 17-1477

Issued: March 14, 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 June 22, 2017 appellant, through counsel, filed a timely appeal from a June 8, 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 Appellant timely requested oral argument pursuant to section 501.5(b) of the Board’s Rules of Procedure. 

20 C.F.R. § 501.5(b). By order dated November 24, 2017, the Board exercised its discretion and denied the request, 

finding that the arguments on appeal could adequately be addressed based on the case record. Order Denying 

Request for Oral Argument, Docket No. 17-1477 (issued November 24, 2017). The Board’s Rules of Procedure

provide that any appeal in which a request for oral argument is not granted by the Board will proceed to a decision 

based on the case record and any pleadings submitted. 20 C.F.R. § 501.5(b). 
2

ISSUE

The issue is whether appellant has met his burden of proof to establish bilateral knee 

osteoarthritis causally related to the accepted factors of his federal employment.

FACTUAL HISTORY

On September 8, 2014 appellant, then a 54-year-old letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that the physical activities of his federal employment had an 

adverse effect on his knees, requiring two knee replacements. He listed his employment duties 

as carrying mail and tubs of flats weighing up to 40 pounds, standing and casing mail for two to 

three hours a day, and walking five to six miles a day while delivering mail for at least six hours. 

Appellant noted that these duties required constant bending, stooping, lifting, and working in 

weather from extreme heat to extreme cold. He further noted that the sidewalk and stairs he 

walked on were sometimes extremely slippery. Appellant listed the nature of his disease or 

illness as acceleration of osteoarthritis, bilateral knees. He did not stop work.

In a March 9, 2011 report, Dr. Jeffrey A. Polansky, a Board-certified orthopedic surgeon, 

noted that appellant worked as a mailman. He related that appellant’s physical examination 

demonstrated decreased flexion and extension of both knees with severe varus deformity and an

x-ray examination showed significant medial compartment collapse bilaterally. Dr. Polansky 

released appellant to return to work a normal schedule, but restricted him from use of a push cart 

due to his bilateral osteoarthritis of his knees. 

Appellant submitted a number of reports from his treating physician, Dr. Arnold D. 

Scheller, a Board-certified orthopedic surgeon. In a July 20, 2011 report, Dr. Scheller noted that 

appellant complained of pain in his right knee which he described as moderate to severe. His 

symptoms were listed as joint stiffness, swelling, decreased range of motion, catching, grinding, 

popping/crepitus, locking, as well as instability, and muscle weakness. Dr. Scheller diagnosed 

right knee osteoarthrosis. He referred appellant to pain management for a facet injection. 

In a November 28, 2011 x-ray of appellant’s right knee, Dr. Mihran Artinian, a Boardcertified radiologist, diagnosed severe osteoarthritic changes involving the medial compartment

of the right knee with varus deformity. He also noted moderate-to-severe degenerative disc 

disease of the patellofemoral compartment with patellar spurring and that soft tissue 

calcifications were present lateral to the femoral epicondyle. Dr. Artinian concluded that 

appellant had moderate-to-severe osteoarthritic changes involving both medial tibiofemoral 

compartments, right more than left, with bilateral varus deformities. 

By report dated May 8, 2012, Dr. Scheller noted that appellant’s onset of left knee pain 

had been gradual. He continued to submit progress notes with regard to his treatment of 

appellant. 

On May 16, 2012 Dr. Joel S. Newman, a Board-certified radiologist, found that 

appellant’s left knee showed tricompartmental osteoarthritis, greatest in the medial femorotibial 

compartment with mild-to-moderate varus angulation of the knee. 
3

Appellant continued to seek treatment with Dr. Scheller. In a January 22, 2014 report,

Dr. Scheller summarized his treatment of appellant, as well as appellant’s medical history. He 

noted that appellant had a series of injections to his knees in 2007, 2009, 2010, and 2011.

Dr. Scheller indicated that he performed a total right knee replacement on December 15, 2011 

and a total left knee replacement on June 7, 2012. He reviewed appellant’s job description and

opined that there was clear causation as to the employment-related activities, which accelerated 

the arthritic disease in both knees eventually requiring treatment of bilateral total knee 

replacements. Dr. Scheller explained that his initial review of appellant’s x-rays showed severe 

arthritis. He noted that appellant had bilateral knee stiffness at the end of long days, and 

swelling more on the left side than right, but that in spite of his discomfort, appellant was able to 

work his schedule as a letter carrier. 

Dr. Scheller reported that appellant had undergone bilateral total knee replacements for 

end-stage degenerative arthritis, which was aggravated by his work activities. He explained that 

the arthritic process was accelerated by appellant’s employment. Dr. Scheller noted that arthritis 

was a failure and loss of articular cartilage. He indicated that appellant’s job as a letter carrier 

required constant repetitive walking, squatting, stooping, climbing, bending, lifting, carrying, 

stair climbing, and twisting. Dr. Scheller opined that it was the impact loading and the constant 

and continuous repeated local stressors regularly occurring over the course of the workday which 

was repeated day after day that accelerated progression of the underlying arthritis. The medical 

process by which this occurred was that the impact loading resulted in chronic inflammation and 

accelerated the loss of articular cartilage. As the articular cartilage deteriorated due to these 

mechanical stresses, breakdown products from the cartilage were released and this resulted in

persistent intermittent swelling and effusions in the knee. Dr. Scheller also noted that bone 

outgrowth then formed on the margins of the joints to help distribute the abnormal forces, and 

that these bone changes together with inflammation can be both painful and debilitating and were 

characteristic of progressive osteoarthritis. He also noted that arthroplasty itself created a 

permanent aggravating condition. Based on all above factors, Dr. Scheller concluded that 

appellant’s employment activity contributed to acceleration of his arthritic condition leading to 

his bilateral total knee replacements. 

By development letter dated December 1, 2014, OWCP informed appellant that 

additional medical evidence was necessary to establish his claim and afforded him 30 days to 

submit this evidence. 

On March 27, 2015 OWCP referred appellant’s case to an OWCP medical adviser for a 

rationalized medical opinion as to whether appellant’s federal work activities caused his bilateral 

knee conditions. In a response of the same date, Dr. Morley Slutsky, a physician Board-certified 

in occupational medicine, acting as an OWCP medical adviser, reviewed the medical evidence 

and opined that none of the evidence discussed appellant’s history or how his symptoms

occurred in relation to his work. With regard to Dr. Scheller’s January 22, 2014 report,

Dr. Slutsky reported that, although Dr. Scheller indicated that appellant’s bilateral total knee 

replacement was employment related and that there was clear causation to his employmentrelated activities, he did not discuss how appellant developed symptoms/findings in relation to 

the employment duties. Dr. Slutsky did opine that, as appellant had significant osteoarthritis in 

both knees, which resulted in pain and limitations and had failed all reasonable attempts at 

conservative treatment, he required the bilateral knee replacements he had undergone. However, 

he felt that additional evidence was required from appellant before he could fully render an 
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opinion. Dr. Slutsky was provided appellant’s narrative statement on April 10, 2015, but was 

still unable to render an opinion. 

Appellant’s case was, therefore, forwarded to Dr. David I. Krohn, a Board-certified 

internist and an OWCP medical adviser. In April 19, 2015 report, Dr. Krohn opined that the

predominant cause of appellant’s right knee osteoarthritis was not related to his employment, but 

rather to a significant nonwork-related injury to the right knee, as well as the arthroscopic

surgery performed on that knee. He noted that Dr. Scheller provided no mention of a prior right 

knee medial meniscectomy, a prior nonemployment-related injury that caused the injury, or the 

nature of the prior injury to the left knee that he mentioned on May 8, 2012. Dr. Krohn noted

that the American Medical Association, Guides to the Evaluation of Disease and Injury 

Causation (2d ed. 2013) (A.M.A., Guides) provided that nonoccupational risk factors for which 

there was strong or very strong evidence for causal relationship to the development of 

osteoarthritis, included previous trauma, previous meniscectomy or meniscal injury, as well as 

age and being overweight. He opined that these factors far outweighed any contribution by 

activities that were performed by appellant in his federal employment. Dr. Krohn also noted that 

there was no mention of any specific work-related trauma by appellant in the multiple detailed 

orthopedic evaluations since 2007 and argued strongly against a work-related causal relationship 

for the development of bilateral severe osteoarthritis sufficient to require bilateral arthroplasty. 

Further, he noted that appellant developed bilateral knee osteoarthritis sufficiently severe as to 

require total knee arthroplasty, which in his opinion spoke to a genetic predisposition in 

development of knee osteoarthritis in which the “wear and tear” of any occupation would have 

eventually resulted in bilateral total knee arthroplasty. Dr. Krohn opined that bilateral knee 

replacements were medically necessary due to the severity of appellant’s bilateral knee 

osteoarthritis, but were not causally related to his federal employment. 

By decision dated April 21, 2015, OWCP denied appellant’s claim. It noted that the 

medical evidence of record established that he experienced the alleged employment factors and 

that a medical condition had been diagnosed. However, OWCP denied appellant’s claim 

because causal relationship had not been established. 

On May 4, 2015 appellant, through counsel, requested an oral hearing before an OWCP 

hearing representative. By letter dated October 30, 2015, counsel instead requested a review of 

the written record. 

By decision dated January 21, 2016, OWCP’s hearing representative set aside the 

April 21, 2015 decision. She found that an unresolved conflict existed between OWCP’s

medical adviser Dr. Krohn and treating physician Dr. Scheller. The case was, therefore, 

remanded for an impartial medical examination to determine whether appellant’s medical 

condition affecting the lower extremities was caused, aggravated, or accelerated by factors of his 

federal employment. The impartial medical examiner was also to provide an opinion explaining 

whether the accepted employment factors caused or contributed to the need for bilateral knee 

replacement surgeries. 

By letter dated October 5, 2016, OWCP referred appellant to Dr. Murray Goodman, a 

Board-certified orthopedic surgeon, for an impartial medical examination. In a November 10, 

2016 report, Dr. Goodman noted that appellant had worked for the employing establishment 

since 1993 as a letter carrier. He discussed appellant’s medical history and conducted a physical 
5

examination. Dr. Goodman opined that appellant’s bilateral knee osteoarthritis was neither 

causally related to his work as a letter carrier, nor was it permanently aggravated by that 

occupation. He noted that it was significant that appellant underwent bilateral arthroscopic 

meniscectomies more than 20 years prior to his knee arthroplasties. Dr. Goodman further noted 

that it was well known that postmeniscectomy knees have a high incidence of development of 

osteoarthritis and this frequently takes 15 to 20 years to develop. He opined that this was the 

major predisposing factor to his need for total knee arthroplasty in his opinion. Dr. Goodman 

noted that, although the pathophysiology of osteoarthritis cited by Dr. Scheller in his report was 

correct, the etiology in the present case was not employment related. He noted that the A.M.A., 

Guides indicate that there was strong evidence for previous meniscectomy or meniscus injury as 

an accepted risk factor for arthritis. Dr. Goodman noted that the same source sites insufficient 

evidence for standing and walking as a causative factor. He also explained that the lack of any 

one specific injury at work also mitigated against an occupational causal relationship and the fact 

that he lost no time from work mitigated against his occupation being an aggravating factor. 

By decision dated June 8, 2017, OWCP denied appellant’s claim as he had not 

established causal relationship between the accepted employment factors and his diagnosed 

medical conditions. 

LEGAL PRECEDENT

An employee seeking benefits under FECA4 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 the 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.

5

 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.6 

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; (2) a factual 

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

or occurrence of the disease or condition; and (3) medical evidence establishing that 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. 

The medical evidence must include a physician’s rationalized opinion on the issue of whether 

there is causal relationship between the claimant’s diagnosed condition and the implicated 

employment factors. 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 

 

4 Supra note 2.

5

Joe D. Cameron, 41 ECAB 153 (1989). 

6 See Irene St. John, 50 ECAB 521 (1999).
6

supported by medical rationale explaining the nature of the relationship between the diagnosed 

condition and the specific employment factors identified by the claimant.7

Section 8123(a) provides that, if there is a 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.8 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.9 In situations where there exist opposing medical reports of virtually equal weight 

and rationale and the case is referred to an impartial medical specialist for the purpose of

resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based 

upon a proper factual background, must be given special weight.10

ANALYSIS

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

Appellant alleged that he sustained bilateral knee osteoarthritis due to his federal 

employment duties as a letter carrier. OWCP accepted that he performed the employment duties 

alleged. Appellant’s treating physician, Dr. Scheller, explained in detail how appellant’s specific 

work activities caused impact loading to his knees and how he experienced repeated local 

stressors over the course of the workday that accelerated the progression of his underlying 

arthritis. OWCP’s medical adviser, Dr. Krohn reviewed the case record and cited the A.M.A., 

Guides for the proposition that appellant’s nonoccupational risk factors, including his prior 

meniscectomies, far outweighed any contribution appellant’s work activities had to the 

development of his bilateral knee osteoarthritis. OWCP thereafter declared a conflict in the 

medical opinion evidence and referred appellant to Dr. Goodman for an impartial medical 

evaluation. 

The Board finds, however, that OWCP improperly determined that there was a conflict in 

medical opinion between Dr. Krohn and Dr. Scheller on the issue of whether appellant sustained 

an injury causally related to the accepted factors of his federal employment. A simple 

disagreement between two physicians does not, of itself, establish a conflict. A conflict only 

exists when there are opposing medical reports of virtually equal weight and rationale.11 

The Board notes that there is no requirement that the federal employment be the only 

cause of appellant’s condition. An employee is not required to prove that occupational factors 

 

7

Id.

8 R.C., Docket No. 12-0437 (issued October 23, 2012).

9 20 C.F.R. § 10.321.

10 F.C., Docket No. 14-0560 (issued November 12, 2015). 

11 See Robert D. Reynolds, 49 ECAB 561 (1998).
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are the sole cause of his or her claimed condition. If work-related exposures caused, aggravated,

or accelerated appellant’s condition, he is entitled to compensation.12 While implying that 

appellant’s employment activities could have contributed in some degree to the development of 

his bilateral knee osteoarthritis, Dr. Krohn did not explain why causal relationship did not exist. 

His opinion was, therefore, insufficiently rationalized to create a conflict with the opinion of

Dr. Scheller. 

Due to the lack of a conflict in the medical evidence at the time of the referral to

Dr. Goodman for an impartial medical examination, Dr. Goodman actually served as an OWCP 

referral physician rather than an impartial medical specialist.13 Even though the report of 

Dr. Goodman is thus not entitled to the special weight afforded to the opinion of an impartial 

medical specialist, his report can still be considered for its own intrinsic value.14 

The Board, however, finds the opinion of Dr. Goodman is insufficient to carry the weight 

of the medical evidence of record. Dr. Goodman noted that appellant was employed as a letter 

carrier, but did not discuss appellant’s specific work duties. Rather, he simply relied on the 

general principles found in the A.M.A., Guides when finding that there was insufficient evidence 

to support that certain work factors caused osteoarthritis in appellant’s knees. The Board has 

held that newspaper clippings, medical texts, and excerpts from publications are of no 

evidentiary value in establishing causal relationship between a claimed condition and an 

employee’s federal employment. Such materials are of general application and are not 

determinative as to whether the specific condition claimed is related to the particular 

employment factors alleged by the employee.15 

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

although claimant has the burden of proof to establish entitlement to compensation, OWCP 

shares responsibility in the development of the evidence.16 Once OWCP undertakes to develop 

the medical evidence further, it has the responsibility to do so in a proper manner.17 As

Dr. Goodman’s opinion is insufficiently rationalized, further development is required to 

determine whether appellant’s bilateral knee conditions were caused or aggravated by the 

accepted factors of his federal employment. Following this and other such further development 

as deemed necessary, OWCP shall issue a de novo decision. 

CONCLUSION

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

 

12 E.R., Docket No. 16-1634 (issued May 25, 2017). 

13 See G.K., Docket No. 09-1222 (issued January 15, 2010).

14 Cleopatra McDougal-Saddler, 47 ECAB 480 (1996).

15 G.N., Docket No. 16-1327 (issued December 27, 2016); see also William C. Bush, 40 ECAB 1064, 

1075 (1989). 

16 Richard E. Simpson, 55 ECAB 490 (2004). 

17 Melvin James, 55 ECAB 406 (2004). 
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ORDER

IT IS HEREBY ORDERED THAT the June 8, 2017 decision of the Office of Workers’

Compensation Programs is set aside and the case is remanded for further action consistent with 

this opinion.

Issued: March 14, 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