United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.M., Appellant

and

DEPARTMENT OF THE NAVY, NAVAL AIR 

WARFARE CENTER AIRCRAFT DIVISION, 

Lakehurst, NJ, Employer

__________________________________________

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Docket No. 19-1134

Issued: November 22, 2019

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On April 25, 2019 appellant, through counsel, filed a timely appeal from a November 20, 

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.

 

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

ISSUE

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

causally related to the accepted August 22, 2017 employment incident.

FACTUAL HISTORY

On August 24, 2017 appellant, then a 54-year-old aircraft engine mechanic, filed a 

traumatic injury claim (Form CA-1) alleging that on August 22, 2017, he ran into a metal pusher 

and sustained a left knee contusion while in the performance of duty. On the reverse side of the 

claim form, the employing establishment indicated that appellant stopped work on 

August 23, 2017.

On August 24, 2017 an employing establishment nurse practitioner indicated that appellant 

called in the previous day and stated that “he bumped his leg and had a bump.” She advised him 

to come in to get checked out, but he preferred to remain at home and ice his leg. When appellant 

reported to work on August 24, 2017, the nurse practitioner indicated that he required immediate 

care, and therefore, referred him for further medical treatment. She further advised that he was to 

return only with a physician clearance letter. On August 24, 2017 an employing establishment 

representative executed an authorization for examination and/or treatment (Form CA-16) for 

appellant’s left knee contusion.

In a report dated August 28, 2017, Dr. W. Francis Kennard, a Board-certified orthopedic 

surgeon, reported that appellant presented with complaints of severe left knee pain. Appellant

reported to Dr. Kennard that he struck his knee against a metal upright on a sewing ring that he 

walked into by accident. He related that he had immediate pain, swelling, and redness around the 

anterior aspect of the knee. Dr. Kennard noted swelling over the tibial tubercle area and swelling 

over the prepatellar tendon area, and indicated that appellant reported that he was unable to walk 

without crutches. His examination revealed that appellant had less than full extension by 

approximately 10 degrees, and flexion was only to 80 degrees. There was tenderness over the 

tibial tubercle and over the infrapatellar tendon, as well as over the patella. There was no redness 

observed, but Dr. Kennard noted mild synovitis and mild effusion. He indicated that x-rays 

revealed early left knee degenerative joint disease, and some prominence at the tibial tubercle. 

Dr. Kennard diagnosed left knee contusion, left knee medial meniscus tear, knee synovitis, and 

juvenile osteochondrosis/Osgood-Schlatter disease. He referred appellant for physical therapy and 

a left knee magnetic resonance imaging (MRI) scan.

In an August 28, 2018 attending physician’s report (Part B of a Form CA-16 Authorization 

for Examination and/or Treatment), Dr. Kennard diagnosed contusion, traumatic arthropathy, and 

synovitis. He excused appellant from work through September 10, 2017. 

OWCP also received August 31, 2017 physical therapy treatment records. 

In a September 7, 2017 follow-up report, Dr. Kennard indicated that appellant reported 

improvement in his knee from therapy, that range of motion had essentially returned to normal, 

and that appellant had residual swelling. The examination of appellant’s left knee showed minimal 

varus alignment, a large prominence at the patellar tendon insertion into the proximal tibia, full 
3

range of motion, and minimal synovitis. Dr. Kennard also noted appellant’s left knee MRI scan 

revealed a torn medial meniscus, mild patellar tendinitis, and quadriceps tendinitis. He diagnosed 

left knee contusion, left medial meniscus tear, synovitis and tenosynovitis. Dr. Kennard indicated 

that appellant should complete his physical therapy regimen, and that he could return to work the 

following week. He further indicated that if appellant’s knee became symptomatic he should 

return for knee arthroscopy.

Appellant resumed work on September 11, 2017. 

In a development letter dated October 17, 2017, OWCP advised appellant of the need for 

additional factual information and medical evidence in support of his claim for FECA benefits. It 

specifically inquired about the circumstances of the alleged causative employment incident, 

including witnesses and the immediate effect of the injury. The attached factual questionnaire also 

included queries as to the existence of any related preexisting conditions. OWCP also requested 

that appellant provide a narrative report from his attending physician, which was required to 

include a diagnosis and a medical explanation as to how the reported work incident either caused 

or aggravated a medical condition. It afforded him 30 days to submit the requested information. 

No additional evidence was received. 

By decision dated November 24, 2017, OWCP denied appellant’s claim. It accepted that 

the August 22, 2017 incident occurred as alleged, but denied the claim as causal relationship had 

not been established between his diagnosed condition(s) and the accepted August 22, 2017

employment incident.

Subsequent to the decision, OWCP received additional physical therapy treatment records.

In a December 28, 2017 subsequent follow-up report, Dr. Kennard indicated that appellant

stated his symptoms occurred after he struck a metal object at work with his knee, and that 

appellant “denied any problems with his knee prior to that time ... indicating that [there is] a direct 

causal relationship between the injury to his [left] knee ... and his present symptoms.” His 

examination revealed acute findings of synovitis, effusion, and tenderness.

In a February 21, 2018 follow-up report, Dr. Kennard noted that appellant presented with 

a new episode of pain, swelling, and “giving way” of his left knee.3 He reported that appellant

stated that he was walking when his knee “gave way.” Dr. Kennard related that appellant had a 

known tear of the medial meniscus, as documented by the MRI scan, and stated, “[t]he medical 

evidence establishes that the diagnosis condition-torn left medial meniscus is causally related to 

this injury resulting in the symptoms.” The objective examination revealed mild synovitis in the 

knee and palpable ballotable effusion of the left knee. Dr. Kennard ordered that appellant receive 

a repeat MRI scan of his left knee due to the new injury.

 

3 On February 22, 2018 appellant filed a traumatic injury claim for a February 15, 2018 injury to his left knee when 

he stepped down after hooking up a fuel fitting and he felt his knee pop and give way. OWCP assigned that claim 

File No. xxxxxx622 and accepted a tear of the left medial meniscus. Appellant’s claims have not been administratively 

combined and File No. xxxxxx622 is not presently before the Board.
4

In a March 13, 2018 follow-up report, Dr. Kennard noted that appellant indicated that he 

was having less pain, but continued to have difficulty with stairs and walking on flat surfaces. The 

examination revealed moderate effusion of the left knee, with tenderness over the medial and 

lateral joint line of the knee. Dr. Kennard noted that appellant lacked full extension by about five 

degrees. An MRI scan of the left knee showed a large tear of the medial meniscus, which extended 

from the mid-portion of the meniscus posteriorly to the posterior rim. It also showed large effusion 

of the knee joint. Dr. Kennard further noted, “establishment of injury is that the patient was 

stepping off a brake apron when his left knee gave out and he twisted the knee resulting in severe 

swelling and pain. To evaluate this injury MRI [scan] was obtained and has confirmed the 

presence of the tear of the medial meniscus of the left knee. [T]his injury is consistent with the 

mechanism of giving way that the claimant espouses.” He continued, “[t]he causal relationship is 

direct in that [appellant] twisted his knee had pain and swelling and inability to function and MRI

[scan] was obtained to investigate those symptoms and findings and confirmed the presence of a 

tear of the left knee medial meniscus. These mechanical symptoms are well-known symptoms 

from medial meniscal injury and are well documented in his chart. [T]he MRI [scan] findings are 

likewise well-known MRI [scan] findings related to this mechanical type of injury to the 

knee/meniscus complex.”

In an April 18, 2018 follow-up report, Dr. Kennard added, “The original injury occurred 

while working and this is a reactivation of that same injury ... the medical evidence support with 

Level One clarity that this injury is related to the claimant’s underlying torn left medial meniscus. 

[T]here can be no other cause.” 

In a June 29, 2018 letter, Dr. Kennard recounted that on August 22, 2017 appellant was 

arising from his position of checking the equipment, when he turned to his left to check the 

equipment at the rear of the test mechanism and impacted a metal pusher with his left knee and 

leg. Appellant was approximately two feet off the ground at that time, and fell those two feet, 

twisting his knee, but catching himself with his right hand and arm on the front of the test 

mechanism, which was described as a dead-load vehicle used to replicate the weight of aircraft. 

Dr. Kennard noted that appellant had immediate pain, swelling and discomfort in his left knee, but 

finished his workday. The examination at the initial office visit of August 28, 2017 revealed that 

appellant had 10 degree loss of extension, flexion was to 80 degrees, and rotation was localized to 

medial joint line. Dr. Kennard related that he observed tenderness over the tibial tubercle, and 

above the infrapatellar tendon as well as over the patella. He observed synovitis and effusion in 

the knee. Dr. Kennard related that his diagnostic impression at the time was: (1) contusion left 

knee; (2) tear of the left medial meniscus, and (3) synovitis left knee. A left knee MRI scan 

revealed a tear of the medial meniscus. Appellant finished out his physical therapy and was 

asymptomatic and subsequently resumed his regular employment duties. Dr. Kennard next

described a second injury occurring on February 15, 2018, when appellant stepped down from a 

break train apron and felt his left knee “pop,” and experienced severe pain in his left knee. He

stated, “[the] etiology of this torn left medial meniscus is clear-cut. [Appellant] has suffered two 

twisting injuries to his affected left knee. This is a typical type of mechanism for tearing a medial 

or lateral meniscus in the knee. In these particular instances with the left foot planted[,] a twisting 

force was applied resulting in damage to the medial meniscus. The subsequent synovitis and 

effusion are typical of the pathology local that develops.” He added, “[t]he causal relationship is 

a direct one.... Tearing of the meniscus is a direct result of twisting moments with a loaded knee 

joint as is the case in both knee occurrences with [appellant]. This is a straightforward injury 
5

related to twisting with a loaded knee joint[,] i.e. weight-bearing joint[,] resulting in tearing of the 

meniscus in the left knee.” Dr. Kennard concluded his letter by advising that arthroscopic surgery 

would be necessary, and that the prognosis was guarded as a prolonged wait for definitive 

treatment would result in the aggravation of the synovitis and effusion in the knee, resulting in 

direct articular surface damage and the development of significant post-traumatic arthritis. 

On June 29, 2018 appellant, through counsel, requested reconsideration. 

By decision dated November 20, 2018, OWCP denied modification of its November 24, 

2017 decision. 

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 timely filed within the applicable 

time limitation of FECA,5that an injury was sustained in the performance of duty as alleged, and 

that any disability or medical condition for which compensation is claimed is causally related to 

the employment injury.6 These are the essential elements of each and every compensation claim, 

regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7

To determine if an employee sustained a traumatic injury in the performance of duty, 

OWCP begins with an analysis of whether fact of injury has been established.8 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.9 The second component is whether the employment incident caused a personal injury.10 

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.11

 

4

Id.

5

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D. 

Cameron, 41 ECAB 153 (1989). 

6

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 

ECAB 312 (1988). 

7 R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014); 

Delores C. Ellyett, 41 ECAB 992 (1990). 

8 E.M., Docket No. 18-1599 (issued March 7, 2019); T.H., 59 ECAB 388, 393-94 (2008). 

9 L.T., Docket No. 18-1603 (issued February 21, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

10 B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

11 J.P., Docket No. 19-0129 (issued April 26, 2019); L.T., Docket No. 18-1603 (issued February 21, 2019); 

Shirley A. Temple, 48 ECAB 404, 407 (1997).
6

Causal relationship is a medical question that requires rationalized medical opinion 

evidence to resolve the issue.12 A physician’s opinion on whether there is a causal relationship 

between the diagnosed condition and the implicated employment factor(s) must be based on a 

complete factual and medical background.13 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).14

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish left knee 

conditions causally related to the accepted August 22, 2017 employment incident.

In his August 28, 2017 report, Dr. Kennard indicated that appellant reported that he struck 

his knee against a metal upright on a sewing ring that he walked into by accident. He indicated 

that x-rays taken revealed early degenerative joint disease, and some prominence at the tibial 

tubercle. Dr. Kennard diagnosed a contusion of the left knee, a medial meniscus tear of the left 

knee, synovitis of the knee, and Osgood Schlatter disease. While he reported appellant’s account 

of the incident, Dr. Kennard offered no opinion on the issue of causal relationship between the 

reported incident and the diagnosed conditions. The Board has held that medical evidence that 

does not offer an opinion regarding the cause of an employee’s condition is of no probative value 

on the issue of causal relationship.15 This report, therefore, is insufficient to establish appellant’s 

claim.

In his September 7, 2017 report, Dr. Kennard indicated that appellant reported 

improvement in his knee condition. The examination of his left knee showed minimal varus 

alignment, a large prominence at the patellar tendon insertion into the proximal tibia, full range of 

motion, and minimal synovitis. However, Dr. Kennard did not offer an opinion on causal 

relationship, and therefore, this report is of no probative value on the issue.16

In his December 28, 2017 follow-up report, Dr. Kennard indicated that appellant’s

symptoms occurred after he struck a metal object at work with his knee, and that appellant “denied 

any problems with his knee prior to that time [thus] indicating ... a direct causal relationship 

between the injury to his knee left and his present symptoms.” While Dr. Kennard addressed the 

cause of appellant’s left knee condition, temporal relationship alone will not suffice for purposes 

 

12 E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996). 

13 M.V., Docket No. 18-0884 (issued December 28, 2018); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

14 Id.

15 A.C., Docket No. 19-0266 (issued May 28, 2019).

16 Id.
7

of establishing causal relationship.17 Therefore, this report is insufficient to establish causal 

relationship.

Dr. Kennard related, in the February 21, 2018 report, that appellant stated that he was 

walking when his knee gave way on February 15, 2018. He indicated that appellant had a known 

tear of the medial meniscus, as documented by the MRI scan, and stated, “[t]he medical evidence 

establishes that the diagnosis condition -- torn left medial meniscus -- is causally related to this 

injury resulting in the symptoms.” While Dr. Kennard’s February 21, 2018 report offers an 

opinion on causal relationship, it is unclear whether he is referring to the original August 22, 2017

incident or the subsequent February 15, 2018 incident in this report. As Dr. Kennard did not 

provide a rationalized opinion explaining how the August 22, 2017 employment incident caused 

appellant’s left knee conditions, this report is of diminished probative value.

18

 

In a March 13, 2018 follow-up report, Dr. Kennard noted, “establishment of injury is that 

the patient was stepping off a brake apron when his left knee gave out and he twisted the knee 

resulting in severe swelling and pain. To evaluate this injury [an] MRI [scan] was obtained and 

has confirmed the presence of the tear of the medial meniscus of the left knee. [T]his injury is 

consistent with the mechanism of giving way that the claimant espouses.” He continued, “[t]he 

causal relationship is direct in that [appellant] twisted his knee had pain and swelling and inability 

to function and [an] MRI [scan] was obtained to investigate those symptoms and findings and 

confirmed the presence of a tear of the left knee medial meniscus. These mechanical symptoms 

are well known symptoms from medial meniscal injury and are well documented in his chart. 

[T]he MRI [scan] findings are likewise well-known MRI [scan] findings related to this mechanical 

type of injury to the knee/meniscus complex.” In an April 18, 2018 follow-up report, Dr. Kennard 

added, “The original injury occurred while working and this is a reactivation of that same injury

... the medical evidence support with Level One clarity that this injury is related to the claimant’s 

underlying torn left medial meniscus. [T]here can be no other cause.” While Dr. Kennard offered

an opinion on causal relationship, these reports are of reduced probative value because they do not

contain a physiological explanation as to how running into a metal pusher on August 22, 2017

caused his diagnosed knee conditions.

19

 

In his June 29, 2018 report, Dr. Kennard recounted that on August 22, 2017 appellant 

turned to his left to check the equipment at the rear of the test mechanism and ran into a metal 

pusher. He stated that appellant fell two feet, twisting his knee. Appellant had immediate pain, 

swelling and discomfort in his left knee, but finished his workday. Dr. Kennard initially diagnosed 

left knee contusion, left knee synovitis, and acute medial meniscus tear, which latter diagnosis was 

confirmed by an MRI scan. He then described a second injury occurring on February 15, 2018, 

when appellant stepped down from a break train apron and felt his left knee “pop,” and experienced 

severe pain. Dr. Kennard stated, “[the] etiology of this torn left medial meniscus is clear-cut. 

[Appellant] has suffered two twisting injuries to his affected left knee. This is a typical type of 

mechanism for tearing a medial or lateral meniscus in the knee. In these particular instances with 

 

17 Daniel O. Vasquez, 57 ECAB 559 (2006).

18 M.S., Docket No. 19-0189 (issued May 14, 2019).

19 See S.H., Docket No. 19-0631 (issued September 5, 2019).
8

the left foot planted[,] a twisting force was applied resulting in damage to the medial meniscus.

The subsequent synovitis and effusion are typical of the pathology local that develops.” He added, 

“[t]he causal relationship is a direct one.... Tearing of the meniscus is a direct result of twisting 

moments with a loaded knee joint as is the case in both knee occurrences with [appellant]. This is 

a straightforward injury related to twisting with a loaded knee joint[,] i.e., weight-bearing joint[,] 

resulting in tearing of the meniscus in the left knee.” The Board finds the June 29, 2018 report of

Dr. Kennard to be of reduced probative value because Dr. Kennard’s June 29, 2018 description of 

the incident is inconsistent with the report of appellant to OWCP on his Form CA-1, with the 

employing establishment nurse practitioner’s contemporaneous account of the August 22, 2017 

incident, and with Dr. Kennard’s description from August 28, 2017. Neither the Form CA-1 nor 

the employing establishment nurse practitioner’s report mention the accepted August 22, 2017 

employment incident. Dr. Kennard’s report of August 28, 2017 stated that appellant walked into 

a metal upright on a sewing ring, but did not mention a fall or twisting motion. Medical evidence 

submitted to support a claim for compensation should reflect a correct history, and the physician 

should offer a medically sound explanation of how the claimed work event caused or aggravated 

the claimed condition.20 A medical report with key factual inconsistencies as to what actually 

happened cannot form the basis of a rationalized opinion on causal relationship.

21

 

Finally, the Board notes that in addition to the reports from Dr. Kennard, OWCP received 

various treatment records authored by physical therapists. However, these providers are not 

considered “physician[s]” as defined by FECA, and their respective reports are insufficient for 

purposes of establishing entitlement to FECA benefits.22

As appellant has not submitted rationalized medical evidence on the issue of causal 

relationship, the Board finds that he has not met his burden of proof to establish his claim.

Appellant may submit new evidence and/or argument with a written request for 

reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) 

and 20 C.F.R. §§ 10.605 through 10.607.

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish that his 

diagnosed left knee conditions are causally related to the accepted August 22, 2017 employment 

incident.

 

20 D.V., Docket No. 17-0195 (issued August 7, 2018).

21 Id. 

22 5 U.S.C. § 8101(2) provides that a physician includes surgeons, podiatrists, dentists, clinical psychologists, 

optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law. 

See 5 U.S.C. § 8102(2); M.M., Docket No. 16-1617 (issued January 24, 2017); David P. Sawchuk, 57 ECAB 316, 320 

n.11 (2006) (lay individuals such as nurses, physician assistants, and physical therapists are not competent to render 

a medical opinion under FECA). See also Gloria J. McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 2 ECAB 

208, 211 (1949) (a medical issue such as causal relationship can only be resolved through the submission of probative 

medical evidence from a physician). 
9

ORDER

IT IS HEREBY ORDERED THAT the November 20, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 22, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board