United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.T., Appellant

and

DEPARTMENT OF TRANSPORTATION, 

FEDERAL RAILROAD ADMINISTRATION, 

Renton, WA, Employer

__________________________________________

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Docket No. 19-0208

Issued: June 18, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On November 5, 2018 appellant, through counsel, filed a timely appeal from an August 21, 

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 a left knee condition 

causally related to the accepted June 14, 2017 employment incident.

FACTUAL HISTORY

On June 16, 2017 appellant, then a 64-year-old track safety inspector, filed a traumatic 

injury claim (Form CA-1) alleging that on June 16, 2017 he suffered a left knee injury when he 

stepped in a badger hole while in the performance of duty. He did not stop work. 

Appellant was initially treated by Ryan Kessel, a certified physician assistant. In a progress 

note dated June 16, 2017, Mr. Kessel related that the day before appellant was walking along 

railroad tracks at work when he stepped into a badger hole. Examination of appellant’s left knee 

showed tenderness in the medial and patellofemoral lines and limited antalgic limp. A June 16, 

2017 left knee x-ray showed moderate medial and patellofemoral osteoarthritis. Mr. Kessel 

diagnosed left leg injury, including left knee strain, and underlying left severe knee arthritis. He 

opined that appellant had an “injury mechanism” that “likely exacerbated a preexisting condition.”

Mr. Kessel also completed an attending physician’s report (Form CA-20) of the same date. 

He noted a preexisting condition of left knee osteoarthritis and diagnosed left knee strain. 

Mr. Kessel checked a box marked “yes” indicating that appellant’s condition was caused or 

aggravated by the employment activity.

In a report dated August 21, 2017, Dr. Wesley Smidt, a Board-certified orthopedic surgeon, 

noted appellant’s complaints of marked discomfort and persistent pain since an injury earlier that 

year when appellant stepped in a hole at work. He reviewed appellant’s history and noted that xray examination showed advanced degenerative changes of the left knee. Upon examination of 

appellant’s left knee, Dr. Smidt observed a marked amount of crepitus with active range of motion 

and tenderness in the medial and lateral joint line. He diagnosed advanced left knee degenerative 

joint disease. Dr. Smidt indicated that appellant wished to proceed with left total knee arthroplasty 

surgery. He reported that the “work-related injury had necessitated the need for the total knee.”

Dr. Smidt noted that prior to the injury appellant had left knee symptoms, but was still able to 

perform his regular duties. He reported that it was unlikely that appellant would need a total knee 

replacement without his work-related injury. Dr. Smidt completed a work status note indicating 

that appellant could return to work without restrictions on that date.

In an August 29, 2017 development letter, OWCP noted that when appellant’s claim was 

received it appeared to be a minor injury that resulted in minimal or no lost time from work and 

was therefore administratively approved for payment of a limited amount of medical expenses. It 

requested that appellant provide additional factual and medical evidence to establish his claim and 

provided a questionnaire for his completion. OWCP afforded appellant 30 days to provide the 

necessary factual information and medical evidence. A similar letter was sent to the employing 

establishment.

In a letter dated September 18, 2017, J.P., a program consultant for the employing 

establishment, controverted appellant’s claim.
3

On September 18, 2017 OWCP received appellant’s completed questionnaire, dated 

September 16, 2017. Appellant described that on the morning of June 14, 2017 he was performing 

a walking track safety inspection when he stepped into a badger hole. He noted that at first the 

pain was not that bad so he was able to continue working, but he subsequently experienced 

worsening left knee and left ankle pain. Appellant related that he sought medical treatment because 

he still experienced pain, difficulty walking, and problems with sleep. He reported that he had 

previously sought medical treatment for his left knee in 2011.

OWCP received a report dated August 10, 2011 by Dr. David H. Larsen, an orthopedic 

surgeon. Dr. Larsen related appellant’s complaints of left knee pain and noted examination 

findings of mild effusion, medial joint line tenderness, and patellar crepitus with motion. He

discussed appellant’s diagnostic testing and diagnosed degenerative arthritis of the left knee.

By decision dated October 27, 2017, OWCP denied appellant’s traumatic injury claim. It 

accepted that the June 14, 2017 incident occurred as alleged and that there was a diagnosed left 

knee condition. However, OWCP denied appellant’s claim finding that the medical evidence of 

record was insufficient to establish causal relationship between his diagnosed condition and the 

accepted June 14, 2017 employment incident.

On November 2, 2017 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review. A hearing was held on March 6, 2018.

In a letter dated October 26, 2017, Dr. Smidt related that appellant was functioning well 

with his left knee prior to his work-related injury. He noted that when appellant stepped into a 

hole at work, he experienced a “marked amount of pain” at the time of the injury and had 

experienced persistent pain. Dr. Smidt referenced his opinion in the August 21, 2017 progress 

note that the “work-related injury necessitated the need for the total knee at this point in time. It 

is unlikely he would be requiring a total knee currently without his work-related injury.”

In a letter dated April 4, 2018, Dr. Smidt again referenced his August 21, 2017 progress 

note and his opinion that it was unlikely that appellant would need total left knee replacement

surgery without the June 14, 2017 work-related injury. He opined that appellant had preexisting 

degenerative changes to his knee prior to his work-related injury. Dr. Smidt explained that 

appellant would require knee replacement surgery at some point in the future, but the work-related 

injury caused “increased and persistent symptoms in the knee, which have resulted in [appellant] 

needing to pursue total knee arthroplasty at this point in time.”

By decision dated May 3, 2018, an OWCP hearing representative affirmed the October 27, 

2017 decision.

On May 24, 2018 appellant, through counsel, requested reconsideration. Counsel 

resubmitted Dr. Smidt’s April 4, 2018 report, as well as his August 21, 2017 treatment notes.

By decision dated August 21, 2018, OWCP denied modification of the May 3, 2018 

decision.
4

LEGAL PRECEDENT

An employee seeking benefits under FECA3 has the burden of proof to establish the 

essential elements of his or her claim including the fact that he or she is an employee of the United 

States within the meaning of FECA, that the claim was filed within the applicable time limitation 

of FECA,4that an injury was sustained while in the performance of duty as alleged, and that any 

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

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

In order to determine whether a federal employee has sustained a traumatic injury in the 

performance of duty, OWCP must first determine whether fact of injury has been established.7 

There are two components involved in establishing fact of injury. The first component is whether 

the employee actually experienced the employment incident that allegedly occurred.8 The second 

component is whether the employment incident caused a personal injury.9

Causal relationship is a medical question that requires rationalized medical opinion 

evidence to resolve the issue.10 The opinion of the physician must be based on a complete factual 

and medical background of the employee, must be one of reasonable medical certainty, and must 

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

condition and the specific employment factors identified by the employee.11 The weight of the 

medical evidence is determined by its reliability, its probative value, its convincing quality, the 

care of analysis manifested, and the medical rationale expressed in support of the physician’s 

opinion.12

 

3 Supra note 2.

4 S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 

153 (1989).

5

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

ECAB 312 (1988).

6 K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014); 

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

7 D.B., Docket No. 18-1348 (issued January 4, 2019); S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 

172 (2005).

8 D.S., Docket No. 18-1348 (issued November 9, 2017); Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. 

Lawrence, 19 ECAB 442 (1968).

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

10 T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

11 M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 

ECAB 345 (1989).

12 James Mack, 43 ECAB 321 (1991).
5

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

ANALYSIS

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

condition causally related to the accepted June 14, 2017 employment incident.

Appellant submitted several reports by Dr. Smidt dated August 21, 2017 to April 4, 2018. 

In an August 21, 2017 narrative report, Dr. Smidt described the June 14, 2017 employment 

incident and related that an x-ray showed advanced degenerative changes in appellant’s left knee. 

He noted examination findings of marked amount of crepitus with active range of motion and 

tenderness in the medial and lateral joint line of appellant’s left knee. Dr. Smidt diagnosed 

advanced left knee degenerative joint disease and recommended left total knee arthroplasty. He

noted that prior to the injury, appellant had symptoms but was still able to perform his regular 

duties. Dr. Smidt concluded that the work-related injury caused “increased and persistent 

symptoms in the knee, which have resulted in [appellant] needing to pursue total knee 

arthroplasty.” 

Although Dr. Smidt attributed the worsening of appellant’s degenerative left knee

condition to the accepted June 24, 2017 employment incident, he did not provide an affirmative 

opinion explaining how the described employment incident resulted in the diagnosed medical 

condition. The Board has found that a physician must provide a narrative description of the 

identified employment incident and a reasoned opinion on whether the employment incident 

caused or contributed to appellant’s diagnosed medical condition.14 The need for a reasoned 

medical opinion is particularly important due to appellant’s preexisting left knee condition, as 

noted by Dr. Larsen’s August 10, 2011 diagnosis of left knee degenerative arthritis.15 Because

Dr. Smidt did not provide a reasoned opinion explaining how the June 14, 2017 employment 

incident contributed to or aggravated appellant’s degenerative left knee condition, his reports are 

insufficient to establish appellant’s claim.

Appellant’s June 16, 2017 left knee x-ray revealed moderate medial and patellofemoral 

osteoarthritis. However, the radiologist who reviewed the x-ray did not specifically address 

whether there was a causal relationship between the diagnosed osteoarthritis and the accepted 

June 14, 2017 employment incident. The Board has held that diagnostic studies are of limited 

probative value as they routinely fail to provide an opinion on causal relationship.16

 

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

14 See V.J., Docket No. 17-358 (issued July 24, 2018); John W. Montoya, 54 ECAB 306 (2003).

15 D.H., Docket No. 17-1913 (issued December 13, 2018); J.F., Docket No. 09-1061 (issued November 17, 2009); 

A.D., 58 ECAB 149 (2006).

16 See A.B., Docket No. 17-0301 (issued May 19, 2017).
6

The June 16, 2017 progress note and Form CA-20 by Mr. Kessel, a physician assistant, are 

also insufficient to establish appellant’s traumatic injury claim. Certain healthcare providers such 

as physician assistants, nurse practitioners, physical therapists, and social workers are not 

considered physicians as defined under FECA.17 Consequently, their medical findings and/or 

opinions will not suffice for purposes of establishing entitlement to FECA benefits.18 

On appeal counsel contends that OWCP failed to apply the proper standard of causation 

and did not give due deference to the findings of appellant’s treating physician. For the reasons 

set forth above, appellant has not provided well-reasoned medical evidence establishing causal 

relationship and therefore, he has not met his burden of proof to establish his traumatic injury 

claim.

Appellant may submit new evidence 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 a left knee 

condition causally related to the accepted June 14, 2017 employment incident.

 

17 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

18 K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). A report from a physician 

assistant or certified nurse practitioner will be considered medical evidence if countersigned by a qualified physician. 

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013).
7

ORDER

IT IS HEREBY ORDERED THAT the August 21, 2018 merit decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: June 18, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board