United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.C., Appellant

and

U.S. POSTAL SERVICE, MAIL PROCESSING 

ANNEX, Orlando, FL, Employer

__________________________________________

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Docket No. 19-0724

Issued: September 5, 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 February 18, 2019 appellant, through counsel, filed a timely appeal from a 

December 19, 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.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 The Board notes that following the December 19, 2018 decision, OWCP received additional evidence. However, 

the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record 

that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the 

Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this 

additional evidence for the first time on appeal. Id.
2

ISSUE

The issue is whether appellant has met his burden of proof to expand the acceptance of his 

claim to include the additional condition of degenerative arthritis of the right knee as a 

consequence of the accepted November 8, 2011 employment injury.

FACTUAL HISTORY

On November 9, 2011 appellant, then a 53-year-old mail handler, filed a traumatic injury 

claim (Form CA-1) alleging that on November 8, 2011 he injured his lower back, neck, legs, arms, 

shoulders, and wrists when he pushed a wire cage full of mail while in the performance of duty. 

He stopped work on November 8, 2011. OWCP initially accepted the claim for neck sprain, 

lumbar sprain, and left knee/leg sprain. Beginning January 23, 2012, it paid appellant wage-loss 

compensation on the supplemental rolls. Effective February 12, 2012, OWCP placed him on the 

periodic compensation rolls. In July 2012, it expanded appellant’s claim to include aggravation of 

left knee arthritis.4 OWCP also authorized a December 17, 2012 total left knee arthroplasty.

By decision dated June 17, 2013, OWCP terminated medical benefits with respect to 

appellant’s accepted cervical and lumbar conditions. However, appellant remained eligible for 

medical benefits with respect to his left knee. He also continued to receive wage-loss 

compensation on the periodic rolls.

In an August 22, 2013 letter and report, Dr. Samy F. Bishai, a Board-certified orthopedic 

surgeon, noted that appellant was recovering well from his total left knee replacement surgery and 

was unable to return to any type of work, including sedentary employment, due to instability in his 

left knee. He also reported that appellant had developed a “consequential injury in his right knee 

joint secondary to the problems he had with his left knee joint.”

5

 Dr. Bishai explained that 

appellant had been walking with a very bad left knee joint for a prolonged period and was putting 

most of his weight on the right leg and knee in order to avoid putting weight on the left knee. Upon 

examination of appellant’s right knee, he reported tenderness overlying the joint line and 

tenderness overlying the patella. Range of motion revealed extension of approximately 180 

degrees and flexion to approximately 90 degrees. Dr. Bishai reported right knee diagnoses, 

including degenerative arthritis of the left knee joint and status postop arthroscopic surgery of the 

right knee joint for meniscus tear problems.

A September 3, 2013 right knee magnetic resonance imaging (MRI) scan revealed joint 

effusion, degenerative cysts, tears of the lateral and medial meniscus, and diffuse osteophyte 

formation throughout the knee joint.

In a December 17, 2013 letter and report, Dr. Bishai continued to opine that appellant 

sustained a consequential right knee injury because he had to put more weight on his right lower 

extremity to take pressure off his accepted left knee employment injury. He reported right knee 

examination findings of tenderness overlying the joint line both medially and laterally and 

tenderness overlying the patella. Dr. Bishai explained: “For all the time [appellant] suffered from 

his left knee condition, his right knee was having more weight bearing than normal to compensate 

 

4 Appellant had previously undergone a December 2009 left knee arthroscopy to repair a torn medial meniscus.

5 On December 4, 2008 appellant underwent right knee arthroscopy to repair a torn medial meniscus.
3

for the left knee condition so [appellant] developed symptoms in his right knee joint ... this is a 

classic case of consequential injury.” He requested that appellant’s right knee condition be 

accepted as a consequential injury.

In a December 20, 2013 report, Dr. Sean M. McFadden, a Board-certified orthopedic 

surgeon, noted that he evaluated appellant for complaints of continued and progressive right knee 

pain over the prior year.6 Examination of appellant’s right knee demonstrated positive pain on 

palpation along the medial joint space and osteophyte formation of the medial femoral condyle 

and medial tibial plateau. Dr. McFadden related that a right knee x-ray revealed end-stage arthritis 

of the medial joint space. He recommended partial right knee replacement surgery. In reports 

dated September 22 and November 24, 2015, Dr. McFadden continued to evaluate appellant for 

his right knee symptoms and recommend surgery.

On April 1, 2014 OWCP referred appellant along with the statement of accepted facts 

(SOAF) and the medical record to Dr. Brian Leung, a Board-certified orthopedic surgeon for a 

second opinion examination, to determine the status of appellant’s left knee condition and whether 

his right knee condition was consequential to his accepted left knee injury. In a May 9, 2014 

report, Dr. Leung noted his review of the SOAF and related that appellant’s claim was accepted 

for neck strain, lumbar strain, and aggravation of left knee osteoarthritis. He related that 

appellant’s left knee was doing well after a total knee replacement surgery, but he now complained 

of severe right knee pain. Upon examination of appellant’s right knee, Dr. Leung observed pain 

over the medial joint space and on McMurray testing. Range of motion demonstrated full 

extension and 120 degrees flexion. Dr. Leung indicated that diagnostic testing of appellant’s right 

knee revealed predominantly medial compartment, patellofemoral osteoarthritis, joint space 

narrowing, subchondral sclerosis, and osteophyte formation. He diagnosed right knee 

osteoarthritis, moderately severe with joint space narrowing. Dr. Leung opined that appellant’s 

right knee injury was degenerative and not related to his left knee injury. He reported that appellant 

was capable of returning to light-duty work and completed a work capacity evaluation form 

providing restrictions.

Dr. Bishai continued to treat appellant. In reports dated August 27 and October 1, 2014, 

he related appellant’s complaints of left hip, back, and right knee pain. Dr. Bishai reported 

examination findings of tenderness overlying the right knee joint line both medially and laterally 

and some effusion in the joint. He opined that appellant continued to have significant problems as 

a result of a consequential right knee injury.

In August 2015, appellant underwent a left total hip arthroplasty.

In a September 28, 2016 letter, appellant’s then-representative, requested that OWCP add 

appellant’s right knee degenerative arthritis to his claim as a consequential injury.

In reports dated March 24, April 27, and July 19, 2016, Dr. Bishai continued to opine that

appellant suffered a consequential right knee injury due to his left knee injury. He explained that 

while appellant was suffering from his left knee injury and receiving treatment, he was putting 

most of his weight on his right lower extremity, which affected his right knee and caused appellant 

to develop degenerative arthritis of the right knee joint. Dr. Bishai reported that this was a “case 

 

6 Dr. McFadden performed a December 2009 left knee arthroscopy, the December 2012 left total knee arthroplasty, 

as well as a December 4, 2008 right knee arthroscopy. 
4

of consequential injury from overuse of the right lower extremity and right knee joint.” He 

continued to provide right knee examination findings and diagnosed status post-arthroscopic 

surgery of the right knee joint.

In an October 5, 2016 report, Dr. McFadden related appellant’s complaints of severe right 

knee pain limiting his normal daily activities. He noted examination findings and diagnosed right 

knee end-stage arthritis and status post left total knee arthroplasty. Dr. McFadden opined that

appellant had a consequential injury to the right knee that occurred as a result of his left knee 

injury. He recommended right total knee replacement surgery.

On April 26, 2017 OWCP determined that a conflict in medical opinion existed between

Dr. McFadden, appellant’s treating physician, and Dr. Leung, OWCP’s referral physician, 

regarding whether appellant sustained a consequential right knee injury causally related to his 

accepted left knee injury. It referred him to Dr. Robert Elkins, a Board-certified orthopedic 

surgeon, for an impartial medical examination.

In a July 26, 2017 report, Dr. Elkins reviewed the SOAF and appellant’s medical records. 

He noted the November 8, 2011 employment injury and that appellant’s claim was accepted for 

left knee, neck, and lumbar sprain, and aggravation of left knee osteoarthritis. Dr. Elkins noted

that no significant references had been made to appellant’s right knee problems other than his right 

knee surgery in 2008. He reported right knee examination findings of tenderness over the medial 

joint line and negative drawer. McMurray’s, Lachman’s, and Homan’s signs were negative. 

Range of motion testing revealed flexion of 4 to 98 degrees and slight crepitus at 45 degrees. 

Dr. Elkins diagnosed status post left hip replacement, not related, status post left total knee 

replacement with good result, right degenerative arthritic changes and loss of range of motion, and 

neck and back chronic problems.

In response to OWCP’s questions, Dr. Elkins noted that appellant had degenerative arthritis 

in the right knee. He opined that appellant’s right knee end-stage arthritis was not a consequential 

injury. Dr. Elkins explained that appellant underwent right knee surgery in 2008 for moderately 

advanced arthritis and other conditions, which supported a preexisting problem. He also related 

that appellant’s history showed that he had not complained of much right knee pain until after his 

total knee replacement surgery. Dr. Elkins noted that a 2013 right knee MRI scan showed a 

continuation of the 2008 problem. He concluded that appellant had an “independent osteoarthritis 

of the right knee” which occurred before the current injury.

In a September 27, 2017 report, Dr. Mark A. Seldes, a Board-certified family practitioner, 

related that he evaluated appellant for complaints of moderate-to-severe right knee pain. He 

reported that the right knee was a consequential injury from the original November 8, 2011 

employment injury. Dr. Seldes explained that appellant “overloaded his right lower extremity and 

the right knee essentially took the brunt of all the work and stress needed to allow him to stand and 

walk.” Upon examination of appellant’s right knee, he observed moderate tenderness overlying 

the joint line both medially and laterally and moderate swelling over the joint due to moderate 

effusion medially. Range of motion testing showed flexion to 95 degrees with pain and moderate 

crepitus and popping over the patellar area while performing flexion and extension maneuvers. 

Dr. Seldes noted various diagnosed conditions, including status post arthroscopic surgery of the 

right knee joint for meniscal tear and degenerative arthritis of the right knee as a consequential 

injury to the left knee condition.
5

By decision dated October 20, 2017, OWCP denied expansion of appellant’s claim to 

include a consequential right knee injury. It found that the special weight of the medical evidence 

rested with Dr. Elkins’ July 26, 2017 impartial medical report, which determined that appellant’s 

right knee condition was not a consequential injury.

On February 6, 2018 appellant, through his then representative, requested reconsideration 

of the October 20, 2017 decision.

OWCP subsequently received several reports from Dr. Seldes dated October 25, 2017 to

April 12, 2018. Dr. Seldes provided examination findings similar to his previous report and 

opined that appellant’s right knee condition was a consequential injury to the left knee. He

reported that appellant had to “overload his right lower extremity” during his recovery and 

rehabilitation for his accepted left knee injury. Dr. Seldes related that before appellant had left

total knee replacement on December 17, 2012 he had to ambulate for two years using his dominant 

knee on the right side, and that after the surgery appellant continued to use his right knee to 

ambulate. He further explained that appellant had a consequential right knee injury “due to bearing 

the weight and the stress of the right knee secondary to his left knee injury.” Dr. Seldes continued 

to request that appellant’s claim be updated to include degenerative arthritis of the right knee.

Appellant submitted an October 24, 2017 report by Dr. McFadden in which he requested 

that OWCP approve appellant’s claim for a consequential right knee injury so that appellant could 

proceed with surgery. Dr. McFadden indicated that he had documented over the past two years 

the progression of right knee arthritis and the fact that the condition was work related. He noted 

that appellant had progression of the arthritis as noted on x-rays, loss of function, and progression 

of pain. 

OWCP also received additional diagnostic testing. A January 24, 2018 right knee x-ray 

showed osteoarthritis worse in the medial and patellofemoral compartments with small joint 

effusion. A right knee MRI scan revealed osteoarthritis with full-thickness cartilage loss in the 

medial compartment and moderate cartilage loss in the patellofemoral compartment and mild 

cartilage loss in the lateral compartment, associated joint effusion and mild synovitis, and complex 

multidirectional tear of the posterior horn and body of the medial meniscus. 

By decision dated May 16, 2018, OWCP denied modification of the October 20, 2017 

decision. 

On July 30, 2018 appellant, through his representative, requested reconsideration. 

OWCP received medical reports from Dr. Seldes dated May 10 to December 12, 2018. 

Dr. Seldes continued to request that appellant’s right knee osteoarthritis be accepted as a 

consequential injury so that appellant could undergo total right knee replacement surgery. He

reiterated that, while appellant received treatment for his work-related left knee injury, the right 

knee “took the brunt of the weight bearing for the body” as appellant was unable to use his left 

knee during rehabilitation. Dr. Seldes reported right knee examination findings of moderate 

tenderness to palpation over the medial and lateral joint line and moderate swelling in the joint line 

due to effusion. He noted diagnoses related to appellant’s right knee of status post-arthroscopic 

surgery of the right knee joint for meniscal tear and severe right knee degenerative arthritis. 

By decision dated December 19, 2018, OWCP denied modification of the May 16, 2018 

decision. 
6

LEGAL PRECEDENT

Where an employee claims that a condition not accepted or approved by OWCP was due 

to an employment injury, he or she bears the burden of proof to establish that the condition is 

causally related to the employment injury.7 

Causal relationship is a medical question that requires rationalized medical opinion 

evidence to resolve the issue.8 A physician’s opinion on whether there is causal relationship 

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

complete factual and medical background.9 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).10

When an injury arises in the course of employment, every natural consequence that flows 

from that injury likewise arises out of the employment, unless it is the result of an independent 

intervening cause attributable to a claimant’s own intentional misconduct.11 Thus, a subsequent 

injury, be it an aggravation of the original injury or a new and distinct injury, is compensable if it 

is the direct and natural result of a compensable primary injury.12

Section 8123(a) of FECA provides that if there is a disagreement between the physician 

making the examination for the United States and the physician of an employee, the Secretary shall 

appoint a third physician (known as a referee physician or impartial medical specialist) who shall 

make an examination.13 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.14 

Where OWCP has referred the case to an impartial medical examiner to resolve the 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.15

 

7 R.J., Docket No. 17-1365 (issued May 8, 2019); Jaja K. Asaramo, 55 ECAB 200, 204 (2004).

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

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

10 Id.

11 Mary Poller, 55 ECAB 483, 487 (2004); 1 Arthur Larson & Lex K. Larson, The Law of Workers’ Compensation 

10-1 (2006).

12 Susanne W. Underwood (Randall L. Underwood), 53 ECAB 139, 141 n.7 (2001).

13 5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued 

May 4, 2009).

14 20 C.F.R. § 10.321; R.C., 58 ECAB 238 (2006).

15 V.K., Docket No. 18-1005 (issued February 1, 2019); Gary R. Sieber, 57 ECAB 414, 416 (2006).
7

ANALYSIS

The Board finds that appellant has not met his burden of proof to expand the acceptance of 

his claim to include the additional condition of degenerative arthritis of the right knee as a 

consequence of the accepted November 8, 2011 employment injury.

The Board finds that OWCP properly determined that a conflict in medical opinion existed 

between Dr. McFadden, appellant’s treating physician, and Dr. Leung, the second opinion 

examiner, on the issue of whether appellant sustained a consequential right knee injury due to his 

accepted November 8, 2011 employment injury. Accordingly, OWCP referred appellant to

Dr. Elkins for an impartial medical examination and an opinion to resolve the conflict.16

In a July 26, 2017 report, Dr. Elkins reviewed the medical record, the SOAF, and noted the 

November 8, 2011 employment injury along with appellant’s accepted conditions of left knee, 

neck, and lumbar sprain, and left knee osteoarthritis. He reported right knee examination findings 

of tenderness over the medial joint line and negative drawer. Dr. Elkins diagnosed status post left 

hip replacement, not related, status post left total knee replacement with good result, right 

degenerative arthritic changes and loss of range of motion, and neck and back chronic problems. 

He reported that appellant’s right knee condition was degenerative in nature and that there was no 

evidence to establish that appellant’s employment caused or contributed to his degenerative right 

knee condition. Dr. Elkins opined that appellant’s right knee end-stage arthritis was not a 

consequential injury. 

The Board finds that the report of Dr. Elkins is sufficient to carry the special weight of 

medical opinion evidence and establishes that appellant did not sustain a consequential right knee 

injury due to the accepted November 8, 2011 employment injury.17 Dr. Elkins accurately 

described the employment injury and noted his review of the medical record, including the SOAF. 

He performed a thorough, clinical examination and provided findings on examination. Dr. Elkins 

opined that appellant’s right knee condition was degenerative in nature and was present before the 

employment injury. He explained that appellant had a preexisting right knee problem and had a 

history of right knee symptoms. Dr. Elkins concluded that there was no evidence to establish that 

appellant’s right knee osteoarthritis was consequential to the accepted November 8, 2011 left knee

injury. Where OWCP has referred the case to an impartial medical examiner to resolve the 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.18 Accordingly, the Board finds 

that OWCP properly accorded the special weight of medical evidence to Dr. Elkins as the impartial 

medical examiner.

The medical evidence submitted subsequent to Dr. Elkins’ impartial medical report is 

insufficient to overcome the special weight. In reports dated September 27, 2017 to December 12, 

2018, Dr. Seldes noted his disagreement with Dr. Elkins’ July 26, 2017 opinion and explained that 

appellant had a consequential injury due to bearing the weight and stress on his right knee. The 

Board finds that Dr. Seldes’ reports are insufficient to establish expansion of appellant’s claim as 

 

16 Supra notes 12 and 13.

17 See G.M., Docket No. 18-1710 (issued June 3, 2019); M.M., Docket No. 16-1655 (issued April 4, 2018).

18 Supra note 14.
8

they do not contain sufficient explanation, based on medical rationale, of how appellant’s right 

knee osteoarthritis resulted from his accepted left knee condition and/or authorized surgery.

19

 

Dr. Seldes did not provide a pathophysiological explanation as to how excessive weight bearing 

on appellant’s right knee caused or contributed to his right knee arthritis.

20

 The need for 

rationalized medical evidence is particularly important in light of appellant’s preexisting right knee 

meniscal tear and arthroscopy.

21

 The Board finds, therefore, that Dr. Seldes’ reports are 

insufficient to meet appellant’s burden of proof or to create a new conflict. 

OWCP also received an October 24, 2017 report by Dr. McFadden. This report is also 

insufficient to overcome the special weight afforded to Dr. Elkins, as the impartial medical 

examiner, because reports from a physician who was on one side of a medical conflict that an 

impartial specialist resolved are, generally, insufficient to overcome the weight accorded to the 

report of the impartial medical examiner or to create a new conflict.22

As the medical evidence of record is insufficient to establish consequential right knee

osteoarthritis causally related to his accepted left knee injury, the Board finds that appellant has 

not met his burden of proof.

23

On appeal counsel argues that OWCP’s decision ignores dual and proximate causation. As 

explained above, Dr. Elkins provided a well-rationalized opinion based on a complete factual 

background, SOAF, review of the medical record, and physical examination findings that 

appellant’s right knee osteoarthritis was not causally related to his accepted left knee employment 

injury. Accordingly, Dr. Elkins’ medical opinion was sufficient to carry the special weight of 

medical evidence and he resolved the conflict.

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 me his burden of proof to expand the acceptance of 

his claim to include the additional condition of degenerative arthritis of the right knee as a 

consequence of the accepted November 8, 2011 employment injury.

 

19 Medical evidence that states a condition, but does not offer any rationalized medical explanation regarding the 

cause of an employee’s condition is of limited probative value on the issue of causal relationship. 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).

20 D.F., Docket No. 19-0067 (issued May 3, 2019); D.W., Docket No. 13-1873 (issued March 13, 2014).

21 W.S., Docket No. 17-1769 (issued July 26, 2018); S.W., Docket No. 08-2538 (issued May 21, 2009).

22 I.J., 59 ECAB 408, 414 (2008).

23 See A.T., Docket No. 18-1717 (issued May 10, 2019).
9

ORDER

IT IS HEREBY ORDERED THAT the December 19, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 5, 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