United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.T., Appellant

and

U.S. POSTAL SERVICE, QUEENS VEHICLE 

PLANT FACILITY, Jamaica, NY, Employer

__________________________________________

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Docket No. 19-0294

Issued: May 29, 2019

Appearances: Case Submitted on the Record

Stephen Larkin, 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 November 24, 2018 appellant, through counsel, filed a timely appeal from an 

August 16, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 

Pursuant to the Federal Employees’ Compensation Act3(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 The Board notes that counsel did not appeal an October 1, 2018 merit decision which denied authorization of 

appellant’s request to undergo total knee arthroplasty or an OWCP merit decision dated October 16, 2018, which 

denied modification of the October 1, 2018 decision. Counsel appealed only the merit OWCP decision dated 

August 16, 2018. Therefore, the Board lacks jurisdiction to review the October 1 and 16, 2018 OWCP merit decisions 

on this appeal. See 20 C.F.R. § 501.3.

3 5 U.S.C. § 8101 et seq.
2

ISSUE

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

of his claim should be expanded to include bilateral conditions of knee osteoarthritis, tear of the 

meniscus, and sprain of the ACL, and a right condition of knee rupture of the ACL causally related

to his accepted March 24, 2017 employment injuries.

FACTUAL HISTORY

On March 24, 2017 appellant, then a 50-year-old auto technician mechanic, filed a 

traumatic injury claim (Form CA-1) alleging that on that same day he sustained injuries to his 

knees, shin, and chest while in the performance of duty. He stopped work on March 27, 2017 and 

has not returned to work. In an accompanying narrative statement dated March 29, 2017, appellant 

noted that on March 24, 2017 he and a coworker had loaded a vehicle bumper into his truck and 

as he went to move his truck, his pants caught onto the bumper. He claimed that he went flying 

down onto the bumper hitting both of his knees, the left side of his chest, and right shin. Appellant 

reported the incident and his injuries to his supervisor on the date of injury. 

In support of his claim, appellant submitted a medical report dated March 28, 2017 from

Dr. Kioomars Moosazadeh, a Board-certified physiatrist. Dr. Moosazadeh noted that appellant 

was treated for employment-related bilateral knee injuries sustained on March 24, 2017. He 

advised that appellant was totally disabled and was unable to return to work until further notice.

OWCP subsequently received additional reports dated March 28 and May 4 and 8, 2017

by Dr. Moosazadeh. In his reports, Dr. Moosazadeh discussed physical examination findings, 

diagnosed sprain of the anterior cruciate ligament of both knees, and again found that appellant 

was totally disabled and could not return to work until further notice. In the May 8, 2017 attending 

physician’s report (Form CA-20) he checked a box marked “yes” indicating that the diagnosed 

condition was caused or aggravated by the claimed March 24, 2017 employment injury.

In a development letter dated June 2, 2017, OWCP notified appellant of the deficiencies of 

his claim. It advised him of the type of factual and medical evidence needed to establish his claim 

and provided a questionnaire for his completion. OWCP afforded appellant 30 days to respond. 

In a June 1, 2017 report, Dr. Moosazadeh continued to indicate that appellant was totally 

disabled and that he was unable to work until further notice.

A magnetic resonance imaging (MRI) scan of appellant’s left knee was performed on 

May 24, 2017 by Dr. David Milbauer, a Board-certified diagnostic radiologist. Dr. Milbauer 

provided impressions of nondisplaced peripheral tear of the body of the medial meniscus, segments 

of chondral thinning and fissuring involving the medial femoral condyle and lateral tibial plateau, 

diffuse patellar chondral thinning and deep fissuring involving the medial and lateral patellar facets 

and segment of full-thickness chondral loss within the femoral trochlea centrally, and small joint 

effusion, synovitis beneath the ITB and minimal inflammatory changes of the pes anserine bursa. 

He also performed a right knee MRI scan on the same date. Dr. Milbauer provided impressions 

of peripheral undersurface tear of the posterior horn of the medial meniscus, torn anterior cruciate 

ligament, segments of patellofemoral chondral loss including full-thickness chondral loss along 

the medial patellar facet, localized segment of chondral thinning/fissuring involving the medial 
3

femoral condyle and small focal chondral defect of the lateral tibial plateau centrally, and small 

joint effusion/synovitis and popliteal cyst.

In a report dated June 6, 2017, Dr. Stephen J. Nicholas, a Board-certified orthopedic 

surgeon, noted a history that appellant was injured on the job when he fell off a truck. He provided 

examination findings and reviewed diagnostic test results. Dr. Nicholas also provided assessments 

of severe osteoarthritis and tear of the meniscus of the bilateral knees and rupture of the anterior 

cruciate ligament (ACL) of the right knee. 

On June 15, 2017 appellant responded to OWCP’s development letter. He explained his 

delay in seeking medical treatment. Appellant claimed that he had contusions on his bilateral 

knees, right shin, and the left side of his chest. He treated his conditions with ice and ibuprofen. 

Appellant maintained that he had no prior injury or symptoms. 

Appellant submitted reports dated March 28 through June 19, 2017 by Dr. Moosazadeh 

who again noted the March 24, 2017 work incident, provided examination findings, reviewed 

diagnostic test results, and addressed appellant’s treatment plan. 

On July 12, 2017 OWCP accepted appellant’s claim for abrasion and contusion of the left 

knee. 

By decision dated July 13, 2017, OWCP denied expansion of the acceptance of appellant’s 

claim to include additional conditions of bilateral knee osteoarthritis, tear of the meniscus, and 

sprain of the ACL, and right knee rupture of the ACL. It found that the medical evidence of record 

was insufficient to establish that these conditions were causally related to the accepted March 24, 

2017 employment-related incident.

In a July 11, 2017 report, Dr. Moosazadeh continued to opine that appellant was totally 

disabled from work and that he could not return until further notice. 

Dr. Steven Touliopoulos, an attending Board-certified orthopedic surgeon, in a July 11, 

2017 report, requested authorization for bilateral knee synvisc-one injections. He noted that 

appellant remained totally disabled. Dr. Touliopoulos further noted that, if he did not respond 

appropriately to conservative treatment, then he would likely be a candidate for bilateral total knee 

arthroplasty. In an August 15, 2017 report, he noted a history of the accepted March 24, 2017 

employment injuries and examination findings. Dr. Touliopoulos provided impressions of left 

knee meniscal tear, chondral injuries, and aggravation of underlying degenerative joint disease;

right knee ACL and medial meniscal tears, chondral injuries, and aggravation of underlying 

degenerative joint disease; right shin injury rule out muscle fascial defect versus post-traumatic 

fibroma versus further derangement; and consequential right shoulder impingement syndrome rule 

out labral, capsule, and rotator cuff injuries consequentially related to a fall caused by right knee 

dysfunction resulting from appellant’s work accident.

OWCP, by decision dated August 25, 2017, denied appellant’s claims for leave without 

pay commencing May 8, 2017 causally related to his accepted March 24, 2017 employment 

injuries. It found that the medical evidence of record was insufficient to establish disability 

commencing May 8, 2017. 
4

On August 29, 2017 appellant requested reconsideration of OWCP’s July 13, 2017 

decision which had denied expansion of the acceptance of his claim.

In an October 10, 2017 report, Dr. Touliopoulos found that appellant was totally disabled 

and that he was unable to work until further notice. In a report dated November 10, 2017, he 

reiterated his prior diagnoses.

Undated reports from appellant’s physical therapist indicated that appellant was evaluated 

in October 2017. 

By decision dated November 27, 2017, OWCP denied modification of its July 13, 2017 

decision. It found that the medical evidence submitted did not contain a rationalized opinion 

causally relating appellant’s additional diagnosed medical conditions to the accepted March 24, 

2017 employment injury. 

In reports dated November 28, 2017 and January 15, 2018, Dr. Touliopoulos reiterated his 

prior bilateral knee, right shin, and right shoulder diagnoses and his opinion that the conditions 

were causally related to the accepted March 24, 2017 employment injuries. In a separate report of 

the same date and in a January 15, 2018 report, he also reiterated that appellant was totally disabled 

and was unable to return to work until further notice.

In a letter dated January 18, 2018, OWCP referred appellant, together with a statement of 

accepted facts (SOAF), the medical record, and a set of questions, to Dr. Timothy Henderson, a 

Board-certified orthopedic surgeon, for a second opinion to determine whether he continued to 

suffer from residuals of his accepted work-related conditions. 

In a report dated February 2, 2018, Dr. Henderson reviewed appellant’s history of injury 

and medical records, and noted examination findings. He advised that his work-related conditions 

had not resolved as there was evidence to support that these conditions were still active and causing 

noted objective findings. Dr. Henderson advised that additional medical recovery should be 

expected as maximum medical improvement (MMI) had not been obtained. He indicated that 

appellant’s prognosis was fair and that he was a candidate for left total knee replacement followed 

by six weeks of postoperative physical therapy treatment, three times a week if medical clearance 

could be obtained as he was overweight. Dr. Henderson found that, based on clinical presentation, 

he was not currently capable of returning to his date-of-injury job as an auto technician mechanic. 

Appellant could return to work with restrictions in a sedentary position. Dr. Henderson completed 

a work capacity evaluation (Form OWCP-5c), which set forth appellant’s work restrictions.

OWCP requested, by letter dated February 13, 2018, that Dr. Henderson submit a 

supplemental report with detailed medical rationale in support of his opinion that appellant 

continued to suffer from residuals of his accepted conditions. In a letter dated February 14, 2018,

Dr. Henderson advised that appellant was not currently suffering from the accepted conditions of 

left knee contusion and abrasion. He had a severe exacerbation or aggravation of preexisting left 

knee osteoarthritis and compensatory aggravation of right knee osteoarthritis. Dr. Henderson 

related findings of a left knee MRI scan. He determined that appellant had reached MMI from his 

March 24, 2017 injury, however, appellant had a severe exacerbation or aggravation of left knee 

osteoarthritis and now required a left total knee replacement. Dr. Henderson maintained that he 

was not able to perform the full duty of his employment due to preexisting and nonwork-related 
5

osteoarthritis. He indicated that appellant had a history of osteoarthritis of both knees and was 

previously able to perform the full duty of his employment, although the work-related injury had 

severely exacerbated or aggravated his left knee osteoarthritis.

On March 1, 2018 appellant, through counsel, requested reconsideration of OWCP’s 

July 13, 2017 decision and submitted medical evidence. In a report dated January 3, 2018,

Dr. Touliopoulos continued to note a history of the accepted March 24, 2017 employment injuries. 

He also noted that at the end of June 2017 appellant’s right knee buckled at home, which caused 

him to fall and develop right shoulder derangement. Dr. Touliopoulos related that the right knee 

would not have buckled if not for his March 24, 2017 right knee injury. He reiterated his prior 

clinical impressions. Dr. Touliopoulos opined that the diagnosed conditions were causally related 

to the accepted employment injury. He explained that the knee was comprised of four major 

ligaments which were critical to the stability of the knee as they attached bones of the knee joint 

together, the femur and the tibia. Dr. Touliopoulos explained that ACL injuries occurred when the 

tibia was pushed forward in relation to the femur or a twisting injury. He maintained that this was 

consistent with appellant banging his right knee into the metal floor. Dr. Touliopoulos related that 

an acute tear occurred when the knee was bent and forcefully twisted, while the leg was in a weightbearing position. A torn meniscus could occur because of trauma caused by forceful twisting or 

hyperflexing of the knee joint. Dr. Touliopoulos maintained that this was consistent with the injury 

described by appellant where his knee was bent when his pants were caught on the metal bumper 

causing him to fall and hit his right knee on the metal floor and his left knee on the metal bumper 

resulting in hyperextension of both knees. 

Dr. Touliopoulos noted the definition of arthritis and related that the most common type 

was the wearing out of joint surface cartilage (osteoarthritis). He related that while the wearing 

away process did not result from appellant’s accident when he hyperextended his knees and the 

right knee banged into the metal floor and the left knee banged into the metal bumper, that incident 

could aggravate and accelerate the osteoarthritic condition in his knees. Dr. Touliopoulos further 

related that the right shoulder injuries were consequentially related to his intervening injury that 

occurred at the end of June 2017. He noted that as he had noted above, an injury to a ligament 

could cause articular cartilage to break off and float around in the knee as loose bodies causing the 

knee to lock. Dr. Touliopoulos maintained that, in appellant’s case, the locking of his knee caused 

it to buckle and fall onto his right shoulder as he was descending steps by his home. When 

appellant fell and landed on his shoulder an intervening injury occurred resulting in right shoulder 

derangement. Dr. Touliopoulos described impingement syndrome of the shoulder and maintained 

that this was consistent with appellant’s June 2017 fall resulting from his knee locking up due to 

his March 24, 2017 employment injury. He advised that double knee replacement was medically 

necessary due to the extent of injury to his knees.

OWCP received additional reports dated February 27 and March 27, 2018 by

Dr. Touliopoulos who continued to reiterate his clinical impressions and opinions regarding causal 

relationship of additional medical conditions and appellant’s total disability. 

In a letter dated April 4, 2018, OWCP requested that Dr. Henderson clarify his 

February 14, 2018 opinion that the accepted March 24, 2017 employment injury had aggravated 

appellant’s preexisting left knee osteoarthritis. On April 16, 2018 it was informed that

Dr. Henderson was no longer practicing.
6

On April 17, 2018 OWCP referred appellant to Dr. Andrew E. Farber, a Board-certified 

orthopedic surgeon, for a second opinion.

In a report dated April 30, 2018, Dr. Farber reviewed the SOAF and appellant’s history of 

injury and medical records, and noted examination findings. He indicated that appellant fell onto 

both of his knees. Appellant related to him that he had a subsequent injury a few months later. He 

was walking down steps when his right knee locked. Appellant fell onto a concrete floor injuring 

his shoulder. He had been advised that he required a total knee arthroplasty. Appellant related 

that he had prior right shoulder injury approximately 18 years ago, but he had no issue after that 

injury. Dr. Farber noted that he denied any other knee injuries. He related that the medical records 

revealed underlying degenerative change in his knees and that his fall resulted in worsening or 

aggravation of this pathology. Dr. Farber noted that his examination revealed diffuse tenderness 

about both knees. There was a palpable effusion about both knees and no gross instability. Flexion 

and extension was 5/5 bilaterally globally. There was 0 degrees of extension and 100 degrees of 

flexion on the right, 0 to 95 degrees on the left with discomfort in just about any motion (normal 

was 0 to 150). A Lachman test did not reveal a firm end point on either knee, although the 

examination was somewhat limited secondary to discomfort. A McMurray’s test was equivocal 

due to discomfort. At the conclusion of the examination appellant stepped down with discomfort 

from the examination table and did not use a cane for ambulation. He was unsuccessfully treated 

with a significant course of conservative treatment, including physiotherapy and viscosupplementation. Dr. Farber indicated that appellant’s subjective complaints corresponded with 

his objective findings. He discussed the results of a left knee MRI scan. Dr. Farber opined that 

the accepted work-related condition of left knee contusion and left knee abrasion had resolved. He 

maintained that there was no evidence to support that the work conditions were still active and 

causing objective findings. Dr. Farber also maintained that no further treatment was indicated for 

the accepted work conditions. He noted that appellant was not currently working in any capacity, 

but that he could perform sedentary work. Dr. Farber related that he had moderate disability that 

was related to his preexisting osteoarthritis and not to his accepted work conditions. He completed 

an OWCP-5c form, which set forth appellant’s work restrictions.

On May 29, 2018 OWCP requested that Dr. Farber submit a supplemental report clarifying

whether the additional conditions of osteoarthritis, meniscus tear, and ACL sprain of the bilateral 

knees, and rupture of the ACL of the right knee were caused or aggravated by the March 24, 2017 

work injury.

In a May 29, 2018 report, Dr. Touliopoulos continued to opine that appellant was 

indefinitely totally disabled from work. 

In a letter dated June 1, 2018, Dr. Farber opined that, based on the history provided and the

SOAF, appellant fell on his left knee loading a bumper into a truck. He related that there was no 

objective evidence to support additional diagnosis other than left knee contusion and left knee 

abrasion. Dr. Farber noted that appellant had a history of prior left knee arthroscopy and additional 

work injuries involving the left knee with a diagnosis of sprain. He concluded that an additional 

diagnosis would not be in relation to this work injury. 

Dr. Touliopoulos, in a June 26, 2018 report, reiterated his opinion that appellant was 

indefinitely totally disabled from work.
7

On July 19, 2018 OWCP requested that Dr. Farber review an updated SOAF4and provide 

a supplemental report indicating whether it impacted his prior responses. 

Dr. Farber, in a letter dated July 26, 2018, related that upon his review of the updated 

SOAF, medical records, and appellant’s history, his previously submitted determination remained 

unchanged. He noted that appellant had preexisting osteoarthritis. There were underlying 

degenerative changes in his knees. Dr. Farber continued to opine that appellant’s work-related 

conditions had resolved and that he could return to work in a sedentary position.

By decision dated August 16, 2018, OWCP denied modification of its July 13, 2017 

decision. It found that the weight of the medical opinion evidence rested with the opinion of

Dr. Farber and established that appellant had not sustained additional medical conditions causally 

related to his accepted March 24, 2017 employment injuries.

LEGAL PRECEDENT

An employee seeking benefits under FECA5 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, 

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

specific condition for which compensation is claimed is causally related to the employment injury.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

When 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.8 To establish causal relationship between the condition, as well 

as any attendant disability claimed and the employment event or incident, the employee must 

submit rationalized medical opinion evidence based on a complete factual and medical 

background, supporting such a causal relationship.9 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 supported by medical rationale explaining the nature of the relationship 

 

4 The updated SOAF noted, among other things, appellant’s prior claims. In appellant’s claim assigned OWCP File 

No. xxxxxx447, OWCP accepted that he sustained left knee strain on September 10, 2004. It accepted that he 

sustained a lumbar sprain on September 8, 2009 under his assigned OWCP File No. xxxxxx468. OWCP accepted 

appellant’s claim assigned OWCP File No. xxxxxx804 for a left shoulder impingement and cervical strain sustained 

on June 2, 2012.

5 Supra note 3.

6 See F.H., Docket No. 18-1238 (issued January 18, 2019); Tracey P. Spillane, 54 ECAB 608 (2003).

7 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).

8 See T.F., Docket No. 17-0645 (issued August 15, 2018); Jaja K. Asaramo, 55 ECAB 200 (2004).

9 See S.A., Docket No. 18-0399 (issued October 16, 2018).
8

between the diagnosed condition and the specific employment factors identified by the claimant.10 

The weight of 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.11

Section 8123(a) of FECA provides, in pertinent part: “If there is 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.”

12

 Where a case is 

referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of 

such specialist, if sufficiently well rationalized and based on a proper factual and medical 

background, must be given special weight.13

ANALYSIS

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

OWCP accepted that appellant sustained an abrasion and a contusion of the left knee on 

March 24, 2017 when his knees struck a vehicle bumper. In reports dated August 15, 2017 through 

February 27, 2018 Dr. Touliopoulos, appellant’s attending physician, noted a history of the 

accepted March 24, 2017 employment injuries. He examined appellant and provided impressions 

of left knee meniscal tear, chondral injuries, and aggravation of underlying degenerative joint 

disease, right knee ACL and medial meniscal tears, chondral injuries, and aggravation of 

underlying degenerative joint disease, right shin injury rule out muscle fascial defect versus posttraumatic fibroma versus further derangement, and consequential right shoulder impingement 

syndrome rule out labral, capsule, and rotator cuff injuries. Dr. Touliopoulos opined that 

appellant’s conditions were a consequence of the accepted employment injuries. In his January 3, 

2018 report, he explained how the accepted work injuries caused or aggravated the diagnosed 

conditions. Dr. Touliopoulos maintained that bilateral knee replacement surgery was medically 

warranted.

By contrast Dr. Farber, an OWCP referral physician, opined in his report dated April 30,

2018 that appellant’s employment-related left knee contusion and abrasion had resolved and that 

appellant could return to sedentary work with restrictions. He further concluded, in reports dated 

June 1 and July 26, 2018, that appellant had not sustained additional medical conditions as a result 

of the March 24, 2017 work injuries.

Both Dr. Touliopoulos and Dr. Faber provided a description of the employment injuries

and both provided rationale for their respective findings based on their review of the medical 

evidence and their physical findings. The Board, therefore, finds that a conflict in medical opinion 

exists regarding whether appellant’s bilateral knee osteoarthritis, tear of the meniscus, and sprain 

 

10 See P.M., Docket No. 18-0287 (issued October 11, 2018).

11 F.H., supra note 6.

12 5 U.S.C. § 8123(a).

13 See Darlene R. Kennedy, 57 ECAB 414 (2006).
9

of the ACL, and right knee rupture of the ACL were causally related to the accepted work injuries

of March 24, 2017.

14

 

OWCP’s regulations provide 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.15 The Board will 

thus remand the case to OWCP for referral to an impartial medical examiner regarding whether 

the acceptance of appellant’s claim should be expanded to include bilateral knee osteoarthritis, tear 

of the meniscus, and sprain of the ACL, and right knee rupture of the ACL.

16

 Following this and 

any such further development as may be deemed necessary, OWCP shall issue a de novo decision. 

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the August 16, 2018 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this decision of the Board.

Issued: May 29, 2019

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

 

14 See E.C., Docket No. 18-0780 (issued October 11, 2018); W.B., Docket No. 17-1994 (issued June 8, 2018).

15 5 U.S.C. 8123(a); see also G.K., Docket No. 16-1119 (issued March 16, 2018).

16 See E.C., supra note 14; P.S., Docket No. 17-0802 (issued August 18, 2017).