United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.L., Appellant

and

DEPARTMENT OF STATE, CHICAGO 

PASSPORT OFFICE, Chicago, IL, Employer

__________________________________________

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Docket No. 18-0629

Issued: November 16, 2018

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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 31, 2018 appellant, through counsel, filed a timely appeal from a November 6, 

2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the 

Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

has jurisdiction to consider 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 her burden of proof to establish a consequential left 

knee condition causally related to her accepted July 1, 2013 employment injury.

FACTUAL HISTORY

On July 3, 2013 appellant, then a 54-year-old passport specialist, filed a traumatic injury 

claim (Form CA-1) alleging that on July 1, 2013 she sustained a right knee injury as the result of 

striking her right knee on the left-hand corner of a counter wall while in the performance of duty. 

She stopped work on July 5, 2013 and returned to light-duty work on June 30, 2014. By decision 

dated October 8, 2014, OWCP accepted the claim for right medial meniscus tear.3 It authorized 

right knee arthroscopic surgery, partial medial and lateral meniscectomies, plica excision, and 

patellofemoral microfracture, which was performed on September 30, 2013. 

In a February 13, 2014 report, Dr. John Martin Leland, III, an examining physician Boardcertified in orthopedic surgery and sports medicine, noted that as a result of appellant’s right knee 

pain and decreased mobility, she developed left knee pain due to increased compensation and use. 

In a report dated July 17, 2014, Dr. Leland diagnosed left knee meniscal tear with chondral 

damage. He related that this condition was an inadvertent consequence of the accepted July 1, 

2013 work injury. In work capacity evaluation forms (Form OWCP-5c) dated July 17 and 

August 12, 2014, Dr. Leland diagnosed left knee meniscal tear with chondral damage. He 

indicated that appellant was capable of light-duty work and provided work restrictions. 

Dr. Leland, in an August 6, 2014 report, reiterated his opinion that appellant’s left knee 

medial meniscus tear with chondral damage was a consequence of the accepted July 1, 2013 work 

injury. 

In a report dated October 13, 2014, Dr. David H. Garelick, a Board-certified orthopedic 

surgeon acting as a district medical adviser (DMA), reviewed Dr. Leland’s reports and determined 

that there was no consequential left knee condition. In support of his opinion, he observed that the 

condition was more likely due to appellant’s age as there was no reported left knee injury. 

Moreover, there was no medical literature supporting that increased walking and pressure causes 

meniscal tears. 

On May 14, 2015 OWCP referred appellant, together with a statement of accepted facts 

(SOAF), list of questions, and medical evidence, to Dr. Gary Klaud Miller, a Board-certified 

orthopedic surgeon, to resolve the conflict in the medical opinion evidence between Dr. Leland 

and Dr. Garelick regarding a possible consequential left knee injury. 

In a June 5, 2015 report, Dr. Miller, based on a review of the SOAF, injury history, medical 

reports, appellant’s complaints, and diagnostic and medical evidence, noted that OWCP had 

accepted a right medial meniscus tear due to the accepted July 1, 2013 work injury. While he had 

not been asked to address the right knee, he opined that it was more likely than not that the only 

 

3 Appellant retired from the employing establishment effective April 3, 2015. 
3

injury she sustained as a result of the accepted July 1, 2013 work injury was a contusion. For a 

conclusive opinion on whether appellant sustained a right knee injury, Dr. Miller noted that he 

would need additional records. He observed that appellant developed left knee symptoms while 

being out of work. A physical examination of the left knee revealed a normal sensory examination, 

trace left knee effusion, good range of motion, crepitation, and tenderness. Dr. Miller also reported 

a bilateral guarded gait. He concurred with Dr. Garelick that there was no scientific evidence 

supporting that compensation for one knee would cause degenerative changes in the other knee. 

Dr. Miller attributed the left knee condition to aging. 

By decision dated August 14, 2015, OWCP denied appellant’s claim for a consequential 

left knee injury. It found that the special weight of the medical opinion evidence rested with the 

well-rationalized opinion of Dr. Miller, who had been selected to resolve the conflict in the medical 

opinion evidence. 

Appellant timely requested an oral hearing before an OWCP hearing representative, which 

was held on December 21, 2015. 

By decision dated February 8, 2016, an OWCP hearing representative affirmed the denial 

of appellant’s consequential injury claim. He accorded special weight to Dr. Miller’s opinion as 

he found the opinion well rationalized in explaining why there was no consequential left knee 

condition causally related to the accepted July 1, 2013 employment injury. 

A January 7, 2013 x-ray of appellant’s left knee revealed moderate osteoarthritis. 

An April 11, 2014 magnetic resonance imaging scan of appellant’s left knee revealed 

small-to-moderate joint effusion with Baker’s cyst, medial meniscus posterior horn complex,

degenerative undersurface tearing, and chondromalacia medial tibiofemoral compartment 

degenerative arthritic changes. 

A February 19, 2016 x-ray interpretation of appellant’s left knee revealed mild-tomoderate tricompartmental osteoarthritis.

In a February 19, 2016 report, Dr. Sherwin S.W. Ho, a physician Board-certified in 

orthopedic surgery and sports medicine, noted that appellant had a left knee arthroscopy with 

lateral and partial medial meniscectomies and microfracture in 2014. Since the surgery appellant 

had been doing well except for episodes of left knee clicking on extension. Physical findings 

included normal range of motion. 

In progress notes dated March 16, 2016, Dr. Ho and Dr. Harpreet S. Bawa, an orthopedic 

surgeon, noted that appellant was seen for a follow-up examination of her left knee. They detailed 

the history of the condition and provided examination findings. Dr. Ho and Dr. Bawa wrote that 

it was possible appellant might experience some left knee symptoms secondary to a right knee 

injury. They explained that this was a result of increased load on left knee and exacerbation of her

left knee symptoms “or causing the meniscal pathology.” As to appellant’s left knee clicking,

Dr. Ho and Dr. Bawa attributed it to the patellofemoral joint and chondromalacia. 

On January 19, 2017 OWCP received appellant’s January 10, 2017 request for 

reconsideration. 
4

By decision dated April 19, 2017, OWCP denied modification. It found Dr. Ho’s opinion 

was insufficient to create a new conflict in the medical opinion evidence as he failed to explain 

why appellant’s left knee condition was consequential to her accepted right knee condition. 

On August 8, 2017 counsel requested reconsideration and submitted additional evidence. 

Dr. Ho, in a May 25, 2017 report, opined that appellant’s preexisting left knee meniscus 

tear and media compartment arthritis, were aggravated by her accepted July 1, 2013 employment 

injury, right knee surgery, and rehabilitation. 

In a July 25, 2017 report, Dr. Ho explained that when there is a preexisting left knee disease 

such as meniscal tear and chondromalacia, any increased left knee weight-bearing would cause 

increased stress and loading on the damaged subchondral bone and articular cartilage and increased 

wear of the cartilage or arthritis. The increased stress and loading would cause inflammation and 

pain. Dr. Ho noted that appellant developed an antalgic gait as a result of the right knee injury, 

increased weight bearing on the left knee, and right knee surgery, which further increased the 

weight on the left knee. 

By decision dated November 6, 2017, OWCP denied modification. It found that Dr. Ho 

failed to adequately explain the mechanism by which appellant’s right knee condition resulted in 

a consequential left knee condition. 

LEGAL PRECEDENT

It is an accepted principle of workers’ compensation law that when the primary injury is 

shown to have arisen out of and in the course of employment, every natural consequence that flows 

from the injury is deemed to arise out of the employment, unless it is the result of an independent, 

intervening cause attributable to the employee’s own intentional conduct.4 The basic rule is that a 

subsequent injury, whether 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.5 With respect 

to consequential injuries, the Board has held that, where an injury is sustained as a consequence 

of an impairment residual to an employment injury, the new or second injury, even though 

nonemployment related, is deemed, because of the chain of causation to arise out of and in the 

course of employment and is compensable.6

A claimant bears the burden of proof to establish a claim for a consequential injury. As 

part of this burden, he or she must present rationalized medical opinion evidence, based on a 

complete factual and medical background, showing causal relationship. Rationalized medical 

evidence is an opinion of reasonable medical certainty supported by sound medical rationale 

 

4 Albert F. Ranieri, 55 ECAB 598 (2004); Clement Jay After Buffalo, 45 ECAB 707 (1994); John R. Knox, 42 

ECAB 193 (1990).

5 S.M., 58 ECAB 166 (2006); Debra L. Dillworth, 57 ECAB 516 (2006); Carlos A. Marrero, 50 ECAB 117 (1998); 

A. Larson, The Law of Workers’ Compensation § 10.01 (2005).

6 L.S., Docket No. 08-1270 (issued July 2, 2009); Kathy A. Kelley, 55 ECAB 206 (2004).
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explaining the nature of the relationship of the diagnosed condition and the specific employment 

factors or employment injury.7

Section 8123(a) provides that, 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.8 When there are opposing reports of virtually 

equal weight and rationale, the case must be referred to an impartial medical specialist, pursuant 

to section 8123(a) of FECA, to resolve the conflict in the medical evidence.9 Where a case is 

referred to an impartial medical examiner 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.10

ANALYSIS

The Board finds that this case is not in posture for a decision due to an unresolved conflict 

in the medical opinion evidence.

OWCP properly determined that there was a conflict in the medical opinion evidence 

between the DMA, Dr. Garelick, and Dr. Leland, a treating physician, as to whether appellant 

sustained a left knee condition as a consequence of her accepted right knee injury. It thereafter 

referred her to Dr. Miller for an impartial medical evaluation to resolve this issue.11 OWCP denied 

appellant’s claim finding that his medical opinion was entitled to special weight as an impartial 

medical examiner. 

The Board finds that Dr. Miller’s report does not constitute a well-rationalized opinion on 

the question of whether appellant sustained a left knee injury as a consequence of her accepted 

right knee condition for the following two reasons. 

First, in his June 5, 2015 report, Dr. Miller opined that appellant only sustained a right knee 

contusion as a result of the accepted July 1, 2013 employment injury and questioned the 

acceptance of right knee medial meniscus tear. It is well established that a physician’s opinion 

must be based on a complete and accurate factual and medical background. OWCP clearly 

accepted appellant’s claim for right knee medial meniscus tear. When it has accepted an 

employment condition as occurring in the performance of duty, the physician must base his opinion 

on the accepted facts. In Paul King12 the Board found that the report of an impartial medical 

 

7

J.B., Docket No. 14-1474 (issued March 13, 2015).

8 5 U.S.C. § 8123(a). See S.R., Docket No. 09-2332 (issued August 16, 2010); Y.A., 59 ECAB 701 (2008); 

Darlene R. Kennedy, 57 ECAB 414 (2006).

9 A.R., Docket No. 09-1566 (issued June 2, 2010); M.S., 58 ECAB 328 (2007); Bryan O. Crane, 56 ECAB 

713 (2005).

10 V.G., 59 ECAB 635 (2008); Sharyn D. Bannick, 54 ECAB 537 (2003); Gary R. Sieber, 46 ECAB 215 (1994).

11 Supra note 9. 

12 54 ECAB 356 (2003).
6

examiner who disregarded a critical element of the SOAF was of diminished probative value. In 

King, the impartial medical examiner also disagreed with the medical basis for acceptance of a 

condition. The Board found that this defective report was insufficient to resolve the existing 

conflict of medical opinion evidence. Therefore, Dr. Miller’s report is similarly of diminished 

probative value. 

Second, the Board also notes that Dr. Miller concurred with the DMA’s opinion and 

generally indicated that the medical literature did not support that compensating for an injured 

lower extremity would cause an injury to the opposite side. Dr. Miller, however, did not describe 

the medical literature to which he referred or explain how it applied to the specific facts of 

appellant’s case.13 His opinion in this regard is therefore of limited probative value. The medical 

evidence of record from appellant’s treating physicians indicates that appellant placed extra 

pressure on her left leg to compensate for her right leg employment injury. Dr. Miller did not 

adequately discuss or explain why placing extra weight on the left leg due to the employmentrelated right leg injury would not have been competent to bring about a consequential injury to her

left knee. He opined that appellant’s left knee condition was solely due to a nonwork-related 

degenerative process, but he did not adequately explain this opinion.

For the reasons discussed above, Dr. Miller’s opinion is insufficient to resolve the conflict

in medical opinion as the special weight of the medical opinion evidence regarding this matter 

does not presently rest with his opinion and there is an unresolved conflict in the medical opinion 

evidence. On remand, OWCP shall request that he provide a well-rationalized supplemental 

opinion based upon the accepted facts of this case. If Dr. Miller is unavailable or unwilling to 

render a supplemental opinion, it shall refer appellant, medical records, and SOAF to a new 

impartial medical specialist.14 Following this and any necessary further development, OWCP shall 

issue a de novo decision.

On appeal, counsel asserts that Dr. Ho provided a rationalized opinion explaining why 

appellant sustained a consequential left leg condition. In view of the Board’s decision to remand 

for further development and a de novo decision, the Board finds counsel’s argument premature.

CONCLUSION

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

 

13 Ruby I. Fish, 46 ECAB 276 (1994). 

14 See Willa M. Frazier, 55 ECAB 379 (2004); Harold Travis, 30 ECAB 1071, 1078 (1979).
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ORDER

IT IS HEREBY ORDERED THAT the November 6, 2017 decision of the Office of 

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

consistent with the decision of the Board.

Issued: November 16, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board