United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.B., Appellant

and

DEPARTMENT OF THE ARMY, ABERDEEN 

PROVING GROUND, Aberdeen, MD, Employer

__________________________________________

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Docket No. 17-0770

Issued: October 29, 2018

Appearances: Case Submitted on the Record

Toby Rubenstein, for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

COLLEEN DUFFY KIKO, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On February 23, 2017 appellant, through her representative, filed a timely appeal from a 

November 8, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). 

The Board has jurisdiction under the Federal Employees’ Compensation Act2(FECA) and 

20 C.F.R. §§ 501.2(c) and 501.3 to consider the merits of the case.

ISSUE

The issue is whether appellant has met her burden of proof to establish an aggravation of 

preexisting left knee arthritis causally related to factors of her federal employment.

 

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

FACTUAL HISTORY

On July 28, 2011 appellant, then a 59-year-old human resources specialist, filed an 

occupational disease claim (Form CA-2) alleging that she aggravated her preexisting, posttraumatic, left-knee arthritis while working, and that frequent travel and increased walking 

accelerated her need for a total left knee replacement.

3 She noted that she first became aware of 

her claimed condition on November 3, 2008 and first attributed it to her federal employment on 

November 21, 2008.

By development letter dated August 4, 2011, OWCP requested that appellant provide 

evidence in support of her claim. It advised her of the type of factual and medical evidence 

required and attached a questionnaire for her completion. OWCP afforded appellant 30 days to 

provide the necessary information.

In support of her claim, appellant provided narrative statements which noted that her 

work unit moved into a new facility on November 3, 2008. She alleged that her knee 

subsequently became more symptomatic due to the increased walking. Appellant asserted that, 

“Although the post-traumatic arthritis was progressively getting worse over prior years due to 

travel requirements, the lack of accommodations and size of the new building rapidly accelerated 

my condition.” She alleged that from November 3 to December 18, 2008 she went from walking 

short distances without a limp to needing a wheelchair full time. On November 21, 2008 

appellant’s physician recommended a total knee replacement. Appellant traveled frequently for 

work from 2006 through 2008. By December 2008, she could no longer travel due to pain. 

Appellant underwent total left knee replacement surgery in March 2009 and retired from the 

employing establishment on October 2, 2009. 

Appellant noted a history of injury in which she sustained a left leg crush injury and right 

clavicle fracture in a nonwork motor vehicle accident on October 8, 2000 and was wheelchairbound for two years. She had an additional motor vehicle injury in August 2007, which resulted 

in neck and shoulder spasms, and a left-foot fracture. Appellant underwent several left knee 

surgeries before the March 2009 total replacement. 

By letter dated August 2, 2011, the employing establishment controverted appellant’s 

claim asserting that she was accommodated for all of her medical needs. It noted that she was 

given the opportunity to decline travel due to health reasons, but advised that she preferred to 

make the trips. The employing establishment further noted that appellant’s duty station built in 

2009 was a one-level building with no steps and no ramps, and the bathrooms were handicap 

accessible. 

Appellant submitted medical evidence in support of her claim. 

 

3 The present claim was assigned OWCP File No. xxxxxx352. Appellant had additional claims before OWCP. 

OWCP File No. xxxxxx321 was accepted for aggravation of left knee arthritis and knee replacement due to an injury 

during a fire drill. OWCP File No. xxxxxx282 was accepted for aggravation of left knee post-traumatic arthritis due 

to walking to a bus at an airport. OWCP File No. xxxxxx480 was accepted for aggravation of depressive disorder, 

post-traumatic stress disorder, panic disorder, and phobia. These other claims have not been administratively 

combined with the present claim and are not presently before the Board.
3

In a May 2, 2011 report, Dr. Richard I. Zamarin, a Board-certified orthopedic surgeon, 

noted appellant’s history of the motor vehicle accidents and the resulting injuries which left her 

confined to a wheelchair. He reviewed her list of work activities and opined that work factors 

such as walking and traveling aggravated her preexisting, post-traumatic arthritis and accelerated 

the knee replacement surgery. 

By decision dated October 26, 2011, OWCP denied appellant’s occupational disease 

claim. It found that appellant had not submitted medical evidence diagnosing a condition 

resulting from employment activities. 

Appellant, through counsel, requested an oral hearing, held on October 28, 2011. By 

decision dated February 2, 2013, an OWCP hearing representative vacated the October 26, 2011 

decision and remanded the case for further medical development. 

In an April 25, 2012 statement of accepted facts (SOAF), OWCP noted appellant’s 

retirement, the accepted conditions in her other claims, and her nonwork-related motor vehicle 

accidents in 2000 and 2007. 

On August 17, 2012 OWCP referred appellant to Dr. Willie Thompson, a Board-certified 

orthopedic surgeon, for a second opinion evaluation. 

On January 11, 2013 OWCP updated the SOAF to note that appellant attributed the 

aggravation of her underlying knee arthritis to excessive walking beginning November 3, 2008. 

It further noted that she was required to travel and made approximately 10 trips a year from 2006 

through 2008. OWCP noted in November 3, 2008 the employing establishment moved to a new 

building such that appellant’s handicapped parking spot was 300 feet from her desk, while in the 

previous location it had been 25 to 45 feet. It also noted that office equipment and supplies were 

located further from her desk in the new building. OWCP reported that appellant used a 

wheelchair when working on a regular basis beginning in December 2008.

On January 15, 2013 OWCP requested a supplemental report from Dr. Thompson based 

on the revised SOAF. In a report dated March 5, 2013, Dr. Thompson reviewed the amended 

SOAF and again opined that appellant’s left knee condition was not causally related to factors of 

her federal employment. He found that she was not required to perform an excessive amount of 

walking, kneeling, crawling, standing, or other activities which would have resulted in anything 

more than a temporary aggravation of her preexisting condition which would have resolved 

within a brief period of time with appropriate treatment. 

By decision dated May 22, 2013, OWCP denied appellant’s claim, finding that

Dr. Thompson’s second opinion report negated a permanent, work-related aggravation of her 

preexisting left knee arthritis. 

Appellant again requested an oral hearing, which was held on October 29, 2013.

4

 By 

decision dated December 23, 2013, OWCP’s hearing representative vacated the May 22, 2013 

 

4 During the hearing, counsel argued, among other things that OWCP improperly declined to address appellant’s 

request for assistance in communication with Dr. Thompson as an accommodation under FECA Bulletin No. 12-05.
4

decision and remanded the case for OWCP to address appellant’s request for accommodations 

under FECA Bulletin No. 12-05.

On July 31, 2014 OWCP referred appellant for a second opinion evaluation with

Dr. Steven J. Valentino, an osteopath and Board-certified orthopedic surgeon, and provided an 

updated SOAF which included the varying size of the employing establishment’s buildings, the 

amount of time she spent in work travel, and the accepted aggravations of her left knee and 

emotional condition. 

In an August 19, 2014 report, Dr. Valentino noted his review of appellant’s medical 

records and her assertion that work-related job duties aggravated her preexisting left knee 

osteoarthritis. He described the progression of her knee problems and opined in an August 19, 

2014 report that her significant left knee injury and surgical intervention left her with a 

significant step-off about the lateral tibial plateau resulting in her post-traumatic arthritis and 

subsequent need for knee replacement. Since then, appellant’s knee condition had attained 

maximum medical improvement. Dr. Valentino stated that her work activities caused “no 

significant aggravation of her post-traumatic arthritic changes about her left knee” and that her 

diagnosed condition was “not medically connected” to work factors. 

By decision dated January 26, 2015, OWCP denied appellant’s occupational disease 

claim, finding that Dr. Valentino’s report, which found no causal relationship between her

employment duties and her preexisting, post-traumatic left knee osteoarthritis, carried the weight 

of the medical evidence. 

Appellant, through her representative, requested reconsideration on December 8, 2015, 

arguing that a conflict of medical opinion existed between Drs. Valentino and Zamarin and that

Dr. Thompson’s reports should have been excluded from the record. The representative also 

submitted additional medical evidence.

In an April 29, 2015 report, Dr. Stewart A. Kaufman, a Board-certified orthopedic 

surgeon, noted his review of the SOAF and appellant’s work activities. He diagnosed left knee 

post-traumatic arthritis with total knee replacement, left leg peroneal nerve injury and complex 

regional pain syndrome (CRPS), and denervation of the proximal tibio-fibular joint and resection 

of a neuroma of the patellar branch of the saphenous nerve he opined that because appellant had 

to walk great distances and climb stairs, which increased the stress on her knee, her employment 

aggravated and accelerated her underlying knee conditions. 

On July 1, 2015 Dr. Zamarin opined that appellant’s work required her to travel which 

necessitated walking, standing, and climbing stairs. These activities aggravated the posttraumatic arthritis in her left knee and accelerated the need for total left knee replacement. 

Dr. Franklin E. Caldera, an osteopath and a Board-certified physiatrist, examined 

appellant on December 6, 2015, reviewed the SOAF and the additional work duties that she felt 

contributed to her condition. He opined that her travel, walking for long distances, and 

prolonged standing caused an aggravation of the post-traumatic arthritis in her left knee,

accelerating the need for a replacement. 
5

On March 25, 2016 OWCP found that a conflict of medical opinion existed between 

second opinion physician Dr. Valentino and appellant’s treating physicians Drs. Caldera, 

Kaufman, and Zamarin regarding whether her employment activities aggravated her preexisting 

left knee arthritis or CRPS. It referred appellant, along with a set of questions, to Dr. William 

Emper, a Board-certified orthopedic surgeon, for an impartial medical examination. 

In an April 21, 2016 report, Dr. Emper reviewed the August 12, 2014 SOAF and all 

medical records. He described appellant’s October 2000 motor vehicle accident resulting in a 

comminuted tibial plateau fracture and two accepted work-related aggravations. After a physical 

examination, Dr. Emper opined that her knee replacement was due to her preexisting 

degenerative arthritis and that the natural progression of the arthritis required left total knee 

replacement surgery.5 He found no objective medical evidence to substantiate appellant’s claim 

that the work environment or any work injury resulted in permanent exacerbation of the 

preexisting, post-traumatic degenerative arthritis. Dr. Emper concluded that her degenerative 

knee arthritis was not connected to her work activities by direct cause, aggravation, precipitation, 

or acceleration. 

By decision dated November 8, 2016, OWCP denied appellant’s claim, finding that she 

had not submitted medical opinion evidence sufficient to establish causal relationship between 

her diagnosed left knee condition and her employment duties. 

LEGAL PRECEDENT

An employee seeking benefits under FECA6 has the burden of proof to establish the 

essential elements of his or her claim by the weight of the reliable, probative, and substantial 

evidence, including the facts that the individual is an “employee of the United States,” that the 

claim was timely filed, that an injury was sustained in the performance of duty, and that any 

disability or specific condition for which compensation is claimed is causally related to the 

employment injury.7

OWCP’s regulations define an occupational disease as “a condition produced by the work 

environment over a period longer than a single workday or shift.”

8

 To establish that an injury 

was sustained in the performance of duty in an occupational disease claim, a claimant must 

submit the following: (1) medical evidence establishing the presence or existence of the disease 

or condition for which compensation is claimed; (2) a factual statement identifying employment 

factors alleged to have caused or contributed to the presence or occurrence of the disease or 

condition; and (3) medical evidence establishing that the employment factors the claimant 

identified were the proximate cause of the condition for which compensation is claimed or, 

stated differently, medical evidence establishing that the diagnosed condition is causally related 

to the employment factors identified by the claimant. 

 

5 Appellant’s treating physician accompanied her to the impartial medical examination.

6 Supra note 2.

7 Supra note 2. Kathryn Haggerty, 45 ECAB 383, 388 (1994).

8 20 C.F.R. § 10.5(q).
6

A medical report has probative value only when supported by medical rationale,

9 which 

includes a physician’s detailed opinion on whether causal relationship exists between the 

claimant’s diagnosed condition and the implicated employment activity. The physician’s 

opinion must be based on a complete factual and medical background, 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 specific employment activity or factors the 

claimant identified.

10

 The claimant’s belief that employment caused or aggravated the claimed 

condition is insufficient to establish a causal relationship.

11

When there are opposing reports of virtually equal weight and rationale, OWCP will refer 

the case to an impartial medical examiner under section 8123(a) of FECA which provides that

the Secretary shall appoint a third physician to resolve the conflict of medical opinion between 

the employee’s physician and OWCP’s referral physician.

12

 For this referee examination, 

OWCP will select a physician qualified in the appropriate specialty who has had no prior 

connection with the case.13

Where the case is referred to an impartial medical examiner to resolve the conflict 

between opposing medical reports of virtually equal weight and rationale, the specialist’s 

opinion, if sufficiently well rationalized and based on a proper factual background, must be given 

special weight.14

ANALYSIS

The Board finds that appellant has not established that her left knee condition was caused 

or aggravated by factors of her federal employment. 

Based on an SOAF detailing appellant’s work history, physical examination, and medical 

evidence record, impartial medical examiner Dr. Emper, in his April 21, 2016 report, determined 

that her left knee condition was due to preexisting degenerative arthritis whose natural 

progression eventually required the knee replacement. Dr. Emper found no objective medical 

evidence indicating that her work duties or any work injury such as the accepted aggravations 

resulted in a permanent occupational condition. Therefore, he concluded that the degenerative 

knee arthritis was not causally connected to federal employment.

Because Dr. Emper had full knowledge of the relevant facts, evaluated the course of 

appellant’s condition, is a specialist in his field, and based his conclusion on a comprehensive 

review of the factual and medical history as well as his own physical examination, the Board 

 

9 T.F., 58 ECAB 128 (2006).

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

11 Lourdes Harris, 45 ECAB 545, 547 (1994).

12 Supra note 2; M.S., 58 ECAB 328 (2007); B.C., 58 ECAB 111 (2006). 

13 R.C., 58 ECAB 238 (2006).

14 Nathan L. Harrell, 41 ECAB 401, 407 (1990).
7

finds that his opinion constitutes the special weight of the medical evidence.15 Accordingly, 

appellant has not established causal relationship between her work duties and her claimed knee

condition. 

On appeal, appellant’s representative contends that the impartial medical examiner’s 

report did not constitute the weight of the medical evidence, that a second opinion report should 

have been excluded from the record, that OWCP did not grant appellant’s accommodations 

request during the impartial examination, and the SOAF was not comprehensive. The Board 

finds no evidence of record to support her arguments on appeal. Appellant was accompanied to 

the impartial medical examination by her treating physician, and the SOAF included all pertinent 

work factors. As explained above, Dr. Emper’s report was well-rationalized and based on a 

thorough review of the case record. The Board thus finds that OWCP properly afforded the 

special weight of the medical evidence to the impartial medical examiner.

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 established an aggravation of preexisting left knee 

arthritis causally related to factors of her federal employment.

ORDER

IT IS HEREBY ORDERED THAT the November 8, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.16

Issued: October 29, 2018

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

 

15 T.M., Docket No. 18-0149 (issued September 5, 2018).

16 Colleen Duffy Kiko, Judge, participated in the original decision, but was no longer a member of the Board 

effective December 11, 2017.