United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.R., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Peekskill, NY, Employer

__________________________________________

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Docket No. 18-0441

Issued: February 19, 2020

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 December 28, 2017 appellant, through counsel, filed a timely appeal from an

October 18, 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 over the merits in 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 services 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 October 18, 2017 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 

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 osteoarthritis of the right hip causally related to the accepted January 28, 2014

employment injury.

FACTUAL HISTORY

On January 31, 2014 appellant, then a 58-year-old city carrier assistant, filed a traumatic 

injury claim (Form CA-1) alleging that on January 28, 2014 he twisted and felt pain in his right 

knee when casing mail while in the performance of duty. On April 4, 2014 OWCP accepted his 

claim for exacerbation of localized primary osteoarthritis of the right lower leg. It authorized 

arthroscopic surgery on October 2, 2014 and a total right knee replacement on January 20, 2016. 

Appellant stopped work on January 31, 2014 and OWCP placed him on the periodic rolls 

commencing May 8, 2015. 

Appellant was treated by Dr. Scott L. Russinoff, a Board-certified orthopedist, from 

February 4 to March 28, 2014, for a right knee injury sustained when he was twisting at work on 

January 28, 2014.4 Dr. Russinoff diagnosed mild exacerbation of right knee arthritis. On April 29, 

2014 appellant reported continued right knee pain and right hip pain and noted his knee would 

buckle and therefore was unable to return to work. Dr. Russinoff noted that x-rays of both knees 

and right hip demonstrated mild arthritis. He diagnosed right knee pain with secondary hip pain. 

On July 17, 2014 Dr. Russinoff noted that appellant presented with right knee and hip pain in the 

groin region. He diagnosed a lateral meniscus tear of the right knee and exacerbation of right hip 

arthritis causally related to his accepted employment injury.

On May 23, 2014 appellant came under the treatment of Dr. Douglas J. Fauser, a Boardcertified orthopedist, for a right shoulder and right leg injury sustained when he “rolled his tractor.” 

This treatment continued through July 22, 2014. Dr. Fauser diagnosed a rotator cuff tear of the 

right shoulder and contusion of the right leg.

Appellant continued to be treated by Dr. Fauser on May 11, 2015 for increasing 

symptomology referable to the right knee which affected his gait pattern. Appellant reported using 

a cane outdoors and having a corticosteroid injection into the right hip. Dr. Fauser noted that 

appellant had a degenerative right hip and an externally rotated gait pattern and noted findings on 

examination of an effusion over the right knee, externally rotated gait pattern, and pain with 

internal rotation of the hip. He diagnosed osteoarthritis of the right knee and hip and recommended 

a total right knee replacement.5

In reports dated January 6 and 13, 2016, Dr. Fauser noted appellant’s right hip pain which 

he concluded was compensatory in nature after his right knee injury. Appellant reported that over 

the prior month or two he experienced increasing right-sided groin and hip pain which were more 

symptomatic than his right knee. Evaluation of the right hip revealed restricted range of motion

 

4 A magnetic resonance imaging (MRI) scan of the right knee, dated May 5, 2014, revealed a tear of the posterior 

horn of the lateral meniscus and osteoarthritis.

5

In an August 10, 2015 report, an OWCP district medical adviser (DMA) concurred with Dr. Fauser’s 

recommended total right knee replacement.
3

and weakness of hip abduction. X-rays of the right hip revealed moderate-to-severe osteoarthritis 

secondary to compensating for his right knee, and end-stage osteoarthritis of the patellofemoral 

joints. Dr. Fauser again recommended a total right knee replacement as well as an intra-articular 

corticosteroid injection into the ipsilateral hip. On January 20, 2016 he performed a 

fluoroscopically guided therapeutic injection of the right hip. Dr. Fauser performed a right total 

knee arthroplasty on January 26, 2016 and diagnosed end-stage patellofemoral arthrosis of the 

right knee. Appellant experienced postoperative complications and developed a deep venous 

thrombosis (DVT) of the right leg and arthrofibrotic total right knee replacement. On March 15, 

2016 Dr. Fauser performed a manipulation of the right knee under anesthesia and diagnosed 

arthrofibrosis of the right knee, status post total knee replacement.

In a report dated April 21, 2016, Dr. Fauser noted that appellant sustained a right knee 

injury at work on January 28, 2014 and subsequently underwent arthroscopic surgery in 

October 2014, viscosupplementation injections, physical therapy, a right total knee replacement, 

and manipulation of the right knee under anesthesia. He advised that due to appellant’s workrelated injury, altered gait, stiffness, and weakness in the knee he had developed compensatory 

right hip pain. Dr. Fauser noted that x-rays of the right hip and pelvis revealed osteoarthritis and 

opined that this condition was aggravated by the original work-related right knee injury. He 

indicated that due to the severe nature of his hip pain appellant underwent an injection on 

January 20, 2016. In a progress notes dated April 25 and May 23, 2016, Dr. Fauser reported 

appellant’s increasing complaints of right hip pain. He noted during physiotherapy for the knee 

replacement he experienced increased groin pain into his right thigh and buttock. Dr. Fauser 

opined that appellant’s hip condition should be included as part of his workers’ compensation 

claim. 

Appellant presented in follow up to Dr. Fauser on June 29, 2016 after finishing his 

regimen of physical therapy for his right knee. He noted recovery from his right knee injury 

had been hindered by his right hip osteoarthritis. Appellant indicated that he never had issues, 

including stiffness, with his hip prior to his work-related injury. Dr. Fauser diagnosed status 

post right total knee replacement and right hip osteoarthritis.

On July 1, 2016 OWCP referred appellant to Dr. Louis Nunez, a Board-certified 

orthopedist, for a second opinion examination to determine whether appellant had residuals of 

his work-related conditions, whether he sustained a right hip injury causally related to the 

January 28, 2014 work injury, and whether he could return to work subject to restrictions.

In a July 21, 2016 report, Dr. Nunez noted findings on physical examination of limited 

range of motion of the right hip of 100/130 degrees, limited range of motion for the right knee,

and a well-healed midline incision of the right knee with an effusion. He noted that appellant 

had disabling residuals of the right knee including limited flexion. Dr. Nunez opined that he 

required continued treatment for his right knee and advised that he had disability due to the 

injury of January 28, 2014 as well as from the right hip condition which was not related to the 

January 28, 2014 injury. He concluded that appellant’s disability was due to the significant 

limitation in range of motion in the right knee, as well as the nonwork-related right hip condition. 

Dr. Nunez noted that he had not reached maximum medical improvement and was not capable 

of returning to his date-of-injury position. He recommended additional treatment of aspiration 

of his knee joint and additional physical therapy. In a work capacity evaluation dated July 21, 

2016, Dr. Nunez noted that appellant could return to work for four hours a day with restrictions.
4

On September 1, 2016 OWCP informed appellant that his claim was accepted for 

exacerbation of the right lower leg osteoarthritis. It found, however, that the evidence then of 

record was insufficient to establish that the acceptance of his claim should be expanded to include 

the additional condition of osteoarthritis of the right hip. OWCP advised appellant of the type of 

factual and medical evidence needed to establish his claim and provided a questionnaire for his 

completion. It afforded him 30 days to respond.

On August 24, 2016 Dr. Fauser noted that appellant underwent an intra-articular 

corticosteroid injection into the right hip which provided 60 percent relief in symptoms. Findings 

on examination revealed restricted range of motion of the right hip with mild pain. Dr. Fauser

diagnosed right hip osteoarthritis.

In a statement dated September 26, 2016, appellant requested that the acceptance of his 

claim be expanded to include his right hip condition claiming that Dr. Russinoff and Dr. Fauser 

supported his claim that his hip exacerbation was caused by the accepted employment-related knee 

injury. 

By decision dated October 3, 2016, OWCP denied appellant’s request to expand the 

acceptance of his claim to include the additional condition of osteoarthritis of the right hip finding 

that the evidence of record failed to establish that the condition was causally related to the accepted 

employment injury.

In an October 12, 2016 report, Dr. Fauser indicated that appellant’s right knee was 

progressing, but his right hip hindered his ability to exercise and build strength. He diagnosed 

osteoarthritis of the right hip with no prior history of hip pain. Dr. Fauser indicated that an altered 

gait, and ambulating with an antalgic gait on the hip after his knee injury, had aggravated his hip 

pain. He diagnosed status post right total knee replacement with right hip osteoarthritis.

On October 14, 2016 appellant requested an oral hearing before a representative of 

OWCP’s Branch of Hearings and Review. By decision dated November 23, 2016, an OWCP 

hearing representative vacated the October 3, 2016 decision and remanded the case for further 

medical development. The hearing representative instructed OWCP to request a supplemental 

report from Dr. Nunez that included rationale in support of his conclusion that appellant’s hip 

condition was not causally related to his employment injury.

In an October 21, 2016 report, Dr. Fauser noted that appellant experienced only temporary 

relief from intra-articular corticosteroid injections and opined that appellant’s right hip pain was 

the result of compensating from his original work-related, twisting injury. A radiograph of the 

right hip and pelvis dated January 13, 2016 revealed moderate-to-severe osteoarthritis of the left 

hip. Dr. Fauser indicated that appellant had no prior history of hip problems despite having 

underlying osteoarthritis. He opined that appellant’s hip pain was a direct result of compensating 

from his right knee.

On November 30, 2016 Dr. Fauser noted that appellant experienced worsening right hip 

pain. He noted that appellant’s hip significantly impacted his ability to continue to recover from 

his right knee replacement as he had groin and thigh pain, and difficulty ascending and descending 

stairs. Physical examination revealed limited internal and external rotation of the hip and a 

nonantalgic gait. Dr. Fauser diagnosed right hip osteoarthritis.
5

On December 2, 2016 OWCP requested clarification from Dr. Nunez, specifically asking 

him to explain why he disagreed with appellant’s treating physician who opined that the right hip 

pain developed as a consequential injury caused by his altered gait and avoidance of right-sided 

weight bearing.

In a report dated January 9, 2017, Dr. Fauser noted that appellant was one year post right 

total knee replacement, but his right hip precluded significant advancement in function secondary 

to well-localized groin and thigh pain and marked restriction of range of motion. He recommended 

hip arthroplasty on the right side.

In response to OWCP’s inquiry, Dr. Nunez submitted a supplemental report dated 

January 27, 2017 in which he indicated that Dr. Russinoff’s April 29, 2014 note reported x-rays of 

both knees and right hip revealed arthritis present prior to the work-related injury. He indicated 

that the bilateral hip arthritis was therefore preexisting. Dr. Nunez advised that despite putting 

less weight on the right leg he experienced persistent pathology of the right knee because the right 

total knee replacement may be loose. He indicated that the fact that appellant still has pathology 

and complaints with the right knee had no bearing on his underlying osteoarthritis of the right hip 

and therefore the additional condition was not related to the injury sustained in January 2014. 

Dr. Nunez noted disagreement with appellant’s treating physician who opined that the right hip 

had developed as a consequential injury caused by his altered gait and avoidance of right-sided 

weight bearing. He opined that the right leg would not be considered consequential to the right 

knee, but rather the normal progression of the preexisting osteoarthritis.

In a work capacity evaluation (Form OWCP-5c) dated February 27, 2017, Dr. Fauser noted 

that appellant could return to work two hours a day with sedentary duties. In a report dated 

February 27, 2017, he saw appellant in follow up for his right hip osteoarthritis and noted that he

reported using a cane secondary to right hip pain.

By decision dated March 8, 2017, OWCP denied appellant’s request to expand the 

acceptance of his claim to include osteoarthritis of the right hip finding that the evidence of record 

failed to establish that this additional condition was causally related to the accepted employment

injury.

On March 13, 2017 appellant requested an oral hearing before a representative of OWCP’s 

Branch of Hearings and Review. The hearing was held on August 30, 2017.

On April 11, 2017 Dr. Fauser treated appellant in follow-up for right hip pain, stiffness, 

and pain with ambulation. He noted in a May 24, 2017 report that appellant presented with marked 

symptomology of groin pain, thigh pain, rest and startup pain, and buckling. Dr. Fauser 

recommended a total hip replacement.

On July 5, 2017 Dr. Joel S. Buchalter, a Board-certified orthopedic surgeon, noted that 

appellant was recommended for a right total hip replacement. He noted that appellant was 

clinically static in terms of his pain on a daily basis and was unable to participate in physical 

therapy because it was too painful.

In a report dated August 17, 2017, Dr. Andrew Peretz, a Board-certified orthopedic 

surgeon, noted that appellant was static, exhibited start up stiffness and pain, and was unable to 

ambulate for prolonged periods of time due to groin, anterior thigh, and laterally based hip pain.
6

By decision dated October 18, 2017, an OWCP hearing representative affirmed the 

decision dated March 8, 2017.

LEGAL PRECEDENT

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.6

Causal relationship is a medical question that requires rationalized medical opinion

evidence to resolve the issue.

7

 A physician’s opinion on whether there is causal relationship 

between the diagnosed condition and an accepted injury must be based on a complete factual and 

medical background.8 Additionally, the physician’s opinion must be expressed in terms of a 

reasonable degree of medical certainty and must be supported by medical rationale which, explains 

the nature of the relationship between the diagnosed condition and the accepted employment 

injury.9

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.10 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.11

Section 8123(a) of FECA 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.12 The implementing regulations 

state 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 a DMA, OWCP shall appoint a third 

physician to make an examination.13 When there exist opposing medical reports of virtually equal 

weight and rationale and the case is referred to an impartial medical specialist for the purpose of 

 

6 M.B., Docket No. 19-0485 (issued August 22, 2019); R.J., Docket No. 17-1365 (issued May 8, 2019); Jaja K.

Asaramo, 55 ECAB 200 (2004).

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

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

9

Id.

10 See S.M., Docket No. 19-0397 (issued August 7, 2019); Mary Poller, 55 ECAB 483, 487 (2004); 1 Arthur Larson 

& Lex K. Larson, Larson’s Workers’ Compensation Law 10-1 (2006).

11 A.T., Docket No. 18-1717 (issued May 10, 2019); Susanne W. Underwood (Randall L. Underwood), 53 ECAB 

139 (2001).

12 5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008). 

13 20 C.F.R. § 10.321. 
7

resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based 

upon a proper factual background, must be given special weight.14

ANALYSIS

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

In a July 21, 2016 report, Dr. Nunez indicated that appellant had disability due to the 

employment injury of January 28, 2014 as well as from the right hip condition, but advised that 

the right hip condition was not related to the accepted January 28, 2014 employment injury. In a 

supplemental report dated January 27, 2017, he indicated that the bilateral hip arthritis was 

preexisting, per diagnostic studies. Dr. Nunez opined that the fact that appellant still had pathology 

and complaints with the right knee has no bearing on his underlying osteoarthritis of the right hip 

and therefore the hip condition was not related as a consequential condition to his accepted right 

knee condition. He noted his disagreement with appellant’s treating physician whose opinion was 

that the right hip condition had developed as a consequential injury caused by his altered gait and 

avoidance of right-sided weight bearing. Dr. Nunez opined that the right leg would not be 

considered consequential to the right knee, but rather the normal progression of the preexisting 

osteoarthritis.

In a report dated April 21, 2016, Dr. Fauser noted that appellant had sustained a January 28, 

2014 employment injury and opined that as a consequence of appellant’s work-related knee injury, 

altered gait, stiffness, and weakness, he had developed compensatory right hip pain. He noted that 

x-rays of the right hip and pelvis revealed osteoarthritis and he opined that this condition had been 

aggravated by the original right knee injury. On June 29, 2016 Dr. Fauser noted that appellant’s 

recovery from his right knee injury was hindered by his right hip osteoarthritis. He diagnosed 

status post right total knee replacement and right hip osteoarthritis. Similarly, on October 21 and 

November 30, 2016, Dr. Fauser opined that appellant’s right hip condition had developed as a

result of compensating from his original work-related twisting injury. He indicated that appellant 

had no prior history of hip problems despite having an underlying osteoarthritis of the hip. 

Dr. Fauser opined that appellant’s hip pain was therefore a direct result of compensating on his 

right knee.

The Board finds that a conflict in medical opinion has been created between appellant’s 

attending physician and that of the second opinion physician regarding whether appellant’s 

osteoarthritis of the right hip was caused or aggravated by the accepted right knee condition 

following his January 28, 2014 employment injury.

15

 Section 8123 of FECA provides that, if there 

is a disagreement between the physician making the examination for the United States and the 

employee’s physician, OWCP shall appoint a third physician who shall make an examination.16 

As there remains an unresolved conflict in medical opinion regarding whether appellant’s 

diagnosed right hip condition is causally related to, or a consequence of, the accepted January 28, 

 

14 K.S., Docket No. 19-0082 (issued July 29, 2019); V.G., 59 ECAB 635 (2008).

15 See S.M., Docket No. 19-0397 (issued August 7, 2019).

16 Supra note 12. 
8

2014 employment injury the case shall be remanded to OWCP for creation of an updated statement 

of accepted facts and referral to an appropriate specialist to obtain an impartial medical opinion 

regarding whether the acceptance of appellant’s claim should be expanded to include his diagnosed

right hip condition. Following this and any other development 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 October 18, 2017 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: February 19, 2020

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