United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.L., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Little Rock, AR, Employer

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Docket No. 18-0990

Issued: March 5, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

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 April 16, 2018 appellant filed a timely appeal from a December 1, 2017 merit decision 

of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’

Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over 

the merits of this case.

ISSUE

The issue is whether OWCP abused its discretion by denying authorization for bilateral 

knee replacements. 

FACTUAL HISTORY

On April 24, 2012 appellant, then a 58-year-old city carrier, filed a traumatic injury claim 

(Form CA-1) alleging that, on April 14, 2012, he missed a step and fell approximately six steps 

while delivering mail. He landed on his chin, chest, right knee, and lower leg. Appellant stopped 

 

1 5 U.S.C. § 8101 et seq.
2

work on April 14, 2012 and returned to regular-duty work on April 17, 2012. OWCP initially 

accepted the claim for right knee medial meniscus tear. 

Dr. James C. Tucker, Jr., an orthopedic surgeon, performed an authorized arthroscopy of 

appellant’s right knee with partial medial and lateral meniscectomy and chondroplasty of the 

trochlear groove on September 24, 2012. Appellant returned to full-duty work on 

November 26, 2012. OWCP subsequently expanded acceptance of the claim to include 

derangement of the left medial meniscus and temporary aggravation of bilateral knee 

osteoarthritis.2

Dr. Tucker also performed OWCP authorized left knee arthroscopy with partial medial and 

lateral meniscectomies and removal of loose body on March 29, 2013. Appellant returned to 

limited-duty work in May 2013 with permanent restrictions. 

Due to bilateral knee pain, during 2014 and 2015, appellant received corticosteroid and 

euflexxa injections in both knees from Dr. Tucker. On October 6, 2015 Dr. Tucker noted that the 

bilateral corticosteroid injections only provided relief for four weeks and that appellant was having 

increasing difficulty performing his work and activities of daily living. He referred appellant to

Dr. D. Gordon Newbern, an orthopedic surgeon, for an evaluation of possible bilateral total knee 

replacement. 

In a November 4, 2015 report, Dr. Newbern noted that appellant had worked for 28 plus 

years delivering mail and was currently restricted to a six-mile per day walking limit due to his 

knee conditions. He indicated that appellant’s symptoms noticeably worsened after he fell, from 

a height of about five feet, while delivering mail on April 14, 2012. Dr. Newbern noted that 

appellant had four arthroscopies of the left knee and one arthroscopy of the right knee. He reported 

that the x-rays revealed arthritic narrowing of the medial compartment of both knees, mild 

narrowing in the patellofemoral compartments with some spurring in both knees, and narrowing 

of the lateral compartment of the left knee. Dr. Newbern provided an assessment of moderate 

osteoarthritis of both knees, left more symptomatic than right, which caused appellant constant 

pain and difficulty walking. He indicated that, in 2012, appellant had grade 3 chondromalacia 

changes in the femoral trochlea of the right knee and, in March 2013, was found to have grade 3

chondromalacia in the medial femoral condyle of the left knee. Dr. Newbern opined that appellant 

was a candidate for bilateral knee replacements which he deemed were secondary to his work 

injury. 

On March 18, 2016 OWCP referred the case record and statement of accepted facts 

(SOAF) to a district medical adviser (DMA) for an opinion regarding the requested bilateral total 

knee replacements. 

 

2 The record reflects that, in OWCP File No. xxxxxx993, OWCP accepted a left knee medial meniscus tear that 

occurred on February 18, 2006. On March 3, 2006 appellant underwent OWCP authorized surgery for complex 

medial meniscal tear left knee and radial tear of the lateral meniscus of left knee. By decision dated May 9, 2008

OWCP granted appellant a schedule award for 10 percent permanent impairment of the left lower extremity. Under 

OWCP File No. xxxxxx448, OWCP denied a November 1, 2003 claim for a left knee injury. It combined these claims 

with the current claim, OWCP File No. xxxxxx848, which serves as the master file.
3

In an April 21, 2016 report, Dr. William Tontz, a Board-certified orthopedic surgeon

serving as a DMA, reviewed the medical evidence of record. He opined that, as there was evidence 

of a temporal relationship between the April 14, 2012 work injury, the requested bilateral total 

knee replacements were causally related to the April 14, 2012 work injury. Dr. Tontz further 

opined, however, that such procedure was not medically necessary as there was insufficient clinical 

information to support bilateral total knee replacements. He noted that there was no evidence of 

limited range of motion less than 90 degrees and no evidence of severe osteoarthritis. 

OWCP, by letter dated May 3, 2016, referred appellant along with a SOAF, the medical 

record, and list of questions to Dr. Thomas Rooney, a Board-certified orthopedic surgeon, for a 

second opinion evaluation. Although appellant attended the June 8, 2016 appointment with

Dr. Rooney, OWCP did not receive a medical report from Dr. Rooney and was subsequently 

advised that Dr. Rooney had passed away. 

OWCP referred appellant to another second opinion evaluation, this time with

Dr. William F. Blankenship, a Board-certified orthopedic surgeon, to determine whether the 

proposed bilateral total knee replacement surgery was medically necessary. In an October 4, 2016 

report, Dr. Blankenship noted the accepted conditions, his review of the medical records, including 

appellant’s past history for arthroscopies for meniscal tears of the left knee and his right knee 

arthroscopy. He noted appellant’s physical examination findings and provided an impression of 

bilateral knee arthritis. Dr. Blankenship opined that, although the proposed bilateral knee 

replacements were causally related to the accepted medical conditions, they were not medically 

necessary.

On January 24, 2017 OWCP declared a conflict in medical opinion between Dr. Newbern 

and Dr. Blankenship regarding whether the April 14, 2012 work incident caused the degenerative 

conditions for which bilateral total knee replacements were medically necessary. Appellant was 

referred to Dr. Charles D. Varela, a Board-certified orthopedic surgeon, for an impartial medical 

examination. 

In a February 13, 2017 report, Dr. Varela, as a referee physician, reviewed a SOAF and the 

medical record. On physical examination, he noted that appellant’s knees revealed no evidence of 

swelling and had full range of motion. Appellant was noted to have some parapatellar crepitus 

with range of motion of both knees, with no ligamentous laxity. There was minimal tenderness to 

either medical or lateral compartments of both knees and mild parapatellar tenderness bilaterally. 

Dr. Varela noted that the February 13, 2017 x-ray revealed varus deformities bilaterally and 

decreased joint space of both medial compartments, left greater than right. He indicated that 

appellant’s joint space was maintained and, with weight bearing, the joint space was decreased, 

especially on the left side. Dr. Varela provided an impression of bilateral medial compartment 

arthritis, left greater than right, with varus deformities. 

Dr. Varela opined that there was no evidence to support that the April 14, 2012 work injury 

was the cause of appellant’s proposed bilateral knee arthroplasties. He indicated that appellant’s 

condition was degenerative in nature and had been ongoing for some time. Dr. Varela noted that 

appellant had known preexisting degenerative changes in his left knee. He further indicated that 

the mechanism of injury did not correlate with the current degree of arthritis present in his right 

knee. Dr. Varela further opined that there is no evidence to support that his work-related injury 
4

on April 4, 2012 is the cause of his presumed need for bilateral arthroplasties. He also noted that 

most of appellant’s symptoms were not located over areas of his arthritis and that his pain was not 

over the typical areas of degenerative arthritis. In addition, the x-ray findings showed maintained 

joint spaces, especially on the right side. While appellant had less joint space present on the left 

side, his symptoms did not correlate with decreased joint space.

By decision dated March 8, 2017, OWCP denied authorization for bilateral knee 

replacements. Special weight was accorded to the opinion of Dr. Varela, serving as a referee 

physician.

On March 15, 2017 appellant notified OWCP that he had obtained Dr. Rooney’s second 

opinion report. On April 3, 2017 he requested a telephonic hearing before an OWCP hearing 

representative, which was held on September 18, 2017. 

OWCP received a copy of a June 8, 2016 report from Dr. Rooney, which noted the history 

and symptoms reported by appellant and presented physical examination findings. He also 

reported findings of standing x-rays of both knees performed in his office. Dr. Rooney opined 

that, while the proposed surgical procedure was within the realm of accepted medical practice, he 

could not say for sure that the surgical procedure was medically necessary for and causally related 

to appellant’s accepted conditions. He noted that appellant had preexisting degeneration in both 

knees and that the torn menisci described in Dr. Tucker’s right knee operative note of 

September 24, 2012 were degenerative type tears. 

OWCP also received a statement from appellant and medical evidence from Dr. Tucker. 

In a March 29, 2017 report, Dr. Tucker indicated that he had reviewed appellant’s operative report 

from 2012. He noted that, although there was meniscal damage and some minor changes in the 

trochlear curve articular surface, appellant did not have signs of significant degenerative change. 

Dr. Tucker indicated that the degenerative changes did not begin until after his injury and 

subsequent meniscectomy. Therefore, he believed that the requested total knee replacements were 

secondary to appellant’s work injury. Ongoing treatment notes from Dr. Tucker diagnosing 

bilateral knee arthritic pain were also provided. A copy of the 2010 operative report was 

resubmitted. 

OWCP referred Dr. Rooney’s report to Dr. Varela for review. In a June 14, 2017 

supplemental report, Dr. Varela reviewed Dr. Rooney’s report and noted that his opinion had not 

changed, and that a total knee replacement on either knee remained unwarranted. He noted that 

on physical examination, Dr. Rooney had described mild tenderness and full range of motion of 

the knee with full pulses. Thus, the indications for total knee arthroplasty (i.e., significant pain 

which significantly impacts daily activities) was not present. Dr. Varela noted that, in his 

examination, appellant’s described location of pain was not in the area of his knee arthritis. He

indicated that while Dr. Rooney had noted that appellant had multiple left knee surgeries and 

documented degenerative changes prior to his injury date, there was no evidence to suggest with 

a reasonable degree of certainty that appellant’s work injury was the cause of his degenerative 

condition and any presumed need for surgery that he may or may not have in the future. Rather, 

appellant’s knee conditions were degenerative in nature, had been going on for some time, and 

most likely had been aggravated by his normal daily activities as well as his multiple previous 
5

surgeries. Dr. Varela opined that a single injury to his right knee in April 2012 would not be the 

sole cause of his degenerative conditions in either knee.

By decision dated December 1, 2017, an OWCP hearing representative affirmed OWCP’s 

March 8, 2017 decision denying authorization for appellant’s bilateral knee replacements. The 

hearing representative found that Dr. Tucker had not provided sufficient medical reasoning to 

overcome the special weight of the evidence afforded to Dr. Varela.

LEGAL PRECEDENT

Section 8103 of FECA provides that the United States shall furnish to an employee who is 

injured while in the performance of duty, the services, appliances, and supplies prescribed or 

recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce 

the degree or the period of disability, or aid in lessening the amount of the monthly compensation.3 

While OWCP is obligated to pay for treatment of employment-related conditions, the employee 

has the burden of proof to establish that the expenditure is incurred for treatment of the effects of 

an employment-related injury or condition.4

In interpreting this section of FECA, the Board has recognized that OWCP has broad 

discretion in approving services provided under section 8103, with the only limitation on OWCP’s 

authority being that of reasonableness.5 Abuse of discretion is generally shown through proof of 

manifest error, clearly unreasonable exercise of judgment, or actions taken which are contrary to 

both logic and probable deductions from established facts. It is not enough to merely show that 

the evidence could be construed so as to produce a contrary factual conclusion.6 To be entitled to 

reimbursement of medical expenses, a claimant has the burden of proof to establish that the 

expenditures were incurred for treatment of the effects of an employment-related injury or 

condition. Proof of causal relationship in a case such as this must include supporting rationalized 

medical evidence.7 In order for a surgical procedure to be authorized, a claimant must submit 

evidence to show that the surgery is for a condition causally related to an employment injury and 

that it is medically warranted. Both of these criteria must be met in order for OWCP to authorize 

payment.8

Section 8123(a) provides that, if there is a 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.9 The implementing regulations state that, if a 

 

3 5 U.S.C. § 8103; see L.D., 59 ECAB 648 (2008).

4 Kennett O. Collins, Jr., 55 ECAB 648 (2004).

5 See D.K., 59 ECAB 141 (2007).

6 Minnie B. Lewis, 53 ECAB 606 (2002).

7 M.B., 58 ECAB 588 (2007).

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

9 R.C., Docket No. 12-0437 (issued October 23, 2012).
6

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. 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.10 In situations where 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 resolving the 

conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper 

factual background, must be given special weight.11

ANALYSIS

The Board finds that OWCP has not abused its discretion in denying authorization for 

bilateral knee replacements. 

OWCP properly found that a conflict in medical opinion evidence arose between

Dr. Newbern, appellant’s attending physician, and Dr. Blankenship,

12 an OWCP referral physician

as to whether the proposed bilateral knee replacements were medically necessary. It thereafter 

referred appellant to Dr. Varela to resolve the conflict in medical opinion.

For a surgical procedure to be authorized, the evidence must establish that the surgery is 

for a condition causally related to an employment injury and that it is medically warranted. Both 

of these criteria must be met in order for OWCP to authorize payment.13

In his February 13, 2017 report, Dr. Varela reviewed appellant’s history of injury and 

treatment, and the SOAF. He provided an impression of bilateral medial compartment arthritis, 

left greater than right, with varus deformities. Dr. Varela opined that there was no evidence to 

support that his work-related injury on April 4, 2012 is the cause of his presumed need for bilateral 

arthroplasties. However, he also found that the proposed surgery was not currently medically 

necessary. Dr. Varela explained that the bilateral total knee arthroplasties were not medically 

necessary as appellant was still very functional, had good range of motion, was of a relatively 

young age, and was only minimally symptomatic and limited from his knee pain. He also noted 

that most of appellant’s symptoms were not located over areas of his arthritis or over the typical 

areas of degenerative arthritis. In addition, the x-ray findings showed maintained joint spaces, 

especially on the right side. While appellant had less joint space present on the left side, his 

symptoms did not correlate with decreased joint space. 

In his June 14, 2017 supplemental report, Dr. Varela reviewed Dr. Rooney’s second 

opinion report. Dr. Rooney reported that he could not opine unequivocally that the surgical 

procedure was medically necessary for and causally related to appellant’s accepted conditions. He 

 

10 20 C.F.R. § 10.321.

11 F.C., Docket No. 14-0560 (issued November 12, 2015).

12 Appellant was referred to Dr. Blankenship as Dr. Rooney, the first referral physician selected, had passed away 

and OWCP had not received a report from Dr. Rooney.

13 Supra note 8.
7

noted that appellant had preexisting degeneration of both knees and that the right knee torn menisci 

described in Dr. Tucker’s September 24, 2012 operative note were degenerative-type tears. In his 

supplemental report, Dr. Varela found that there was no evidence to suggest with any reasonable 

certainty that appellant’s work injury was the cause of his current degenerative condition and the 

presumed need for any surgery. 

The Board finds that Dr. Varela accurately summarized the relevant medical evidence, 

provided detailed findings on examination, and reached conclusions about appellant’s proposed 

bilateral total knee replacement surgery which comported with his findings.14

The evidence from Dr. Tucker, an attending physician, provided subsequent to

Dr. Varela’s report is insufficient to overcome the special weight accorded to the reports of

Dr. Varela as the impartial medical examiner. In his March 29, 2017 report, Dr. Tucker, an 

attending physician, indicated that appellant’s right knee did not have signs of any significant 

degenerative change in his 2012 operative report. He opined that the degenerative changes did not 

begin until after his injury and subsequent meniscectomy. Therefore Dr. Tucker believed that the 

need for total knee replacements were secondary to appellant’s work injury. However, he did not 

provide a rationalized explanation, based upon medical findings, that the proposed bilateral knee 

replacements were in fact medically necessary.15 

The Board thus finds that OWCP did not abuse it discretion in denying the proposed 

surgical procedure. As noted above, the only restriction on OWCP’s authority to authorize medical 

treatment is one of reasonableness.16 As Dr. Varela explained that the proposed surgery was not 

medically necessary, the Board finds that OWCP acted reasonably in denying appellant’s request 

for bilateral total knee replacements.17

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 OWCP did not abuse its discretion when it denied authorization of 

appellant’s bilateral total knee replacements. 

 

14 Manuel Gill, 52 ECAB 282 (2001).

15 Supra note 9. 

16 See D.C., 58 ECAB 629 (2007).

17 B.L., Docket No. 15-1452 (issued September 20, 2016).
8

ORDER

IT IS HEREBY ORDERED THAT the December 1, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: March 5, 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