United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.S., Appellant

and

U.S. POSTAL SERVICE, NAMPA CARRIER 

ANNEX POST OFFICE, Nampa, ID, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 19-0745

Issued: October 10, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 11, 2019 appellant, through counsel, filed a timely appeal from a January 24, 

2019 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 of 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 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. 

3 The Board notes that following the January24, 2019 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 

additional evidence for the first time on appeal. Id. 
2

ISSUE

The issue is whether OWCP abused its discretion by denying appellant’s request for

authorization of a total left knee arthroplasty (replacement surgery).

FACTUAL HISTORY

On March 7, 2018 appellant, then a 54-year-old rural carrier, filed a traumatic injury claim 

(Form CA-1) alleging that on March 6, 2018 she tripped on a plastic strap and fell forward onto a 

concrete floor sustaining a left knee contusion and right hip flexor sprain while in the performance 

of duty. She stopped work on March 7, 2018 and returned to light-duty work on March 12, 2018. 

Appellant was treated by Daryn Barnes, a physician assistant, who provided reports 

previously of record as well as March 6 and 9, 2018 reports restricting appellant to light duty. 4 

Mr. Barnes renewed work restrictions in reports through June 1, 2018.

Appellant also provided a May 16, 2018 prescription for a left knee brace from Dr. Justin 

Danowski, an osteopathic physician.

In a report dated July 11, 2018, Dr. Andrew R. Curran, an osteopathic physician Boardcertified in orthopedic surgery and sports medicine, noted a history of injury and treatment. He 

diagnosed osteoarthritis of the left knee and a left anterior cruciate ligament (ACL) tear.

Dr. Curran recommended a total left knee arthroplasty. He restricted appellant to limited-duty 

pending surgery.

In an August 17, 2018 report, Dr. Curran noted that appellant underwent a left knee 

arthroscopy in 2005, but had been doing well prior to the March 6, 2018 employment injury. 

Conservative treatment following the March 6, 2018 employment injury, including a left knee 

brace, physical therapy, and medication, failed to improve stability or relieve her pain symptoms. 

On examination of the left knee, Dr. Curran observed varus alignment, pseudolaxity with valgus 

stress testing, medial joint line tenderness, and a positive Lachman test. He opined that the severity 

of appellant’s left knee arthritis contraindicated a repeat arthroscopy and ACL reconstruction. 

Dr. Curran recommended a total left knee arthroplasty to improve stability in the knee and allow 

her to resume full-duty work.

On September 25, 2018 OWCP accepted that appellant sustained a left ACL tear in the 

performance of duty on March 6, 2018.5

OWCP referred the medical record and a statement of accepted facts (SOAF) to Dr. Kevin 

Kuhn, a Board-certified orthopedic surgeon serving as an OWCP district medical adviser (DMA), 

 

4 March 6, 2018 left knee x-rays demonstrated severe medial and moderate lateral and patellofemoral joint space 

loss with associated degenerative spurring and a moderate suprapatellar joint effusion. An April30, 2018 magnetic 

resonance imaging (MRI) scan of the left knee demonstrated severe tricompartmental osteoarthritis, most severe in 

the medial compartment, with multifocal areas of full-thickness cartilage loss, and a chronic complete anterior cruciate 

ligament (ACL) tear. Appellant participated in physical therapytreatments in April2018.

5 OWCP initially denied the claim by decision dated June 27, 2018 as the medical evidence of record did not 

establish causal relationship. Pursuant to appellant’sJuly 26, 2018 request for reconsideration, it vacated the June27, 

2018 decision on September 25, 2018 and accepted a left ACL tear.
3

to determine whether the proposed total left knee arthroplasty was medically necessary to treat 

appellant’s accepted injury.

In a report dated October 4, 2018, Dr. Kuhn noted that he had reviewed the record, 

including the SOAF and medical reports. He noted Dr. Curran’s findings of varus alignment, 

pseudolaxity, and medial joint line tenderness. Dr. Kuhn also noted that OWCP had accepted 

appellant’s claim for a left knee ACL sprain. He commented appellant’s physicians had not yet 

attempted a trial of corticosteroid injections as would be recommended prior to electing a total

arthroplasty. Dr. Kuhn opined that the requested arthroplasty was not medically necessary as 

imaging studies did not document severe osteoarthritis of two or more compartments, and that 

corticosteroid injections had not yet been attempted.

In a development letter dated October 16, 2018, OWCP requested that appellant provide 

all treatment records related to her 2005 left knee arthroscopy and any subsequent treatment. It 

afforded 30 days to submit this information.

In response appellant submitted an October 23, 2018 note from a medical records clerk, 

noting that records from her 2006 left knee surgery had been destroyed as they were more than 10 

years old.

In an October 25, 2018 report, Dr. Curran noted administering a cortisone injection to the 

left knee. He opined that, while a partial left knee arthroplasty would address unicompartmental 

osteoarthritis, the lack of an ACL contraindicated the procedure and necessitated a total left knee 

arthroplasty. Dr. Curran noted work restrictions in chart notes through December 4, 2018.

By decision dated January 24, 2019, OWCP denied appellant’s request for authorization of 

a total left knee arthroplasty. It found that Dr. Curran had not submitted sufficient medical 

rationale explaining how the accepted March 6, 2018 employment injury aggravated the 

underlying accepted condition such that the proposed left knee arthroplasty was medically 

necessary.

LEGAL PRECEDENT

Section 8103(a) of FECA6 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 by 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. 7 

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

determining whether a particular type of treatment is likely to cure or give relief.8 The only 

limitation on OWCP’s authority is that of reasonableness.9

 

6

Supra note 2. 

7

5 U.S.C. § 8103; see Thomas W. Stevens, 50 ECAB 288 (1999). 

8 R.C., Docket No. 18-0612 (issued October 19, 2018); W.T., Docket No. 08-0812 (issued April3, 2009). 

9 D.C., Docket No. 18-0080 (issued May 22, 2018); Mira R. Adams, 48 ECAB 504 (1997). 
4

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.10

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 employme ntrelated injury or condition.11

 Proof of causal relationship in a case such as this must include 

supporting rationalized medical evidence.12 In order for a surgical procedure to be authorized, a 

claimant must submit evidence to show that the procedure was for a condition related to the 

employment injury and that the surgery was medically warranted.13 Both of these criteria must be 

met in order for OWCP to authorize payment.14

ANALYSIS

The Board finds that OWCP has not abused its discretion by denying appellant’s request 

for authorization of a total left knee arthroplasty.

Dr. Curran opined in his August 17, 2018 report that appellant’s severe osteoarthritis of the 

medial compartment and ACL tear necessitated a total left knee arthroplasty.

In an October 4, 2018 report, Dr. Kuhn, a DMA for OWCP, reviewed appellant’s history 

and reported that the most recent clinical examination of the left knee showed varus alignment, 

pseudolaxity, and medial joint line tenderness. He opined that as Dr. Curran had not yet 

administered corticosteroid injections, and appellant had severe osteoarthritis in only one 

compartment, that the requested total left knee arthroplasty was not medically necessary.

Dr. Curran asserted in an October 25, 2018 report that appellant’s lack of an ACL 

contraindicated a partial left knee arthroplasty, necessitating a total left knee arthroplasty. He 

administered a corticosteroid injection.

The Board finds that Dr. Kuhn provided a well-reasoned opinion explaining that appellant

did not meet the criteria for the proposed total left knee arthroplasty as her osteoarthritis had not 

progressed to two or more compartments, and corticosteroid injections had not yet been attempted. 

While Dr. Curran did administer one corticosteroid injection on October 25, 2018, he did not 

provide a subsequent opinion with clinical observations as to its effectiveness. Dr. Kuhn’s opinion 

 

10 E.L., Docket No. 17-1445 (issued December 18, 2018); L.W., 59 ECAB 471 (2008); P.P., 58 ECAB 673 (2007); 

Daniel J. Perea, 42 ECAB 214 (1990). 

11 M.M., Docket No. 19-0491 (issued August 14, 2019); J.T., Docket No. 18-0503 (issued October 16, 2018);

Debra S. King, 44 ECAB 203, 209 (1992).

12 M.M., id.; C.L., Docket No. 17-0230 (issued April24, 2018); M.B., 58 ECAB 588 (2007); Bertha L. Arnold, 38 

ECAB 282 (1986). 

13 J.R., Docket No. 18-0603 (issued November 13, 2018); Zane H. Cassell, 32 ECAB 1537, 1540-41 (1981);

John E. Benton, 15ECAB 48, 49 (1963). 

14 M.M., supra note 11; J.L., Docket No. 18-0990 (issued March 5, 2019); R.C., 58 ECAB 238 (2006); Cathy B. 

Millin, 51 ECAB 331, 333 (2000). 
5

was based on a complete factual background, SOAF, and a review of the medical record. As such, 

his opinion represents the weight of the medical evidence.15

The only limitation on OWCP’s authority in approving or disapproving services under 

FECA is one of reasonableness.16 In the instant case, OWCP obtained a well-rationalized report 

from Dr. Kuhn in which he opined that the requested surgery was not medically warranted to treat 

appellant’s accepted March 6, 2018 employment injury. It, therefore, had sufficient evidence upon 

which it made its decision to deny surgery and did not abuse its discretion.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 by denying appellant’s request for 

authorization of a total left knee arthroplasty.

ORDER

IT IS HEREBY ORDERED THAT the January 24, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: October 10, 2019

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

15 M.M., supra note 11; see N.M., Docket No. 18-1584 (issued March 15, 2019).

16 Supra note 9.

17 M.M., supra note 11.