United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.M., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Chicago, IL, Employer

__________________________________________

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Docket No. 21-0149

Issued: June 21, 2021

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 11, 2020 appellant, through counsel, filed a timely appeal from a 

September 21, 2020 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 September 21, 2020 decision, appellant submitted additional evidence to 

OWCP. However, the Board’s Rules of Procedures 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.
2

ISSUE

The issue is whether appellant has met his burden of proof to establish that the acceptance 

of his claim should be expanded to include additional left knee torn meniscus and arthritis 

conditions as a consequence of his accepted April 16, 2013 employment injury. 

FACTUAL HISTORY

This case has previously been before the Board.4 The facts and circumstances as set forth 

in the Board’s prior decision are incorporated herein by reference. The relevant facts are as 

follows.

On April 17, 2013 appellant, then a 52-year-old city carrier, filed a traumatic injury claim 

(Form CA-1) alleging that on April 16, 2013 he injured his right knee and foot when he fell on a 

collapsed porch while in the performance of duty. He stopped work on that day. OWCP accepted 

appellant’s claim for right foot contusion, right knee and foot sprain, right knee and foot edema, 

bilateral buttock contusion, and lumbosacral sprain and subsequently expanded acceptance of his 

claim to include aggravation of lumbosacral spondylosis. It paid appellant wage-loss 

compensation on the supplemental rolls beginning June 1, 2013 and placed him on the periodic 

rolls, effective May 4, 2014.5

On July 8, 2015 OWCP expanded acceptance of appellant’s claim to include acceleration 

of underlying right knee medical compartment arthritis. 

On August 28, 2017 appellant returned to full-duty work. 

Appellant continued to receive medical treatment. In a September 30, 2017 report,

Dr. Florian Miranzadeh, an osteopath Board-certified in family medicine, indicated that, while 

undergoing physical therapy treatment on May 10, 2017 for a work-related right knee injury, 

appellant noticed left knee pain. He provided left knee examination findings and noted that a left 

knee magnetic resonance imaging (MRI) scan demonstrated a tear of the posterior horn of the 

medial meniscus with adjacent small para meniscal cyst. Dr. Miranzadeh opined that appellant 

sustained a consequential left knee injury as a result of his work-related right knee injury. He 

explained that appellant had to walk for a significant amount of time with a cane due to his accepted 

right knee injuries, which caused unbalanced pressure on his left knee. 

In an October 13, 2017 report, Dr. Todd Fellars, a Board-certified orthopedic surgeon

serving as an OWCP district medical adviser (DMA), reviewed appellant’s history of injury and 

noted his disagreement with Dr. Miranzadeh’s opinion that appellant sustained a consequential left 

knee injury as it was inconsistent with current medical thought.

On January 10, 2018 OWCP determined that a conflict in the medical opinion evidence 

existed between Dr. Miranzadeh and the DMA, regarding whether appellant sustained a left knee 

 

4 Docket No. 19-0397 (issued August 7, 2019).

5 Appellant underwent several OWCP-approved surgeries, including lumbar surgery on February 15, 2014, right 

knee arthroscopic partial medial and partial lateral surgery on May 17, 2014, and total right knee arthroplasty on 

March 1, 2016.
3

torn meniscus and arthritis as a consequence of his April 16, 2013 employment injury. It referred

appellant for an impartial medical examination in order to resolve the conflict of medical opinion. 

In a February 5, 2018 report, Dr. Hythem P. Shadid, a Board-certified orthopedic surgeon serving 

as an impartial medical examiner (IME), noted his review of the statement of accepted facts 

(SOAF) and appellant’s medical records. He listed appellant’s accepted conditions and recounted 

appellant’s current complaints of left medial knee pain with strenuous activity and pivoting. In 

response to OWCP’s questions, Dr. Shadid opined that there was no scientific evidence to support 

the conclusion that appellant’s current degenerative left knee condition, including the degenerative 

medial meniscus tear, was consequential to the accepted April 16, 2013 employment injury. 

In a decision dated March 9, 2018, OWCP denied expansion of the acceptance of 

appellant’s claim to include a consequential left knee injury. It found that the special weight of 

the medical evidence rested with the February 5, 2018 report of Dr. Shadid, the IME, who opined 

that the medical evidence of record was insufficient to establish that the additional left knee 

conditions were causally related to his April 16, 2013 employment injury.

On March 16, 2018 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. By decision dated October 2, 2018, 

OWCP’s hearing representative affirmed the March 9, 2018 decision.

Appellant, through counsel, filed an appeal before the Board. 

In an August 7, 2019 decision, the Board set aside the October 2, 2018 decision. It found 

that an unresolved conflict in medical opinion evidence existed between Dr. Shadid, OWCP’s

referral physician, and Dr. Miranzadeh, appellant’s treating physician, regarding whether appellant 

sustained a consequential left knee condition due to his accepted April 16, 2013 right knee injury 

and remanded the case for referral to an IME pursuant to 5 U.S.C. § 8123(a).6

Appellant submitted additional medical evidence following the October 2, 2018 OWCP 

decision. In reports dated November 19, 2018 through June 26, 2019, Dr. Jeffrey S. Meisles, a 

Board-certified orthopedic surgeon, recounted appellant’s complaints of right knee and hip pain. 

He provided physical examination findings and assessed bilateral hip arthritis and right hip 

trochanteric bursitis. 

In a July 31, 2019 letter, counsel requested that the acceptance of appellant’s claim be 

expanded to include bilateral hip osteoarthritis and right hip trochanteric bursitis. 

In a work status note dated December 4, 2019, Dr. Miranzadeh indicated that appellant was 

fully incapacitated from work from December 7, 2019 through January 9, 2020. 

On January 15, 2020 OWCP referred appellant, along with a SOAF and the medical record, 

to Dr. James R. Bresch, a Board-certified orthopedic surgeon, for an impartial medical 

examination in order to resolve the conflict of medical opinion evidence, regarding whether 

 

6 The Board determined that the October 13, 2017 DMA’s report lacked sufficient medical rationale to create a 

conflict in medical opinion evidence with Dr. Miranzadeh. 
4

appellant sustained a left knee torn meniscus and arthritis as a consequence of his accepted 

April 16, 2013 employment injury.

In a February 10, 2020 report, Dr. Bresch noted that appellant sustained right knee and foot 

and low back injuries after an April 2013 fall. He recounted that on May 10, 2017 appellant was 

participating in physical therapy for his right knee when he experienced a new onset of left knee 

pain. Dr. Bresch indicated that subsequent diagnostic testing revealed a degenerative tear of the 

left knee medial meniscus and medial compartmental osteoarthritis. Upon physical examination 

of appellant’s left knee, he observed positive medial joint line tenderness and positive Apley and 

McMurray signs, consistent with a medial meniscus tear. Dr. Bresch assessed degenerative tear 

of the medial meniscus and mild medial compartment osteoarthritis of the left knee. He opined 

that, although appellant had a prolonged history of right knee difficulties following his accepted 

April 2013 claim, he “[did] not feel that these [two] events are causally related.” Dr. Bresch

explained that, within the “orthopedic literature,” there were no documented studies that suggested 

that in the rehabilitation process following a total knee arthroplasty there was any increased 

incidence of a meniscal tear on the contralateral extremity without a specific additional traumatic 

episode or event. Regarding whether appellant’s left knee condition resulted from overuse, he

reported that statistical studies showed that, because appellant was never in a protected weight 

bearing status on the right side, there had not been significant excessive compressive loads on the 

right. Dr. Bresch concluded that appellant’s left knee medial meniscus degenerative tear and 

arthritis were not causally related to the April 2013 “accident.” 

By decision dated April 6, 2020, OWCP denied expansion of the acceptance of appellant’s 

claim to include a consequential left knee injury, finding that the medical evidence of record was 

insufficient to establish that the additional conditions were causally related to his April 16, 2013 

employment injury. 

On April 10, 2020 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review, which was held on July 14, 2020. 

Counsel argued that the IME, Dr. Bresch, merely echoed the opinion of the second opinion 

examiner and erroneously relied on medical literature, rather than objective medical evidence. 

Appellant subsequently submitted a narrative report dated September 9, 2020 by

Dr. Miranzadeh who recounted appellant’s complaints of continued difficulty with his right knee 

despite surgery and physical therapy. Dr. Miranzadeh reported right knee examination findings of 

mild swelling, tenderness to palpation, and decreased range of motion. He diagnosed right knee 

sprain, status post right knee total arthroplasty, right foot plantar fasciitis secondary to the right 

knee sprain, and lumbosacral spondylolysis. Dr. Miranzadeh authorized appellant to continue to 

work with specific restrictions and recommended physical therapy and a home exercise program. 

By decision dated September 21, 2020, OWCP’s hearing representative affirmed the 

April 6, 2020 decision. She found that the special weight of the medical evidence rested with

Dr. Bresch, the IME, who opined, in a February 10, 2020 report, that appellant’s left knee medial 

meniscus tear was not causally related or consequential to his accepted April 16, 2013 employment 

injury.
5

LEGAL PRECEDENT

Where 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.7

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.8 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.9 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.10

The medical evidence required to establish causal relationship between a specific 

condition, as well as any attendant disability claimed, and the employment injury, is rationalized 

medical opinion evidence.11 A physician’s opinion on whether there is a causal relationship 

between the diagnosed condition and the implicated employment factor(s) must be based on a 

complete factual and medical background.12 Additionally, the opinion of the physician must be 

expressed in terms of a reasonable degree of medical certainty, and must be supported by medical 

rationale, explaining the nature of the relationship between the diagnosed condition and the 

specific employment factor(s) identified by the claimant.13

Section 8123(a) of FECA provides that if there is a disagreement between the physician 

making the examination for the United States and the physician of an employee, the Secretary shall 

appoint a third physician (known as a referee physician or IME who shall make an examination.14 

This is called an impartial medical examination and OWCP will select a physician who is qualified 

 

7 R.J., Docket No. 17-1365 (issued May 8, 2019); W.L., Docket No. 17-1965 (issued September 12, 2018); V.B., 

Docket No. 12-0599 (issued October 2, 2012); Jaja K. Asaramo, 55 ECAB 200, 204 (2004).

8 C.W., Docket No. 18-1536 (issued June 24, 2019); C.R., Docket No. 18-1285 (issued February 12, 2019); 

Albert F. Ranieri, 55 ECAB 598 (2004); Clement Jay After Buffalo, 45 ECAB 707 (1994).

9 R.M., Docket No. 18-1621 (issued August 23, 2019); Debra L. Dilworth, 57 ECAB 516 (2006).

10 K.C., Docket No. 19-1251 (issued January 24, 2020); R.V., Docket No. 18-0552 (issued November 5, 2018); L.S., 

Docket No. 08-1270 (issued July 2, 2009).

11 T.C., Docket No. 19-1043 (issued November 8, 2019); M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB 

465 (2004).

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

13 M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 

ECAB 345 (1989).

14 5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued 

May 4, 2009).
6

in the appropriate specialty and who has no prior connection with the case.15 When a case is 

referred to an IME 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.16

ANALYSIS

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

In the prior appeal, the Board remanded the case to OWCP to obtain a report from an IME 

who was to determine whether appellant sustained left knee medial meniscus tear and arthritis 

conditions as a consequence of his accepted April 16, 2013 employment injury. OWCP 

subsequently referred appellant to Dr. Bresch for an impartial medical examination in order to 

resolve the conflict in the medical evidence.

As noted, when a case is referred to an IME 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.17 In this case, the Board finds that the report of

Dr. Bresch, serving as the IME, lacked sufficient medical rationale to carry the special weight of 

the medical evidence.18 In his February 10, 2020 report, Dr. Bresch diagnosed left knee 

degenerative tear of the medial meniscus and mild medial compartment osteoarthritis and noted 

appellant’s history of right knee difficulties. He reported that he did not “feel that these [two]

events are causally related.” The Board finds that Dr. Bresch’s opinion is equivocal and 

speculative as he did not definitely opine on whether appellant sustained consequential left knee 

conditions.19 The Board has held that medical opinions which are equivocal or speculative are of 

diminished probative value.20 

The Board notes that, in support of his opinion, Dr. Bresch merely referenced “orthopedic 

literature” and “documented studies” and provided a general conclusion regarding causal 

relationship. The Board finds, therefore, that he did not provide sufficient medical rationale to 

support his conclusion.21 The Board has found that when an IME fails to provide medical 

 

15 20 C.F.R. § 10.321.

16 K.D., Docket No. 19-0281 (issued June 30, 2020); J.W., Docket No. 19-1271 (issued February 14, 2020); 

Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

17 Id. 

18 See V.K., Docket No. 19-0422 (issued June 10, 2020).

19 R.T., Docket No. 20-0081 (issued June 24, 2020); C.T., Docket No. 19-0508 (issued September 5, 2019); F.D., 

Docket No. 18-1596 (issued June 18, 2019).

20 T.M., Docket No. 19-1414 (issued February 12, 2020); S.R., Docket No. 16-0657 (issued July 13, 2016); Minnie 

Cook, Docket No. 99-1848 (issued December 20, 2000).

21 A medical report is of limited probative value on the issue of causal relationship if it contains a conclusion 

regarding causal relationship which is unsupported by medical rationale. J.W., Docket No. 18-0678 (issued March 3, 

2020); see V.T., Docket No. 18-0881 (issued November 19, 2018); T.M., Docket No. 08-975 (issued February 6, 

2009); S.E., Docket No. 08-2214 (issued May 6, 2009).
7

reasoning to support his or her conclusory statements about a claimant’s condition, it is insufficient 

to resolve a conflict in the medical evidence.22 Accordingly, the Board finds that Dr. Bresch’s 

opinion lacks the specificity and detail needed to carry the special weight of the medical evidence.

The Board has also held that, when OWCP obtains an opinion from an IME for the purpose 

of resolving a conflict in the medical evidence and the IME’s opinion requires clarification or 

elaboration, it must secure a supplemental report to correct the defect in the original report.23 

Accordingly, the case will be remanded to OWCP for a fully-rationalized opinion from Dr. Bresch, 

based upon an accurate history, regarding whether appellant sustained an additional left knee 

condition as a consequence of his accepted April 16, 2013 employment injury. If Dr. Bresch is 

unable to clarify his opinion or if his requested supplemental report is also lacking rationale, 

OWCP shall refer appellant to a new IME for the purpose of obtaining a rationalized medical 

opinion on the issue.24 Following this and any other such further development as may be deemed 

necessary, OWCP shall issue a de novo decision.

CONCLUSION

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

 

22 A.G., Docket No. 19-0220 (issued August 1, 2019); P.F., Docket No. 13-0728 (issued September 9, 2014); 

James T. Johnson, 39 ECAB 1252 (1988).

23 S.P., Docket No. 20-0418 (issued February 19, 2021); Raymond A. Fondots, 53 ECAB 637, 641 (2002); Nancy 

Lackner (Jack D. Lackner), 40 ECAB 232 (1988); see also Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Developing and Evaluating Medical Evidence, Chapter 2.810.11.c (September 2010).

24 T.C., Docket No. 20-1170 (issued January 29, 2021); M.D., Docket No. 19-0510 (issued August 6, 2019); Harold 

Travis, 30 ECAB 1071 (1979).
8

ORDER

IT IS HEREBY ORDERED THAT the September 21, 2020 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: June 21, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board