United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

W.M., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Youngstown, OH, Employer

__________________________________________

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Docket No. 18-1431

Issued: March 22, 2019

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

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 17, 2018 appellant, through counsel, filed a timely appeal from a May 18, 2018

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.

 

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

ISSUE

The issue is whether appellant has met his burden of proof to establish a right knee injury 

causally related to the accepted September 23, 2016 employment incident. 

FACTUAL HISTORY

On July 6, 2017 appellant, then a 54-year-old clerk, filed a traumatic injury claim (Form 

CA-1) alleging that, on September 23, 2016, he sustained a right knee injury when his knee popped 

and twisted while in the performance of duty. He first notified his supervisor and sought medical 

treatment on September 23, 2016. In an accompanying narrative statement, appellant related that 

he continued to work, but his right knee worsened over time. He reported that he was in severe 

pain and was currently seeking medical attention as his right knee condition had worsened.

In a statement dated September 23, 2016, appellant explained that he was putting mail 

away that day when he turned, took a step, and felt his right knee pop and twist sideways. He 

described a burning sensation in his right knee and pain each time he stepped or put weight on it.

An employing establishment accident/incident supervisor worksheet dated September 23, 

2016 noted a history of injury. Appellant’s supervisor reported that she was advised on the date

of the incident.

In a September 23, 2016 medical report, Dr. Renee Rubinstein, Board-certified in family 

medicine, reported that appellant sustained an injury that morning when he turned and stepped and 

felt his right knee pop with pain and burning at the medial patella. She diagnosed right knee pain 

and treated appellant with a lidocaine injection.

In a July 18, 2017 medical report, Dr. James A. Shaer, a Board-certified orthopedic 

surgeon, reported that appellant presented for evaluation of right knee pain. Appellant reported 

that last September he was putting mail away and pivoted on his right knee, causing a pop with

immediate pain and swelling. Since that time he reported intermittent pain, swelling, trouble 

weight bearing, and occasional giving away episodes. Appellant reported that he had never fallen,

but had a sense that his knee wanted to give out and continued to experience popping. A July 7, 

2017 x-ray of the right knee was reviewed which revealed no obvious osseous abnormality. Based 

on the duration of his problems and his initial complaint back in September, Dr. Shaer suspected 

a medial meniscal tear. He diagnosed suspect medial meniscal tear and early right knee 

osteoarthritis. Dr. Shaer further noted that the early osteoarthritis was incidental and not a workrelated injury as it was a natural progression of aging. He provided work restrictions and 

recommended a magnetic resonance imaging (MRI) scan of the right knee. Dr. Shaer also 

submitted a duty status report (Form CA-17) and attending physician’s report (Form CA-20) which 

noted his findings and work restrictions. 

By development letter dated July 21, 2017, OWCP informed appellant that the evidence of 

record was insufficient to establish his traumatic injury claim. It advised him of the factual and 

medical evidence needed and afforded him 30 days to respond.
3

In a July 27, 2017 diagnostic report, Dr. Dennis M. Wilcox, a Board-certified diagnostic 

radiologist, reported that appellant’s right knee MRI scan revealed arthrosis of the medial 

femorotibial compartment with mild subchondral bone edema. He reported that the study 

demonstrated no meniscal or ligamentous injury.

In a July 28, 2017 medical report, Dr. Shaer noted review of the July 27, 2017 right knee 

MRI scan which revealed bone marrow edema and arthritic changes predominantly in the medial 

compartment. He further reported some cystic changes underneath the anterior cruciate ligament 

and no evidence of cruciate, collateral, or meniscal damage. Dr. Shaer diagnosed osteoarthritis of

the right knee. He indicated that he could not attribute appellant’s symptoms, complaints, and 

physical examination to his work-related injury which occurred approximately 10 months prior. 

Dr. Shaer concluded that there appeared to be no injury related to appellant’s work incident, 

explaining that his condition appeared to be a normal progression of arthritis.

By decision dated September 27, 2017, OWCP denied appellant’s claim, finding that the 

medical evidence of record did not provide a firm medical diagnosis which could be reasonably 

attributed to the accepted September 23, 2016 employment incident. It concluded, therefore, that 

he had not established that he sustained an injury as defined by FECA.

On October 2, 2017 appellant, through counsel, requested a telephonic hearing before an 

OWCP hearing representative.

A hearing was held on March 8, 2018. Appellant testified that on September 23, 2016 he 

was putting mail away and turned to take a step when his right knee popped. He immediately 

notified his supervisor who had him complete an accident report. The following morning he sought 

medical treatment with Dr. Rubinstein who administered an injection in his knee and released him 

to return to work. Appellant testified that on July 6, 2017 his knee popped again while working. 

He explained that he was placing a tray of mail into a cage when his knee popped. Appellant 

reported that he worked for the employing establishment for over 21 years and had no problems

with his right knee prior to September 23, 2016. OWCP’s hearing representative advised appellant

to file a Form CA-1 for his July 6, 2017 right knee injury. The record was held open for 30 days. 

No further evidence was received.

By decision dated May 18, 2018, OWCP’s hearing representative affirmed the 

September 27, 2017 decision, finding that the medical evidence of record did not provide a firm 

medical diagnosis which could be reasonably attributed to the accepted September 23, 2016 

employment incident.3

 

3 On April 10, 2018 appellant filed a Form CA-1 alleging that he sustained a right knee traumatic injury on July 6, 

2017 when his knee popped while working. OWCP assigned that claim OWCP File No. xxxxxx139. OWCP File 

Nos. xxxxxx372 and xxxxxx139 have been administratively combined, with File No. xxxxxx139 serving as the master 

file.
4

LEGAL PRECEDENT

An employee seeking benefits under FECA4 has the burden of proof to establish the 

essential elements of his or her claim, including the fact that the individual is an employee of the 

United States within the meaning of FECA, that the claim was filed within the applicable time 

limitation, that an injury was sustained while in the performance of duty as alleged, and that any 

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

employment injury.5 These are the essential elements of each and every compensation claim 

regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6

In order to determine whether an employee actually sustained an injury in the performance 

of duty, OWCP begins with an analysis of whether fact of injury has been established. Generally, 

fact of injury consists of two components which must be considered in conjunction with one 

another. The first component to be established is that the employee actually experienced the 

employment incident which is alleged to have occurred.7 The second component is whether the 

employment incident caused a personal injury and generally can be established only by medical 

evidence.

Causal relationship is a medical issue, and the medical evidence required to establish causal 

relationship is rationalized medical evidence.8 The opinion of the physician must be based on a 

complete factual and medical background of the claimant, 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 the specific employment incident identified by the claimant.9 

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish a right knee 

injury causally related to the accepted September 23, 2016 employment incident. 

On the date of the employment incident, appellant sought medical treatment with

Dr. Rubinstein who diagnosed right knee pain. While Dr. Rubinstein’s report documents 

immediate treatment for his injury, he failed to provide a firm medical diagnosis as she only 

diagnosed right knee pain. The Board has consistently held that pain is a symptom, not a 

 

4 Supra note 2.

5 Gary J. Watling, 52 ECAB 278 (2001).

6 Michael E. Smith, 50 ECAB 313 (1999).

7 Elaine Pendleton, 40 ECAB 1143 (1989).

8 R.A., Docket No. 18-1097 (issued January 18, 2019). 

9

Id.; see also Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).
5

compensable medical diagnosis.10 As such, her report lacks probative value and is insufficient to 

meet appellant’s burden of proof.11

Appellant also submitted medical reports dated July 18 through 28, 2017 from Dr. Shaer, 

his treating physician. While Dr. Shaer initially suspected a right knee medial meniscus tear, a 

July 27, 2017 MRI scan of the right knee demonstrated no meniscal or ligamentous injury to 

provide support for a September 26, 2013 traumatic injury.

12

 He diagnosed unilateral primary 

osteoarthritis of the right knee which he opined was not related to appellant’s work injury. The 

Board finds that the reports of Dr. Shaer are insufficient to establish appellant’s claim as the 

physician opined that his right knee osteoarthritis was not caused by the September 23, 2016 

employment incident.13 Rather, Dr. Shaer explained that appellant’s injury appeared to be a 

normal progression of arthritis in the knee. He further explained that he could not attribute 

appellant’s symptoms, complaints, and physical examination to his work-related injury which 

occurred approximately 10 months prior. Given that Dr. Shaer’s reports do not support a workrelated traumatic injury on September 26, 2013, they are insufficient to meet appellant’s burden of 

proof.14

Dr. Wilcox’s July 27, 2017 report simply interpreted imaging studies. Diagnostic studies 

lack probative value as they do not address whether the employment incident caused any of the 

diagnosed conditions.15 

As the record lacks rationalized medical evidence establishing that appellant’s right knee 

condition was causally related to the accepted September 23, 2016 employment incident, the Board 

finds that appellant has not met his burden of proof.16

Appellant may submit additional evidence, together with a written request for 

reconsideration, to OWCP within one year of the Board’s 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 met his burden of proof to establish a right knee 

injury causally related to the accepted September 23, 2016 employment incident. 

 

10 C.F., Docket No. 08-1102 (issued October 10, 2008).

11 See Michael R. Shaffer, 55 ECAB 339 (2004).

12 J.P., Docket No. 14-0087 (issued March 14, 2014).

13 S.R., Docket No. 12-1098 (issued September 19, 2012).

14 G.M., Docket No. 15-1288 (issued September 18, 2015).

15 E.R., Docket No. 18-0391 (issued August 24, 2018); see also D.H., Docket No. 11-1739 (issued April 18, 2012).

16 T.O., Docket No. 18-0139 (issued May 24, 2018).
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ORDER

IT IS HEREBY ORDERED THAT the May 18, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: March 22, 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