United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.H., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

U.S. CUSTOMS & BORDER PROTECTION, 

Blaine, WA, Employer

__________________________________________

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Docket No. 20-1645

Issued: August 11, 2021

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

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 17, 2020 appellant, through counsel, filed a timely appeal from an August 7,

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.

 

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 her burden of proof to establish a knee condition 

causally related to the accepted February 14, 2003 employment incident.

FACTUAL HISTORY

On February 15, 2003 appellant, then a 36-year-old customs inspector, filed a traumatic 

injury claim (Form CA-1) alleging that on February 14, 2003 he injured his left knee when he was 

running in preparation for his training while in the performance of duty. He explained that he 

noticed soreness and tightness in his knee that did not go away.3 Appellant did not stop work. 

In a February 15, 2003 medical report, Dr. Richard Miller, an internist, indicated that 

appellant suffered a right knee injury and diagnosed overuse/strain of the right knee.

In a June 5, 2019 development letter, OWCP informed appellant that the evidence of record 

was insufficient to establish his claim. It noted that, although he initially claimed that he injured 

his left knee, the medical evidence of record indicated that he sustained a right knee injury. OWCP 

advised him of the type of medical and factual evidence necessary to support his claim and 

provided a questionnaire for his completion. It specifically requested that appellant clarify why 

he alleged that he injured his left knee when he had submitted medical evidence showing that he 

injured his right knee. OWCP afforded him 30 days to respond. No additional evidence was 

received.

By decision dated July 8, 2019, OWCP denied appellant’s traumatic injury claim, finding 

that the evidence of record was insufficient to establish that the injury and/or events occurred as 

he described. It noted that he had not responded to its June 5, 2019 development questionnaire or 

provided information clarifying the alleged February 14, 2003 employment incident. OWCP 

concluded, therefore, that the requirements had not been met to establish an injury as defined by 

FECA.

On April 13, 2020 appellant, through counsel, requested reconsideration. By decision 

dated April 15, 2020, 2019, OWCP denied appellant’s request for reconsideration of the merits of 

his claim pursuant to 5 U.S.C. § 8128(a).

OWCP continued to receive evidence. 

In a February 22, 2020 narrative report, Dr. Gidon Frame, Board-certified in anti-aging and 

regenerative medicine, indicated that appellant suffered from preexisting osteoarthritis of his right 

knee and that appellant no longer worked at the employing establishment. He noted his history of 

employment beginning 1989 and indicated that he last worked for the employing establishment 

between 2002 and 2003. Dr. Frame also indicated that appellant previously underwent right knee 

 

3 The record also contains an incomplete occupational disease claim (Form CA-2) form dated March 18, 2019 in 

which appellant asserted that the physical activities at the employing establishment aggravated his preexisting arthritis 

in the right knee. In another incomplete Form CA-2a dated March 18, 2019, appellant asserted that he reinjured his 

right knee on November 7, 2017.
3

surgeries on July 20, 1989 and April 29, 1992, and sustained a separate left knee injury on March 9, 

2003, which OWCP accepted under OWCP No. xxxxxx388. He explained that appellant had a 

complicated history of knee injuries. Dr. Frame recounted the alleged February 14, 2003 

employment incident, noting that appellant was running long distance in preparation for his 

training when he noticed some pain, soreness, and tightness in his right knee. He opined that the 

demanding running with his arthritic right knee and the pounding of the knee on the concrete, 

coupled with his body weight, “highly likely” aggravated his preexisting knee repair and 

degenerative arthritis. Dr. Frame concluded that appellant’s preexisting, relatively asymptomatic 

right knee arthritis was rendered substantially symptomatic by the alleged February 14, 2003 

employment incident.

Dr. Frame also noted that appellant’s work duties included lifting heavy objects and 

weights, crunching or crawling in small restricted areas, and climbing. He opined that twisting, 

grinding, and bending of appellant’s right knee during his work activities aggravated his right knee. 

Dr. Frame concluded that strenuous work duties at the employing establishment over time 

accelerated appellant’s osteoarthritis progression. He indicated that appellant’s right knee 

worsened even after he left the employing establishment, as various positions aggravated his right 

knee arthritis. Dr. Frame explained that prior arthroscopic surgeries could increase appellant’s 

risks of developing osteoarthritis. He further explained that appellant’s preexisting right knee 

injuries, including a complex tear in its cartilage from his nonwork injury in 1989, caused, 

precipitated, and predisposed him to develop osteoarthritis much more rapidly. Dr. Frame also 

opined that his left knee problems also contributed to the right knee condition, as appellant had to 

place much of his body weight on an already damaged right knee to compensate for his left knee 

injuries. He explained that appellant’s osteoarthritis became destabilized because of the structural 

articular cartilage loss and associated physiological change of the deteriorative destruction of the 

knee joints over a course of time, especially the right knee joint. Dr. Frame concluded that the 

repetitive duties performed at the employing establishment caused, accelerated, and aggravated

his preexisting, relatively asymptomatic right knee arthritis and created a bilateral knee condition.

On May 12, 2020 appellant, through counsel, again requested reconsideration.

In an April 30, 2020 response to OWCP’s development questionnaire, appellant provided 

additional information regarding the alleged February 14, 2003 employment incident. He 

indicated that he had a preexisting right knee condition and that he previously underwent two 

surgeries on that knee before the February 14, 2003 employment incident. Appellant asserted that 

his right knee was relatively asymptomatic until the February 14, 2003 employment incident.

OWCP subsequently received a February 20, 2019 letter, wherein appellant notified the 

employing establishment that he sustained two separate work-related injuries in 2003. Appellant

alleged that he sustained a right knee injury on February 14, 2003 and a left knee injury on 

March 9, 2003, the latter of which was accepted in a separate claim.

By decision dated August 7, 2020, OWCP modified its July 8, 2019 decision, finding that 

appellant had established that the February 14, 2003 employment incident occurred, as alleged. 

The claim remained denied, however, as the medical evidence of record was insufficient to 

establish causal relationship between his diagnosed condition and the accepted employment 

incident.
4

LEGAL PRECEDENT

An employee seeking benefits under FECA4has the burden of proof to establish the 

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

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

limitation of FECA,5that an injury was sustained in the performance of duty as alleged, and that 

any disability or medical condition for which compensation is claimed is causally related to the 

employment injury.6 These are the essential elements of each and every compensation claim, 

regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7

To determine whether a federal employee has sustained a traumatic injury in the 

performance of duty, it first must be determined whether fact of injury has been established. There 

are two components involved in establishing fact of injury. The first component is that the 

employee must submit sufficient evidence to establish that he or she actually experienced the 

employment incident at the time and place, and in the manner alleged. The second component is 

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

evidence.8 

The medical evidence required to establish causal relationship between a claimed specific 

condition and an employment incident is rationalized medical opinion evidence.9 The opinion of 

the physician must be based on a complete factual and medical background of the employee, 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 specific employment factors 

identified by the employee.10

In a case in which a preexisting condition involving the same part of the body is present 

and the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation, 

 

4 Supra note 2.

5 F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D. 

Cameron, 41 ECAB 153 (1989). 

6 L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020); 

James E. Chadden, Sr., 40 ECAB 312 (1988).

7 P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016); 

Delores C. Ellyett, 41 ECAB 992 (1990).

8 T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J. 

Carlone, 41 ECAB 354 (1989).

9 S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G. 

Morris, 48 ECAB 238 (1996).

10 T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020); 

Victor J. Woodhams, 41 ECAB 345, 352 (1989).
5

the physician must provide a rationalized medical opinion that differentiates between the effects 

of the work-related injury or disease and the preexisting condition.11

ANALYSIS

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

causally related to the accepted February 14, 2003 employment incident.

In a February 22, 2020 narrative report, Dr. Frame noted appellant’s history of employment 

since 1989, described the accepted February 14, 2003 employment incident, and diagnosed severe 

degenerative arthritis in the right knee. He opined that the accepted February 14, 2003 

employment incident “highly likely” aggravated his preexisting degenerative arthritis, noting that 

appellant’s strenuous work duties accelerated his osteoarthritis progression over time. Dr. Frame 

explained that appellant’s preexisting, relatively asymptomatic right knee arthritis was rendered 

substantially symptomatic by the accepted February 14, 2003 employment incident and that his 

strenuous work duties at the employing establishment over time accelerated appellant’s 

osteoarthritis progression. He also attributed appellant’s right knee arthritis to his previously 

accepted left knee injury, explaining that he had to place much of his body weight on an already 

damaged right knee to compensate for his left knee injuries. The Board has held that medical 

opinions that suggest that a condition was “likely” caused by work activities are speculative or 

equivocal in character and have limited probative value.

12

 The Board has also held that an opinion 

that a condition is causally related to an employment injury because the employee was 

asymptomatic before the injury is insufficient, without adequate rationale, to establish causal 

relationship.13 Moreover, although Dr. Frame attempted to explain the mechanism of how the 

accepted employment incident caused appellant’s diagnosed condition, he failed to distinguish 

between the effects of the work-related injury and appellant’s preexisting right knee arthritis. The

Board has consistently held that complete medical rationalization is particularly necessary when 

there is a preexisting condition involving the same body part, and has required medical rationale 

differentiating between the effects of the work-related injury and the preexisting condition in such 

cases.14 For these reasons, Dr. Frame’s report is insufficient to establish causal relationship.

In a February 15, 2003 medical report, Dr. Miller diagnosed overuse/strain of the right 

knee. However, he did not offer an opinion as to whether appellant’s diagnosed condition was

causally related to the accepted February 14, 2003 employment incident. The Board has held that 

medical evidence that does not offer an opinion regarding the cause of an employee’s condition is 

 

11 Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013); 

C.C., Docket No. 19-1071 (issued August 26, 2020); V.W., Docket No. 19-1537 (issued May 13, 2020).

12 See D.A., Docket No. 20-0951 (issued November 6, 2020).

13 See S.D., Docket No. 20-1255 (issued February 3, 2021); F.H., Docket No. 18-1238 (issued January 18, 2019); 

J.R., Docket No. 18-0206 (issued October 15, 2018).

14 Supra note 11.
6

of no probative value on the issue of causal relationship.15 Accordingly, this report is insufficient 

to meet appellant’s burden of proof to establish his claim.

As the medical evidence of record does not contain rationalized medical evidence

establishing causal relationship between appellant’s diagnosed conditions and the accepted 

February 14, 2003 employment incident, the Board finds that appellant has not met his burden of 

proof.

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 appellant has not met his burden of proof to establish a knee condition 

causally related to the accepted February 14, 2003 employment incident.

 

15 P.C., Docket No. 20-0855 (issued November 23, 2020).
7

ORDER

IT IS HEREBY ORDERED THAT the August 7, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.16

Issued: August 11, 2021

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

16 On return of the case record OWCP should consider administratively combining the present claim with 

appellant’s other claim involving a work-related knee condition, OWCP File No. xxxxxx388.