United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.M., Appellant

and

U.S. POSTAL SERVICE, CAMBRIDGECENTRAL SQUARE MAIN POST OFFICE, 

Cambridge, MA, Employer

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Docket No. 20-1524

Issued: April 20, 2021

Appearances: Case Submitted on the Record

John L. DeGeneres, Jr., Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 19, 2020 appellant, through counsel, filed a timely appeal from an August 11,

2020 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the 

 

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 Appellant, through counsel, submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). 

Pursuant to the Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. 

§ 501.5(a). In support of appellant’s oral argument request, counsel asserted that oral argument should be granted in 

order for appellant to directly respond to any questions or concerns the Board may have regarding the problematic and 

recurring issues associated with the case. The Board, in exercising its discretion, denies appellant’s request for oral 

argument finding that the arguments on appeal could adequately be addressed based on the case record. Oral argument 

in this appeal would further delay issuance of a Board decision and not serve a useful purpose. As such, the oral 

argument request is denied and this decision is based on the case record as submitted to the Board.
2

Federal Employees’ Compensation Act3and 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 appellant has met his burden of proof to establish an aggravation of a 

bilateral knee condition causally related to the accepted factors of his federal employment.

FACTUAL HISTORY

On October 3, 2013 appellant, then a 58-year-old clerk and bulk mail technician, filed an 

occupational disease claim (Form CA-2) alleging that on or before September 3, 2013 he sustained 

a permanent acceleration of bilateral knee osteoarthritis due to factors of his federal employment 

including standing, lifting, twisting, pivoting, and climbing stairs.4 In an accompanying statement, 

he recounted his work history and explained that on July 5, 1981 he sustained significant bilateral 

knee injuries in a nonoccupational motor vehicle accident when his moped was struck by a car. 

Appellant recovered from those injuries and began work at the employing establishment as a fullduty distribution clerk in September 1986. His duties involved standing and throwing parcels into 

hampers for five hours a day, requiring him to twist and pivot on his lower extremities. In 1989

appellant transferred to another facility where he worked as a window clerk, standing for eight 

hours a day, with intermittent bending, lifting, and turning. In 1990 he transferred to another 

station to work as a bulk mail technician,sorting parcels for six to eight hours a day while standing 

on a cement floor. He also performed window clerk duties. Beginning in 2005, appellant 

experienced increasing bilateral knee pain and ambulated with crutches. He was diagnosed with 

bilateral knee arthritis. Appellant underwent a total left knee arthroplasty on June 21, 2006, and a 

total right knee arthroplasty on June 23, 2008.

In a September 23, 2013 report, Dr. Byron V. Hartunian, an orthopedic surgeon 

specializing in sports medicine, reviewed official position descriptions of appellant’s duties and 

summarized medical records. On examination, he found limited flexion and extension of both 

knees, ligamentous laxity to valgus stress bilaterally, and severe tenderness to palpation of the 

right knee. Dr. Hartunian diagnosed status post total right and left knee replacement for end-stage 

degenerative arthritis, and mild medial collateral ligament laxity of both knees. He opined that 

while nonoccupational trauma from the 1981 moped accident possibly contributed to the 

progression of degenerative changes of both knees, this did not negate the contribution of strenuous 

employment activities in the development of progressive bilateral knee arthritis. Dr. Hartunian 

explained that prolonged standing and repetitive lifting and turning for 27 years accelerated 

articular surface loss, permanently reducing the joint spaces in both knees. This permanently 

hastened the preexistent degenerative disease process and such work factors were significant 

causative factors.

 

3 5 U.S.C. § 8101 et seq.

4 Prior to the present claim, under OWCP File No. xxxxxx373, appellant claimed a March 28, 1988 left knee injury 

when he caught his left foot in a plastic band and twisted his left knee. OWCP closed the claim and subsequently 

destroyed the file.
3

In a November 20, 2013 development letter, OWCP requested that appellant submit 

additional factual and medical evidence in support of his claim. In a letter of even date, it also 

requested additional evidence from the employing establishment. OWCP afforded both parties 30 

days to submit the requested information.

In response, C.O., an employing establishment manager, submitted a December 4, 2013 

statement confirming that appellant’s work duties beginning in 2007 required him to stand for 

prolonged periods, bend, lift, stoop, and twist while processing mail.

In a December 10, 2013 report, Dr. Hartunian opined that appellant’s job duties of 

prolonged standing, walking, twisting, pivoting, bending, stooping, climbing, and reaching 

accelerated the progression of degenerative osteoarthritis in both knees, resulting in bilateral knee 

replacements.

By decision dated January 30, 2014, OWCP denied appellant’s claim, finding that he had 

not submitted sufficient medical evidence to establish a medical condition causally related to the 

accepted factors of his federal employment.

On February 3, 2014 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review. Following a preliminary review, by 

decision dated May 6, 2014, the hearing representative set aside the January 30, 2014 decision and

directed OWCP to refer appellant for a second opinion examination to obtain a rationalized 

medical opinion on causal relationship.

On remand OWCP referred appellant, the case record, and a statement of accepted facts 

(SOAF) to Dr. Stanley Hom, a Board-certified orthopedic surgeon, for a second opinion 

examination and opinion regarding whether he sustained an employment-related knee condition. 

In a July 17, 2014 report, Dr. Hom reported his physical examination findings and noted that 

appellant complained of bilateral knee pain and had osteoarthritis in both knees. He diagnosed 

post-traumatic degenerative joint disease of both knees. Dr. Hom noted that while all of 

appellant’s activities would contribute to the gradual progression of post-traumatic arthritis, his 

work activities were not a “major or predominant cause of his progressive degenerative joint 

disease and/or need for treatment.”

By decision dated September 4, 2014, OWCP denied the claim, according the weight of 

the medical evidence to the second opinion examiner, Dr. Hom. Appellant, through counsel, 

requested an oral hearing before a representative of OWCP’s Branch of Hearings and Review. 

Following a preliminary, by decision dated January 13, 2015, the hearing representative 

set aside the September 4, 2014 decision and directed OWCP to obtain a supplemental report from

Dr. Hom differentiating between the natural progression of the underlying traumatic osteoarthritis 

and any effects of the accepted work activities.

On remand, OWCP obtained an April 13, 2015 report from Dr. Hom in which he opined 

that appellant’s work activities were likely factors in progression of bilateral knee osteoarthritis,

but not a predominant cause.
4

By decision dated May 29, 2015, OWCP determined that appellant had not met his burden 

of proof to establish a bilateral knee condition causally related to the accepted factors of his federal 

employment. It found that the weight of the medical evidence with respect to the matter rested 

with the opinion of Dr. Hom. 

Appellant, through counsel, requested an oral hearing before a representative of OWCP’s 

Branch of Hearings and Review. Following a preliminary review, by decision dated October 13, 

2015, the hearing representative set aside the May 29, 2015 decision and directed OWCP to refer 

appellant to a new second opinion examiner as Dr. Hom was unable to clarify his opinion on causal 

relationship.

On remand OWCP referred appellant, the case record, a SOAF, and a list of questions to

Dr. Christopher Geary, a Board-certified orthopedic surgeon, for a second opinion examination 

and opinion regarding whether he sustained an employment-related bilateral knee condition.

In a June 30, 2016 report, Dr. Geary reported his physical examination findings and 

reviewed the medical record and SOAF. He opined that appellant’s work activities did not cause, 

accelerate, aggravate, or materially alter the course of bilateral knee osteoarthritis as there was no 

record of a traumatic employment injury. Dr. Geary noted that the accepted work factors would 

have caused recurrent, temporary aggravations of underlying osteoarthritis, but would not have 

altered the course of the condition.

OWCP subsequently found a conflict between the opinions of Dr. Hartunian, for appellant, 

and Dr. Geary, for the government, regarding whether appellant sustained an employment-related 

bilateral knee condition. It referred appellant, the case record, a SOAF, and a list of questions to

Dr. Jonathan W. Sobel, a Board-certified orthopedic surgeon, for an impartial medical 

examination. 

In a January 31, 2017 report, Dr. Sobel discussed his review of the medical records and 

SOAF. On examination, he noted well-healed surgical scars on both knees, slightly restricted 

range of motion of both knees, and slight posterior medial instability of the left knee with gentle 

stress. Dr. Sobel reviewed x-rays of the lower extremities dating from 2005 onward, which 

demonstrated progressive post-traumatic osteoarthritic changes, greater on the left, with deformity 

of the bony surfaces, malalignment, and some medial compartment collapse. He opined that the 

medical evidence of record did not indicate that appellant’s job duties caused or accelerated the 

claimed conditions as compared to activities of daily living. Dr. Sobel explained that it appeared 

that there were no specific occupational injuries or repetitive trauma that would cause or accelerate 

osteoarthritis of the knees. He opined that the 2006 and 2008 total knee arthroplasties were 

necessitated solely by preexisting bilateral knee conditions and the natural progression of arthritis 

following the 1981 moped accident. Dr. Sobel concluded that appellant’s federal employment did 

not accelerate or precipitate appellant’s bilateral knee conditions.

By decision dated April 28, 2017, OWCP determined that appellant had not met his burden 

of proof to establish a bilateral knee condition causally related to the accepted factors of his federal 

employment. It found that the special weight of the medical evidence rested with the impartial 

medical opinion of Dr. Sobel.
5

On May 11, 2017 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review. During the hearing, held on 

September 27, 2017, counsel contended that the definitions of acceleration and causation provided 

to Dr. Geary and Dr. Sobel were improper. He also argued that Dr. Sobel’s opinion was 

speculative and equivocal.

Appellant submitted documents related to his claim for a March 28, 1988 left knee injury 

under OWCP File No. xxxxxx373.

In a September 25, 2017 report, Dr. Hartunian opined that prolonged standing, walking, 

bending, stooping, pivoting, climbing, and reaching while in the performance of duty constituted 

impact loading activities that exerted repeated local stresses to the lower extremities, causing 

articular cartilage loss. He outlined his disagreement with the findings of Dr. Geary and Dr. Sobel 

and contended that “the lack of a discrete traumatic work-related injury” did not preclude that 

impact loading activities contributed to the progression of appellant’s bilateral knee arthritis.

By decision dated December 8, 2017, OWCP’s hearing representative set aside the 

April 28, 2017 decision and directed OWCP to obtain a supplemental report from Dr. Sobel 

indicating whether the medical evidence pertaining to the prior claim and Dr. Hartunian’s

September 25, 2017 report would alter his opinion on causal relationship.

Dr. Sobel submitted a January 16, 2018 report noting his review of the additional records. 

He opined that the accepted work factors were not competent to accelerate or aggravate bilateral 

knee osteoarthritis as they did not “rise above the level of normal activities” of daily living. 

Dr. Sobel disagreed with Dr. Hartunian’s characterization of osteoarthritic aggravation as

permanent. In a January 24, 2018 report, he reiterated that the accepted work factors were not a 

“substantial or increased occupational risk” as they did not “rise above the level of normal 

activities” of daily living. 

By decision dated February 2, 2018, OWCP determined that appellant had not met his 

burden of proof to establish a bilateral knee condition causally related to the accepted factors of 

his federal employment. It found that the special weight of the medical evidence continued to rest 

with the impartial medical opinion of Dr. Sobel.

On February 8, 2018 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review. In a June 25, 2018 statement, he 

contended that Dr. Hartunian’s reports were sufficient to meet appellant’s burden of proof, and 

that Dr. Sobel’s opinion could not represent the special weight of the medical evidence as they 

were insufficiently rationalized. Appellant submitted additional medical evidence relative to the 

prior claim.

In chart notes from May 24, 2013 through October 1, 2014, Dr. Lynch noted bilateral knee 

osteoarthritis with well-maintained bilateral knee prostheses.

In a June 15, 2018 report, Dr. Hartunian opined that it was medically certain that 

appellant’s job duties over a 31-year period accelerated bilateral knee osteoarthritis. As appellant 

had sustained multiple traumas to his knees, impact loading activities such as standing, walking, 

twisting, and bending would accelerate and aggravate arthritis to a greater degree than in an 
6

individual with no history of trauma. Dr. Hartunian noted that the combination of work factors 

and nonoccupational trauma hastened the chemical process that deteriorated cartilage over time. 

By decision dated September 11, 2018, an OWCP hearing representative set aside OWCP’s 

February 2, 2018 decision and remanded the claim to obtain a supplemental report on causal 

relationship from Dr. Sobel, reviewing Dr. Hartunian’s June 15, 2018 report and additional 

medical records.

On February 6, 2019 OWCP referred an updated SOAF and the additional medical 

evidence to Dr. Sobel for an opinion regarding causal relationship.” In an April 20, 2019 report,

Dr. Sobel reviewed the updated SOAF and additional medical records. He opined that any effect 

of appellant’s employment duties on bilateral knee osteoarthritis “pale[d] in comparison” to the 

effects of the 1981 nonoccupational accident and that the degenerative condition was not 

“unusually or suspiciously hastened” by employment factors. Dr. Sobel concluded that appellant’s 

occupational descriptions did not appear to rise to the level of an occupational exposure and as 

such his job duties did not aggravate bilateral knee osteoarthritis “even to a minor extent,” as his 

degenerative knee conditions were due only to the 1981 accident and “personal risk factors.”

By decision dated May 10, 2019, OWCP denied the claim, finding that the medical 

evidence of record was insufficient to establish that appellant’s bilateral knee osteoarthritis was 

causally related to the accepted employment factors. It accorded Dr. Sobel’s opinion the special 

weight of the medical evidence as the impartial medical examiner.

On May 17, 2019 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review, which was held on 

September 30, 2019.

By decision dated December 13, 2019, the hearing representative affirmed the May 10, 

2019 decision, finding that Dr. Sobel’s opinion continued to represent the special weight of the 

medical evidence.

On July 28, 2020 appellant, through counsel, requested reconsideration. He contended that

Dr. Geary’s report was insufficiently rationalized to have created a conflict of opinion with

Dr. Hartunian. Counsel also argued that Dr. Geary had not opined that any temporary aggravations 

of osteoarthritis had returned to baseline, and that Dr. Sobel’s opinion was insufficiently 

rationalized to represent the special weight of the medical evidence.5

Appellant submitted March 5, 2020 personnel documents indicating that he separated from 

the employing establishment effective February 28, 2020.

By decision dated August 11, 2020, OWCP denied modification of the December 13, 2019 

decision. 

 

5 Appellant submitted March 5, 2020 personnel documents indicating that he separated from the employing 

establishment effective February 28, 2020.
7

LEGAL PRECEDENT

An employee seeking benefits under FECA 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 timely filed within the applicable 

time limitation period of FECA,6that 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.7 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.8

To establish that an injury was sustained in the performance of duty in an occupational 

disease claim, a claimant must submit the following: (1) a factual statement identifying 

employment factors alleged to have caused or contributed to the presence or occurrence of the

disease or condition; (2) medical evidence establishing the presence or existence of the disease or 

condition for which compensation is claimed; and (3) medical evidence establishing that the

diagnosed condition is causally related to the identified employment factors.9

Rationalized medical opinion evidence is required to establish causal relationship.10 A 

physician’s opinion on whether there is causal relationship between the diagnosed condition and 

the implicated employment factors must be based on a complete factual and medical background.11 

Additionally, the physician’s opinion 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 appellant’s specific employment factors.12

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, 

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

of the work-related injury or disease and the preexisting condition.13

 

6 S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 

153 (1989).

7 See G.B., Docket No. 19-1510 (issued February 12, 2020); K.V., Docket No. 18-0947 (issued March 4, 2019);

M.E., Docket No. 18-1135 (issued January 4, 2019); James E. Chadden, Sr., 40 ECAB 312 (1988).

8 K.V. and M.E., id.; Elaine Pendleton, 40 ECAB 1143 (1989).

9 R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. 

Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).

10 L.G., Docket No. 20-0433 (issued August 6, 2020); J.L., Docket No. 18-1804 (issued April 12, 2019).

11 M.V., Docket No. 18-0884 (issued December 28, 2018).

12 Id., Victor J. Woodhams, supra note 9.

13 Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013). See 

S.P., Docket No. 20-0332 (issued October 20, 2020); R.D., Docket No. 18-1551 (issued March 1, 2019).
8

Section 8123(a) of FECA provides in pertinent part: “If there is 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.”

14

 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.15

ANALYSIS

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

OWCP properly determined that there was a conflict in the medical opinion evidence 

between Dr. Hartunian, an attending physician, and Dr. Geary, an OWCP referral physician, on 

the issue of whether appellant sustained an aggravation of a bilateral knee condition causally 

related to the accepted factors of his federal employment. In order to resolve the conflict, it 

properly referred appellant, pursuant to 5 U.S.C. § 8123(a), to Dr. Sobel for an impartial medical 

examination and an opinion on causation.

In a situation where OWCP secures an opinion from an impartial medical examiner for the 

purpose of resolving a conflict in the medical evidence and the opinion from such examiner 

requires clarification of elaboration, it has the responsibility to secure a supplemental report from 

the examiner for the purpose of correcting the defect in the original opinion.16 If a given impartial 

medical specialist is unable to clarify or elaborate on his or her original report, or if his or her 

supplemental report is also vague, speculative, or lacking in rationale, OWCP must submit the case 

record and a detailed SOAF to a second impartial medical specialist for the purpose of obtaining 

his or her rationalized medical opinion on the issue.17

In reports dated January 31, 2017, and January 16 and 24, 2018, Dr. Sobel opined that the 

accepted employment factors did not aggravate or accelerate bilateral knee osteoarthritis as 

appellant’s job duties did not exceed the level of activities of daily living. In an April 20, 2019 

report, Dr. Sobel reiterated that appellant’s job duties as a distribution clerk and bulk mail 

technician did not “rise to the level of an occupational injury” as there were no documented 

traumatic or repetitive use knee injuries and no unusual or suspicious acceleration of the condition. 

The Board has held that there is no necessity to show special exposure or unusual conditions of 

employment in the factors producing disability.18 Additionally, Dr. Sobel opined that any effects 

of appellant’s federal job duties “pale[d] in comparison” to the bilateral knee trauma sustained in 

 

14 5 U.S.C. § 8123(a).

15 Id.

16 S.R., Docket No. 17-1118 (issued April 5, 2018); Nancy Lackner (Jack D. Lackner), 40 ECAB 232, 238 (1988).

17 M.D., Docket No. 19-0510 (issued August 6, 2019); Talmadge Miller, 47 ECAB 673 (1996); Harold Travis, 30 

ECAB 1071, 1078 (1979).

18 Neal C. Evins, 48 ECAB 252 (1996); Geraldine Sutton, 46 ECAB 1026 (1995). 
9

the 1981 moped accident and unspecified “personal risk factors.” However, there is no

apportionment under FECA.19 Any contribution to appellant’s condition by the accepted 

employment factors would render his condition compensable.20

For this reason, his opinion did not sufficiently address the underlying issue of the present 

case and his reports cannot be afforded the special weight of an impartial medical specialist.

Therefore, in order to resolve the conflict in medical opinion evidence, the case will be remanded 

to OWCP for referral of the case record, including an updated SOAF, and appellant to a new 

impartial medical specialist for examination and an opinion, which evaluates whether he sustained 

a bilateral knee condition causally related to the accepted factors of his federal employment.21 

After this and other such further development as deemed necessary, OWCP shall issue a de novo

decision.

CONCLUSION

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

 

19 J.B., Docket No. 17-2021 (issued August 8, 2018); G.G., Docket No. 17-0504 (issued August 8, 2017); Beth C.

Chaput, 37 ECAB 158 (1985) (it is not necessary to show a significant contribution of employment factors to a 

diagnosed condition to establish causal relationship).

20 Id.

21 G.B., Docket No. 19-1510 (issued February 12, 2020); see supra note 17.
10

ORDER

IT IS HEREBY ORDERED THAT the August 11, 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: April 20, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board