United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.W., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

FEDERAL AIR MARSHAL SERVICE, 

Orlando, FL, Employer

__________________________________________

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Docket No. 21-0017

Issued: December 28, 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

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On October 7, 2020 appellant, through counsel, filed a timely appeal from a September 10, 

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 10, 2020 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 appellant has met his burden of proof to establish a medical condition 

consequential to the accepted June 25, 2012 employment injury.

FACTUAL HISTORY

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

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

On June 25, 2012 appellant, then a 47-year-old federal air marshal, filed a traumatic injury 

claim (Form CA-1) alleging that he sustained a left knee injury that day when kneeling down to 

shoot at a firing range while in the performance of duty. On the reverse side of the claim form, 

appellant’s supervisor acknowledged that appellant was injured in the performance of duty and 

noted that he did not stop work. OWCP accepted the claim for left knee contusion. It later 

expanded the acceptance of appellant’s claim to include aggravation of left knee medial 

compartment degenerative arthritis and small bowel obstruction. OWCP authorized left knee

primary total knee arthroplasty, which he underwent on March 27, 2013. It paid appellant wageloss compensation on the supplemental rolls commencing March 10, 2013 and on the periodic rolls 

commencing April 7, 2013.

In a report dated July 11, 2017, Dr. Jeffrey T. O’Brien, a Board-certified orthopedic 

surgeon serving as an OWCP second opinion physician, noted that appellant complained of back 

and right knee pain. A review of a magnetic resonance imaging (MRI) scan demonstrated low 

back degenerative disc disease. Based on physical examination findings and diagnostic testing,

Dr. O’Brien diagnosed right knee osteoarthritis and degenerative disc disease of the lumbar spine. 

However, he opined that both of these conditions were not related to the accepted June 25, 2012 

employment injury. Dr. O’Brien advised that appellant required further treatment for his back and 

right knee conditions, specifically that a replacement was likely necessary, but reiterated that these 

conditions were not causally related to his accepted employment injury.

Appellant subsequently submitted reports dated October 9 and November 20, 2017 from

Dr. Mark A. Seldes, a Board-certified family practitioner, who diagnosed lumbar spine 

degenerative disc disease, bilateral lower extremity radiculopathy, status postoperative left total 

knee replacement, right knee internal derangement, right knee degenerative arthritis, and right knee 

joint degenerative medial meniscus. Dr. Seldes opined that appellant’s right knee condition was a 

consequence of the accepted left knee condition.

Dr. Seldes, in a December 11, 2017 report, diagnosed right knee joint anterior cruciate 

ligament (ACL) partial proximal tear, right knee joint effusion, and right knee medial tibiofemoral 

joint chondromalacia. He reported that appellant had a preexisting right knee injury from a 1994 

motor vehicle accident. Dr. Seldes indicated that appellant had recovered well from that accident 

as no treatment, surgery, or physical therapy had been required. He opined that after the June 25, 

2012 employment injury, appellant relied on his right knee for significant support for about a year 

and his right knee bore the brunt of the weight due to ongoing left knee joint pain. Dr. Seldes 

concluded that given appellant’s preexisting injury from a 1994 motor vehicle accident, which had 

appeared to have healed, appellant suffered an aggravation of his preexisting right knee injury. In 

4 Docket No. 18-1536 (issued June24, 2019). 
3

addition, he opined that there appeared to be a medial meniscus and posterior horn injury as well 

as a newer proximal ACL partial tear injury. Dr. Seldes also concluded that appellant’s right knee 

osteoarthritis was a consequence of his accepted left knee conditions. 

By decision dated December 28, 2017, OWCP denied appellant’s claim for a consequential 

injury, finding that the medical evidence of record was insufficient to establish causal relationship

between appellant’s additional diagnosed medical conditions and the accepted June 24, 2012 

employment injury. It found that Dr. O’Brien’s July 11, 2017 second opinion report represented 

the weight of the medical opinion evidence.

On January 2, 2018 appellant, through counsel, requested a telephonic hearing before a

representative of OWCP’s Branch of Hearings and Review, which was held on May 30, 2018.

By decision dated July 12, 2018, the hearing representative affirmed the December 28, 

2017 decision.

In a report dated July 25, 2018, Dr. Seldes reiterated his examination findings and 

diagnoses from prior reports. He opined that appellant’s left knee, right knee, and low back 

conditions had worsened. Moreover, as a result of chronic use of his cane, appellant developed a 

consequential right carpal tunnel syndrome due to compression of his wrist while using the cane 

to ambulate. Regarding the diagnosis of lumbar radiculopathy, Dr. Seldes explained that appellant 

injured his lumbar spine attempting to perform physical therapy following his 2013 total left knee 

replacement surgery. He reviewed and disagreed with Dr. O’Brien’s July 21, 2017 report. In 

support of his disagreement, Dr. Seldes explained that prior to the accepted July 25, 2012 

employment injury appellant was able to perform his job and only developed right knee problems 

following the employment injury. While appellant had a preexisting right knee condition from a 

1994 motor vehicle accident, it had completely healed within six months. Dr. Seldes opined that 

appellant’s right knee condition had been aggravated by the June 25, 2012 left knee injury, 

subsequent delay in treatment, and treatment for the left knee injury. Based on these facts, he

concluded that appellant developed consequential right knee joint traumatic advanced 

osteoarthritis. Dr. Seldes noted in comparing of right knee resonance imagining (MRI) scan taken 

in 2014 and 2017 show worsening degenerative joint disease.

Appellant, through counsel, appealed to the Board on August 8, 2018. By decision dated 

June 24, 2019, the Board found a conflict of medical opinion between Dr. Seldes, appellant’s 

treating physician, and Dr. O’Brien, the second opinion physician, regarding whether appellant’s 

diagnosed degenerative disc disease and osteoarthritis of his right knee were consequential to the 

accepted June 25, 2012 employment injury.5 The Board set aside the July 12, 2018 decision and 

remanded the case to OWCP.

During the pendency of appellant’s appeal with the Board, OWCP continued to receive 

medical reports from Dr. Seldes, which reiterated the findings noted in his prior reports. 

On October 9, 2019 OWCP referred appellant, along with the medical record, and SOAF, 

to Dr. Robert B. McShane, a Board-certified orthopedic surgeon, to resolve the conflict in the 

medical opinion evidence regarding whether appellant’s diagnosed degenerative disc disease and 

5

Id.
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osteoarthritis of his right knee were consequential to the accepted June 25, 2012 employment 

injury.

In an October 28, 2019 report, Dr. McShane described the history of appellant’s June 25, 

2012 employment injury, noted his review of the medical record and SOAF, and related appellant’s 

bilateral knee and low back complaints. Upon physical examination, he found that appellant was 

morbidly obese, and noted that he ambulated with use of a cane in his right hand and a brace on 

his left leg. Dr. McShane reported a moderately antalgic gait and some difficulty walking. Range 

of motion for the back revealed 60 degrees forward flexion, 20 degrees extension, 30 degrees sideto-side bending, and no obvious spasm. An examination of the left leg revealed 2 to 110 degrees 

range of motion with the brace loosened, no anterior or posterior instability, and no obvious left 

leg muscle atrophy. Dr. McShane reported 0 to 110 degrees right leg range of motion, no obvious 

instability, mild varus deformity, and stable collaterals and cruciates. He noted that x-rays of the 

knees and back revealed cemented total left knee arthroplasty in good position with no evidence 

of wear or loosening, right knee end-stage medial and patellofemoral degenerative changes with 

varus deformity, and mild-to-moderate lumbar degenerative changes. Dr. McShane opined that 

appellant’s right knee and back conditions were unrelated to the accepted June 25, 2012 

employment injury. He indicated that appellant’s right knee condition was due to multiple factors 

such as appellant’s morbid obesity, and his preexisting right knee condition. Dr. McShane also 

related that he could not find records substantiating appellant’s complaint that he injured his back 

during physical therapy after his total right knee arthroplasty in 2013. He disagreed with

Dr. Seldes as to whether appellant placed more weight on the right leg during convalescence as it 

had been his experience that patients placed 100 percent of their weight on each leg while 

ambulating. Dr. McShane attributed appellant’s right knee problems to his significant preexisting 

osteoarthritis, as shown on x-ray, and morbid obesity and unrelated to the accepted June 25, 2012 

employment injury. He also found no evidence supporting a back condition due to the accepted 

June 25, 2012 employment injury. Dr. McShane noted his agreement with Dr. O’Brien regarding 

whether the right knee and low back conditions had been caused or aggravated by the accepted 

June 25, 2012 employment injury.

By decision dated November 15, 2019, OWCP denied expansion of the acceptance of 

appellant’s claim to include consequential conditions of lumbar spine degenerative disc disease 

and right knee osteoarthritis. 

Reports dated November 21, December 23, 2019, January 30, February 25, March 23, 

2020 from Dr. Seldes were unchanged from his prior reports. 

On November 25, 2019 appellant, through counsel, requested a telephonic hearing before 

a representative of OWCP’s Branch of Hearings and Review, which was held on March 11, 2020.

By decision dated April 16, 2020, OWCP’s hearing representative affirmed the 

November 15, 2019 decision.

In reports dated April 30, 2020, Dr. Seldes noted his review of the medical record and 

provided examination findings. Diagnoses were unchanged from prior reports. Dr. Seldes noted 

his agreement with Dr. McShane regarding the diagnosis of right knee preexisting osteoarthritis, 

but disagreed that the accepted employment injury had not caused or aggravated this condition. 

Thus, he opined that OWCP should accept the condition of aggravation of preexisting right knee 

osteoarthritis. Next, Dr. Seldes noted that prior to physical therapy notes for the June 25, 2012 
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employment injury appellant did not note diagnoses of lumbar radiculopathy or herniated disc. He 

also opined that Dr. McShane’s opinion should not be accorded more weight than his opinion, as

he was appellant’s treating physician.

Dr. Seldes, in reports dated May 22, June 23, July 23, and August 19, 2020, detailed 

examination findings and again opined that appellant sustained consequential right knee and low 

back conditions. 

On July 30, 2020 appellant, through counsel requested reconsideration of the April 16, 

2020 decision.

By decision dated September 10, 2020, OWCP denied modification.

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.6

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.7 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.8 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.9

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.10 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.11 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 

6 T.B., Docket No. 20-0182 (issued April23, 2021); W.L., Docket No. 17-1965 (issued September 12, 2018); V.B., 

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

7 T.B., id.; T.C., Docket No. 19-1043 (issued November 8, 2019); M.W., 57 ECAB 710 (2006); JohnD. Jackson, 

55 ECAB 465 (2004).

8 T.B., id.; E.M., Docket No. 18-1599 (issued March 7, 2019); RobertG. Morris, 48 ECAB 238 (1996).

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

41 ECAB 345 (1989).

10 T.B., id.; C.W., Docket No. 18-1536 (issued June24, 2019); C.R., Docket No. 18-1285 (issued February 12, 

2019); AlbertF. Ranieri, 55 ECAB 598 (2004); Clement Jay After Buffalo, 45 ECAB 707 (1994).

11 R.M., Docket No. 18-1621 (issued August 23, 2019); Debra L. Dilworth, 57 ECAB 516 (2006).
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nonemployment related, is deemed, because of the chain of causation, to arise out of and in the 

course of employment and is compensable.12

Section 8123(a) of FECA provides that, 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. 13 The implementing regulation 

states that, if a conflict exists between the medical opinion of the employee’s physician and the 

medical opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall 

appoint a third physician to make an examination. This is called a referee examination and OWCP 

will select a physician who is qualified in the appropriate specialty and who has no prior connection 

with the case.14 In situations where there exist opposing medical reports of virtually equal weight 

and rationale and the 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 and medical 

background, must be given special weight.15

ANALYSIS

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

condition consequential to the accepted June 25, 2012 employment injury.

OWCP determined that a conflict in the medical opinion evidence was created between

Dr. Seldes, appellant’s treating physician, who opined that appellant’s diagnosed right knee and 

lumbar conditions should be accepted as consequential injuries from the June 25, 2012 

employment injury, and Dr. O’Brien, OWCP’s second opinion physician, who concluded that 

there was no medical evidence to support any causal relationship between the June 25, 2012 

employment injury and any right knee or lumbar conditions. OWCP properly referred appellant 

to Dr. McShane for an impartial medical examination in order to resolve the conflict in medical 

evidence, pursuant to 5 U.S.C. § 8123(a).

In an October 28, 2019 report, Dr. McShane, noted his review of the SOAF and the medical 

record. Upon examination, he noted that appellant was morbidly obese, ambulated using a cane 

and observed moderately antalgic gait, some difficulty walking, no right leg obvious instability, 

mild right knee varus deformity, stable right collaterals and cruciate. Dr. McShane noted that xrays of the knees and back revealed cemented total left knee arthroplasty in good position with no 

evidence of wear or loosening, right knee end-stage medial and patellofemoral degenerative 

changes with varus deformity, and mild-to-moderate lumbar degenerative changes. He opined that 

the right knee and back conditions were unrelated to the accepted June 25, 2012 employment 

injury. Dr. McShane related that appellant’s conditions were due to other multiple factors 

including appellant’s morbid obesity, and a preexisting right knee condition. He also noted that 

12 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).

13 5 U.S.C. § 8123(a).

14 20 C.F.R. § 10.321.

15 C.E., Docket No. 19-1923 (issued March 30, 2021); L.L., Docket No. 19-0214 (issued May 23, 2019); D.M., 

Docket No. 18-0746 (issued November 26, 2018); R.C., 58 ECAB 238 (2006); David W. Pickett, 54 ECAB 

272 (2002).
7

appellant’s physical therapy notes did not substantiate his complaints of a consequential lumbar 

condition. 

Dr. McShane accurately described the employment injury and noted his review of the 

medical record, including the SOAF. He performed a thorough, clinical examination and provided 

findings on examination. The Board, therefore, finds that Dr. McShane’s opinion is entitled to the 

special weight accorded an impartial medical examiner with regard to the issue of whether the 

acceptance of appellant’s claim should be expanded to include consequentialright knee and lumbar 

conditions.

16

 

The Board finds the reports from Dr. Seldes submitted following Dr. McShane’s report, 

are insufficient to overcome the special weight accorded to Dr. McShane because reports from a 

physician who was on one side of a medical conflict resolved by an IME are insufficient to 

overcome the special weight accorded the report of the IME or create a new conflict. 17 

As the medical evidence of record is insufficient to establish that appellant sustained 

consequential right knee and lumbar conditions causally related to the accepted June 25, 2012 

employment injury, 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 medical 

condition consequential to the accepted June 25, 2012 employment injury.

16 See W.C., Docket No. 19-1740 (issued June 4, 2020); M.M., Docket No. 16-1655 (issued April4, 2018);

D.G., Docket No. 17-0608 (issued March 19, 2018).

17 R.M., Docket No. 20-1268 (issued February 24, 2021); D.M., Docket No. 17-1992 (issued September 12, 2018); 

S.F., Docket No. 17-1427 (issued May16, 2018).
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ORDER

IT IS HEREBY ORDERED THAT the September 10, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: December 28, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board