United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

N.C., Appellant

and

DEPARTMENT OF AGRICULTURE, 

AGRICULTURAL RESEARCH SERVICE, 

GEORGE WASHINGTON CARVER CENTER, 

Beltsville, MD, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

)

Docket No. 20-1385

Issued: August 12, 2022

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

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On July 15, 2020 appellant, through counsel, filed a timely appeal from a June 12, 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 The Board notes that following the June 12, 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

Federal Employees’ Compensation Act3(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

has jurisdiction over the merits of this case.

ISSUES

The issues are: (1) whether appellant has met her burden of proof to establish that 

acceptance of her claim should be expanded to include the additional condition of left knee 

osteoarthritis as causally related to her accepted May 25, 2017 employment injury; and (2) whether 

appellant has met her burden of proof to establish disability from work commencing December 9, 

2018 causally related to her May 25, 2017 accepted employment injury.

FACTUAL HISTORY

On June 29, 2017 appellant, then a 45-year-old customer service advocate, file a traumatic 

injury claim (Form CA-1) alleging that on May 25, 2017 she developed pain in the lower back, 

buttocks, neck, hips, and knees when she slipped on a wet pavement at the loading dock area while 

in the performance of duty. She completed a second Form CA-1 on July 6, 2017 and reported that 

she slipped on a wet floor at the loading dock area while in the performance of duty sustaining low 

back pain and a knee contusion. Appellant stopped work on May 25, 2017 and returned to work 

on May 29, 2017.

On May 25, 2017 appellant underwent x-rays of the lumbosacral spine and right knee. Her 

knee x-rays revealed mild degenerative joint disease with osteophyte formation of the medial and 

lateral compartments.

Dr. Vanessa Allen, a Board-certified family practitioner, examined appellant on June 15, 

2017 due to acute low back pain after a fall and referred her for physical therapy. She also

completed an attending physician’s report (Form CA-20) on July 3, 2017 and diagnosed lumbar 

strain as a result of the May 25, 2017 slip and fall.

On October 27 2017 OWCP accepted the claim for strain of muscle, fascia, and tendon of 

the lower back. In a separate decision of even date, it found that appellant was not entitled to 

continuation of pay (COP) as the injury was not reported on a form approved by OWCP within 30 

days following the injury. On November 27, 2017 appellant requested an oral hearing from a 

hearing representative of OWCP’s Branch of Hearings and Review.

Dr. Teresa Camden, Board-certified in family practice and sports medicine, examined 

appellant on November 15, 2017 due to back pain. She described appellant’s May 25, 2017 work 

injury of slipping and falling onto both knees resulting in a burning sensation in both knees and 

her neck as well as low back pain. Appellant indicated that she was diagnosed with bilateral knee 

contusions. She asserted that back pain was her dominant symptom, but that she had an occasional 

tingle in the anterior area of her left knee. Dr. Camden diagnosed sacroiliitis. She later examined 

appellant on January 3, 2018 and diagnosed strain of the muscle, fascia, and tendon of the lower 

back as well as sacroiliitis.

3

5 U.S.C. § 8101 et seq.
3

On January 10 and 26, 2018 Dr. William Fleming, an orthopedic surgeon, examined 

appellant due to back pain and knee conditions. He described her employment injury and 

diagnosed low back pain and lumbar radiculopathy. Dr. Fleming requested additional

electrodiagnostic studies.

In a February 7, 2018 letter, appellant requested to expand the acceptance of her claim to 

include injuries to her buttocks, both legs, and knees.

In a March 13, 2018 development letter, OWCP noted that appellant had requested 

expansion of her claim and requested that she provide additional medical evidence, which clearly 

explained the causal relationship between her currently diagnosed conditions and her accepted 

work injury. It afforded her 30 days to respond.

Dr. Fleming examined appellant on February 22, 2018 and diagnosed lumbar sprain and 

arthritis of the spine. He recommended additional physical therapy.

In a report dated April 6, 2018, Dr. Allen diagnosed lumbar disc disease with 

radiculopathy. She opined that this condition was related to appellant’s previous diagnosis.

Appellant testified before an OWCP hearing representative on May 16, 2018 regarding the 

denial of COP.

In a memorandum of telephone call (Form CA-110) dated June 4, 2018, OWCP noted that 

appellant reported issues with her knees and requested that acceptance of her claim be expanded 

to include additional conditions.

On July 24, 2018 Dr. Marc Caligtan, a Board-certified physiatrist, examined appellant due 

to lumbar pain that she had experienced since May 2017. He diagnosed lumbar spondylosis and 

chronic pain syndrome.

By decision dated July 30, 2018, OWCP’s hearing representative set aside the October 27, 

2017 COP decision, noting that appellant was released to return to work on May 27, 2017. She 

remanded the claim for OWCP to review the medical evidence to determine if appellant was totally 

disabled due to her accepted condition.

On November 23, 2018 OWCP expanded acceptance of appellant’s claim to include sprain 

of ligaments of the lumbar spine, aggravation of intervertebral disc disorders with radiculopathy, 

lumbar region, bilateral knee contusions, and sacroiliitis.

In a Form CA-110 dated December 13, 2018, appellant informed OWCP that she had 

underwent knee replacement surgery.

Dr. Allen completed a work capacity evaluation (Form OWCP-5c) on October 16, 2018 

and advised that appellant was unable to sit for more than two hours without exacerbation of her 

back pain. She completed an attending physician’s report (Form CA-20) of even date and 

diagnosed lumbar disc prolapse with radiculopathy. Dr. Allen completed an additional Form CA20 on December 6, 2018 and diagnosed severe osteoarthritis of the left knee. She checked a box 

marked “Yes” to indicate that she believed that appellant’s condition was due to her employment 
4

and further added that appellant had no prior history, that she was previously able to ambulate 

without restraints or assistance, but that subsequent to her employment injury appellant had limited 

mobility and severe pain.

On February 4, 2019 appellant filed claims for wage-loss compensation (Form CA-7) for 

the period December 9, 2018 through March 1, 2019.

In a February 6, 2019 development letter, OWCP requested appellant to submit additional 

medical evidence to establish employment-related disability from December 9, 2018 through 

March 1, 2019. It afforded her 30 days for a response.

On February 28, 2019 Dr. Allen reported that appellant had a chronic history of left knee 

osteoarthritis, which was managed medically until the May 25, 2017 injury. She noted that, after 

May 25, 2017, her knee osteoarthritis had been exacerbated and she underwent a left total knee 

replacement on December 11, 2018.

In a February 25, 2019 note, Dr. David W. Miller, Sr., a Board-certified orthopedic 

surgeon, reported treating appellant for her left knee since November 2018. He opined that the 

work-related injury she suffered on May 25, 2017 when she slipped on a wet concrete floor, created 

the need for left total knee replacement.

By decision dated April 15, 2019, OWCP denied appellant’s claim for wage-loss 

compensation for the period December 9, 2018 and continuing. It found that she had not submitted 

the necessary medical opinion evidence to establish that her diagnosed left knee condition and 

resulting disability was causally related to her accepted May 25, 2017 employment injury. On 

April 23, 2019 appellant, through counsel, requested an oral hearing before a hearing 

representative of OWCP’s Branch of Hearings and Review.

In a June 27, 2019 report, Dr. Robert W. Macht, a general surgeon, noted appellant’s 

history of injury and asserted that she injured her back, knees, right hip, and buttocks. He 

diagnosed traumatic injury to back with left L5-S1 radiculopathy and contusion of both knees with 

aggravation of underlying arthritis. Dr. Macht found that she had 64 percent permanent 

impairment of the left lower extremity and 9 percent permanent impairment of the right lower 

extremity.

Appellant testified before an OWCP hearing representative on July 26, 2019. She noted 

that she had returned to full duty in November 2018 and stopped work on November 13, 2018 

using accrued leave and requested leave-without-pay compensation beginning December 9, 2018. 

Appellant testified that, prior to the May 25, 2017 employment injury, she was receiving knee 

shots, but that the work fall caused further deterioration of her knee.

Dr. Miller examined appellant on November 13, 2018 due to bilateral knee pain, left worse 

than right. He reported that she had a known history of degenerative joint disease of both knees 

and had been treating her pain conservatively with several rounds of injections for two years.

Dr. Miller noted that appellant last received knee injections in June 2018. Appellant experienced 

a severe flare up of pain in the left knee on November 10, 2018 and was unable to bear weight. 

He reviewed her November 13, 2018bilateral knee x-rays and found medial joint space narrowing, 

left worse than right with osteophytes both medially and laterally. Dr. Miller diagnosed primary 
5

osteoarthritis of both knees and effusion of both knee joints. He recommended a left total knee 

arthroplasty.

On December 11, 2018 Dr. Miller performed a left total knee arthroplasty. In a July 11, 

2019 note, he reported examining appellant due to chronic pain of the left knee and total left knee 

replacement.

On August 26, 2019 appellant filed a schedule award claim (Form CA-7).

By decision dated October 1, 2019, OWCP’s hearing representative remanded the case for 

referral to a second opinion physician with a statement of accepted facts (SOAF) and a series of 

questions including a determination of whether appellant’s disability from December 9, 2018 and 

continuing and her total left knee replacement were causally related to the accepted May 25, 2017 

employment injury.

On October 9, 2019 OWCP referred appellant, a SOAF, and a list of questions to

Dr. Norman Marcus, a Board-certified orthopedic surgeon, for a second opinion examination. In 

his October 28, 2019 report, Dr. Marcus reviewed the SOAF and noted the accepted employment 

incident and accepted conditions including contusion of the knees. He reviewed appellant’s 

medical records and noted that the overall pattern of lower back complaints changed its focus into 

bilateral knee symptoms, left greater than right, secondary to degenerative joint disease. 

Dr. Marcus opined that appellant’s degenerative joint disease had no relationship to the accepted 

employment injuries including knee contusions. He performed a physical examination and 

diagnosed bilateral knee osteoarthritis and systemic lupus erythematosus unrelated to the accepted 

May 25, 2017 work injury. Dr. Marcus also found that appellant’s disability for work from 

December 9, 2018 and continuing was not work related. He noted that the development of 

degenerative joint disease was multifactorial, but unrelated to a single contusive injury to the 

knees. Dr. Marcus reported that, when degenerative joint disease was symmetric and bilateral, it 

tended to progress and require surgical treatment. He opined that there was no rationale that 

appellant’s knee condition was medically connected to the accepted employment injury by 

aggravation or acceleration. Dr. Marcus determined that her left total knee replacement was not 

related to the work injury of May 25, 2017. He noted that degenerative joint disease required years 

and decades to develop and that especially when it was symmetric as in this case, it was 

multifactorial and genetic in origin. Dr. Marcus opined that there was no logical explanation 

whatsoever to connect appellant’s bilateral knee degenerative joint disease to a slip and fall injury 

or an industrial claim of any sort. He found that she had no residuals of the accepted employment 

injuries.

By decision dated December 2, 2019, OWCP denied appellant’s claim for disability for the 

period December 9, 2018 and continuing based on Dr. Marcus’ report. In a separate decision of 

even date, it denied her claim for a schedule award. On December 10, 2019 appellant, through 

counsel, requested an oral hearing before a representative of OWCP’s Branch of Hearings and 

Review.

In a report dated December 11, 2019, Dr. Macht listed appellant’s accepted conditions and 

found that she had significant arthritis and loss of range of motion of both knees. He opined that 

the knee arthritis was aggravated by the accepted employment injury. Dr. Macht explained that 
6

her underlying arthritis was made worse by inactivity, which occurred after the acute contusion 

injury of May 25, 2017. He found that this worsening of the underlying arthritis led to appellant’s 

total knee replacement.

By decision dated March 2, 2020, OWCP’s hearing representative vacated and set aside 

OWCP’s December 2, 2019 schedule award decision and remanded this aspect of appellant’s 

claim for further development as OWCP had not referred Dr. Macht’s, norDr. Marcus’ permanent 

impairment reports to a district medical adviser (DMA) for review.

On April 7, 2020 appellant testified before an OWCP hearing representative. She asserted 

that, prior to her May 25, 2017 employment injury,she had mild arthritis in her knees. Appellant 

further asserted that her fall was on both knees resulting in accepted bilateral knee contusions. She 

noted that she was diagnosed with lupus in September or October 2019. Appellant contended that 

her preexisting osteoarthritis was affected by the work injury of May 25, 2017, which resulted in 

the need for surgery and disability for work. She returned to regular work in April 2019.

By decision dated June 12, 2020, OWCP’s hearing representative found Dr. Marcus 

negated causal relationship between appellant’s diagnosed bilateral degenerative joint disease and 

the accepted employment injury. OWCP’s hearing representative concluded that she was not 

entitled to wage-loss compensation beginning December 9, 2018 and continuing.

LEGAL PRECEDENT -- ISSUE 1

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

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

condition or period of disability and an employment injury is rationalized medical opinion 

evidence.7 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 

4

Id.

5 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).

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

DeloresC. Ellyett, 41 ECAB 992 (1990).

7

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April24, 2019); RobertG. 

Morris, 48 ECAB 238 (1996).
7

the specific employment factors identified by the employee.8 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.9

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 impartial medical specialist) who shall 

make an examination.10 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.11 

When 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.12

ANALYSIS -- ISSUE 1

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

The Board finds that a conflict in medical opinion exists between Dr. Macht, appellant’s 

attending physician, and Dr. Marcus, an OWCP referral physician, regarding whether her 

diagnosed preexisting left knee degenerative joint disease was aggravated or accelerated by her 

accepted May 25, 2017 employment injury.

Dr. Macht provided a December 11, 2019 report in which he opined that appellant’s knee 

arthritis was aggravated by the accepted employment injury. He explained that the underlying 

arthritis was made worse by inactivity, which occurred after the acute contusion injury of 

May 25, 2017. Dr. Macht found that this worsening of the underlying arthritis led to appellant’s 

total left knee replacement.

In contrast, Dr. Marcus, a second opinion physician, opined in his October 28, 2019 report, 

that appellant’s degenerative joint disease had no relationship to the accepted employment injuries 

including knee contusions. He explained that the development of degenerative joint disease was 

multifactorial, but unrelated to a single contusive injury to the knees and opined that there was no 

8 T.L., Docket No. 18-0778 (issued January 22, 2020); W.L., Docket No. 17-1965 (issued September 12, 2018); 

Victor J. Woodhams, 41 ECAB 345(2005).

9

S.M., Docket No. 20-0241 (issued August 25, 2020); see D.M., Docket No. 18-0757 (issued November 14, 2018); 

JaJa K. Asaramo, 55 ECAB 200, 204 (2004).

10 5 U.S.C. § 8123(a); K.C., Docket No. 19-0137 (issued May 29, 2020); M.W., Docket No. 19-1347 (issued 

December 5, 2019);C.T., Docket No. 19-0508 (issued September 5 2019); R.S., DocketNo. 10-1704 (issued May13, 

2011); S.T.,Docket No. 08-1675 (issued May 4, 2009).

11 20 C.F.R. § 10.321.

12 K.C., supra note 10; M.W., supra note 10; C.T., supra note 10; Darlene R. Kennedy, 57 ECAB 414 (2006);

Gloria J. Godfrey, 52 ECAB 486 (2001).
8

rationale that her knee condition was medically connected to the accepted employment injury by 

aggravation or acceleration. Dr. Marcus opined that degenerative joint disease required decades 

to develop and that especially when it was symmetric as in this case, it was multifactorial and 

genetic in origin. The Board finds that there is an unresolved conflict of medical opinion between

Drs. Macht and Marcus,13 regarding whether appellant’s preexisting degenerative joint disease of 

the left knee was aggravated or accelerated due to her accepted May 25, 2017 employment injury.

OWCP’s regulations provide 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. 14 The Board will,

thus, remand the case to OWCP for referral to an impartial medical examiner regarding whether 

appellant’s preexisting degenerative joint disease of the left knee was aggravated or accelerated 

due to her accepted May 25, 2017 employment injuries.15 Following this and any 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.16

13 D.M., Docket No. 20-0981 (issued November 9, 2020).

14 5 U.S.C. § 8123(a); K.C., supra note 10; M.W., supra note 10.

15 Id.

16 In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.
9

ORDER

IT IS HEREBY ORDERED THAT the June 12, 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: August 12, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board