United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.C., Appellant

and

U.S. POSTAL SERVICE, RADIO CITY 

STATION POST OFFICE, New York, NY, 

Employer

__________________________________________

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Docket No. 19-1948

Issued: January 8, 2021

Appearances: Case Submitted on the Record

Thomas S. Harkins, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

CHRISTOPHER J. GODFREY, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 23, 2019 appellant, through counsel, filed a timely appeal from June 3 and 

September 5, 2019 merit decisions 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 5, 2019 decision, OWCP received additional evidence. However, 

the Boards 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

ISSUES

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

acceptance of her claim should be expanded to include additional conditions as causally related to 

her accepted October 30, 2017 employment injury; (2) whether she has met her burden of proof to 

establish total disability for the period beginning July 7, 2018 causally related to her accepted 

October 30, 2017 employment injury; (3) whether OWCP abused its discretion by denying 

authorization for left knee surgery; and (4) whether OWCP has met its burden of proof to terminate 

appellant’s wage-loss compensation and medical benefits, effective September 6, 2019, as she no 

longer had residuals or disability causally related to the accepted October 30, 2017 employment 

injury.

FACTUAL HISTORY

On November 1, 2017 appellant, then a 55-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on October 30, 2017 she was struck by a vehicle and fractured 

her left foot while in the performance of duty. OWCP initially denied appellant’s claim, but on 

March 27, 2018 accepted the claim for closed fracture of first and third metatarsal bones of the left 

foot. It paid her wage-loss compensation on the supplemental rolls for the period from 

December 15, 2017 to July 6, 2018.

Appellant was treated by Dr. Howard I. Baum, a Board-certified orthopedist, on March 6, 

2018 in follow up for a left foot fracture that occurred on October 30, 2017, when she was struck 

by a motor vehicle at work. In reports dated April 3 and May 1, 2018, Dr. Baum noted initially

treating appellant on November 7, 2017, for a left foot fracture, neck, low back, shoulder, and 

bilateral knee pain after a pedestrian motor vehicle accident on October 30, 2017. He noted that a 

December 1, 2017 magnetic resonance imaging (MRI) scan of the lumbar spine revealed: 

herniated discs at L3-4, L4, L4-5; a broad-based annular tear; and a bulging disc at L5-S1. 

Similarly, Dr. Baum discussed a cervical spine MRI scan, completed on even date, which revealed

a bulging disc at C3-4; herniations at C3-4, C4-5; and central disc herniations at C5-6. MRI scans 

of the both knees dated November 30, 2017, revealed a partial anterior cruciate ligament (ACL) 

tear in the right knee and hemi-bundle ACL tear in the left knee. Dr. Baum diagnosed cervical, 

lumbar, and bilateral knee derangement. He noted that the mechanism of injury was a pedestrian 

motor vehicle accident that caused flexion, extension, rotational, and torsional loads over a short 

time, which was a precipitating cause of the herniated discs and ACL tears. Dr. Baum opined that 

appellant was a candidate for knee arthroscopy. In an undated attending physician’s report (Form 

CA-20), he diagnosed first and third metatarsal fracture of the left foot and responded “Yes” with 

regard to whether he believed the condition was caused or aggravated by an employment activity. 

Dr. Baum noted that appellant was partially disabled from October 30, 2017 to June 5, 2018.

OWCP advised appellant in a May 29, 2018 letter that the evidence submitted was 

insufficient to establish that she sustained additional conditions causally related to the October 30, 

2017 employment injury. It requested that she submit additional medical evidence to establish 

that any additional diagnosed conditions she was claiming were causally related to the accepted 

employment injury.

In a June 5, 2018 Form CA-20, Dr. Baum diagnosed left foot, cervical spine, lumbar spine,

and bilateral knee injuries and checked the box marked “Yes” indicating that the conditions were
3

caused or aggravated by an employment activity. He noted total disability for the period 

October 30, 2017 to July 31, 2018. On June 7, 2018 Dr. Baum requested authorization to perform 

left knee arthroscopy.

On June 12, 2018 OWCP notified appellant that her request for authorization of the left 

knee arthroscopic surgery was not approved. It indicated that the evidence was insufficient to 

authorize the proposed surgery because the requested treatment did not appear to be medically 

necessary for and causally related to her accepted conditions of closed fracture of first and third 

metatarsal bones of the left foot.

By decision dated July 2, 2018, OWCP denied expansion of the acceptance of appellant’s 

claim to include the additional conditions of cervical and lumbar derangement; bilateral knee, 

shoulder, and foot derangement; cervical herniated disc; cervical radiculopathy; lumbar herniated 

disc; bilateral shoulder impingement; and bilateral knee tears. 

Appellant continued to submit reports from Dr. Baum. OWCP received a June 5, 2018 

report from Dr. Baum who treated appellant post work-related injury on October 30, 2017, and 

reported appellant’s complaints of pain in the neck, low back, shoulders, and knees. Findings on 

examination of the lumbar and cervical spine revealed positive Spurling and straight leg testing. 

Examination of her shoulders revealed positive Hawkins, O’Brien’s, and Neers test, and pain with 

flexion and extension of the knees. Dr. Baum diagnosed cervical spine, lumbar spine, bilateral 

knee, and shoulder derangement. He recommended a left knee arthroscopy. In a July 3, 2018 

Form CA-20 report, Dr. Baum diagnosed left foot, cervical spine, lumbar spine, and bilateral knee 

derangement and responded “Yes” with regard to whether he believed the conditions were caused 

or aggravated by an employment activity. He noted that appellant was partially disabled from 

work for the period October 30, 2017 to August 17, 2018.

On July 24, 2018 appellant filed a wage-loss compensation claim (Form CA-7) for 

disability for the period July 7 to 20, 2018.

In a development letter dated August 3, 2018, OWCP explained that the evidence submitted 

was insufficient to support the claim for wage-loss compensation. It advised appellant of the type 

of medical evidence necessary to establish her claim and afforded her 30 days to submit the 

necessary evidence.

In reports dated July 3 and 24, 2018, Dr. Baum reported that appellant presented to his 

office within one week of a motor vehicle accident complaining of pain in the neck, low back, 

knees, shoulders, and foot consistent with a pedestrian motor vehicle accident which caused her to 

fall to the ground where she sustained twisting, torsional, and direct impact injuries. He indicated 

that appellant had a foot fracture from either a crush injury or a rotational injury. Dr. Baum 

diagnosed cervical, lumbar, bilateral knee, and bilateral shoulder derangement. In an August 14, 

2018 Form CA-20 report, he diagnosed left foot, cervical spine, lumbar spine, and bilateral knee 

derangement and responded “Yes” with regard to whether he believed the condition was caused 

or aggravated by an employment activity. Dr. Baum noted that appellant was partially disabled 

from work for the period from October 30, 2017 to September 11, 2018.

Appellant filed additional wage-loss compensation claims (Form CA-7) for the period 

July 21 to August 31, 2018. 
4

On August 13, 2018 appellant requested reconsideration of the July 2, 2018 decision 

denying expansion of her claim.

By decision dated September 11, 2018, OWCP denied modification of the July 2, 2018

decision.

OWCP received an August 14, 2018 report from Dr. Baum, who continued to diagnose left 

foot, cervical spine, lumbar spine, and bilateral knee derangement and opined that appellant 

remained totally disabled from work.

By decision dated September 20, 2018, OWCP denied appellant’s wage-loss compensation 

claims for the period beginning July 7, 2018.

By decision dated September 25, 2018, OWCP denied appellant’s request for authorization 

for surgical treatment for her left knee. 

Appellant continued to submit evidence. Form CA-20 reports from Dr. Baum, dated 

September 17 to November 13, 2018, diagnosed left foot, cervical spine, lumbar spine, and 

bilateral knee derangement and responded “Yes” with regard to whether he believed the condition 

was caused or aggravated by an employment activity and noted appellant was partial disabled from 

October 30, 2017 to September 11, 2018. In reports dated September 18 to December 11, 2018,

Dr. Baum noted that he had treated appellant following a left foot fracture with complaints of pain 

and instability of the knee, spasm of the neck and back, and right shoulder pain. On December 11, 

2018 he diagnosed meniscal tear and lumbar derangement. Dr. Baum again noted the necessity 

for arthroscopic surgery of the knees and advised that appellant remained disabled from work.

On December 21, 2018 OWCP referred appellant, the case file, a statement of accepted 

facts (SOAF), and a series of questions to Dr. Andrew Farber, an osteopath Board-certified in 

orthopedic surgery, for a second opinion examination and opinion on appellant’s employmentrelated conditions and disability. It requested that Dr. Farber determine whether the acceptance of 

her claim should be expanded to include other diagnoses, whether appellant continued to suffer 

from residuals of her work-related injury, the need for surgery or further treatment, and whether 

she was capable of returning to gainful employment.

In a January 3, 2019 medical report, Dr. Farber described appellant’s October 30, 2017

employment injury, noting that she was struck by a motor vehicle at work. He discussed 

appellant’s medical history, reviewed diagnostic reports, and provided findings on physical 

examination. Dr. Farber diagnosed closed fracture of the first and third metatarsal bones of the 

left foot. He opined that these conditions had resolved. Dr. Farber further opined that there were 

no other conditions caused by the work injury. Findings on examination revealed appellant walked 

without assistive device or antalgic gait, no swelling or deformity of the left foot and ankle, 

strength was intact, no gross instability, and no focal neurovascular deficit was noted. Dr. Farber

noted her subjective complaints corresponded with the objective findings. He reviewed the MRI 

report of the foot dated November 30, 2017, and x-ray of the foot dated December 18, 2017. 

Dr. Farber opined that based on his physical examination and review of the medical records she 

had reached maximum medical improvement (MMI) and needed no further treatment or surgery. 

He opined that appellant was able to return to her date-of-injury job as a letter carrier without 

restrictions. 
5

On January 15, 2019 Dr. Baum treated appellant’s status post left foot fracture with 

complaints of pain and instability of the knee, neck, back, and right shoulder pain. He 

recommended knee arthroscopy and opined that appellant was totally disabled.

On February 6, 2019 OWCP issued a notice proposing to terminate appellant’s entitlement 

to wage-loss compensation and medical benefits as she no longer had disability or residuals 

causally related to her accepted employment injury. It allowed appellant 30 days to respond to the 

proposal.

In response, on March 4, 2019, appellant, through counsel, disagreed with the notice of 

proposed termination. Counsel asserted that there was a conflict of opinion between appellant’s 

physician, Dr. Baum, and OWCP’s referral physician, Dr. Farber regarding whether appellant had 

residuals of her accepted conditions. In support of her request, appellant submitted a February 12, 

2019 report from Dr. Baum, who opined that the proximity of her complaints to the time of the 

injury was consistent with the neck, back, knees, and shoulders conditions being post-traumatically 

induced and causally related to the motor vehicle accident of October 30, 2017. Other reports from

Dr. Baum dated January 29 and February 12 to May 7, 2019, reiterated his findings that appellant 

was status post left foot fracture with complaints of pain and instability of the knee, neck, back,

and shoulder pain. Dr. Baum continued to recommend knee arthroscopy and opined that appellant 

was totally disabled.

On March 5, 2019 appellant, through counsel, requested reconsideration of OWCP’s

decisions dated September 11, 20, and 25, 2018.

By decision dated June 3, 2019, OWCP denied modification of the decisions dated 

September 11, 20, and 25, 2018.

In a letter dated June 6, 2019, OWCP advised appellant that a conflict in medical opinion 

evidence existed between Dr. Baum, appellant’s treating physician, and Dr. Farber, OWCP’s 

second opinion examiner, regarding her diagnosis and whether she had continuing disability from 

work as a result of the accepted employment injury.

OWCP referred appellant to Dr. Alan Crystal, a Board-certified orthopedist, to resolve the 

conflict in medical opinion between Dr. Baum and Dr. Farber. It prepared a SOAF dated 

March 19, 2019 noting in part that on October 30, 2017 appellant was struck by a vehicle while 

crossing the street and was knocked back about eight feet and fell down on the ground in a sitting 

position. In a June 26, 2019 report, Dr. Crystal noted his review of the SOAF, as well as the 

medical evidence of record. On examination he noted unremarkable findings for range of motion

in appellant’s ankles, knees, hips, cervical, thoracic and lumbar spine, and normal muscle strength. 

Dr. Crystal noted several instances of “exaggeratory” behavior during the physical examination. 

He opined that the acceptance of the claim should not be expanded to include other conditions, as 

the accident only caused a fracture of the first and third metatarsals of the left foot. Dr. Crystal

advised that the examination did not elicit objective findings in regard to her left foot and 

concluded that it healed without any disability as she is neither swollen nor tender, and has a 

normal gait. He found that appellant’s left foot did not have objective findings that would 

contraindicate a return to full duty. Dr. Crystal opined that she was not disabled due to the accepted 

October 30, 2017 employment injury, and required no further treatment. In addressing appellant’s

requested conditions for expansion of knee, back, and neck pain, he advised that none of these 
6

areas were documented in the emergency room as being injured. Upon review of his reports,

Dr. Baum noted multiple other conditions causally related to the accident were based on appellant 

falling. He noted, however, that the emergency room notes did not indicate that appellant had 

fallen. Dr. Crystal further noted the derangement diagnosis by Dr. Baum was not causally related 

to the motor vehicle accident of October 30, 2017, but rather the findings on all the MRI scans 

were age-related degenerative changes. He concluded that appellant had reached MMI and was 

capable of working full-time regular duty. 

Appellant submitted reports from Dr. Baum, dated June 4 to July 9, 2019, who continued 

to diagnosis cervical and lumbar spine internal derangement, bilateral knee derangement, and 

status post left foot fracture. Dr. Baum reiterated appellant’s need for left knee arthroscopy and 

opined that she remained totally disabled.

By decision dated September 5, 2019, OWCP terminated appellant’s wage-loss 

compensation and medical benefits effective September 6, 2019 finding that the special weight of 

the evidence was represented by Dr. Crystal.

LEGAL PRECEDENT -- ISSUE 1

When 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.4

Causal relationship is a medical question that requires rationalized medical opinion 

evidence to resolve the issue.5 A physician’s opinion on whether there is a causal relationship 

between the diagnosed condition and the accepted employment injury must be based on a complete 

factual and medical background.6 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 factor(s).7

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.8 Thus, a subsequent 

 

4 See T.F., Docket No. 17-0645 (issued August 15, 2018); Jaja K. Asaramo, 55 ECAB 200 (2004).

5 E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

6 M.V., Docket No. 18-0884 (issued December 28, 2018); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

7

Id.

8 See S.M., Docket No. 19-0397 (issued August 7, 2019); Mary Poller, 55 ECAB 483, 487 (2004); 1 Arthur Larson 

& Lex K. Larson, The Law of Workers’ Compensation 10-1 (2006).
7

injury, be it an aggravation of the original injury or a new and distinct injury, is compensable if it 

is the direct and natural consequence of a compensable primary injury.9

FECA provides that if there is disagreement between an OWCP-designated physician and 

the employee’s physician, OWCP shall appoint a third physician who shall make an examination.10 

For a conflict to arise the opposing physicians’ viewpoints must be of virtually equal weight and 

rationale.11 Where OWCP has referred the case to an impartial medical examiner to resolve a 

conflict in the medical evidence, the opinion of such a specialist, if sufficiently well-reasoned 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.

OWCP accepted that appellant sustained a closed fracture of the first and third metatarsal 

bones of the left foot. It found that a conflict in medical opinion evidence existed between

Dr. Baum, appellant’s treating physician, and Dr. Farber, OWCP’s second opinion examiner, 

regarding her diagnosis and whether she had continuing disability from work as a result of the 

accepted employment injury. OWCP referred her, together with a SOAF, to Dr. Crystal for an 

impartial medical examination. The SOAF provided to Dr. Crystal specifically noted that the 

appellant was struck by a vehicle crossing the street and was knocked back eight feet and fell down

on the ground in a sitting position.

In a report dated June 26, 2019, Dr. Crystal, in addressing appellant’s requested conditions 

for expansion of knee, back, and neck, advised that none of these areas were documented in the 

emergency room as being injured. Upon review of Dr. Baum’s reports, he noted multiple other 

conditions causally related to the employment incident. Dr. Crystal noted, however, that the 

emergency room notes did not indicate that appellant had fallen and therefore he did not accept 

the fall as factual. He concluded that appellant’s claim should not be expanded to include the knee, 

back, and neck and that she was capable of working full-time regular duty. 

It is OWCP’s responsibility to provide a complete and proper frame of reference for a 

physician by preparing a SOAF. OWCP’s procedures dictate that when an OWCP medical 

adviser, second opinion specialist, or referee physician renders a medical opinion based on a SOAF 

which is incomplete or inaccurate or does not use the SOAF as the framework in forming his or 

her opinion, the probative value of the opinion is seriously diminished or negated altogether.13 As

Dr. Crystal did not use the SOAF as the framework in forming his opinion, his opinion is of 

 

9 A.T., Docket No. 18-1717 (issued May 10, 2019); Susanne W. Underwood (Randall L. Underwood), 53 ECAB 

139 (2001).

10 5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321; Shirley L. Steib, 46 ECAB 309, 317 (1994).

11 Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

12 Gary R. Sieber, 46 ECAB 215, 225 (1994).

13 Id.; see also N.W., Docket No. 16-1890 (issued June 5, 2017).
8

diminished probative value.14 He opined that Dr. Baum noted appellant fell, but the emergency 

room notes did not support a fall. As discussed, however, Dr. Crystal did not acknowledge that 

appellant fell down after being struck by a vehicle as stated within the SOAF. He failed to rely 

upon a complete and accurate SOAF, and thus his opinion is of diminished probative value and is 

not entitled to the special weight typically afforded to an impartial medical examiner.

15

It is well established that proceedings under FECA are not adversarial in nature and while 

the claimant has the burden of proof to establish entitlement to compensation, OWCP shares the 

responsibility in the development of the evidence.16 Once OWCP undertook development of the 

evidence by referring appellant to a referee physician, it had the duty to secure an appropriate 

report addressing the relevant issues.17 As Dr. Crystal did not base his report on an accurate factual 

history, the case will be remanded to OWCP for further development of the medical evidence.

On remand OWCP should prepare an updated SOAF and should obtain a supplemental 

opinion from Dr. Crystal or a new referee physician who accepts all of the facts of the SOAF in 

responding to OWCP’s questions. After such further development as necessary, OWCP shall issue 

a de novo decision.

CONCLUSION

The Board finds that this case is not in posture for decision.18

 

14 Id.; see also Y.D., Docket No. 17-0461 (issued July 11, 2017).

15 See S.T., Docket No. 18-1144 (issued August 9, 2019) (medical opinions based on an incomplete or inaccurate 

history are of limited probative value).

16 See D.M., Docket No. 19-1181 (issued December 2, 2019).

17 S.S., Docket No. 18-0397 (issued January 15, 2019); Richard F. Williams, 55 ECAB 343 (2004).

18 The Board finds that it is unnecessary to address issue two, three, and four `in view of the Board’s disposition of 

the first issue.
9

ORDER

IT IS HEREBY ORDERED THAT the September 5 and June 3, 2019 decisions of the 

Office of Workers’ Compensation Programs are reversed and the case is remanded for further 

proceedings consistent with this decision of the Board.

Issued: January 8, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board