United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.P., Appellant

and

U.S. POSTAL SERVICE, WARWICK POST 

OFFICE, Warwick, NY, Employer

__________________________________________

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Docket No. 21-0974

Issued: January 11, 2022

Appearances: Case Submitted on the Record

James D. Muirhead, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 9, 2021 appellant, through counsel, filed a timely appeal from a December 17, 

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 to consider the merits of this case.

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2

5 U.S.C. § 8101 et seq.
2

ISSUE

The issue is whether appellant has met her burden of proof to establish a left knee condition 

causally related to the accepted December 6, 2017 employment incident.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances as set forth 

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

follows.

On January 12, 2018 appellant, then a 53-year-old rural carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on December 6, 2017 she injured her left knee while in the 

performance of duty. She explained that she was walking into the breakroom in order to fill a 

water bottle and when she put her foot down on the floor, her shoe did not move while the rest of 

her body continued in motion and rotated to the right. Appellant noted that she heard a loud pop 

in her left knee and felt unbearable pain and a burning sensation. She did not stop work.

In a development letter dated January 26, 2018, OWCP informed appellant of the 

deficiencies of her claim and advised her of the type of factual and medical evidence necessary to 

establish her claim. It provided a questionnaire for her completion and also requested that she 

submit a narrative medical report from her treating physician, which provided a diagnosis and the 

physician’s rationalized medical explanation as to how the alleged employment incident caused 

the diagnosed condition. OWCP afforded appellant 30 days to submit the necessary evidence.

Appellant replied to OWCP’s development questionnaire and submitted medical evidence.

By decision dated March 5, 2018, OWCP denied appellant’s claim, finding that the medical 

evidence of record was insufficient to establish causal relationship between her medical condition 

and the accepted employment incident.

On March 15, 2018 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review.

By decision dated October 4, 2018, OWCP’s hearing representative affirmed the March 5, 

2018 decision.

On April 17, 2019 appellant, through counsel, requested reconsideration of OWCP’s 

October 4, 2018 decision.

In a March 22, 2019 narrative medical report, appellant’s attending physician, Dr. Andrew 

Beharrie, a Board-certified orthopedic surgeon, explained that degenerative meniscus tears are 

very common in the setting of osteoarthritis of the knee. He noted that, as osteoarthritis progresses, 

the contact pressure in the joint increases and the increased pressure results in greater stresses on 

the meniscus as the quality and strength of the tissue in the meniscus diminishes with age. As a 

3 Docket No. 19-1596 (issued April23, 2020).
3

result of these factors, patients with arthritis are more likely to develop a degenerative meniscus 

tear because the meniscus is more susceptible to damage. Dr. Beharrie further explained that, prior 

to her injury, appellant had preexisting arthritis of her knee, but was asymptomatic although she

may have also had preexisting degenerative meniscus tears. The twisting injury to her knee caused 

significant force across her arthritic joint and this likely resulted in an acute meniscus tear or 

worsening of a preexisting tear. Additionally, Dr. Beharrie explained that appellant’s injury may 

have caused a new tear in a previously intact meniscus or resulted in a progression of preexisting 

tear. He also noted that the injury caused a flare up of inflammation in her knee, which resulted 

in aggravation of her baseline arthritis and associated meniscus tear.

By decision dated April 23, 2019, OWCP denied modification of the October 4, 2018 

decision.

On July 22, 2019 appellant, through counsel, filed an appeal with the Board. By decision 

dated April 23, 2020,

4

the Board found that Dr. Beharrie’s March 22, 2019 report was sufficient 

to require additional development and remanded the case for OWCP to refer appellant, a statement 

of accepted facts (SOAF), and the medical evidence of record to a district medical adviser (DMA)

or an appropriate Board-certified physician for a rationalized opinion addressing whether the 

diagnosed left knee conditions are causally related to the accepted December 6, 2017 employment 

incident and a de novo decision.

On July 15, 2020 OWCP referred appellant, a SOAF, and a series of questions to

Dr. Stephen Koss, a Board-certified orthopedic surgeon, for a second opinion evaluation.

In a report dated August 21, 2020, Dr. Koss reviewed the SOAF, provided appellant’s 

history of injury, and performed a physical examination. He found full extension and 

approximately 95 degrees of flexion of the left knee at which point appellant reported discomfort 

and refused to flex the knee further. Appellant exhibited only 85 degrees of flexion of the right 

knee due to pain. Dr. Koss found bilateral knee osteoarthritis with no difference on examination 

between the injured left knee and the non-injured right knee. He opined that appellant’s current 

bilateral knee pain and stiffness was degenerative and chronic in nature and not related to the 

accepted employment incident. Dr. Koss further reviewed a left knee magnetic resonance imaging 

(MRI) scan and found chronic degenerative changes with a degenerative tear in the meniscus. He 

noted that it was common to develop meniscal tears in arthritic knees and that these tears were 

degenerative in nature and not related to any acute injury. Dr. Koss determined that appellant had 

not sustained a significant aggravation of a preexisting condition and disagreed with Dr. Beharrie. 

He concluded that she could return to work with no “significant” restrictions related to her work 

injury and that she did not require additional medical treatment due to her accepted employment 

injury.

By decision dated December 17, 2020, OWCP denied appellant’s claim finding that the 

medical evidence of record did not establish causal relationship between her accepted December 6, 

2017 employment incident and her diagnosed conditions.

4

Id.
4

LEGAL PRECEDENT

An employee seeking benefits under FECA5 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 determine if an employee sustained a traumatic injury in the performance of duty, 

OWCP begins with an analysis of whether fact of injury has been established.9 There are two 

components that must be considered in conjunction with one another. The first component is 

whether the employee actually experienced the employment incident that allegedly occurred.10 

The second component is whether the employment incident caused a personal injury.11

Causal relationship is a medical question that requires rationalized medical opinion 

evidence to resolve the issue.12 A physician’s opinion on whether there is causal relationship 

between the diagnosed condition and the implicated employment incident must be based on a 

complete factual and medical background.13 Additionally, the physician’s opinion must be 

expressed in terms of a reasonable degree of medical certainty and must be supported b y medical 

rationale, explaining the nature of the relationship between the diagnosed condition, and 

appellant’s specific employment incident.14

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 

5

Supra note 2.

6 M.G., Docket No. 19-1860 (issued March15, 2021); S.C., Docket No. 18-1242 (issued March 13, 2019); S.B.,

Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

7 T.H., Docket No. 18-1736 (issued March13, 2019); J.M., Docket No. 17-0284 (issued February 7, 2018); R.C.,

59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988).

8 T.E., Docket No. 18-1595 (issued March13, 2019); K.M.,Docket No. 15-1660 (issued September 16, 2016); L.M.,

Docket No. 13-1402 (issued February 7, 2014); DeloresC. Ellyett, 41 ECAB 992 (1990).

9

S.S.,Docket No. 18-1488 (issued March11, 2019); T.H., 59 ECAB 388, 393-94 (2008).

10 E.M., Docket No. 18-1599 (issued March 7, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

11 E.M., id.; John J. Carlone, 41 ECAB 354 (1989).

12 S.S., supra note 9; RobertG. Morris, 48 ECAB 238 (1996).

13 C.F., Docket No. 18-0791 (issued February 26, 2019); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

14 Id.
5

make an examination.15 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.16 

When there exists 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.17

ANALYSIS

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

Dr. Beharrie, appellant’s treating physician, found that she had preexisting arthritis in her 

left knee, that she may have had a preexisting degenerative meniscus tear, but that the accepted 

December 6, 2017 employment incident where she twisted her left knee caused significant force 

across her arthritic joint that likely resulted in an acute meniscus injury or the worsening of a 

preexisting tear. He also attributed aggravation of her left knee arthritis and associated meniscus 

tear to the inflammation of her left knee to the accepted employment incident.

By contrast, Dr. Koss a second opinion physician, opined in his August 21, 2020 report 

that appellant had no disabling residuals of any condition associated with her current claim, rather 

her ongoing conditions were due to her preexisting bilateral knee osteoarthritis. He further noted 

that it was common to develop meniscal tears in arthritic knees and that these tears were 

degenerative in nature and not related to any acute injury. Dr. Koss determined that she had not 

sustained a significant aggravation of a preexisting condition and disagreed with Dr. Beharrie. He

concluded that appellant had no employment-related disability or residuals.

Dr. Beharrie provided a description of how the accepted employment incident caused or 

contributed to the diagnosed left knee meniscal tear. Dr. Koss, however, opined that there was no 

causal relationship between the accepted employment incident and appellant’s degenerative left 

knee condition. The Board, therefore, finds that a conflict in medical opinion exists regarding 

whether she sustained a left knee injury as a result of the accepted December 6, 2017 employment 

incident.

OWCP’s regulations provide that, if a conflict exists between the medical opinion of the 

employee’s physicians and the medical opinion of a second-opinion physician or an OWCP 

medical adviser, OWCP shall appoint a third physician to make an examination. 18 The Board will, 

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

15 5 U.S.C. § 8123(a); M.W., Docket No. 19-1347 (issued December 5, 2019); C.T., Docket No. 19-0508 (issued 

September 5, 2019); R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued 

May 4, 2009).

16 20 C.F.R. § 10.321.

17 M.W., supra note 15; C.T., supra note 15; Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 

ECAB 486 (2001).

18 5 U.S.C. § 8123(a); M.W., supra note 15.
6

appellant has met her burden of proof to establish that she sustained a left knee injury causally 

related to the accepted employment incident.

19

 Following this and any such further development 

as may be deemed necessary, OWCP shall issue a de novo decision.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the December 17, 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: January 11, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

19 Id.