United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.K., Appellant

and

U.S. POSTAL SERVICE, SOUTH JERSEY 

PROCESSING & DISTRIBUTION CENTER, 

Bellmawr, NJ, Employer

__________________________________________

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Docket No. 21-0007

Issued: July 30, 2021

Appearances: Case Submitted on the Record

Russell T. Uliase, 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 October 2, 2020 appellant, through counsel, filed a timely appeal from a May 11, 2020 

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 May 11, 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 that acceptance of 

his claim should be expanded to include a left knee condition.

FACTUAL HISTORY

On September 30, 2014 appellant, then a 51-year-old mail handler, filed an occupational 

disease claim (Form CA-2) alleging that he sustained phlebitis and low back and bilateral knee 

conditions causally related to factors of his federal employment, including significant physical 

work. He related that he became aware of his condition in May 2009 and attributed it to his federal 

employment on September 2, 2014. 

On March 21, 2016 OWCP referred appellant to Dr. Lawrence I. Barr, an osteopath, for a 

second opinion examination.4

Thereafter, OWCP received a May 7, 2009 magnetic resonance imaging (MRI) scan of 

appellant’s left knee. The scan showed moderate-to-pronounced chondromalacia patella, a lateral 

patellar subluxation, degenerative thickening of the medial collateral ligament, a horizontal tear of 

the anterior and posterior horns of the lateral meniscus, and an oblique tear in the apex of the 

posterior horn of the medial meniscus. An MRI scan of the right knee of even date revealed

moderate degenerative changes and chondromalacia patella and a horizontal tear of the anterior 

and posterior horns of the lateral meniscus, and a vertical tear of the medial meniscus. 

In a report dated April 20, 2016, Dr. Barr described appellant’s complaints of pain in his 

low back and bilateral knees. He noted that he was currently performing his usual employment. 

On examination of the knees Dr. Barr found parapatellar tenderness and crepitus at the lateral joint 

line of the right knee and patellofemoral joint of the left knee. He further found full strength 

bilaterally. Dr. Barr diagnosed lumbar degenerative disc disease, a lateral meniscal tear of the 

right knee with degenerative joint disease, and left knee pain. He advised that appellant had fallen 

and injured his right knee. Dr. Barr related, “With regard to the left knee, I do [not] find any 

relation between this and work. He has chondromalacia. There was no actual injury.” 

In a supplemental report dated May 3, 2016, Dr. Barr opined that appellant’s right knee 

pain had begun on May 1, 2009 when he caught his foot exiting a tractor-trailer. In 2014,

appellant’s right knee buckled when he loaded a cart with mail. Dr. Barr found that he had 

sustained a right knee condition due to the May 1, 2009 employment incident. Regarding the left 

knee, he found no relationship “between the May 1, 2009 work occurrence and his left knee pain. 

There are no studies showing that the compensatory pain would cause arthritis or [a] torn menisci.” 

 

4 Appellant had previously filed a traumatic injury claim (Form CA-1) alleging that on April 11, 2006 he slipped 

and fell, injuring his right knee. OWCP assigned OWCP File No. xxxxxx714 and administratively closed the claim 

due to lack of activity. Appellant also alleged a traumatic injury to his right leg when his right knee buckled on 

March 21, 2014. OWCP assigned OWCP File No. xxxxxx658. It denied the claim, finding that he had not factually 

established the alleged incident. OWCP combined OWCP File No. xxxxxx658 into the current file number, 

xxxxxx514, with the latter serving as the master file. 
3

On June 8, 2016 OWCP accepted the claim, assigned OWCP File No. xxxxxx514, for a 

tear of the right lateral meniscus and degenerative joint disease of the right knee.

On June 17, 2016 Dr. Steven H. Kahn, an osteopath, diagnosed a tear of the posterior horn 

and body of the right lateral meniscus, mild-to-moderate osteoarthritis of the knees bilaterally, 

right more symptomatic, central disc herniations at L1-2 and L5-S1, a disc bulge at L2-3, a right 

foraminal disc herniation at L3-4 and L4-5, mild-to-moderately severe bilateral S1 radiculopathy, 

chronic lumbar radiculitis, peripheral polyneuropathy likely due to diabetes mellitus, and lumbar 

spondylosis.. He related that appellant’s left knee arthritis “had been aggravated by altered gait 

biomechanics due to the meniscal tears and the increasing pain he has been experiencing in his 

right knee.” Dr. Kahn opined that OWCP should expand the acceptance of appellant’s claim to 

include a left knee condition.

On July 12, 2016 Dr. Kahn performed OWCP-authorized arthroscopic surgery on 

appellant’s right knee. 

In a progress report dated July 18, 2016, Dr. Kahn evaluated appellant after his recent right 

knee surgery. He noted that an MRI scan of the left knee performed on March 9, 2014 had revealed 

arthritic changes with no meniscal tear. Dr. Kahn related that appellant had left knee symptoms 

similar to those that he had in his right knee before surgery. He asserted that OWCP should accept 

his left knee condition as it was “secondary to his occupation.” Dr. Kahn provided a similar 

opinion on August 19, 2016. He noted that, in the future, appellant would likely need arthroscopic 

surgery on the left knee.

On September 22, 2016 appellant, through counsel, requested that OWCP adjudicate 

appellant’s claim for an employment-related left knee condition, noting that his physician had 

recommended surgery. 

By decision dated December 13, 2016, OWCP denied appellant’s request to expand the 

acceptance of his claim to include a left knee condition. 

On December 20, 2016 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review. A hearing was held on March 1, 2017.

By decision dated April 4, 2017, OWCP’s hearing representative vacated the December 13, 

2016 decision. He found that Dr. Barr had not relied on an accurate history of the accepted 

employment factors. The hearing representative remanded the case for OWCP to obtained

clarification from Dr. Barr regarding whether appellant’s accepted employment exposure caused 

or contributed to a left knee condition.5 

In a supplemental report dated April 12, 2017, Dr. Barr noted that appellant had 

experienced bilateral knee pain beginning in 1986. He described his work duties and diagnosed 

left knee degenerative joint disease and probable degenerative joint disease of the right knee. 

 

5 The hearing representative noted that appellant had sustained a prior employment injury to his left foot on 

August 24, 2000, assigned OWCP File No. xxxxxx463 and accepted for a left foot and ankle sprain/strain, a left foot 

injury on May 25, 2009, assigned OWCP File No. xxxxxx885, and a right knee injury on April 11, 2016, assigned 

OWCP File No. xxxxxx714. 
4

Dr. Barr opined that medical literature failed to “support a relationship between standing, walking,

lifting, [and] moderate exercise and knee arthritis.” 

By decision dated July 17, 2017, OWCP denied appellant’s request to expand the 

acceptance of his claim to include a knee condition causally related to or as a consequence of his 

accepted employment injury. 

On July 24, 2017 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review. 

In a report dated August 31, 2017, Dr. Kahn noted that appellant had sustained an injury in 

2006 at work when he fell. He opined that the duties of appellant’s employment contributed to the 

degeneration in his knees bilaterally, and also noted that he had a right knee meniscal tear. 

Dr. Kahn reviewed the results of diagnostic studies and summarized the findings from his prior 

reports. He noted that OWCP had accepted his right knee condition as resulting from his work 

delivering mail for over 30 days. Dr. Kahn related that appellant did “not ambulate only on his 

right knee, he does ambulate on two feet, stand on two feet, ascend and descend stairs on two feet.” 

He opined that appellant’s left knee condition was due to “occupational hazards.”

A hearing was held on November 16, 2017. 

By decision dated January 30, 2018, OWCP’s hearing representative vacated the July 17, 

2017 decision. She noted that Dr. Kahn had attributed appellant’s left knee degeneration both to 

his employment duties and possible gait biomechanics resulting from his accepted right knee 

meniscal tear. The hearing representative remanded the case for Dr. Barr to address whether his 

employment duties had contributed to or aggravated his left knee condition.

On May 10, 2018 Dr. Barr opined that medical literature failed to support that knee arthritis 

was caused or aggravated by standing, walking, lifting, or moderate exercise. He noted that 

kneeling and squatting could contribute depending on the duration of those activities, but that he 

did not believe that this was a factor for a mail handler.

By decision dated May 18, 2018, OWCP denied appellant’s request to expand the 

acceptance of his claim to include a left knee condition due to his employment duties or as a 

consequence of his accepted right knee condition.

On May 31, 2018 counsel requested an oral hearing before a representative of OWCP’s 

Branch of Hearings and Review. A hearing was held on November 28, 2018. 

By decision dated February 12, 2019, OWCP’s hearing representative set aside the 

May 18, 2018 decision. She found that a conflict existed between Dr. Kahn and Dr. Barr regarding 

whether appellant sustained a left knee condition as a consequence of the accepted right knee 

injury. 

OWCP referred appellant to Dr. Noubar Didizian, a Board-certified orthopedic surgeon, 

for a second opinion examination. 

In a report dated April 23, 2019, Dr. Didizian diagnosed bilateral degenerative joint disease 

of the knee. He agreed with Dr. Barr’s opinion that there was no proof that appellant’s work duties 
5

were of the nature to cause internal derangement or a meniscal tear. Dr. Didizian further found 

that the left knee condition was unrelated to the accepted right knee injury.

By decision dated May 21, 2019, OWCP denied appellant’s request to expand the 

acceptance of his claim to include a left knee condition. 

On May 30, 2019 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review.6

A hearing was held on August 20, 2019. 

By decision dated September 23, 2019, OWCP’s hearing representative vacated the 

May 21, 2019 decision. She noted that a prior hearing representative had found a conflict in 

medical opinion and had instructed OWCP to refer appellant to for an impartial medical

examination, but instead it had referred him for a second opinion examination. The hearing 

representative, thus, found that the conflict in medical opinion remained unresolved and instructed 

OWCP to refer him for an impartial medical examination.

On September 26, 2019 OWCP referred appellant to Dr. Ian B. Fries, a Board-certified 

orthopedic surgeon, for an impartial medical examination. 

In a report dated November 18, 2019, Dr. Fries provided his review of the SOAF and the 

medical reports of record. He noted that appellant had a history of a motor vehicle accident in 

August 2019. On examination of the knees Dr. Fries found a negative Lachman’s sign and 

McMurray’s test bilaterally, and no crepitation. He diagnosed bilateral degenerative knee arthritis 

and chondrocalcinosis after a right knee arthroscopic debridement, diabetes mellitus, a left foot 

diabetic infection and abscess, resolved after surgery, and peripheral polyneuropathy, likely 

diabetic. Dr. Fries related that his evaluation was “limited by the absence of records concerning 

several work-related accidents before and after May 2009, and the effect of a recent right knee 

injury in a motor vehicle accident.” He, referencing Chapter 10 of the second edition of the 

American Medical Association (A.M.A.), Guides for the Evaluation of Disease and Injury 

Causation,

7

regarding osteoarthritis, related that there was “insufficient evidence of occupational 

risk factors of jumping, lifting, standing, walking, and low and moderate levels of physical activity. 

There is only some evidence of combination risk factors of kneeling, squatting, and knee bending.”

Dr. Fries indicated that OWCP had accepted right knee degenerative arthritis and a torn medial 

meniscus, but noted that torn menisci were “common findings in knees with degenerative 

arthritis.”

8

 He opined that appellant’s left knee condition was not a consequence of the accepted 

right knee employment injury. Dr. Fries related, “There is no scientific basis to the claim a left 

knee condition causes a right knee condition. In fact, patients with a unilateral knee condition 

ambulate less and cannot put more than full body weight on either knee. Trauma is not a metastatic 

condition. Rather[,] the presence of similar findings in both knees is consistent with age-related 

degeneration, or a systemic disorder.” Dr. Fries advised that appellant’s accepted right knee 

 

6 Appellant submitted a progress report from Dr. Kahn dated August 26, 2019. 

7 A.M.A., Guides to the Evaluation of Disease and Injury Causation (2nd ed. 2013).

8 Dr. Fries indicated that OWCP had accepted left rather than right knee degenerative arthritis and a meniscal tear; 

however, it is apparent that this is a typographical error.
6

condition had been aggravated by employment injuries in March 2014 and April 2016 and by an 

August 2019 motor vehicle accident, but advised that he had insufficient medical records to 

evaluate the status of his right knee.

By decision dated December 5, 2019, OWCP denied appellant’s request to expand the 

acceptance of his claim to include a left knee condition causally related to his accepted 

employment injury.

On December 16, 2019 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review. 

A telephonic hearing was held on April 1, 2020. Counsel argued that Dr. Fries generally 

cited medical literature, but failed to provide a specific opinion regarding appellant. He further 

noted that Dr. Fries advised that he did not have medical evidence prior to May 2009. Counsel 

also asserted that Dr. Fries contracted the SOAF in finding that appellant’s right knee condition 

was not employment related. 

By decision dated May 11, 2020, OWCP’s hearing representative affirmed the 

December 5, 2019 decision.9

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.10

Causal relationship is a medical question that requires medical opinion evidence to resolve 

the issue.11 The opinion of the physician must be based on a complete factual and medical 

background, must be one of reasonable certainty, and must be supported by medical rationale 

explaining the nature of the relationship between the diagnosed condition and the accepted 

employment injury.12

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.”

13

 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 Where a case is referred to an impartial medical 

examiner (IME) for the purpose of resolving the conflict, the opinion of such specialist, if 

 

9 The hearing representative noted that OWCP should administratively combine the current case record with OWCP 

File No. xxxxxx858.

10 K.T., Docket No. 19-1718 (issued April 7, 2020); Jaja K. Asaramo, 55 ECAB 200 (2004).

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

12 See T.S., Docket No. 18-1702 (issued October 4, 2019).

13 5 U.S.C. § 8123(a).

14 C.W., Docket No. 18-1536 (issued June 24, 2019).
7

sufficiently well rationalized and based on a proper factual background, must be given special 

weight.15

When OWCP obtains an opinion from an IME for the purpose of resolving a conflict in the 

medical opinion evidence and the specialist’s opinion requires clarification or elaboration, OWCP 

must secure a supplemental report from the specialist to correct the defect in the original report.16 

If the IME fails to respond or does not provide an adequate response, it should refer appellant for 

a new impartial medical examination.17

ANALYSIS

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

OWCP properly determined that a conflict in medical opinion existed between Dr. Kahn, 

appellant’s physician, and Dr. Barr, who provided a second opinion examination, regarding 

whether the acceptance of appellant’s claim should be expanded to include additional conditions 

due to his accepted right knee degenerative joint disease and lateral meniscal tear. It referred him 

to Dr. Fries, a Board-certified orthopedic surgeon, for an impartial medical examination under 

5 U.S.C. § 8123(a).18

When a case is referred to an IME for the purpose of resolving the conflict, the opinion of 

such specialist, if sufficiently well rationalized and based on a proper factual background, must be 

given special weight.19

The Board finds that Dr. Fries’ opinion is not entitled to the special weight afforded an 

IME as he failed to provide sufficient rationale in support of his causation finding. On 

November 18, 2019 Dr. Fries discussed appellant’s work history and the medical reports of record 

and provided detailed examination findings. He diagnosed bilateral degenerative knee arthritis 

and chondrocalcinosis after a right knee arthroscopic debridement, diabetes mellitus, a left foot 

diabetic infection and abscess, resolved after surgery, and peripheral polyneuropathy, likely 

diabetic. Dr. Fries opined that appellant’s left knee condition was unrelated to the accepted 

employment injury to the right knee. He provided as rationale a reference to the A.M.A., Guides 

to the Evaluation of Disease and Injury Causation. The Board has held that medical texts and 

excerpts from publications are for general application and are not determinative of whether the 

specific condition claimed is related to the particular employment factors alleged by the 

 

15 V.K., Docket No. 18-1005 (issued February 1, 2019); D.M., Docket No. 17-1411 (issued June 7, 2018).

16 See M.M., Docket No. 20-1524 (issued April 20, 2021); S.R., Docket No. 17-1118 (issued April 5, 2018); Nancy 

Lackner(Jack D. Lackner), 40 ECAB 232, 238 (1988).

17 See M.M., id.; W.H., Docket No. 16-0806 (issued December 15, 2016); Talmadge Miller, 47 ECAB 673 (1996);

Harold Travis, 30 ECAB 1071, 1078 (1979); Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and 

Evaluating Medical Evidence, Chapter 2.810.11(e) (September 2010).

18 G.B., Docket No. 19-1510 (issued February 12, 2020); R.H., 59 ECAB 382 (2008).

19 Supra note 15.
8

employee.20 Dr. Fries failed to explain the significant of these general principles to appellant’s 

specific situation.21 He additionally advised that similar findings in both knees supported agerelated degeneration or a systemic disorder; however, the Board notes that OWCP accepted 

appellant’s right knee degenerative joint disease as employment related. 

The opinion of a referee physician or IME is given special weight only when the 

physician’s report is sufficiently rationalized and based upon a proper factual background.22 

Dr. Fries’ report lacks medical reasoning to support his conclusory statements about the claimant’s 

condition and, thus, it is insufficient to resolve a conflict in the medical evidence.23

Once OWCP undertakes development of the medical evidence, it has the responsibility to 

do so in a manner that will resolve the relevant issues in the case.24 When it obtains an opinion 

from an IME for the purpose of resolving a conflict in the medical evidence and the opinion 

requires clarification or elaboration, it must secure a supplemental report from the specialist to 

correct the defect in his original report.25

On remand, OWCP shall provide Dr. Fries with all relevant medical records and obtain a 

supplemental report sufficient to resolve the conflict regarding whether appellant’s left knee 

condition is causally related to factors of his federal employment or occurred a consequence of his 

accepted right knee condition. If Dr. Fries is unable to clarify or elaborate on his original report, 

or if his supplemental report is also vague, speculative, or lacking in rationale, OWCP must submit 

the case record and a detailed statement of accepted facts to a new IME for the purpose of obtaining 

a rationalized medical opinion on the issue.26 Following this and any other further development 

as deemed necessary, it should issue a de novo decision.

CONCLUSION

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

 

20 A.S., Docket No. 17-1033 (issued October 23, 2017); C.B., Docket No. 16-1713 (issued April 21, 2017); Gloria J. 

McPherson, 51 ECA 441 (2000).

21 C.B., id.; J.R., Docket No. 12-1639 (issued January 22, 2013).

22 See M.P., Docket No. 16-0551 (issued May 19, 2017).

23 A.S., supra note 20.

24 See C.T., Docket No. 19-0508 (issued September 5, 2019); K.S., Docket No. 18-0845 (issued October 26, 2018).

25 See supra note 16. 

26 R.H., Docket No. 17-1903 (issued July 5, 2018); J.W., Docket No. 15-0020 (issued August 17, 2016); Harold 

Travis, supra note 17.
9

ORDER

IT IS HEREBY ORDERED THAT the May 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: July 30, 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