United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

G.B., Appellant

and

DEPARTMENT OF THE TREASURY, 

INTERNAL REVENUE SERVICE, 

New York, NY, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 19-1510

Issued: February 12, 2020

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 8, 2019 appellant, through counsel, filed a timely appeal from a May 7, 2019 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.

 

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 knee injury 

causally related to the accepted factors of her federal employment.

FACTUAL HISTORY

On November 24, 2015 appellant, then a 55-year-old management/program assistant, filed 

an occupational disease claim (Form CA-2) alleging that she sustained a meniscus tear of her left 

knee due to receiving, packing, and shipping boxes/cases to the service center while in the 

performance of duty.3 She indicated that she first became aware of her claimed injury on April 14, 

2015 and first realized its relation to factors of her federal employment on November 18, 2015. 

Beginning in May 2015, appellant periodically stopped work to seek medical care for her left knee 

condition.

4

In an accompanying statement, appellant indicated that, beginning in October 2000, she 

handled boxes for two to four hours at a time at least three times per week. She advised that these 

boxes weighed approximately 10 to 25 pounds and that handling the boxes required bending, 

stooping, lifting boxes, and carrying boxes 10 to 15 feet.

5

Appellant submitted a November 18, 2015 report from Dr. Marc M. Levison, Boardcertified in physical medicine and rehabilitation, who indicated that appellant presented with the 

primary complaint of pain in the left lateral and left posterior areas of her left knee.6 Dr. Levison

noted that physical examination of the left knee revealed swelling, medial joint tenderness, and a 

positive McMurray test. He diagnosed internal derangement of the left knee and referred appellant 

for evaluation by an orthopedic specialist. In an attending physician’s report (Form CA-20), 

Dr. Levison listed the date of injury as April 14, 2015 and diagnosed internal derangement of the 

left knee due to the employment activity.

The findings of a November 9, 2015 magnetic resonance imaging (MRI) scan of 

appellant’s left knee contained an impression of “high probability of tear of the posterior horn of 

the medial meniscus.”

In a January 15, 2016 development letter, OWCP requested that appellant submit 

additional factual and medical evidence in support of her claim. On January 15, 2016 it also 

 

3 A position description of the management/program assistant position indicates that it required intermittent 

standing, walking, bending/stooping, twisting, simple grasping, pushing/pulling/lifting, and reaching above the 

shoulder.

4

In 2005 appellant suffered a nonwork-related anterior cruciate ligament tear of her left knee which improved 

without surgical intervention.

5 Appellant indicated that she had some right knee pain, but she did not associate a specific right knee condition 

with employment factors.

6

In a March 31, 2015 report, Dr. Levison noted that appellant complained of pain and swelling in both knees. 

Appellant submitted additional reports of Dr. Levison which showed that, by late-2015, she was primarily complaining 

of symptoms in her left knee. 
3

requested additional evidence from the employing establishment. OWCP afforded appellant 30 

days to submit the requested information.

In a January 28, 2016 e-mail, appellant’s immediate supervisor indicated that he did not 

dispute appellant’s description of her job duties since June 2013 when he became her supervisor. 

He indicated that he did not have knowledge of her job duties prior to that time. 

Appellant submitted additional medical evidence, including a December 29, 2015 report 

from Dr. Darren J. Friedman, a Board-certified orthopedic surgeon, who discussed his 

performance on that date of left knee surgery, including arthroscopic lysis of adhesions, partial 

medial meniscectomy, and chondroplasty/debridement of the patellofemoral compartment. The 

surgery was not authorized by OWCP. In a January 6, 2016 report, Dr. Freidman discussed the 

follow-up care appellant received after her December 29, 2015 surgery.

By decision dated February 26, 2016, OWCP accepted that appellant had established 

employment factors in the form of bending, stooping, twisting, and packing, lifting, and carrying 

boxes. However, it denied her claim, finding that she had not submitted sufficient medical 

evidence to establish a medical condition causally related to the accepted factors of her federal 

employment. OWCP concluded, therefore, that appellant had not met the requirements to establish 

“an injury and/or medical condition causally related to the accepted work event(s).”

On March 9, 2016 appellant, through counsel, requested a hearing with a representative of 

OWCP’s Branch of Hearings and Review. 

Appellant submitted a statement in which she provided additional details about her work 

activities and indicated that the pain in her left knee was constant. She also submitted physical 

therapy reports and additional medical reports from early-2016, including a February 12, 2016 

addendum that Dr. Levison made to his November 18, 2015 report. Dr. Levison indicated that 

appellant reported that her job required her to constantly bend and handle heavy boxes over the 

past 13 years. Appellant advised that she had to pack boxes, lift boxes in and out of mails carts, 

and push mail carts filled with packed boxes. Dr. Levison noted that, in particular, appellant 

reported increased left knee discomfort due to shipping boxes between November 2014 and 

February 2015 and in September 2015. He advised that a November 9, 2015 MRI scan of 

appellant’s left knee showed a tear of the posterior horn of the medial meniscus and indicated, “As 

there is no other history of injury or trauma to the left knee and the patient did not develop 

discomfort until she performed the activities mentioned above, the injury to the left knee is causally 

related to her duties as described.”

Prior to a hearing being held, OWCP’s hearing representative conducted a preliminary 

review and issued a September 20, 2016 decision which set aside the February 26, 2016 decision. 

She found that Dr. Levison’s February 12, 2016 addendum report necessitated further development 

of the medical evidence and remanded the case to OWCP for referral of appellant for a second 

opinion examination and opinion regarding whether she sustained an employment-related knee

condition.

On remand OWCP referred appellant and the case record to Dr. Mark Berman, a Boardcertified orthopedic surgeon, for a second opinion examination and opinion regarding whether she 

sustained an employment-related knee condition.
4

In an October 24, 2016 report, Dr. Berman reported his physical examination findings and 

noted that appellant complained of bilateral knee pain and that she had osteoarthritis in both knees. 

He indicated that she did not describe a twisting injury to either knee and he posited that her 

bilateral knee condition was not related to her employment activities. Dr. Berman advised that 

appellant could perform her date-of-injury job on a full-time basis.

By decision dated January 11, 2017, OWCP determined that appellant had not met her 

burden of proof to establish a knee injury causally related to the accepted factors of her federal 

employment. It found that the weight of the medical evidence with respect to this matter rested 

with the opinion of Dr. Berman.

On January 18, 2017 appellant, through counsel, requested a telephonic hearing with 

OWCP’s hearing representative. During the hearing held on June 28, 2017, counsel argued that

Dr. Berman’s October 24, 2016 report did not contain adequate medical rationale in support of its 

conclusions.

By decision dated August 1, 2017, OWCP’s hearing representative set aside the 

January 11, 2017 decision due to her determination that there was an unresolved conflict in the 

medical opinion evidence between Dr. Levison and Dr. Berman regarding whether appellant had 

an employment-related knee condition. She remanded the case to OWCP for referral of appellant 

and the case record to an impartial medical specialist for an examination and opinion on the matter.

On remand OWCP referred appellant and the case record, including an August 9, 2017 

statement of accepted facts (SOAF), to Dr. Alan M. Crystal, a Board-certified orthopedic surgeon, 

for an impartial medical examination and opinion regarding whether she sustained an employmentrelated knee condition. 

In a September 13, 2017 report, Dr. Crystal discussed appellant’s factual and medical 

history and reported his findings upon physical examination. He indicated that she exhibited 

normal range of motion of both knees and that there was no tenderness to palpation in either knee. 

Dr. Crystal opined that there was no explanation to link causation between appellant’s diagnosed 

knee conditions (arthritis and torn meniscus) and her work duties. He indicated that she had a 

complex tear of the medial meniscus of the left knee and advised that a complex tear pattern (torn 

in multiple directions) of a meniscus occurred with long-term degeneration. Dr. Crystal posited 

that all the physical requirements listed in the SOAF would not have any twisting motion that 

could cause a torn meniscus. He noted that appellant also had left knee patella chondral 

degenerative changes and indicated that this was an area where arthritic articular surface 

degeneration could first occur. Dr. Crystal advised that, because the diagnostic testing did not 

show evidence of patellar tendinitis, the work duties described in the SOAF could not be causally 

linked to a knee pathology. He asserted that there were no objective findings of employmentrelated aggravation of preexisting knee arthritis or a “degenerating tearing meniscus.” Dr. Crystal 

posited that degenerative arthritis had a direct relationship to obesity and noted that appellant had 

been treated for obesity, including treatment through gastric bypass surgery. He advised that 

obesity could not only be a causative factor in degenerative knee arthritis, but also “potentiates the 

arthritis once the degeneration has commenced.” Dr. Crystal maintained that appellant could 

perform her date-of-injury job, noting that she had only minor patellar degeneration. In an attached 

September 28, 2017 work capacity evaluation form (Form OWCP-5c), he noted that appellant did 

not have work restrictions.
5

By decision dated November 9, 2017, OWCP determined that appellant had not met her 

burden of proof to establish a knee injury causally related to the accepted factors of her federal 

employment. It found that the special weight of the medical opinion evidence rested with the 

September 13, 2017 report of Dr. Crystal, the impartial medical specialist.

On November 17, 2017 appellant, through counsel, requested a telephonic hearing with 

OWCP’s hearing representative. During the hearing held on April 13, 2018 counsel argued that

Dr. Crystal’s opinion was not well rationalized.

By decision dated June 20, 2018, OWCP’s hearing representative set aside the 

November 9, 2017 decision due to her determination that Dr. Crystal did not provide adequate 

medical rationale in support of his opinion that appellant did not have an employment-related knee 

condition. She remanded the case to OWCP in order to request a supplemental report from

Dr. Crystal which would provide further explanation regarding the question of whether appellant 

had an employment-related knee condition. OWCP provided Dr. Crystal with an updated SOAF, 

dated July 19, 2018, which provided additional details regarding appellant’s work duties.

In an August 20, 2018 supplemental report, Dr. Crystal indicated that he had reviewed the 

July 19, 2018 SOAF and advised that it remained his opinion that appellant’s knee conditions were 

not caused or contributed to by the accepted employment exposures. He indicated that the 

additional tasks described in the July 19, 2018 SOAF had not changed his previous opinion and 

noted that “a realistic traumatic mechanism causing significant knee arthritis is not caused by 

carrying 10 [to] 25 pounds, by repetitive bending, repetitive stooping, or any of the tasks listed in 

the revised SOAF.” Dr. Crystal posited that a realistic causative factor for knee arthritis was 

obesity, which for appellant had been treated. He indicated that a realistic mechanism causing torn 

menisci was not carrying 10 [to] 25 pounds or any of the other tasks listed in the revised SOAF, 

but rather a realistic factor causing torn menisci was knee arthritis.

By decision dated September 12, 2018, OWCP determined that appellant had not met her 

burden of proof to establish a knee injury causally related to the accepted factors of her federal 

employment. It found that the special weight of the medical opinion evidence rested with the 

September 13, 2017 and August 20, 2018 reports of the Dr. Crystal.

On September 19, 2018 appellant, through counsel, requested a telephonic hearing with 

OWCP’s hearing representative. During the hearing held on February 15, 2019, counsel argued 

that Dr. Crystal did not provide sufficient medical rationale for his opinion on causal relationship 

in his August 20, 2018 supplemental report.

By decision dated May 7, 2019, OWCP’s hearing representative affirmed the 

September 12, 2018 decision, finding that the special weight of the medical opinion evidence 

rested with the reports of Dr. Crystal.

LEGAL PRECEDENT

An employee seeking benefits under FECA7 has the burden of proof to establish the 

essential elements of his or her claim by the weight of the reliable, probative, and substantial 

 

7 Supra note 2.
6

evidence, 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, that 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.8 These are the essential elements of every compensation claim regardless of whether the 

claim is predicated upon a traumatic injury or an occupational disease.9

To establish that an injury was sustained in the performance of duty in an occupational 

disease claim, a claimant must submit the following: (1) a factual statement identifying 

employment factors alleged to have caused or contributed to the presence or occurrence of the 

disease or condition; (2) medical evidence establishing the presence or existence of the disease or 

condition for which compensation is claimed; and (3) medical evidence establishing that the

diagnosed condition is causally related to the identified employment factors.10

Causal relationship is a medical question that requires rationalized medical opinion 

evidence to resolve the issue.11 A physician’s opinion on whether there is causal relationship 

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

complete factual and medical background.12 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 factors.13

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.”

14

 In situations where 

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.15

 

8 K.V., Docket No. 18-0947 (issued March 4, 2019); M.E., Docket No. 18-1135 (issued January 4, 2019); Kathryn 

Haggerty, 45 ECAB 383, 388 (1994).

9 K.V. and M.E., id.; Elaine Pendleton, 40 ECAB 1143 (1989).

10 R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. 

Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).

11 T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

12 M.V., Docket No. 18-0884 (issued December 28, 2018).

13 Id.; Victor J. Woodhams, supra note 10.

14 5 U.S.C. § 8123(a).

15 D.M., Docket No. 18-0746 (issued November 26, 2018); R.H., 59 ECAB 382 (2008); James P. Roberts, 31 ECAB 

1010 (1980).
7

ANALYSIS

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

OWCP properly determined that there was a conflict in the medical opinion evidence 

between Dr. Levison, an attending physician, and Dr. Berman, an OWCP referral physician, on 

the issue of whether appellant sustained a knee injury causally related to the accepted factors of 

her federal employment. In order to resolve the conflict, it properly referred appellant, pursuant 

to 5 U.S.C. § 8123(a), to Dr. Crystal for an impartial medical examination and an opinion on the 

matter.

In a situation where OWCP secures an opinion from an impartial medical examiner for the 

purpose of resolving a conflict in the medical evidence and the opinion from such examiner 

requires clarification or elaboration, it has the responsibility to secure a supplemental report from 

the examiner for the purpose of correcting the defect in the original opinion.16 If a given impartial 

medical specialist is unable to clarify or elaborate on his or her original report or if his or her 

supplemental report is also vague, speculative, or lacking in rationale, it must submit the case record 

and a detailed SOAF to a second impartial specialist for the purpose of obtaining his or her 

rationalized medical opinion on the issue.17

In a September 13, 2017 report, Dr. Crystal opined that there was no explanation to link 

causation between appellant’s diagnosed knee conditions (arthritis and torn meniscus) and her 

work duties. He indicated that she had a complex tear of the medial meniscus of the left knee and 

advised that a complex tear pattern of a meniscus occurred with long-term degeneration. 

Dr. Crystal asserted that there were no objective findings of employment-related aggravation of 

preexisting knee arthritis or a “degenerating tearing meniscus.” He posited that degenerative 

arthritis has a direct relationship to obesity and noted that appellant had been treated for obesity.

Dr. Crystal further advised that obesity could not only be a causative factor in degenerative knee 

arthritis, but also “potentiates the arthritis once the degeneration has commenced.” In an 

August 20, 2018 supplemental report, he indicated that he had reviewed an updated SOAF and 

advised that it remained his opinion that appellant’s knee conditions were not caused or contributed

to by the accepted employment exposures. Dr. Crystal indicated that the additional tasks described 

in the updated SOAF had not changed his previous opinion and noted that “a realistic traumatic 

mechanism causing significant knee arthritis is not caused by carrying 10 [to] 25 pounds, by 

repetitive bending, repetitive stooping, or any of the tasks listed in the revised SOAF.” 

In both his September 13, 2017 report and his August 20, 2018 supplemental report,

Dr. Crystal provided an opinion that appellant’s accepted work duties, including bending, 

stooping, lifting boxes, and carrying boxes, did not cause a knee condition or aggravate a 

preexisting knee condition. The Board notes that Dr. Crystal’s opinion in this regard was 

essentially conclusory in nature and was not adequately supported by explanatory medical 

rationale. For this reason, the September 13, 2017 report of Dr. Crystal and his August 20, 2018 

supplemental report did not sufficiently address the underlying issue of the present case. 

Therefore, in order to resolve the conflict in the medical opinion evidence, the case will be 

 

16 S.R., Docket No. 17-1118 (issued April 5, 2018); Nancy Lackner (Jack D. Lackner), 40 ECAB 232, 238 (1988).

17 M.D., Docket No. 19-0510 (issued August 6, 2019); Harold Travis, 30 ECAB 1071, 1078 (1979).
8

remanded to OWCP for referral of the case record (including a SOAF) and appellant to a new 

impartial medical specialist for examination and an opinion which evaluates whether she sustained 

a knee condition causally related to the accepted factors of her federal employment.18 After such 

further development as OWCP deems necessary, a de novo decision shall be issued.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the May 7, 2019 decision of the Office of Workers’

Compensation Programs is set aside, and the case is remanded to OWCP for further proceedings 

consistent with this decision of the Board.

Issued: February 12, 2020

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

18 See supra note 17.