United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.K., Appellant

and

U.S. POSTAL SERVICE, ROUND LAKE POST 

OFFICE, Round Lake, IL, Employer

__________________________________________

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Docket No. 22-1213

Issued: April 27, 2023

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On August 22, 2022 appellant, through counsel, filed a timely appeal from a July 22, 

2022 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.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 issuance of the July 22, 2022 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 OWCP properly denied appellant’s request for authorization of 

additional right knee surgery.

FACTUAL HISTORY

On November 4, 2014 appellant, then a 27-year-old rural carrier associate, filed a 

traumatic injury claim (Form CA-1) alleging that, on that date, her right knee popped when she 

picked up a bag of mail to put onto a cart while in the performance of duty. She stopped work on 

the date of injury and returned to full-time, full-duty work on December 1, 2014. OWCP 

accepted appellant’s claim for right knee and leg sprain. It subsequently expanded the 

acceptance of the claim to include right derangement of the meniscus and right prepatellar 

bursitis. On December 6, 2014 appellant reinjured her right knee while walking up a hill to 

deliver mail. She stopped work again and returned to part-time, limited-duty work effective

December 20, 2014. Appellant stopped work again on March 7, 2015. On March 10, 2015 she 

underwent OWCP-authorized diagnostic arthroscopy of the right knee with excision of the 

prepatellar bursa, which was performed by Dr. Jonathan D. Main, an attending Board-certified 

orthopedic surgeon. Thereafter, appellant had intermittent periods of disability. On 

December 22, 2015 and August 21, 2018 she underwent repeat OWCP-authorized right knee 

prepatellar bursectomies which were performed by Dr. Main. OWCP paid appellant wage-loss 

compensation for intermittent periods of temporary total disability on the supplemental rolls, 

effective January 12, 2015. 

In an April 5, 2021 report, Dr. Main noted that appellant presented for a follow-up 

examination regarding her right knee prepatellar bursectomy. He related a history that she had 

undergone a number of procedures for her accepted condition of prepatellar bursitis, which 

appeared to be recalcitrant to bursectomy. Dr. Main discussed his findings on physical 

examination, and provided an impression of status post prepatellar bursectomies with a painful 

floating mass that was likely lipomatous versus scar tissue. He recommended an additional right 

knee prepatellar bursectomy, although he noted that there was no guarantee the procedure would 

resolve appellant’s condition.

On May 14, 2021 OWCP routed Dr. Main’s April 5, 2021 report, a statement of accepted 

facts (SOAF), and the case record, to Dr. Eric M. Orenstein, a Board-certified orthopedic 

surgeon serving as an OWCP district medical adviser (DMA), for review and determination as to 

whether the proposed right knee surgery was medically necessary.

In a May 25, 2021 report, Dr. Orenstein noted that he had reviewed the SOAF and 

medical record, including Dr. Main’s April 5, 2021 report. Based on his review of the medical 

record, the DMA opined that the proposed prepatellar bursectomy of the right knee was not 

medically necessary. He explained that appellant had previously undergone three unsuccessful 

prepatellar bursectomies on her right knee. The DMA noted that there was no clinical evidence 

on examination or on diagnostic imaging of recurrent or chronic prepatellar bursitis. He further 

noted that other examining physicians of record found that appellant’s subjective pain complaints

did not correlate with the objective findings. The DMA noted that there were hypotheses of 
3

possible neuroma of the saphenous nerve or secondary gain. He concluded that the proposed 

right knee procedure should not be approved. 

Dr. Main, in a May 24, 2021 report, advised that appellant’s recurrent right knee 

prepatellar bursal inflammation or scarring, and resultant need to undergo an additional 

prepatellar bursectomy were due to her accepted November 4, 2014 employment injury.

On June 24, 2021 OWCP requested that Dr. Orenstein provide an addendum, clarifying

his report.

In a June 28, 2021 report, Dr. Michael M. Katz,4a Board-certified orthopedic surgeon 

serving as an OWCP DMA, reviewed the SOAF and medical record. He recommended a second 

opinion examination based on the concerns raised by Dr. Orenstein. 

On July 27, 2021 appellant underwent recurrent prepatellar bursectomy and cicatrix 

revision. The surgery was performed by Dr. Main. 

Also, on even date, OWCP referred appellant, along with a SOAF, the case record, and a 

series of questions, to Dr. Mysore S. Shivaram, a Board-certified internist, for a second opinion

evaluation to determine whether the proposed right knee surgery was medically necessary and 

causally related to appellant’s accepted conditions. 

In an August 16, 2021 report, Dr. Shivaram noted his review of the SOAF and medical 

record. He also noted appellant’s chief complaints of tenderness, pain after standing for a long 

period of time, inability to kneel or squat due to severe pain in the knee, and an exacerbation of 

her symptoms with movements. Appellant rated her pain as 7 out of 10. Dr. Shivaram reported 

that his physical examination of the right knee was unremarkable except for mild tenderness 

around the midline scar along the anterior aspect of the knee with limited range of motion. He 

provided a final diagnosis of status post excision of the prepatellar bursa of the right knee with 

satisfactory recovery. Dr. Shivaram opined that appellant’s accepted conditions of sprain, 

derangement of the meniscus, and prepatellar bursitis of the right knee had resolved. He 

explained that his review of the medical record revealed no evidence of derangement of the 

meniscus. Dr. Shivaram further explained that a right knee magnetic resonance imaging scan

and arthroscopic evaluation of the right knee were normal. There was also no evidence of 

residuals of the accepted right knee sprain. Dr. Shivaram determined that maximum medical 

improvement was reached on March 22, 2016 the date of an examination by a prior physician. 

He advised that appellant could return to regular-duty work with no restrictions. Dr. Shivaram 

noted that the proposed surgery was performed three weeks ago, prior to his examination of 

appellant. He advised that it was unusual that prepatellar bursitis recurred following excision of 

the bursa. Dr. Shivaram indicated that the condition may be related to preexisting lupus. He 

further indicated that no pathological results were available for review. Therefore, Dr. Shivaram 

concluded that the recently performed right knee surgical procedure was unrelated to appellant’s 

accepted conditions. He provided a work capacity evaluation (Form OWCP-5c).

4

In his June 28, 2021 report, Dr. Katz noted that Dr. Orenstein was unavailable to review Dr. Main’s May 24, 

2021 report. 
4

By decision dated September 17, 2021, OWCP denied appellant’s request for 

authorization for revision bursectomy/scar tissue removal of the right knee based on the 

August 16, 2021 second opinion report of Dr. Shivaram.

On September 22, 2021 appellant, through counsel, requested a telephonic hearing before 

a representative of OWCP’s Branch of Hearings and Review. A hearing was held on 

November 4, 2021. 

By decision dated November 30, 2021, an OWCP hearing representative set aside 

OWCP’s September 17, 2021 decision. The hearing representative found that the second 

opinion report of Dr. Shivaram was of diminished probative value as he had not provided

sufficient rationale for his opinion regarding whether the proposed right knee surgery was 

medically warranted and causally related to appellant’s accepted conditions. OWCP’s hearing 

representative found that OWCP did not provide Dr. Shivaram with a complete medical record,

as pathological results were unavailable for review. Additionally, it did not provide him with a

complete and an accurate SOAF, as the SOAF did not include appellant’s work status following 

her August 21, 2018 right knee surgery or pertinent information concerning her January 21, 2020 

employment injury under OWCP File No. xxxxxx848.

5

 On remand, OWCP was instructed to 

prepare an updated SOAF and then obtain a supplemental report from Dr. Shivaram, followed by 

a de novo decision.

In a January 17, 2022 addendum report, Dr. Shivaram noted his review of the July 27, 

2021 operative report, which indicated that appellant underwent an excision of the recurrent 

prepatellar bursa and scar tissue revision. He advised that following excision of the bursa, 

another bursal sac would naturally form. However, Dr. Shivaram noted that it was extremely

unlikely that this was the source of appellant’s pain. The exact etiology of appellant’s pain was 

unclear, and the fourth surgical procedure for excision of the prepatellar bursa was unlikely to 

give her any further relief or reduce the degree or period of disability. Dr. Shivaram opined that 

the July 27, 2021 procedure was primarily performed due to appellant’s complaints of pain in the 

previous surgical site, and was unrelated to her work-related right knee condition.

By decision dated January 25, 2022, OWCP again denied appellant’s request for 

authorization for revision bursectomy/scar tissue removal of the right knee. It found that the 

weight of the medical evidence rested with the January 17, 2022 addendum report of

Dr. Shivaram. 

On February 3, 2022 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. A hearing was held on 

May 18, 2022. 

By decision dated July 22, 2022, an OWCP hearing representative affirmed the 

January 25, 2022 decision. 

5 On January 22, 2020 appellant filed a notice of traumatic injury (Form CA-1) alleging that on January 21, 2020 

she slipped on ice exiting her truck and sustained left knee, right elbow and forearm, left bicep, and back injuries. 

OWCP assigned that claim OWCP File No. xxxxxx848 and accepted the claim for left elbow contusion. 

Appellant’s claims have not been administratively combined. 
5

LEGAL PRECEDENT

Section 8103(a) of FECA6 provides that the United States shall furnish to an employee 

who is injured while in the performance of duty, the services, appliances, and supplies prescribed 

by or recommended by a qualified physician, which OWCP considers likely to cure, give relief, 

reduce the degree or the period of disability, or aid in lessening the amount of the monthly 

compensation.7 While OWCP is obligated to pay for treatment of employment-related 

conditions, the employee has the burden of proof to establish that the expenditure is incurred for 

treatment of the effects of an employment-related injury or condition.8

Section 10.310(a) of OWCP’s implementing regulations provide that an employee is 

entitled to receive all medical services, appliances, or supplies which a qualified physician 

prescribes or recommends and which OWCP considers necessary to treat the work-related 

injury.9

For a surgical procedure to be authorized, a claimant must submit evidence to show that 

the surgery is for a condition causally related to an employment injury and that it is medically 

warranted. Both criteria must be met for OWCP to authorize payment.10

In interpreting section 8103 of FECA, the Board has recognized that OWCP has broad 

discretion in approving services provided, with the only limitation on OWCP’s authority being 

that of reasonableness.11 OWCP has the general objective of ensuring that an employee recovers 

from his or her injury to the fullest extent possible, in the shortest amount of time. It therefore 

has broad administrative discretion in choosing the means to achieve this goal.12

Abuse of discretion is shown through proof of manifest error, clearly unreasonable 

exercise of judgment, or actions taken which are contrary to both logic and probable deductions 

from established facts. It is not enough to merely show that the evidence could be construed so 

as to produce a contrary factual conclusion.13

6 Supra note 2 at § 8103(a).

7

Id.; see D.S., Docket No. 18-0353 (issued May 18, 2020); L.D., 59 ECAB 648 (2008); Thomas W. Stevens, 50 

ECAB 288 (1999).

8 M.P., Docket No. 19-1557 (issued February 24, 2020); M.B., 58 ECAB 588 (2007).

9 20 C.F.R. § 10.310(a); see D.W., Docket No. 19-0402 (issued November 13, 2019).

10 See P.S., Docket No. 20-0075 (issued July 12, 2021).

11 B.I., Docket No. 18-0988 (issued March 13, 2020); see also Daniel J. Perea, 42 ECAB 214, 221 (1990) 

(holding that abuse of discretion by OWCP is generally shown through proof of manifest error, clearly unreasonable 

exercise of judgment, or administrative actions which are contrary to both logic, and probable deductions from 

established facts).

12 D.S., supra note 7.

13 Id.; P.L., Docket No. 18-0260 (issued April 14, 2020); L.W., 59 ECAB 471 (2008).
6

ANALYSIS

The Board finds that OWCP properly denied appellant’s request for authorization of 

additional right knee surgery.

In the present case, OWCP accepted that appellant sustained right knee and leg sprain 

and right derangement of the meniscus and right prepatellar bursitis. On March 10, 2015 

appellant underwent OWCP-authorized diagnostic arthroscopy of the right knee with excision of 

the prepatellar bursa. She underwent three repeat OWCP-authorized right knee prepatellar 

bursectomies. Appellant seeks authorization for the additional right knee prepatellar bursectomy

performed on July 27, 2021 by Dr. Main. She must submit, as discussed above, rationalized 

medical evidence establishing that the requested surgery was medically necessary and causally 

related to the employment injury.14

On July 27, 2021 Dr. Main performed a recurrent prepatellar bursectomy and cicatrix 

revision. However, he previously noted on April 5, 2021 that there was no guarantee that the 

surgery would resolve appellant’s accepted condition of prepatellar bursitis, because she had 

previously undergone several surgical procedures that appeared to be recalcitrant to bursectomy. 

The Board finds that Dr. Main did not support a finding that the additional right knee surgical 

procedure was medically necessary.15 

In an August 16, 2021 report, Dr. Shivaram, OWCP’s second opinion physician, noted 

his review of the SOAF and the medical record. He opined that the recurrent prepatellar 

bursectomy performed three weeks prior was not medically warranted as appellant’s accepted 

conditions of sprain, derangement of the meniscus, and prepatellar bursitis of the right knee had 

resolved, and she could return to regular-duty work with no restrictions. Additionally,

Dr. Shivaram explained that it was unusual that prepatellar bursitis recurred following excision 

of the bursa. He related that appellant’s condition may be related to preexisting lupus although 

no pathological results were available for review. In a January 17, 2022 addendum report,

Dr. Shivaram opined that the July 27, 2021 right knee surgery was primarily performed because 

of her complaints of pain in the previous surgical site and was unrelated to her work-related right 

knee condition. He maintained that a fourth surgical procedure for excision of the prepatellar 

bursa was unlikely to give appellant any further relief or reduce the degree or period of 

disability. Dr. Shivaram explained that, while another bursal sac would naturally form following 

an excision of the bursa, it was extremely unlikely that this was the source of her pain. He

related that the exact etiology of appellant’s pain was not clear. 

OWCP has discretion under 5 U.S.C. § 8103 regarding authorization of medical 

treatment. Dr. Shivaram provided a rationalized opinion relating that appellant’s accepted right 

knee condition had resolved following her prior excision of the right knee bursa and that the 

additional surgical procedure had been performed based upon her pain complaints. He also 

explained that the procedure in question was medically unnecessary as it was unlikely to provide,

14 Supra note 10.

15 Supra note 10.
7

further relief or reduce a period of disability. The Board finds that OWCP did not abuse its 

discretion in denying authorization for surgery based on the reports from Dr. Shivaram.

Appellant may submit new evidence or argument with a written request for 

reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) 

and 20 C.F.R. §§ 10.605 through 10.607.

CONCLUSION

The Board finds that OWCP properly denied appellant’s request for authorization of 

additional right knee surgery.

ORDER

IT IS HEREBY ORDERED THAT the July 22, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: April 27, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board