United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.S., Appellant

and

DEPARTMENT OF TRANSPORTATION, 

FEDERAL AVIATION ADMINISTRATION, 

Washington, DC, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 22-0113

Issued: June 7, 2022

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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 1, 2021 appellant, through counsel, filed a timely appeal from a 

September 20, 2021 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.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 20, 2021 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 abused its discretion by denying authorization for right knee 

arthroscopy.

FACTUAL HISTORY

On April 4, 2018 appellant, then a 41-year-old electronics systems technician, filed a 

traumatic injury claim (Form CA-1) alleging that on April 2, 2018 she sustained multiple injuries 

to her neck, back, head, hips, legs, arms, and hands when she was in a motor vehicle accident while 

in the performance of duty. She stopped work on the date of injury and returned in a light-duty 

capacity beginning February 3, 2020. OWCP initially accepted the claim for concussion without 

loss of consciousness and sprain of ligaments of the cervical spine. It later expanded the 

acceptance of the claim to include post-concussion syndrome, displaced closed fracture of the fifth 

cervical vertebra, right-sided lumbago with sciatica, bilateral sprains of the medial collateral 

ligaments of the knees, recurrent severe major depressive disorder, and adjustment disorder with 

anxiety.

An x-ray of appellant’s knees obtained on April 16, 2020 demonstrated no acute osseous 

abnormality and mild degenerative changes of the knees.

In a medical authorization request form dated July 9, 2020, appellant requested OWCP’s

authorization for bilateral knee arthroscopy.

In a development letter dated November 25, 2020, OWCP informed appellant that the 

evidence of record was insufficient to establish that the proposed procedure was necessary to treat 

the effects of her accepted employment-related conditions. It requested that she provide a narrative 

explanation from her physician explaining why the procedure was medically necessary, including 

an explanation as to how it was causally related to the accepted traumatic event.

In a November 11, 2020 report, Dr. Thomas Matelic, a Board-certified orthopedic surgeon, 

examined appellant for complaints of bilateral knee symptoms. He reviewed her history of injury, 

physical findings on examination, and diagnostic studies. Dr. Matelic diagnosed aggravation or 

causation of underlying patellofemoral arthrosis; medial compartment arthrosis of the bilateral 

knees, left worse than right and bilateral meniscal tears. He recommended arthroscopic evaluation 

and partial meniscectomy. Dr. Matelic scheduled a right knee arthroscopy with meniscectomy, 

noting that this would not address all of her symptoms related to underlying arthritis, and that her 

left knee may eventually require total knee arthroplasty.

Magnetic resonance imaging (MRI) scans of the knees obtained on October 12, 2020 

indicated, on the left, tricompartmental osteoarthrosis with mild-to-moderate cartilage 

abnormalities and subchondral signal changes in the medial and patellofemoral compartments, and 

intrasubstance signal abnormalities in the medial and lateral menisci meeting criteria for tear in 

the anterior horn of the lateral meniscus with a low probability in the posterior horn of the medial 

meniscus; and on the right, a medial meniscal body tear and moderate tricompartmental 

degenerative changes with full-thickness cartilage loss and associated subchondral signal changes 

in the lateral patellar facet as well as high-grade cartilage thinning in the medial compartment.
3

In a letter dated January 11, 2021,Dr. Madiha Farhat, a Board-certified family practitioner, 

noted that appellant had been seen in her office for bilateral knee pain, which had been an ongoing 

issue since her April 2, 2018 employment injury. She reviewed the MRI scans of October 12, 

2020 and opined that appellant required right meniscal surgery and may require replacement in the 

future, while the left had too much damage for arthroscopy and would require a replacement in the 

future. Dr. Farhat opined that appellant’s meniscal tears were due to the April 2, 2018 employment 

injury. 

On February 26, 2021 OWCP requested that Dr. Todd Fellars, a Board-certified orthopedic 

surgeon acting as OWCP’s district medical adviser (DMA), review the medical record and a 

statement of accepted facts (SOAF) and advise as to whether the medica l evidence of record 

supported appellant’s request for authorization for a right knee arthroscopy.

In a memorandum dated March 12, 2021, the DMA reviewed the medical record and 

SOAF. He stated that while the requested right knee surgery was due to appellant’s meniscal tear, 

meniscal tear was not an accepted condition in this case. The DMA further noted that appellant 

had tricompartmental degenerative changes and that the symptoms of her meniscal condition were

likely associated with her arthritis versus the accepted work injury. He opined that the right knee 

arthroscopy was not medically necessary to treat her condition, given that her symptoms were 

inconsistent with meniscal tear, but consistent with knee osteoarthritis. The DMA disagreed with

Dr. Farhat’s opinion on surgery, explaining that it was not likely to improve appellant’s pain or 

function and that knee arthroscopy was not a recommended treatment for individuals with 

symptomatic knee arthritis. 

By decision dated April 12, 2021, OWCP denied appellant’s request for authorization for 

right knee arthroscopy. It found that the medical evidence of record was insufficient to establish 

that the procedure was medically necessary to treat the effects of her accepted work -related 

conditions.

On April 19, 2021 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. The hearing was held on July 8, 2021. 

By decision dated September 20, 2021, OWCP’s hearing representative affirmed the 

April 12, 2021 decision.

LEGAL PRECEDENT

Section 8103 of FECA4 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 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 monthly compensation. 5 

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 

4

Supra note 2 at § 8103.

5

Id., see also N.G., Docket No. 18-1340 (issued March 6, 2019).
4

reasonableness.6 OWCP has administrative discretion in choosing the means to achieve this goal 

and the only limitation on OWCP’s authority is that of reasonableness.7

Abuse of discretion is generally 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.8

While OWCP is obligated to pay for treatment of employment-related conditions, appellant 

has the burden of proof to establish that the expenditure is incurred for treatment of the effects of 

an employment-related injury or condition.9 Proof of causal relationship in a case such as this 

must include supporting rationalized medical evidence.10 In order to prove that the procedure is 

warranted, appellant must establish that the procedure was for a condition causally related to the 

employment injury and that the procedure was medically warranted. Both of these criteria must 

be met in order for OWCP to authorize payment.11

ANALYSIS

The Board finds that OWCP has not abused its discretion in denying appellant’s request 

for right knee arthroscopy.

In a November 11, 2020 report, Dr. Matelic diagnosed aggravation or causation of 

underlying patellofemoral arthrosis; medial compartment arthrosis of the bilateral knees, left worse 

than right; and bilateral meniscal tears. He recommended arthroscopic evaluation and partial 

meniscectomy. In a letter dated January 11, 2021, Dr. Farhat noted that appellant had been seen 

in her office for bilateral knee pain, which had been an ongoing issue since her April 2, 2018 

employment injury. She reviewed the MRI scans of October 12, 2020 and opined that appellant 

required right meniscal surgery and may require replacement in the future. Dr. Farhat opined that 

appellant’s meniscal tears were due to the employment injury of April 2, 2018. However, neither

Dr. Matelic nor Dr. Farhat explained why the requested surgery was necessary to treat appellant’s 

accepted conditions, as right knee meniscal tear is not an accepted condition in this case.

12

 

By contrast, in a memorandum dated March 12, 2021, the DMA reviewed the medical 

record and SOAF. He stated that, while the requested surgery was for treatment of appellant’s 

meniscal tear, OWCP had not accepted meniscal tear as an employment-related condition in this 

6 D.W., Docket No. 19-0402 (issued November 13, 2019); see also Daniel J. Perea, 42 ECAB 214, 221 (1990) 

(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).

7

J.E., Docket No. 18-0228 (issued August8, 2019); Daniel J. Perea, id.

8 E.L., Docket No. 17-1445 (issued December 18, 2018); L.W., 59 ECAB 471 (2008); P.P., 58 ECAB 673 (2007).

9

See R.M., Docket No. 19-1319 (issued December 10, 2019); DebraS. King, 44 ECAB 203, 209 (1992); ZaneH. 

Cassell, 32 ECAB 1537 (1981).

10 Id.; see also K.W., Docket No. 18-1523 (issued May 22, 2019); BerthaL. Arnold, 38 ECAB 282 (1986).

11 See T.A., Docket No. 19-1030 (issued November 22, 2019); Cathy B. Millin, 51 ECAB 331, 333 (2000).

12 Supra note 9. 
5

case. The DMA further noted that appellant had tricompartmental degenerative changes and that

the symptoms of her meniscal condition were likely associated with her arthritis versus the 

accepted work injury. He opined that the right knee arthroscopy was not medically necessary to 

treat her accepted conditions, given that her symptoms were inconsistent with meniscal tear, but 

consistent with knee osteoarthritis. The DMA disagreed with Dr. Farhat’s opinion, explaining that 

the requested surgery was not likely to improve appellant’s pain or function and that knee 

arthroscopy was not a recommended treatment for individuals with symptomatic knee arthritis. 

As he provided a well-reasoned opinion explaining that appellant had not met the criteria for the 

proposed right knee arthroscopy, the DMA’s opinion represents the weight of the medical 

evidence.13 As such, the Board finds that OWCP did not abuse its discretion in denying 

authorization for the proposed right knee arthroscopy.14

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 did not abuse its discretion by denying authorization for right 

knee arthroscopy.

13 See A.S., Docket No. 19-0745 (issued October 10, 2019); M.M., Docket No. 19-0491 (issued August 14, 2019); 

N.M., Docket No. 18-1584 (issued March 15, 2019).

14 See supra note 6.
6

ORDER

IT IS HEREBY ORDERED THAT the September 20, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: June 7, 2022

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board