United States Department of Labor

Employees’ Compensation Appeals Board

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F.R., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Chicago, IL, Employer

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Docket No. 21-0065

Issued: February 4, 2022

Appearances: Case Submitted on the Record

Stephanie Leet, Esq., for the appellant1

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

On October 21, 2020 appellant, through counsel, filed a timely appeal from a

September 30, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). 

The Clerk of the Appellate Boards assigned Docket No. 21-0065. 

On January 9, 2015 appellant, then a 52-year-old carrier technician, filed a traumatic injury 

claim (Form CA-1) alleging that on January 8, 2015 he injured his left knee when he slipped and 

fell on ice that was covered with snow while in the performance of duty. OWCP assigned OWCP 

File No. xxxxxx947 and accepted his claim for left leg contusion, meniscus derangement, and 

permanent aggravation of degenerative left knee arthritis.

Under OWCP File No. xxxxxx952, OWCP previously accepted that on February 22, 2010 

appellant sustained a traumatic injury, which caused left knee sprain, sprain of left knee cruciate 

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

ligament tear and a left knee medial meniscus tear. On April 29, 2010 he underwent an 

arthroscopy, partial medial meniscectomy, chondral shaving of the left knee. 

On February 26, 2015 appellant underwent a right knee arthroscopy and a partial 

meniscectomy with chondral shaving, which was performed by Dr. Eugene J. Bartucci, a Boardcertified orthopedic surgeon. Dr. Bartucci subsequently requested that appellant’s case be 

expanded to include the acceptance of a meniscus tear of the right knee as his right knee gave out 

due to favoring of his work-related left knee condition.2

In a July 6, 2015 report, Dr. David H. Garelick, a Board-certified orthopedic surgeon 

serving as an OWCP district medical adviser (DMA), reviewed appellant’s medical record, which 

included February 20, 2015 diagnostic testing evidence of a right degenerative meniscal tear and 

other degenerative changes. He opined that appellant’s right knee condition was degenerative in 

nature and not consequential to his left knee condition. The DMA further found no evidence of 

an aggravation of appellant’s preexisting degenerative right knee condition.

On November 2, 2015 OWCP determined that a conflict in the medical opinion evidence 

existed between Dr. Bartucci and the DMA regarding whether appellant sustained a right knee 

consequential injury as a consequence of his January 8, 2015 employment injury. It referred 

appellant for an impartial medical examination in order to resolve the conflict of medical opinion. 

In a December 6, 2015 medical report, Dr. Kevin Walsh, a Board-certified orthopedic 

surgeon serving as an impartial medical examiner (IME), noted his review of an August 5, 2015 

statement of accepted facts (SOAF)

3 and the medical record, and set forth his December 3, 2015 

physical examination findings of appellant’s lower extremities. He diagnosed bilateral knee 

osteoarthritis. Dr. Walsh opined that the right knee meniscus tear was degenerative, not posttraumatic, in nature and did not result from or was aggravated by the left knee work-related injury 

or from overuse of the accepted left knee conditions.

On January 7, 2016 appellant underwent an OWCP approved left total knee replacement, 

performed by Dr. Bartucci. OWCP updated the SOAF on February 2, 2016.

4

By decision dated March 31, 2016, OWCP denied expansion of the acceptance of 

appellant’s claim to include a consequential right knee degenerative meniscal tear with surgery or 

right knee osteoarthritis. It found that the special weight of the medical evidence rested with the 

December 6, 2015 report of Dr. Walsh, the IME.

2 On March 20, 2015 appellant filed an occupational disease claim alleging that on January 8, 2015 he injured his 

left knee and consequently he favored his right knee, which caused a tear of the right meniscus. OWCP assigned that 

claim OWCP File No. xxxxxx065. It suspended development of that claim on May 5, 2015. 

3 The SOAF noted only contusion of the left leg and permanent aggravation of degenerative left knee arthritis as 

the accepted conditions. The SOAF did not reference any of appellant’s other claims.

4 The updated SOAF noted appellant’s left kneeaccepted conditions under OWCP File No. xxxxxx952 and his left 

total knee replacement on January 7, 2016. 
3

On April 20, 2016 appellant requested a telephonic hearing before a representative of 

OWCP’s Branch of Hearings and Review. A hearing was held on November 9, 2016. By decision 

dated December 20, 2016, the hearing representative affirmed OWCP’s March 31, 2016 decision. 

Appellant, through counsel, submitted additional requests for reconsideration. By 

decisions dated March 23, 2018, August 1, 2019 and September 30, 2020, OWCP denied 

modification.5

The Board, having duly considered this matter, finds that this case is not in posture for 

decision.

OWCP’s procedures provide that cases should be administratively combined when correct 

adjudication of the issues depends on frequent cross-referencing between files.6 For example, if a 

new injury case is reported for an employee who previously filed an injury claim for a similar 

condition or the same part of the body, doubling is required. 7 Herein, appellant has additional

accepted claims for bilateral knee conditions under OWCP File Nos. xxxxxx065, xxxxxx952 and 

xxxxxx954. The evidence pertaining to those other files, however, was not part of the case record 

at the time of OWCP’s September 30, 2020 merit decision. Therefore, for a full and fair 

adjudication, the case must be returned to OWCP to administratively combine the current case 

record with OWCP File Nos. xxxxxx065, xxxxxx952 and xxxxxx954. OWCP shall then prepare

a new SOAF which includes a complete history of appellant’s other accepted claims for knee 

injuries and then refer appellant and the case record to another IME to resolve the conflict in 

medical opinion. Following this and other such further development as deemed necessary, itshall 

issue a de novo decision. 

5 On August 24, 2019 appellant filed a traumatic injury claim alleging that he injured his left knee and left toe while 

ascending stairs in the performance of duty. OWCP assigned this claim OWCP File No. xxxxxx954 and accepted this 

claim for left knee effusion, left knee derangement, and left knee sprain. 

6

See Federal (FECA) Procedure Manual, Part 2 --Claims, File Maintenance and Management, Chapter 2.400.8(c) 

(February2000).

7

Id.; D.C., Docket No. 19-0100 (issued June3, 2019); N.M., Docket No. 18-0833 (issued April18, 2019); K.T., 

Docket No. 17-0432 (issued August17, 2018)
4

IT IS HEREBY ORDERED THAT the September 30, 2020 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case is remanded for further proceedings 

consistent with this order of the Board. 

Issued: February 4, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board