United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

P.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Cherry Hill, NJ, Employer

__________________________________________

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Docket No. 22-0358

Issued: March 31, 2023

Appearances: Case Submitted on the Record

Michael D. Overman, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On January 12, 2022 appellant, through counsel, filed a timely appeal from an August 17, 

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.

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 his burden of proof to establish a right knee 

condition causally related to the accepted October 4, 2014 employment incident.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances as set forth 

in the Board’s prior decision are incorporated herein by reference. The relevant facts are as 

follows. 

On October 4, 2014 appellant, then a 45-year-old city carrier, filed a traumatic injury claim 

(Form CA-1) alleging that, on the same date he sustained an injury to his right knee while in the 

performance of duty. He explained that he was walking to deliver the mail on his route when his 

knee “popped.” Appellantstopped work on October 19, 2014 and was separated from employment 

on November 3, 2014.

Appellant came under the treatment of Dr. Enrique J. Garcia Pena, a Board-certified 

orthopedist, on October 10, 2014 for a right knee injury. He reported that while working as a letter 

carrier walking to deliver mail, he felt his knee giving way, heard a loud pop, and pain ensued. 

Appellant indicated that he had difficulty ambulating afterward and was treated in the emergency 

room where x-rays were taken. Dr. Pena diagnosed right knee pain, possible meniscal injury and 

placed appellant in a hinged knee brace. A November 25, 2014 magnetic resonance imaging 

(MRI) scan of the right knee revealed mild medial compartment osteoarthrosis with tears of the 

medial meniscus. On December 1, 2014 Dr. Pena diagnosed right knee pain with medial meniscus 

tear resulting from an injury that he sustained while performing his work duties. 

By decision dated February 9, 2015, OWCP denied appellant’s claim for compensation 

because the medical evidence of record was insufficient to establish a medical condition causally 

related to the accepted employment incident. 

On February 25, 2015 appellant requested an oral hearing before a representative of 

OWCP’s Branch of Hearings and Review, which was held on August 27, 2015. Subsequent to the 

hearing, appellant submitted additional evidence.

On September 10, 2015 Dr. Pena reported first treating appellant on October 10, 2014 and

related that while working as a mail carrier appellantwas walking and felt his knee give way, heard 

a loud pop, and had pain. A November 25, 2014 MRI scan revealed mild medial compartment 

osteoarthrosis and an irregular vertical tear of the medial meniscus. Appellant reported not having 

these symptoms before the October 4, 2014 employment incident. Dr. Pena noted that appellant 

had some mild degenerative joint disease, but advised that the meniscal tear was not degenerative. 

He opined that appellant had a medial meniscal tear to his right knee as a consequence of his 

October 4, 2014 employment incident.

3 Docket No. 17-0802 (issued August18, 2017). 
3

By decision dated November 18, 2015, an OWCP hearing representative set aside the 

decision dated February 9, 2015 and remanded the case for further medical development.

On November 24, 2015 OWCP referred appellant to Dr. Lawrence I. Barr, a Boardcertified orthopedist, for a second opinion to determine if appellant’s medical condition was 

causally related to the accepted employment incident.

In a December 22, 2015 report, Dr. Barr indicated that he reviewed the records provided 

and examined appellant. He noted that the November 25, 2014 MRI scan revealed mild medial 

compartment osteoarthritis with a tear of the medial meniscus while an October 4, 2014 right knee 

x-ray showed degenerative changes around the medial compartment with a small effusion. 

Physical findings on examination of the right knee showed medial and lateral joint line tenderness, 

pain with range of motion, and marked crepitus with motion of the right knee. Dr. Barr diagnosed 

degenerative medial meniscal tear and degenerative joint disease of the right knee. He opined 

that appellant reached maximum medical improvement (MMI) and no further treatment was 

indicated. Dr. Barr opined that he did not find causation and noted that appellant simply took two 

steps which did not establish causal relationship for an injury. He noted that the reported 

mechanism of injury would be unlikely to cause a meniscal tear. Dr. Barr indicated that

asymptomatic tears, particularly of the posterior horn of the medial meniscus, were common and 

could be serendipitously found on MRI scan and degenerative tears could be found without any 

trauma history. He noted degenerative changes on his right knee MRI scan. Dr. Barr noted that 

based on examination findings he did not recommend work restrictions or a functional capacity 

evaluation. In a work capacity evaluation (Form OWCP-5c) Dr. Barr noted that appellant was 

capable of performing his usual job without restrictions.

By de novo decision dated January 6, 2016, OWCP denied appellant’s claim for 

compensation because the medical evidence of record was insufficient to establish that the claimed 

medical condition was causally related to the accepted October 4, 2014 employment incident.

On January 11, 2016 appellant requested an oral hearing before a representative of

OWCP’s Branch of Hearings and Review, which was held on April 18, 2016.

Appellant submitted a January 26, 2016 report from Dr. Pena who diagnosed tear of the 

posterior horn of the medial meniscus. He reviewed Dr. Barr’s report and noted that some parts 

of the report appeared to be inconsistent. Dr. Pena disagreed with his description of a degenerative 

meniscus tear, as the tear pattern, after reviewing imaging studies on November 25, 2014, 

indicated that the meniscus tear was indeed a vertical pattern in the posterior horn and irregular 

vertical tear, which was not a typical tear seen in a degenerative knee. He noted that degenerative 

meniscal tears are more typically complex in nature and the appearance of the vertical tear would 

suggest traumatic etiology. On March 4, 2016 Dr. Pena diagnosed mild chondromalacia with 

degenerative joint changes with posterior horn tear of the medial meniscus, radial pattern, by MRI 

scan. On April 6, 2016 he performed a right knee arthroscopy, chondroplasty of trochlear groove, 

medial femoral condyle, partial medial meniscectomy, and medial meniscus repair. Dr. Pena 

diagnosed right knee chondromalacia of trochlear groove, medial femoral condyle, and complex 

tear of the posterior horn of the medial meniscus that extends into the meniscal body of the radial 

component.
4

By decision dated July 1, 2016, OWCP’s hearing representative affirmed the January 6, 

2016 decision.

On August 19, 2016 appellant requested reconsideration. In reports dated August 12 and 

September 23, 2016, Dr. Pena noted that, with regard to whether appellant’s underlying pathology 

was traumatic or degenerative in origin, he noted it was unusual for a patient to have a meniscus 

tear through ambulation, but with a sharp pain, audible pop, and swelling and discomfort that 

ensued afterwards, it was a typical meniscal tear presentation. He indicated that the diagnostic 

arthroscopy showed the appearance of the meniscus in the medial compartment to be of vertical 

origin, which was not consistent with degenerative etiology. Dr. Pena further noted that the very 

mild chondral wear on the medial compartment also indicates that it was not a longstan ding 

degenerative condition. He opined that appellant’s clinical examination, his description of the 

symptoms, MRI scan findings, and intraarticular diagnostic operative findings were consistent 

with traumatic etiology.

By decision dated November 16, 2016, OWCP denied modification of the July 1, 2016

decision. 

On February 27, 2017 appellant appealed to the Board. By decision dated August 18, 2017,

the Board set aside the November 16, 2016decision, finding a conflict of medical opinion between

Dr. Pena, appellant’s treating physician, and Dr. Barr, an OWCP second opinion physician, 

regarding whether appellant’s right knee condition was causally related to the accepted 

October 4, 2014 employment incident. The Board remanded the case for further development, to 

be followed by a de novo decision.

4

OWCP referred appellant for an impartial medical evaluation with Dr. Roy B. Friedenthal,

a Board-certified orthopedic surgeon serving as an impartial medical examiner (IME). It provided

Dr. Friedenthal with an updated SOAF, the medical record, and a series of questions. In a 

February 13, 2018 report, Dr. Friedenthal reported findings on physical examination of medial 

joint line tenderness at the right knee and palpable prominence at the medial tibial flare on the 

right. He diagnosed degenerative arthritis of the right knee, status-post debridement 

patellofemoral joint and medial compartment right knee, and status-post partial medial 

meniscectomy and repair right knee. Dr. Friedenthal noted that examination revealed findings 

consistent with degenerative arthritis of the right knee. He opined that appellant developed 

meniscal tearing as part of the normal progression of degenerative arthrosis. Dr. Friedenthal 

advised that the diagnostic studies revealed meniscal tearing in the context of degenerative joint 

disease and the changes do not imply traumatic etiology. He advised that the right knee condition 

was not causally related to the October 4, 2014 employment incident as there was no traumatic 

event described. Dr. Friedenthal further noted that subjective complaints were out of proportion 

to current objective findings. He indicated that he looked forward to personally reviewing initial 

x-rays and diagnostic studies to provide his own opinion concerning the nature of the meniscal 

lesion and to review all prior medical records that become available. In a Form OWCP-5c,

Dr. Friedenthal noted appellant could return to work with restrictions on lifting and squatting.

4

Id.
5

By decision dated May 3, 2018, OWCP denied appellant’s claim, finding that the medical 

evidence of record was insufficient to establish causal relationship between his diagnosed right 

knee condition and the accepted October 4, 2014 employment incident. It found that the special 

weight of the medical evidence of record rested with Dr. Friedenthal’s February 13, 2018 IME

report. 

On May 11, 2018 appellant, through counsel, requested a hearing before a representative 

of OWCP’s Branch of Hearings and Review. The hearing was held on September 11, 2018.

By decision dated November 1, 2018, OWCP’s hearing representative vacated OWCP’s 

May 3, 2018 decision. She noted that Dr. Friedenthal was not allowed the opportunity to review 

diagnostic studies and preexisting medical records prior to the issuance of the decision . The 

hearing representative remanded the case to OWCP for a supplemental report fromDr. Friedenthal

reviewing the medical evidence and providing a rationalized opinion concerning whether the 

accepted October 4, 2014 employment incident caused or aggravated a right knee condition.

In a letter dated February 28, 2019, OWCP requested that Dr. Friedenthal review the 

additional medical documentation and provide a supplemental medical opinion as to whether the 

accepted October 4, 2014 employment incident caused or aggravated appellant’s right knee 

condition.

In a supplemental report dated April 12, 2019,Dr. Friedenthal acknowledged receipt of the

x-ray. He indicated that he would not issue another report as these studies were previously 

reviewed and considered in his February 13, 2018 opinion. 

By decision dated June 24, 2019, OWCP denied appellant’s claim, finding that the medical 

evidence of record was insufficient to establish causal relationship between his diagnosed right 

knee condition and the accepted October 4, 2014 employment incident. It found that the special 

weight of the medical evidence of record rested with Dr. Friedenthal’s February 13, 2018 IME

report.

By decision dated June 27, 2019, OWCP vacated the June 24, 2019 decision. 

OWCP subsequently received additional evidence. An MRI scan of the right knee dated 

November 25, 2014 revealed mild medial compartment osteoarthrosis with tears of the medial 

meniscus. An MRI scan of the right knee dated April 12, 2017 revealed prior partial medial 

meniscectomy, increased signal in the posterior horn of the medial meniscus likely secondary to a 

superimposed complex tear, tiny longitudinal tear inner margin of the posterior horn of the lateral 

meniscus, patchy marrow edema, stable mild thinning of the articular cartilage in the medial 

femoral tibial compartment, moderate-to-severe focal chondral loss, and moderate joint effusion. 

An MRI scan of the left knee dated July 19, 2017 revealed no meniscal tear, no ligamentous or 

tendinous injury, and no fracture or contusion.

On April 15, 2020 OWCP referred appellant, along with an updated SOAF, the medical 

record, and a series of questions, to Dr. Stanley R. Askin, a Board-certified orthopedic surgeon, 

for an impartial medical evaluation.
6

In a September 9, 2020 report, Dr. Askin detailed appellant’s factual and medical history 

and reported the findings of his physical examination. He discussed appellant’s right knee surgery 

of April 6, 2016 and diagnostic testing, and noted that appellant presently reported having 

persistent right knee pain and swelling. Dr. Askin indicated that, upon examination, there was an 

effusion of the right knee with tenderness at the joint line areas medially more so than 

posterolaterally. He diagnosed medial compartment osteoarthritis of the right knee. Dr. Askin 

indicated that this condition was baseline and not causally related to the accepted October 4, 2014 

employment incident. He advised that the detected meniscal imperfection was a constituent 

subpart of the osteoarthritic syndrome. Dr. Askin indicated that had appellant not had the baseline 

condition he would not have experienced pain on October 4, 2014, which brought his baseline 

condition to his attention. He opined that appellant did not have disabling residuals from the 

accepted October 4, 2014 employment incident, he required no further treatment, and the April 6, 

2016 surgical treatment was not medically necessary. Dr. Askin advised that the right knee 

osteoarthritis was considered a “nonwork-related impairment.” He further noted that appellant did 

not sustain an aggravation of the prior existing condition. In a Form OWCP-5c, Dr. Askin returned 

appellant to work without restrictions.

By decision dated September 15, 2020, OWCP denied appellant’s claim, finding that the 

medical evidence of record was insufficient to establish causal relationship between his diagnosed 

right knee condition and the accepted October 4, 2014 employment incident. It found that the 

special weight of the medical evidence of record rested with Dr. Askin’s September 9, 2020 IME

report.

On September 21, 2020 appellant, through counsel, requested a hearing before a 

representative of OWCP’s Branch of Hearings and Review. 

By decision dated November 25, 2020, after a preliminary review, OWCP’s hearing 

representative vacated OWCP’s September 15, 2020 decision,finding that Dr. Askin’s report was 

not sufficiently rationalized. The hearing representative instructed OWCP to obtain a 

supplemental report from Dr. Askin asking him to respond to a series of questions. 

In a letter dated December 2, 2020, OWCP requested that Dr. Askin provide an addendum 

report and address how he determined that appellant’s arthritis was at baseline at the time of the 

injury, whether the employment incident caused a change in appellant’s arthritis, and whether 

walking on October 4, 2014 aggravated appellant’s right knee arthritis.

In a supplemental report dated March 17, 2021, Dr. Askin indicated that the “pop”

sensation appellant experienced with respect to his right knee did not represent a material change 

in his baseline condition, rather, it was an announcement by his joint that it was not normal. He 

noted that the April 6, 2016 operative report from Dr. Pena showed visual confirmation of lack of 

normalcy. Dr. Askin indicated that the medical documentation provided including the operative 

findings formed his opinion that his arthritic condition was baseline at the time of injury. He 

explained that a knee can experience “post-traumatic” osteoarthritis presuming there was trauma 

but appellant’s history does not include trauma. Dr. Askin advised that the natural course of knee 

arthritis is toward advancing arthritis and arthroscopic surgical treatment is not effective. He 

opined that it was conceivable that appellant’s right knee was aggravated by the operative 

procedure performed and will likely worsen whether he works or not.
7

By decision dated March 22, 2021, OWCP denied appellant’s claim, finding that the 

medical evidence of record was insufficient to establish causal relationship between his diagnosed 

right knee condition and the accepted October 4, 2014 employment incident. It found that the 

special weight of the medical evidence of record rested with Dr. Askin’s September 9, 2020 and 

March 17, 2021 IME reports.

On March 29, 2021 appellant, through counsel, requested a hearing before a representative 

of OWCP’s Branch of Hearings and Review. A hearing was held on July 6, 2021.

By decision dated August 17, 2021, OWCP’s hearing representative affirmed the 

March 22, 2021 decision, finding that the special weight of the medical evidence rested with

Dr. Askin’s September 9, 2020 and March 17, 2021 IME reports.

LEGAL PRECEDENT

An employee seeking benefits under FECA5 has the burden of proof to establish the 

essential elements of his or her claim, including 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 of FECA,6that 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.7 These are the essential elements of each and every compensation claim, 

regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.8

To determine whether a federal employee has sustained a traumatic injury in the 

performance of duty, it first must be determined whether fact of injury has been established. First, 

the employee must submit sufficient evidence to establish that he or she actually experienced the 

employment incident at the time and place, and in the manner alleged. Second, the employee must 

submit medical evidence to establish that the employment incident caused a personal injury. 9

The medical evidence required to establish causal relationship is rationalized medical 

opinion evidence.10 The opinion of the physician must be based on a complete factual and medical 

background of the employee, must be one of reasonable medical certainty, and must be supported 

5

Id.

6 F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April26, 2019); JoeD. 

Cameron, 41 ECAB 153 (1989).

7 L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020); 

James E. Chadden, Sr., 40 ECAB 312 (1988).

8 P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016); 

DeloresC. Ellyett, 41 ECAB 992 (1990).

9 T.J., Docket No. 19-0461 (issued August 11, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J. 

Carlone, 41 ECAB 354 (1989).

10 S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); 

Robert G. Morris, 48 ECAB 238 (1996).
8

by medical rationale explaining the nature of the relationship between the diagnosed condition and 

specific employment incident identified by the employee.11

Section 8123(a) of FECA provides that, 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. 12 The implementing regulations 

state that, if a conflict exists between the medical opinion of the employee’s physician and the

medical opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall 

appoint a third physician to make an examination.13 When 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. 14

When OWCP obtains an opinion from an impartial medical specialist for the purpose of 

resolving a conflict in medical opinion, 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.15

ANALYSIS

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

Initially, the Board notes that OWCP properly determined that a conflict in medical opinion 

existed between Dr. Pena, appellant’s treating physician, and Dr. Barr, the second opinion 

physician, regarding whether appellant’s right knee condition was causally related to the accepted 

October 4, 2014 employment incident and, pursuant to 5 U.S.C. § 8123(a), OWCP referred 

appellant to Dr. Askin for an impartial medical evaluation.

In his September 9, 2020 IME report, Dr. Askin noted his review of the February 25, 2020 

SOAF and appellant’s medical record. He reported his physical examination findings. Dr. Askin 

diagnosed medial compartment osteoarthritis of the right knee, noting that this condition was 

baseline and not causally related to the accepted October 4, 2014 employment incident. He 

advised that the detected meniscal imperfection was a constituent subpart of the osteoarthritic 

syndrome. Dr. Askin indicated that had appellant not had the baseline condition he would not 

have experienced pain on October 4, 2014, which brought his baseline condition to his attention. 

He opined that appellant did not have disabling residuals from the accepted October 4, 2014

11 T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020); 

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

12 5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008).

13 20 C.F.R. § 10.321. 

14 V.G., 59 ECAB 635 (2008).

15 R.T., Docket No. 20-0081 (issued June 24, 2020); RaymondA. Fondots, 53 ECAB 637, 641 (2002); Nancy 

Lackner (JackD. Lackner), 40 ECAB 232 (1988); RamonK. Ferrin, Jr., 39 ECAB 736 (1988).
9

employment incident, he required no further treatment, and the April 6, 2016 surgical treatment 

was not medically necessary. Dr. Askin further opined that appellant did not sustain an 

aggravation of the prior existing condition.

On December 2, 2020 it requested that Dr. Askin clarify his opinion on how he determined 

that appellant’s arthritis was at baseline at the time of the injury, whether the employment injury 

caused a change in appellant’s arthritis, and whether walking on October 4, 2014 aggravated 

appellant’s right knee arthritis. However, in his March 17, 2021 supplemental IME report,

Dr. Askin provided a generalized opinion and explanation on how arthritis developed noting that 

a knee can experience “post-traumatic” osteoarthritis presuming there was trauma but, appellant’s 

history did not include trauma. Dr. Askin advised that the natural course of knee arthritis is toward 

advancing arthritis and that the “pop” appellant experienced on October 4, 2014 was not a material 

change of the baseline condition, rather “an announcement by his joint that it was not normal.” He 

did not sufficiently explain, with rationale, whether the employment incident caused or contributed 

to an aggravation of appellant’s right knee arthritis.

The Board has found that, when an IME fails to provide medical reasoning to support his 

conclusory statements about a claimant’s condition, his opinion is insufficient to resolve a conflict 

in the medical evidence.16 If the IME is unable to clarify or elaborate on his original report, or if 

his supplemental report is vague, speculative, or lacking in rationale, OWCP shall refer appellant 

to a new IME.17

The case must therefore be remanded for further development. As OWCP has already 

sought clarification from Dr. Askin, on remand OWCP shall refer appellant, together with an 

updated SOAF and the medical record, to a new IME in the appropriate field of medicine to resolve 

the issue. Following this and other such further development deemed necessary, OWCP shall issue 

a de novo decision.

CONCLUSION

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

16 P.T., Docket No. 22-0841 (issued January 26, 2023); R.G.,Docket No. 21-0812 (issued February 28, 2022).

17 See C.E., Docket No. 19-1923 (issued March 30, 2021); M.S.,Docket No. 18-1228 (issued March 8, 2019);

R.H., Docket No. 17-1903 (issuedJuly 5, 2018).
10

ORDER

IT IS HEREBY ORDERED THAT the August 17, 2021 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: March 31, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board