United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.M., Appellant

and

DEPARTMENT OF THE NAVY, NAVAL AIR 

SYSTEMS COMMAND, China Lake, CA, 

Employer

__________________________________________

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Docket No. 22-0037

Issued: October 12, 2022

Appearances: Case Submitted on the Record

Stephanie Leet, 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 October 11, 2021 appellant, through counsel, filed a timely appeal from an August 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 August20, 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 appellant has met her burden of proof to establish additional 

conditions causally related to the accepted December 21, 2005 employment injury.

FACTUAL HISTORY

This case has previously been before the Board.4 The facts and circumstances as set forth 

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

On January 12, 2006 appellant, then a 55-year-old information technology specialist, filed 

a traumatic injury claim (Form CA-1) alleging that on December 21, 2005 she was descending 

stairs when her left foot got caught on a garden hose, causing her to stumble and fall to the sidewalk 

injuring her right knee, right hand, and wrist while in the performance of duty. OWCP initially 

accepted the claim for contusions of the right knee and right wrist/hand. 5It subsequently the 

expanded acceptance of the claim to include right carpal tunnel syndrome, enthesopathy of the 

right wrist and carpus, right knee lateral meniscus tear, and psychogenic pain.

In May 2007, appellant underwent the first of several OWCP-authorized right knee surgical 

procedures. On May 31, 2007 Dr. Mohamed Z. Lameer, an orthopedic surgeon, performed an 

arthroscopic right knee synovectomy, and partial medial and lateral meniscectomies. OWCP also 

authorized a right total knee arthroplasty, which Dr. Lameer performed on August 12, 2009. On 

May 23, 2012 Dr. Paul D. Burton, an osteopathic reconstructive orthopedic surgeon, performed a 

right knee revision arthroplasty. Appellant also underwent a right carpal tunnel release on 

July 24, 2008. OWCP paid her wage-loss compensation on the periodic compensation rolls 

effective August 31, 2008.

On June 18, 2009 OWCP again expanded acceptance of the claim to include aggravation 

of degenerative joint disease of the right knee. 

On July 13, 2009 counsel requested that OWCP expand the acceptance of the claim to 

include left knee degenerative joint disease (osteoarthritis) as an accepted condition, alleging that 

appellant had also injured her left knee when she fell on December 21, 2005. 

After further development of the claim, OWCP determined that a conflict in medical 

opinion existed between appellant’s treating physician Dr. Philip H. Conwisar, a Board-certified 

orthopedic surgeon, and OWCP’s second opinion physician Dr. Ghol Bhaman Ha’Eri, a Boardcertified orthopedic surgeon, regarding whether appellant’s left knee osteoarthritis/degenerative 

joint disease was medically connected to the 2005 employment injury by aggravation.

4 Docket No. 15-1724 (issued February 16, 2016), petition for recon. denied, Docket No. 15-1724 (issued 

August 17, 2018); Docket No. 16-1655 (issued April4, 2018); and Docket No. 19-1741 (issued May 5, 2020). 

5 OWCP assigned the present claim OWCP File No. xxxxxx350. Appellant also has an accepted claim under 

OWCP File No. xxxxxx096 for nose laceration,soft tissue injury to both knees and right hand, and cervical strain due 

to an employment-related fall on January 6, 1989. OWCP has administratively combined OWCP File Nos. 

xxxxxx096 and xxxxxx350, with the latter designated as the master file.
3

OWCP referred appellant to Dr. John D. Kaufman, a Board-certified orthopedic surgeon, 

for an impartial medical examination to resolve the conflict in medical opinion. In a report dated 

November 12, 2015, Dr. Kaufman, serving as the impartial medical examiner (IME), opined that 

there was no connection between appellant’s left knee condition(s) and the December 21, 2005 

employment injury. He explained that her left knee condition was degenerative in nature, it was 

not caused by any extra stress because of the accepted right knee conditions, and there was no 

evidence which showed a relationship between altered gait due to problems of one knee producing 

degenerative changes or pain in the other knee. Dr. Kaufman opined that appellant was capable 

of full-time work in a sedentary work capacity. 

By decision dated February 18, 2016, OWCP denied appellant’s request to expand the 

acceptance of the claim to include additional conditions. It accorded the special weight of the 

medical evidence to Dr. Kaufman’s impartial medical opinion.

Appellant appealed OWCP’s February 18, 2016 decision to the Board. By decision dated 

April 4, 2018, the Board affirmed the February 18, 2016 decision,

6

finding that OWCP properly 

referred her to Dr. Kaufman and that Dr. Kaufman’s report represented the special weight of the 

medical evidence. 

On May 15, 2018 OWCP expanded the acceptance of the claim to include major depressive 

disorder, recurrent, severe without psychotic features, and localized primary osteoarthritis of right 

leg as accepted conditions, based on the second opinion report from Dr. Norman Levy, a Boardcertified psychiatrist, dated July 15, 2017.

On March 29, 2019 appellant, through counsel, requested reconsideration.

7

 Counsel 

alleged that appellant had established that her left knee diagnoses, aggravation of right knee 

osteoarthritis, right knee reflex sympathetic dystrophy syndrome (RSD), and aggravation of 

lumbar spondylosis were consequential to her accepted employment injury. She presented 

arguments and medical evidence in support of her request. 

By decision dated June 17, 2019, OWCP denied appellant’s request for reconsideration of 

the merits of her claim pursuant to 5 U.S.C. § 8128(a). It found that counsel failed to submit new 

and relevant legal argument or evidence in support of the March 29, 2019 request for 

reconsideration.

Appellant appealed OWCP’s June 17, 2019 decision to the Board and, by decision dated 

May 5, 2020, the Board set aside OWCP’s June 17, 2019 decision and remanded the case to OWCP 

to consider all the relevant evidence submitted by appellant in support of her request for 

reconsideration of the merits of her claim.8

6

Supra note 4.

7 Appellant specifically requested reconsideration of the Board’s April4, 2018 decision. However, OWCP has no 

jurisdiction to review a Board decision. The decisions and orders of the Board are final as to the subject matter 

appealed and such decisions and orders are not subject to review, except by the Board. See 20 C.F.R. § 501.6(d). The

proper subject of review was OWCP’s February 18, 2016 merit decision.

8

Supra note 4.
4

Further evidence was received. On March 29, 2019 appellant, through counsel, again 

requested reconsideration, asserting that OWCP committed various procedural errors in weighing 

and developing the medical evidence. Counsel further argued that, alternatively, OWCP should 

further develop the claim with respect to those conditions as the evidence of record, including the 

new evidence, was sufficient to establish a prima facie case.

OWCP subsequently received additional medical evidence. Medical reports from

Dr. Shahin Sadik, a Board-certified anesthesiologist, dated April 19, June 21, August 16, and 

October 16, 2018 and January 7, February 4, March 7, and May 20, 2019, documented appellant’s 

pain management treatments of her right leg and back pain. Dr. Sadik provided an impression of 

complex regional pain syndrome (CRPS)/RSD of right lower extremity “because of employment 

injury.” Other conditions reported included: synovitis and tenosynovitis, right hand; traumatic 

tear of lateral meniscus of right knee; carpal tunnel syndrome, right upper extremity; painful total 

knee replacement; long-term (current) use of opiate analgesic; and unilateral primary 

osteoarthritis, right knee. Dr. Sadik opined that appellant was totally disabled from work because 

of right knee and subsequent severe neuropathic pain and weakness.

In an extensive narrative report dated April 8, 2019, Dr. Sadik explained that appellant had 

undergone right knee replacement surgery, as well as lumbar surgery which caused damage to her 

peroneal nerve. The resulting neuropathy caused a CRPS of the right lower extremity, which 

remained untreated for a period of time. Dr. Sadik related that appellant developed antalgic gait, 

and damage to her right hip as well. He further related that additional weight bearing to the left 

lower extremity and antalgic gait favoring the right side caused pain and subsequent arthritis to 

her left knee.

Reports from Dr. Ray D’Amours, a Board-certified pain medicine specialist, from 

November 19, 2018 forward, documented appellant’s pain management of her back and right 

leg/knee CRPS. He opined that she was totally disabled from work as a result of her right knee 

and severe neuropathic pain and weakness. 

By decision dated July 29, 2020, OWCP denied modification, finding that the special 

weight of the medical evidence continued to rest with Dr. Kaufman’s IME report. 

On July 20, 2021 appellant, through counsel, requested reconsideration, again asserting

that OWCP committed various errors in weighing and developing the medical evidence. 

In support of the reconsideration request, appellant submitted September 16, 2020 drug test 

results and a February 24, 2021 report from a physician assistant, along with duplicative medical 

reports and portions of Dr. Ha’Eri’s second opinion report. 

Medical reports from Dr. Sadik, dated July 12, August 9, September 8, September 15, 

October 18, 2020 and February 24, March 25, April 22, July 15, 2021, documented appellant’s 

medical treatment for CRPS, type 2, of the lower extremity; traumatic tear of lateral meniscus of 

right knee; painful total knee replacement; bilateral radiating leg pain; carpal tunnel syndrome, 

right upper limb; long-term (current) use of opiate analgesic; internal derangement of right knee; 

chronic ankle pain, and CRPS. Dr. Sadik opined that appellant was totally disabled and would 

never again be able to do meaningful work. 

By decision dated August 20, 2021, OWCP denied modification. 
5

LEGAL PRECEDENT

Where an employee claims that a condition not accepted or approved by OWCP was due 

to an employment injury, he or she bears the burden of proof to establish that the condition is 

causally related to the employment injury.9

The medical evidence required to establish causal relationship between a specific 

condition, as well as any attendant disability claimed, and the employment injury, is rationalized 

medical opinion evidence.10 A physician’s opinion on whether there is a causal relationship 

between the diagnosed condition and the implicated employment factor(s) must be based on a 

complete factual and medical background.11 Additionally, the opinion of the physician 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 the 

specific employment factor(s) identified by the claimant.12

Section 8123(a) of FECA provides that, if there is disagreement between the phy sician 

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. 13 The implementing regulation 

states 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. This is called a referee examination and OWCP 

will select a physician who is qualified in the appropriate specialty and who has no prior connection 

with the case.14 In situations where there are opposing medical reports of virtually equal weight 

and rationale and the case is referred to an IME for the purpose of resolving the conflict, the opinion 

of such specialist, if sufficiently well-rationalized and based upon a proper factual and medical 

background, must be given special weight.15

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish additional 

conditions causally related to the accepted December 21, 2005 employment injury.

9

See C.W., Docket No. 21-0017 (issued December 28, 2021); T.B., Docket No. 20-0182 (issued April23, 2021);

W.L., Docket No. 17-1965 (issued September 12, 2018); V.B., Docket No. 12-0599 (issued October 2, 2012); JajaK. 

Asaramo, 55 ECAB 200, 204 (2004).

10 T.B., id.; T.C., Docket No. 19-1043 (issued November 8, 2019); M.W., 57 ECAB 710 (2006); JohnD. Jackson, 

55 ECAB 465 (2004).

11 T.B., id.; E.M., Docket No. 18-1599 (issued March 7, 2019);RobertG. Morris, 48 ECAB 238 (1996).

12 T.B., id.; M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 

41 ECAB 345 (1989).

13 5 U.S.C. § 8123(a).

14 20 C.F.R. § 10.321.

15 C.E., Docket No. 19-1923 (issued March 30, 2021); L.L., Docket No. 19-0214 (issued May 23, 2019); D.M., 

Docket No. 18-0746 (issued November 26, 2018); R.C., 58 ECAB 238 (2006); David W. Pickett, 54 ECAB 

272 (2002).
6

Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence 

appellant submitted prior to the issuance of OWCP’s February 18, 2016 merit decision. Findings 

made in priorBoard decisions are res judicata absent further review by OWCP under section 8128 

of FECA.16 

Appellant submitted numerous reports from Dr. Sadik dated 2018 through 2021 in which 

he provided an impression of CRPS/RSD of the right lower extremity due to the accepted 

employment injury. He also reported numerous other conditions, which included synovitis and 

tenosynovitis, right hand; traumatic tear of lateral meniscus of right knee; carpal tunnel syndrome, 

right upper extremity; painful total knee replacement; long-term (current) use of opiate analgesic; 

and unilateral primary osteoarthritis, right knee; CRPS, type 2, of the lower extremity; traumatic 

tear of lateral meniscus of right knee; painful total knee replacement; bilateral radiating leg pain; 

internal derangement of right knee; and chronic ankle pain. Dr. Sadik opined that appellant was 

totally disabled from work because of right knee and subsequent severe neuropathic pain and 

weakness and that he would never work again. While he concluded that appellant’s additional 

conditions were due to the accepted employment injury, he did not explain with rationale how the 

accepted injury caused or contributed to those additional conditions. Without explaining 

physiologically how the accepted employment injury caused, contributed to, or aggravated the 

additional diagnosed conditions, Dr. Sadik’s opinion is of limited probative value and insufficient 

to establish the claim.17

In his April 6, 2019 report, Dr. Sadik specifically explained that appellant had undergone 

right knee replacement surgery and lumbar surgery, which caused damage to his peroneal nerve. 

The resulting neuropathy caused a CRPS of the right lower extremity, which remained untreated 

for a period of time, and appellant developed antalgic gait and damage to her right hip. Dr. Sadik 

also related that the additional weight bearing to the left lower extremity and antalgic gait favoring 

the right side caused pain and subsequent arthritis to the left knee. He, however,failed to provide 

a rationalized medical opinion which explained how the December 21, 2005 accepted work injury

physiologically caused or contributed to the additional diagnosed conditions.

18

 As such 

Dr. Sadik’s reports are insufficient to establish expansion of the claim. 

In reports dated November 19, 2018 forward, Dr. D’Amours opined that appellant was

totally disabled as a result of her right knee and severe neuropathic pain and weakness. However, 

he did not provide an opinion on causal relationship between appellant’s additional diagnosed 

conditions and the accepted employment injury. The Board has held that medical evidence that 

does not offer an opinion regarding the cause of an employee’s condition is of no probative value 

on the issue of causal relationship.19 These reports, therefore, are insufficient to establish 

expansion of appellant’s claim. 

16 D.A., Docket No. 19-1965 (issued February 10, 2021); G.B.,Docket No. 19-1448 (issued August 21, 2020).

17 See T.F., Docket No. 20-0260 (issued June 12, 2020); D.J., Docket No. 18-0694 (issued March 16, 2020); K.G.,

Docket No. 18-1598 (issued January 7, 2020); K.O., Docket No. 18-1422 (issued March 19, 2019).

18 Id.

19 See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,Docket No. 17-1549 (issued July 6, 2018).
7

OWCP also received a February 24, 2021 report from a physician assistant. The Board has 

held that the reports of physician assistants are of no probative value as physician assistants are

not considered physicians as defined under FECA and, therefore, is not competent to provide a 

medical opinion.20 This report was therefore insufficient to establish expansion of appellant’s 

claim. 

As the medical evidence of record is insufficient to establish causal relationship between 

appellant’s additional diagnosed conditions and the accepted employment injury, the Board finds 

that she has not met her burden of proof.

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 appellant has not met her burden of proof to establish additional 

conditions causally related to the accepted December 21, 2005 employment injury.

20 Section 8101(2) of FECA provides that medical opinions can only be given by a qualified physician. This section 

defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and 

osteopathic practitioners within the scope of their practice as defined by state law. 5 U.S.C. § 8101(2); 20 C.F.R. 

§ 10.5(t). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) 

(January2013); M.M., Docket No. 20-0019 (issued May 6, 2020); K.W., 59 ECAB 271, 279 (2007); DavidP. 

Sawchuk, 57 ECAB 316, 320 n.11 (2006); see also D.B., id.; E.T., Docket No. 17-0265 (issued May 25, 2018) 

(physician assistants are not considered physicians under FECA).
8

ORDER

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

Workers’ Compensation Programs is affirmed.

Issued: October 12, 2022

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