United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.N., Appellant

and

DEPARTMENT OF THE ARMY, U.S. ARMY 

INSTALLATION MANAGEMENT 

COMMAND, Fort Lee, VA, Employer

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Docket No. 22-0488

Issued: February 15, 2023

Appearances: Case Submitted on the Record

Brett E. Blumstein, 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 February 17, 2022 appellant, through counsel, filed a timely appeal from a 

December 27, 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.

ISSUES

The issues are: (1) whether appellant has met his burden of proof to establish a

consequential right knee condition as causally related to his accepted March 9, 2010 employment 

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

injury; and (2) whether OWCP abused its discretion in denying appellant’s request 

for authorization for total left knee replacement surgery.

FACTUAL HISTORY

On March 30, 2010 appellant, then a 43-year-old conservation law enforcement officer, 

filed a traumatic injury claim (Form CA-1) alleging that on March 9, 2010 he sustained a left knee 

injury when he twisted his left knee while utilizing a pressure washer in the performance of duty. 

He stopped work on March 9, 2010 and returned to limited-duty work on March 10, 2010 without 

wage loss. OWCP accepted appellant’s claim for lateral collateral ligament sprain, aggravation of 

chondromalacia (except for the patella), lateral meniscus derangement, and chronic anterior 

cruciate ligament deficiency/disruption of the left knee.

On July 21, 2010 appellant underwent left knee arthroscopy with debridement, lateral 

retinacular release, chondroplasty and meniscectomy and on March 26, 2013 he underwent total 

left knee replacement surgery. Both procedures were authorized by OWCP. On August 1, 2019 

OWCP expanded the acceptance of appellant’s claim to include degenerative arthritis of the left 

knee.

In a November 2, 2020 report, Dr. John W. Ellis, a Board-certified family medicine 

physician, discussed appellant’s factual and medical history and reported the findings of his 

physical examination. He discussed the degenerative changes of appellant’s right knee seen on a 

July 16, 2020 magnetic resonance imaging (MRI) scan and noted that the physical examination 

showed anterior cruciate and medial/lateral collateral ligament laxity of the left knee, as well as

limited range of motion of the right knee with 114 degrees of flexion. Dr. Ellis noted that he was 

able to easily make appellant’s left knee pop out of its joint with very little movement. He

indicated that appellant had abnormal gait mechanics of both knees due mostly to his multiple 

sclerosis and weakness in the right lower extremity. Dr. Ellis diagnosed sprain of the lateral 

collateral ligament of the right knee, left knee chondromalacia, old rupture of the anterior cruciate 

ligament of the left knee, derangement of the left knee (including the lateral meniscus), and 

primary osteoarthritis of the left knee. He opined that the work-related consequential conditions 

of appellant’s right knee included aggravation of chondromalacia and osteoarthritis. Dr. Ellis 

found that, based on his review of the medical record and his medical examination, the accepted 

March 9, 2010 employment injury contributed to and aggravated appellant’s right knee condition. 

He maintained that the work-related injury to appellant’s left knee, which caused instability and 

abnormal gait, “caused him to favor his left knee, causing him to put more forces on the right knee, 

which has contributed to, aggravated and accelerated the chondromalacia and arthritis in the right 

knee.”

On November 13, 2020 appellant, through counsel, requested expansion of the acceptance 

of his claim to include a right knee condition and total left knee replacement sustained as a 

consequence of his accepted March 9, 2010 employment injury.

OWCP referred appellant’s case record to Dr. Arthur S. Harris, a Board-certified

orthopedic surgeon serving as an OWCP district medical adviser. In a December 14, 2020 report,

Dr. Harris discussed Dr. Ellis’ report and asserted that there was insufficient evidence in the case 
3

record to accept appellant’s aggravation of right knee osteoarthritis as a work-related condition. 

He noted:

“[T]here is no evidence based medical literature or any orthopedic literature that 

supports that altered gait mechanics in one lower extremity due to problems with 

the left knee will result in increased stresses in the right lower extremity or 

aggravation of preexisting osteoarthritis. Based on the above, I would recommend 

that the claim not be expanded to include aggravation of osteoarthritis in the right 

knee, as discussed by Dr. Ellis.”

In September 2021, OWCP referred appellant, along with a statement of accepted facts 

(SOAF) and a series of questions, for a second opinion examination and evaluation with

Dr. Richard J. Mazzei, a Board-certified orthopedic surgeon. It requested that he provide an 

opinion regarding whether appellant sustained a right knee condition as a consequence of his 

accepted March 9, 2010 employment injury.

In a September 22, 2021 report, Dr. Mazzei detailed appellant’s factual and medical history 

and reported the findings of his physical examination. He noted that appellant had a slightly 

antalgic right gait and that he had difficulty extending his right knee while in the sitting position. 

Appellant’s left leg could straight raise with only a five-degree lag and he could only flex to 110 

degrees. Dr. Mazzei noted that the right knee appeared to be in approximately five degrees of 

varus and that the left knee appeared to be in approximately five degrees of valgus. He diagnosed 

degenerative arthritis of both knees status post left knee surgeries on July 21, 2010 and 

March 26, 2013. Dr. Mazzei opined that appellant’s right knee condition was not related to his 

accepted March 9, 2010 employment injury, but rather was related to several nonwork-related 

conditions, including possibly a running injury. He indicated, “[h]e likely had gradual wear and 

tear on the knee associated with the instability, which has gone on to the progression of his 

osteoarthritis.” Dr. Mazzei asserted that the March 9, 2010 employment injury did not 

“substantially” aggravate appellant’s right knee condition. He noted that appellant might have 

temporarily had an increase in symptoms in the right knee due to reliance on the right knee when 

he recovered from two left knee surgeries, but maintained that this symptom aggravation was not 

substantial enough to accelerate the underlying right knee condition.

On November 1, 2021 OWCP requested that Dr. Mazzei clarify his opinion with respect 

to whether appellant’s right knee condition was related to the March 9, 2010 employment injury. 

In a December 13, 2021 supplemental report, Dr. Mazzei indicated that he had previously 

noted that the March 9, 2010 injury did not substantially aggravate appellant’s right knee 

condition. He advised that, by using the word substantially, he meant that the March 9, 2010 injury

did not change the right knee condition structurally, but only temporarily increased symptoms 

while appellant was recovering from the March 26, 2013 left knee operation. Dr. Mazzei opined

that appellant’s right knee problems were not caused by the extra strain on the knee or substantially 

made worse by favoring the left knee. He indicated that, if a time frame were required for this 

temporary increase in right knee symptoms, he would estimate the time frame to be approximately 

three months following the March 26, 2013 operation. Dr. Mazzei noted, “[t]hat would make the 

date of aggravation in mid-June of 2013. If an exact date is required (which is only an estimate), 

I would say June 26, 2013 is the duration of left knee relationship with the temporary aggravation 

of the right knee pain.”
4

By decision dated December 27, 2021, OWCP denied appellant’s claim for a consequential 

right knee condition and total left knee replacement, finding that the weight of the medical opinion 

evidence with respect to the matter rested with the opinion of Dr. Mazzei, OWCP’s referral 

physician. 

LEGAL PRECEDENT -- ISSUE 1

The claimant bears the burden of proof to establish a claim for a consequential injury.3 As 

part of this burden, he or she must present rationalized medical opinion evidence, based on a 

complete factual and medical background, establishing causal relationship. The opinion must be 

one of reasonable medical certainty and must be supported by medical rationale explaining the 

nature of the relationship of the diagnosed condition and the specific employment factors or 

employment injury.4

Causal relationship is a medical issue and the medical evidence required to establish causal 

relationship is rationalized medical evidence.5 Neither the mere fact that a disease or condition 

manifests itself during a period of employment, nor the belief that the disease or condition was 

caused or aggravated by employment factors or incidents, is sufficient to establish causal 

relationship.6

In discussing the range of compensable consequences, once the primary injury is causally 

connected with the employment, the question is whether compensability should be extended to a 

subsequent injury or aggravation related in some way to the primary injury.7 The basic rule is that, 

a subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is 

compensable if it is the direct and natural result of a compensable primary injury.8 When an injury 

arises in the course of employment, every natural consequence that flows from that injury likewise 

arises out of the employment, unless it is the result of an independent intervening cause attributable 

to the claimant’s own conduct.9

Section 8123(a) of FECA provides that if there is a disagreement between the physician 

making the examination for the United States and the physician of an employee, the Secretary shall 

appoint a third physician (known as a referee physician or impartial medical specialist) who shall 

make an examination.10 For a conflict to arise, the opposing physicians’ opinions must be of 

3 V.K., Docket No. 19-0422 (issued June 10, 2020); A.H., Docket No. 18-1632 (issued June 1, 2020); I.S., Docket 

No. 19-1461 (issued April 30, 2020).

4 K.W., Docket No. 18-0991 (issued December 11, 2018).

5 G.R., Docket No. 18-0735 (issued November 15, 2018).

6

Id.

7 K.S., Docket No. 17-1583 (issued May 10, 2018).

8

Id.

9 A.M., Docket No. 18-0685 (issued October 26, 2018); Mary Poller, 55 ECAB 483, 487 (2004).

10 5 U.S.C. § 8123(a); see E.L., Docket No. 20-0944 (issued August 30, 2021); R.S., Docket No. 10-1704 (issued 

May 13, 2011); S.T., Docket No. 08-1675 (issued May 4, 2009); M.S., 58 ECAB 328 (2007).
5

virtually equal weight and rationale.11 In situations where the case is properly 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.12

ANALYSIS -- ISSUE 1

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

There is an existing conflict in the medical evidence regarding appellant’s consequential 

injury claim between the opinion of Dr. Ellis, an attending physician, and the opinions of

Dr. Mazzei, OWCP’s referral physician.

In his November 2, 2020 report, Dr. Ellis diagnosed sprain of the lateral collateral ligament 

of the right knee, left knee chondromalacia, old rupture of the anterior cruciate ligament of the left 

knee, derangement of the left knee (including the lateral meniscus), and primary osteoarthritis of 

the left knee. He opined that the work-related consequential conditions of appellant’s right knee 

included aggravation of chondromalacia and osteoarthritis of the right knee. Dr. Ellis found that, 

based on his review of the medical record and his medical examination, the accepted March 9, 

2010 employment contributed to and aggravated appellant’s right knee condition. He maintained 

that the work-related injury to appellant’s left knee, which caused instability and abnormal gait, 

“caused him to favor his left knee, causing him to put more forces on the right knee, which has 

contributed to, aggravated and accelerated the chondromalacia and arthritis in the right knee.”

In contrast, Dr. Mazzei provided an opinion in his October 5, 2021 report that appellant’s 

right knee condition was not related to the accepted March 9, 2010 employment injury. He 

diagnosed degenerative arthritis of both knees status post left knee surgeries on July 21, 2010 and 

March 26, 2013. Dr. Mazzei opined that appellant’s right knee condition was not related to his 

accepted March 9, 2010 employment injury, but rather was related to several nonwork-related 

conditions, including possibly a running injury. He indicated, “[h]e likely had gradual wear and 

tear on the knee associated with the instability, which has gone on to the progression of his 

osteoarthritis.” Dr. Mazzei asserted that March 9, 2010 employment injury did not “substantially”

aggravate appellant’s right knee condition. He noted that appellant might have temporarily had an 

increase in symptoms in the right knee due to reliance on the right knee when he recovered from 

two left knee surgeries, but maintained that this symptom aggravation was not substantial enough 

to accelerate the underlying right knee condition. In a supplemental December 13, 2021 report,

Dr. Mazzei indicated that he had previously noted that the March 9, 2010 injury did not 

substantially aggravate appellant’s right knee condition. He advised that, by using the word 

substantially, he meant that the March 9, 2010 injury did not change the condition structurally, but 

only temporarily increased symptoms while appellant was recovering from his March 26, 2013 

left knee operation. Dr. Mazzei opined that appellant’s right knee problems were not caused by 

the extra strain on the knee or substantially made worse by favoring the left knee. 

11 P.R., Docket No. 18-0022 (issued April 9, 2018).

12 See D.M., Docket No. 18-0746 (issued November 26, 2018); R.H., 59 ECAB 382 (2008); James P. Roberts, 31 

ECAB 1010 (1980).
6

In addition, Dr. Harris indicated in his December 14, 2020 report that there was insufficient 

evidence in the case record to accept appellant’s aggravation of right knee osteoarthritis as a workrelated condition. He noted:

“[T]here is no evidence based medical literature or any orthopedic literature that 

supports that altered gait mechanics in one lower extremity due to problems with 

the left knee will result in increased stresses in the right lower extremity or 

aggravation of preexisting osteoarthritis. Based on the above, I would recommend 

that the claim not be expanded to include aggravation of osteoarthritis in the right 

knee, as discussed by Dr. Ellis.”

Because there remains an unresolved conflict in medical opinion regarding whether 

appellant sustained a consequential right knee condition related to his accepted March 9, 2010 

employment injury, pursuant to 5 U.S.C. § 8123(a), the case will be remanded to OWCP for 

referral of appellant, together with the case record and a SOAF, to a specialist in the appropriate 

field of medicine for an impartial medical examination and opinion sufficient to resolve the 

conflict. Following this and other such further development as deemed necessary, OWCP shall 

issue a de novo decision regarding appellant’s consequential injury claim.

LEGAL PRECEDENT -- ISSUE 2

Section 8103(a) of FECA states in pertinent part: “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 the Secretary of Labor considers likely 

to cure, give relief, reduce the degree or the period of disability, or aid in lessening the amount of 

the monthly compensation.”

13

 

The Board has found that OWCP has great discretion in determining whether a particular 

type of treatment is likely to cure or give relief.14 The only limitation on OWCP’s authority is that 

of reasonableness.15 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.16 In order to be entitled to 

reimbursement of medical expenses, it must be shown that the expenditures were incurred for 

treatment of the effects of a work-related injury or condition.17 Proof of causal relationship in a 

case such as this must include supporting rationalized medical evidence.18

13 5 U.S.C. § 8103. 

14 R.C., Docket No. 18-0612 (issued October 19, 2018); Vicky C. Randall, 51 ECAB 357 (2000).

15 B.L., Docket No. 17-1813 (issued May 23, 2018); Lecil E. Stevens, 49 ECAB 673, 675 (1998).

16 S.W., Docket No. 18-1529 (issued April 19, 2019); Rosa Lee Jones, 36 ECAB 679 (1985).

17 J.R., Docket No. 17-1523 (issued April 3, 2018); Bertha L. Arnold, 38 ECAB 282, 284 (1986).

18 Zane H. Cassell, 32 ECAB 1537, 1540-41 (1981); John E. Benton, 15 ECAB 48, 49 (1963).
7

ANALYSIS -- ISSUE 2

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

In light of the Board’s disposition of the issue of whether appellant sustained an additional 

condition as causally related to his accepted employment injury, it is premature to address the issue 

of whether OWCP properly denied authorization for total left knee replacement surgery.19

CONCLUSION

The Board finds that this case is not in posture for decision with regard to whether appellant 

has established a consequential right knee condition as causally related to his accepted March 9, 

2010 employment injury. The Board further finds that the case is not in posture for decision with 

regard to whether OWCP properly denied appellant’s request for total left knee replacement 

surgery.

ORDER

IT IS HEREBY ORDERED THAT the December 27, 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: February 15, 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

19 See V.P., 21-1111 (issued May 23, 2022); C.N., Docket No. 19-0621 (issued September 10, 2019).