United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
C.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. CUSTOMS & BORDER PROTECTION,
Miami, FL, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1841
Issued: December 6, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 29, 2017 appellant, through counsel, filed a timely appeal from a June 9, 2017
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 June 9, 2017 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.

ISSUE
The issue is whether appellant has met his burden of proof to establish right knee and
bilateral elbow conditions causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On January 18, 2016 appellant, then a 64-year-old customs and border protection officer,
filed a traumatic injury claim (Form-CA-1) alleging that he injured his right knee in the
performance of duty on December 23, 2015. He alleged that he had to repetitively move between
sitting and standing, and due to the lack of a foot rest in the primary booths at the concourse, this
resulted in repetitive twisting of his right knee from side to side. Appellant noted that he had three
right knee ligament tears, which resulted in swelling in the right knee, and pain when turning and
when seated in chairs without a foot rest or rail. He explained that he was forced to use a brace
with hinges in order to prevent further damage to his knee. Appellant did not stop work. S.T., a
supervisor, responded “yes” in response to whether appellant was injured in the performance of
duty and also as to whether his knowledge of the facts about the injury agreed with statements of
appellant and witnesses.
A December 30, 2015 right knee magnetic resonance imaging (MRI) scan read by
Dr. Michael Zistkin, a diagnostic radiologist, revealed a lateral meniscus tear, internal
degenerative signal change involving the medial meniscus, suggestion of a focal tear involving the
posterior horn centrally, tricompartmental chondral thinning and degenerative change, and a right
knee joint effusion. There was also nonspecific edema and inflammation within the soft tissues
surrounding the right knee.
In a January 18, 2016 report, Dr. Fernando Moya, a Board-certified orthopedic surgeon,
noted that appellant was seen for pain in his right knee joint. He indicated that appellant injured
his knee before Christmas and had problems with flexion, extension, and using his knee joint.
Dr. Moya advised that he had reviewed the MRI scan and the findings which included that the
right knee had a lateral meniscal tear, internal degeneration of the medial meniscus, and early signs
of three compartment arthritis. Dr. Moya also noted that a January 18, 2016 x-ray of the right knee
revealed the joint space to be open, a bone spur on the proximal superior aspect of the patella, no
fracture or dislocation, and no focal bone lesion. He examined the right knee and noted that
appellant had discomfort with patella tilting, gliding, and grinding. Dr. Moya found focal jointline tenderness, positive effusion, and mild restriction of flexion and extension with lateral joint
line tenderness. He diagnosed internal derangement of the right knee, a tear of the lateral meniscus
of the right knee, a tear of the medial meniscus of the right knee, and arthritis of the right knee he
classified as mild and early.
In a May 26, 2016 report, Dr. Felipe Cubas, a Board-certified orthopedic surgeon, noted
that appellant injured his right knee and both elbows at work due to repetitive motion. He
diagnosed right meniscus tear and epicondylitis of the bilateral elbows. Dr. Cubas responded “no”
with regard to whether there were preexisting conditions, with regard to an exacerbation of a
preexisting condition, and with regard to whether there were other relevant comorbidities. He
recommended light duty with work restrictions including to limit repetitive motion of the elbow
and limit activities with the right knee.

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In a separate report also dated May 26, 2016, Dr. Cubas noted that appellant was seen for
follow up of joint pain in the right knee and explained that he was originally seen on
March 7, 2016. He advised that the original onset was December 23, 2015. Dr. Cubas examined
appellant and diagnosed medial epicondylitis of the right elbow, worsening, sprain of other
specified parts of the right knee, subsequent encounter, stable and improved, and medial
epicondylitis of the left elbow, worsening. His assessment was that appellant could return to duty
with restrictions including no kneeling, squatting, jumping, running, or climbing ladders, limited
repetitive motion with the right hand, no exercise of the right arm, no exercise of the right leg, and
to wear a right knee splint.
In a letter dated June 15, 2016, OWCP informed appellant of the type of evidence needed
to establish his claim and requested that he submit such evidence within 30 days. It also requested
that appellant complete a questionnaire describing his injury, the immediate effects, history of any
other injury, and physicians who were consulted with regarding his claim. OWCP also explained
the difference between a traumatic injury and an occupational disease.
Appellant provided a copy of an old traumatic injury claim from December 18, 1987. It
described an injury to his right knee he suffered while working as a letter carrier.
Appellant provided a July 14, 2016 response. He explained that, on the date, he was injured
when working at Miami International Airport, in Concourse D, using hand stamps to document
each passenger’s entry into the country. Appellant noted that the booth he worked in had an
elevated chair the height of the counter so that he could use the computer, passport scanner,
biometric scanner, and camera. He explained that there were no foot rails in Concourse D as
opposed to Concourse J, which was designed with foot rails to support officers as they were
performing their duties. Appellant noted that his feet could not touch the floor while seated. His
left foot dangled without support and his right foot was partially supported on a small drawer. The
twisting to the right to reach the drawer was very uncomfortable. Appellant alleged that
dismounting from the elevated chair, combined with the lack of a foot rail resulted in a ligament
injury to the right knee. He noted that, on December 23, 2015, his right knee pain and swelling
became so severe, that he went to see his physician, Dr. Cubas. Appellant also noted that it was
the Christmas and holiday season and he was unaware of the nature of his injury until
January 18, 2016, when his orthopedic specialist notified him that workers’ compensation should
have been applied rather than his health insurance.
Appellant described the immediate effects of his injury, which included pain and an
inability to walk normally, as he walked with a limp. He also indicated that, when he arrived home
the night of the injury, he observed gross swelling in the knee. Appellant advised that he first saw
Dr. Cubas on December 23, 2015. He noted that he had a prior history of right knee symptoms
with the employing establishment in 1987. Appellant explained that he believed he had a traumatic
injury.
Appellant also provided witness statements from R.L. and A.P. R.L. noted that in the prior
year, in November 2015, he asked appellant why he was limping, and appellant indicated that he
had injured his right knee on the job. A.P. indicated that he had witnessed appellant limping at
work and saw appellant’s swollen knee. Appellant informed him that he had twisted or snapped
his knee at the end of their tour of duty in November 2015.

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In a July 14, 2016, report, Dr. Cubas summarized his treatment of appellant. He explained
that, on December 28, 2015, he saw appellant for right knee pain. Dr. Cubas related that appellant
indicated that he suffered from an injury at work due to a lack of foot rest in the primary booths at
Concourse D and that he was frequently standing and sitting. He noted that a right knee MRI scan
had been ordered. Dr. Cubas instructed appellant to immobilize the knee and to take antiinflammatories. He reviewed the MRI scan which revealed: a lateral meniscal tear; degenerative
joint disease (DJD); DJD involvement in medial meniscus; a focal tear involving the medial
meniscus posterior horn; reactive edema; three compartmental chondral thinning; right knee joint
effusion; edema; and inflammation within the soft tissues surrounding the right knee.
Dr. Cubas indicated that, on January 12, 2016, appellant was again seen for right knee pain
and new complaints of right elbow pain that he attributed to repetitive motion of the right arm
when he was at work stamping documents. He examined appellant’s right elbow and determined
that it was very tender and swollen on the medial aspect and on the medial epicondyle. Dr. Cubas
also examined the right knee and found it was tender on the lateral joint line and the entire knee
was swollen. He recommended a referral to an orthopedic surgeon. Dr. Cubas continued to see
and treat appellant on January 18, February 11 and 15, 2016. On these occasions appellant had
continued right knee and right elbow pain.
Dr. Cubas advised that, on March 7, 2016, appellant returned for a follow up. Although
appellant’s elbow pain had improved, he still had knee pain. In another follow up on April 12,
2016, Dr. Cubas noted that appellant was still experiencing right knee and elbow pain that he
attributed to repetitive tasks at his job. He instructed him to use his opposite arm to stamp. In a
May 26, 2016 follow-up visit, Dr. Cubas noted that appellant had right knee pain and bilateral
elbow pain with the right worse than the left.
On June 20, 2016 Dr. Cubas advised that appellant returned for a recheck of his right knee
and bilateral elbow pain. He noted that appellant was seeing Dr. Moya and had mild improvement
of the right knee, but elbow pain was progressively worse. Dr. Cubas explained that appellant was
instructed to return to work with light-duty similar restrictions as in the past, in addition to limit
repetitive motions of the right arm and hand. He diagnosed: right knee meniscus tear; right elbow
epicondylitis, medial; and left elbow epicondylitis, medial.
By decision dated July 25, 2016, OWCP denied appellant’s claim, finding that the evidence
of record was insufficient to establish that the claimed injury and/or event(s) occurred as alleged.
It explained that there were discrepancies with regard to whether appellant actually injured his
right knee on December 23, 2015 or developed right knee problems over time.
On August 5, 2016 counsel requested a telephonic hearing, which was held before an
OWCP hearing representative on March 17, 2017. During the hearing, he argued that the claim
should be treated as an occupational disease claim. Appellant explained his duties and noted that
he was usually in Concourses D, R, and J. He discussed the passenger entry processing procedures
and noted that he sat in an elevated booth chair/stool greeting and processing passengers.
Appellant explained that there were no foot rests on the Concourse D level, and that he had to use
the chair’s foot rest to turn or swivel. He also noted that repeated stamping of passports and
documents and turning between using the computer and addressing passengers caused his elbow
problems and radiating pain in his fingers. Appellant indicated that he processed between 600 and
900 passengers or more on a daily basis. Furthermore, his knee bothered him more than the elbow,
but the elbow and knee pain began at the same time. Counsel argued that Dr. Cubas’ July 2016
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report sufficiently addressed the development of appellant’s diagnosed right knee meniscus tear
and left elbow epicondylitis. He explained that appellant attempted to self-treat himself and
subsequently sought treatment when his condition did not improve.
In a March 17, 2017 report, Dr. Moya advised that appellant had reached maximum
medical improvement (MMI) as of March 31, 2017.
In a March 31, 2017 report, Dr. Moya noted that appellant presented with knee pain and
evaluation of his right knee joint. Appellant related to him that he had a trauma at work on
December 23, 2015, when he twisted his right knee joint. Dr. Moya noted that appellant related
that he had pain and discomfort to his right knee joint with swelling. He related that appellant
received treatment with medication by mouth, bracing, and an exercise and strengthening program.
Dr. Moya advised that the right knee MRI scan from December 30, 2015 revealed ﬁndings that
were consistent with a lateral meniscal tear and degeneration of the medial meniscus. He also
related that appellant continued to have pain and discomfort and that he could not recall any prior
traumas to his right knee joint before December 23, 2015. Dr. Moya noted that appellant indicated
that he was active and was able to do activities without any limitations. He further noted that
appellant felt that his knee still ﬂared up at times and he still had pain. Dr. Moya determined that
appellant did not have full strength or motion. He examined the right knee and found discomfort
with patella tilting, gliding and grinding, and focal joint-line tenderness. Dr. Moya also found:
positive effusion; mild restriction of ﬂexion and extension; equivocal McMurray test; positive
bounce and hyperﬂexion test; instability; negative anterior drawer sign, negative Lachman’s test;
no pivot shift or glide; no varus laxity in extension or in 30 degrees of ﬂexion; no valgus laxity at
full extension and knee ﬂexed to 30 degrees; no posterior laxity; no “PCL” insufficiency; and
negative active quad test. He provided findings for range of motion.
Dr. Moya diagnosed a tear of the medial meniscus of the right knee, initial encounter and
a tear of the lateral meniscus of the right knee, initial encounter. He opined that appellant had
reached MMI and had five percent permanent impairment. Dr. Moya opined that the impairment
was a direct result of the injuries that he sustained on December 23, 2015. He explained that prior
to this injury, appellant was active, could not recall any prior traumas, and was able to do activities.
Dr. Moya opined that “[f]rom this injury [of December 23, 2015], appellant tore his meniscus.
[Appellant] is still having pain and discomfort. He is wearing a brace. [Appellant] does not want
to have surgery. The injuries that he has to his knee joint are a direct result of the accident of
[December 23, 2015].” Dr. Moya noted that with regards to his work status, appellant was retired
from work. However, he indicated that appellant “should be able to do desk work and activities
of daily living. I am encouraging the patient to continue exercising and strengthen as tolerated.”
By decision dated June 9, 2017, OWCP’s hearing representative affirmed the July 25, 2016
decision, as modified. She found that appellant had established fact of injury as his account of his
job duties supported that his claim should be considered occupational in nature. The hearing
representative explained that appellant confirmed that his duties occurred over a period of time.
She found that the claim remained denied as the medical evidence submitted did not offer a
sufficient discussion explaining how appellant’s duties resulted in either a meniscal tear,
degenerative condition, or bilateral epicondylitis. The hearing representative explained that
appellant had not provided medical evidence from an examining physician explaining an injury,
condition, or diagnosis due to employment.

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LEGAL PRECEDENT
A claimant seeking benefits under FECA4 has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including that an injury was sustained in the performance of duty as alleged, and that any specific
condition or disability claimed is causally related to the employment injury.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) medical evidence establishing the presence or existence
of the disease or condition for which compensation is claimed; (2) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; and (3) medical evidence establishing that the diagnosed condition is causally
related to the identified employment factors.6
Causal relationship is a medical question, which generally requires rationalized medical
opinion evidence to resolve the issue.7 A physician’s opinion on whether there is causal
relationship between the diagnosed condition and the implicated employment factors must be
based on a complete factual and medical background.8 Additionally, the physician’s opinion 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
appellant’s specific employment factors.9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that his right
knee and bilateral elbow conditions are causally related to the accepted factors of his federal
employment.
The relevant evidence submitted by appellant includes reports from Dr. Moya. In his
January 18, 2016 report, Dr. Moya noted that appellant was seen for pain in his right knee joint
and indicated that it had occurred before Christmas. Dr. Moya reviewed MRI scan findings which
revealed a lateral meniscal tear, internal degeneration of the medial meniscus, and early signs of
three compartment arthritis. He also reviewed a January 18, 2016 x-ray of the right knee, which
revealed a bone spur on the proximal superior aspect of the patella, with no fracture or dislocation,
and no focal bone lesion. Dr. Moya diagnosed: arthritis of the knee, mild and early; tear of the
lateral meniscus on the right; tear of the medial meniscus on the right; and internal knee
derangement on the right. In a March 17, 2017 report, he advised that appellant had reached MMI.
However, Dr. Moya did not offer an opinion regarding the cause of appellant’s condition. The
Board has long held that medical evidence that does not offer an opinion regarding the cause of an
4

Supra note 2.

5

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

6

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

7

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

8

Supra note 6.

9

Id.

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employee’s condition is of no probative value on the issue of causal relationship.10 Thus, these
reports by Dr. Moya lack probative value on the issue of causal relationship.
In his March 31, 2017 report, Dr. Moya diagnosed a tear of the medial meniscus of the
right knee, right, initial encounter and a tear of the lateral meniscus of the right knee initial
encounter. He opined that appellant reached MMI and had five percent permanent impairment.
Dr. Moya opined that the impairment was a direct result of the injuries that he sustained on
December 23, 2015. He explained that, prior to this injury, appellant was active, he could not
recall any prior traumas, and was able to do activities. The Board notes that Dr. Moya appears to
suggest that appellant had an injury on a specific day, as opposed to over a period of time as
testified by appellant during his hearing. Furthermore, Dr. Moya did not describe exactly how
appellant tore his meniscus on that date. The Board finds that he appeared to suggest that appellant
did not have prior symptoms to support his conclusion. The Board has held that an opinion finding
causal relationship because an employee is asymptomatic before an employment injury is
insufficient, without supporting medical rationale, to establish causal relationship.11 Additionally,
Dr. Moya advised that appellant reported that his work activities aggravated his knee. However,
he did not provide his own opinion on causal relationship.12 As Dr. Moya did not provide
sufficient rationale explaining how and why appellant’s activities at work on December 23, 2015
caused or aggravated a particular diagnosed condition these additional reports lack probative
value.13
In a May 26, 2016 report, Dr. Cubas noted that appellant injured his right knee and both
elbows at work. He diagnosed right meniscus tear and epicondylitis of the bilateral elbows.
Dr. Cubas responded “no” with regard to whether there were preexisting conditions, with regard
to an exacerbation of a preexisting condition and with regard to whether there were other relevant
comorbidities. In a separate report also dated May 26, 2016, Dr. Cubas noted that he examined
appellant and diagnosed: medial epicondylitis of the right elbow; sprain of other specified parts
of the right knee; subsequent encounter, stable and improved; and medial epicondylitis of the left
elbow, worsening. He repeated his light-duty restrictions. However, Dr. Cubas did not offer an
opinion on causal relationship. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The opinion
of the physician must be based on a complete factual and medical background of the claimant,
must be one of reasonable medical certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.14 The Board thus finds that these reports of
Dr. Cubas lack probative value on the issue of causal relationship.

10

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

11

See Thomas Petrylak, 39 ECAB 276, 281 (1987).

12
See A.M., Docket No. 10-205 (issued October 5, 2010) (a physician’s opinion must be independent from a
claimant’s belief regarding causal relationship).
13

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not fortified
by medical rationale is of diminished probative value).
14

D.E., 58 ECAB 448 (2007); G.G., 58 ECAB 389 (2007); L.D., 58 ECAB 344 (2007); A.D., 58 ECAB 149 (2006).

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In subsequent reports, Dr. Cubas diagnosed: right knee meniscus tear; right elbow
epicondylitis, medial; and left elbow epicondylitis, medial. However, while he noted that appellant
attributed his condition to his activities at work, he again did not offer an opinion that the diagnosed
conditions were causally related to his employment activities.15
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is causal relationship between the two.16 Neither
the fact that the condition became apparent during a period of employment nor the belief that the
condition was caused or aggravated by employment factors or incidents is sufficient to establish
causal relationship.17
As the evidence of record does not contain rationalized medical evidence explaining how
and why appellant’s employment duties caused or aggravated a medical condition involving his
right knee and or elbows, appellant has not met his burden of proof to establish an injury causally
related to the accepted factors of his federal employment.
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 his burden of proof to establish that his right
knee and bilateral elbow conditions are causally related to the accepted factors of his federal
employment.

15

See supra note 10.

16

See Joe T. Williams, 44 ECAB 518, 521 (1993).

17

Id.

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ORDER
IT IS HEREBY ORDERED THAT the June 9, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: December 6, 2018
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Troy, MI, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-1054
Issued: March 30, 2022

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On July 6, 2021 appellant filed a timely appeal from a January 7, 2021 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 21-1054.
This case has previously been before the Board. 1 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On June 15, 2015 appellant, then a 57-year-old customer care agent, filed an occupational
disease claim (Form CA-2) alleging that she developed bilateral carpal tunnel syndrome due to
factors of her federal employment, including an increase of work activities. She asserted that she
first became aware of her claimed condition on February 7, 2000 and first realized its relation to

1

Docket No. 19-0925 (issued September 25, 2019).

her federal employment on March 28, 2015. Appellant stopped work on March 17, 2015. OWCP
assigned OWCP File No. xxxxxx503. 2
Appellant submitted a series of medical reports in support of the present claim, including
a June 4, 2015 report from Dr. Sophia Grias-Radwanski, a Board-certified physiatrist. Dr. GriasRadwanski diagnosed bilateral carpal tunnel syndrome, bilateral cubital tunnel syndrome, and neck
pain with radiculopathy symptoms.
After extensive development of the medical evidence, OWCP found a conflict in the
medical opinion evidence between Dr. Grias-Radwanski and Dr. Allen L. Babcock, a Boardcertified orthopedic surgeon serving as an OWCP referral physician, regarding whether appellant
sustained a new occupational injury due to employment factors. After additional development of
the medical evidence,3 it referred appellant for an impartial medical examination with
Dr. Clifford M. Buchman, an osteopath and Board-certified orthopedic surgeon, who produced a
July 25, 2018 report.
By decision dated August 23, 2018, OWCP denied appellant’s claim for a new
employment-related occupational condition, finding that the special weight of the medical opinion
evidence rested with the well-rationalized opinion of Dr. Buchman, the impartial medical
specialist.
By decision dated March 8, 2019, OWCP’s hearing representative affirmed OWCP’s
August 23, 2018 decision.
Appellant appealed to the Board and, by decision dated September 25, 2019,4 the Board
affirmed OWCP’s March 8, 2019 decision.
In a letter dated September 21, 2020 and entered into the Integrated Federal Employees’
Compensation System (iFECS) on September 28, 2020, appellant requested reconsideration of her

2
Appellant has a prior claim OWCP File No. xxxxxx427, for which she filed an occupational disease claim (Form
CA-2) in January 2003. In March 2003 OWCP accepted the claim for bilateral carpal tunnel syndrome. Appellant
filed a notice of recurrence (Form CA-2a) in October 2008 alleging a recurrence of disability due to the accepted
bilateral carpal tunnel syndrome condition. OWCP converted appellant’s recurrence claim to a claim for a new
occupational injury, and assigned OWCP File No. xxxxxx340. In May 2009, it accepted that claim for aggravation
of bilateral carpal tunnel syndrome. OWCP administratively combined OWCP File Nos. xxxxxx427, xxxxxx340, and
xxxxxx503, with OWCP File No. xxxxxx427 designated as the master file.
3

Prior to the referral to Dr. Buchman, OWCP referred appellant to three other impartial medical specialists, but it
found deficiencies in their evaluations, which required the referral to Dr. Buchman.
4

Supra note 1.

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claim. On September 28, 2020 OWCP received a February 17, 2020 report from Dr. GriasRadwanski who provided an extensive discussion of appellant’s work duties and opined that she
had sustained several new occupational conditions due to these duties. 5
By decision dated October 19, 2020, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error. In reaching
this decision, it did not discuss any evidence submitted by appellant in connection with her
reconsideration request.
In an October 28, 2020 letter, appellant argued that she filed a timely reconsideration
request in that a postal record demonstrated that, on September 25, 2020, OWCP had received her
reconsideration request letter, dated September 21, 2020. She submitted a U.S. Postal Service
tracking document that indicated a package was delivered on September 25, 2020 to an address in
London, Kentucky.
In a September 21, 2020 letter received by OWCP on November 4, 2020, appellant argued
that she had submitted sufficient medical evidence to establish several new employment-related
occupational conditions. She indicated that she had submitted additional medical evidence,
including a new report of Dr. Grias-Radwanski.
In an October 28, 2020 letter received by OWCP on the same date, appellant again argued
that she filed a timely reconsideration request on September 25, 2020.
By decision dated January 7, 2021, OWCP denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a). It found that she had, in fact, filed a timely
reconsideration request, but determined that she had not submitted evidence or argument entitling
her to merit review. OWCP asserted that appellant had not submitted any new medical evidence
in connection with her reconsideration request.
The Board finds that this case is not in posture for decision with respect to whether
appellant sustained a new employment-related occupational condition.
FECA provides that OWCP shall determine and make ﬁndings of fact in making an award
for or against payment of compensation after considering the claim presented by the employee and
after completing such investigation as OWCP considers necessary with respect to the claim.6 Since
the Board’s jurisdiction of a case is limited to reviewing the evidence which is before OWCP at the
time of its final decision, 7 it is necessary that OWCP review all evidence submitted by a claimant
and received by OWCP prior to issuance of its final decision. As the Board’s decisions are final as

5

Appellant also submitted a May 15, 2018 report from Dr. Peter E. Metropoulos, an attending osteopath and Boardcertified occupational medicine specialist, and a March 3, 2020 report from Dr. Mitchell Pollak, a Board-certified
orthopedic surgeon. The reports had previously been submitted and considered by OWCP.
6

5 U.S.C. § 8124(a)(2).

7

20 C.F.R. § 501.2(c).

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to the subject matter appealed, 8 it is crucial that all evidence relevant to that subject matter which
was properly submitted to OWCP prior to the time of issuance of its final decision be addressed by
OWCP.9
In the present case, OWCP did not review evidence received p rior to the issuance of its
January 7, 2021 decision, i.e., a February 17, 2020 report of Dr. Grias-Radwanksi. The Board,
therefore, must set aside this decision of OWCP and remand the case so that OWCP may fully
consider the evidence that was properly submitted by appellant prior to the issuance of the January 7,
2021 decision. Following this and such other further development it deems necessary, OWCP shall
issue an appropriate decision regarding appellant’s occupational disease claim.
IT IS HEREBY ORDERED THAT the January 7, 2021 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: March 30, 2022
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

8

Id. at § 501.6(d).

9

T.B., Docket No. 19-1841 (issued July 7, 2020); E.P., Docket No. 14-0278 (issued February 26, 2014). See also
William A. Couch, 41 ECAB 548, 553 (1990).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Niles, OH, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-497
Issued: November 26, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 16, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ November 25, 2009 decision. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that his left
knee lateral internal derangement, meniscus tear and Baker’s cyst are employment related; and
(2) whether the Office properly denied appellant’s claim for a schedule award.
FACTUAL HISTORY
On December 21, 2005 appellant, then a 57-year-old city carrier, filed a traumatic injury
claim alleging on December 20, 2005 while delivering mail he felt severe pain in his left knee.

The Office accepted his claim for left knee sprain.1 Appellant did not stop work and performed
light-duty work subject to restrictions.
Appellant was treated by Dr. Vincent Marino, a family practitioner. On December 21,
2005 he related to the physician that he twisted his left knee at work the previous day.
Dr. Marino noted physical findings of no effusion or edema and tenderness over the anterior and
medial compartments. He diagnosed left knee pain. X-rays were negative for fracture or
dislocation.2 In a December 21, 2005 attending physician’s report, Dr. Marino advised that
appellant did not require surgery and could work with restrictions. In reports dated December 23
to 30, 2005, he noted appellant’s complaint of left knee pain medially and anteriorly. Dr. Marino
subsequently treated appellant through July 28, 2006 for left knee pain and episodes of his left
knee giving out. He recommended a leg brace and continued light duty. On June 15 and 30,
2006 appellant was treated by a health care professional whose signature was illegible.
Chondromalacia patellae and left knee sprain were diagnosed.
On April 27, 2007 Dr. Marino noted that appellant presented with progressive right knee
pain with episodes of the left knee giving out. He diagnosed left knee sprain and probable
internal derangement. In reports dated to October 24, 2007, Dr. Marino noted a history of injury
and diagnosed left knee sprain. He indicated that appellant’s condition was unchanged. A
September 7, 2007 magnetic resonance imaging (MRI) scan of the left knee revealed a complete
tear of the anterior cruciate ligament, large horizontal tear involving the posterior horn of the
medial meniscus with a moderate Baker’s cyst.
On November 8, 2007 appellant was seen by Dr. Edward J. Uberti, an osteopath and
Board-certified orthopedic surgeon, for persistent left knee pain. He reported working as a letter
carrier and twisting his left knee while walking his mail route. Dr. Uberti advised that x-ray of
the left knee revealed degenerative changes and an MRI scan revealed a probable tear of the
medial meniscus. Physical examination revealed mild left knee effusion, no instability, no
positive anterior drawer or Lachman’s test, positive McMurray’s test, crepitus, small popliteal
cyst and a mild pitting edema about the ankle. Dr. Uberti diagnosed chondromalacia with a torn
medial meniscus of the left knee and recommended arthroscopic surgery. He noted this was
“obviously … a federal workman’s compensation since he is a postal carrier.”
On November 29 and December 15, 2007 appellant filed claims for a schedule award.
Appellant also submitted claims for compensation for intermittent disability from August 4 to
November 8, 2007.
In a January 25, 2008 decision, the Office denied appellant’s claim for wage-loss
compensation.
1

Appellant has several claims pertaining to his left leg. Claim file number xxxxxx668 was accepted for
exacerbation of left knee sprain, claim file number xxxxxx913 was accepted for a left knee contusion, and claim file
number xxxxxx039 was accepted for a left toe contusion. On April 8, 2009 the Office issued a schedule award for
seven percent impairment of the left leg due to appellant’s accepted toe condition. These claims were doubled with
that presently before the Board.
2

X-rays of the left knee obtained on November 3, 2003 showed mild bony hypertrophy and medical joint space
narrowing.

2

On December 20, 2007 the Office informed appellant that the medical evidence must
support that his accepted injury caused permanent impairment to his left knee and that the
residuals of the injury had reached maximum medical improvement. It advised that the medical
evidence of record did not establish maximum medical improvement.
In a December 19, 2007 report, Dr. Marino noted no change in appellant’s left knee. On
March 14, 2008 he indicated that appellant was awaiting authorization for left knee arthroscopy
and could continue light-duty work. In a July 11, 2008 report, Dr. Marino noted that appellant
was involved in a motor vehicle accident while driving his postal vehicle and was diagnosed
with exacerbation of left knee sprain.
In an April 20, 2009 letter, the Office requested that Dr. Marino further address how the
diagnosed lateral internal derangement of the left knee, meniscus tear and Baker’s cyst were
related to the December 20, 2005 injury. It asked whether the conditions preexisted the
December 20, 2005 work injury or if the injury had aggravated appellant’s condition.
In a decision dated May 27, 2009, the Office denied appellant’s claim for lateral internal
derangement of the left knee, meniscus tear or Baker’s cyst. It also denied his claim for a
schedule award. The Office determined that the medical evidence was insufficient to establish
that he sustained permanent impairment due to the accepted injury or that the additional left knee
diagnoses were causally related to the December 20, 2005 injury.
On June 8, 2009 appellant requested an oral hearing which was held on
September 8, 2009.
In a decision dated November 25, 2009, an Office hearing representative affirmed the
May 27, 2009 decision.
LEGAL PRECEDENT -- ISSUE 1
Where an employee claims that a condition not accepted or approved by the Office 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.3
Causal relationship is a medical issue that must be established by rationalized medical
opinion evidence.4 Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.5 The weight of medical evidence is determined by its reliability, its
3

Jaja K. Asaramo, 55 ECAB 200 (2004).

4

Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005).

5

Leslie C. Moore, 52 ECAB 132 (2000).

3

probative value, its convincing quality, the care of analysis manifested and the medical rationale
expressed in support of the physician’s opinion.6
ANALYSIS -- ISSUE 1
Appellant alleges that he sustained left knee lateral internal derangement, meniscus tear
and Baker’s cyst due to the December 20, 2005 injury. The Office accepted his claim for a left
knee sprain.
The Board finds that the medical evidence is insufficient to establish that the lateral
internal derangement, meniscus tear or Baker’s cyst conditions are causally related to the
accepted work injury. The medical records most contemporaneous to the injury are reports from
Dr. Marino dated December 21 to 30, 2005. Dr. Marino noted that appellant twisted his left knee
at work while delivering mail and sustained a sprain. In a December 21, 2005 attending
physician’s report, he noted that x-rays of December 21, 2005 were negative for fracture or
dislocation but shared a suggestion of a small joint effusion. Appellant did not require surgery
and could return to work with restrictions. He did not diagnose a lateral internal derangement,
meniscus tear and Baker’s cyst. The Board has consistently held that evidence contemporaneous
to an injury is entitled to greater probative value than later evidence.7 These reports do not
support that the December 20, 2005 injury caused or aggravated the left knee conditions
subsequently claimed.
In reports dated March 13 to July 28, 2006, Dr. Marino noted appellant reported left knee
pain and episodes of his left knee giving out. On April 27, 2007 he again diagnosed left knee
sprain and probable internal derangement. On September 7, 2007 diagnostic testing was
obtained by MRI scan that first listed the conditions currently claimed by appellant as related to
his December 20, 2005 injury. The Board had held that, when diagnostic testing is delayed,
uncertainty mounts regarding the cause of the diagnosed condition and a question arises as to
whether that testing in fact documents the injury claimed by the employee.8 The greater the
delay in testing, the greater the likelihood that an event not related to employment cause or
worsened the condition for which the employee seeks compensation. When the delay becomes
so significant that it calls into question the validity of an affirmative opinion based at least in part
on the testing, such delay diminishes the probative value of the opinion offered. In reports
subsequent to the MRI scan, Dr. Marino diagnosed internal derangement and a torn medial
meniscus; however, he did not adequately address how the conditions found were caused or
contributed to by the accepted injury. In assessing the probative value of his medical opinion,
the Board notes that Dr. Marino did not explain how the left knee sprain accepted by the Office
was sufficient to give rise to the conditions diagnosed some 20 months following injury. No
other reports from Dr. Marino address causal relationship between the claimed conditions and
the accepted injury. On April 20, 2009 the Office requested that Dr. Marino provide additional
6

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).
7

See Katherine A. Williamson, 33 ECAB 1696 (1982); Arthur N. Meyers, 23 ECAB 111 (1971).

8

Mary A. Ceglia, 55 ECAB 626 (2004); Linda L. Mendenhall, 41 ECAB 532 (1990).

4

opinion addressing how the diagnosed lateral internal derangement of the left knee, meniscus
tear and Baker’s cyst were related to the December 20, 2005 work injury. No responsive report
was received.
Dr. Uberti’s November 8, 2007 report noted appellant’s treatment for persistent left knee
pain. Appellant reported injuring his left knee while walking his mail route. Dr. Uberti noted
the MRI scan result of a probable torn medial meniscus and a small popliteal cyst. He diagnosed
chondromalacia with torn medial meniscus of the left knee and recommended arthroscopic
surgery. Dr. Uberti stated this was “obviously … a federal workman’s compensation since he is
a postal carrier.” He did not provide medical rationale explaining the basis of his conclusory
opinion between appellant’s employment and the diagnosed chondromalacia or torn medial
meniscus. Dr. Uberti did not provide a history of the December 20, 2005 injury in this case;
rather he implicated appellant’s walking his route as causative. His report is insufficient to meet
appellant’s burden of proof.9
Appellant has not submitted sufficient medical evidence to establish the lateral internal
derangement, meniscus tear or Baker’s cyst of his left knee as employment related. Neither the
fact that a claimant’s condition became apparent during a period of employment, nor the belief
that the condition was caused, precipitated or aggravated by the employment is sufficient to
establish causal relationship.10
LEGAL PRECEDENT -- ISSUE 2
Section 8107 of the Federal Employees’ Compensation Act was intended by Congress to
only apply to cases in which federal employees sustain a permanent impairment of a listed
member of the body due to an employment injury. The provisions for schedule awards are
separate from any factors that would be used to determine disability based on wage loss. The
amounts payable pursuant to a schedule award are defined by weeks of compensation for the
listed scheduled members.11 Impairment ratings are not granted for nonaccepted conditions.12
Not all medical conditions accepted by the Office result in permanent impairment to a scheduled
member.13

9

Appellant submitted reports dated June 15 and 30, 2006 from a health care professional with an illegible
signature. There is no indication of who signed the reports. The Board has held that medical reports lacking proper
identification do not constitute probative medical evidence. See R.M., 59 ECAB 690 (2008); D.D., 57 ECAB
734 (2006).
10

D.I., 59 ECAB 158 (2007).

11

Denise L. Crouch, 57 ECAB 161 (2005).

12

See Alice J. Tysinger, 51 ECAB 638 (2000) (for conditions not accepted by the Office as being employment
related, it is the employee’s burden to provide rationalized medical evidence sufficient to establish causal relation,
not the Office’s burden to disprove such relationship).
13

Thomas P. Lavin, 57 ECAB 353 (2006).

5

ANALYSIS -- ISSUE 2
The Office accepted appellant’s claim for left knee sprain and he claimed a schedule
award. To the extent that appellant sought a schedule award for lateral internal derangement,
meniscus tear and Baker’s cyst of the left knee, these conditions were not accepted as work
related.14 To be entitled to a schedule award appellant must establish that he sustained a
permanent impairment of a listed member of the body due to an employment injury.15
Appellant’s condition was accepted for left knee sprain. However, he did not submit sufficient
medical evidence to establish entitlement to a schedule award for his accepted left knee sprain.
Appellant submitted various reports from Dr. Marino noting diagnoses and treatment
options. However, Dr. Marino did not specifically address how the accepted left knee sprain
caused permanent impairment of the left leg nor did he provide an impairment rating pursuant to
the Office’s standards for evaluating scheduled impairment.16 Similarly, Dr. Uberti on
November 8, 2007 diagnosed chondromalacia with torn medial meniscus of the left knee and
recommended arthroscopic surgery. However, he did not specifically address how a left knee
sprain caused permanent impairment of the left leg nor did he provide an impairment rating.
Other medical evidence of record does not explain how the accepted left knee sprain
caused or contributed to permanent impairment of the left leg. Without the necessary reasoned
medical opinion evidence establishing that appellant has permanent impairment causally related
to his accepted left knee sprain, appellant has failed to establish that he sustained a permanent
impairment as a result of his employment.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained a lateral internal derangement, meniscus tear and Baker’s cyst of the left knee causally
related to his December 20, 2005 employment incident. The Board further finds that appellant
failed to establish that he is entitled to a schedule award.

14

These conditions were also not accepted in appellant’s other claims. See supra note 1.

15

See supra note 12; Veronica Williams, 56 ECAB 367 (2005) (a schedule award can be paid only for a condition
related to an employment injury; the claimant has the burden of proving that the condition for which a schedule
award is sought is causally related to his or her employment).
16

See 20 C.F.R. § 10.404. These regulations provide that the American Medical Association, Guides to the
Evaluation of Permanent Impairment, has been adopted as the appropriate standard for evaluating schedule losses.

6

ORDER
IT IS HEREBY ORDERED THAT the November 25, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 26, 2010
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.W., Appellant
and
DEPARTMENT OF HOUSING & URBAN
DEVELOPMENT, New York, NY, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 10-826
Issued: December 2, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 3, 2010 appellant filed a timely appeal of the January 8, 2010 merit decision
of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation benefits
effective January 17, 2010 on the grounds that she no longer had any residuals or disability
causally related to her March 8, 1991 employment injuries.
On appeal, appellant contends that the medical evidence of record is sufficient to
establish that she continues to suffer from residuals and total disability due to her accepted
employment injuries.

FACTUAL HISTORY
The Office accepted that on March 8, 1991 appellant, then a 39-year-old loan assistant,
sustained neck trauma, back and chest contusion and postconcussion syndrome while in the
performance of duty. Appellant stopped work on March 11, 1991.
Medical reports from Dr. Mitchell Kurk, an attending family practitioner, found that
appellant had continuing residuals and she was totally disabled for work due to her accepted
March 8, 1991 employment injuries.
On February 6, 2009 the Office referred appellant, together with a statement of accepted
facts and medical record to Dr. Stanley Soren, a Board-certified orthopedic surgeon, for a second
opinion medical examination to determine the nature and extent of her employment-related
injuries and disability and appropriate treatment. In a February 25, 2009 medical report,
Dr. Soren found that appellant had no residuals of her accepted employment injuries.
Appellant’s current low back symptoms were related to her underlying excessive and chronic
obesity condition. Dr. Soren stated that appellant could perform her usual work duties as a loan
assistant with no restrictions. Appellant did not require any further medical treatment.
On April 27, 2009 the Office found a conflict in the medical opinion evidence between
Dr. Kurk and Dr. Soren as to whether appellant had any residuals and disability causally related
to her March 8, 1991 employment injuries. On June 22, 2009 it referred her, together with a
statement of accepted facts and medical record to Dr. Michael J. Katz, a Board-certified
orthopedic surgeon, for an impartial medical examination.
In a July 17, 2009 report, Dr. Katz obtained a history of appellant’s March 8, 1991
employment injuries and medical treatment. He noted her complaints of hip and back problems.
Dr. Katz listed normal findings on physical examination with regard to appellant’s cervical and
lumbar spine, chest and right shoulder, arm, hip and knee. He opined that appellant’s
employment-related conditions had resolved. Dr. Katz stated that she had right arm and knee
contusions which had also resolved and that she did not suffer from any medical conditions,
except obesity, that required further medical treatment. He noted that no further diagnostic
testing was required and no further medical treatment was warranted. Dr. Katz concluded that
appellant was not currently totally disabled and that she was capable of performing her usual
full-duty work as a loan assistant with no restrictions.
On December 7, 2009 the Office issued a notice of proposed termination of appellant’s
wage-loss compensation and medical benefits based on Dr. Katz’s July 17, 2009 medical
opinion. Appellant was afforded 30 days to respond to this notice.
In a December 14, 2009 report, Dr. Kurk noted appellant’s complaints of continuing pain,
limited range of motion of the low back and right hip which interfered with her ability to stand,
climb stairs and ambulate. Appellant also complained that her back condition was aggravated by
prolonged sitting and obesity. Based on these complaints, Dr. Kurk opined that appellant was
totally disabled for her date-of-injury position or an equivalent position as the former position
required walking and standing for long periods of time. He stated that her return to work would
be most damaging to her psychologically and may cause profound depression.

2

In a January 8, 2010 decision, the Office terminated appellant’s compensation for wageloss and medical benefits with regard to her accepted employment-related injuries, effective
January 17, 2010. The medical evidence submitted was found insufficient to outweigh the
special weight accorded to Dr. Katz’s impartial medical opinion.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation. After it has been determined that an employee has disability
causally related to her employment, it may not terminate compensation without establishing that
the disability had ceased or that it was no longer related to the employment.1 The Office’s
burden of proof includes the necessity of furnishing rationalized medical opinion evidence based
on a proper factual and medical background.2 Furthermore, the right to medical benefits for an
accepted condition is not limited to the period of entitlement for disability. To terminate
authorization for medical treatment, the Office must establish that a claimant no longer has
residuals of an employment-related condition that requires further medical treatment.3
In situations where there are 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 on a proper
factual background, must be given special weight.4
ANALYSIS
The Board finds that the Office met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits as of January 17, 2010 on the grounds that she had no
residuals or disability of the accepted employment-related neck trauma, back and chest contusion
and postconcussion syndrome. The Office properly determined that there arose a conflict in the
medical opinion evidence between Dr. Kurk, an attending physician, and Dr. Soren, an Office
referral physician, regarding whether she had any residuals or disability causally related to the
March 8, 1991 employment injuries. Dr. Kurk opined that appellant’s continuing residuals and
total disability were due to the employment injuries. Dr. Soren opined that the employment
injuries had resolved and she could return to her regular work duties as a loan assistant with no
restrictions.
The Office referred appellant to Dr. Katz, the impartial medical specialist who provided
an accurate history of injury and detailed normal findings on physical examination. Based on the
normal findings, Dr. Katz concluded that the accepted employment conditions had resolved and
that the only medical condition appellant suffered from was obesity. He further concluded that
appellant was not totally disabled, that further diagnostic testing and medical treatment were not
1

Jason C. Armstrong, 40 ECAB 907 (1989).

2

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

3

Mary A. Lowe, 52 ECAB 223 (2001); Wiley Richey, 49 ECAB 166 (1997).

4

Gloria J. Godfrey, 52 ECAB 486 (2001).

3

necessitated and that she was capable of resuming her date-of-injury position as a loan officer
without restrictions.
The Board finds that Dr. Katz’s opinion is entitled to special weight accorded an
impartial medical specialist and is sufficiently well reasoned and detailed to resolve the conflict
of medical opinion evidence. Dr. Katz provided extensive findings on physical examination and
explained why appellant’s current symptoms and disability were not causally related to the
March 8, 1991 employment-related neck trauma, back and chest contusion and postconcussion
syndrome. The Board finds, therefore, that the Office met its burden of proof to terminate
appellant’s compensation and medical benefits effective January 17, 2010.
The Board further finds that appellant did not submit any rationalized medical evidence
to overcome the weight of Dr. Katz’s opinion or to create a new conflict. Dr. Kurk’s
December 14, 2009 report found that appellant was totally disabled from her date-of-injury
position or an equivalent position as the former position required her to walk and stand for long
periods of time. He further found that she may develop profound depression if she returned to
work. As stated, Dr. Kurk formed one part of the conflict in the medical opinion evidence for
which appellant was referred to Dr. Katz. Therefore, the Board finds that his report is
insufficient to create a new conflict in the medical evidence or to overcome the well-rationalized
medical opinion of Dr. Katz, the impartial medical specialist.5
Appellant’s contention on appeal that she continues to suffer from residuals and total
disability due to her accepted March 8, 1991 employment injuries is not borne out by the
evidence of record. The Board finds the special weight of the medical evidence, as represented
by Dr. Katz, the impartial medical specialist, establishes that she has no continuing employmentrelated residuals or disability and, thus, the Office properly terminated her compensation
benefits.
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation benefits
effective January 17, 2010 on the grounds that she no longer had any residuals or disability
causally related to her accepted employment-related neck trauma, back and chest contusion and
postconcussion syndrome.

5

See Jaja K. Asaramo, 55 ECAB 200 (2004); Michael Hughes, 52 ECAB 387 (2001).

4

ORDER
IT IS HEREBY ORDERED THAT the January 8, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 2, 2010
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.L., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Philadelphia, PA, Employer
__________________________________________

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Appearances:
Jason S. Lomax, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-894
Issued: August 15, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 6, 2014 appellant, through his attorney, timely appealed the September 9, 2013
merit decision of the Office of Workers’ Compensation Programs (OWCP), which declined
authorization for left knee surgery.1 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

The Board received the appeal on March 11, 2014. However, reliance on the date of receipt would render the
appeal untimely by one day. Under the circumstances, the Board relied on the March 6, 2014 date of mailing as
certified by appellant’s counsel. Accordingly, the appeal is timely pursuant to 20 C.F.R. § 10.501.3(f)(1) (2012).
2
3

5 U.S.C. §§ 8101-8193 (2006).

The record on appeal contains evidence received after OWCP issued its September 9, 2013 decision. The Board
is precluded from considering evidence that was not in the case record at the time OWCP rendered its final decision.
20 C.F.R. § 501.2(c)(1).

ISSUE
The issue is whether OWCP abused its discretion by declining authorization for a left
total knee arthroplasty.
FACTUAL HISTORY
Appellant, a 57-year-old maintenance mechanic, injured his left knee in the performance
of duty on December 7, 2007.4 OWCP accepted his traumatic injury claim for left medial
meniscus tear and authorized a February 6, 2008 arthroscopic procedure.5 Appellant received
wage-loss compensation until he resumed work in October 2008.
In January 2011, Dr. Brislin requested authorization for a left total knee arthroplasty. In a
February 15, 2011 report, he noted continued degeneration of appellant’s left knee following
surgery in February 2008. Dr. Brislin stated that removal of the shock absorbing meniscal
cartilage can cause degeneration of the knee. He also indicated that recent x-rays demonstrated a
bone-on-bone condition in the medial femorotibial compartment. Dr. Brislin further stated that
the December 2007 employment injury and subsequent surgery aggravated appellant’s
underlying knee condition to the point where total knee arthroplasty was the only viable option.
OWCP referred the case to its district medical adviser (DMA), Dr. Arnold T. Berman, a
Board-certified orthopedic surgeon, who reviewed the record on April 28, 2011. Dr. Berman
noted that preinjury x-rays dated October 9, 2006 showed moderately advanced degenerative
changes in both knees and a December 14, 2007 left knee magnetic resonance imaging (MRI)
scan also demonstrated advanced osteoarthritis. He further noted that when appellant underwent
left knee surgery in February 2008, the operative report specifically noted an advanced arthritic
condition. Based on this information, Dr. Berman concluded that appellant’s advanced
osteoarthritis predated his accepted employment injury. He further explained that because of the
already advanced nature of the condition, appellant would have required knee replacement
surgery within a fairly short period of time regardless of the work-related injury. Dr. Berman did
not find any evidence that indicated the work injury aggravated appellant’s underlying
osteoarthritis such that it would have caused the condition to progress over such a short period of
time. While he concurred with the proposed surgical procedure, he did not believe that the need
for surgery arose as a result of the accepted employment injury. Appellant’s current condition
and need for surgery was instead a consequence of the natural progression of his preexisting left
knee osteoarthritis.
Relying on the Dr. Berman’s findings, OWCP denied authorization on March 21, 2012.
However, the Branch of Hearings & Review subsequently set aside OWCP’s decision denying
surgery. In an August 31, 2012 decision, the hearing representative determined that there was an
unresolved conflict in medical opinion between Dr. Berman and appellant’s physician,
Dr. Brislin. Consequently, the case was remanded to OWCP with instructions to refer appellant
4

Appellant was walking down stairs and twisted his left leg while stepping over a beam at the bottom of the
stairs.
5

Dr. Brian T. Brislin, a Board-certified orthopedic surgeon, performed a left knee partial medial meniscectomy
and abrasion chondroplasty of the left medial femoral condoyle for grade 4 chondral changes.

2

for an impartial medical evaluation to determine whether the work injury and/or surgery affected
his preexisting osteoarthritis and thus, contributed to the need for a left total knee arthroplasty.
In treatment notes dated September 5, 2012, Dr. Brislin reiterated that a total knee
replacement would be in appellant’s best interest. He further stated that the proposed surgery
was required due to the arthritic change that was exacerbated and aggravated by the
meniscectomy.
OWCP selected Dr. Barry J. Snyder, a Board-certified orthopedic surgeon, to serve as an
impartial medical examiner (IME). Dr. Snyder examined appellant on November 28, 2012 and
issued a report dated February 22, 2013. He noted that appellant twisted his left knee while
coming down steps during work. However, Dr. Snyder mistakenly identified the date of injury
as December 27, 2007 rather than December 7, 2007. He also noted that appellant underwent
arthroscopic surgery for a meniscal tear in February 2008. Dr. Snyder conducted a physical
examination of the lower extremities and personally read several knee x-rays from January 2008
through December 2011. Additionally, he reviewed various medical records, including an
October 9, 2006 left knee x-ray report, a December 14, 2007 left knee MRI scan, Dr. Brislin’s
treatment notes, the February 6, 2008 operative report and Dr. Berman’s April 28, 2011 opinion.
Dr. Snyder noted that OWCP requested his opinion on whether the recommended “left knee
arthroplasty is a direct result of the [December 7, 2007] injury.” There was no dispute as to the
need for total knee replacement.
While acknowledging that OWCP accepted the claim for left medial meniscus tear,
Dr. Snyder explained that Dr. Brislin’s February 6, 2008 operative findings were consistent with
the type of meniscal tear associated with degenerative joint disease, rather than a recent injury.
The reported findings were not representative of an acute tear, but one that had been present for
years. Dr. Snyder further explained that the reported horizontal cleavage tear was, by definition,
a degenerative meniscal tear. When combined with the reported radial and vertical components,
it was all the more obvious that the operative findings related to appellant’s preexisting
degenerative joint disease, independent of the December 2007 employment incident. Although
Dr. Snyder believed that appellant’s left knee complex meniscal derangement was not of recent
onset, he acknowledged the issue was moot given OWCP’s acceptance of left medial meniscus
tear as employment related.
On the question of whether the recommended total knee replacement was related to the
accepted injury, Dr. Snyder acknowledged that a meniscectomy can lead to accelerated
degenerative arthrosis. However, in appellant’s case he had already demonstrated end-stage
degenerative arthrosis of his left knee independent of the arthroscopic meniscectomy.
Dr. Snyder explained that it was impossible for bone-on-bone joint space narrowing to have
occurred just a week after the subject incident. He further noted that appellant had a documented
history of knee pain and was a candidate for total knee replacement long before the
December 2007 incident. Dr. Snyder opined that given the advanced state of appellant’s
degenerative arthrosis, the February 2008 arthroscopic surgery was not likely to relieve his
complaints. For the same reasons, subsequent treatment modalities provided limited relief, if
any. Total knee replacement was the only reasonable treatment with the potential of relieving
appellant’s knee pain, but this recommended treatment was related to his primary degenerative
joint disease and was independent of the accepted work injury.

3

Dr. Snyder stated to a reasonable degree of medical certainty that the proposed total joint
replacement related to appellant’s preexisting degenerative arthrosis, which was a natural disease
disorder, rather than a condition of traumatic or work-related origin. While conceding that
OWCP accepted meniscal tear as employment related, Dr. Snyder reiterated that the prognosis
for relief of knee pain from arthroscopic surgery was poor because of the preexisting left knee
degenerative joint disease, which had already advance to bone-on-bone arthrosis. He stated that
it was “‘end stage’” before the subject incident, regardless of whether appellant incurred
aggravation of meniscal derangement. Dr. Snyder concluded that appellant’s ongoing left knee
symptoms were related to his preexisting, bone-on-bone degenerative arthritic condition,
independent of the subject incident. Appellant’s condition could not have been much worse after
the accepted meniscal tear than objectively noted before it.
In a decision dated February 25, 2013, OWCP denied the requested surgery based on the
IME’s findings.
On September 9, 2013 the Branch of Hearings & Review issued a decision affirming
OWCP’s February 25, 2013 decision.
LEGAL PRECEDENT
An injured employee is entitled to receive all medical services, appliances or supplies,
which a qualified physician prescribes or recommends and which OWCP considers necessary to
treat the work-related injury.6 OWCP has broad discretion in reviewing requests for medical
services under 5 U.S.C. § 8103(a), with the only limitation on its authority being that of
reasonableness.7 Abuse of discretion 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.8
While OWCP is obligated to pay for treatment of work-related conditions, appellant has
the burden of establishing that the medical expenditure was incurred for treatment of the effects
of a work-related injury or condition.9 Proof of causal relationship must include rationalized
medical evidence.10 In addition to demonstrating causal relationship, the injured employee must
show that the requested services, appliances or supplies are medically warranted.11
FECA provides that if there is disagreement between an OWCP-designated physician and
an employee’s physician, OWCP shall appoint a third physician who shall make an
examination.12 For a conflict to arise the opposing physicians’ viewpoints must be of “virtually
6

5 U.S.C. § 8103(a); 20 C.F.R. § 10.310(a) (2011).

7

Joseph E. Hofmann, 57 ECAB 456, 460 (2006).

8

Id.; Daniel J. Perea, 42 ECAB 214, 221 (1990).

9

Debra S. King, 44 ECAB 203, 209 (1992).

10

Joseph E. Hofmann, supra note 7.

11

Id., at 460-61.

12

5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321; Shirley L. Steib, 46 ECAB 309, 317 (1994).

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equal weight and rationale.”13 Where OWCP has referred the case to an impartial medical
examiner to resolve a conflict in the medical evidence, the opinion of such a specialist, if
sufficiently well rationalized and based upon a proper factual background, must be given special
weight.14
ANALYSIS
OWCP accepted appellant’s claim for left medial meniscus tear, which arose on
December 7, 2007. Appellant had a history of preexisting left knee degenerative joint disease,
which OWCP has not accepted as having been aggravated by the December 7, 2007 incident.
OWCP also authorized a February 6, 2008 arthroscopic procedure. At the time, Dr. Brislin
performed a left knee partial medial meniscectomy and an abrasion chondroplasty of the left
medial femoral condoyle. Appellant’s left knee symptoms persisted and Dr. Brislin ultimately
recommended a left knee total arthroplasty. He believed that the December 2007 employment
injury and subsequent surgery aggravated appellant’s underlying knee condition to the point
where a total knee arthroplasty was the only viable option. The DMA did not question the need
for surgery, but disagreed with Dr. Brislin regarding the relationship between the December 7,
2007 employment incident and the current need for surgery. He indicated that appellant’s
current condition and need for surgery was a consequence of the natural progression of his
preexisting left knee osteoarthritis.15
Based on the disagreement between Dr. Brislin and Dr. Berman, OWCP properly referred
appellant to Dr. Snyder an impartial medical examiner to resolve the conflict in medical opinion.
Dr. Snyder, agreed with Dr. Berman. He essentially found that, given the advanced nature of
appellant’s preexisting degenerative joint disease, a left knee arthroplasty was inevitable
regardless of the accepted December 7, 2007 employment incident. Moreover, Dr. Snyder found
that appellant’s prognosis following the February 6, 2008 OWCP-approved surgery was poor
given the preexisting left knee degenerative joint disease had already advance to bone-on-bone
arthrosis.
An IME’s opinion, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.16 In this instance, Dr. Snyder provided a wellrationalized report based on a proper factual and medical history.17 He accurately summarized
the relevant medical evidence and relied on the latest statement of accepted facts. Dr. Snyder
also provided detailed examination findings and medical rationale supporting his opinion. As
such, his opinion as the IME was entitled to determinative weight.
13

Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

14

Gary R. Sieber, 46 ECAB 215, 225 (1994).

15

The DMA did not specifically comment on whether the February 6, 2008 OWCP-approved surgery either
caused or contributed to appellant’s current left knee complaints.
16

Gary R. Sieber, supra note 14.

17

Appellant’s counsel challenges the reliability of Dr. Snyder’s report given his repeated reference to
December 27, 2007 as the date of injury. The Board considers the error merely typographical. Elsewhere in his
report, the IME clearly noted that the purpose of his examination was to determine whether the recommended “left
knee arthroplasty is a direct result of the [December 7, 2007] injury.”

5

The evidence establishes that neither the December 7, 2007 accepted employment injury
or the February 6, 2008 OWCP-approved surgery precipitated appellant’s current need for a left
total knee arthroplasty. Accordingly, OWCP did not abuse its discretion by denying his request
for surgery.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision.18
CONCLUSION
OWCP did not abuse its discretion by declining to authorize the recommended left total
knee arthroplasty.
ORDER
IT IS HEREBY ORDERED THAT the September 9, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 15, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

18

See 5 U.S.C. § 8128(a); 20 C.F.R. §§ 10.605-10.607.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.R., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, Tahlequah, OK, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 10-1551
Issued: March 14, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 29, 20101 appellant filed a timely appeal from May 24 and June 8, 2010 merit
decisions of the Office of Workers’ Compensation Programs.2 Pursuant to 5 U.S.C. § 8149 and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of these decisions.3

1

The appeal was originally filed in March 2010 from a letter of the Office denying appellant’s request for
surgery. This letter did not contain appeal rights. The denial of the Office was reissued with appeal rights on
March 24, 2010 and appellant reiterated his intention to appeal that decision on July 29, 2010. The June 8, 2010
decision was issued in the interim, also denying a surgical procedure, over which the Board has jurisdiction.
2

In the June 8, 2010 decision, the Office granted appellant’s request for an emergency angioplasty performed in
March 2009. An appeal may only be filed with the Board from adverse decisions of the Office; thus the Board does
not have jurisdiction over that part of the decision. 20 C.F.R. § 501.3(a).
3

Additional evidence has been associated with the case record since the Office’s June 8, 2010 decision; however,
the Board cannot consider such evidence for the first time on appeal. The Board’s review of a case shall be limited
to the evidence in the case record before the Office at the time of its final decision. 20 C.F.R. § 10.501.2(c) (2007).

ISSUE
The issue is whether the Office properly denied appellant’s requests for surgical
procedures.
FACTUAL HISTORY
On September 1, 1978 appellant, then a 27-year-old janitor, was mixing bleach and
cleansing powder while working. After inhaling the fumes, he lost consciousness. The Office
accepted appellant’s claim for temporary aggravation of chemical pneumonitis for a closed
period. Appellant later filed various recurrence claims and the Office subsequently accepted
bronchitis and pneumonitis due to fumes, bilateral cataracts and cataract surgery, diabetic
polyneuropathy, meningocococcal carditis and coxsacki carditis. He was terminated from the
employing establishment during his probationary period on December 2, 1978. From 1978 to the
present appellant, who currently resides in Acapulco, Mexico, has been on the periodic rolls and
reimbursed for numerous medical procedures, prescriptions, surgeries and medical care found to
be causally related to his accepted conditions.
By letter received on January 5, 2010, Dr. Alejandro Romero Medina, appellant’s treating
physician in Mexico, requested permission to perform a total right knee replacement. He based
the need for surgery on pain in the right knee, limited in walking short distances and in moving
the knee. Upon physical examination, Dr. Medina noted limited mobility, swelling and pain in
the right knee and “crackle in every movement.” He related that x-rays showed a “deep
destruction of the joint of the right knee.” The Office, by letter dated January 27, 2010, provided
Dr. Medina an opportunity to submit a medical report addressing how this surgery would be
related to appellant’s accepted conditions. No response was received from Dr. Medina.
By decision dated May 24, 2010, the Office denied appellant’s request for total right knee
replacement finding that the medical evidence was insufficient to establish a causal connection
between the proposed procedure and his accepted conditions.
Additionally, medical bills were received by the Office from another Mexican treating
physician, Dr. Anton Meneses Bonilla, for an emergency percutaneous transluminal coronary
angioplasty performed in March 2009 and for a sleeve gastrectomy performed in September
2009. The Office, by letter dated March 10, 2010, asked Dr. Bonilla for a medical report
explaining how these procedures were causally related to appellant’s accepted injuries.
A detailed letter was received by the Office from Dr. Bonilla on April 13, 2010.
Dr. Bonilla explained that appellant presented to him in March 2009 with myocardial ischemia, a
type of acute coronary syndrome, with unstable angina. He stated that the angioplasty was
necessary to stabilize appellant’s angina. Appellant had a significant obstruction of the
microcirculation coronary vessels requiring the stent implants. After explaining the procedure in
detail, he noted that it was successful.
As a result of this procedure, Dr. Bonilla noted that appellant’s weight, 510 pounds, and
his diabetes were not conducive to improvement after the angioplasty. Appellant was advised to
strictly control his diabetes through exercise and weight loss. It was suggested that a sleeve

2

gastrectomy would be helpful in losing weight, which was performed in September 2009.
Dr. Bonilla noted the procedure was successful and that appellant received excellent care. At the
time of Dr. Bonilla’s undated report, received by the Office on April 13, 2010, he noted that
appellant had lost 200 pounds, approximately 1-pound a day. Dr. Bonilla submitted various
medical journal articles and reports attesting to the positive effects of the gastric sleeve on obese
individuals. In conclusion, he wrote:
“With all the research I am sending you, including the objective findings that
sustain and rationalize our medical opinions, supported with more than 200
scientific articles … you will find the justification of the procedures … done to
[appellant] and the relation these procedures have with the accident with mortality
risk due to the chemical pneumonitis he got after the accident he had in 1978,
when he was an employee at the Department of [Health and Human Services]. I
am certain that in your medical, ethical and professional judgment, you will now
authorize the payment of a service and medical care given, with the highest
human professional quality, to an American citizen living in Mexico.”
By decision dated June 8, 2010, the Office authorized the angioplasty surgery but denied
the gastrectomy as the medical evidence did not establish that it was related to his accepted
conditions. Although diabetic polyneuropathy was an accepted condition, it noted that diabetes
was not an accepted condition.
LEGAL PRECEDENT
Section 8103(a) of the Federal Employees’ Compensation Act provide for the furnishing
of services, appliances and supplies prescribed or recommended by a qualified physician which
the Office, under authority delegated by the Secretary, considers likely to cure, give relief,
reduce the degree or the period of disability or aid in lessening the amount of monthly
compensation.4
In interpreting section 8103, the Board has recognized that the Office has broad
discretion in approving services provided under the Act. The Office has the general objective of
ensuring that an employee recovers from his or her injury to the fullest extent possible, in the
shortest amount of time. It has broad administrative discretion in choosing means to achieve this
goal. The only limitation on the Office’s authority is that of reasonableness.5 In order to be
entitled to reimbursement for medical expenses, a claimant must establish that the expenditures
were incurred for treatment of the effects of an employment-related injury by submitting
rationalized medical evidence that supports such a connection and demonstrates that the
treatment is necessary and reasonable.6 While the Office is obligated to pay for treatment of

4

5 U.S.C. § 8103(a).

5

Dr. Mira R. Adams, 48 ECAB 504, 505 (1997).

6

See Debra S. King, 44 ECAB 203, 209 (1992).

3

employment-related conditions, the employee has the burden of establishing that the expenditure
is incurred for treatment of the effects of an employment-related injury or condition.7
In order to be entitled to reimbursement of medical expenses, a claimant must establish
that the expenditures were incurred for treatment of the effects of an employment-related injury.
Proof of causal relation in a case such as this must include supporting rationalized medical
evidence.8
ANALYSIS
The only limitation on the Office’s authority in approving or disapproving, services under
the Act is that of reasonableness.9 Appellant requested and was denied authorization for a total
right knee replacement and a sleeve gastrectomy.
Dr. Medina’s explanation for the knee surgery discussed clinical findings at the time he
examined appellant but did not reference his accepted conditions or how the knee surgery was
likely to cure, give relief, reduce the degree or the period of disability or aid in lessening the
amount of monthly compensation for the employment injury. As Dr. Medina did not provide
any medical opinion addressing whether the surgery was medically necessary to treat the
accepted injuries, his reports are of diminished probative value.10 The Office provided him the
opportunity to provide a more detailed report justifying the surgery, but no response was
received.
The Office also received a detailed letter from Dr. Bonilla regarding appellant’s gastric
surgery. Dr. Bonilla’s report was very detailed and thorough in explaining the evaluation of
appellant for the surgery, the surgery itself and the very careful follow-up care for appellant, as
well as proof that such a procedure is indicated in morbidly obese individuals. What the report
lacked, however, was a rationalized medical opinion on how that surgery was medically
necessary to treat appellant’s work-related conditions. Dr. Bonilla referenced the 1978 work
incident but did not specifically address the accepted conditions and how the gastric procedure
would benefit treatment of those conditions. His broad reference at the end of his letter to
various medical journal articles is insufficient to explain how appellant’s surgery was necessary
and reasonable treatment for the employment-related conditions.11

7

Kennett O. Collins, Jr., 55 ECAB 648, 654 (2004).

8

Zane H. Cassell, 32 ECAB 1537, 1541 (1981); John R. Benton, 15 ECAB 48, 49 (1963).

9

Supra note 3; Daniel J. Perea, 42 ECAB 214, 221 (1990) (holding that abuse of discretion by the Office 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).
10

See also Michael E. Smith, 50 ECAB 313 (1999); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

11

It is well established that excepts from publications are of little probative value unless the physician explains
the applicability of the general medical principles discussed to the specific factual situation in the employee’s case.
See Roger G. Payne, 55 ECAB 535 (2004).

4

On appeal, appellant disputed the denial of his surgical procedures and the Office’s
classification of his conditions. He claimed “the wording has been changed and I do not agree
with the way is worded” and he did not believe “temporary” was an appropriate categorization of
his conditions since he has had these conditions since 1978. Appellant was concerned about
some bills not being paid causing him to have a bad credit rating.
As to the payment for medical expenses, the Clerk of the Board advised appellant by
letter dated August 5, 2010 that the Board does not authorize medical treatment or payment of
medical bills. Any such matters are appropriately raised with the Office. As to the conditions
accepted by the Office, if appellant believes a new condition should be accepted by the Office,
an appropriate claim may be submitted with supporting medical evidence. As the Office has not
issued any final decision on this issue within 180 days of the filing of this appeal, the Board has
no jurisdiction to render a decision on the matter.12
After considering all of the medical evidence of record, the Office concluded that
authorization for the requested surgeries should be denied. The Board finds that its refusal to
authorize these procedures was reasonable and did not constitute an abuse of discretion.
CONCLUSION
The Board finds that the Office properly denied authorization of the right knee
replacement surgery and the sleeve gastrectomy.

12

The Board is limited to final adverse decisions of the Office issued within 180 days of the appeal. See 20
C.F.R. §§ 501.2(c) and 501.3.

5

ORDER
IT IS HEREBY ORDERED THAT the June 8 and May 24, 2010 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 14, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

6