United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.G, Appellant
and
U.S. POSTAL SERVICE, BROOKLINE POST
OFFICE, Brookline, MA, Employer
__________________________________________

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Appearances:
Daniel B. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0812
Issued: February 28, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 4, 2021 appellant, through counsel, filed a timely appeal from a December 28,
2020 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.
ISSUE
The issue is whether appellant has met his burden of proof to establish a left knee condition
causally related to the accepted factors of his federal 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.

FACTUAL HISTORY
On February 1, 2019 appellant, then a 64-year-old retired 3 letter carrier, filed an
occupational disease claim (Form CA-2) alleging that he developed left knee osteoarthritis due to
factors of his federal employment. He noted that he first became aware of his condition and its
relationship to his federal employment on August 6, 2018.4
A December 6, 2005 x-ray of the right knee revealed right knee joint effusion and right
knee osteoarthritis.
April 13, 2006 x-rays of the knees demonstrated status post tibial osteotomy.
September 7, 2006 x-rays of the knees revealed no interval changes.
An August 11, 2009 x-ray of the knees demonstrated trace knee joint effusion in the left
knee and status post fixation plate and screws within the right proximal tibia of the right knee
without evidence of hardware complication in the right knee.
In an April 2, 2017 medical note, Dr. Justin W. Kung, a Board-certified radiologist, noted
that appellant’s January 21, 2016 x-rays of the left knee revealed severe degenerative change of
the medial compartment of the left knee.
In a May 18, 2017 statement, appellant noted that he had worked as a letter carrier for the
employing establishment for 37 years. He explained that his routes were all walking routes that
had at least 600 deliveries each day and that he was used to walking at least six to seven miles a
day when delivering mail. Appellant further explained that he would ascend and descend
thousands of stairs, steps, and curbs while lifting, carrying, and delivering several hundred pounds
of mail and parcels each day on foot, in all kinds of weather. He noted that he cased mail for about
two hours each day, which required him to stand on his feet the entire time. Appellant further
described casing mail as involving repetitive bending at the hips and knees and back, squatting,
reaching, walking, stopping, twisting, pivoting, lifting, carrying, pushing, and pulling tubs of mail.
He explained that he usually worked overtime. Appellant noted that delivering mail required more
repetitive walking, lifting, carrying, as well as bending, stooping, squatting, twisting, and pivoting.
He asserted that his work was very physical and that he performed very little vigorous physical
activity outside of work. Appellant contended that, although he was not sure when his arthritis
began, his left knee increasingly became more painful beginning five years prior and worsened.
OWCP received a copy of appellant’s letter carrier position description.
In a January 14, 2019 narrative report, Dr. Byron V. Hartunian, a Board-certified
orthopedic surgeon, noted that he examined appellant on August 6, 2018 at which time he
3

A December 29, 2017 notification of personnel action (PS Form-50) indicated that appellant retired from the
employing establishment, effective December 31, 2017.
4
The present claim was assigned OWCP File No. xxxxxx465 by OWCP. Appellant has a prior claim for a
January 18, 2005 traumatic injury under OWCP File No. xxxxxx775, which was accepted for right knee sprain, right
knee medial meniscus tear, and other joint derangement of the right lower leg. OWCP File Nos. xxxxxx465 and
xxxxxx775 have been administratively combined, with the latter serving as the master file.

2

conducted a physical examination and diagnosed left knee arthritis. He indicated that, while xrays of the left knee from September 7, 2006 did not demonstrate any significant joint space
narrowing, a January 21, 2016 x-ray of the left knee revealed significant medial compartment
degeneration. Dr. Hartunian reported that, while appellant sustained no work-related injury to his
left knee, his previous work-related injury in 2005 to the right knee led to multiple procedures and
put additional stresses on his left knee, causing further increase in the discomfort on that side. He
explained that arthritis is a failure and loss of articular cartilage surface. Dr. Hartunian further
noted that the impact loading resulting from repeated local stresses causes and accelerates the
progression of arthritis through a process of chronic inflammation. He explained that chronic
inflammation in turn results in an accelerated loss of articular cartilage in the affected area, most
significantly the loss of proteoglycans, which are responsible for cartilage resilience and water
content. Dr. Hartunian explained that as the water content and cartilage resilience diminishes due
to the inflammation caused by the repeated work stresses, the cartilage is more susceptible to
deterioration from impact loading activities. He further asserted that impact loading and local
stresses from repetitive motion activities such as knee bending, kneeling, lifting, climbing,
stooping, twisting, squatting, and carrying contribute to the development and progression of lower
extremity arthritis.
Dr. Hartunian noted that appellant’s work duties as a letter carrier required constant and
repetitive walking, standing, squatting, stooping, climbing, bending, lifting, carrying, and twisting
activities. He opined that these impact loading activities exerted repeated local stresses to his
lower extremities. Dr. Hartunian explained that ascending stairs, for instance, places loads on the
lower extremity joints approximately three times body weight while descending stairs puts loads
on the lower extremity joints approximately six times body weight. He concluded that appellant’s
work duties as a letter carrier over many years placed repeated local stresses on his lower
extremities and contributed to the progression, acceleration, and permanent aggravation of his left
knee arthritis.
In a development letter dated February 27, 2019, OWCP notified appellant that the
evidence of record was insufficient to establish his claim. It advised him of the type of factual and
medical evidence needed and provided a factual questionnaire for his completio n. In a separate
development letter of even date, OWCP requested that the employing establishment provide
additional information regarding appellant’s alleged injury, including comments from a
knowledgeable supervisor regarding the accuracy of his allegations and an explanation of any areas
of disagreement. It afforded both parties 30 days to submit the requested evidence.
On March 6, 2019 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and a copy of the medical record, to Dr. Stanley Hom, a Board-certified orthopedic
surgeon, for a second opinion evaluation to determine the nature and extent of his employmentrelated left knee condition.
In a March 12, 2019 response to OWCP’s development questionnaire, appellant noted that
he played golf approximately three to four times a week in the warmer months. He also indicated
that he ran once a week and worked out three to four times per week. Appellant also performed
yard work for around two hours each week March through November. He asserted that he only
completed these activities as his health permitted.

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In a March 13, 2019 letter, counsel argued that Dr. Hartunian considered all relevant facts
and provided an adequate narrative of appellant’s treatment, symptoms, diagnostic studies, and a
description of the specific employment duties/activities, as well as a detailed opinion of causal
relationship. He also contended that whether any outside work activities contributed to appellant’s
claimed condition was irrelevant.
In a June 28, 2019 report, Dr. Hom discussed appellant’s factual and medical history and
reported the findings of his physical examination. He noted that appellant complained of bilateral
knee symptoms, greater on the right than on the left, and that he reported that his symptoms were
aggravated with prolonged walking on “hard” ground surfaces. Dr. Hom indicated that appellant
previously injured his right knee on January 15, 2005 when he slipped on a patch of ice, and
initially returned to work in August 2006 after right knee surgery and was then transitioned to a
shorter route using a mail push-cart. He related that appellant experienced the progression of his
right knee symptoms with his work activities. Dr. Hom noted that appellant underwent right total
knee replacement in October 2016 and returned to work in January 2017 with modified duties. He
opined that his left knee arthritis was not related to his work activities. Dr. Hom explained that no
occupational risk factors, such as lifting, standing, and walking, and moderate levels of physical
activities, demonstrated strong or very strong evidence for the development of tibiofemoral knee
joint osteoarthritis.
On September 5, 2019 OWCP determined that a conflict of medical opinion existed
between Drs. Hartunian and Hom with regard to whether appellant sustained left knee arthritis due
to the accepted factors of his federal employment. It referred appellant for an impartial medical
evaluation with Dr. John H. Chaglassian, a Board-certified orthopedic surgeon serving as an
impartial medical examiner (IME). OWCP provided Dr. Chaglassian with an updated SOAF, the
medical record, and a series of questions.
In a September 25, 2019 report, Dr. Chaglassian reviewed the medical evidence of record,
and noted that appellant had been diagnosed with left knee arthritis. He further noted that he had
undergone right knee surgery on April 1, 2005, right total knee replacement on October 17, 2016,
and subsequently retired from his job in 2017. Dr. Chglassian reported essentially normal findings
on physical examination. He opined that appellant’s work duties as a letter carrier had not caused,
precipitated, aggravated, or accelerated the development of his left knee arthritis. Dr. Chaglassian
reasoned that appellant was predisposed to arthritis because of an inherited gene. He indicated
that Dr. Hartunian had not shown a single article published in orthopedic journals that confirmed
his opinion and asserted that his opinion was purely speculative with no prof essional basis,
support, and merit. Dr. Chaglassian further explained that in the absence of any acute traumatic
knee injury, the cause of arthritis is believed by most experts to be related to an inherited gene. He
noted that arthritis is not related to a specific profession.
By decision dated October 7, 2019, OWCP denied appellant’s occupational disease claim,
finding that the medical evidence of record was insufficient to establish causal relationship
between his diagnosed left knee condition and the accepted factors of his federal employment. It
found that the special weight of the medical evidence of record rested with Dr. Chaglassian’s
September 25, 2019 impartial medical evaluation report.

4

On October 16, 2019 appellant, through counsel, requested a hearing before a
representative of OWCP’s Branch of Hearings and Review. He also submitted a series of medical
literature on hip/knee osteoarthritis.
A hearing was held on February 5, 2020.
By decision dated March 27, 2020, OWCP’s hearing representative affirmed the
October 7, 2019 decision.
On September 28, 2020 appellant, through counsel, requested reconsideration and
submitted an August 11, 2020 narrative report from Dr. Robert W. Macht, a general surgeon, as
well as a July 30, 2020 statement from appellant. Counsel contended that Dr. Macht’s report
established causal relationship and explained the deficiencies in Drs. Hom and Chaglassian’s
reports. He argued that their reports were not sufficiently rationalized.
In a July 30, 2020 statement, appellant recounted the specific duties that he performed over
the course of his employment as a letter carrier.
In his August 11, 2020 narrative report, Dr. Macht detailed appellant’s history of injury
and treatment and noted that his work activities consisted of repetitive walking, climbing steps,
bending, kneeling, squatting, stooping, and twisting. He noted that the x-rays of his left knee
demonstrated that he developed left knee osteoarthritis sometime between August 11, 2009 and
January 21, 2016. Dr. Macht noted that appellant limped during this time and ultimately required
right knee replacement surgery on October 17, 2017. He explained that since he could not fully
weight bear with his right knee, he put additional stress on his left knee, particularly the medial
compartment, which is the largest weight bearing surface of a knee. Dr. Macht noted that the
additional weight and stress appellant’s work placed on his legs was borne more by the left leg due
to the right knee injury and pain, hastening the development of the osteoarthritis on the left. He
explained that osteoarthritis is a result of destabilization and degradation of the articular cartilage
of the joint along the subchondral bone and the joint capsule, and that repeated stress from
repetitive impact loading activities accelerates the progression of osteoarthritis through chronic
inflammation. Dr. Macht opined that the inflammation associated with the repetitive and frequent
duties performed by appellant during the course of his work as a letter carrier permanently
aggravated and accelerated the process of degradation of is left knee joint.
Dr. Macht noted that he agreed with Dr. Hartunian’s opinion on causal relationship, which
was further supported by the current peer-reviewed medical literature on the topic. He disagreed
with Drs. Hom and Chaglassian’s reports, noting that their conclusions were contrary to current
medical understanding of osteoarthritis. Dr. Macht cited to a peer-reviewed article which found
that “work involving kneeling and/or squatting is causally associated with an increased risk of
osteoarthritis of the knee.” He concluded that the combination of the original work-related
accident to his right knee and the work-related stress on his legs exacerbated the development of
left knee osteoarthritis.
By decision dated December 28, 2020, OWCP denied modification of its March 27, 2020
decision. It again accorded Dr. Chaglassian’s opinion the special weight of the medical evidence.

5

LEGAL PRECEDENT
An employee seeking benefits under FECA 5 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, 6 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.7 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.8
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence o f the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee. 9
Causal relationship is a medical question that requires rationalized medical op inion
evidence to resolve the issue. 10 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 employee.11 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. 12
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
5

Supra note 2.

6

Y.G., Docket No. 20-0688 (issued November 13, 2020); T.H., Docket No. 18-1736 (issued March 13, 2019); R.C.,
59 ECAB 427 (2008); Joe D. Cameron, 41 ECAB 153 (1989).
7

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
8

C.H., Docket No. 19-1781 (issued November 13, 2020); T.E., Docket No. 18-1595 (issued March 13, 2019);
Delores C. Ellyett, 41 ECAB 992 (1990).
9
T.D., Docket No. 20-0921 (issued November 12, 2020); M.S., Docket No. 18-1554 (issued February 8, 2019). See
also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41
ECAB 345 (1989).
10

J.F., Docket No. 18-0492 (issued January 16, 2020); T.H., 59 ECAB 388, 393 (2008); Jacqueline M. NixonSteward, 52 ECAB 140 (2000); Robert G. Morris, 48 ECAB 238 (1996).
11

L.D., Docket No. 17-1581 (issued January 23, 2018); see also Leslie C. Moore, 52 ECAB 132 (2000); Gary L.
Fowler, 45 ECAB 365 (1994).
12

E.W., Docket No. 19-1393 (issued January 29, 2020); Dennis M. Mascarenas, 49 ECAB 215 (1997).

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make an examination. 13 This is called a referee examination and OWCP will select a physician
who is qualified in the appropriate specialty and who has no p rior connection with the case. 14
When there exist opposing medical reports of virtually equal weight and rationale and the case is
referred to an impartial medical specialist for the purpose of resolving the conflict, the opinion of
such specialist, if sufficiently rationalized and based upon a proper factual background, must be
given special weight. 15
When OWCP obtains an opinion from an impartial medical specialist for the purpose of
resolving a conflict in medical opinion, and the specialist’s opinion requires clarification or
elaboration, OWCP must secure a supplemental report from the specialist to correct the defect in
the original report. 16
ANALYSIS
The Board finds that this case is not in posture for decision.
In his September 25, 2019 report, Dr. Chaglassian, the IME, found that appellant’s left
knee arthritis was not causally related to the accepted employment factors. He explained that
appellant was predisposed to arthritis because of an “inherited gene.” In addition, Dr. Chaglassian
noted that he strongly disagreed with Dr. Hartunian’s opinion on causal relationship as it was
purely speculative with no professional basis, support, and merit. He maintained that appellant
would develop arthritis, which was progressive in nature, because of his “inherited gene,” not
because he was a letter carrier. Dr. Chaglassian, however, did not provide adequate medical
rationale to explain the basis for his conclusion that appellant’s accepted employment duties did
not cause or aggravate appellant’s left knee arthritis. He simply noted that his left knee arthritis
was due to an “inherited gene” as opposed to the accepted employment factors, as related in the
SOAF. Dr. Chaglassian did not explain how appellant’s left knee arthritis was solely due to
nonoccupational factors. 17 The Board has held that any contribution to appellant’s condition by
the accepted employment factors would render his condition compensable. 18 Thus, the Board finds
that Dr. Chaglassian failed to explain, with rationale, why his findings differed from
Dr. Hartunian’s.

13

5 U.S.C. § 8123(a); C.F., Docket No. 20-0222 (issued December 21, 2020); M.W., Docket No. 19-1347 (issued
December 5, 2019); C.T., Docket No. 19-0508 (issued September 5 2019); R.S., Docket No. 10-1704 (issued May 13,
2011); S.T., Docket No. 08-1675 (issued May 4, 2009).
14

S.S., Docket No. 19-1658 (issued June 24, 2019); C.W., Docket No. 18-1536 (issued June 24, 2019).

15

M.W., supra note 13; Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

16

R.T., Docket No. 20-0081 (issued June 24, 2020); Raymond A. Fondots, 53 ECAB 637, 641 (2002); Nancy
Lackner (Jack D. Lackner), 40 ECAB 232 (1988); Ramon K. Ferrin, Jr., 39 ECAB 736 (1988).
17

See R.B., Docket No. 20-0109 (issued June 25, 2020); F.K., Docket No. 19-1804 (issued April 27, 2020); J.T.,
Docket No. 15-1923 (issued December 16, 2015).
18

See F.K., id.; J.B., Docket No. 17-2021 (issued August 8, 2018); G.G., Docket No. 17-0504 (issued August 8,
2017); Beth C. Chaput, 37 ECAB 158 (1985) (it is not necessary to show a significant contribution of employment
factors to a diagnosed condition to establish causal relationship).

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To be entitled to special weight, an IME’s opinion must contain clear, persuasive rationale
on the critical issue in the claim. 19 Furthermore, the Board has held that when an IME fails to
provide medical reasoning to support his conclusory statements about a claimant’s condition, it is
insufficient to resolve a conflict in the medical evidence. 20 When the IME’s opinion requires
clarification or elaboration, OWCP must secure a supplemental report to correct the defect in his
or her original report. 21 Accordingly, the case will be remanded to OWCP for a fully-rationalized
opinion from Dr. Chaglassian, based upon an updated SOAF, regarding whether appellant
sustained a left knee condition causally related to the accepted work factors. If Dr. Chaglassian is
unable to clarify or elaborate on his original report or if his supplemental report is also vagu e,
speculative, or lacking in rationale, OWCP must submit the case record and a detailed SOAF to a
new IME for the purpose of obtaining his or her rationalized medical opinion on the issue. 22
Following this and other such further development as deemed necessary, OWCP shall issue a de
novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

19

R.T., supra note 16; A.R., Docket No. 17-1358 (issued February 1, 2018).

20

R.T., id.; K.C., Docket No. 19-1251 (issued January 24, 2020).

21

M.N., Docket No. 21-0318 (issued August 19, 2021); Talmadge Miller, 47 ECAB 673 (1996); Harold Travis, 30
ECAB 1071, 1078 (1979); see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating
Medical Evidence, Chapter 2.810(11)(c)(1)-(2) (September 2010).
22

T.H., Docket No. 21-0207 (issued December 22, 2021); R.H., Docket No. 17-1903 (issued July 5, 2018); Harold
Travis, id.

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ORDER
IT IS HEREBY ORDERED THAT the December 28, 2020 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: February 28, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate 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
__________________________________________
J.S., Appellant
and
U.S. POSTAL SERVICE, PLANETARIUM
POST OFFICE, New York, NY, Employer
__________________________________________

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Appearances:
Anthony Mangona, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1409
Issued: September 1, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 8, 2020 appellant, through counsel, filed a timely appeal from a June 9, 2020 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
3

5 U.S.C. § 8101 et seq.

The Board notes that following the June 9, 2020 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.

ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective March 14, 2020, as she no longer had disability
or residuals causally related to her January 27, 2017 employment injury; and (2) whether appellant
has established continuing employment-related disability or residuals on or after March 14, 2020.
FACTUAL HISTORY
On January 27, 2017 appellant, then a 55-year-old sales services distribution associate,
filed a traumatic injury claim (Form CA-1) alleging that on that date she sustained head and neck
injuries when an elevator door hit her on the head as she was walking into the elevator while in
the performance of duty. OWCP accepted the claim for brain concussion without loss of
consciousness and post-concussive syndrome. Appellant stopped work on January 28, 2017.
OWCP paid appellant wage-loss compensation on the supplemental rolls commencing July 24,
2017 and on the periodic rolls commencing October 14, 2018.
In support of her claim, appellant submitted a report dated April 12, 2017 from
Dr. Michael S. Taub, an attending Board-certified orthopedic surgeon, who diagnosed cervicalgia,
thoracalgia, myofascial pain syndrome, lumbosacral radiculopathy, lumbosacral sprain and strain,
left shoulder pain/myalgia, right knee pain/myalgia, and post-concussive syndrome (a.k.a.,
migraine-like headaches) due to the accepted January 27, 2017 employment injury.
In a November 15, 2017 report, Dr. Ranga C. Krishna, a Board-certified neurologist,
diagnosed cerebral concussion, post-traumatic headache, traumatic brain injury, cervical and
lumbosacral disc herniations with possible radiculopathy. He found appellant totally disabled from
work until further notice.
On March 6, 2018 OWCP referred appellant, a statement of accepted facts (SOAF), a set
of questions, and the medical record, to Dr. Steven Ender, a Board-certified neurologist for a
second opinion evaluation to determine whether she continued to suffer residuals or disability due
to her accepted January 27, 2017 employment injury.
In a report dated March 26, 2018, Dr. Ender, based on a physical examination, review of
the medical evidence, SOAF, and injury history, opined that appellant’s accepted brain concussion
and post-concussive syndrome without loss of consciousness had resolved without residuals or
disability. He explained that appellant’s subjective complaints were not supported by the objective
evidence of record. Dr. Ender noted that appellant’s examination revealed no abnormalit ies
correlating with her subjective complaints. Physical examination findings included full visual
fields, no papilledema with fundoscopic examinations, intact facial sensation to cold sensation and
pinprick, no nystagmus or facial weaken noted, normal motor examination, and intact upper and
lower extremities sensory examination. Dr. Ender also related that, while appellant did not relate
a history of prior injury, review of the record indicated that she had previously sustained cervical
and lumbar injury as a result of a March 24, 2012 motor vehicle accident. He concluded that
appellant’s accepted employment injury had resolved. Dr. Ender further found that no further
treatment or testing was required and she seemed capable of returning to her date-of-injury job,
full time without restrictions.

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On May 8, 2018 OWCP issued a notice proposing to terminate appellant’s wage-loss
compensation and medical benefits based on Dr. Ender’s March 26, 2018 report.
In reports dated May 25, June 1, and October 12, 2018, and February 20, 2019, Dr. Krishna
noted appellant was seen for complaints of persistent headaches, dizziness, radiating neck paint to
her left shoulder, left-sided hearing deficits, and persistent low back pain. He diagnosed
cerebrovascular concussion, traumatic brain injury, left shoulder derangement, cervical disc
herniation resulting in cervical radiculopathy, right knee derangement, left ear hearing impairment,
and lumbosacral disc herniation resulting in lumbosacral radiculopathy.
Dr. Krishna
recommended magnetic resonance imaging (MRI) scans for the brain and cervical and lumbar
spine as well as bilateral upper and lower extremities electromyography and nerve conduction
velocity studies (EMG/NCV). He noted his disagreement with Dr. Ender’s conclusion that the
accepted post-concussion syndrome had resolved based on her cognitive complaints and positive
hail pike maneuver. Dr. Krishna also reiterated that appellant had decreased cervical and lumbar
range of motion and her neck and lower back pain complaints, which he opined were consequential
to the accepted conditions.
OWCP, in a letter dated September 19, 2019, informed appellant that there was a conflict
in medical opinion between Dr. Krishna and Dr. Ender regarding whether there was a causal
relationship between her condition and the accepted employment injury and whether she continued
to have any disability from work due to her accepted employment injury. It referred her to
Dr. David Prince, a Board-certified neurologist, to serve as the impartial medical examiner (IME)
to resolve the conflict in the medical opinion evidence.
In a report dated October 30, 2019, Dr. Prince conducted a physical examination and
reviewed appellant’s medical history and SOAF. He set forth findings based upon appellant’s
physical examination and opined that she had no residuals of her accepted January 27, 2017
employment injury and could return to her usual employment. Dr. Prince indicated that the
medical record established the diagnoses of brain concussion without loss of consciousness and
post-concussive syndrome. He referenced examination findings contained in the medical record
and noted that the changes in reflexes, strength, and sensation were not persistent throughout the
medical record and were unassociated with any abnormalities or reported neuronal structures
compromise. Based on his findings, Dr. Prince found no current objective neuroanatomical
deficits, normal reflexes, normal coordination, and no objective findings of cranial nerve injury.
He also reported that appellant showed no emotional lability, normal movement of head and
extremities, and while talking to him directed her head straight at him rather than turning to face
him with her right ear more than the left ear. A review of a November 27, 2017 EMG did not
support a diagnosis of left C5 radiculopathy. Dr. Prince also reviewed cervical and lumbar MRI
scan reports of record and related that the reports described multilevel findings commensurate with
long-standing degenerative process, clinically unrelated to the January 27, 2017 incident. He
further explained that the MRI scan findings did not show compromise of neuronal structures,
were not diagnostic of permanent impairment, including a change in the degenerative process, as
a result of the incident of January 27, 2017. Dr. Prince related that appellant did not have objective
findings of C5 radiculopathy, or other cervical or lumbosacral radiculopathy. Based upon
appellant’s physical examination and medical record, he related that the accepted employment
injury did not cause an injury to appellant’s wrists or median nerves. Dr. Prince opined that
appellant had not sustained a cervical or lumbar spine injury as a result of the employment injury,

3

and her reported symptoms were not diagnostic of a permanent injury or sequelae as a consequence
of the accepted injury.
Dr. Prince concluded, based on his review of the medical record and examination findings,
that the accepted employment conditions had resolved without residuals or disability. In support
of this opinion, he noted the lack of any objective neurological findings and referenced
examination findings contained in the medical record. Dr. Prince noted that the changes in
reflexes, strength, and sensation were not persistent throughout the medical record and were
unassociated with any abnormalities or reported neuronal structures compromise. He opined that
no additional medical treatment was required for the accepted employment conditions. Dr. Prince
completed a work capacity evaluation (Form OWCP-5c) and reiterated that appellant was capable
of returning to her usual job without restrictions.
By notice dated January 16, 2020, OWCP advised appellant that it proposed to terminate
her wage-loss compensation and medical benefits based on the report of the IME, Dr. Prince. It
found that the special weight of the medical opinion evidence rested with his opinion and afforded
appellant 30 days to submit additional evidence or argument if she disagreed with the proposed
termination.
In an undated attending physician’s report (Form OWCP-20) received on February 20 and
27, 2020, Dr. Krishna diagnosed cervical and lumbosacral disc syndrome, radiculopathy, and posttraumatic headaches and dizziness. He checked a box marked “Yes” in response to the question
of whether the diagnosed conditions had been caused or aggravated by the accepted January 27,
2017 employment injury. Dr. Krishna opined that appellant has been totally disabled from work
since January 27, 2017 and continues to be totally disabled.
By decision dated March 13, 2020, OWCP terminated appellant’s wage-loss compensation
and medical benefits, effective March 14, 2020. It found that the opinion of Dr. Prince, the IME,
represented the special weight of the evidence and established that she had no further disability or
residuals due to her accepted January 27, 2017 employment injury.
On April 16, 2020 appellant requested reconsideration.
By decision dated April 23, 2020, OWCP denied modification.
On May 13 and June 1, 2020 appellant requested reconsideration. In support of her
request, she submitted an undated report from Dr. Krishna who opined that appellant’s disability
had not resolved. Dr. Krishna explained that appellant continued to have neck and lower back
complaints of pain and stiffness radiating into her bilateral lower and upper extremities and
complaints of dizziness and severe headaches. He opined that appellant remains totally disabled
from work due to her diagnoses of migraine headache, cervical radiculopathy, and lumbosacral
radiculopathy.
By decision dated June 9, 2020, OWCP denied modification.

4

LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.4 After it has determined that, an employee
has disability causally related to his or her federal employment, it may not terminate compensation
without establishing that the disability has ceased or that it is no longer related to the employment. 5
OWCP’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background. 6
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation. 7 To terminate authorization for medical treatment, OWCP
must establish that appellant no longer has residuals of an employment-related condition which
require further medical treatment. 8
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.9 In situations where there exist
opposing medical reports of virtually equal weight and rationale and the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such specialist,
if sufficiently well rationalized and based upon a proper factual background, must be given special
weight.10
ANALYSIS -- ISSUE 1
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective March 14, 2020 as she no longer had disability or
residuals causally related to her accepted January 27, 2017 employment injury.
The Board finds that the special weight of the evidence is represented by the thorough and
well-rationalized opinion of Dr. Prince, the IME selected to resolve the conflict in medical

4
D.G., Docket No. 19-1259 (issued January 29, 2020); R.P., Docket No. 17-1133 (issued January 18, 2018); S.F.,
59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
5

See C.S., Docket No. 20-0621 (issued December 22, 2020); T.K., Docket No. 18-1239 (issued May 29, 2019);
M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB 465 (2004).
6

D.G., id.; M.C., Docket No. 18-1374 (issued April 23, 2019); Del K. Rykert, 40 ECAB 284, 295-96 (1988).

7

D.G., id.; A.G., Docket No. 19-0220 (issued August 1, 2019); A.P., Docket No. 08-1822 (issued August 5, 2009);
T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005). Furman G. Peake, 41 ECAB 361 (1990).
8

D.G., id.; A.G., id.; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002);
Furman G. Peake, id.
9

5 U.S.C. § 8123(a); S.R., Docket No. 19-1229 (issued May 15, 2020); L.T., Docket No. 18-0797 (issued
March 14, 2019).
10

S.R., id.; D.W., Docket No. 18-0123 (issued October 4, 2018).

5

opinion.11 In his October 30, 2019 report, Dr. Prince found no objective neuroanatomical deficits
and no objective evidence of any cranial nerve injury during his examination of appellant. His
opinion has reliability, probative value, and convincing quality with respect to whether appellant
had further employment-related disability based upon his finding no objective evidence supporting
a permanent neurologic injury. Dr. Prince provided a thorough factual and medical history and
accurately summarized the relevant medical evidence. 12 He provided rationale for his opinion by
explaining that appellant’s findings on examination showed no objective evidence of a permanent
neurologic injury, neurologic disability, or a permanent neurologic injury as a result of the
accepted January 27, 2017 employment injury. Dr. Prince reached a reasoned conclusion
regarding appellant’s employment-related disability and need for further medical treatment. His
opinion, thus, represents the special weight of the evidence and establishes that she had no further
disability causally related to her January 27, 2017 employment injury.13
The additional evidence submitted prior to OWCP’s termination of appellant’s
compensation is insufficient to overcome the special weight afforded to Dr. Prince as IME. In an
undated Form CA-20 received on February 20 and 27, 2020, Dr. Krishna diagnosed post-traumatic
headaches and dizziness and he found that appellant was totally disabled. As previously noted, he
did not, however, provide a rationalized opinion in this report to explain whether appellant’s
diagnosed condition were causally to the employment injury and continued disability. The Board
has held that a mere conclusion without the necessary rationale as to whether a period of disability
is due to an accepted employment injury is insufficient. 14 Additionally, he was on one side of the
conflict regarding whether appellant had continued employment-related disability or residuals.
Reports from a physician who was on one side of a medical conflict resolved by an IME are
generally insufficient to overcome the special weight accorded to the opinion of the IME or to
create a new conflict. 15
The Board, therefore, finds that OWCP properly terminated appellant’s wage-loss
compensation and medical benefits, effective March 14, 2020.16
LEGAL PRECEDENT -- ISSUE 2
Once OWCP properly terminated compensation benefits, the burden shifts to appellant to
establish continuing disability after that date causally related to the accepted injury. 17 To establish
11

J.N., Docket No. 20-1030 (issued November 20, 2020); R.P., Docket No. 19-0057 (issued May 16, 2019).

12

J.N., id.; M.R., Docket No. 19-0518 (issued September 12, 2019); A.G., Docket No. 19-0113 (issued
July 12, 2019).
13

See J.K., Docket No. 18-1250 (issued

14

J.N., id.; A.T., Docket No. 19-0410 (issued August 13, 2019); E.L., Docket No. 17-1632 (issued January 3, 2018).

15

D.G., Docket No. 19-1259 (issued January 29, 2020); I.J., 59 ECAB 408 (2008).

J.N., id.; A.M., Docket No. 18-1243 (issued October 7, 2019).
June 25, 2019).

16

See J.N., supra note 11; R.A., Docket No. 17-1472 (issued December 6, 2017); Sedi L. Graham, 57 ECAB
494 (2006).
17

See J.N., id.; S.M., Docket No. 18-0673 (issued January 25, 2019); L.C., Docket No. 18-1759 (issued
June 26, 2019).

6

causal relationship between the accepted conditions as well as any attendant disability claimed and
the employment injury, an employee must submit rationalized medical evidence based on a
complete medical and factual background supporting such causal relationship. 18
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met her burden of proof to establish continuing
employment-related disability or residuals on or after March 14, 2020.
Subsequent to the termination of her wage-loss compensation and medical benefits,
appellant submitted an undated report from Dr. Krishna opining that appellant’s accepted
employment conditions had not resolved and that she continued to be totally disabled. Dr. Krishna
did not, however, provide rationale for his causation finding and disability determination and, thus,
his opinion is of little probative value. 19 Further, as discussed, the Board has long held that reports
from a physician who was on one side of a medical conflict resolved by an IME are generally
insufficient to overcome the special weight accorded to the report of the IME or to create a new
conflict.20 The Board finds that as Dr. Krishna was on one side of the conflict resolved by
Dr. Prince, his additional report is of insufficient weight to overcome the special weight accorded
to the IME or to create a new medical conflict. 21 The Board thus finds that appellant has not
established continuing employment-related disability or residuals on or after March 14, 2020.22
CONCLUSION
The Board finds that OWCP properly terminated appellant’s wage-loss compensation and
medical benefits, effective March 14, 2020, as she no longer had disability or residuals causally
related to her accepted January 27, 2017 employment injury. The Board further finds that she has
not met her burden of proof to establish continuing employment-related disability or residuals on
or after March 14, 2020.

18

Id.

19

A.T., Docket No. 20-0334 (issued October 8, 2020) (a medical report is of limited probative value on a given
medical issue if it contains a medical opinion which is unsupported by medical rationale).
20

See J.N., supra note 11; R.B., Docket No. 16-1481 (issued May 2, 2017).

21

See J.N., id.; G.T., Docket No. 17-1959 (issued June 22, 2018); D.G., Docket No. 17-0608 (issued
March 19, 2018).
22

Id.

7

ORDER
IT IS HEREBY ORDERED THAT the June 9, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: September 1, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hammond, IN, Employer
__________________________________________

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

Docket No. 20-0414
Issued: July 30, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 12, 2019 appellant filed a timely appeal from a September 25, 2019 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from the last merit decision, dated May 3, 2019, to the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence on appeal. 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 OWCP properly determined that appellant abandoned her request for
an oral hearing before an OWCP hearing representative.
FACTUAL HISTORY
On February 7, 2019 appellant, then a 49-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on January 22, 2019 she injured her back when she fell while in the
performance of duty. On February 12, 2019 OWCP accepted her claim for contusion of the lower
back and pelvis.
On March 18, 2019 appellant filed a claim for wage-loss compensation (Form CA-7) for
the period March 9 through 15, 2019. By decision dated May 3, 2019, OWCP denied her claim
for wage-loss compensation. On May 31, 2019 appellant requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review.
In a July 31, 2019 notice, OWCP’s hearing representative informed appellant that her oral
hearing was scheduled for September 12, 2019 at 9:45 a.m. Eastern Standard Time (EST). OWCP
instructed her to “call the toll free number listed below and when prompted, [and] enter the pass
code also listed below.” It mailed the notice to appellant’s last known address of record. Appellant
did not make an appearance and no request for postponement of the hearing was made.
By decision dated September 25, 2019, OWCP’s hearing representative found that
appellant had failed to appear at the oral hearing and had abandoned her request. The hearing
representative indicated that she had received written notice of the hearing scheduled for
September 12, 2019 30 days in advance, and that she failed to appear for the oral hearing. OWCP
further found that there was no indication in the record that appellant had contacted the Branch of
Hearings and Review either prior to or subsequent to the scheduled hearing to explain her failure
to appear.
LEGAL PRECEDENT
A claimant who has received a final adverse decision by OWCP may obtain a hearing by
writing to the address specified in the decision within 30 days of the date of the decision for which
a hearing is sought.3 Unless otherwise directed in writing by the claimant, OWCP’s hearing
representative will mail a notice of the time and place of the hearing to the claimant and any
representative at least 30 days before the scheduled date.4 OWCP has the burden of proof to
establish that it properly mailed to a claimant and any representative of record a notice of a
scheduled hearing.5

3

20 C.F.R. § 10.616(a).

4

Id. at § 10.617(b).

5
T.R., Docket No. 19-1952 (issued April 24, 2020); M.R., Docket No. 18-1643 (issued March 1, 2019); T.P., Docket
No. 15-0806 (issued September 11, 2015); Michelle R. Littlejohn, 42 ECAB 463 (1991).

2

A claimant who fails to appear at a scheduled hearing may request in writing, within 10
days after the date set for the hearing, that another hearing be scheduled. Where good cause for
failure to appear is shown, another hearing will be scheduled and conducted by teleconference.
The failure of the claimant to request another hearing within 10 days, or the failure of the claimant
to appear at the second scheduled hearing without good cause shown, shall constitute abandonment
of the request for a hearing.6
ANALYSIS
The Board finds that OWCP properly determined that appellant abandoned her request for
an oral hearing before an OWCP hearing representative.
The record establishes that, on July 31, 2019, in response to appellant’s timely request for
an oral hearing, a representative of OWCP’s Branch of Hearings and Review properly mailed a
notice of the scheduled telephonic hearing to be held on September 12, 2019 at 9:45 a.m., EST.
The hearing notice was mailed to appellant’s last known address of record and provided
instructions for participation. Appellant, however, failed to call in for the scheduled hearing using
the provided telephone number and passcode. She did not request a postponement or provide an
explanation to OWCP for her failure to attend the hearing within 10 days of the scheduled hearing.
The Board thus finds that OWCP properly determined that appellant abandoned her request for a
telephonic oral hearing.7
On appeal appellant contends that she never received the September 12, 2019 date for the
hearing. However, absent evidence to the contrary, a letter properly addressed and mailed in the
ordinary course of business is presumed to have been received. This is called the mailbox rule.8
Appellant did not submit evidence of nondelivery of OWCP’s hearing notice such that the
presumption of receipt would be rebutted. The Board, therefore, finds that appellant abandoned
her request for an oral hearing.
CONCLUSION
The Board finds that OWCP properly determined that appellant abandoned her request for
an oral hearing before an OWCP hearing representative.

6

20 C.F.R. § 10.622(f); Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Review of the Written
Record, Chapter 2.1601.6(g) (October 2011); A.J., Docket No. 18-0830 (issued January 10, 2019); L.B., Docket No.
18-0533 (issued August 27, 2018).
7

Id.

8

See C.Y., Docket No. 18-0263 (issued September 14, 2018).

3

ORDER
IT IS HEREBY ORDERED THAT the September 25, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 30, 2020
Washington, DC

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

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.S., Appellant
and
DEPARTMENT OF LABOR, MINE SAFETY &
HEALTH ADMINISTRATION, Harlan, KY,
Employer
__________________________________________

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

Docket No. 07-1361
Issued: November 13, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 25, 2007 appellant filed a timely appeal from the January 29, 2007 decision of
the Office of Workers’ Compensation Programs denying modification of his schedule award for
hearing loss. 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 appellant has established that he has greater than four percent
hearing loss in his left ear causally related to factors of his federal employment.
FACTUAL HISTORY
On December 12, 2000 appellant, then a 63-year-old coal mine inspector, filed an
occupational disease claim alleging that he sustained increased hearing loss as a result of his
federal duties. The claim was assigned file number 110183222. On March 7, 2001 appellant’s

claim was accepted for left ear hearing loss and on April 9, 2001 the Office issued a schedule
award for the four percent impairment of his left ear.
On January 19, 2004 appellant filed an occupational disease claim alleging that his
hearing loss had worsened since retiring from the employing establishment. The claim was
assigned file number 112020096. Robert Rhea, appellant’s former supervisor, stated that
appellant had been employed by the employing establishment from October 1989 to
January 2003. He stated that appellant had been provided with hearing protection. Daniel
Johnson, appellant’s supervisor from May 2002 until his retirement on January 12, 2003, stated
that appellant was exposed to a wide range of noise levels while working underground five days
a week and that he had been provided with hearing protection. The Office also provided the
result of audiometric testing and exposure hours from 1989 to 2003.
On February 12, 2004 the Office requested additional information about appellant’s
condition. On March 15, 2004 appellant stated that his last exposure to hazardous noise at work
occurred in June 2002 and that his only other exposure to loud noise was shooting a shotgun,
which occurred 6 to 10 times a year.
On July 7, 2004 the Office referred appellant to Dr. Kevin Kavanagh, a Board-certified
otolaryngologist, for a second opinion examination. On July 30, 2004 Dr. Kavanagh reported
that appellant had a history of high blood pressure, heart disease, heart surgery and diabetes and
that his hearing loss got much worse over the previous year. He found that appellant’s ear canals
were open bilaterally, but found air and fluid levels behind the right ear drum. In tuning fork
testing, appellant lateralized to the right side at 256 hertz (Hz) and 512 Hz and, in Rinne testing,
he was positive bilaterally at 256 Hz and 512 Hz, but negative at 1,024 Hz. Dr. Kavanagh noted
that the audiometric tests revealed that appellant’s sensorineural hearing loss was severe in the
high frequencies and mild in the low frequencies. He found that, the right ear loss included a
significant conductive component of 20 to 25 decibels. Dr. Kavanagh opined that appellant’s
hearing loss had progressed significantly since 2001. He noted that appellant’s speech to
reception threshold (SRT) had increased from 5 to 35 decibels in the left ear and from 5 to 50
decibels in the right ear, though 15 to 20 decibels of the right side loss was related to inner ear
fluid. Dr. Kavanagh found that the progression of the inner ear portion of the hearing loss
strongly suggested that it was not caused by noise. He stated that once noise exposure stops,
hearing loss due to that noise progresses in the same manner as presbycusis. Dr. Kavanagh
opined that the probable etiology of appellant’s increased hearing loss was small vessel disease
secondary to heart disease and diabetes. He noted that the conductive hearing loss in the right
ear also indicated pathology besides noise-induced hearing loss. Dr. Kavanagh stated that
appellant’s hearing loss was not due to occupational noise exposure. He provided the results of
the audiometric testing and testing verification.
The Office medical adviser reviewed and concurred with Dr. Kavanagh’s findings.
By decision dated August 13, 2004, the Office denied appellant’s claim on the grounds
that Dr. Kavanagh’s report did not establish that his hearing loss was employment related. The
Office noted that the audiometric tests submitted by the employing establishment were not
sufficient to establish that the hearing loss was caused by his employment. It stated, however,

2

that appellant remained entitled to medical treatment, including hearing aids, under file number
110183222.
On November 8, 2004 appellant requested reconsideration. On October 5, 2004
Dr. Samir Guindi, a Board-certified otolaryngologist, stated that appellant had complained of
hearing problems for several years, especially in situations with background noise or more than
one person talking. He stated that appellant had worked around noise for 30 years, 15 of which
were with the employing establishment. Dr. Guindi reported that appellant had no history of ear
infection, though he previously had tubes in his ears for fluid. On examination, he noted that
appellant’s tympanic membranes were intact and clear, but that the tympanogram for his right
ear was Type B. Appellant’s audiogram showed speech recognition threshold at 40 decibels in
his right hear and 30 decibels in his left ear. The speech recognition scores were 90 percent for
65 decibels in the right ear and 72 percent for 60 decibels in the left ear. Dr. Guindi concluded
that appellant had noise-induced sensorineural hearing loss that equaled 15 percent whole person
impairment under the American Medical Association, Guides to the Evaluation of Permanent
Impairment (5th ed. 2001). He also stated that appellant would benefit from a hearing aid.1
Dr. Frank Mongiardo, a Board-certified otolaryngologist, provided audiograms
conducted on August 24 and September 27, 2004. The identity of the audiologist is unclear. In
the August 24, 2004 report, the audiologist noted that the right ear had mixed loss and the left ear
had moderate to severe sensorineural hearing loss. The tympanograms were Type C for the right
ear and Type A (normal) for the left ear. The speech results were in agreement with the
audiogram results. The audiologist recommended hearing aids and annual evaluations and stated
that appellant needed to see a physician about the conductive hearing loss in his right ear. On
September 27, 2004 the audiologist noted continuing mixed right ear hearing loss with high
frequency sensorineural hearing loss, probably noise induced. Tympanograms for the right ear
were Type C and for the left ear were Type A/B. Speech responses were in agreement with the
audiogram and hearing levels. Dr. Mongiardo found that appellant’s hearing loss was mixed and
included both sensorineural and noise-induced losses.
On October 5, 2005 Angela Morris, a Board-certified audiologist, performed an
audiometric examination. She noted that appellant could hardly concentrate because of tinnitus,
that he had a tube in his right ear and that he had diabetes. Ms. Morris found moderate to
profound sensorineural hearing loss bilaterally and noted mild SRT loss, but good speech
discrimination bilaterally. She found that appellant’s tympanogram for the right ear was normal
Type A and that his left ear was flat Type B with a large valve or tube.2
On December 6, 2004 the Office provided the new medical evidence to the Office
medical adviser for an evaluation of whether modification of appellant’s schedule award was
warranted. On December 19, 2004 the Office medical adviser stated that, according to the
record, appellant retired from the employing establishment in January 2003 but that his hearing
did not start to get worse until approximately July 2003, which was “long after” his noise
1

Dr. Guindi did not state why appellant had not received hearing aids under his earlier claim.

2

It appears that Ms. Morris switched the right and left ears in her tympanogram analysis as she noted elsewhere
in the report that appellant had a valve in his right ear.

3

exposure had ended. He stated that Dr. Kavanagh had indicated that sensorineural hearing loss
due to noise exposure ceases when the exposure ceases. The Office medical adviser noted that
the July 26, 2004 audiogram indicated that appellant’s hearing loss was mildly sloping in the left
ear and profound in the right ear. Dr. Zimmerman concurred with Dr. Kavanagh’s finding that
the loss from 250 to 2,000 Hz could not be due to noise exposure, and was more likely caused by
small vessel disease, related to appellant’s heart disease and diabetes, as well as right-side
conduction losses. He found that Dr. Guindi provided no rationale for his opinion and did not
account for the 15 to 20 decibel conduction hearing loss in the right ear or the possibility of small
vessel disease found by Dr. Kavanagh. Dr. Zimmerman stated that Dr. Guindi did not provide a
thorough medical history or explain the delay in the onset of the hearing loss. He stated that the
October 5, 2004 audiogram was not acceptable. There was no indication of whether
Dr. Zimmerman reviewed the audiometric reports from Dr. Mongiardo.
By decision dated January 3, 2005, the Office denied modification of its August 13, 2004
decision.
On February 5, 2005 appellant requested reconsideration. He contended that the Office
had not considered the audiometric reports of Dr. Mongiardo. Appellant also challenged
Dr. Kavanagh’s statement that he had reported significant worsening only in the previous year;
he stated that he had informed Dr. Kavanagh that his hearing worsened over several years. He
provided copies of the 1998, 2001 and 2002 audiometric examinations submitted by the
employing establishment. The 1998 report stated that pure-tone testing indicated mild to
profound hearing loss on the right and threshold losses from mild to severe from 2,000 to 8,000
Hz on the left. In the 2001 report, the audiologist stated that appellant had high-frequency
moderate to severe loss from 3,000 to 8,000 Hz on the right and moderate to profound loss from
2,000 to 8,000 Hz on the left. In the 2002 report, the audiologist found mild to profound hearing
loss on the right and borderline normal hearing with profound loss from 2,000 to 8,000 Hz on the
left.
In a January 18, 2005 report, Dr. Frank Little, a Board-certified otolaryngologist, stated
that appellant had a myringotomy tube in his right tympanic membrane to treat chronic
Eustachian tube dysfunction, but that his canals and membranes were otherwise normal. He
stated that the audiogram showed bilateral mild to profound sloping sensorineural hearing loss in
both ears with a mild conductive component in the low frequencies in the right ear. Dr. Little
reviewed past audiograms, which showed progressive worsening of appellant’s sensory hearing
loss from the time he began working at the employing establishment. He opined that the noise
levels to which appellant was exposed were too high for the protection he was given and that the
work environment significantly worsened his hearing loss to the point of needing hearing aids.
On February 28, 2005 at the request of the Office, Dr. Zimmerman reviewed the newly
submitted medical evidence and found that it was not sufficient to revise appellant’s schedule
award because it appeared that the audiometric tests of October 5, 2004 and January 18, 2005
were not conducted according to Office protocol.
By decision dated April 20, 2005, the Office denied modification of appellant’s schedule
award.

4

On June 27, 2005 appellant requested reconsideration of the Office’s decision. He
requested that the Office review his old audiograms, specifically those from 2000 and 2002, and
consider a new report from Dr. Mongiardo. On May 4, 2005 Dr. Mongiardo stated that appellant
had continuing mixed hearing loss and Type C tympanogram for the right ear and borderline
normal to moderately severe sensorineural hearing loss in the left ear. He reported that appellant
continued to complain of tinnitus. Dr. Mongiardo noted no abnormalities on the external
auditory meatus or tympanic membrane. He diagnosed sensorineural hearing loss and stated
that, according to the American Academy of Otolaryngology and the American Council of
Otolaryngology, appellant had an impairment of 60 percent in his right ear, 30 percent in his left
ear and binaural impairment of 35 percent. No audiometric tests results were attached.
On September 12, 2005 Dr. Zimmerman found that the 2002 audiometric report did not
support a revision of appellant’s schedule award because it did not contain the documentary
elements required by the Office. He did not address Dr. Mongiardo’s report.
By decision dated September 28, 2005, the Office denied modification of its April 20,
2005 decision. The Office stated that Dr. Zimmerman found that Dr. Mongiardo’s May 2005
report was not in accordance with the Office requirements.
On October 20, 2005 appellant requested reconsideration on the basis of an October 18,
2005 report from Dr. Mongiardo who stated that, under the A.M.A., Guides, appellant’s May 4,
2005 audiograms showed right ear hearing impairment of 60 percent, left ear impairment of 30
percent and binaural hearing impairment of 35 percent.
On March 8, 2006 the Office medical adviser, Dr. Zimmerman, found that
Dr. Mongiardo’s October 18, 2006 report, which was not accompanied by an audiogram report,
had no impact on schedule award for noise-induced hearing loss, as the noise exposure ceased in
January 2003.
By decision dated March 17, 2006, the Office denied modification of its September 28,
2005 decision on the grounds that the Office medical adviser found the new medical evidence to
be insufficient.
On April 26, 2006 appellant requested reconsideration of the Office’s decision. On
March 28, 2006 Dr. Guindi stated that he was treating appellant for hearing loss, right worse than
left. He reported that appellant’s tympanic membranes were intact and clear, that his speech
threshold was 60 decibels on the right and 25 decibels on the left, and that his speech recognition
was 92 percent on the right and 88 percent on the left. Dr. Guindi found 11 percent whole
person impairment and recommended a hearing aid. The audiologist found that appellant had
moderate to profound hearing loss in his right ear and normal to profound loss in his left ear.
On May 10, 2006 Dr. Zimmerman found that the March 28, 2006 audiometric assessment
was not in conformance with the Office’s protocols for hearing loss schedule awards. He also
found that Dr. Guindi’s report did not explain how appellant’s current hearing condition was
related to his employment exposure. For these reasons, Dr. Zimmerman found that the new
evidence did not allow a revision of appellant’s schedule award.

5

By decision dated June 23, 2006, the Office denied modification of the March 17, 2006
decision. The Office found that Dr. Guindi’s reports provided no reasoned medical opinion,
failed to address the effect of appellant’s nonemployment-related disease on his hearing loss and
did not provide an impairment rating consistent with the A.M.A., Guides (fifth edition).
On November 27, 2006 appellant requested reconsideration of the Office’s decision and
submitted the August 2, 2006 report of Dr. Mongiardo. He also contended that there was no
medical evidence that diabetes could have an effect on his hearing loss, as suggested by
Dr. Kavanagh. In the August 2, 2006 hearing evaluation report, the audiologist stated that
appellant had continuing bilateral sensorineural hearing loss with Type A tympanograms and
speech responses comparable with his hearing loss and audiograms. Dr. Mongiardo stated that
the hearing loss was due to noise exposure and provided impairment ratings of 26.2 percent for
the right ear, 24.4 percent for the left ear and 24.7 percent binaurally.
On December 20, 2006 the Office medical adviser, Dr. Zimmerman, found that the
August 2, 2006 audiogram was not sufficient to revise the schedule award because it was not
submitted along with a report of the type required by the Office.
By decision dated January 29, 2007, the Office denied modification of its June 23, 2006
decision. The Office found that Dr. Zimmerman had concluded that Dr. Mongiardo’s August 2,
2006 report and audiogram did not meet the Office’s requirements for evaluation of a hearing
loss claim.
LEGAL PRECEDENT
The Board has long held that, if a claimant’s employment-related hearing loss worsens in
the future, the claimant may apply for an additional schedule award for any increased permanent
impairment.3
In order to establish an employment-related hearing loss, the Board requires that the
employee undergo both audiometric and otologic examination; that the audiometric testing
precede the otologic examination; that the audiometric testing be performed by an appropriately
certified audiologist; that the otologic examination be performed by an otolaryngologist certified
or eligible for certification by the American Academy of Otolaryngology; that the audiometric
and otologic examination be performed by different individuals as a method of evaluating the
reliability of the findings; that all audiological equipment authorized for testing meet the
calibration protocol contained in the accreditation manual of the American Speech and Hearing
Association; that the audiometric test results included both bone conduction and pure-tone air
conduction thresholds, speech reception thresholds and monaural discrimination scores; and that
the otolaryngologist report must include: date and hour of examination, date and hour of the
employee’s last exposure to loud noise, a rationalized medical opinion regarding the relation of

3

Roberts E. Cullison, 55 ECAB 570 (2004).

6

the hearing loss to the employment-related noise exposure and a statement of the reliability of
the tests.4
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides.5 Using the frequencies of 500, 1,000, 2,000 and 3,000 Hz, the losses at
each frequency are added up and averaged.6 Then, the “fence” of 25 decibels is deducted
because, as the A.M.A., Guides points out, losses below 25 decibels result in no impairment in
the ability to hear everyday speech under everyday conditions.7 The remaining amount is
multiplied by 1.5 to arrive at the percentage of monaural loss.8 The binaural loss is determined
by calculating the loss in each ear using the formula for monaural loss; the lesser loss is
multiplied by five, then added to the greater loss and the total is divided by six, to arrive at the
amount of the binaural loss.9 The Board has concurred in the Office’s adoption of this standard
for evaluating hearing loss.
ANALYSIS
The Office has accepted that appellant sustained four percent impairment in his left ear
caused by his federal employment. The issue to resolve is whether appellant has met his burden
of proof to establish that he has a greater hearing loss causally related to his federal employment.
On July 30, 2004 Dr. Kavanagh, a Board-certified otolaryngologist, provided narrative
and audiometric reports that met all the criteria set by the Office. He reported that appellant had
a history of high blood pressure, heart disease, and diabetes and that he had air and fluid levels
behind the right eardrum. Dr. Kavanagh reported that appellant’s speech to reception threshold
had increased from 5 to 35 decibels in the left ear and 5 to 50 decibels in the right ear, though 15
to 20 decibels of the right-sided loss was related to inner ear fluid. He stated that appellant’s
audiometric tests revealed sensorineural hearing loss that was severe in the high frequencies and
mild in the low frequencies, but he also noted that the right ear loss had a significant conductive
component. Dr. Kavanagh opined that appellant’s hearing loss had progressed significantly
since 2001. He found that appellant had extensive progression of the inner ear portion of his
hearing loss, which strongly suggested that noise was not the cause of the hearing loss.
Dr. Kavanagh stated that, once noise exposure stops, hearing loss due to that noise progresses in
the same manner as presbycusis. He opined that the probable etiology of appellant’s increased
hearing loss was small vessel disease secondary to heart disease and diabetes. Dr. Kavanagh
noted that the conductive hearing loss in the right ear also indicated pathology besides noiseinduced hearing loss. In light of there findings, he opined that appellant’s hearing loss was not
4

Raymond H. VanNett, 44 ECAB 480, 482-83 (1993). See also Federal (FECA) Procedure Manual, Part 3 -Medical, Requirements for Medical Reports, Chapter 3.600.8(a) (September 1995).
5

A.M.A., Guides 250 (5th ed. 2001).

6

Id.

7

Id.

8

Id.

9

Id.

7

due to occupational exposure. The Board finds that Dr. Kavanagh’s opinion carries the weight
of the medical opinion evidence and that he resolved the issue of whether appellant’s increased
hearing loss was employment related.
After the Office denied his claim based on Dr. Kavanagh’s medical opinion, appellant
submitted several reports from Dr. Guindi, Dr. Little and Dr. Mongiardo, all of whom are Boardcertified otolaryngologists. Though these physicians diagnosed varying degrees of hearing loss
and opined that it was related to employment noise exposure, none of their opinions were
sufficient to establish appellant’s claim because they lacked medical rationale. The Board has
held that a mere conclusion without medical rationale, explaining how and why the physician
believes that a claimant’s accepted exposure resulted in the diagnosed condition, is not sufficient
to meet the claimant’s burden of proof. The medical evidence must include rationale that
explains how the physician reached the conclusion he or she is supporting.10 The Board also
finds that the audiometric reports appellant submitted were not in conformity with the
requirements set by the Office. For example, the most recent audiogram, supplied by
Dr. Mongiardo, lacked the identity and certification of the audiologist, the equipment calibration
certification and bone conduction results.
The Board finds that appellant has not presented medical evidence that meets all of the
requirements set by the Office, as outlined above. Therefore, the Board finds that appellant has
not met his burden of establishing that his increased impairment is the result of his federal
employment.
CONCLUSION
The Board finds that appellant has not established that he has greater than four percent
hearing loss in his left ear causally related to factors of his federal employment.

10

Beverly A. Spencer, 55 ECAB 501 (2004).

8

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 29, 2007 is affirmed.
Issued: November 13, 2007
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,
Jacksonville, FL, Employer
__________________________________________

)
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)
)
)
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)
)
)

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

Docket No. 16-0092
Issued: March 24, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 21, 2015 appellant filed a timely appeal from a May 11, 2015 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether OWCP abused its discretion by denying authorization for left
knee replacement surgery; and (2) whether appellant established a right knee consequential
injury.

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted additional medical evidence on appeal. The Board has jurisdiction to review only evidence
that was before OWCP at the time of the final decision on appeal. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On September 24, 2013 appellant, then a 51-year-old claims examiner, filed a traumatic
injury claim (Form CA-1) alleging that on August 21, 2013 she sustained a left knee injury in the
performance of duty. She alleged that she turned to place files on a cart and twisted her knee.
Appellant submitted a September 18, 2013 report from Dr. Carl Freeman, an orthopedic surgeon.
Dr. Freeman provided a history noting that she had reported left knee pain for one month. He
further indicated that appellant had a prior history of left knee problems: anterior cruciate
ligament reconstruction surgery in 1982, and a meniscal debridement in 2008, at which time she
was told that she had bone-on-bone arthritis. Dr. Freeman reported that she had experienced
intermittent left knee pain over the last 30 years that was exacerbated by the twisting injury one
month earlier. X-ray results reported degenerative changes including ossific processes,
subchondral sclerosis, and an irregular joint line. Dr. Freeman diagnosed left knee arthritis.
OWCP accepted the claim on November 6, 2013 for aggravation of left knee
osteoarthritis. Appellant did not initially stop work, but claimed and received compensation for
intermittent hours through February 21, 2014.
Appellant submitted a January 13, 2014 report from Dr. R. Stephen Lucie, an orthopedic
surgeon. Dr. Lucie reported that she complained of right knee pain, that she had a prior left knee
arthroscopic surgery in 2009, and that she had been treated with steroid and Hyalgan injections,
along with physical therapy. He provided results on examination of both knees, diagnosed
post-traumatic arthritis advanced, and reported that a total (left) knee replacement surgery was
discussed, but that he doubted that workers’ compensation would authorize surgery. Dr. Lucie
concluded, “I do feel that the [w]orkers’ [c]ompensation injury contributed to this as [appellant]
was doing well until that; however, 75 or 80 [percent] of the need for total knee was attributed to
a preexisting post[-]traumatic arthritis.”
OWCP forward the medical evidence to an OWCP medical adviser. In a report dated
February 27, 2014, the medical adviser determined that the record was incomplete as reports
regarding injections and the prior left knee surgery were missing. By letter dated March 4, 2014,
OWCP requested that appellant submit the missing medical evidence.
On March 18 and 24, 2014 appellant submitted additional evidence, including a
September 3, 2013 report from Dr. Kenneth Meehan, an orthopedic surgeon. Dr. Meehan
reported that appellant had been seen for evaluation of a long history of increasing left knee
symptoms. He provided results on examination and diagnosed degenerative joint disease of the
left knee. The report did not refer to an August 21, 2013 injury. Appellant also submitted an
October 22, 2009 surgical report from Dr. Lucie for left knee arthroscopic surgery.
The medical adviser again reviewed the evidence and, in an April 10, 2014 report, he
opined that the evidence was insufficient to justify authorization of total left knee replacement
surgery as employment related. He noted that the September 3, 2013 report did not provide a
history of a twisting injury on August 21, 2013.

2

By decision dated April 23, 2014, OWCP denied authorization for the left knee surgery.3
It found that the medical evidence did not establish that the proposed surgery was causally
related to the August 21, 2013 employment injury.
On May 19, 2014 appellant requested a review of the written record by an OWCP hearing
representative. She also submitted a new occupational disease claim (Form CA-2) alleging that
she had a consequential injury to her right knee due to placing more weight on that leg. OWCP
developed the claim as a claim for a consequential right knee condition. Appellant submitted a
report dated June 13, 2014 from Dr. Freeman. Dr. Freeman reported that she had right knee pain
that had worsened to some extent over the past year. He noted that appellant attributed her right
knee symptoms to over compensation from her left knee injury. Right knee x-rays showed
moderate degeneration with osteophytic processes and joint space narrowing. Dr. Freeman
recommended a steroid injection.
By letter dated June 23, 2014, OWCP advised appellant of the evidence necessary to
establish a claim for a consequential right knee injury. Appellant submitted a July 9, 2014
statement claiming that, since her left knee injury, she had been placing most of her weight on
the right leg.
By decision dated July 31, 2014, OWCP found that appellant had not established a
consequential right knee condition as the medical evidence was insufficient.
Appellant requested a review of the written record on August 27, 2014. She submitted an
August 19, 2014 surgical report from Dr. Freeman. Dr. Freeman reported that the preoperative
diagnosis was a meniscal tear and the surgery was arthroscopic meniscal debridement. In a
report dated September 16, 2014, he reported that the meniscal tear “may have been aggravated
by or may have [been] a direct result of [appellant’s] on-the-job injury one year ago.”
By report dated October 3, 2014, Dr. Lucie provided results on examination and
diagnosed left knee severe post-traumatic arthritis. He wrote that appellant’s work injury
resulted in an aggravation of a preexisting arthritis, but he did not believe that there was any
permanent impairment.
By decision dated December 19, 2014, the hearing representative affirmed the April 23
and July 31, 2014 OWCP decisions. He found that OWCP had properly denied authorization for
the left knee total arthroplasty surgery. In addition, the hearing representative that found that
appellant had not established a consequential right knee injury.
On February 23, 2105 appellant requested reconsideration. She submitted a January 15,
2015 report from Dr. Freeman, who reported that she had hip pain and left knee pain. X-rays of
the right hip reflected an ossified labrum and Dr. Freeman diagnosed trochanteric bursitis.

3

OWCP initially issued a decision dated April 17, 2014 and then issued the April 23, 2014 decision as a
“corrected” decision.

3

In a decision dated May 11, 2015, OWCP reviewed the merits and denied modification,
finding the evidence insufficient to warrant modification of the December 19, 2014 OWCP
decision.
LEGAL PRECEDENT-- ISSUE 1
Section 8103(a) of FECA provides for the furnishing of services, appliances, and supplies
prescribed or recommended by a qualified physician which OWCP, 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(a), the
Board has recognized that OWCP has broad discretion in approving services provided under
FECA to ensure that an employee recovers from his or her injury to the fullest extent possible in
the shortest amount of time.5 OWCP has administrative discretion in choosing the means to
achieve this goal and the only limitation on OWCP’s authority is that of reasonableness.6
While OWCP is obligated to pay for treatment of employment-related conditions,
appellant has the burden of establishing that the expenditure is incurred for treatment of the
effects of an employment-related injury or condition.7 Proof of causal relationship in a case such
as this must include supporting rationalized medical evidence.8 Therefore, in order to prove that
the surgical procedure is warranted, appellant must establish that the procedure was for a
condition causally related to the employment injury and that the surgery was medically
warranted. Both of these criteria must be met in order for OWCP to authorize payment.9
ANALYSIS -- ISSUE 1
In the present case, OWCP accepted that appellant sustained an aggravation of left knee
osteoarthritis when she twisted her knee on August 21, 2013. Appellant seeks authorization for a
proposed left total knee replacement surgery. She must submit, as discussed above, rationalized
medical evidence establishing that the surgery is causally related to the employment injury.
The Board finds that the medical evidence in this case does not establish that the left knee
replacement surgery is related to an August 21, 2013 employment injury. Dr. Lucie briefly
opined that the employment injury “contributed” to the need for surgery in his January 13, 2014
report, although he indicated 75 to 80 percent was due to a preexisting arthritis. The deficiency
in the report is not the apportionment, as it is unnecessary that the employment injury be the sole
4

5 U.S.C. § 8103(a).

5

Dale E. Jones, 48 ECAB 648, 649 (1997).

6

Daniel J. Perea, 42 ECAB 214, 221 (1990) (holding that abuse of discretion by OWCP 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).
7

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

8

Id.; see also Bertha L. Arnold, 38 ECAB 282 (1986).

9

See Cathy B. Millin, 51 ECAB 331, 333 (2000).

4

or significant contributor to the need for surgery,10 but is the lack of any explanation for his
opinion that the employment injury contributed to the need for total knee replacement surgery.
Dr. Lucie reported only that appellant had been “doing well” until the injury. He does not
discuss in detail the medical history prior to the August 21, 2013 employment injury and, in a
September 3, 2013 report from Dr. Meehan, which was the first medical report after the
employment injury, he suggested that she had increasing symptoms over a long period of time,
with no mention of an August 21, 2013 employment-related twisting injury. Dr. Lucie’s own
October 3, 2014 report indicated that there was no permanent residual from the employment
injury. A rationalized medical opinion would have to clearly explain what happened to the left
knee on August 21, 2013 and how this contributed to the need for a total knee replacement
surgery.
OWCP has discretion under 5 U.S.C. § 8103 regarding authorization of medical
treatment. Based on the evidence of record, it did not abuse its discretion in denying
authorization for left knee surgery in this case.
On appeal appellant argues that she has an accepted knee injury and she needs a total
knee replacement, but as discussed, she must clearly establish some connection between the
employment injury and the surgery. The medical evidence of record is insufficient to establish
causal relationship and OWCP did not abuse its discretion in denying authorization for surgery.
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.
LEGAL PRECEDENT -- ISSUE 2
With respect to consequential injuries, it is an accepted principle of workers’
compensation law that, when the primary injury is shown to have arisen out of and in the course
of employment, every natural consequence that flows from the injury is deemed to arise out of
the employment, unless it is the result of an independent intervening cause which is attributable
to the employee’s own intentional conduct.11 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.12
A claimant bears the burden of proof to establish a claim for a consequential injury.13 As
part of this burden, he or she must present rationalized medical opinion evidence, based on a
10

There is no apportionment under FECA. See J.C., Docket No. 15-1295 (issued November 24, 2015); Beth C.
Chaput, 37 ECAB 158 (1985) (it is not necessary to show a significant contribution of employment factors to a
diagnosed condition to establish causal relationship). See also Federal (FECA) Procedure Manual, Part 2 -- Claims,
Schedule Awards and Permanent Disability Claims, Chapter 2.808.5(d) (February 2013) (schedule awards may
include preexisting impairments as there is no apportionment under FECA).
11

Albert F. Ranieri, 55 ECAB 598 (2004).

12

See A. Larson, The Law of Workers’ Compensation § 10.01 (November 2000).

13

J.A., Docket No. 12-603 (issued October 10, 2012).

5

complete factual and medical background, showing causal relationship. Rationalized medical
evidence is evidence, which relates a work incident or factors of employment to a claimant’s
condition, with stated reasons of a physician. 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.14
ANALYSIS -- ISSUE 2
Appellant has alleged that she developed a right knee condition because she placed more
weight on her right leg due to her left knee injury. To meet her burden of proof, however, she
must submit rationalized medical evidence showing that a diagnosed right knee condition was
the direct and natural result of the left knee employment injury.
In this regard the evidence is of limited probative value. Dr. Freeman noted in his
June 13, 2014 report that appellant had right knee degenerative changes and he diagnosed
osteoarthritis. He did not relate it to the August 21, 2013 employment injury. After appellant
underwent right knee meniscal surgery on August 19, 2014, Dr. Freeman then indicated that the
diagnosis was a meniscal tear. In the September 16, 2014 report, he opined that the August 21,
2013 injury “may” have either aggravated or caused the condition. This speculative opinion is of
little probative value without further explanation based on a proper background. Medical
opinions using such terms as “may” or “could be” causally related are speculative and diminish
the probative value of the medical opinion evidence.15 A physician must provide a complete
factual and medical background and clearly explain how the accepted knee injury caused a
consequential injury in the other leg.16
The Board accordingly finds that appellant failed to meet her burden of proof to establish
a consequential right knee injury in this case. On appeal appellant reports that her right knee
never caused her problems before her left knee injury and she believes that she has a
consequential injury. The issue is a medical issue and, for the reasons discussed, the medical
evidence of record is not sufficient to establish a consequential right knee injury.
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 OWCP did not abuse its discretion by denying authorization for left
knee replacement surgery. The Board further finds that appellant did not meet her burden of
proof to establish a consequential right knee injury.

14

Id.

15

Kathy A. Kelley, 55 ECAB 206, 211 (2004); see also B.P., Docket No. 11-1036 (issued March 27, 2012).

16

See L.J., Docket No. 12-1494 (issued December 6, 2012).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 11, 2015 is affirmed.
Issued: March 24, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7