L.F. and Department of Justice, Drug Enforcement Administration (Board decision, March 18, 2024)

ECAB final decision. The Board affirmed OWCP's denial of a right knee condition claim. A party may petition the Board for reconsideration within 30 days of issuance unless this order specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

A Drug Enforcement Administration worker sought compensation for a right knee condition after an accepted 2016 work incident. The Board found that several medical reports did not address the condition's cause. Another physician said a meniscus tear could result from the described movement but did not adequately explain the connection in this case. The Board affirmed the denial.

Decision snapshot

• Authority: 5 U.S.C. § 8101 et seq.; 5 U.S.C. § 8128(b).
• Outcome: Right knee condition claim denial affirmed.
• Key point: The medical evidence did not adequately connect the knee condition to the accepted incident.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
L.F., Appellant
)
)
and ) Docket No. 23-1161
) Issued: March 18, 2024
DEPARTMENT OF JUSTICE, DRUG
)
ENFORCEMENT AGENCY, Springfield, VA,
)
Employer
)
__________ )

Appearances: Case Submitted on the Record
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 11, 2023 appellant, through counsel, filed a timely appeal from a May 2, 2023 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 2 5 U.S.C. § 8101 et seq.
 ISSUE

The issue is whether appellant has met her burden of proof to establish a knee condition causally related the accepted December 5, 2016 employment incident.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts are as follows.

On December 19, 2016 appellant, then a 57-year-old investigative assistant, filed a traumatic injury claim (Form CA-1) alleging that on December 5, 2016 she heard a click and felt a sharp pain in her right knee when she bent down to place a file in a bottom drawer while in the performance of duty. She stopped work that same date.

Dr. Stephen G. Silver, a Board-certified orthopedic surgeon, treated appellant on December 12, 2016, for right knee pain. Appellant reported that, on December 5, 2016, while at work, she bent down and felt a pop in her right knee followed by a sharp pain. She indicated that the next morning her right knee was swollen. Appellant attempted to return to work, but she could not bear weight on her knee. Dr. Silver diagnosed possible internal derangement of the right knee.4

By decision dated April 3, 2017, OWCP denied appellant’s claim, finding that she had not met her burden of proof to establish a medical condition causally related to the accepted December 5, 2016 employment incident.

On April 17, 2017 appellant, through counsel, requested a telephonic hearing before a representative of OWCP’s Branch of Hearings and Review. A hearing was held on October 2, 2017.

OWCP received reports dated June 5 and 15, 2017 wherein Dr. Silver noted that appellant continued to make slow and steady improvement, and released her to return to light-duty work. In his July 31, 2017 report, he diagnosed degenerative joint disease of the knees. In a September 29, 2017 report, Dr. Silver opined that appellant’s conditions were causally related to a work injury, which required her to undergo surgery.

By decision dated November 15, 2017, OWCP’s hearing representative affirmed the April 3, 2017 decision.

On January 18, 2018 appellant, through counsel, appealed to the Board. By decision dated February 24, 2020, the Board affirmed the November 15, 2017 decision, finding that she had not

3
Docket No. 18-0530 (issued February 24, 2020); Docket No. 22-0355 (issued September 12, 2022).
4
A December 23, 2016 magnetic resonance imaging (MRI) scan of the right knee demonstrated a horizontal tear of the posterior horn of the medial meniscus, fraying of the free edge body of lateral meniscus, mild lateral patellar tilt, mild tricompartmental osteoarthritis, small effusion, and tiny popliteal cyst.

2 met her burden of proof to establish a right knee injury causally related to the accepted December 5, 2016 employment incident.5

On March 4, 2020 appellant, through counsel, requested reconsideration and submitted additional evidence. On February 9, 2017 Dr. Silver performed an unauthorized right knee surgery, including arthroscopy, partial medial meniscectomy, partial lateral meniscectomy, debridement of grade 3 chondromalacia of the lateral tibial plateau, debridement of grade 3 chondromalacia of the lateral patellar facet, excision of plica, and synovectomy. He diagnosed right knee meniscal tear, lateral meniscal tear, grade 3 chondral lesion of the lateral tibial plateau, grade 3 chondral lesion of the lateral patellar facets, and patellar plica. In reports dated February 23, April 3, May 22, 2017, and February 8, 2018, Dr. Silver noted that appellant was status post right knee arthroscopy and returned her to light-duty work beginning April 3, 2017.

On April 23, 2019 Dr. Silver recounted that he had treated appellant’s knee conservatively, but she continued to experience pain, swelling, and she was unable to bear weight. Upon physical examination, Dr. Silver noted pain with range of motion and tenderness to palpation of both the medial and lateral joint lines. A December 23, 2016 MRI scan of the right knee demonstrated tears of the lateral and medial menisci. On February 9, 2017 Dr. Silver performed arthroscopic surgery and confirmed medial and lateral meniscal tears and synovitis. He noted that appellant continued to have pain and limping due to swelling around the knee. Dr. Silver opined with medical certainty that her right knee condition was directly and causally related to the injury sustained at work on December 5, 2016.

In reports dated April 29 and August 26, 2019, Dr. Silver treated appellant for bilateral knee pain, swelling, and difficulty with range of motion. He recommended a series of bilateral knee intra-articular injections.

By decision dated December 17, 2020, OWCP denied modification of its prior decision.

On July 21, 2021 Dr. Silver treated appellant in follow up for bilateral knee pain and diagnosed primary osteoarthritis of both knees. He opined that appellant’s disabilities were permanent and work related.

On August 11, 2021 appellant, through counsel, requested reconsideration.

By decision dated October 29, 2021, OWCP denied modification of its prior decision.

On January 11, 2022 appellant, through counsel, appealed to the Board. By decision dated September 12, 2022, the Board affirmed the October 29, 2021 decision, finding that appellant had not met her burden of proof to establish a right knee injury causally related to the accepted December 5, 2016 employment incident.6

OWCP received additional evidence. In a status report dated February 2, 2017, Dr. Silver noted his treatment of appellant for shoulder and knee injuries and indicated that she was scheduled 5 Docket No. 18-0530 (issued February 24, 2020).
6
Docket No. 22-0355 (issued September 12, 2022).

3 to undergo right knee surgery.7 In reports dated November 26 and December 2 and 10, 2019, he treated her for bilateral knee pain. Dr. Silver noted that appellant was status post bilateral knee arthroscopy and diagnosed chondromalacia patellae of the knees. He administered a series of three bilateral knee intra-articular injections. On August 27 and September 17, 2020 Dr. Silver diagnosed primary osteoarthritis of the left shoulder, impingement syndrome of the left shoulder, sprain of the left rotator cuff capsule, subscapular tear, superior glenoid labrum lesion of the left shoulder, chondromalacia patellae of the knees, and other joint derangement of the left shoulder. He indicated that appellant’s injury was due to an incident in 2008. Dr. Silver recommended a repeat MRI scan of the knees and arthroscopic surgery of the left shoulder. He continued to treat appellant on September 15, 22, and 29, 2020, for unilateral primary osteoarthritis of the knees. Dr. Silver administered a series of three bilateral knee intra-articular injections. In progress reports dated January 28 and March 4, 2021, he noted that appellant was status post arthroscopic surgery of the left shoulder. Dr. Silver diagnosed primary osteoarthritis, impingement syndrome, and superior glenoid labrum lesion of the left shoulder. He related in a March 25, 2021 report that appellant had a recurrence of left knee pain and swelling from her lateral compartment and recommended a series of additional bilateral knee injections.

In a work excuse note dated December 6, 2017, Dr. Jeremie R. Rachunow, a Board- certified family practitioner, treated appellant for right knee pain, which began after a work injury on December 5, 2016. She noted that appellant could not return to work. On June 6, 2021 Dr. Rachunow opined that appellant suffered from chronic pain, co-morbid depression, and restricted ambulation due to injuries sustained throughout her life and at work. She referenced an incident on July 3, 2008 and opined that, due to the chronic and disabling conditions, she recommended disability retirement.

On December 15, 2022 Dr. Neil Allen, a Board-certified neurologist, reviewed medical records and spoke to appellant on the telephone. Appellant reported lowering herself to retrieve a file from a file cabinet by bending through both knees and experiencing a “pop” in her right knee followed by swelling. She took one day off, returned the following day, and experienced increased pain with walking. Dr. Allen noted that an MRI scan of the right knee dated December 23, 2016 revealed a horizontal tear of the posterior horn of the medial meniscus. He advised that, based on medical literature, meniscal tears often occur during a twisting injury or hyperflexion event and maintained that the incident appellant described was consistent with a hyperflexion-type meniscal injury. Dr. Allen opined that her injuries were directly caused by the December 5, 2016 employment incident.

On January 24, 2023 appellant, through counsel, requested reconsideration.

By decision dated March 30, 2023, OWCP denied modification of its prior decision.

On May 2, 2023 OWCP reissued the March 30, 2023 decision noting that appellant’s counsel did not receive a copy of the initial decision.

7
Appellant submitted reports from Dr. Silver dated February 9, 2017 and April 23 and 29, 2019, and an MRI scan of the right knee dated December 23, 2016, all previously of record.

4
 LEGAL PRECEDENT

An employee seeking benefits under FECA8 has the burden of proof to establish the essential elements of his or her claim, including that the individual is an employee of the United States within the meaning of FECA, that the claim was timely filed within the applicable time limitation of FECA,9 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.10 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.11

To determine whether a federal employee has sustained a traumatic injury in the performance of duty, it first must be determined whether fact of injury has been established. First, the employee must submit sufficient evidence to establish that he or she actually experienced the employment incident at the time and place, and in the manner alleged. Second, the employee must submit sufficient evidence to establish that the employment incident caused an injury.12

The medical evidence required to establish causal relationship is rationalized medical opinion evidence.13 The opinion of the physician must be based on a complete factual and medical background of the employee, must be one of reasonable medical certainty, and must be supported by medical rationale explaining the nature of the relationship between the diagnosed condition and specific employment incident identified by the employee.14

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish a knee condition causally related to the accepted December 5, 2016 employment incident.

Initially, the Board notes that it is unnecessary to consider the evidence appellant submitted prior to the issuance of OWCP’s October 29, 2021 decision, which was considered by the Board

8
Supra note 2.
9
F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D. Cameron, 41 ECAB 153 (1989). 10 L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
11
P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
12
T.J., Docket No. 19-0461 (issued August 11, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
13
S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019);
Robert G. Morris, 48 ECAB 238 (1996).
14
T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).

5 in its September 12, 2022 decision. Findings made in prior Board decisions are res judicata absent further merit review by OWCP under section 8128 of FECA.15

In a status form dated February 2, 2017, Dr. Silver treated appellant for shoulder and knee injuries and indicated that she was scheduled to undergo right knee surgery. In reports dated November 26, December 2 and 10, 2019, he noted that appellant was status post bilateral knee arthroscopy and diagnosed chondromalacia patellae of the knees. Dr. Silver continued to treat appellant on September 15, 22, and 29, 2020 for unilateral primary osteoarthritis of the knees and recommended additional intra-articular injections. However, these reports failed to provide an opinion regarding the cause of appellant’s right knee condition.16 The Board has held that medical evidence that does not offer an opinion regarding the cause of an employee’s condition is of no probative value.17 These reports are thus insufficient to establish causal relationship.

In a work excuse note dated December 6, 2017, Dr. Rachunow treated appellant for right knee pain, which began after a work injury on December 5, 2016. While she indicated that appellant’s right knee pain was work related, she failed to provide medical rationale explaining the basis of her opinion. Without explaining, physiologically, how the specific employment incident or employment factors caused or aggravated the diagnosed condition, Dr. Rachunow’s opinion on causal relationship is of limited probative value and insufficient to establish appellant’s claim.18

On June 6, 2021 Dr. Rachunow noted that appellant suffered from chronic pain, co-morbid depression, and restricted ambulation due to injuries sustained throughout her life and at work. She referenced an incident on July 3, 2008 and opined that, due to the chronic and disabling conditions, she recommended disability retirement. However, Dr. Rachunow provided no opinion regarding whether appellant sustained an injury causally related to her accepted December 5, 2016 employment incident. Medical evidence that does not offer an opinion regarding the cause of an employee’s condition or disability is of no probative value on the issue of causal relationship.19 Therefore, this report is insufficient to establish appellant’s claim.

In a December 15, 2022 report, Dr. Allen described appellant’s work injury on December 5, 2016. He noted that an MRI scan of the right knee dated December 23, 2016 confirmed a horizontal tear of the posterior horn of the medial meniscus. Dr. Allen opined that, based on medical literature, meniscal tears often occur during a twisting injury or hyperflexion event and the incident appellant described was consistent with a hyperflexion-type meniscal injury. Although Dr. Allen supported causal relationship between appellant’s right knee injury and the accepted December 5, 2016 employment incident, he did not provide sufficient rationale explaining his conclusion. Without sufficiently explaining the mechanism of injury by which

15
C.M., Docket No. 19-1211 (issued August 5, 2020); Clinton E. Anthony, Jr., 49 ECAB 476, 479 (1998).
16
L.D., Docket No. 18-1468 (issued February 11, 2019).
17
L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
18
G.L., Docket No. 18-1057 (issued April 14, 2020); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
19
See A.S., Docket No. 19-0915 (issued November 22, 2019); see also supra note 17.

6 appellant’s bending of her right knee caused or contributed to the provided diagnosis, Dr. Allen’s opinion is of limited probative value.20 Thus, this report is insufficient to establish the claim.

As appellant has not submitted rationalized medical evidence to establish a knee condition causally related to the accepted December 5, 2016 employment incident, the Board finds that she has not met her burden of proof.

Appellant may submit new evidence or argument with a written request for reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

CONCLUSION

The Board finds that appellant has not met her burden of proof to establish a knee condition causally related to the accepted December 5, 2016 employment incident.

ORDER

IT IS HEREBY ORDERED THAT the May 2, 2023 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: March 18, 2024
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

20
See Y.F., Docket No. 19-1576 (issued August 4, 2020); A.P., Docket No. 19-0224 (issued July 11, 2019).

7