United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.L., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

FEDERAL EMERGENCY MANAGEMENT 

ADMINISTRATION, Forest Hills, NY, Employer 

__________________________________________ 

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Docket No. 14-41 

Issued: March 7, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

RICHARD J. DASCHBACH, Chief Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On October 16, 2013 appellant filed a timely appeal from a September 5, 2013 merit 

decision of the Office of Workers’ Compensation Programs (OWCP) denying his traumatic 

injury claim. 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. 

ISSUE 

The issue is whether appellant sustained an injury on November 10, 2012 in the 

performance of duty. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On July 25, 2013 appellant, then a 56-year-old transportation security administration 

officer, filed a traumatic injury claim alleging that on November 10, 2012 he injured his right 

knee while climbing into a bunk in the performance of duty. He did not stop work. 

In an authorization for examination and/or treatment (Form CA-16) dated July 19, 2013, 

Dr. Brett M. Barnhart, a Board-certified orthopedic surgeon, described the history of injury as 

right knee pain that had increased around eight months earlier. He diagnosed moderate 

degenerative arthritis and a medial meniscus tear of the right knee. Dr. Barnhart advised that he 

was unable to currently determine whether the diagnosed condition was caused or aggravated by 

the described employment activity without further evaluation. He recommended a right knee 

arthroscopy. 

By letter dated July 31, 2013, OWCP requested that appellant submit additional factual 

and medical information, including a detailed report from his attending physician addressing the 

cause of any diagnosed condition and its relationship to the alleged work incident. 

In a report dated June 28, 2013, received by OWCP on August 14, 2013, Dr. Barnhart 

noted that appellant had experienced knee pain for 15 years that increased “after he went for 

Hurricane Sandy relief for 43 days in Nov[ember]/Dec[ember] and was climbing into a bunk.” 

He diagnosed right lower leg joint pain and primary, localized osteoarthrosis of the right lower 

leg. Dr. Barnhart noted that [appellant’s] pain was of “insidious onset, with gradual progression; 

[he] has some pain associated with working in a ship in New York....” 

A July 8, 2013 magnetic resonance imaging (MRI) scan study of the right knee revealed a 

complex posterior horn medial meniscal tear and osteoarthritis. 

In a progress report dated July 17, 2013, Dr. Barnhart reviewed the results of an MRI 

scan study and diagnosed a right tear of the medial cartilage of the knee. He indicated that 

appellant related a history of anterior and medial pain “of insidious onset, with gradual 

progression....” Dr. Barnhart recommended arthroscopic surgery. 

In a statement dated July 26, 2013, appellant related that on November 10, 2012 he was 

stationed on a ship as part of a surge capacity team. He stated, “As I was attempting to climb up 

to the bunk by stepping on an approximately two-inch wide angle iron step, then slide under the 

side safety rail of the bunk, I felt a pain in my right knee. I thought it was a pulled muscle or 

tendon and continued to work.” Appellant related that the pain increased over time. When he 

returned home in December 2012 he made an appointment with his physician who treated him 

with cortisone injections. Appellant’s pain lessened but he had difficulty with movement. In 

May 2013, his physician referred him to a specialist, who diagnosed a torn meniscus. 
3

In a duty status report dated August 19, 2013, Dr. Barnhart found that appellant could 

return to work with restrictions.2 He referred to his office notes for the diagnosis and description 

of how the injury occurred. 

By decision dated September 5, 2013, OWCP denied appellant’s claim after finding that 

the medical evidence was insufficient to establish that he sustained a diagnosed condition 

causally related to the accepted November 10, 2012 work incident. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA3

 has the burden of establishing 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 filed within the applicable time 

limitation; that an injury was sustained while in the performance of duty as alleged; and that any 

disability and/or specific condition for which compensation is claimed are causally related to the 

employment injury.4

 These are the essential elements of each and every compensation claim 

regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5

To determine whether an employee sustained a traumatic injury in the performance of 

duty, OWCP must determine whether “fact of injury” is established. First, an employee has the 

burden of demonstrating the occurrence of an injury at the time, place and in the manner alleged, 

by a preponderance of the reliable, probative and substantial evidence.6 Second, the employee 

must submit sufficient evidence, generally only in the form of medical evidence, to establish a 

causal relationship between the employment incident and the alleged disability and/or condition 

for which compensation is claimed.7 An employee may establish that the employment incident 

occurred as alleged, but fail to show that his or her disability and/or condition relates to the 

employment incident.8

ANALYSIS 

Appellant alleged that he sustained an injury to his right knee on November 10, 2012 

while climbing into a bunk on a ship. He has established that the November 10, 2012 incident 

occurred at the time, place and in the manner alleged. The issue, consequently, is whether the 

medical evidence establishes that appellant sustained an injury as a result of this incident. 

 2

 On August 1, 2013 Dr. Barnhart performed a right knee partial medial meniscectomy, patellofemoral 

chondroplasty and a medial femoral chondroplasty. 

3 Supra note 1. 

4 Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55 ECAB 179 (2003). 

5 See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004). 

6 David Apgar, 57 ECAB 137 (2005); Delphyne L. Glover, 51 ECAB 146 (1999). 

7 Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404, 407 (1997). 

8 Id.
4

The Board finds that appellant has not established that the November 10, 2012 

employment incident resulted in an injury. The determination of whether an employment 

incident caused an injury is generally established by medical evidence.9

In a report dated June 28, 2013, Dr. Barnhart discussed appellant’s history of knee pain 

for 15 years that worsened in November or December after he climbed into a bunk at work. He 

noted that the knee pain was of gradual onset and that some of the pain occurred at work on a 

ship. Dr. Barnhart diagnosed right lower leg joint pain and primary, localized osteoarthrosis of 

the right lower leg. He did not, however, attribute the right lower leg joint pain and 

osteoarthrosis to appellant’s November 10, 2012 employment injury. Medical evidence that does 

not offer any opinion regarding the cause of an employee’s condition is of diminished probative 

value on the issue of causal relationship.10 

On July 17, 2013 Dr. Barnhart diagnosed a right tear of the medial cartilage of the knee. 

He described appellant’s history of gradually progressing anterior and medial pain of insidious 

origin. As Dr. Barnhart did not relate the medial tear to the November 10, 2012 work incident, 

his opinion is insufficient to meet appellant’s burden of proof.11 

In a July 19, 2013 Form CA-16, Dr. Barnhart provided a history of appellant 

experiencing right knee pain with increased symptoms beginning eight months ago.12 He 

diagnosed moderate degenerative arthritis and a medial meniscus tear of the right knee. 

Dr. Barnhart indicated that he could not assess whether the diagnosed condition was caused or 

aggravated by the described employment activity. As he declined to provide an opinion on 

causation, his report is of little probative value. 

In a duty status report dated August 19, 2013, Dr. Barnhart found that appellant could 

return to work with restrictions. He referred to his office notes for the diagnosis and history of 

injury. A physician, however, must provide a narrative description of the employment incident 

and a reasoned opinion on whether the employment incident described caused or contributed to 

appellant’s diagnosed medical condition.13

An award of compensation may not be based on surmise, conjecture, speculation or upon 

appellant’s own belief that there is a causal relationship between his claimed condition and his 

employment.14 Appellant must submit a physician’s report in which the physician reviews those 

 9 Lois E. Culver (Clair L. Culver), 53 ECAB 412 (2002). 

10 See S.E., Docket No. 08-2214 (issued May 6, 2009); Conard Hightower, 54 ECAB 796 (2003). 

11 Id. 

12 The Board notes that a properly executed Form CA-16 creates a contractual obligation, which does not involve 

the employee directly, to pay the cost of the examination or treatment regardless of the action taken on the claim. 

See Tracey P. Spillane, 54 ECAB 608 (2003) and 20 C.F.R. § 10.300(c). 

13 John W. Montoya, 54 ECAB 306 (2003). 

14 See D.E., 58 ECAB 448 (2007); George H. Clark, 56 ECAB 162 (2004); Patricia J. Glenn, 53 ECAB 

159 (2001). 
5

factors of employment identified by him as causing his condition and, taking these factors into 

consideration as well as findings upon examination and the medical history, explain how 

employment factors caused or aggravated any diagnosed condition and present medical rationale 

in support of his or her opinion.15 He failed to submit such evidence and therefore failed to 

discharge his burden of proof. 

On appeal, appellant submitted additional medical evidence. The Board has no 

jurisdiction to review new evidence on appeal.16 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 and 20 C.F.R. §§ 10.605 through 10.607. 

CONCLUSION 

The Board finds that appellant has not established that he sustained an injury on 

November 10, 2012 in the performance of duty. 

ORDER 

IT IS HEREBY ORDERED THAT the September 5, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 7, 2014 

Washington, DC 

 

 Richard J. Daschbach, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 15 See D.D., 57 ECAB 734 (2006); Robert Broome, 55 ECAB 339 (2004). 

16 See 20 C.F.R. § 501.2(c).