United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.S., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

MICHAEL E. DeBAKEY VETERANS AFFAIRS 

MEDICAL CENTER, Houston, TX, Employer 

__________________________________________ 

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Docket No. 14-1888 

Issued: February 10, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On August 27, 2014 appellant filed an appeal from an August 13, 2014 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. 

ISSUE 

The issue is whether appellant met her burden of proof to establish total disability for the 

period September 27 through November 6, 2010, due to her accepted employment injury. 

On appeal appellant requests that her case be reopened so that she can get appropriate 

medical treatment for the January 28, 2008 employment injury. She noted that on March 4, 2011 

an OWCP medical adviser indicated that total knee replacement surgery was appropriate for her 

accepted condition. 

 1

 5 U.S.C. §§ 8101-8193. 
2

FACTUAL HISTORY 

On January 28, 2008 appellant, then a 56-year-old temporary medical technician, injured 

her right knee when she fell as she stepped off an elevator at work. She began modified duty. 

Appellant’s temporary appointment was terminated effective February 15, 2008, based on 

unacceptable performance.2

 She also works a second job as a part-time laboratory assistant at St. 

Joseph Medical Center (SJMC) a private-sector employer. On March 11, 2008 OWCP accepted 

that appellant sustained a right knee contusion on January 28, 2008. The claim was later 

expanded to include tear of the right medial meniscus, right chondromalacia patella, and right 

localized primary osteoarthritis of the lower leg. 

On September 23, 2010 appellant filed a recurrence claim, alleging a recurrence of her 

work injury beginning September 16, 2010. On September 28, 2010 she filed a Form CA-7, 

claim for compensation for the period September 27 through November 6, 2010. Appellant 

stated that at the time of the claimed recurrence she was working at SJMC and her condition had 

worsened due to too much walking and standing. The employing establishment controverted the 

claim noting that appellant sustained a new injury at her current employment in the private-sector 

at SJMC. Appellant also filed a CA-7 claim for compensation for the period September 27 to 

November 6, 2010. 

On January 7, 2009 Dr. Andrew K. Lee, a Board-certified orthopedic surgeon, performed 

authorized arthroscopic partial medial meniscectomy on the right knee. He submitted reports 

describing appellant’s follow-up care, also noting that she had a prior history of reflex 

sympathetic dystrophy (RSD). On August 24, 2010 Dr. Lee noted appellant’s complaint of right 

knee pain of one month’s duration and her feeling of a loose body in the knee. He advised that 

on physical examination of the knee there was no edema or effusion and some stiffness and 

grinding with tenderness over the medial and lateral joint line. Right knee x-ray findings 

included a possible calcified loose body. Dr. Lee diagnosed medial meniscus tear, osteoarthritis, 

and loose body in the right knee, status post arthroscopic surgery. He indicated that a magnetic 

resonance imaging (MRI) scan study was warranted due to mechanical symptoms, but appellant 

could not have one because she had a spinal implant. Dr. Lee recommended right knee 

arthroscopic surgery to remove the loose body. 

In an August 30, 2010 report, Dr. Melvyn Harrington, a Board-certified orthopedist, 

noted the history of injury, appellant’s medical and surgical history, and her complaint of 

progressively worsening right knee pain. Appellant walked with a moderate limp. The right 

knee was ligamentously stable with negative Steinmann, spring and McMurray’s tests. Patellar 

grind and shrug were mildly positive. X-rays showed severe degenerative changes. 

Dr. Harrington diagnosed osteoarthritis and pes anserine bursitis of the right knee. He 

recommended physical therapy and noted that appellant would likely require a total knee 

replacement. Dr. Harrington advised that appellant could perform light duty with no excessive 

walking or standing and should avoid squatting, stooping, kneeling, bending, twisting, or heavy 

lifting. 

 2

 The termination letter indicated that she demonstrated difficulties in performing the full range of duties required 

for a phlebotomist in the areas of timeliness and productivity of blood draws. 
3

In a September 16, 2010 treatment note, Dr. Harrington noted appellant’s report that her 

present employer SJMC would not comply with her restrictions and, as a result, her pain was 

increasing. He indicated that her examination was unchanged, diagnosed symptomatic knee 

arthritis with possible loose body, and indicated that her restrictions remained the same. 

Dr. Harrington advised that appellant remain off work until November 6, 2010 while attending 

physical therapy. 

The employing establishment noted that appellant was removed from federal service for 

unacceptable performance in carrying out her job duties and that prior to her removal she had 

returned to full duty with no restrictions. It maintained that since she stated in her recurrence 

claim that she walked too much in her job at SJMC she should file a claim under state workers’ 

compensation rules. Appellant had been employed by SJMC since March 7, 2005. 

On an attending physician’s report dated September 27, 2010, Dr. Harrington noted that 

appellant fell at work on January 28, 2008 and advised that she had severe degenerative joint 

disease in her right knee. He diagnosed post-traumatic osteoarthritis of the right knee, 

permanently worsened by a work-related fall on January 28, 2008, and indicated that appellant 

would like to proceed with total knee replacement surgery. 

By decision dated January 14, 2011, OWCP denied a recurrence of disability on 

September 16, 2010 as the medical evidence failed to establish that her current condition was 

causally related to the January 28, 2008 employment injury. 

On December 16, 2010 Dr. Harrington noted appellant’s medical history and worsening 

symptoms. He again recommended a total knee replacement. In a March 4, 2011 report, 

Dr. Ronald Blum, an OWCP medical adviser Board-certified in orthopedic surgery, noted 

reviewing the medical record. He indicated that the diagnosis of aggravation of localized 

osteoarthritis of the right lower leg was work related. Dr. Blum advised that the recommended 

surgical procedure was within the realm of accepted medical practice and the necessity for the 

procedure was related to the accepted employment injury. 

In a March 10, 2011 decision, OWCP again denied appellant’s claim for a recurrence of 

total disability beginning September 16, 2010. On April 8, 2011 appellant requested a hearing. 

She submitted Texas workers’ compensation forms dated August 30 and September 16, 2010 in 

which Dr. Harrington advised that appellant could not work. Appellant also resubmitted 

Dr. Lee’s August 24, 2010 report. 

On June 7, 2011 an OWCP hearing representative vacated the March 10, 2011 decision 

and remanded the case for further development of the record. 

Appellant thereafter submitted treatment notes from Dr. Harrington in which he reiterated 

his diagnoses and continued to recommend total knee replacement surgery. The employing 

establishment provided a position description for medical technician in hematology. The 

physical requirements included standing and walking for four to six hours, bending, twisting, and 

pushing and pulling for one to two hours. 

In November 2011 appellant was referred to Dr. James E. Butler, a Board-certified 

orthopedic surgeon, for a second opinion evaluation. In a December 5, 2011 report, Dr. Butler 
4

noted the history of injury, appellant’s treatment history, her complaint of right knee, leg and 

foot pain and weakness, and her report that she was working regular duty. Physical examination 

findings included mild knee effusion on the right with negative right knee valgus, varus, 

Lachman stress tests, negative McMurray’s and posterior drawer tests, and a mild crepitation 

test. Right knee range of motion was decreased with full effort. Sensation testing was normal 

bilaterally, and strength testing was 5/5 except that leg flexors and extensors were 4/5 on the 

right. Dr. Butler noted that appellant used no assistive devices. He diagnosed osteoarthritis of 

the right knee in time line from January 28, 2008, noting that it was found at surgery in 2009 and 

had progressed. Dr. Butler advised that appellant had been disabled since 2008 and 

recommended total knee replacement. 

OWCP requested that Dr. Butler explain why, when appellant was released to full duty 

on February 5, 2008, the arthritis found in the 2009 surgery was causally related to the 

January 28, 2008 employment injury. It referred to the statement of accepted facts, and informed 

Dr. Butler that appellant had been working in private employment continuously since the 

January 28, 2008 employment injury. Dr. Butler was asked whether her current condition was 

related to that job and whether she was disabled beginning September 2010 due to the 

January 2008 employment injury. 

In a January 9, 2012 response, Dr. Butler indicated that appellant’s knee arthritis 

preexisted the January 2008 employment injury, and that it was noted by Dr. Lee at the time of 

the 2009 surgery. He stated that the arthritis was not caused by the employment injury, noting 

that in the Texas workers’ compensation system, arthritis was not covered, just the meniscus 

tear, and therefore his position was that the workers’ compensation issue was resolved after the 

2009 surgery. 

In a February 24, 2012 decision, OWCP denied appellant’s claim that she sustained a 

recurrence of disability on September 16, 2010. Appellant, through her attorney, timely 

requested a hearing and submitted a March 8, 2012 treatment note in which Dr. Harrington 

reiterated his findings and recommendations. Appellant was not present at the hearing, held on 

June 12, 2012. The hearing representative instructed her attorney to provide a list of jobs 

appellant had held since the January 28, 2008 employment injury, including any periods of 

unemployment, an explanation of the diagnosed RSD noted by Dr. Lee, all medical records 

regarding her right knee prior to the January 28, 2008 employment injury, and a list of any 

additional workers’ compensation claims and accidents. 

In a June 18, 2012 statement, appellant described her employment history. She indicated 

that she had RSD in both arms for which she had a workers’ compensation claim against 

Continental Airlines where she worked as a customer service representative from 1997 to 1998. 

She indicated that the Texas Rehabilitation Commission paid for her to be trained as a 

phlebotomist, and that she did not work from 1998 to 2002 and then began working at both 

SJMC and the employing establishment as a phlebotomist and also received social security 

disability compensation. Appellant stated that she continued working at SJMC, as a 

phlebotomist and doing sedentary computer work. She indicated that she had additional right 

knee claims including a workers’ compensation claim against Park and Fly, where she was 

employed in the 1980s, when she fell down steps and had right knee surgery. Appellant stated 

that she could not obtain medical records regarding this injury because the hospital had gone out 
5

of business. She indicated that she was also in a motor vehicle accident in 2000 in which she 

injured her right knee and had arthroscopic surgery on October 14, 2002, and that in 2010 she 

fell at SJMC and bruised her left knee. Appellant described her work at the employing 

establishment, stating that she stood and walked all day working both in the laboratory and on 

the hospital floor where she drew blood from patients and pushed a heavy cart. 

On an operative report dated October 14, 2002, Dr. Mark W. Maffet, Board-certified in 

orthopedic surgery, provided a preoperative diagnosis of right knee medial meniscus tear; right 

knee grade II-III chondromalacia, medial femoral condyle; and grade II-III chondromalacia, 

trochlea and patella, 20 percent. Examination under anesthesia and diagnostic arthroscopy with 

partial medial meniscectomy and chondroplasties of the right knee were performed. Surgical 

inspection demonstrated the listed preoperative diagnoses. In an undated statement received by 

OWCP on July 26, 2012, SJMC indicated that appellant had been working there from March 7, 

2005 to the present, part time, as a laboratory assistant. 

By decision dated August 3, 2012, an OWCP hearing representative remanded the case to 

OWCP to obtain a supplemental report from Dr. Butler. He noted that right knee osteoarthritis 

had been accepted. The hearing representative found Dr. Butler’s opinion insufficient and 

remanded the case to provide Dr. Butler with copies of the 2002 and 2009 surgical reports and to 

ask him to clarify whether appellant’s right knee osteoarthritis was causally related to one or 

both surgeries, and to give medical rationale for his opinion. 

In reports dated March 8 and June 4, 2012, Dr. Harrington noted that appellant’s physical 

examination was unchanged. He injected her right knee on both visits and continued to 

recommend total knee replacement surgery. 

On September 27, 2012 OWCP forwarded copies of the 2002 and 2009 surgical 

procedures to Dr. Butler and asked him to clarify whether appellant’s right knee osteoarthritis 

was causally related to one or both surgeries and provide rationale for his opinion. In an 

October 16, 2012 response, Dr. Butler indicated that appellant’s right knee osteoarthritis was not 

causally related to either of the surgeries and was not causally related to the employment injury, 

because Dr. Maffet, who performed the 2002 surgery, indicated that the osteoarthritis was 

present under his inspection. 

By decision dated April 2, 2013, OWCP denied appellant’s claim for total disability for 

the period September 27 to November 6, 2010. It found that the weight of the medical evidence 

rested with Dr. Butler who opined that appellant’s right knee arthritis was already present at the 

time of the 2002 surgery. Appellant’s attorney timely requested a hearing and submitted a 

June 20, 2013 note in which Dr. Harrington indicated that appellant had reached maximum 

medical improvement and could need additional future treatment. 

At the hearing, held on August 19, 2013, appellant’s attorney argued that the 2008 injury 

and 2009 surgery made her osteoarthritis worse and that Dr. Butler’s report was not reliable. He 

maintained that Dr. Harrington’s opinion supported appellant’s claim. Appellant testified that 

Dr. Harrington took her off work for the claimed period because he wanted her to have physical 

therapy, injections, and to stay off her knee. She stated that she currently worked a desk job at 

SJMC. 
6

In a November 29, 2013 decision, an OWCP hearing representative affirmed OWCP’s 

denial of appellant’s claim for total disability compensation for the period September 27 to 

November 6, 2010 as there was no rationalized medical evidence to establish that the claimed 

period of disability was related to her federal employment. 

On April 14, 2014 appellant requested reconsideration and submitted evidence previously 

of record. In a merit decision dated August 13, 2014, OWCP denied modification of its 

November 29, 2013 decision, finding the medical evidence submitted insufficient to establish 

that she was totally disabled for the claimed period. 

LEGAL PRECEDENT 

Under FECA, the term “disability” is defined as incapacity, because of employment 

injury, to earn the wages that the employee was receiving at the time of injury.3

 Disability is 

thus not synonymous with physical impairment which may or may not result in an incapacity to 

earn the wages. An employee who has a physical impairment causally related to a federal 

employment injury but who nonetheless has the capacity to earn wages he or she was receiving 

at the time of injury has no disability as that term is used in FECA.4

 The test of “disability” 

under FECA is whether an employment-related impairment prevents the employee from engaging 

in the kind of work he or she was doing when injured.5 Whether a particular injury causes an 

employee to be disabled for work and the duration of that disability, are medical issues that must 

be proved by a preponderance of the reliable, probative and substantial medical evidence.6

 

The Board will not require OWCP to pay compensation for disability in the absence of 

any medical evidence directly addressing the specific dates of disability for which compensation 

is claimed. To do so would essentially allow employees to self-certify their disability and 

entitlement to compensation.7 Causal relationship is a medical issue. The opinion of the 

physician must be based on a complete factual and medical background of the claimant, must be 

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

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

identified by the claimant.8

 

 3 See Prince E. Wallace, 52 ECAB 357 (2001). 

4 Cheryl L. Decavitch, 50 ECAB 397 (1999); Maxine J. Sanders, 46 ECAB 835 (1995). 

5 Corlisia Sims, 46 ECAB 963 (1995). 

 6 Tammy L. Medley, 55 ECAB 182 (2003). 

7 William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001). 

 8 Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994). 
7

ANALYSIS 

The accepted conditions in this case are a contusion of the right knee, tear of the right 

medial meniscus, right chondromalacia patella, and right localized primary osteoarthritis of the 

lower leg, caused by a January 28, 2008 fall at work. 

The Board finds that appellant did not meet her burden of proof to establish entitlement 

to disability compensation for the period September 27 through November 6, 2010 because she 

did not submit sufficient medical evidence explaining that the claimed disability was due to the 

accepted injury. Appellant’s employment at employing establishment was terminated for cause 

on February 15, 2008. After that time she worked part time at SJMC until she stopped work and 

claimed compensation beginning on September 27, 2010. 

In his August 24, 2010 report, Dr. Lee did not discuss appellant’s ability to work. His 

report is, therefore, insufficient to establish that she was totally disabled for the period claimed. 

The Board also finds the reports of Dr. Harrington, who submitted a number of reports 

beginning on August 30, 2010, insufficient to establish entitlement to disability compensation. 

Although Dr. Harrington related appellant’s diagnosed right knee osteoarthritis to the January 28, 

2008 employment injury, he also indicated that her right knee pain had recently worsened and 

indicated that she reported that SJMC would not comply with his physical restrictions. He 

recommended that she remain off work for the period September 27 to November 6, 2010 and 

undergo physical therapy. When a physician’s statements regarding an employee’s ability to 

work consist only of repetition of the employee’s complaints that he or she hurt too much to 

work, without objective findings of disability being shown, the physician has not presented a 

medical opinion on the issue of disability or a basis for payment of compensation.9

 

Dr. Harrington merely indicated that appellant’s right knee hurt while performing her job duties 

at SJMC and she should be off work to attend physical therapy. He did not express specific 

knowledge of her federal service job duties or explain the mechanics as to how the January 28, 

2008 fall caused her current right knee condition other than to note that she had right knee 

degenerative joint disease and osteoarthritis that had worsened over time. Moreover, the facts in 

this case indicate that appellant has a significant nonemployment-related preexisting history 

concerning her right knee, including a fall in the 1980s for which she had right knee surgery, a 

motor vehicle accident in 2000 for which she had right knee surgery, and a 2010 fall at SJMC. 

Dr. Harrington did not discuss these additional injuries in his report. The issue of whether a 

claimant’s disability is related to an accepted condition is a medical question which must be 

established by a physician who, on the basis of a complete and accurate factual and medical 

history, concludes that the disability is causally related to employment factors and supports that 

conclusion with sound medical reasoning.10 The Board has long held that medical conclusions 

unsupported by rationale are of diminished probative value and insufficient to establish causal 

 9 G.T., 59 ECAB 447 (2008). 

10 Sandra Pruitt, 57 ECAB 126 (2005). 
8

relationship.11 Dr. Harrington’s reports are therefore insufficient to establish that appellant was 

totally disabled for the claimed period. 

Dr. Butler, an OWCP referral physician, submitted reports dated December 5, 2011, 

January 9, and October 16, 2012. While he initially indicated that appellant’s current right knee 

condition was a continuation of the arthritis found in the 2009 surgery and indicated that she was 

disabled from 2008, upon being asked to further explain his opinion, he advised on January 9, 

2012 that appellant’s arthritis was not caused by the January 28, 2010 employment injury. Upon 

Dr. Butler’s review of the 2002 and 2009 surgical report, he opined on October 16, 2012 that 

appellant’s right knee osteoarthritis was not causally related to either surgery. He noted that in 

the 2002 surgery Dr. Maffet described the arthritis as preexisting at that time. The Board, 

however, notes that primary osteoarthritis of the right leg has been accepted in this case, but by 

her own admission appellant admitted that her condition had worsened due to walking too much 

at her job at SJMC. 

Without a detailed medical report describing how and why appellant was disabled from 

September 27 to November 6, 2010 due to the January 28, 2008 employment injury, she has not 

met her burden of proof to establish entitlement to disability compensation for that period.12

As there is no rationalized medical evidence establishing total disability for the period 

September 27 through November 6, 2010 related to her accepted work conditions, appellant 

failed to establish entitlement to wage-loss compensation for that period. 

Regarding appellant’s argument on appeal that she wants her case reopened so that she 

can get appropriate medical treatment, the Board does not have jurisdiction over that issue. The 

merit issue in this case is whether appellant established entitlement to disability compensation 

for the period September 27 through November 6, 2010. The Board’s jurisdiction is limited to 

reviewing final decisions of OWCP.13 

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 did not meet her burden of proof to establish that she was 

entitled to disability compensation for the period September 27 through November 6, 2010. 

 11 See Albert C. Brown, 52 ECAB 152 (2000). 

12 See W.S., Docket No. 14-1022 (issued July 1, 2014). 

13 20 C.F.R. § 501.2(c); see J.B., Docket No. 09-2191 (issued May 14, 2010). 
9

ORDER 

IT IS HEREBY ORDERED THAT the August 13, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: February 10, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board