United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

K.P., Appellant 

and 

DEPARTMENT OF THE ARMY, CORPS OF 

ENGINEERS, Memphis, TN, Employer 

__________________________________________ 

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Docket No. 16-0185 

Issued: April 6, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On November 10, 2015 appellant timely appealed an August 20, 2015 merit decision and 

an October 19, 2015 nonmerit 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. 

ISSUES 

The issues are: (1) whether appellant has established right knee arthritis causally related 

to factors of his federal employment; and (2) whether OWCP properly denied reconsideration 

pursuant to 5 U.S.C. § 8128(a). 

FACTUAL HISTORY 

Appellant, a 58-year-old retired motor vehicle operator, filed an occupational disease 

claim (Form CA-2) for right knee arthritis, which he alleges arose on or about April 29, 2015. 

 1

 5 U.S.C. § 8101 et seq. 
2

He previously injured his left lower extremity in the performance of duty on July 3, 1992. 

Appellant worked as a welder at the time of his first injury. OWCP accepted his 1992 injury for 

left knee sprain (OWCP File No. xxxxxx701).2 Appellant also has an accepted claim for left 

knee bursitis, which arose on or about September 26, 2001 (OWCP File No. xxxxxx599).3

 He 

retired from the employing establishment effective April 1, 2014. Appellant attributed his 

current right knee complaints to operating semi-trailer trucks with manual and automatic 

transmissions and using his legs to climb in and out of vehicles. OWCP combined his three 

lower extremity injuries and designated the July 3, 1992 traumatic injury claim (OWCP File No. 

xxxxxx701) as the master file. 

In an April 29, 2015 report, Dr. John W. Ellis, a Board-certified family practitioner, 

diagnosed left knee lateral collateral ligament sprain and bilateral knee traumatic arthritis. He 

noted that appellant initially injured his left knee in a July 3, 1992 work-related fall. Dr. Ellis 

described it as an acute injury that strained the ligaments of appellant’s left knee. He noted that 

appellant continued to have left knee instability since his 1992 injury. Dr. Ellis further noted that 

the laxity of the ligaments caused abnormal biomechanical stresses on the left knee, which 

injured the cartilage, caused chondromalacia, and ultimately resulted in traumatic arthritis of the 

bone in the left knee. Additionally, he indicated that increased instability of the left knee caused 

abnormal stresses on appellant’s right knee, which resulted in consequential traumatic arthritis in 

the right knee. Dr. Ellis also noted that appellant continued working until April 1, 2014 as a 

truck driver, which required him to get in and out of large semi-trucks. He explained that this 

would have caused greater strains on the right knee and made it more prone to developing the 

right knee arthritis and chondromalacia found on the current examination. 

Dr. Ellis indicated that it would be medically reasonable for appellant’s right knee to be a 

consequential injury to his left knee. However, he noted that the right knee was also injured as a 

result of appellant’s heavy workload, especially getting out of trucks, which caused traumatic 

arthritis. Dr. Ellis explained that appellant was more prone to developing this condition in the 

left knee, but getting in and out of trucks and sometimes unloading trucks also contributed to the 

traumatic arthritis in his right knee. 

In a July 29, 2015 statement, the employing establishment indicated that beginning in 

September 2011, appellant had a modified assignment due to a previous hand/wrist injury. His 

duties involved picking up parts and supplies. According to the employing establishment, 

appellant would drive a pickup or a stake body truck twice a week to get supplies. He reportedly 

did not have to climb onto the back of the truck. The employing establishment further indicated 

that appellant’s supervisors were aware of issues he had with his back and did not require him to 

do any unnecessary climbing. Appellant’s supervisors reportedly encouraged him to take extra 

breaks and rest stops when driving long distances. Appellant did not climb ladders while in this 

modified position. Lastly, the employing establishment indicated that getting in and out of 

 2

 Appellant ultimately resumed his regular duties as a welder and was discharged from treatment on 

June 10, 1993. Follow-up treatment notes from May 15, 1995 indicated that his then-current left knee physical 

examination was “completely normal.” Appellant’s x-rays were similarly “normal.” 

3

 Dr. Riley Jones, a Board-certified orthopedic surgeon, released appellant to resume his regular duties, effective 

June 14, 2002. 
3

vehicles would have been appellant’s only physical requirement.4

 When he was not driving, 

appellant answered the telephone and filed/organized papers. 

The employing establishment challenged appellant’s claim based on causal relationship. 

It argued that his right knee arthritis could be age related. The employing establishment also 

surmised that appellant could have injured his right knee since his April 2014 retirement. 

In an August 20, 2015 decision, OWCP denied appellant’s claim based on his failure to 

establish causal relationship. It found that Dr. Ellis’ opinion was insufficient to establish either a 

consequential injury or a separate occupational disease. 

Appellant timely requested reconsideration by letter dated September 21, 2015 and 

received September 25, 2015. He took issue with the employing establishment’s characterization 

of his former duties as a motor vehicle operator. Appellant also submitted a statement from a 

retired supervisor who described the types of vehicles appellant operated between 2005 and 

2007. 

By decision dated October 19, 2015, OWCP denied appellant’s request for 

reconsideration without a merit review. 

LEGAL PRECEDENT -- ISSUE 1 

A claimant seeking benefits under FECA has the burden to establish the essential 

elements of his or her claim by the weight of the reliable, probative, and substantial evidence, 

including that an injury was sustained in the performance of duty as alleged and that any specific 

condition or disability claimed is causally related to the employment injury.5

To establish that an injury was sustained in the performance of duty, a claimant must 

submit: (1) medical evidence establishing the presence or existence of the disease or condition 

for which compensation is claimed; (2) a factual statement identifying employment factors 

alleged to have caused or contributed to the presence or occurrence of the disease or condition; 

and (3) medical evidence establishing that the diagnosed condition is causally related to the 

identified employment factors.6

 4

 When operating a pickup, appellant had to step approximately 10 to 12 inches from the ground to enter the 

vehicle. Accessing the stake body truck’s cabin was a two-step process. The initial step from the ground was 

approximately 15 inches, followed by a second step of approximately 8 inches to get inside the truck. 

5

 20 C.F.R. § 10.115(e), (f) (2014); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996). Causal relationship is 

a medical question, which generally requires rationalized medical opinion evidence to resolve the issue. See 

Robert G. Morris, 48 ECAB 238 (1996). A physician’s opinion on whether there is a causal relationship between 

the diagnosed condition and the implicated employment factors must be based on a complete factual and medical 

background. Victor J. Woodhams, 41 ECAB 345, 352 (1989). Additionally, the physician’s opinion must be 

expressed in terms of a reasonable degree of medical certainty, and must be supported by medical rationale, 

explaining the nature of the relationship between the diagnosed condition and appellant’s specific employment 

factors. Id. 

6 Victor J. Woodhams, id. 
4

When an injury arises in the course of employment, every natural consequence that flows 

from that injury likewise arises out of the employment, unless it is the result of an independent 

intervening cause attributable to claimant’s own intentional misconduct.7 Thus, a subsequent 

injury, be it 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.8

ANALYSIS -- ISSUE 1 

Dr. Ellis opined that appellant’s right knee arthritis was a consequence of his 1992 

employment-related left knee injury, as well as a result of his subsequent duties as a truck driver. 

With respect to the consequential injury, he noted that appellant had left knee instability since his 

1992 injury, which caused abnormal stress on the right knee resulting in arthritis. Prior to his 

own April 29, 2015 examination, the most recent left knee medical evidence Dr. Ellis reviewed 

was a May 15, 1995 treatment record, which indicated that appellant’s x-rays were “normal” and 

his left knee physical examination was “completely normal.” This particular evidence calls into 

question Dr. Ellis’ opinion, as the physician did not identify any other medical evidence to 

support his assertion that appellant had ongoing left knee instability since his July 3, 1992 injury. 

Dr. Ellis’ finding that appellant’s right knee arthritis was related to his duties as a truck 

driver is similarly deficient. He indicated that getting in and out of large semi-trucks would have 

placed greater strain on appellant’s right knee making it more prone to developing arthritis and 

chondromalacia. Dr. Ellis further indicated that unloading trucks also contributed to appellant’s 

right knee arthritis. Although he exhibited some familiarity with appellant’s duties as a truck 

driver, Dr. Ellis appears to have been unaware of appellant’s modified assignment beginning in 

September 2011. The employing establishment indicated that appellant drove twice a week, and 

operated a pickup or a stake body truck. 

A physician’s opinion on causal relationship must be based on a complete factual and 

medical background.9

 In this instance, Dr. Ellis did not identify any evidence of ongoing left 

knee ligament laxity and/or instability, and he was not aware of appellant’s modified assignment 

employment duties. Accordingly, the Board finds that the medical evidence of record fails to 

establish that appellant’s claimed right knee arthritis is employment related. 

LEGAL PRECEDENT -- ISSUE 2 

Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a 

matter of right.10 OWCP has discretionary authority in this regard and has imposed certain 

 7 Mary Poller, 55 ECAB 483, 487 (2004); 1 Arthur Larson & Lex K. Larson, The Law of Workers’ Compensation 

10-1 (2006). 

8 Susanne W. Underwood (Randall L. Underwood), 53 ECAB 139, 141 n.7 (2001). 

9 Victor J. Woodhams, supra note 5. 

10 This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment 

of compensation at any time on [his] own motion or on application.” 5 U.S.C. § 8128(a). 
5

limitations in exercising its authority.11 One such limitation is that the application for 

reconsideration must be received by OWCP within one year of the date of the decision for which 

review is sought.12 A timely application for reconsideration, including all supporting documents, 

must set forth arguments and contain evidence that either: (i) shows that OWCP erroneously 

applied or interpreted a specific point of law; (ii) advances a relevant legal argument not 

previously considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not 

previously considered by OWCP.13 When a timely application for reconsideration does not meet 

at least one of the above-noted requirements, OWCP will deny the request for reconsideration 

without reopening the case for a review on the merits.14

ANALYSIS -- ISSUE 2 

OWCP received appellant’s September 21, 2015 request for reconsideration on 

September 25, 2015. Appellant submitted the appeal request form that accompanied the 

August 20, merit decision, as well as a brief statement challenging the employing 

establishment’s description of his duties as a motor vehicle operator. He believed that the 

employing establishment omitted important details regarding his duties prior to September 2011. 

The Board finds that appellant’s September 21, 2015 request for reconsideration neither alleged, 

nor demonstrated, that OWCP erroneously applied or interpreted a specific point of law. 

Additionally, appellant did not advance any relevant legal arguments not previously considered 

by OWCP. Accordingly, he is not entitled to a review of the merits based on the first and second 

requirements under section 10.606(b)(3).15

Appellant also failed to submit any “relevant and pertinent new evidence” with his 

September 21, 2015 request for reconsideration. OWCP denied his claim for failing to establish 

causal relationship, which is a medical issue that generally requires rationalized medical opinion 

evidence.16 Appellant did not submit any new medical evidence on reconsideration. Although 

the supervisor’s statement regarding appellant’s duties is new to the record, it is not relevant and 

pertinent to the issue on reconsideration. Because appellant did not provide any “relevant and 

pertinent new evidence,” he is not entitled to a review of the merits based on the third 

 11 20 C.F.R. § 10.607. 

12 Id. at § 10.607(a). The one-year period begins on the date of the original decision, and an application for 

reconsideration must be received by OWCP within one year of the OWCP decision for which review is sought for 

merit decisions issued on or after August 29, 2011. Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Reconsiderations, Chapter 2.1602.4 (October 2011). Timeliness is determined by the document receipt date of the 

request for reconsideration as indicated by the “received date” in the Integrated Federal Employees’ Compensation 

System (iFECS). Id. at Chapter 2.1602.4b. 

13 Id. at § 10.606(b)(3). 

14 Id. at §§ 10.607(b), 10.608(b). 

15 Id. at § 10.606(b)(3)(i) and (ii). 

16 Robert G. Morris, supra note 5. 
6

requirement under section 10.606(b)(3).17 Accordingly, OWCP properly declined to reopen 

appellant’s case under 5 U.S.C. § 8128(a). 

CONCLUSION 

Appellant failed to establish right knee arthritis causally related to factors of his federal 

employment. The Board further finds that OWCP properly denied his September 21, 2015 

request for reconsideration. 

ORDER 

IT IS HEREBY ORDERED THAT the October 19 and August 20, 2015 decisions of 

the Office of Workers’ Compensation Programs are affirmed. 

Issued: April 6, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 17 20 C.F.R. § 10.606(b)(3)(iii).