United States Department of Labor 

Employees’ Compensation Appeals Board 

_________________________________________ 

D.C., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION, 

Honolulu, HI, Employer 

_________________________________________ 

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Docket No. 14-1312 

Issued: May 6, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On May 19, 2014 appellant filed a timely appeal from an April 7, 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 has established disability on or after June 14, 2010 as a 

result of his accepted November 4, 2009 employment injuries. 

FACTUAL HISTORY 

On December 8, 2009 appellant, then a 58-year-old nurse, filed a traumatic injury claim 

(Form CA-1) alleging that on November 4, 2009 he was assaulted by a patient and sustained 

 1

 5 U.S.C. § 8101 et seq. 
2

injuries to the back, knees, and legs, as well as an exacerbation of his preexisting post-traumatic 

stress disorder (PTSD) related to a combat injury. He reported that on that date a patient became 

violent and struck a physician. Appellant moved behind the patient and pulled him back by his 

upper torso while at the same time security personnel charged the patient from the front, causing 

appellant and the patient to fall down hitting the headboard of the bed and the floor very hard. 

While on his knees on the floor, appellant struggled to control the patient who was violently 

punching and biting him until he was restrained several minutes later. 

Appellant stopped work on November 4, 2009 and sought treatment with Dr. D. Scott 

McCaffrey, Board-certified in emergency medicine. In a November 5, 2009 medical report, 

Dr. McCaffrey diagnosed lumbar sprain with bilateral sciatica and bilateral leg abrasions. He 

released appellant to full-duty work as of November 9, 2009. Appellant was authorized for 

continuation of pay for intermittent wage loss through December 3, 2009. 

By decision dated May 18, 2010, OWCP accepted appellant’s claim for lumbar strain and 

bilateral knee abrasion. The decision noted that, while his physician had provided additional 

diagnoses of bilateral sciatica, annular tear, prepatellar contusion, chronic bursitis, and PTSD, 

the conditions were not accepted due to lack of medical evidence establishing causal relationship 

with the November 4, 2009 traumatic injury. 

On January 28, 2010 appellant traveled to Vietnam and returned at the end of 

March 2010.2

In a June 9, 2010 diagnostic report, Dr. Darren Lum, a Board-certified diagnostic 

radiologist, reported that a magnetic resonance imaging (MRI) scan of the right and left knee 

revealed a horizontal undersurface cleavage tear involving the posterior horn of the medial 

meniscus. 

In a June 14, 2010 medical report, Dr. McCaffrey diagnosed lumbar sprain with bilateral 

sciatica and L3-4 annular tear, bilateral leg abrasion with prepatellar contusion and chronic 

bursitis, bilateral knee sprain with medial posterior horn cartilage tears, and cervical sprain with 

C5-6 disc space narrowing. He placed appellant on modified duty by restricting work to three 

times per week on Mondays, Wednesdays, and Fridays. 

In a June 15, 2010 diagnostic report, Dr. Ryan L. Arbritton, a Board-certified diagnostic 

radiologist, reported that a cervical x-ray revealed degenerative disc space narrowing and 

endplate osteophyte formation at C5-6 and left-sided C5-6 neural foraminal stenosis from 

unconvertebral spurring. 

 2

 The record reflects that, although appellant was released to full-duty work on November 9, 2009, he was not 

working and on travel from January 28, 2010 through the end of March 2010. On January 20, 2009, prior to 

traveling to Vietnam, Dr. McCaffrey issued a “Letter of Medical Necessity When Traveling” to avoid aggravation of 

injuries because appellant’s neck, shoulders, elbows, back, hips, knees, and ankles’ aching symptoms had not 

improved. On December 13, 2010 Dr. McCaffrey placed appellant off work from January 7, 2011 through April 29, 

2011 for herbal medicine alternative medical treatment which he would be receiving in Vietnam. Appellant again 

traveled to Vietnam from January 7 to April 29, 2011. He stopped work on January 7, 2011 and did not return, 

filing CA-7 forms for continuous disability compensation beginning on that date. 
3

On July 8, 2010 appellant filed claim for compensation CA-7 forms for intermittent 

periods of disability beginning November 5, 2009. 

Dr. McCaffrey completed a September 3, 2010 work capacity evaluation wherein he 

indicated that appellant could not perform his usual job and had numerous work restrictions 

including sitting, walking, standing, and operating a motor vehicle for up to one hour a day. 

In a November 16, 2010 medical report, Dr. McCaffrey modified appellant’s work to two 

times per week, on Tuesdays and Thursdays, due to a flare up of his condition. He provided 

additional diagnoses of bilateral shoulder dysfunction, bilateral ankle sprain with dysfunction, 

bilateral calcaneal fractures, bilateral shoulder superior labrum from anterior to posterior (SLAP) 

lesions with rotator cuff tear, and bilateral elbow desiccation. 

By letter dated February 4, 2011, OWCP informed appellant that the medical evidence of 

record was insufficient to support his claim for compensation. Appellant was advised to submit 

medical evidence establishing disability for the periods claimed. In response, he submitted 

numerous diagnostic and medical reports. 

By decision dated April 15, 2011, OWCP denied appellant’s claim for wage-loss benefits 

as of June 14, 2010 finding that the medical evidence failed to establish a material worsening of 

his accepted conditions due to the accepted November 4, 2009 work injury. 

In a May 2, 2011 medical report, Dr. McCaffrey placed appellant off work from 

January 7 through May 9, 2011, noting that he would be released to modified duty effective 

May 10, 2011. 

On May 11, 2011 appellant requested review of the written record before the Branch of 

Hearings and Review. In support of his claim, he submitted narrative statements and additional 

medical and diagnostic reports documenting his treatment. 

In a May 16, 2011 medical report, Dr. McCaffrey provided 14 different diagnoses 

pertaining to the back, neck, ankles, legs, knees, elbows, shoulders, and mental health.3

 He 

opined that appellant’s diagnoses were caused by the November 4, 2009 employment incident, 

noting that he had no prior injuries to any of these areas and had been suffering from severe pain 

and impairment since the injury. Dr. McCaffrey stated that appellant resumed full-duty work for 

 3

 Dr. McCaffrey provided the following diagnoses: lumbar sprain with bilateral sciatica and L3-4 annular tear; 

bilateral leg abrasions with prepatellar contusion and chronic persistent bursitis, bilateral knee sprain with medial 

posterior horn cartilage tears, cervical sprain with C5-6 disc derangement and mild listhesis with osteophyte 

complex and facet degenerative arthritis, bilateral ankle sprain with probable talar dome fracture and small fragment 

displacement on the left and talar dome marrow edema with tibialis posterior tenosynovitis and medial tibia cartilage 

articular defects, right shoulder sprain with SLAP tear and partial thickness articular surface tear of the 

suprascapularis with adjacent tendinopathy, left shoulder sprain with supraspinatus, infraspinatus partial thickness 

tears and SLAP tear extending into the biceps labral anchor from posterior to anterior, right knee sprain with 

horizontal oblique tear of the posterior horn of the medial meniscus, left knee sprain with horizontal cleavage tear of 

the posterior horn of the medial meniscus with extrusion, lumbar sprain with annular tears of the right portion of the 

disc at the L3-4 and L4-5 levels, left elbow sprain with chronic persistent medial epicondylitis, right elbow sprain 

with mild medial epicondylitis with edema in the common flexor tendon, mild PTSD secondary to injury, and 

chronic persistent pain-related sleep disorder. 
4

the first three months subsequent to the injury and was later reduced to light-duty secondary to 

chronic ongoing pain from the noted injuries. He stated that appellant’s modified-duty work 

schedule allowed for his physical therapy and treatment so that he could remain active in the 

workplace. 

Dr. McCaffrey completed a work capacity evaluation on June 6, 2011 wherein he noted 

appellant’s restrictions, including sitting, walking, and standing for 20 minutes at a time, but 

confirmed he could work for eight hours a day with restrictions. Dr. McCaffrey related that 

appellant had severe chronic pain and MRI scans showed several severe joint sprains, 

derangements, and fractures. 

A memorandum dated June 14, 2011 by a nurse manager at the employing establishment 

documented a meeting that day wherein appellant’s April 15, 2011 denial of compensation was 

discussed. The memorandum documented that he had been informed that the modified duty he 

had been performing would no longer be available. Effective June 15, 2011 appellant would be 

placed on leave without pay pending the outcome of his workers’ compensation appeal, or a 

release to full duty without restrictions by his physician. 

In a July 9, 2011 report, Dr. McCaffrey stated that appellant was off duty due to 

withdrawal of light-duty work from the employing establishment on June 15, 2011. 

By medical report dated July 11, 2011, Dr. Gary Okamura, a Board-certified orthopedic 

surgeon, reported that he was evaluating appellant for injuries sustained from a November 4, 

2009 work injury. He diagnosed bilateral knee medial meniscal tears and recommended 

arthroscopic knee surgery. Dr. Okamura further noted SLAP tears to the shoulders which also 

required surgery. 

On August 24, 2011 OWCP expanded the claim to include the conditions of bilateral 

knee sprain, bilateral shoulder sprain, bilateral ankle sprain, and cervical strain. It noted that, 

although an arthroscopic surgery had been requested for bilateral meniscus tears, a second 

opinion was warranted before any further determination could be made. 

By decision dated September 22, 2011, the Branch of Hearings and Review set aside the 

April 15, 2011 decision and remanded the case for additional medical development. The hearing 

representative noted that OWCP denied appellant’s claim for disability on the basis that it was 

unclear how the various new conditions claimed were work related or what material change 

occurred such that appellant would have been able to work full duty through May 2010, but then 

become increasingly disabled. It noted that subsequent to the April 15, 2011 decision, OWCP 

expanded the claim to include additional conditions and as such, the case should be remanded to 

a second opinion physician for examination and opinion on appellant’s work-related injuries and 

periods of disability. 

Appellant submitted an August 13, 2011 psychiatric report from Dr. Danilo E. Ponce, a 

treating physician, who diagnosed PTSD chronic as a Vietnam Veteran which he opined was 

acutely exacerbated by the November 4, 2009 employment incident. He also submitted a 

September 6, 2011 report from Dr. McCaffrey, which placed him on modified duty and a 

September 26, 2011 report which removed him from duty. 
5

In an October 3, 2011 report, addressed to the employing establishment, Dr. McCaffrey 

noted that he had completed several functional capacity evaluations and therefore the employing 

establishment was aware that appellant had persistent pain due to derangement of the neck, back, 

bilateral shoulders, elbow, knee, ankle, and heels, as well as aggravation of preexisting PTSD 

since November 4, 2009. He stated that sedentary work requiring excessive sitting was not 

recommended. Dr. McCaffrey concluded that the job description provided was not appropriate 

and could aggravate his condition. 

On February 7, 2012 OWCP referred appellant, the case file, a statement of accepted 

facts (SOAF), and a series of questions to Dr. Tetsuto Numata, a Board-certified orthopedic 

surgeon, for a second opinion examination and opinion on appellant’s work-related injuries and 

disability. 

In his March 23, 2012 report, consisting of 42 pages, Dr. Numata provided a detailed 

summary of prior medical and diagnostic reports and findings on physical examination. 

Appellant reported no injuries or problems pertaining to his back, bilateral knees, neck, bilateral 

shoulders, bilateral elbows, bilateral hips, bilateral ankles, and bilateral heels prior to the 

November 4, 2009 work injury. Dr. Numata provided a history of the employment incident 

stating that the physical altercation that occurred was violent and uncontrolled. He noted that 

appellant fell back to the floor while holding the patient who was struggling against the bed, and 

continued to struggle in an uncontrolled manner until the patient was subdued. Based on the 

mechanism of injury, Dr. Numata noted that it was plausible that a mechanical injury could have 

occurred in the neck, lower back, bilateral knees, bilateral shoulders, and bilateral ankles. 

Dr. Numata provided diagnoses of right knee medial meniscus tear, left knee medial 

meniscus tear, lumbar annular tear at L3-4 and L4-5 discs, right ankle ligament sprain, right 

articular cartilage tear, right ankle posterior tibial tendinitis, right calcaneal nondisplaced 

fracture, bilateral shoulder SLAP tear, bilateral shoulder supraspinatus, left shoulder 

subscapularis partial tear, and bilateral elbow mild medial epicondylitis. He further noted the 

preexisting conditions of right elbow osteoarthritis, cervical multilevel degenerative spondylosis, 

bilateral shoulder acromioclavicular (AC) joint arthropathy, left ankle osteochondral lesion 

medial dome of talus and degenerative articular cartilage, and damage in the tibia plafond. 

Dr. Numata noted that while complaints to the low back and bilateral knees were 

documented since the onset of injury, complaints to the neck, shoulders, elbows, and ankles were 

not documented for nearly seven months after the initial injury. Thus, he opined that injuries 

sustained to the neck, shoulders, elbows, and ankles were not directly related to the work injury. 

Dr. Numata further opined that appellant’s bilateral knee medial meniscus tear and lumbar 

annular tear at L3-4 and L4-5 discs as documented by MRI scan were directly caused by the 

work-related accident. He stated that appellant’s preexisting conditions of right elbow 

osteoarthritis, cervical multilevel degenerative spondylosis, bilateral shoulder AC joint 

arthropathy, left ankle osteochondral lesion medial dome of talus and degenerative articular 

cartilage, and damage in the tibia plafond were aggravated by the work injury. Dr. Numata 

stated that the aggravation was permanent as it was beyond the period of time since the work 

injury where the aggravation would normally have ceased. 
6

When asked if appellant’s two trips to Vietnam, which entailed a 13-hour flight one way, 

caused or aggravated his conditions, Dr. Numata stated that no records were provided to render 

an opinion on the issue. When asked if the 13-hour flight to Vietnam was responsible for any 

periods of disability, he responded that the medical records did not indicate that the flights 

themselves led to reduction of appellant’s work capacity or status. Dr. Numata noted that 

Dr. McCaffrey reduced appellant’ workload beginning June 14, 2010 and speculated that this 

could have been done due to appellant’s reports of worsening of his condition over time. He 

stated that review of medical records did not identify a material change that occurred on or about 

June 2010 which would cause the change in his work capacity. Dr. Numata further noted that 

Dr. McCaffrey placed appellant off duty effective January 7 through May 9, 2011. The medical 

records revealed that Dr. McCaffrey placed appellant off duty due to the employing 

establishment’s lack of accommodation of his modified-duty status. Dr. Numata stated that it 

appeared that appellant had modified work-duty capacity since May 10, 2011. 

Dr. Numata opined that appellant was suffering from residuals of the work injury 

pertaining to his bilateral shoulders and knees. He further stated that, if OWCP were to accept 

causal relationship, appellant was suffering from residuals of the work injury related to the 

cervical spine and bilateral elbows, but no residuals for the bilateral ankles. Dr. Numata 

recommended that OWCP approve bilateral knee surgery and shoulder arthroscopic surgery. He 

stated that the work injury more likely than not caused the damage to the bilateral knee structure 

identified by MRI scan based on time line of injury and symptoms. With respect to the bilateral 

shoulder surgery, Dr. Numata stated that OWCP would need to decide administratively if the 

injury should be covered. He concluded that appellant could work in a modified-duty capacity 

with restrictions of lifting, bending, twisting, squatting, climbing, pushing, and pulling with the 

ability to change positions from sitting, standing, and walking freely. 

By letter dated May 17, 2012, OWCP requested a supplemental report from Dr. Numata 

and provided additional questions for clarification. It noted that he stated that appellant’s 

complaints to the neck, bilateral shoulders, bilateral elbows, and bilateral ankles were not 

directly related to the work injury as there were no documented complaints of symptoms until 

seven months later. However, Dr. Numata later stated that appellant’s right elbow, cervical, 

bilateral shoulder, and left ankle conditions were aggravated by the work injury. 

In a July 9, 2012 report, Dr. Numata responded to an OWCP questionnaire and stated that 

the preexisting conditions could not be directly related to the work injury. He further stated that 

the neck, bilateral shoulders, bilateral elbows, and bilateral ankles were not caused or aggravated 

by the work injury because there was no documentation of symptoms until seven months after 

the initial injury. Dr. Numata stated that appellant’s bilateral ankle sprains and cervical sprain 

had resolved but the bilateral shoulder issues had not resolved. He explained that, based on loss 

of motion examination findings, appellant suffered from residuals of the work-related lumbar 

strain. Dr. Numata noted that appellant was suffering from residuals of his lumbar strain, rather 

than his degenerative disc disease, because the lumbar strain was significantly more likely to 

have occurred as a result of the physical activities involved in the work injury. He stated that he 

was unsure why appellant could not work full duty after May 10, 2011 and was off continuously 

after January 7, 2011, but speculated that this was because of appellant’s complaints that his 

condition was slowly worsening over time, lack of accommodation by the employing 

establishment, and reduction of work pending completion of a surgical work up. Dr. Numata 
7

noted that Dr. McCaffrey noted no objective material medical changes to indicate why appellant 

was unable to work full duty after May 10, 2011. 

By decision dated August 24, 2012, OWCP denied appellant’s claim for disability 

compensation for the period beginning June 14, 2010 and continuing based on the reports of 

Dr. Numata serving as the second opinion physician. It further noted that appellant was also not 

entitled to disability compensation beginning June 15, 2011 due to his employing establishment 

withdrawal of light duty because there was no objective medical evidence to establish a material 

change in his condition that rendered him unable to continue working full duty after 

June 14, 2010. 

On August 31, 2012 appellant requested an oral hearing before the Branch of Hearings 

and Review. In support of his claim, he submitted additional medical reports dated October 20, 

2012 through January 20, 2014. 

By letter dated August 31, 2012, OWCP requested another supplemental report from 

Dr. Numata for clarification of his prior answers. It provided him additional questions for 

response. OWCP further requested that Dr. Numata explain how the tears in the bilateral knees 

were related to the November 4, 2009 injury and not the result of his nonindustrial travel and 

activities while in Vietnam. 

In an October 20, 2012 medical report, Dr. McCaffrey stated that he reviewed 

Dr. Numata’s March 23 and July 9, 2012 medical reports. He stated that he concurred with 

many of Dr. Numata’s examination findings and noted that appellant’s subjective complaints of 

pain were consistent with the structural damage proven by high resolution MRI scan 

tomography. Dr. McCaffrey noted that surgery to the knees and shoulders had been 

recommended since July 2011, but had not been approved. Appellant’s tears and derangements 

would likely not heal without surgery and the injuries were consistent with the mechanism of 

injury, appellant’s pain self-portraits taken on multiple office visits, and objective physical 

examination findings. Dr. McCaffrey further stated that, despite recommending otherwise, 

appellant insisted on going back to work five days after his initial injury due to his impeccable 

attendance record. He stated that, due to the severe nature of the multiple orthopedic traumas, 

appellant was unable to persist in full-duty capacity, resulting in time off and subsequently lightduty status. Dr. McCaffrey noted that appellant’s light duty was withdrawn by the employing 

establishment on June 15, 2011. He explained that appellant severely injured multiple joints of 

his body as a result of the November 4, 2009 employment incident and without the opportunity 

to undergo reparative surgery, he was unable to return to work in a full-duty capacity, which 

undermined his recovery. 

In a November 20, 2012 addendum report, Dr. Numata responded to OWCP’s August 31, 

2012 request for additional information. He stated that tears in the bilateral knees were 

documented from a June 9, 2010 MRI scan. Dr. Numata explained with detail that the 

mechanism of injury, persistent symptoms since the injury, and physical examination findings 

were consistent with the MRI scan findings. Coupled with lack of documented new injury, it 

was more likely than not that the meniscus tears were caused by the work injury. Dr. Numata 

further stated that there was lack of any documentation of a new injury or worsening of 

symptoms to conclude that the travel to Vietnam caused the tear of the meniscus. He further 
8

responded to OWCP’s letter which questioned whether degenerative tears, as shown on the MRI 

scan, would be the result of a traumatic event. Dr. Numata explained that a one-time traumatic 

event could produce a tear in a meniscus that was already degenerated. Thus, even in a meniscus 

that is degenerated, if the onset of symptoms followed a clear mechanism of injury that was 

consistent as a potential cause of the tear, then one could opine that the tear was caused by that 

injury. Dr. Numata noted while it was possible that the degenerative tear was already present in 

the knee prior to the work injury, the work injury would have caused an aggravation of the 

condition. 

In a July 23, 2013 medical report, Dr. Okamura reported that appellant required bilateral 

knee arthroscopy and bilateral shoulder and bicep arthroscopy. 

By letter dated August 6, 2013, OWCP requested that appellant provide his treating 

physician with the reports of Dr. Numata for an opinion regarding his requests for surgery. 

On August 20, 2013 OWCP approved appellant’s request for bilateral knee arthroscopic 

surgery.4

In an August 23, 2013 report, Dr. McCaffrey responded to OWCP’s August 6, 2013 

letter. He provided a detailed history of the November 4, 2009 employment incident and stated 

that, based on the manner of the event, appellant sustained injuries to his neck, shoulders, 

elbows, back, hips, knees, and ankles. 

Dr. McCaffrey disagreed with Dr. Numata pertaining to the lack of documented 

complaints relating to the neck, shoulders, elbows, and ankles for nearly seven months after the 

injury. He noted that, when he first treated appellant on November 5, 2009, his main focus was 

his back and knees as he was optimistic that the pain in other areas would go away. By report 

dated January 4, 2010, Dr. McCaffrey advised appellant that full duty was not recommended due 

to continued pain in his neck, shoulders, elbows, hips, and ankles, but appellant declined stating 

that he would get rest during his trip to Vietnam. On January 20, 2009, prior to traveling to 

Vietnam, appellant’s neck, shoulders, elbows, back, hips, knees, and ankles’ aching symptoms 

did not improve. In order to avoid aggravation, a “Letter of Medical Necessity When Traveling” 

was issued due to the 10-hour nonstop flight to Vietnam. Dr. McCaffrey stated that appellant’s 

March 30, 2010 bilateral knee MRI scan request was not authorized until June 9, 2010, which 

worsened his work injuries and added to his depression and stress. He explained that appellant 

was asymptomatic and fully functional at the time of the November 4, 2009 injury with no prior 

complaints of pain, problems, or symptoms related to his neck, shoulders, low back, hips, knees, 

or ankles. 

Dr. McCaffrey explained that appellant worked from November 9, 2009 through May 10, 

2010, having only taken off three days due to aggravation of his work injury. Beginning 

May 10, 2010, the employing establishment disregarded the work capacity evaluation and 

required that appellant work in various units he was not confident or experienced in, exposing 

him to an environment where he felt physically threatened. This type of work further aggravated 

 4

 The Board notes that appellant underwent surgery on August 28, 2013 and received wage-loss compensation 

from August 28, 2013 on the periodic rolls. 
9

his physical and psychological conditions. On June 14, 2010 Dr. McCaffrey reduced appellant’s 

workdays to three times per week, noting complaints of continued aching and burning in the 

neck, shoulders, elbows, lower back, hips, knees, and heels which were aggravated by the 

aforementioned work conditions. By November 16, 2010, appellant’s lower extremities were 

swollen, aching, and burning. The pain in his neck, shoulders, elbows, lower back, hips, knees, 

and heels became unbearable and his work duty was further reduced to two days per week. 

Dr. McCaffrey explained that appellant’s conditions persisted because the employing 

establishment was not following the provided work capacity evaluation and he continued to work 

until his position was withdrawn by his employing establishment on June 15, 2011. He 

concluded that appellant continued to suffer from multiple orthopedic derangements. 

A hearing was held on January 17, 2014 where appellant and his wife testified in support 

of his claim. 

By decision dated April 7, 2014, the Branch of Hearings and Review affirmed the 

August 24, 2012 OWCP decision finding that the medical evidence failed to establish that 

appellant was disabled on or after June 14, 2010 as a result of his November 4, 2009 work injury. 

The hearing representative noted that the reports of Dr. Numata, serving as the second opinion 

physician, were speculative on the issue of causation and several attempts were made for 

clarification to no avail. She further noted that Dr. McCaffrey’s medical reports were a 

reiteration of his earlier narratives and offered no new medical rationale establishing the claimed 

disability in light of appellant continuing to work full duty for over six months following the 

injury. 

LEGAL PRECEDENT 

Under FECA,5 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.6 Whether a particular 

injury causes an employee to be disabled and the duration of that disability are medical issues 

which must be proved by a preponderance of the reliable, probative, and substantial medical 

evidence.7 Findings on examination are generally needed to support a physician’s opinion that 

an employee is disabled for work. When a physician’s statements consist only of a repetition of 

the employee’s complaints that excessive pain caused an inability to work, without making an 

objective finding of disability, the physician has not presented a medical opinion on the issue of 

disability or a basis for payment of compensation.8

 The Board will not require OWCP to pay 

compensation for disability without 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.9

 5 Supra note 1. 

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

7 See Fereidoon Kharabi, 52 ECAB 291, 293 (2001); Edward H. Horton, 41 ECAB 301, 303 (1989). 

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

9 Id.
10

When an employee who is disabled from the job he or she held when injured on account 

of employment-related residuals returns to a light-duty position or the medical evidence 

establishes that he or she can perform the light-duty position, the employee has the burden of 

establishing by the weight of the evidence that he or she cannot perform such light duty. As part 

of this burden, the employee must show a change in the nature and extent of the injury-related 

condition or a change in the nature and extent of the light-duty job requirements.10 

OWCP is not a disinterested arbiter but rather performs the role of adjudicator on the one 

hand and gatherer of the relevant facts and protector of the compensation fund on the other, a 

role that imposes an obligation to see that its administrative processes are impartially and fairly 

conducted.11 Although the employee has the burden of establishing entitlement to compensation, 

OWCP shares responsibility in the development of the evidence.12 

ANALYSIS 

OWCP accepted that appellant sustained a lumbar strain, bilateral knee abrasion, bilateral 

knee sprain, bilateral shoulder sprain, bilateral ankle sprain, and cervical strain due to the 

November 4, 2009 employment incident. It subsequently approved his bilateral knee 

arthroscopic surgery. Appellant has the burden of proving by the weight of the substantial, 

reliable and probative evidence a causal relationship between his claimed disability beginning 

June 14, 2010 and the accepted November 4, 2009 work injuries.13 The Board finds this case is 

not in posture for decision. 

OWCP referred appellant and the case file to Dr. Numata, a Board-certified orthopedic 

surgeon, for a second opinion and examination pertaining to his work-related injuries and 

disability. Following Dr. Numata’s March 23, 2012 report, it requested two additional reports 

with questions for clarification. Dr. Numata submitted reports dated March 23, July 9, and 

November 20, 2012 responding to OWCP’s requests. 

In his initial March 23, 2012 report, consisting of 42 pages, Dr. Numata provided detailed 

summary of prior medical and diagnostic reports, findings on physical examination, description 

of the November 4, 2009 injury, and medical history with no prior complaints or problems. He 

provided various diagnoses and also noted preexisting diagnoses.14 Dr. Numata opined that 

 10 See Terry R. Hedman, 38 ECAB 222 (1986). 

11 Richard F. Williams, 55 ECAB 343, 346 (2004); Thomas M. Lee, 10 ECAB 175, 177 (1958). 

12 D.N., Docket No. 07-1940 (issued June 17, 2008); Mary A. Barnett, 17 ECAB 187, 189-90 (1965). 

13 See Amelia S. Jefferson, 57 ECAB 183 (2005). 

14 Dr. Numata provided diagnoses of right knee medial meniscus tear, left knee medial meniscus tear, lumbar 

annual tear at L3-4 and L4-5 discs, right ankle ligament sprain, right articular cartilage tear, right ankle posterior 

tibial tendinitis, right calcaneal nondisplaced fracture, bilateral shoulder SLAP tear, bilateral shoulder supraspinatus, 

left shoulder subscapularis partial tear, and bilateral elbow mild medial epicondylitis. He further noted the 

preexisting conditions of right elbow osteoarthritis, cervical multilevel degenerative spondylosis, bilateral shoulder 

AC joint arthropathy, left ankle osteochondral lesion medial dome of talus and degenerative articular cartilage, and 

damage in the tibia plafond. 
11

injuries sustained to the neck, shoulders, elbows, and ankles were not directly related to the work 

incident because complaints to these areas were not documented until nearly seven months after 

the initial injury. He opined that appellant’s bilateral knee medial meniscus tear and lumbar 

annular tear at L3-4 and L4-5 discs as documented by MRI scan were directly caused by the 

work-related accident. Dr. Numata further stated that the diagnosed preexisting conditions were 

aggravated by the work injury. 

Dr. Numata opined that appellant was suffering from conditions caused by the work 

injury pertaining to his lower back and knees. He recommended arthroscopic knee surgery and 

modified work duty.15 Dr. Numata further stated that appellant had conditions of the cervical 

spine, bilateral elbows, and bilateral shoulders, which required arthroscopic shoulder surgery 

should OWCP accept the conditions as work related. He speculated that Dr. McCaffrey reduced 

appellant’s workload/placed him off duty due to reports of worsening of his condition over time 

and lack of accommodation by the employing establishment. Dr. Numata stated that review of 

medical records did not identify a material change that occurred on or about June 2010 which 

would cause the change in appellant’s work capacity and opined that he had modified work-duty 

capacity since May 10, 2011. 

In a July 9, 2012 addendum report, Dr. Numata responded to OWCP questionnaire and 

stated that the preexisting conditions could not be directly related to the work injury. He 

explained that appellant was suffering from his lumbar strain, rather than his degenerative disc 

disease, because the lumbar strain was significantly more likely to have occurred as a result of 

the physical activities involved in the work injury. Dr. Numata stated that he was unsure why 

appellant was off duty continuously after January 7, 2011 and could not work full duty after 

May 10, 2011, but speculated that this was because of appellant’s complaints that his condition 

was slowly worsening over time, lack of accommodation by the employing establishment, and 

pending surgical workup. 

In another addendum report dated November 20, 2012, Dr. Numata responded to 

OWCP’s request for additional information. He stated that the meniscus tears in the knee were 

caused by the work injury and not degeneration, as documented by a June 9, 2010 MRI scan and 

consistent with appellant’s history, symptoms, timing, mechanism of injury, and lack of 

intervening trauma which was well documented in the medical records. 

The reports of Dr. McCaffrey, appellant’s treating physician, provided 14 different 

diagnoses pertaining to the back, neck, ankles, legs, knees, elbows, shoulders, and mental health 

which he opined were caused by the November 4, 2009 employment incident.16 He explained 

that appellant was asymptomatic and fully functional at the time of the November 4, 2009 injury 

with no prior complaints of pain, problems, or symptoms related to his neck, shoulders, low 

back, hips, knees, or ankles. Dr. McCaffrey reviewed the reports of Dr. Numata and disagreed 

that there were no documented complaints related to the neck, shoulders, elbows, and ankles 

 15 Dr. Numata noted that appellant could work modified duty with restrictions of lifting, bending, twisting, 

squatting, climbing, pushing, and pulling with the ability to change positions from sitting, standing, and walking 

freely. 

16 Supra note 2. 
12

until nearly seven months after the initial injury. He provided an explanation detailing why 

appellant was provided modified duty for specific periods and restricted from returning to work 

full duty for other periods, despite having been released to full duty on November 9, 2009.17 

Dr. McCaffrey explained that appellant’s work restrictions and disability were modified as his 

complaints worsened over time. He indicated that MRI scan studies confirmed worsening of 

appellant’s condition. Dr. McCaffrey further stated that OWCP failed to approve the proper tests 

and treatments in a timely manner which caused appellant’s condition to worsen as he was not 

approved for his required surgeries. He also stated that the employing establishment was not 

following appellant’s work limitations, which aggravated his conditions, and withdrew light duty 

as of June 15, 2011, rendering him unable to return to work. 

OWCP’s April 7, 2014 decision found the reports of Dr. Numata, serving as the second 

opinion physician, to be speculative on the issue of causation despite several attempts for 

clarification. The hearing representative noted that Dr. Numata’s opinion was speculative 

because the physician advised that the tears revealed in the MRI scan were degenerative but may 

have been aggravated by the work incident. Contrary to OWCP’s assertion, the Board does not 

find Dr. Numata’s opinion speculative in this regard. Dr. Numata explicitly stated that 

appellant’s tear of the meniscus was caused by the November 4, 2009 work injury, explaining 

that even if the meniscus was degenerated, the tear was caused by the traumatic injury based on 

timing, mechanism of injury, and symptomatic history which were well documented in medical 

records. Moreover, if the hearing representative found the reports of Dr. Numata to be 

speculative, it is OWCP’s obligation to seek clarification and obtain a report which adequately 

address the issues that it sought to develop.18

The Board notes that appellant’s bilateral knee meniscus tears were documented by a 

June 9, 2010 MRI scan, which both Dr. Numata and Dr. McCaffrey attributed to the 

 17 Dr. McCaffrey explained that, on November 5, 2009, appellant’s main focus was his back and knees as he was 

optimistic that the pain in other areas would go away. By January 4, 2010, he advised appellant that full duty was 

not recommended due to continued pain in his neck, shoulders, elbows, hips, and ankles but appellant declined 

stating that he would get rest during his trip to Vietnam. On January 20, 2009 prior to traveling to Vietnam, 

appellant’s neck, shoulders, elbows, back, hips, knees, and ankles’ aching symptoms did not improve. In order to 

avoid aggravation, a “Letter of Medical Necessity When Traveling” was issued due to the 10-hour nonstop trip to 

Vietnam. Dr. McCaffrey explained that appellant worked from November 9, 2009 through May 10, 2010, having 

only taken off three days due to aggravation of his work injury. Beginning May 10, 2010, the employing 

establishment disregarded the work capacity evaluation, which further aggravated appellant’s physical and 

psychological conditions. Dr. McCaffrey stated that appellant’s March 30, 2010 bilateral knee MRI scan request 

was not authorized until June 9, 2010. On June 14, 2010 he reduced appellant’s workdays to three times per week, 

noting that he complained of continued aching and burning in the neck, shoulders, elbows, lower back, hips, knees, 

and heels, which was aggravated by the employer’s lack of accommodations. By November 16, 2010, appellant’s 

lower extremities were swollen, aching, and burning. The pain in his neck, shoulders, elbows, lower back, hips, 

knees, and heels became unbearable and his work duty was further reduced to two days per week. Dr. McCaffrey 

explained that appellant’s conditions persisted because the employing establishment was not following the provided 

work capacity evaluation and he continued to work until his position was withdrawn by his employing establishment 

on June 15, 2011. He concluded that appellant continued to suffer from multiple orthopedic derangements which 

were caused by the work injury. 

18 Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 

2.810.9(j) (September 2010). Only if the second opinion physician does not respond, or does not provide a 

sufficient response after being asked, should the claims examiner request scheduling with another physician.
13

November 4, 2009 work injury. Appellant claims disability compensation beginning June 10, 

2010, the date following his MRI scan which revealed these meniscus tears. He did not undergo 

surgery for this condition until August 28, 2013. As OWCP approved this surgery and both 

physicians relate it to the November 4, 2009 work injury, it should determine whether the claim 

should be expanded to include this bilateral knee condition and whether it caused disability 

beginning June 10, 2010. 

Moreover, Dr. Numata has unequivocally stated that appellant’s lumbar and bilateral 

knee conditions were caused by the work injury and he continued to suffer from residuals of 

these injuries. He provided a detailed review of medical and diagnostic reports and explained the 

mechanism of injury pertaining to these work-related diagnoses. Dr. Numata responded multiple 

times to OWCP’s inquiries regarding appellant’s travel to Vietnam and has been steadfast in his 

opinion that the medical records did not indicate that his conditions were caused or aggravated 

by his travel nor did the travel lead to reduction of his work capacity or status. With respect to 

disability during the periods in question, he speculated that Dr. McCaffrey placed appellant on 

modified duty, and later off duty, due to complaints of worsening of his condition, lack of 

employing establishment accommodation, and pending surgical workup. Dr. Numata stated that 

it appeared that appellant had modified work-duty capacity since May 10, 2011. 

As such, the Board further finds that there is no conflict of medical opinion between the 

opinion of Dr. Numata and Dr. McCaffrey. The record reflects that both Dr. Numata and 

Dr. McCaffrey agree that appellant continued to suffer from residuals of his lumbar and bilateral 

knee conditions which were causally related to the November 4, 2009 work injury. 

Dr. McCaffrey further opined that appellant’s neck, bilateral shoulder, bilateral elbow, and 

bilateral ankle conditions were also caused by the November 4, 2009 work injury which resulted 

in continued disability. While there is no conflict, the issue remains as to whether appellant was 

disabled beginning June 10, 2010 as a result of the November 4, 2009 injury.19

Thus, the Board finds that further development is required to determine whether appellant 

was disabled due to the November 4, 2009 injury.20 On remand, OWCP should prepare a 

statement of accepted facts which includes the specific employment-related conditions accepted 

by OWCP, any recurrence of disability, a detailed employment history, specific functions 

performed by appellant, restrictions imposed by appellant’s treating physicians, and surgeries 

and medical treatment authorized by OWCP. It should determine what work restrictions were 

provided by appellant’s physician for the period in question, the modified duty provided by the 

employing establishment, and whether/when modified duty was withdrawn. OWCP should 

further develop the medical evidence and refer appellant to another appropriate Board-certified 

specialist for a new second opinion examination and rationalized opinion as to whether 

appellant’s injuries were causally related to the November 4, 2009 work incident, either directly 

or through aggravation, precipitation, or acceleration. It should determine whether appellant is 

entitled to compensation for disability, whether he is partially or totally disabled, whether he was 

 19 E.P., Docket No. 14-1298 (issued January 7, 2015). 

20 D.N., Docket No. 09-651 (issued April 20, 2010). 
14

totally disabled from June 10, 2010, and whether the claim should be expanded to include 

additional conditions.21 

For the above-noted reasons, the case will be remanded to OWCP to enable it to properly 

consider all of the evidence and develop the medical evidence. Following such further 

development as OWCP deems necessary, it shall issue an appropriate merit decision on 

appellant’s claim.22

CONCLUSION 

The Board finds that this case is not in posture for a decision as to whether appellant had 

any disability on or after June 10, 2010 as a result of his accepted November 4, 2009 

employment injuries. 

ORDER 

IT IS HEREBY ORDERED THAT the April 7, 2014 decision of the Office of 

Workers’ Compensation Programs is set aside and the case remanded for further action 

consistent with this opinion of the Board. 

Issued: May 6, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 21 Id. 

22 H.G., Docket No. 09-512 (issued October 2, 2009).