United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.C., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

JOHN F. KENNEDY INTERNATIONAL 

AIRPORT, Jamaica, NY, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 15-1084 

Issued: January 5, 2016 

Appearances: Case Submitted on the Record

Thomas S. Harkins, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On April 15, 2015 appellant, through counsel, filed a timely appeal from a February 19, 

2015 merit decision of the Office of Workers’ Compensation Programs. 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 met her burden of proof to establish a 

recurrence of total disability commencing on June 28, 2013 due to her June 1, 2012 employment 

injuries; and (2) whether appellant has met her burden of proof to establish an additional left 

knee injury as a consequence of her accepted employment-related injuries. 

 

 1 5 U.S.C. § 8101 et seq.
2

On appeal, counsel contends that appellant has submitted sufficient evidence to establish 

a clear change in the nature and extent of her accepted employment injuries and disability 

causally related to these injuries. 

FACTUAL HISTORY 

OWCP accepted that on June 1, 2012 appellant, then a 58-year-old import specialist, 

sustained right wrist, right shoulder, and left knee contusions, and a cervical sprain when she 

slipped in water while walking to the cafeteria and fell hard on the ground. Appellant stopped 

work on that same day and was on continuation of pay from June 2 to July 16, 2012. She filed a 

claim for wage-loss compensation beginning July 17, 2012. On August 17, 2012 OWCP denied 

payment for wage loss pending further documentation. 

Appellant worked intermittently and then returned to full-time limited-duty work on 

October 2, 2012 based on the medical opinion of Dr. Robert J. Lippe, an attending Boardcertified orthopedic surgeon. 

On August 8, 2013 appellant filed a claim for recurrence of disability commencing 

June 28, 2013 (Form CA-2a). She alleged that her duties had been changed because the 

employing establishment had not honored her work restrictions. 

Appellant submitted several medical reports dated April 17 to September 25, 2013 from 

Dr. Lippe. Dr. Lippe provided results on examination and diagnosed bilateral wrist, left 

shoulder, and left knee contusions, osteoarthritis of the knee, a cervical sprain, and preexisting 

left knee osteoarthritis. He released appellant to light-duty work with restrictions on October 1, 

2012 but prescribed physical therapy. In the April 17, 2013 attending physician’s report (Form 

CA-20), Dr. Lippe provided a history that appellant had sustained a work-related fall and noted 

her complaint of pain in the spine, neck, pelvis, and bilateral wrists, shoulders, legs, knees, 

pelvis, hands, and arms. He advised that she had been totally disabled from June 1 to 

October 1, 2012. Dr. Lippe related that appellant could continue performing full-time activities 

as tolerated and light-duty work with no field work. He further related that she must wear 

appropriate footwear to avoid further injury. 

In notes dated July 12 to 26, 2013, physical therapists addressed appellant’s treatment. 

By letter dated July 26, 2013, OWCP referred appellant to Dr. Leon Sultan, a Boardcertified orthopedic surgeon, for a second opinion. 

In his August 13, 2013 report, Dr. Sultan noted the history of the June 1, 2012 work 

injury and appellant’s treatment. He noted her complaints of cramps in her right hand, tightness 

and a pulling sensation in her left knee, and occasional left shoulder throbbing. On cervical 

spine examination, Dr. Sultan reported no active paracervical muscle spasm or trigger points on 

palpation over the right and left trapezius musculature. Appellant had full range of motion. 

Sensory testing of both upper extremities was intact. Grip strength was strong on both sides and 

pinch mechanism was firm bilaterally. Biceps, triceps, and radial reflexes were symmetrically 

dull. 
3

On examination of both shoulders, Dr. Sultan found no localized swelling, deformity, or 

discoloration. There were no complaints on palpation over either acromioclavicular (AC) joint 

or the long head of the biceps tendons. There was also no deltoid muscle atrophy on either side. 

Range of motion was full. Bilateral impingement, Hawkins, and drop arm tests were negative. 

Right hand and wrist examination revealed no localized swelling, deformity, or 

discoloration with no complaints on palpation. There was no intrinsic atrophy of the right hand 

and no tropic changes involving the skin or nails. Appellant had normal range of motion of the 

right and left wrists. Sensory testing of both hands was intact. 

The thoracolumbar spine had a normal spinal column and range of motion. The pelvis 

was not tilted and the lordotic curvature was maintained. There was no active parathoracic or 

paralumbar muscle spasm. Sacroiliac joints were nontender to palpation. Heel and toe standing 

was unimpaired and a Trendelenburg test was negative on both sides. In the supine position, a 

straight leg raising test was negative bilaterally. Sensory testing of both lower extremities was 

intact. Big toe extension was strong bilaterally. A Patrick test was negative bilaterally. Knee 

jerk and ankle reflexes were symmetrically present. A left knee examination found no localized 

swelling, deformity, or discoloration. Collateral and cruciate ligaments were intact. A 

patellofemoral compression test was negative and there was no abnormal patellofemoral crepitus 

with motion testing. There were no complaints on palpation over either medial or lateral joint 

line. Appellant had normal range of motion of the both knees with limitation of flexion of the 

left knee due to her large size. She claimed that her left knee bothered her at the endpoint of 

flexion, but Dr. Sultan did not detect any reactionary muscle spasm or resistance to range of 

motion testing. Spring and McMurray tests were negative. Appellant ambulated without 

external support and her walking pattern was steady without visible signs of antalgia. Dr. Sultan 

reviewed July 30, 2012 left knee magnetic resonance imaging (MRI) scan films which showed 

early tri-compartmental osteoarthritic changes and slight thinning of the patellar articular surface. 

There was also a tiny osteochondral defect involving the lateral femoral condyle. Dr. Sultan 

advised that these were preexisting developmental changes unrelated to appellant’s June 1, 2012 

work injury. 

In response to OWCP questions, Dr. Sultan related that his objective examination 

revealed that the accepted conditions were no longer active and had resolved although he could 

not state with certainty when the conditions resolved. He related that the medical evidence did 

not indicate that she had any additional injuries due to work factors. Dr. Sultan advised that his 

examination did not confirm any current disability due to the work-related conditions, residuals, 

or claimed employment factors. He found no current disability from other nonwork-related 

preexisting or subsequent conditions. Dr. Sultan noted that appellant was clinically stable and 

could work as an import specialist without restrictions. There were no objective findings to 

support an aggravation of any prior existing condition as a result of the work-related incident. In 

addition, there were no objective findings of any current disability from work as a result of any 

work-related aggravation. Dr. Sultan concluded that no special medical treatment was 

recommended aside from home exercises to maintain muscle tone and joint mobility, and there 

were no specific problems hindering recovery and no need for further treatment. 
4

By letter dated October 4, 2013, OWCP advised appellant of the deficiencies of her claim 

and requested that she submit additional factual and medical evidence. It afforded her 30 days to 

submit the requested evidence. 

In a December 9, 2013 decision, OWCP denied appellant’s recurrence of disability claim, 

finding that the medical evidence was insufficient to establish disability due to a material change 

or worsening of her accepted June 1, 2012 work-related injuries. 

By letter dated November 28, 2014, appellant, through counsel, requested 

reconsideration. Counsel contended that accompanying medical evidence established an 

additional condition and a recurrence of disability commencing June 28, 2013 causally related to 

the accepted June 1, 2012 employment incident warranting compensation for wage loss, 

including time to attend physical therapy. 

In disability certificates dated February 26 and June 12, 2014, Dr. Alpesh D. Shah, a 

Board-certified orthopedic surgeon, reported that appellant had been treated for her bilateral 

wrist, left shoulder, and knee contusions, osteoarthritis of the knee, and cervical sprain. He 

advised that she could continue light-duty/reduced work status, but she continued to have pain 

and her prognosis remained guarded. Appellant was restricted from keyboarding, prolonged 

standing and sitting, heavy lifting, and driving. 

On December 4, 2014 Dr. Shah reported appellant’s history and findings on examination 

of her left knee and left shoulder. He diagnosed a superior glenoid labrum lesion (SLAP), 

bicipital tendinitis, rotator cuff tendinitis, AC joint arthritis, and osteoarthritis of the knee. 

Dr. Shah noted that appellant’s injury was a sprain and strain. He advised that the incident she 

described was the competent medical cause of her injury. Dr. Shah noted that appellant’s 

complaints were consistent with her injury and her history of injury was consistent with objective 

findings. Her prognosis was fair and her history did not reveal preexisting conditions that could 

affect her prognosis. Dr. Shah concluded that appellant could return to light-duty work. In Form 

CA-20 reports dated June 24, September 8, and December 16, 2014, he provided a history of the 

June 1, 2012 work injuries and diagnostic and examination findings. Dr. Shah indicated with an 

affirmative mark that her SLAP, bicipital tendinitis, rotator cuff tear, AC joint arthritis, and 

osteoarthritis of the knee were caused or aggravated by the June 1, 2012 work injuries. He 

opined that appellant was partially disabled from the date of injury to the present. Dr. Shah 

advised that as of October 1, 2012 she may continue performing light-duty work, two days, with 

activities as tolerated, but no field work. 

In disability certificates dated July 12 to September 25, 2013 and a March 12, 2014 

report, Dr. Lippe reiterated his prior diagnoses of wrist and knee contusions, left knee 

osteoarthritis, and cervical sprain. He reported that appellant continued to have pain and 

difficulty with driving, standing and sitting for prolonged periods, keyboarding, and heavy 

lifting. Dr. Lippe advised that these limitations resulted in her light-duty/reduced status. 

Appellant had a guarded prognosis for her knee as the fall seemed to exacerbate underlying 

arthritis which might need further treatment. She had a fair prognosis for her cervical spine as 

she had underlying degenerative disc disease and was prone to flare-ups of neck pain and 

spasms. The right wrist prognosis was good. Dr. Lippe advised that she had temporary partial 
5

impairment. On October 22, 2013 he opined that appellant was unable to work three-day shifts 

due to deterioration in her knee. 

In disability certificates and a report dated April 7 to December 17, 2014, Dr. Bennett H. 

Brown and Dr. Alfred F. Faust, Board-certified orthopedic surgeons, listed June 1, 2012 as the 

date of injury, examined appellant, and diagnosed a tear and sprain of the right wrist, a 

scapholunate ligament injury with no instability, degenerative thumb carpometacarpal (CMC) 

joint arthritis, cervical radiculopathy, cervicalgia, wrist sprain, left shoulder rotator cuff 

tendinitis, AC joint arthritis, SLAP, and left knee osteoarthritis. They advised that appellant had 

temporary partial impairment. Appellant’s prognosis for recovery was poor. Drs. Brown and 

Faust opined that appellant could continue to perform light-duty work, two days a week as 

tolerated with restrictions which included no field work. Dr. Brown recommended that appellant 

wear appropriate foot wear to avoid injury. He also recommended right wrist arthroscopy with 

possible SLAP repair. 

In an August 31, 2014 cervical MRI scan report, Dr. Edmond A. Knopp, a Boardcertified radiologist, found mild degenerative spondylitic changes at several levels. Physical 

therapy notes addressed the treatment cervical stenosis. 

In a February 19, 2015 decision, OWCP denied modification of the December 9, 2013 

decision. It found that the medical evidence submitted was insufficient to outweigh Dr. Sultan’s 

opinion that appellant no longer had residuals or disability causally related to her accepted 

June 1, 2012 work injury or left knee osteoarthritis as a consequence of her accepted injuries. 

LEGAL PRECEDENT -- ISSUE 1 

A recurrence of disability means an inability to work after an employee has returned to 

work, caused by a spontaneous change in a medical condition resulting from a previous injury or 

illness without an intervening cause or a new exposure to the work environment that caused the 

illness. It can also mean an inability to work that takes place when a light-duty assignment made 

specifically to accommodate an employee’s physical limitations due to his or her work-related 

injury or illness is withdrawn or when the physical requirements of such an assignment are 

altered so that they exceed his or her established physical limitations.2

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

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

record establishes that he or she can perform the limited-duty position, the employee has the 

burden of proof to establish, by the weight of the reliable, probative, and substantial evidence, a 

recurrence of total disability and an inability to perform such limited-duty work. 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 limited-duty job requirements.3

 To establish a change 

 2 J.F., 58 ECAB 124 (2006). A recurrence of disability does not apply when a light-duty assignment is 

withdrawn for reasons of misconduct, nonperformance of job duties, or other downsizing. 20 C.F.R. § 10.5(x). See 

also Richard A. Neidert, 57 ECAB 474 (2006). 

3 A.M., Docket No. 09-1895 (issued April 23, 2010); Terry R. Hedman, 38 ECAB 222 (1986). 
6

in the nature and extent of the injury-related condition, there must be a probative medical 

opinion, based on a complete and accurate factual and medical history as well as supported by 

sound medical reasoning, that the disabling condition is causally related to employment factors.4 

In the absence of rationale, the medical evidence is of diminished probative value.5

 While the 

opinion of a physician supporting causal relationship need not be one of absolute medical 

certainty, it must not be speculative or equivocal. The opinion should be expressed in terms of a 

reasonable degree of medical certainty.6

ANALYSIS -- ISSUE 1 

The Board finds that appellant has failed to establish a recurrence of total disability 

commencing on June 28, 2013 causally related to the June 1, 2012 employment injuries. 

OWCP accepted that appellant sustained right wrist, right shoulder, and left knee 

contusions, and a cervical sprain on June 1, 2012 while in the performance of duty. Appellant 

stopped work on the date of injury and thereafter worked intermittently. She received 

continuation of pay until July 16, 2012 but thereafter her claims for wage-loss compensation 

were denied due to lack of medical evidence. On October 2, 2012 appellant returned to fulltime, modified limited-duty work. She claimed a recurrence of disability commencing on 

June 28, 2013 due to her accepted injuries. 

OWCP obtained a second opinion from Dr. Sultan, a Board-certified orthopedic surgeon, 

who opined on August 13, 2013 that appellant had no residuals of her accepted work injuries and 

was capable of returning to her import specialist position with no restrictions. Dr. Sultan 

reviewed appellant’s history and noted normal findings for the cervical spine, bilateral shoulders, 

hands, wrists, and knees, thoracolumbar, and pelvis. He reviewed diagnostic test results which 

showed early tri-compartmental osteoarthritic changes and slight thinning of the patellar articular 

surface, and a tiny osteochondral defect involving the lateral femoral condyle of the left knee. 

Dr. Sultan advised that these were preexisting developmental changes unrelated to appellant’s 

accepted employment injuries. He explained that the accepted June 1, 2012 employment injuries 

had resolved because there were no objective findings of any current disability or aggravation 

causally related to these injuries. 

The Board finds that Dr. Sultan’s report represents the weight of the medical evidence on 

whether appellant was disabled commencing June 28, 2013 due to the accepted injuries. 

Dr. Sultan’s opinion is based on a proper factual and medical history as he reviewed the 

statements of accepted facts and appellant’s prior medical treatment. He also related his 

comprehensive examination findings in support of his opinion that appellant no longer had any 

residuals or disability causally related to the accepted right wrist, right shoulder, left knee, and 

cervical conditions. 

 4 Mary A. Ceglia, 55 ECAB 626, 629 (2004). 

5 Id.; Robert H. St. Onge, 43 ECAB 1169 (1992). 

6 Ricky S. Storms, 52 ECAB 349 (2001). 
7

The medical evidence submitted by appellant is insufficient to outweigh Dr. Sultan’s 

second opinion report because the evidence does not contain a rationalized medical opinion that 

establishes a change in the nature and extent of the injury-related conditions.7

Dr. Lippe’s April 17, 2013 Form CA-20 report noted appellant’s work-related fall, 

diagnosed injuries and contusions consistent with her complaints, and found her totally disabled 

from June 1 to October 1, 2012. This report predates appellant’s recurrence claim and he did not 

provide any medical rationale explaining how her accepted contusions had worsened in nearly 

one year.8 Dr. Lippe opined in an October 22, 2013 disability certificate that appellant was 

unable to work three-day shifts due to deterioration in her knee, but did not explain or offer any 

medical rationale as to how her disability was causally related to the accepted June 1, 2012 

employment injuries.9

 In his remaining reports, he did not opine that appellant was totally 

disabled. In fact, Dr. Lippe found that she could perform full-time light-duty work as tolerated 

with restrictions. For the stated reasons, his reports are insufficient to establish appellant’s 

claim. 

Similarly, the disability certificates and reports dated February 26 to December 7, 2014 

from Drs. Shah, Brown, and Faust are insufficient to establish a recurrence of disability as 

claimed. They did opine that appellant was totally disabled for work on June 28, 2013 due to the 

accepted employment injuries. Drs. Shah, Brown, and Faust found that she was capable of 

working two days a week with restrictions which included no field work. The Board finds that 

the disability certificates and reports of Drs. Shah, Brown, and Faust are insufficient to establish 

appellant’s claim. 

Dr. Knopp’s August 31, 2014 diagnostic test results addressed appellant’s cervical spine 

condition, but did not address whether she was totally disabled as of June 28, 2013 due to the 

accepted employment injuries. The Board has held that medical evidence that does not offer any 

opinion regarding the cause of an employee’s condition is of limited probative value on the issue 

of causal relationship.10

Appellant failed to submit rationalized medical evidence establishing that her disability 

on June 28, 2013 resulted from residuals of her accepted employment-related right wrist, right 

shoulder, left knee, and cervical conditions. 

On appeal, appellant’s counsel contends that appellant has submitted sufficient evidence 

to establish a clear change in the nature and extent of her accepted employment injuries and 

disability causally related to these injuries. For the reasons stated, the Board finds that appellant 

did not submit sufficiently rationalized medical evidence to establish that she sustained a 

 7

 When no such rationale is present, the medical evidence is of diminished probative value. J.B., Docket No. 

14-1474 (issued March 13, 2015). 

8 Id.

9 Id.

10 See C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009). 
8

recurrence of disability commencing on June 28, 2013 causally related to her accepted June 1, 

2012 employment injuries. 

LEGAL PRECEDENT -- ISSUE 2 

With respect to consequential injuries, it is an accepted principle of workers’ 

compensation law that, when the primary injury is shown to have arisen out of and in the course 

of employment, every natural consequence that flows from the injury is deemed to arise out of 

the employment, unless it is the result of an independent intervening cause which is attributable 

to the employee’s own intentional conduct.11 The basic rule is that a subsequent injury, whether 

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.12

A claimant bears the burden of proof to establish a claim for a consequential injury. As 

part of this burden, he or she must present rationalized medical opinion evidence, based on a 

complete factual and medical background, showing causal relationship. Rationalized medical 

evidence is an opinion of reasonable medical certainty supported by sound medical rationale 

explaining the nature of the relationship of the diagnosed condition and the specific employment 

factors or employment injury.13

ANALYSIS -- ISSUE 2 

OWCP accepted that appellant sustained right wrist, right shoulder, and left knee 

contusions, and cervical sprain on June 1, 2012 while in the performance of duty. The Board 

finds that she has not submitted sufficient medical evidence to establish an additional left knee 

condition as a consequence of her accepted employment injuries. 

Dr. Shah’s December 4, 2014 report found that appellant’s SLAP, bicipital tendinitis, 

rotator cuff tendinitis, ACL joint arthritis, and osteoarthritis of the knee were caused by the 

accepted employment injuries. He offered no medical rationale explaining how the accepted 

work injuries caused the diagnosed conditions.14 In June 24, September 8, and December 16, 

2014 Form CA-20 reports, Dr. Shah indicated by checking a box marked “yes” that the abovenoted diagnosed conditions were caused or aggravated by the accepted injuries. The Board has 

held that an opinion consisting of a physician’s checkmark is of diminished probative value 

without any explanation or rationale for the conclusion reached.15 While Dr. Shah referenced the 

history of injury and diagnostic and physical examination findings as the basis for his 

conclusion, he did not clearly explain how the mechanism of injury on June 1, 2012 caused or 

 11 Albert F. Ranieri, 55 ECAB 598 (2004). 

12 See A. Larson, The Law of Workers’ Compensation § 10.01 (November 2000). 

13 Charles W. Downey, 54 ECAB 421 (2003). 

14 J.B., supra note 7. 

15 D.D., 57 ECAB 734 (2006); Sedi L. Graham, 57 ECAB 494 (2006). 
9

aggravated appellant’s diagnosed conditions. The Board finds that Dr. Shah’s reports are 

insufficient to establish appellant’s claim. 

Dr. Lippe’s reports dated April 17, 2013 to March 12, 2014 diagnosed bilateral wrist, left 

shoulder, and left knee contusions, osteoarthritis of the knee, cervical sprain, and preexisting left 

knee osteoarthritis, but offered no opinion on causal relationship of the diagnosed conditions.16 

The Board finds that Dr. Lippe’s reports are insufficient to establish appellant’s claim. 

Similarly, the reports of Drs. Brown and Faust are insufficient to establish causal 

relationship. They reported appellant’s history, examination findings, and diagnoses that 

included left knee osteoarthritis. However, neither Drs. Brown nor Faust provided an opinion 

addressing how a diagnosed left knee condition was caused by the accepted work injuries.17 The 

Board finds that their reports are insufficient to establish appellant’s claim. 

Dr. Knopp’s August 31, 2014 diagnostic test report also does not address causal 

relationship. He diagnosed mild degenerative changes at several levels of the cervical spine, but 

did not state whether the diagnosed condition was causally related to the June 1, 2012 work 

injuries.18

Multiple reports from appellant’s physical therapists addressed the treatment of her 

cervical condition. However, a physical therapist is not considered a physician as defined under 

FECA.19 Thus, records from appellant’s physical therapists are insufficient to establish her 

claim. 

The Board finds that the medical evidence of record is insufficient to establish that 

appellant sustained an additional left knee condition as a consequence of her accepted 

employment injuries. Appellant did not meet her burden of proof. 

Appellant may submit new evidence or argument with a written request for 

reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) 

and 20 C.F.R. §§ 10.605 through 10.607. 

CONCLUSION 

The Board finds that appellant has failed to establish a recurrence of total disability 

commencing on June 28, 2013 due to her June 1, 2012 employment injuries. The Board further 

finds that she has failed to meet her burden of proof to establish an additional left knee injury as 

a consequence of her accepted employment-related injuries. 

 16 See cases cited, supra note 10. 

17 Id.

18 Id. 

19 A.C., Docket No. 08-1453 (issued November 18, 2008). Under FECA, a physician includes surgeons, 

podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the 

scope of their practice as defined by State law. 5 U.S.C. § 8101(2). See also Charley V.B. Harley, 2 ECAB 208, 

211 (1949) (where the Board held that medical opinion, in general, can only be given by a qualified physician). 
10

ORDER 

IT IS HEREBY ORDERED THAT the February 19, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: January 5, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board