United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.R., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Columbus, OH, Employer

__________________________________________

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Docket No. 17-0648

Issued: August 15, 2018

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 1, 2017 appellant, through counsel, filed a timely appeal from a January 10, 

2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the 

Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

has jurisdiction over the merits of this case.

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). No 

contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2 5 U.S.C. § 8101 et seq.
2

ISSUE

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

commencing October 29, 2013 causally related to her accepted July 16, 2013 employment injury.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances as set forth 

in the Board’s prior order are incorporated herein by reference. The relevant facts follow.

On January 3, 2014 OWCP accepted that appellant, then a 53-year-old city letter carrier,

sustained right knee contusion, right knee sprain, right elbow contusion, and right elbow strain 

when she fell due to syncope while delivering mail on July 16, 2013.4 Appellant stopped work on 

October 29, 2013. 

Appellant subsequently submitted a December 31, 2013 attending physician’s report

(Form CA-20) from Dr. Charles May, an osteopath and family practitioner. Dr. May advised that 

the history of injury included that her right leg gave out and she fell hitting her right knee and right 

elbow and noted that appellant had a preexisting history of “2009 work injury to [her right] knee.” 

He provided findings and diagnosed: right knee sprain and contusion; right elbow sprain and 

contusion; and aggravation of degenerative joint disease of the right knee. Dr. May checked the 

box marked “yes” in response to whether he believed the condition was caused or aggravated by 

appellant’s employment activity. He also noted that appellant was totally disabled from work for 

the period October 29, 2013 to March 31, 2014. 

On January 8, 2014 appellant filed a claim for compensation (Form CA-7) requesting 

wage-loss compensation for disability from October 19 to December 27, 2013. However, the 

attached time analysis form (Form CA-7a) indicated that appellant was not claiming compensation 

until October 29, 2013, the date that she stopped work completely. 

By development letter dated January 17, 2014, OWCP noted that appellant was claiming 

compensation effective October 19, 2013 and continuing and that she had stopped work on 

October 29, 2013 and had not returned. It also indicated that it appeared that appellant was 

claiming a disability due to a material change or worsening of her accepted work-related 

conditions. OWCP therefore provided the definition of a recurrence. It explained that to be 

entitled to compensation for wage loss as a result of her current disability, she must provide factual 

and medical evidence to substantiate the recurrent disability. OWCP noted the present evidence 

did not substantiate disability for the requested period and requested that appellant submit medical 

evidence to establish that she was disabled for work during the entire period claimed. It found that 

there was not a physician’s opinion supported by objective findings as to the relationship between 

 

3 Order Remanding Case, Docket No. 15-0737 (issued August 3, 2015).

4 OWCP assigned the present claim OWCP File No. xxxxxx096. Appellant has a prior traumatic injury claim of 

February 25, 2009 which OWCP accepted for lumbar sprain, bilateral knee sprains and contusions. It assigned OWCP 

File No. xxxxxx601. OWCP File Nos. xxxxxx096 and xxxxxx601 have been administratively combined, with OWCP 

File No. xxxxxx096 serving as the master file.
3

her disability and the original injury and or illness. OWCP afforded appellant 30 days to submit 

the requested evidence. 

Appellant continued to submit Form CA-7 claims for wage-loss compensation for

continuing disability. 

OWCP subsequently received a series of additional reports from Dr. May. In a January 29, 

2014 attending physician’s report, Dr. May explained that appellant’s right lower extremity gave 

out, and she fell, hitting her right knee and right elbow. He indicated that there was evidence of 

concurrent or preexisting history of a “2009 work injury to [appellant’s right] knee.” Dr. May

provided findings and diagnosed right knee sprain strain and right elbow strain and sprain. He

checked the box marked “yes” in response to whether he believed that appellant’s conditions were

caused or aggravated by her employment activity. Dr. May advised that the period of disability 

ran from October 29, 2013 to April 29, 2014. 

A January 29, 2014 duty status report (Form CA-17) from Dr. May noted various physical 

restrictions due to appellant’s accepted conditions, but when asked whether she was advised to 

resume work, he checked the box marked “no.”

In a report dated February 4, 2014, Dr. May noted that appellant had difficulty walking, 

standing, or climbing stairs because of her worsening right knee pain and worsening right hip pain. 

He opined that “[i]n my medical opinion, appellant has been unable to work all the duties of her 

job as a postal carrier since we first examined her on October 29, 2013. He opined that she had 

difficulty standing, walking, and climbing mainly because of her right knee injury which has yet 

to be fully diagnosed.”

By decision dated February 26, 2014, OWCP denied appellant’s claim for compensation 

for the period October 19, 2013 and continuing because the evidence of record was insufficient to 

establish that she was totally disabled from work due to her accepted work-related conditions. It

explained that the evidence submitted did not establish that she had a return or increase of disability 

due to a change or worsening of her accepted work-related conditions because it did not contain a 

well-rationalized physician’s opinion supported by objective findings as to the relationship 

between her claimed disability and her original work injury. OWCP found that appellant did 

initially not stop work following the July 16, 2013 employment injury. Rather, appellant continued 

to work the regular duties of her job until she stopped work on October 29, 2013. OWCP explained 

that while Dr. May advised in his February 4, 2014 report that she was unable to perform all of the 

duties of her position, he did not support total disability from all work. It explained that an opinion 

was needed from a treating physician explaining why and how the work injury prevented her from 

all work, especially given that she was working without apparent difficulty from July 17 to 

October 19, 2013, ultimately stopping work on October 29, 2013. 

OWCP subsequently received a February 25, 2014 report wherein Dr. May advised that,

since his last report of February 4, 2014, a magnetic resonance imaging (MRI) scan of appellant’s 

right knee was obtained. Dr. May explained that the scan revealed tricompartmental degenerative 

joint disease of the right knee as well as a tear of both medial and lateral menisci of the right knee. 

He advised that these findings were certainly consistent with appellant’s complaints and physical 

findings. Dr. May opined that appellant substantially aggravated her preexisting tricompartmental 
4

degenerative joint disease of the right knee as a direct and proximate result of her work injury 

occurring on July 16, 2013. He also opined that appellant developed a medial and lateral meniscal 

tear as a direct and proximate result of her July 16, 2013 work injury.

On March 6, 2014 appellant requested a telephonic hearing, which was held before an 

OWCP hearing representative on September 9, 2014. She also continued to submit additional

Form CA-7 claims for compensation. 

In a March 10, 2014 report, Dr. May advised that he reexamined appellant on 

March 10, 2014. He related that appellant complained of worsening right knee pain and advised 

that she did not have much mobility. Dr. May recommended an evaluation by an orthopedic 

specialist.

In a March 24, 2014 report, Dr. Jeremy R. Mathis, a Board-certified orthopedic surgeon, 

noted appellant’s history of injury and treatment and conducted an examination. He diagnosed 

degenerative joint disease of the right knee. Dr. Mathis provided several options for appellant’s 

ongoing knee condition. He noted that appellant wanted to consider right knee arthroplasty. 

Dr. Mathis advised that this would be appropriate for her findings and indicated that he would 

submit a request for authorization for a total knee arthroplasty.5

In a May 12, 2014 report, Dr. Mark E. Gittins, a Board-certified orthopedic surgeon and 

osteopath, noted appellant’s history of injury and treatment. He diagnosed right knee pain,

osteoarthritis of the right knee, medial and lateral meniscal tears, elevated body mass index, and 

tobacco abuse. Dr. Gittins explained that they discussed various treatment options with her, both 

operative and nonoperative. He noted that appellant wished to proceed with the right total knee 

arthroplasty. 

In a September 10, 2014 report, Dr. May noted appellant’s history of injury and treatment 

and addressed her claim for continuing disability commencing October 19, 2013. He explained 

that following her employment injury they were unable to proceed with treatment for her because 

her claim had not been adjudicated. Dr. May also explained that on January 21, 2014 they were 

notified that appellant’s claim was finally allowed. He indicated that at that point, they proceeded 

with some therapy for her knee and she did not improve. Dr. May noted that she then saw the 

orthopedic specialist who wanted to perform a total right knee arthroplasty. He opined that because 

of her right knee injury, appellant was unable to work from the date that he first saw her on 

October 29, 2013 and she remained disabled from her job as a letter carrier for the employing 

establishment as a result of this injury until more definitive treatment was approved and completed. 

Dr. May explained that, with the pathology in her right knee, it was obvious that she could not 

perform the duties required of a letter carrier. 

 

5 OWCP also received his March 24, 2014 notes. 
5

By decision dated November 25, 2014, OWCP’s hearing representative affirmed the 

February 26, 2014 decision.6 

OWCP subsequently received an April 18, 2015 attending physician’s report, wherein

Dr. May advised that the history of injury included that appellant’s right leg gave out and she fell 

while working. Dr. May noted that she had fallen on her right knee and her right elbow on 

July 16, 2013. He noted that the date of his first examination was October 29, 2013 and that 

appellant continued to receive treatment to the present. Dr. May advised that appellant was totally 

disabled from work commencing November 29, 2014.7

In reports dated May 27 and June 8, 2015, Dr. May opined that appellant had reached 

maximum medical improvement and noted that she could return to work effective that date with 

several physical restrictions. 

On June 15, 2015 the employing establishment provided appellant with an offer of 

modified assignment (limited duty) as a city carrier. Appellant accepted that offer on 

June 15, 2015.

In a June 30, 2015 duty status report, Dr. May noted that appellant was currently working 

and had continued right knee pain and that her knee throbbed at night after working. He related 

that she indicated that she was taking more nonsteroids because of her pain and throbbing, but 

denied any specific injury to right knee. By decision dated September 22, 2015, OWCP issued a 

de novo decision denying appellant’s claim for compensation commencing October 19, 2013. It 

found that she had not submitted rationalized medical evidence sufficient to establish that the 

claimed disability was causally related to her accepted work-related condition.

On September 28, 2015 counsel requested a telephonic hearing, which was held on 

May 19, 2016. 

During the hearing, appellant indicated that she was off work from October 2013 through 

June 2015. She explained that she then returned to work with limitations. Appellant noted that 

she stopped work after a new injury to a different part of the body in January 2016. She advised 

that she underwent a total knee replacement in October 2014. Appellant stated that she worked 

from the injury in July 2013 until she stopped work in October 2013, and that her symptoms kept 

her from continuing to work. She explained that the employing establishment was pressuring her 

because she was not keeping up with her time. 

By decision dated August 2, 2016, OWCP’s hearing representative affirmed the 

September 22, 2015 decision. She found that appellant had not established that her claimed 

 

6 Appellant appealed the hearing representative’s decision to the Board. By decision dated August 3, 2015, the 

Board set aside the November 25, 2014 decision and remanded the case, for OWCP to administratively combine File 

Nos. xxxxxx096 and xxxxxx601 to be followed by an appropriate merit decision. OWCP administratively combined

the files on August 14, 2015, with File No. xxxxxx096 serving as the master file. 

7 The Board notes that this appears to have been a typographical error as the record reflects that appellant stopped 

work on October 29, 2013.
6

disability was causally related to her accepted knee condition. The hearing representative noted 

that she had delayed seeking medical treatment and that she did not stop work until 

October 29, 2013. She also noted that appellant had a preexisting claim for which she had actively 

sought treatment for both knees. The hearing representative concluded that none of the medical 

records submitted supported an ongoing period of disability commencing October 29, 2013 as they 

were either speculative or failed to provide a rationalized opinion supporting the claimed disability. 

OWCP subsequently received a series of medical reports dated October 18, 2016 in which

Dr. May noted that appellant’s leg gave out and she fell hitting her right knee and elbow. Dr. May

explained that appellant was first seen on October 29, 2013 and she was rendered totally disabled 

from work for the period November 29, 2014 to June 8, 2015.8 In an October 18, 2016 Form CA17 duty status report, he advised that appellant was advised to resume work as of June 8, 2015 

with restrictions.

On November 16, 2016 appellant, through counsel, requested reconsideration and

submitted new medical evidence.

In a November 1, 2016 report, Dr. May explained that appellant was a patient for several 

years, but due to financial matters he stopped seeing her in 2009. He advised that he again began 

seeing appellant in 2013 in relation to a work injury to the right knee which occurred on 

July 16, 2013. Dr. May also noted that in 2009 appellant saw Dr. Joseph Wilcox, a Board-certified 

orthopedic surgeon. He advised that appellant received steroid injections. Dr. May advised that 

in a follow-up examination by Dr. Wilcox on August 12, 2013, Dr. Wilcox recommended a return 

to work without restriction. Dr. May explained that these treatment notes were important because 

they revealed that appellant received treatment following the injury. He noted that this was in 

contrast to OWCP’s finding that appellant did not receive any treatment after the July 2013 injury. 

Dr. May opined that appellant was having problems with both knees and received a steroid 

injection five days before the injury with an excellent result. He further explained that, although 

appellant had an intervening injury on July 16, 2013, the injection helped her right knee which 

remained fairly asymptomatic until she saw him on October 29, 2013. By the time Dr. May saw 

appellant on October 29, 2013, the effects of the injection had worn off and appellant was suffering 

from pain in the right knee. He found that the right knee was much worse in October 2013 

compared to the initial evaluation five days prior to the injury. Dr. May posited that the preexisting

degenerative joint disease was aggravated by the fall on July 16, 2013. He opined that the right 

knee became worse following the July 16, 2013 work injury and had progressed to the point that 

appellant needed to undergo a total knee arthroplasty. Dr. May noted that this was proof that the 

work injury aggravated the preexisting arthritis. He opined that appellant’s disability was a direct 

result of the July 16, 2013 work injury. 

OWCP received July 11, 2013 treatment notes from a physician assistant, who indicated 

that appellant was seen for complaints of bilateral knee pain and diagnosed symptomatic 

degenerative joint disease. The physician assistant recommended cortisone injections to the 

bilateral knees and noted that she tolerated the procedure well without complications.

 

8

Id.
7

In August 12, 2013 treatment notes, Dr. Wilcox noted that appellant came in and indicated 

that both her knees were feeling better as the injections “definitely helped from the last visit.” He 

diagnosed bilateral knees with symptomatic degenerative joint disease-improved with cortisone 

injection. Dr. Wilcox advised that appellant was doing well and could go back to “full activities 

unrestricted.”

In a January 4, 2017 report, Dr. May noted that appellant was reexamined as appellant 

related that in the past 24 to 48 hours, she developed severe right knee pain and swelling. He 

advised that appellant continued working restricted duty, but was still delivering mail. Dr. May 

advised that it seemed to be worse with the recent onset of cold weather. He explained that there 

was no direct trauma to the right knee and she was status post total knee arthroplasty. Dr. May’s 

examination findings of the right knee included: an arthroplasty scar anteriorly; large effusion; 

generalized tenderness and restricted range of motion. He noted that gait was antalgic without 

ambulatory aids. Dr. May also x-rayed the right knee and advised that he could not find any 

loosening of the prosthetic portions of the knee replacement. He advised that he was going to 

restrict appellant further as to her standing, walking, and climbing. Dr. May also indicated that he 

would request authorization for consultation with an orthopedic specialist. 

By decision dated January 10, 2017, OWCP denied modification of the August 2, 2016 

hearing representative decision. It found the medical evidence of record was insufficient to 

establish disability for the period October 29, 2013 and continuing, causally related to her July 16, 

2013 work injury. 

LEGAL PRECEDENT

An employee seeking benefits under FECA9 has the burden of proof to establish the 

essential elements of his or her claim by the weight of the evidence.10 For each period of disability 

claimed, the employee has the burden of proof to establish that she was disabled for work as a 

result of the accepted employment injury.11 Whether a particular injury causes an employee to 

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

proved by a preponderance of probative and reliable medical opinion evidence.12

Under FECA the term disability means incapacity, because of an employment injury, to 

earn the wages that the employee was receiving at the time of injury.13 Disability is, thus, not 

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

wages.14 An employee who has a physical impairment causally related to his or her federal 

 

9 Supra note 2.

10 See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986).

11 See Amelia S. Jefferson, id.

12 See Edward H. Horton, 41 ECAB 301 (1989).

13 S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); 20 C.F.R. § 10.5(f).

14 Roberta L. Kaaumoana, 54 ECAB 150 (2002).
8

employment, but who nonetheless has the capacity to earn the wages that she was receiving at the 

time of injury, has no disability and is not entitled to compensation for loss of wage-earning 

capacity.15 When, however, the medical evidence establishes that the residuals or sequelae of an 

employment injury are such that, from a medical standpoint, they prevent the employee from 

continuing in her employment, she is entitled to compensation for any loss of wages.

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.16

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish disability from 

October 29, 2013 and continuing causally related to her accepted July 16, 2013 employment 

injury.

In support of her claim, appellant submitted numerous reports from her treating physician,

Dr. May in support of her claimed period of disability. However, Dr. May did not provide a 

rationalized opinion, explaining how or why appellant was totally disabled from work 

commencing October 29, 2013, causally related to her July 16, 2013 employment injury. For 

example, in a December 31, 2013 attending physician’s report, he advised that the history of injury 

included that her right leg gave out and she fell hitting her right knee and right elbow. Dr. May

noted that the period of disability ran from October 29, 2013 to March 31, 2014. In a January 29, 

2014 attending physician’s report, Dr. May explained that appellant’s right lower extremity gave 

out, and she fell, hitting her right knee and right elbow. He advised the period of disability ran

from October 29, 2013 to April 29, 2014. In an April 18, 2015 attending physician’s report,

Dr. May advised that the history of injury included that appellant’s right leg gave out and she fell 

while working on her right knee and her right elbow on July 16, 2013. He advised that appellant 

was totally disabled from work from October 29, 2014. The Board finds that these reports from

Dr. May conclude that appellant was totally disabled during the claimed period due to the July 16, 

2013 employment injury. However, they fail to provide sufficient rationale explaining the causal 

relationship between the claimed disability and the accepted injury.

17

 The Board has found that 

medical opinions unsupported by rationale regarding the period of disability claimed are of little 

probative value.18 Thus, the reports of Dr. May are insufficient to establish the claim. 

The record also contains a July 11, 2013 treatment note from a physician assistant. Certain 

healthcare providers such as physician assistants, nurse practitioners, physical therapists, and 

 

15 Merle J. Marceau, 53 ECAB 197 (2001).

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

17 See S.E., Docket No. 08-2214 (issued May 6, 2009); T.M., Docket No. 08-0975 (issued February 6, 2009).

18 M.P., Docket No. 14-1289 (issued September 26, 2014); F.T., Docket No. 09-0919 (issued December 7, 

2009); Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).
9

social workers are not considered “physician[s]” as defined under FECA.19 Consequently, the 

physician assistant’s July 11, 2013 treatment notes are of no probative value and are insufficient 

to meet appellant’s burden of proof.

Other records, including August 12, 2013 treatment notes from Dr. Wilcox, a March 24, 

2014 report from Dr. Mathis, and May 12, 2014 report from Dr. Gittins did not specifically address 

the dates of disability claimed or provide medical rationale explaining whether and why she was 

disabled from October 10, 2013 and continuing. As such, those reports are also insufficient to 

establish the claim.

As noted, appellant must submit reasoned medical evidence directly addressing the specific 

dates of disability for work for which she claims compensation.20 She did not provide medical 

evidence containing a rationalized opinion supporting that she was totally disabled from work from 

October 29, 2013 and continuing due to her accepted conditions. Thus, the Board finds that she 

has not met 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 and 20 C.F.R. 

§§ 10.605 through 10.607.

CONCLUSION

The Board finds that appellant has not established total disability commencing October 29, 

2013 causally related to her July 16, 2013 employment injury.

 

19 See 5 U.S.C. § 8101(2). See also Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board has held that 

a medical opinion, in general, can only be given by a qualified physician).

20 See K.A., Docket No. 16-0592 (issued October 26, 2016).
10

ORDER

IT IS HEREBY ORDERED THAT the January 10, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: August 15, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board