United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Las Vegas, NV, Employer

__________________________________________

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Docket No. 18-0280

Issued: June 12, 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

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On November 27, 2017 appellant, through counsel, filed a timely appeal from an 

August 30, 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 a right knee 

condition causally related to the accepted January 9, 2016 employment incident. 

On appeal counsel contends that OWCP’s decision lacks rationale and is contrary to fact 

and law as it failed to properly consider the evidence. He further maintains that it hires physicians

who routinely see patients well after an injury and relies on their reports. Counsel asserts that 

“contemporaneous” is not part of the statute. 

FACTUAL HISTORY

On February 2, 2016 appellant, then a 60-year-old rural mail carrier, filed a traumatic injury 

claim (Form CA-1) alleging that, on January 9, 2016, she injured her right knee when she stepped 

out of a long-life vehicle (LLV) while in the performance of duty. She stopped work on 

January 11, 2016 and returned to work on January 18, 2016. 

In a February 2, 2016 supplemental statement, appellant indicated that she experienced 

right knee pain caused by added volume and heavy packages during the holiday season. She 

claimed that she requested January 9, 2016 to be excused from work to rest her knee, but instead 

worked due to the employing establishment being overburdened. On that date appellant stepped 

out of her truck and “heard a crunch in her knee.” She experienced excruciating pain radiating 

throughout the knee area. Appellant hobbled in pain during the rest of her route. On January 13, 

2016 she was evaluated by a chiropractor who advised her to stay off her knee for the rest of the 

week. When appellant later returned to work, her knee had improved, but was still painful. After 

three days, her pain was as bad as her original pain due to climbing in and out of her truck. 

Appellant worked on intermittent dates from January 19 to 29, 2016 and sought additional 

treatment from her chiropractor during this period. 

An undated and unsigned duty status report (Form CA-17) noted a history that on 

January 9, 2016 appellant felt a crack in her right knee when she stepped out of her LLV. The 

report also noted her usual work requirements.

In a medical report dated February 2, 2016 and physician work activity status report dated 

February 4, 2016, Taposhi Swar, a family nurse practitioner, indicated that appellant presented 

with a right knee injury sustained on December 15, 2015. She reported having pain since the date 

of injury when she stepped down from her truck at work. Ms. Swar provided a review of systems 

and findings on physical and x-ray examination. She assessed right knee strain. Ms. Swar advised 

that appellant could return to full-time modified work with restrictions as of the date of her

examination.

A February 2, 2016 report from the employing establishment’s health unit noted a history 

that on January 9, 2016 appellant injured her right knee when she stepped out of her LLV. The 

report also noted her complaint of right knee pain. 

By letter dated February 11, 2016, the employing establishment controverted the claim. It 

contended that appellant failed to submit evidence sufficient to establish that she sustained an 
3

injury in the performance of duty on January 9, 2016. The employing establishment noted that she 

was on her scheduled day off from work on the date of the alleged injury. OWCP subsequently 

received a February 17, 2016 memorandum which indicated that appellant worked on 

January 9, 2016.

OWCP also received a Form CA-17 report dated February 10, 2016 from Dr. Thea M. 

Klingberg, a physician specializing in occupational medicine. Dr. Klingberg noted a history that 

when appellant stepped out of her LLV on January 9, 2016 she heard a crack in her knee. She 

reported examination findings and diagnosed right knee bursitis due to the injury. Dr. Klingberg 

noted that appellant could not perform her work duties, but advised that she could return to work 

with restrictions as of the date of her examination. In a February 10, 2016 physical work activity 

status report, she diagnosed strain of unspecified muscle(s) and tendon(s) and again released 

appellant to return to work with restrictions as of that date. Dr. Klingberg, in narrative reports 

dated February 10, 17, and 29, 2016 and physician work activity status reports dated February 17

and 22 and March 14 and 17, 2016, examined appellant and restated her prior assessment of right 

knee strain, bursitis, strain of unspecified muscle(s) and tendon(s), and pain in unspecified knee. 

She also diagnosed internal derangement of the right knee. Dr. Klingberg advised that appellant 

could return to full-time modified work with restrictions on each date of her examination. 

In a February 16, 2016 letter, appellant refuted the employing establishment’s contention 

that she did not sustain an injury in the performance of duty on January 9, 2016. She expressed 

dissatisfaction with Ms. Swar’s report.

In a report dated March 16, 2016, Janette W. Powell, appellant’s physical therapist,

addressed the treatment received on that date for her diagnosed strain of unspecified muscle(s) and 

tendon(s). She indicated that appellant could return to modified work with restrictions. 

OWCP, by development letter dated March 23, 2016, noted that appellant’s claim initially 

appeared to be a minor injury that resulted in minimal lost time from work. It had approved a 

limited amount of medical expenses without considering the merits of her claim. OWCP reopened 

appellant’s claim because her medical bills had exceeded $1,500.00. It requested that she provide 

additional factual and medical evidence in support of her traumatic injury claim and afforded her 

30 days to respond. 

OWCP received a copy of a March 19, 2016 job offer from the employing establishment 

for a full-time, light-duty position as a modified regular rural carrier which appellant accepted on 

that date. 

In a March 14, 2016 Form CA-17 duty status report, Dr. Curtis W. Poindexter, a 

physiatrist, noted a history that, on January 9, 2016, appellant heard a crack in her knee when she 

stepped out of her LLV. He provided examination findings and diagnosed right knee strain due to 

the injury. Dr. Poindexter advised appellant that she could resume her full-time, regular work 

duties with restrictions as of the date of his examination.

Reports from Ms. Powell addressed appellant’s right knee treatment from March 16 to 28, 

2016 and indicated that she could return to modified-duty work with restrictions. 
4

In a right knee magnetic resonance imaging (MRI) scan report dated March 15, 2016,

Dr. Alison M. Nguyen, a Board-certified radiologist, provided an impression of medial meniscal 

posterior root ligament deep radial tear, lateral meniscal body superior surface tear, mild chronic 

anterior cruciate ligament sprain, mild knee osteoarthrosis with chondral injury of the medial 

femoral condyle and patella apex, and small 5 x 1-millimeter loose body along the anteromedial 

aspect of the medial femoral condyle located 2 centimeters above the knee joint line.

On April 3, 2016 appellant responded to OWCP’s March 23, 2016 development 

questionnaire. She related that the wear and tear on her knees was occupational as her workload

had quadrupled in December and January. Appellant, however, indicated that she sustained a 

traumatic injury on January 9, 2016 because of the severity of the injury, a torn meniscus. She 

described her symptoms immediately following the January 9, 2016 incident. Appellant related 

that she had not sustained any other injury or symptoms prior to the claimed injury. In an April 3, 

2016 statement, she contended that Ms. Swar’s report had no probative value as she was not a 

physician, the exercises performed by a physical therapist who she had referred her to worsened 

her knee condition, and she provided an incorrect date and mechanism of injury. Appellant also 

contended that Dr. Klingberg incorrectly noted that she fell out of a bathtub. She asserted that she 

slipped while trying to get up, and bumped her knee on the side of the tub.

In an April 18, 2016 Form CA-17 report, Dr. Poindexter reiterated appellant’s history of

injury and his diagnosis of right knee strain. He noted that she had been advised to resume her 

regular work duties. In a physician work activity status report also dated April 18, 2016,

Dr. Poindexter diagnosed unspecified internal derangement of the right knee, pain in unspecified 

knee, and bursopathy, unspecified. He again advised that appellant could return to regular fullduty work with no restrictions as of that date.

By decision dated April 27, 2016, OWCP denied appellant’s traumatic injury claim, 

finding that the medical evidence of record failed to establish that her diagnosed conditions were 

causally related to the accepted January 9, 2016 employment incident. It found that her physician 

did not provide rationale explaining how or why the diagnosed conditions were causally related to 

the accepted work incident. 

Michael Foster, a physical therapist, noted in a February 4, 2016 report, a date of injury as 

January 8, 2016. He related that appellant felt a sharp pain and crunch in the medial aspect of her 

right knee when she stepped down from a mail truck. Mr. Foster discussed examination findings 

and diagnosed right knee strain. 

In narrative reports dated March 14 and 28, 2016, Dr. Poindexter restated a history of the 

January 9, 2016 incident and discussed examination findings. He diagnosed history of right knee 

sprain/strain due to activities at work on January 9, 2016, probable right knee degenerative joint 

disease, and rule out possible medial meniscus injury or tear. Dr. Poindexter related that appellant 

would remain temporarily on light-duty work with restrictions. 

On May 25, 2016 appellant requested a review of the written record by an OWCP hearing 

representative. In undated statements, she again contended that she sustained a work-related right 

knee injury on January 9, 2016. Appellant described her rural carrier work duties. 
5

Appellant submitted a February 29, 2016 report in which Dr. Klingberg listed findings on 

examination of appellant’s right knee. Dr. Klingberg noted that appellant had not been working.

In reports dated March 14 and 28, 2016, Dr. Poindexter noted examination findings and 

provided an impression of history of right knee sprain/strain due to activities at work on January 9, 

2016, probable right knee degenerative joint disease, and rule out possible medial meniscus injury 

or tear. In the March 14, 2016 report, he recommended that appellant continue to perform

temporary light-duty work with restrictions. On March 28, 2016 Dr. Poindexter released her to

return to full-duty work. 

By decision dated November 9, 2016, an OWCP hearing representative affirmed the 

April 27, 2016 decision.

A notice of personnel action (PS Form 50) dated October 26, 2016 indicated that 

appellant’s last day in pay status was November 23, 2016. 

In a March 21, 2017 statement, appellant reiterated her dissatisfaction with Ms. Swar’s 

report. 

In a Form CA-17 duty status report and physician work activity status report dated 

March 28, 2017, Dr. Poindexter restated appellant’s diagnoses of sprain of unspecified site of 

unspecified knee, initial encounter, pain in unspecified knee, strain of unspecified muscle and 

tendon at right lower leg. He released her to return to regular-duty work on that date. 

A February 29, 2016 Form CA-17 report contained an illegible signature. The report 

provided a history of the January 9, 2016 employment incident, examination findings, and a 

diagnosis of right knee strain without derangement due to injury. 

On June 9, 2017 appellant, through counsel, requested reconsideration of the November 9, 

2016 decision and submitted additional medical evidence from Dr. Poindexter. In an April 18, 

2017 report, Dr. Poindexter reiterated a history of the accepted January 9, 2016 employment 

incident. He referenced his prior treatment notes, including an April 18, 2016 note in which he 

determined that appellant had reached maximum medical improvement (MMI) and released her to 

return to full-duty work with a knee brace if needed and continuation of regular exercise. 

Dr. Poindexter also referenced the findings set forth in the March 15, 2016 right knee MRI scan 

report. He noted his confusion as to why appellant’s claim had been denied based on her initial 

treatment by primary care physicians and subsequent treatment by him, a specialist. 

Dr. Poindexter related that there was evidence of preexisting changes in her knee as noted in the 

MRI scan findings, but maintained that these findings would not negate acceptance of a claim for 

a knee strain. He concluded by strongly requesting acceptance of appellant’s claim for right knee 

strain.

By decision dated August 30, 2017, OWCP denied modification of its November 9, 2016 

decision. It found that Dr. Poindexter’s April 18, 2017 report provided neither an opinion 

expressed in an affirmative manner nor medical rationale based on a complete and accurate factual 

history. OWCP also found that none of the contemporaneous medical evidence contained a 

medical opinion establishing a causal relationship between the accepted January 9, 2016 work 

incident and appellant’s diagnosed right knee conditions, including right knee sprain.
6

LEGAL PRECEDENT

An employee seeking benefits under FECA3 has the burden of proof to establish the 

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

evidence4including that he or she sustained an injury in the performance of duty and that any 

specific condition or disability from work for which he or she claims compensation is causally 

related to that employment injury.5

To determine whether a federal employee has sustained a traumatic injury in the 

performance of duty, it first must be determined whether fact of injury has been established.6 There 

are two components involved in establishing fact of injury. First, the employee must submit 

sufficient evidence to establish that he or she actually experienced the employment incident at the 

time, place, and in the manner alleged.7 

The second component of fact of injury is whether the employment incident caused a 

personal injury and generally can be established only by medical evidence.8 The evidence required 

to establish causal relationship is rationalized medical opinion evidence, based upon complete 

factual and medical background, showing a causal relationship between the claimed condition and 

the identified incident(s).

9

 The belief of the claimant that a condition was caused or aggravated 

by the employment incident, however sincerely held, is insufficient to establish causal 

relationship.10

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish a right knee 

condition caused or aggravated by the accepted January 9, 2016 employment incident. 

Appellant submitted a series of reports from Dr. Poindexter. In his April 18, 2017 report,

Dr. Poindexter found that appellant’s right knee strain was caused by the January 9, 2016 

employment incident and that her claim should be accepted for this condition. Dr. Poindexter also 

noted that while the MRI scan results showed preexisting changes in the knee, these findings did 

not preclude acceptance of appellant’s claim for right knee strain. While in general terms,

Dr. Poindexter supported a finding that appellant’s right knee strain was caused by the accepted 

 

3 Supra note 2.

4

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

5 G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6 S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

7 Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

8

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q) 

(traumatic injury and occupational disease defined, respectively).

9 Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

10 Kathryn Haggerty, 45 ECAB 383, 389 (1994).
7

employment incident, his opinion was insufficiently rationalized. He did not explain how the 

January 9, 2016 work incident caused or aggravated appellant’s diagnosed right knee condition. 

Likewise, when he saw appellant on March 14 and April 18, 2016 Dr. Poindexter failed to explain 

how appellant’s diagnosed right knee strain and work restrictions were causally related to the 

accepted work incident.11 The Board has found that medical evidence is of limited probative value 

if it contains a conclusion regarding causal relationship, but does not offer any rationalized medical 

explanation on the issue of causal relationship.12 The Board notes that Dr. Poindexter failed to 

provide a supported medical opinion. Dr. Poindexter’s remaining reports addressed appellant’s 

right knee conditions and work capacity, but failed to offer a specific opinion as to whether her

conditions and work restrictions were caused or aggravated by the accepted work incident.13 For 

the reasons stated, the Board finds that Dr. Poindexter’s reports are insufficient to establish 

appellant’s burden of proof.

Similarly, Dr. Klingberg’s reports are insufficient to establish appellant’s burden of proof.

In her Form CA-17 reports dated February 10, 2016, she described the January 9, 2016 

employment incident, diagnosed right knee bursitis due to the accepted work incident, and found 

that appellant could return to work with restrictions. The Board notes that these reports are of 

limited probative value with regard to establishing causal relationship because Dr. Klingberg did 

not provide any medical rationale in support of her opinion. The Board has held that a report is of 

limited probative value regarding causal relationship if it does not contain medical rationale 

explaining how an employment activity could have caused or aggravated a diagnosed medical 

condition.14 Dr. Klingberg’s other reports addressed appellant’s right knee conditions and work 

capacity, but failed to provide a specific opinion as to whether appellant’s conditions and work 

restrictions were caused or aggravated by the accepted work incident.

15

 For the reasons stated, the 

Board finds that Dr. Klingberg’s reports are insufficient to establish appellant’s burden of proof.

Dr. Nguyen’s March 15, 2016 MRI scan report, which addressed appellant’s right knee 

conditions, is of limited probative value as she simply performed a diagnostic test and did not 

address history of injury16 or offer a specific opinion as to whether the accepted employment 

incident caused or aggravated appellant’s conditions.

17

 

11 Id.

12 J.F., Docket No. 09-1061 (issued November 17, 2009); A.D., 58 ECAB 149 (2006).

13 C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., id.; A.D., id. (medical evidence which does not offer any 

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

relationship).

14 See Y.D., Docket No. 16-1896 (issued February 10, 2017).

15 See cases cited supra note 12.

16 Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history have little probative 

value).

17 See cases cited supra note 12.
8

The employing establishment health unit report dated February 2, 2016 described the

January 9, 2016 employment incident and diagnosed right knee pain. The Board notes that this 

evidence failed to provide a firm medical diagnosis as it only diagnosed right knee pain. The 

Board has consistently held that pain is a symptom, rather than a compensable medical diagnosis.18 

Thus, this report is insufficient to establish causal relationship.

The reports from Ms. Swar, a nurse practitioner, and Ms. Powell and Mr. Foster, physical 

therapists, have no probative medical value. Neither nurse practitioners, nor a physical therapists, 

are considered physicians as defined under FECA and, therefore, their opinions are of no probative 

medical value.19

An undated and unsigned Form CA-17 duty status report noted a history of the accepted 

January 9, 2016 employment incident, and a February 29, 2016 Form CA-17 report from a 

physician with an illegible signature diagnosed right knee strain without derangement due the 

accepted work incident. The Board has held that unsigned reports and reports that bear illegible 

signatures cannot be considered probative medical evidence because they lack proper 

identification.

20

 Thus, these reports are of no probative value.

The Board finds that appellant has failed to submit rationalized, probative medical evidence 

sufficient to establish a right knee condition causally related to her employment on 

January 9, 2016. Appellant therefore did not meet her burden of proof.

On appeal counsel contends that “OWCP’s decision lacks rationale and does not properly 

consider the evidence. OWCP hired doctors who routinely see patients well after an injury. Their 

report are relied upon. ‘Contemporaneous’ is not part of the statute. Thus, is contrary to law or 

fact.”

Contrary to counsel’s vacuous contentions, OWCP considered the medical evidence 

relevant to causal relationship and clearly explained the reasons why it found the medical evidence 

submitted by appellant insufficient to establish that she sustained a right knee condition causally 

related to the accepted January 9, 2016 employment incident. 

Counsel argued that OWCP hires physicians who routinely see patients well after an injury 

and relies on their reports. The Board notes that in this case, OWCP did not refer appellant to any 

physician for a second opinion or an impartial medical examination. As such, this argument is 

totally irrelevant and completely without merit.

 

18 C.F., Docket No. 08-1102 (issued October 10, 2008).

19 5 U.S.C. § 8101(2) provides that a physician includes surgeons, podiatrists, dentists, clinical psychologists, 

optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law. 

See G.A., Docket No. 09-2153 (issued June 10, 2010) (nurse practitioner); Jennifer L. Sharp, 48 ECAB 209 (1996) 

(physical therapist); Charley V.B. Harley, 2 ECAB 208, 211 (1949) (a medical issue such as causal relationship can 

only be resolved through the submission of probative medical evidence from a physician).

20 See R.M., 59 ECAB 690 (2008); D.D., 57 ECAB 734 (2006); Richard J. Charot, 43 ECAB 357 (1991).
9

Counsel also contends that the term “contemporaneous” is not a part of the statute. The 

Board is unable to decipher such a claim as the term has no bearing on any aspect of the case at 

bar.

Lastly counsel contends that the decision below is contrary to law or fact. Such broad 

claim without proof fails on the same grounds as outlined above.

Thus, the Board finds that counsel’s contentions are wholly unsubstantiated. 

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 not met her burden of proof to establish a right knee 

condition causally related to the accepted January 9, 2016 employment incident. 

ORDER

IT IS HEREBY ORDERED THAT the August 30, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: June 12, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board