United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.C., Appellant

and

U.S. POSTAL SERVICE, FREEDOM STATION, 

Charlotte, NC, Employer

__________________________________________

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Docket No. 18-0919

Issued: October 18, 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 March 29, 2018 appellant, through counsel, filed a timely appeal from a March 5, 2018 

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 established total disability beginning April 3, 2008 

causally related to her June 30, 2006 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 decision are incorporated herein by reference. The relevant facts are as 

follows.

On August 7, 2007 appellant, then a 36-year-old casual city carrier, filed a traumatic injury 

claim (Form CA-1) alleging that, on June 30, 2006, she stepped in a hole while delivering mail,

injuring her left leg. She stopped work on June 30, 2006 and did not return. OWCP accepted the 

claim for a left knee strain. 

A magnetic resonance imaging (MRI) scan of the left knee, obtained on July 25, 2006, 

revealed a small osteochondral lesion at the trochlear notch of uncertain clinical significance. 

On September 15, 2006 appellant underwent a debridement of an anterior horn tear of the 

left medial meniscus and chondroplasty of the femoral trochlea. 

Appellant, on April 1, 2008, filed a claim for wage-loss compensation (Form CA-7) for the 

period June 30, 2006 to April 2, 2008. She advised that she was unable to work during this period 

as a result of her injury.

In a report dated May 12, 2008, Dr. G. Adam Flowers, a Board-certified orthopedic 

surgeon, discussed appellant’s continued complaints of left knee pain subsequent to a meniscus 

debridement and chondroplasty of the femoral trochlear. He noted that she related that she could 

not perform her usual work duties. On examination, Dr. Flower found no effusion, but tenderness 

to palpation over the medial and lateral patella. He diagnosed left knee patellofemoral pain 

syndrome and plantar fasciitis of the left foot.

By decision dated June 25, 2008, OWCP denied appellant’s claim for wage-loss 

compensation beginning June 30, 2006.4 It found that the medical evidence of record was 

insufficient to support that she was totally disabled due to her accepted employment injury. 

On June 30, 2008 Dr. Flowers advised that he was treating appellant for left knee 

chondromalacia patella, “a painful condition due to the degenerative nature of cartilage damage 

on the back of [her] kneecap.” He noted that she continued to have symptoms and was 

 

3 Docket No. 14-0021 (issued March 11, 2014).

4

In a decision dated August 14, 2007, OWCP denied appellant’s request for continuation of pay as she did not 

report the injury on an approved form within 30 days. On June 23, 2008 an OWCP hearing representative affirmed 

the August 14, 2007 decision. 
3

“significantly limited in her activities of daily living as far as her vocational pursuits due to this 

chronic knee pain.”

Appellant, on July 15, 2008, requested an oral hearing before an OWCP hearing 

representative. 

On August 25, 2008 Dr. James Fleischli, a Board-certified orthopedic surgeon, obtained a 

history of appellant injuring her left knee on June 30, 2006 at work and undergoing arthroscopic 

surgery on September 15, 2006. He noted that she had continued knee pain with occasional 

swelling such that she was not able to work. On examination, Dr. Fleischli found trace effusion 

of the left knee with tenderness to palpation, but no instability. He diagnosed patellofemoral 

chondromalacia after arthroscopic surgery. In a September 3, 2008 form, Dr. Fleischli determined 

that appellant could not work. He checked a box marked “no” in response to the question of 

whether the injury was work related.

Dr. Fleischli, on September 8, 2008, performed a left knee lateral release and plica excision 

with debridement of scar tissue.5

On September 8, 2008 Dr. Flowers related that appellant underwent “a microfracture of 

her trochlear groove in September 2006 for an injury she sustained the same year after a fall and 

twisting of her knee at the [employing establishment].” He advised that treatment had not resolved 

her symptoms. Dr. Flowers reviewed appellant’s work duties and found that she could not perform 

extensive walking due to knee pain. He opined that her restrictions began on June 30, 2006 and 

were “more of a clinical decision based on [appellant’s] inability to either tolerate the pain along 

with performing her duties versus having alleviation of her symptoms of pain.”

A hearing was held on December 28, 2008. On March 17, 2009 OWCP’s hearing 

representative vacated the June 25, 2008 decision and remanded the case for OWCP to refer 

appellant for a second opinion examination to determine her exact diagnoses and the extent of any 

disability from employment due to her work injury. 

On December 3, 2008 Dr. Fleischli indicated that appellant was doing well following left 

knee surgery, but had experienced additional left knee soreness after a December 3, 2008 motor 

vehicle accident. 

OWCP referred appellant to Dr. Harrison A. Latimer, a Board-certified orthopedic 

surgeon, for a second opinion examination. In a report dated April 30, 2009, Dr. Latimer discussed 

her history of tripping and falling on her left leg after stepping in a hole on June 30, 2006 while 

delivering mail. He related:

“[Appellant] has continued knee pain complaints that are unchanged from her initial 

presentation to physicians back in June 2006. She has had microfracture surgery 

of a small area of what appears to have been chronic wear not related to her injury 

of the medial trochlea. This opinion is based on the fact that there was minimal 

edema at the time. It is also based on the fact that follow up MRI [scan] [study] 

 

5 OWCP also received progress reports by Dr. Fleischli dated October 21, 2008 and January 7, 2009. 
4

showed successful treatment of this area with no resolution or change in the 

character of [appellant’s] symptoms which were unrelated to the patellofemoral 

joint by her report. [Appellant] subsequently had a lateral release despite normal 

patellofemoral tracking on MRI scan with again no change in her preoperative 

symptoms. She had no evidence of lateral patellofemoral compression syndrome 

prior to this surgery. There is no relationship between her work injury and any 

indication for this surgery.”

Dr. Latimer determined that appellant’s current condition was not related to the June 30, 

2006 employment injury based on the MRI scan study obtained after the incident that showed 

changes due to chronic activity rather than an acute injury. He opined that she sustained a soft 

tissue strain due to the June 30, 2006 work incident resulting in approximately four weeks of partial 

disability. Dr. Latimer determined that appellant could have resumed her usual work duties by 

August 1, 2006. 

By decision dated July 8, 2009, OWCP denied appellant’s claim for wage-loss 

compensation from June 30, 2006 to April 2, 2008. It found that Dr. Latimer’s opinion constituted 

the weight of the evidence, establishing that she sustained only a strain as a result of her work 

injury and that any resultant disability lasted no more than four weeks, during which time she could 

have performed limited-duty employment. 

Appellant requested an oral hearing. On December 28, 2009 an OWCP hearing 

representative affirmed the July 8, 2009 decision. She found that Dr. Latimer’s report established 

that appellant had no disability from June 30, 2006 to April 2, 2008 as a result of the accepted 

employment injury.

A left knee MRI scan study obtained on February 20, 2010 showed no meniscal tears, a 

ganglion cyst, and a very small Baker’s cyst. Dr. Fleischli reviewed the MRI scan study on 

March 16, 2010 and found that it revealed no problems that would explain appellant’s posterior or 

anterior knee pain. 

A physician assistant, in a July 16, 2010 report, attributed appellant’s surgeries to the 

June 30, 2006 work injury. 

Counsel, on December 23, 2010, requested reconsideration. By decision dated 

February 16, 2011, OWCP denied modification of its finding that she had not established 

employment-related disability from June 30, 2006 to April 2, 2008.

In a report dated February 14, 2012, Dr. Fleischli indicated that appellant experienced left 

knee pain after stepping in a hole on June 30, 2006 such that she could not work. He related, “It 

is my medical opinion to a reasonable degree of medical certainty that her work-related injury was 

the cause of her left knee pain and her inability to work as a mail carrier after the injury.”

Dr. Fleischli advised that appellant had continued pain of uncertain etiology after a September 8, 

2008 lateral release and plica excision. He opined that she could not work full time as a result of 

pain.

On February 17, 2012 appellant requested reconsideration. By decision dated April 5, 

2012, OWCP denied modification of its February 16, 2011 decision. 
5

In a report dated September 27, 2012, Dr. Flowers related that he had treated appellant for 

injuries sustained in September 2006 when she stepped in a hole.6 He deferred to Dr. Fleischli 

regarding her current condition, noting that he had last evaluated her in 2008. Dr. Flowers 

indicated that in 2008 he had opined that appellant should not perform extensive walking due to 

her knee condition. Regarding whether there was a period during which she could work as a letter 

carrier, he deferred to Dr. Fleischli’s opinion. Dr. Flowers also advised that he had addressed the 

issue of whether she could perform her usual employment from June 2006 to April 2008 in a prior 

response.

On April 4, 2013 appellant, through counsel, again requested reconsideration. By decision 

dated April 8, 2013, OWCP denied her request for reconsideration as the evidence submitted was 

cumulative and insufficient to warrant reopening her case for further merit review under section 

8128. 

Appellant appealed to the Board. By decision dated March 11, 2014, the Board affirmed 

the April 8, 2013 nonmerit decision, finding that appellant had not raised an argument or submitted 

evidence sufficient to reopen her case under section 8128(a).

7

On May 19, 2016 counsel requested that OWCP expand acceptance of her claim to include 

a left knee intrasubstance ganglion cyst at the anterior cruciate ligament, a tiny Baker’s cyst, and 

chondromalacia. 

Appellant, on March 28, 2017, filed a notice of recurrence (Form CA-2a) claiming 

disability and the need for medical treatment commencing on August 4, 2006, causally related to 

her June 30, 2006 employment injury. She related that she did not resume work following her 

injury. The employing establishment advised that it separated her from employment on August 4, 

2006 at the expiration of her appointment. 

OWCP, in an April 7, 2017 letter, requested that appellant submit reasoned medical 

evidence from her attending physician supporting that her condition worsened such that she was 

unable to work beginning August 4, 2006 due to her employment injury. 

By decision dated June 23, 2017, OWCP found that appellant had not established that she 

sustained a recurrence of disability commencing April 3, 2008 due to her accepted work injury. It 

advised that it had previously adjudicated her claim for wage-loss compensation from June 30,

2006 to April 2, 2008 and that she should follow her appeal rights from its prior decisionsregarding 

that period. OWCP noted that appellant had not returned to work following her injury.

Counsel, on July 3, 2017, requested a telephone hearing before an OWCP hearing 

representative. During the December 18, 2017 telephone hearing, she advised that she was 

requesting wage-loss compensation for disability beginning June 30, 2006, the date of her injury. 

Appellant contended that the employing establishment terminated her on August 4, 2006 as a result 

 

6 Dr. Flowers indicated that appellant’s injury occurred in September 2006 rather than June 2006, but this appears 

to be a typographical error.

7 See supra note 3.
6

of her work injury. Counsel contended that OWCP should have developed the issue of claim 

expansion to include left knee chondromalacia, a tiny Baker’s cyst, and a ganglion cyst at the 

anterior cruciate ligament.

By decision dated March 5, 2018, OWCP’s hearing representative affirmed the June 23, 

2017 decision.8 She found that appellant had not submitted reasoned medical evidence supporting 

that she was disabled from work commencing April 3, 2008, due to her accepted work injury.

On appeal counsel contends that OWCP failed to consider his request to expand acceptance 

of the claim prior to adjudicating the issue of disability for the period claimed.

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 he or she was disabled from work 

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

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

proven 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 

employment, but who nonetheless has the capacity to earn the wages that he or 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 his or her employment, he or 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 

medical evidence directly addressing the specific dates of disability for which compensation is 

 

8 The hearing representative indicated that the issue was whether appellant’s was disabled from work commencing 

August 4, 2006 due to her work injury. However, as noted by OWCP, it had previously adjudicated the issue of 

disability for the period June 30, 2006 to April 2, 2008.

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).

15 Merle J. Marceau, 53 ECAB 197 (2001).
7

claimed. To do so, would essentially allow an employee to self-certify his or her disability and 

entitlement to compensation.16

ANALYSIS

OWCP accepted that appellant sustained left knee strain due to a June 30, 2006 

employment injury. Appellant stopped work on June 30, 2006 and did not return. On March 28, 

2017 she filed a notice of recurrence of disability alleging disability and the need for medical 

treatment commencing beginning August 4, 2006, the date the employing establishment separated 

her from employment. Appellant did not, however, return to work following her injury and thus 

the issue is whether she has established disability from employment rather than a recurrence of 

disability, which is defined as an inability to work after an employee has returned to work.17 

Additionally, OWCP previously adjudicated the question of whether appellant experienced 

disability from employment from June 30, 2006 to April 2, 2008. The current issue is thus whether 

she has established disability from employment commencing April 3, 2008 causally related to her 

accepted June 30, 2006 work injury.

The Board finds that appellant has not established that she was disabled from employment 

commencing April 3, 2008 due to her accepted June 30, 2006 left knee strain. The issue of 

disability from work can only be resolved by competent medical evidence.18 Whether a claimant’s 

disability is related to an accepted condition is a medical question which must be established by a 

physician who, on the basis of a complete and accurate factual and medical history, concludes that 

the disability is causally related to employment factors and supports that conclusion with sound 

medical reasoning.19 The record does not contain a medical opinion of sufficient rationale to 

establish that appellant was disabled from work commencing April 3, 2008 due to the accepted 

left knee strain.

On May 12, 2008 Dr. Flowers related that appellant had continued left knee pain after a 

left medial meniscus debridement and chrondroplasty of the femoral trochlea. He diagnosed left 

knee patellofemoral syndrome and left plantar fasciitis. Dr. Flowers indicated that appellant 

advised that she was unable to perform her regular employment. While he noted that she related 

that she was unable to work, he did not provide an independent opinion regarding her disability 

from employment. A physician’s report is of little probative value when it is based on a claimant’s 

belief rather than the doctor’s independent judgment.20 

 

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

17 A recurrence of disability is defined as the inability to work after an employee has returned to work, caused by a 

spontaneous change in a medical condition which had resulted from a previous injury or illness without an intervening 

injury or new exposure to the work environment that caused the illness. 20 C.F.R. § 10.5(x); S.F., 59 ECAB 

525 (2008).

18 R.C., 59 ECAB 546 (2008).

19 See Sandra D. Pruitt, 57 ECAB 126 (2005).

20 Earl David Seale, 49 ECAB 152 (1997).
8

Dr. Flowers, on June 30, 2008, diagnosed chondromalacia patella due to degeneration and 

opined that appellant was limited in her vocation and daily activities by her resulting chronic knee 

pain. OWCP, however, accepted only left knee strain as causally related to the accepted work 

injury. Appellant has the burden of proof to establish that a condition not accepted by OWCP is 

due to her employment injury through the submission of rationalized medical evidence.21 

Dr. Flowers did not address the cause of the chondromalacia patella. Medical evidence that does 

not offer any opinion regarding the cause of an employee’s condition is of diminished probative 

value on the issue of causal relationship.22

In an August 25, 2008 report, Dr. Fleischli discussed appellant’s history of a left knee 

injury on June 30, 2006 and arthroscopic surgery on September 15, 2006. He diagnosed 

patellofemoral chondromalacia after arthroscopic surgery. In a September 3, 2008 form,

Dr. Fleischli found that appellant could not work and indicated by checking a box marked “no”

that the injury was not related to employment. Consequently, his opinion does not support her 

claim.

On September 8, 2008 Dr. Flowers reviewed appellant’s history of knee surgery in 

September 2006 following a work injury earlier that year. He opined that she was restricted from 

work beginning June 30, 2006 due to her pain performing her duties. Subjective complaints of 

pain, however, are insufficient to establish disability from employment.23

Appellant submitted a July 16, 2010 report from a physician assistant. However, physician 

assistants are not considered physicians as defined under FECA. Their reports therefore lack 

probative value and are insufficient to establish the claim.24

Dr. Fleischli, on February 14, 2012, noted that appellant had left knee pain after stepping 

in a hole on June 30, 2006. On examination, he found some irritation upon patellofemoral testing. 

Dr. Fleischli attributed the cause of appellant’s left knee pain and disability to her accepted 

employment injury, noting that she could not perform full-time employment due to pain. While 

he found that she had irritation on patellofemoral testing, he did not otherwise explain the basis 

for his disability determination other than to note that she experienced pain. As discussed, 

subjective pain complaints do not support disability from employment.25

In a September 27, 2012 report, Dr. Flowers deferred to Dr. Fleischli regarding appellant’s 

current condition and disability, noting that he last evaluated her in 2008. He related that she could 

 

21 See JaJa K. Asaramo, 55 ECAB 200, 204 (2004).

22 See S.E., Docket No. 08-2214 (issued May 6, 2009).

23 See A.H., Docket No. 16-1824 (issued June 2, 2017).

24 Lay individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical 

opinion under FECA. See V.J., Docket No. 17-0358 (issued July 24, 2018); see also David P. Sawchuk, 57 ECAB 

316, 320 n.11 (2006); 5 U.S.C. § 8101(2).

25 See A.H., supra note 23.
9

not perform extensive walking due to her knee condition. Dr. Flowers, however, did not provide 

a specific diagnosis or address causation, and thus his opinion is of diminished probative value.26

Moreover, in a report dated April 30, 2009, Dr. Latimer, an OWCP referral physician, 

considered appellant’s history of a June 30, 2006 work injury. He opined that she sustained a soft 

tissue strain that had resolved within four weeks. Dr. Latimer further determined that appellant’s 

September 2006 left knee surgery was unrelated to her employment injury, providing as a rationale 

that objective evidence revealed changes due to chronic wear without edema. The Board finds 

that the report of Dr. Latimer is based on a complete and accurate factual and medical history and 

provides a comprehensive physical examination of appellant and is therefore afforded the weight 

of the medical evidence. 

The issue of whether a claimant’s disability from work is related to an accepted condition 

must be established by a physician who, on the basis of a complete and accurate factual and 

medical history, concludes that the disability is causally related to the employment injury and 

supports that conclusion with sound medical reasoning.27 Appellant has not submitted such 

evidence and thus has not met her burden of proof.28

On appeal counsel asserts that OWCP should have adjudicated his request for claim 

expansion. The Board’s jurisdiction, however, is limited to reviewing final decisions of OWCP.29 

OWCP has not issued a final decision on this issue and thus it is not before the Board at this time.

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 established total disability commencing April 3, 

2008 causally related to her June 30, 2006 employment injury.

 

26 See R.S., Docket No. 16-1303 (issued December 2, 2016).

27 See G.B., Docket No. 16-1033 (issued December 5, 2016).

28 See K.A., Docket No. 17-1718 (issued February 12, 2018).

29 20 C.F.R. § 501.2(c).
10

ORDER

IT IS HEREBY ORDERED THAT the March 5, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: October 18, 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