United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

Y.H., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS,

KENNERSVILLE HEALTH CARE CENTER, 

Kennersville, NC, Employer

__________________________________________

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Docket No. 19-0835

Issued: October 4, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On March 12, 2019 appellant, through counsel, filed a timely appeal from a January 23, 

2019 merit decision and a February 22, 2019 nonmerit 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

ISSUES

The issues are: (1) whether appellant has met her burden of proof to establish a right knee 

condition causally related to the accepted April 26, 2017 employment incident; and (2) whether 

OWCP properly denied appellant’s request for reconsideration of the merits of her claim pursuant 

to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On June 20, 2017 appellant, then a 49-year-old medical technician, filed a recurrence of 

disability claim (Form CA-2a) alleging wage loss under OWCP File No. xxxxxx684.

3

 She alleged 

that she suffered a recurrence on April 26, 2017 when she overextended her right knee when 

transporting a gurney from room to room and having to lift heavy materials. Appellant stopped 

work on April 27, 2017 and returned to regular duty on April 28, 2017. The employing 

establishment indicated that it appeared that she was describing a new incident and injury, rather 

than a recurrence of disability. It also noted that appellant had a service-connected medical 

condition for the same knee. As a new employment incident was implicated, OWCP converted 

the recurrence claim to a new traumatic injury claim (Form CA-1) and assigned OWCP File 

No. xxxxxx144. 

OWCP received physical therapy notes dated from July 7 to August 1, 2017. 

In a report dated August 30, 2017, Dr. William T. Mason, a Board-certified internist, noted 

that appellant’s history of injury included a right knee injury from a fall that occurred 20 years 

prior when she was in the military service. He opined that she had early right knee arthritis and 

chondromalacia patella. In a November 30, 2017 report, Dr. Mason assessed arthritic changes in 

the lateral aspect of the patella of appellant’s right knee. 

A February 20, 2018 magnetic resonance imaging (MRI) scan of appellant’s right knee 

read by Dr. Jerry Burke, Board-certified in occupational medicine, demonstrated a horizontal tear 

of the lateral meniscus and moderate osteoarthritis of the patellofemoral joint.

In a development letter dated April 17, 2018, OWCP advised that, while appellant had filed 

a notice of recurrence of disability (Form CA-2a) under OWCP File No. xxxxxx684, it had been 

determined that she sustained a new traumatic event on April 26, 2017. Therefore, appellant’s

claim was converted to a claim for new traumatic injury, assigned OWCP File No. xxxxxx144. 

OWCP also informed her that additional factual and medical evidence was needed to establish her 

claim. It advised appellant of the type of additional evidence needed and afforded her 30 days to 

submit the necessary evidence.

In an April 26, 2018 treatment note, Dr. Mason opined that appellant’s current condition 

was related to an injury she sustained when she fell at the employing establishment in 2016. He 

reported that she had right knee pain at the medial joint line. Dr. Mason recommended 

 

3 Appellant’s claim in OWCP File No. xxxxxx684 pertained to an April5, 2016 traumatic right knee injury when 

helping an unconscious patient onto the floor while in the performance of duty. The claim was closed administratively 

with minimal time lost from work. 
3

arthroscopic surgery of the right knee for a probable meniscal tear to relieve appellant’s pain which 

was caused or aggravated by the employment injury in 2016.

On May 15, 2018 OWCP received handwritten notes from Dr. Mason, which provided a 

history of a fall in 2016 and diagnosed mild right knee arthritis and a meniscus tear.

By decision dated June 26, 2018, OWCP denied appellant’s claim. It found that the 

medical evidence of record did not establish that the diagnosed condition was causally related to 

the accepted April 26, 2017 employment incident. OWCP explained that Dr. Mason attributed 

appellant’s right knee condition to a work injury in 2016, and not 2017.

On July 26, 2018 counsel requested an oral hearing before an OWCP hearing 

representative. At the November 28, 2018 telephonic hearing, appellant testified that she served 

in the U.S. Army from 1988 to 1990 and that during her service she fell and bruised her right knee. 

She further explained that on April 26, 2017 she used an empty gurney to move three 20-pound 

boxes of paper and sustained a right knee injury. 

In a December 27, 2018 report, Dr. Ronald J. Gioffre, a Board-certified orthopedic 

surgeon, noted appellant’s history of injury and treatment, including an injury to the right knee in 

April 2016 and a second injury to her knee in 2017. He indicated that she had absolutely no 

problem with her knee prior to these injuries. Dr. Gioffre also noted that appellant had a right knee 

bruise in 1990, that she underwent a debridement and abrasion chondroplasty of her lateral tibial 

plateau in 2000, and that she underwent right knee arthroscopic surgery on July 17, 2018. He

opined that her current condition was directly related to her employment injury. Dr. Gioffre 

recommended a total knee arthroplasty and opined that the procedure would be directly related to 

her employment injury. He explained that appellant had two separate injuries at the same place of 

employment and otherwise she had not had any problems with her right knee in 28 years.

By decision dated January 23, 2019, OWCP’s hearing representative affirmed the June 28, 

2018 decision. She noted that Dr. Gioffre did not explain how the accepted April 26, 2017 

employment incident caused or contributed to a right knee condition, as he referenced prior knee 

injuries and did not differentiate between those injuries and the effects of the April 26, 2017 

employment incident.

On February 8, 2019 counsel requested reconsideration. He indicated that he was 

submitting the December 27, 2018 report of Dr. Gioffre, which was not previously submitted or 

considered. 

By decision dated February 22, 2019, OWCP denied appellant’s reconsideration request. 

It found that her reconsideration request neither raised substantive legal questions nor included 

new and relevant evidence sufficient to warrant further merit review of her claim.
4

LEGAL PRECEDENT -- ISSUE 1

An employee seeking benefits under FECA4 has the burden of proof to establish the 

essential elements of his or her claim, including the fact that the individual is an employee of the 

United States within the meaning of FECA, that the claim was timely filed within the applicable 

time limitation of FECA,5that an injury was sustained in the performance of duty as alleged, and 

that any disability or medical condition for which compensation is claimed is causally related to 

the employment injury.6 These are the essential elements of each and every compensation claim, 

regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 7

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

performance of duty it must first be determined whether fact of injury has been established.8 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.9 Second, the employee must 

submit sufficient evidence, generally only in the form of medical evidence, to establish that the 

employment incident caused a personal injury.10

To establish causal relationship between the condition, as well as any attendant disability 

claimed and the employment event or incident, the employee must submit rationalized medical 

opinion evidence sufficient to establish such causal relationship.11 The opinion of the physician 

must be based on a complete factual and medical background, must be one of reasonable medical 

certainty, and must be supported by medical rationale explaining the nature of the relationship 

between the diagnosed condition and the specific employment factors identified by the claimant. 12

In any case where a preexisting condition involving the same part of the body is present 

and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation, 

 

4

Id.

5

J.P., Docket No. 19-0129 (issued April26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D. 

Cameron, 41 ECAB 153 (1989).

6

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 

ECAB 312 (1988).

7 R.R., Docket No. 19-0048 (issued April25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014); 

DeloresC. Ellyett, 41 ECAB 992 (1990).

8 R.B., Docket No. 17-2014 (issued February 14, 2019); B.F., Docket No. 09-0060 (issued March 17, 2009);

Bonnie A. Contreras, 57 ECAB 364 (2006).

9

S.F.,Docket No. 18-0296 (issued July 26, 2018); D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

10 A.D., Docket No. 17-1855 (issued February 26, 2018); C.B., Docket No. 08-1583 (issued December 9, 2008); 

D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra note 8.

11 See F.C., Docket No. 19-0594 (issued August13, 2019); K.V., Docket No. 18-0723 (issued November 9, 2018).

12 See F.C., id.; I.J., 59 ECAB 408 (2008).
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the physician must provide a rationalized medical opinion that differentiates between the effects 

of the work-related injury or disease and the preexisting condition.

13

ANALYSIS -- ISSUE 1

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

condition causally related to the accepted April 26, 2017 employment incident.

Upon receipt of appellant’s notice of recurrence of disability (Form CA-2a) in OWCP File 

No. xxxxxx684, OWCP properly converted her claim to a claim for traumatic injury, based upon 

her allegations that she had overextended her right knee on April 26, 2017 while pushing a 

gurney.14

In support of her claim, appellant submitted medical reports from Dr. Mason dated from 

August 30, 2017 to May 15, 2018. In his August 30, 2017 report, Dr. Mason made reference to a 

right knee injury from a fall that occurred 20 years prior when she was in the military service. He

indicated that appellant had early right knee arthritis and chondromalacia patella and a lateral 

meniscus tear of the right knee. In his April 26, 2018 report and handwritten notes received by 

OWCP on May 15, 2018, Dr. Mason indicated that appellant’s right knee condition was caused or 

aggravated by a 2016 employment injury. The Board notes that these reports do not mention the 

accepted employment incident of April 26, 2017. Dr. Mason’s reports are of no probative value 

as they did not provide medical rationale, based on an accurate history of injury, that appellant had 

a diagnosed right knee condition causally related to the accepted April 26, 2017 employment 

incident.

15

In a December 27, 2018 report, Dr. Gioffre referred to an April 2016 injury to appellant’s

right knee, and a second injury to her knee in 2017. While he opined that the right knee condition 

was directly related to an employment incident, he provided no rationale to support a physiological 

basis for his conclusion. The Board has held that a report is of limited probative value regarding 

causal relationship if it does not contain medical rationale explaining how a given medical 

condition/disability was related to employment factors.16 The Board therefore finds that the report 

of Dr. Gioffre is insufficient to establish appellant’s claim.

OWCP received a February 20, 2018 MRI scan of the right knee, which was interpreted by

Dr. Burke. The Board has also held that reports of diagnostic testing lack probative value, as they 

do not provide an opinion on causal relationship between appellant’s employment duties and a 

 

13 See F.C, id.; J.F., Docket No. 19-0456 (issued July 12, 2019); Federal (FECA) Procedure Manual, Part 2 --

Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

14 OWCP’s procedures provide at Federal (FECA) Procedure Manual, Part 2 -- Claims, Development of Claims, 

Chapter 2.800.3(c)(2) (June 2011).

15 See I.B., Docket No. 19-0475 (issued July 19, 2019).

16 See Y.D., Docket No. 16-1896 (issued February10, 2017).
6

diagnosed condition.17 As this report did not contain an opinion on causal relationship, it is 

insufficient to establish the claim.18

OWCP also received physical therapy notes dating from July 7 to August 1, 2017. Certain 

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

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

medical findings and/or opinions of a physical therapist will not suffice for purposes of 

establishing entitlement to FECA benefits.20

As appellant has not submitted rationalized medical evidence to establish that her 

diagnosed right knee condition was causally related to the accepted April 26, 2017 employment 

incident, she has not met her burden of proof to establish entitlement to compensation benefits. 

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.

LEGAL PRECEDENT -- ISSUE 2

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

to review an award for or against compensation. The Secretary of Labor may review an award for 

or against compensation at any time on his own motion or on application.21

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must 

provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted a 

specific point of law; (2) advances a relevant legal argument not previously considered by OWCP; 

or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP.22

A request for reconsideration must also be received by OWCP within one year of the date 

of OWCP’s decision for which review is sought.23 If OWCP chooses to grant reconsideration, it 

 

17 See J.M.,Docket No. 17-1688 (issued December 13, 2018).

18 Id. See L.S.,Docket No. 19-0135 (issued April25, 2019).

19 5 U.S.C. § 8101(2) provides that under FECA the term “physician” includes surgeons, podiatrists, dentists, 

clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as 

defined by the applicable state law.

20 G.S., Docket No. 18-1696 (issued March 26, 2019); see M.M.,Docket No. 17-1641 (issued February 15, 2018); 

K.J., Docket No. 16-1805 (issued February 23, 2018); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay 

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

under FECA).

21 5 U.S.C. § 8128(a); see O.G., Docket No. 18-0359 (issued August 7, 2019); see also D.L., Docket No. 09-1549 

(issued February 23, 2010); W.C., 59 ECAB 372 (2008).

22 20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569 

(issued December 9, 2008).

23 Id. at § 10.607(a).
7

reopens and reviews the case on its merits.24 If the request is timely, but fails to meet at least one 

of the requirements for reconsideration, OWCP will deny the request for reconsideration without 

reopening the case for review on the merits.25

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied appellant’s request for reconsideration of the 

merits of her claim pursuant to 5 U.S.C. § 8128(a).

Counsel requested reconsideration, but he did not show that OWCP erroneously applied or 

interpreted a specific point of law or advance a new and relevant legal argument not previously 

considered by OWCP. Consequently, appellant is not entitled to a review of the merits of her 

claim based on the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).

With the reconsideration request, counsel submitted a copy of the December 27, 2018 

report of Dr. Gioffre. Although he indicated that the report was not previously submitted or 

considered, the Board notes that the December 27, 2018 report of Dr. Gioffre was previously 

considered and addressed by OWCP in its January 23, 2019 decision. As Dr. Gioffre’s 

December 28, 2018 report repeats evidence already in the case record, it is duplicative and 

cumulative and fails to constitute relevant and pertinent new evidence.26 Therefore, this evidence 

is insufficient to require OWCP to reopen appellant’s claim for consideration of the merits.27 As 

appellant did not submit relevant or pertinent new evidence in support of her request for 

reconsideration, she is not entitled to a review of the merits of her claim based on the third abovenoted requirement under section 10.606(b)(3).

The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R. 

§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.28

CONCLUSION

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

condition causally related to the accepted April 26, 2017 employment incident. The Board also 

finds that OWCP properly denied her request for reconsideration of the merits of her claim 

pursuant to 5 U.S.C. § 8128(a).

 

24 Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

25 Id.

26 T.T., Docket No. 18-1682 (issued February22, 2019); P.H., Docket No. 18-1020 (issued November 1, 2018);

L.H., 59 ECAB 253 (2007).

27 Id.; see also L.R., Docket No. 18-1780 (issued June13, 2019). 

28 C.C., Docket No. 18-0316 (issued March 14, 2019); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 

(2006) (when a request for reconsideration does not meet at least one of the three requirements enumerated under 

section 10.606(b), OWCP will deny the application for reconsideration without reopening the case for a review on the 

merits).
8

ORDER

IT IS HEREBY ORDERED THAT the February 22 and January 23, 2019 decisions of 

the Office of Workers’ Compensation Programs are affirmed. 

Issued: October 4, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board