United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.S., Appellant

and

SOCIAL SECURITY ADMINISTRATION, 

Richmond, CA, Employer

__________________________________________

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Docket No. 18-0264

Issued: January 28, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 20, 2017 appellant filed a timely appeal from a June 28, 2017 merit decision

and an October 30, 2017 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). Pursuant to the Federal Employees’ Compensation Act1(FECA) and 20 C.F.R. 

§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.

ISSUES

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

disability during the period April 30 through November 8, 2013, causally related to her accepted 

March 14, 2013 employment injury; and (2) whether OWCP properly denied appellant’s request 

for an oral hearing before an OWCP hearing representative as untimely filed under 

5 U.S.C. § 8124(b). 

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On March 15, 2013 appellant, then a 41-year-old secretary, filed a traumatic injury claim 

(Form CA-1) alleging that on March 14, 2013 she bumped her knees on a drawer while in the 

performance of duty. On April 11, 2013 OWCP accepted appellant’s claim for bilateral knee 

contusions.

In an April 17, 2013 report, Dr. Warren J. Strudwick, Jr., an orthopedic surgeon, found that 

appellant had probable post-traumatic chondromalacia of the left knee and a possible medial 

meniscal tear. He indicated that she was temporarily totally disabled. In an April 17, 2013 return 

to work certificate, Dr. Strudwick advised that appellant was under his care and could return to 

work on June 1, 2013. He diagnosed contusion, chondromalacia right knee and possible meniscal 

tear.

In a May 6, 2013 report, Dr. Strudwick found that appellant had continued bilateral knee

pain and advised that a magnetic resonance imaging (MRI) scan of appellant’s knees revealed 

grade 3 lateral facet chondromalacia. He completed a May 6, 2013 duty status report (Form 

CA-17), and related that she was restricted to 10 pounds maximum lifting, and two hours

maximum of walking and standing. 

In a June 3, 2013 report, Dr. Strudwick advised that appellant had continued knee pain 

exacerbated by work. He diagnosed left knee chondromalacia and a medial meniscus tear.

Dr. Strudwick indicated that appellant could work as tolerated. He noted that she could continue 

to work on a full-time, full-duty basis with “self-limitation with the ability to sit and stand at will. 

If this is not accommodated, then appellant will be considered temporarily totally disabled again.”

In a separate report dated June 3, 2013, Dr. Strudwick noted that appellant returned to work 

that day and had advised him that she had increased pain in her knee. He explained that it was 

understandable since he believed she had a medial meniscal tear and post-traumatic 

chondromalacia. Dr. Strudwick noted that appellant would continue to work full-time, full duty 

with self-limitations with the ability to sit and stand at will. He completed a Form CA-17 on 

June 4, 2013 noting a diagnosis of chondromalacia of the left knee and providing work restrictions.

On July 1, 2013 Dr. Strudwick diagnosed left knee chondromalacia patella and medial 

meniscal tear. He opined that appellant might ultimately require surgery. Dr. Strudwick explained 

that she had a positive MRI scan for degenerative meniscal tear and chondromalacia of her medial 

femoral condyle. He noted that appellant was having ongoing symptoms with no decreased 

symptoms with activity avoidance and rest. Dr. Strudwick noted that she attempted to return to 

work and had difficulty because of pain. He recommended that appellant be off work until 

August 1, 2013.

Dr. Strudwick provided several reports dated August 9, 2013. In a duty status report (Form 

CA-17), he noted that appellant hit her left knee on the corner of a desk. Dr. Strudwick diagnosed 

chondromalacia and recommended a return to full duty with a 10-pound lifting restriction and 

some limitations on standing, driving, and operating machinery. In an attending physician’s report

(Form CA-20), he diagnosed tricompartmental degenerative joint disease of the knee and 

responded “yes” with regard to whether he believed the condition was caused or aggravated by an 
3

employment activity. Dr. Strudwick placed appellant on partial disability from March 19 to 

August 1, 2013. He noted that she had ongoing pain from the left knee injury and a medial 

meniscal tear. In an August 9, 2013 attending physician’s report (Form CA-20), Dr. Strudwick 

diagnosed tricompartmental degenerative joint disease (DJD) of the knee and checked the box 

marked “yes” indicating that the condition was caused or aggravated by an employment activity. 

He noted that the period of total disability was from March 19 to August 1, 2013. Dr. Strudwick 

also noted that appellant was advised to resume work on August 1, 2013. He noted that she had 

ongoing pain from a left knee injury to include a medial meniscal tear. Dr. Strudwick also 

completed an August 9, 2013 duty status report (Form CA-17), which indicated that appellant 

could work full time with restrictions.

On August 29, 2015 OWCP received appellant’s claim for compensation (Form CA-7) for 

leave buy back for the period April 30 to November 8, 2013.

On September 20, 2013 Dr. Strudwick diagnosed left knee osteoarthritis and a meniscal 

tear. He indicated that she could continue to work on a full-time full-duty basis. 

In a November 18, 2013 report, Dr. Strudwick diagnosed chondromalacia of the patella 

and medial meniscus tear. He recommended acupuncture and reiterated that appellant could work 

full duty with no limitations or restrictions. In another report of even date, Dr. Strudwick noted 

that appellant had returned to her full and customary duties with some “self-limitations.”

Dr. Strudwick treated appellant on December 30, 2013, and February 12 and April 25, 2014

where he continued to diagnose knee pain which he thought to be permanent and stationary. On

June 11, 2014 he opined that her condition was permanent and stationary. Dr. Strudwick explained 

that radiographic studies revealed tricompartmental degenerative joint disease in the right knee 

with degenerative joint disease in the left knee as well as a medial meniscal tear in the left knee. 

He provided an apportionment allocation of 80 percent to appellant’s acute injury and 20 percent 

to her underlying degenerative changes. Dr. Strudwick also indicated that her meniscal tear was 

100 percent industrial. He advised that appellant continued to work full-time, full duty.

Dr. Strudwick also saw her on September 11, 2014.

In a development letter dated May 16, 2017, OWCP explained that the evidence submitted 

was insufficient to support the claim for compensation. It advised appellant of the type of medical 

evidence necessary to establish her claim and afforded her 30 days to submit the necessary 

evidence. 

In response to the development letter, OWCP thereafter received duplicative copies of

Dr. Strudwick’s reports.

By decision dated June 28, 2017, OWCP denied appellant’s claim for compensation (Form 

CA-7) for leave buy back for the period April 30 through November 8, 2013 (550.25 hours). It

explained that the only conditions accepted in the present claim were bilateral knee contusions due 

to bumping the knees on March 14, 2013. OWCP found that the medical evidence of record

revealed that appellant’s disability was related to the underlying degenerative condition of 

chondromalacia and a “possible” medial meniscus tear, which Dr. Strudwick diagnosed in medical 

records dated from April 17, 2013 through February 14, 2014. It found that the medical evidence 
4

did not support that any disability was related to the accepted contusions, but rather, it indicated 

that the disability was related to her underlying nonwork-related degenerative conditions.

In an appeal request form dated June 30, 2017, appellant requested a telephonic hearing

before an OWCP hearing representative. The postmark indicated that the request was mailed on 

July 31, 2017, and it was received by OWCP’s Branch of Hearings and Review on August 4, 2017.

By decision dated October 30, 2017, OWCP’s hearing representative denied appellant’s 

request for a telephonic hearing as untimely. She also denied a discretionary hearing, noting that 

appellant could request reconsideration before OWCP. 

LEGAL PRECEDENT -- ISSUE 1

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

essential elements of his or her claim by the weight of the evidence.2 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.3 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.4

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

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

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

wages. An employee who has a physical impairment causally related to a federal employment 

injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the time 

of injury, has no disability as that term is used in FECA.5

Causal relationship is a medical issue, and the medical evidence required to establish causal 

relationship is rationalized medical evidence.6 Rationalized medical evidence is medical evidence 

which includes a physician’s detailed medical opinion on the issue of whether there is a causal 

relationship between the claimant’s claimed disability and the accepted employment injury. The 

opinion of the physician must be based on a complete factual and medical background of the 

claimant, 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 claimed period 

of disability.7

 

2 See B.O., Docket No. 19-0392 (issued July 12, 2019); D.W., Docket No. 18-0644 (issued November 15, 2018).

3

Id.

4 20 C.F.R. § 10.5(f); B.O., supra note 2; N.M., Docket No. 18-0939 (issued December 6, 2018).

5

Id.

6

J.M., Docket No. 19-0478 (issued August 9, 2019).

7 R.H., Docket No. 18-1382 (issued February 14, 2019).
5

ANALYSIS -- ISSUE 1

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

disability during the period April 30 through November 8, 2013 causally related to her accepted 

March 14, 2013 employment injury. 

In support of her claim for wage-loss compensation, appellant submitted numerous reports 

from her treating physician, Dr. Strudwick. In his initial report of April 17, 2013, Dr. Strudwick

diagnosed probable post-traumatic chondromalacia of the left knee and a possible medial meniscal 

tear. He indicated that appellant was temporarily totally disabled and could return to work on

June 1, 2013. The Board notes that Dr. Strudwick did not initially offer a firm diagnosis,8further 

more while he related that appellant was temporarily totally disabled, he did not relate appellant’s 

disability to her accepted condition of bilateral knee contusion.9 Dr. Strudwick did not explain 

how appellant’s accepted bilateral knee contusions caused disability during the period alleged. 

In his May 6, 2013 report, Dr. Strudwick advised that appellant’s MRI scan revealed grade 

3 lateral facet chondromalacia, and he noted her physical restrictions. While he offered a firm 

diagnosis,10 he did not address whether she was disabled causally related to the accepted

employment conditions or otherwise provide medical reasoning explaining why her current 

condition or disability was due to the accepted March 14, 2013 employment injury.11 Thus his 

report is of no probative value and is insufficient to establish appellant’s claim for compensation.12

In his June 3, 2013 reports, Dr. Strudwick advised that appellant had returned to work and 

had continued pain in the knee exacerbated by work. He diagnosed left knee chondromalacia and 

a medial meniscus tear. Dr. Strudwick related that appellant could continue to work on a full-time, 

full-duty basis, with self-limitations regarding sitting and standing. As previously noted, the 

conditions of left knee chondromalacia and medial meniscus tear are not accepted conditions. If 

an employee claims that a condition not accepted or approved by OWCP was due to an

employment injury, he or she bears the burden of proof to establish that the condition is causally

related to the employment injury.13 However, Dr. Strudwick did not provide an opinion as to 

whether these conditions were causally related to the accepted employment injury. These reports 

are therefore insufficient to establish appellant’s claim.

In a July 1, 2013 treatment note, Dr. Strudwick indicated that ultimately appellant would 

require surgery. He advised that he would recommend that she be off work until August 1, 2013. 

 

8 See J.A., Docket No. 15-0421 (issued June 1, 2015). 

9 V.G., Docket No. 18-0936 (issued February 6, 2019).

10 Supra note 8. 

11 J.M., Docket No. 18-0847 (issued December 5, 2019). 

12 See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

13 S.H., Docket No. 19-1128 (issued December 2 2019). 
6

However, Dr. Strudwick again did not relate appellant’s disability to her accepted conditions of 

bilateral knee contusions.14 

Dr. Strudwick continued to treat appellant. His August 9, 2013 reports provided diagnoses

of tricompartmental degenerative joint disease of the knee. Dr. Strudwick indicated by checkmark 

on a form that this condition was caused or aggravated by an employment activity. However, the 

checking of a box marked “yes” in a form report, without additional explanation or rationale, is 

not sufficient to establish causal relationship.

15

 This report does not provide an opinion on whether 

the claimed disability is causally related to the accepted employment injury.

16

The Board notes that Dr. Strudwick saw appellant on September 20 and November 18, 

2013 and indicated that appellant could continue to work on a full-time full-duty basis. 

Dr. Strudwick also saw appellant on December 30, 2013, February 12, April 25, and June 11, 2014. 

He continued to diagnose knee pain and related that her condition was permanent and stationary. 

The Board finds that these reports do not support work-related disability during the claimed period 

of April 30 to November 8, 2013. 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 claimed. To do so would essentially allow employees to self-certify their 

disability and entitlement to compensation.17

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

dates of disability for work for which she claims compensation.18 She did not provide medical 

evidence containing a rationalized opinion establishing that she could not work from April 30 

through November 8, 2013 causally related to her March 14, 2013 employment injury, and thus 

appellant 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.

LEGAL PRECEDENT -- ISSUE 1

Section 8124(b)(1) of FECA, concerning a claimant’s entitlement to a hearing before a 

hearing representative, provides: before review under section 8128(a) of this title, a claimant for 

compensation not satisfied with a decision of the Secretary under subsection (a) of this section is 

entitled, on request made within 30 days after the date of the issuance of the decision, to a hearing 

on his or her claim before a representative of the Secretary.19 A hearing is a review of an adverse 

 

14 Supra note 11. 

15 M.D., Docket No. 18-0195 (issued September 13, 2018). 

16 Supra note 12.

17 See E.B., Docket No. 17-0875 (issued December 13, 2018); Fereidoon Kharabi, 52 ECAB 291 (2001).

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

19 5 U.S.C. § 8124(b)(1).
7

decision by a hearing representative. Initially, the claimant can choose between two formats: an 

oral hearing or a review of the written record. In addition to the evidence of record, the claimant 

may submit new evidence to the hearing representative.20 The Branch of Hearings and Review, in 

its broad discretionary authority in the administration of FECA, has the power to hold hearings in 

certain circumstances where no legal provision was made for such hearings and must exercise this 

discretionary authority in deciding whether to grant a hearing.

21

 The Board has held that it must 

exercise its discretion to grant or deny a hearing when the request is untimely or made after 

reconsideration under section 8128(a).22

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied appellant’s request for an oral hearing before 

an OWCP hearing representative as untimely filed pursuant to 5 U.S.C. § 8124(b). 

A request for a hearing or review of the written record must, as noted above, be made 

within 30 days after the date of the issuance of an OWCP final decision. Appellant’s request for 

a review of the written record was postmarked July 31, 2017. As the request was submitted more 

than 30 days following issuance of the June 28, 2017 decision, the Board finds that it was untimely 

filed. 

OWCP also has the discretionary power to grant an oral hearing or review of the written 

record even if the claimant is not entitled to a review as a matter of right. The Board finds that 

OWCP, in its October 30, 2017 decision, properly exercised its discretion by relating that it had 

considered the matter in relation to the issue of intermittent disability and determined that the issue 

could be equally well addressed through a reconsideration application. The Board has held that as 

the only limitation on OWCP’s authority is reasonableness, abuse of discretion is generally shown 

through proof of manifest error, clearly unreasonable exercise of judgment, or actions taken which 

are contrary to both logic and probable deduction from established facts.23 In the present case, the 

evidence of record does not indicate that OWCP committed any abuse of discretion in connection 

with its denial of appellant’s request for an oral hearing which could be found to be an abuse of 

discretion. 

CONCLUSION

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

disability during the period April 30 through November 8, 2013 causally related to her March 14, 

 

20 20 C.F.R. § 10.615.

21 J.T., Docket No. 18-0664 (issued August 12, 2019); Eddie Franklin, 51 ECAB 223 (1999); Delmont L. 

Thompson, 51 ECAB 155 (1999).

22 Id.

23 The only limitation on OWCP’s authority is reasonableness. Abuse of discretion is generally shown through 

proof of manifest error, a clearly unreasonable exercise of judgment or actions taken which are contrary to logic and 

deductions from known facts. T.G., Docket No. 19-0904 (issued November 25, 2019); see also Daniel J. Perea, 42 

ECAB 214 (1990). 
8

2013 employment injury. The Board also finds that OWCP properly denied appellant’s request 

for an oral hearing before an OWCP hearing representative as untimely filed under 

5 U.S.C. § 8124(b).

ORDER

IT IS HEREBY ORDERED THAT the October 30 and June 28, 2017 decisions of the 

Office of Workers’ Compensation Programs are affirmed. 

Issued: January 28, 2020

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board