United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.V., Appellant

and

DEPARTMENT OF THE AIR FORCE, TRAVIS 

AIR FORCE BASE, CA, Employer

__________________________________________

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Docket No. 20-0937

Issued: November 24, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 25, 2020 appellant filed a timely appeal from a January 23, 2020 merit decision 

and a March 12, 2020 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 his burden of proof to establish bilateral knee 

conditions causally related to the accepted factors of his federal employment; and (2) whether 

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

to 5 U.S.C. § 8128(a).

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On October 26, 2019 appellant, then a 62-year-old retired cargo scheduler, filed an 

occupational disease claim (Form CA-2) alleging that he developed bilateral knee conditions due 

to factors of his federal employment, including frequent stair usage and constant jumping on and 

off cargo storage grids. He indicated that he first became aware of his condition on June 2, 2014,

and first realized its relationship to his federal employment on June 4, 2018.2 

In a development letter dated November 18, 2019, OWCP informed appellant that the 

evidence of record was insufficient to establish his claim. It advised him of the type of factual and 

medical evidence needed and provided a questionnaire for his completion. In a separate 

development letter of even date, OWCP requested that the employing establishment provide 

additional information, including comments from a knowledgeable supervisor and an explanation 

of appellant’s work activities. It afforded both parties 30 days to submit the necessary evidence. 

In a letter dated December 5, 2019, appellant noted that he had worked for the employing 

establishment for 28 years. He indicated that he sustained serious damage to both of his knees as 

a result of frequently using stairs multiple times a day at work. Appellant also stated that he had 

to jump on and off 3-to-4-foot-high cargo storage platforms approximately 50 to 60 times per day. 

He noted that he experienced more than normal knee pain in 2014 and first realized that it was 

related to his federal employment in 2018. Appellant indicated that he had a total replacement of 

his left knee and was scheduled for a total replacement of his right knee. He stated that he did not 

engage in any outside activities that could have resulted in damage to his knees. Appellant listed 

his medical treatment history from June 2, 2014 through October 10, 2019.

On January 7, 2020 the employing establishment responded to OWCP’s development 

questionnaire. It confirmed that appellant had retired on November 25, 2016, and indicated that 

his employee personnel folder was destroyed. The employing establishment attached a position 

description with its response.

OWCP subsequently received a February 5, 2018 note from Dr. Mark Bernstein, a Boardcertified orthopedic surgeon, who examined appellant and diagnosed left knee osteoarthritis. 

Dr. Bernstein indicated that appellant would need left knee total replacement in the future. 

An x-ray report on appellant’s left knee, dated October 10, 2018, revealed no acute

abnormalities.

In an October 10, 2018 note, Dr. Steven Schule, a Board-certified orthopedic surgeon, 

noted that appellant presented with left anteromedial knee pain. He examined appellant and 

reviewed x-rays of his left knee. Dr. Schule diagnosed left knee osteoarthritis and discussed that 

although appellant was not interested at this time, there was the possibility for the need of a left 

total knee arthroplasty in the future.

 

2 Appellant retired from the employing establishment on November 25, 2016.
3

Appellant submitted hospital records, orders, and results, dated October 10 and 

December 17, 2018.

On December 17, 2018 Dr. Schule performed a left total knee arthroplasty and described 

the technique and results in an operative note. He listed a postoperative diagnosis of left knee 

osteoarthritis.

An x-ray report on appellant’s left knee, dated December 17, 2018, revealed no 

abnormalities and noted expected postoperative findings.

Appellant submitted physical therapy treatment notes, dated December 17, 2018 and 

January 4, 2019. 

On January 15 and March 19, 2019 Dr. Schule noted that he examined appellant and 

advised that he was recovering from his left total knee arthroplasty and had no restrictions. 

In a note dated July 16, 2019, Dr. Deborah Valtierra, a Board-certified specialist in internal 

medicine, noted that appellant was experiencing right knee pain. She indicated that he had constant 

pain in the right, medial knee that worsened at night. 

On July 25, 2019 Andrew Bloom, a physician assistant, administered a cortisone injection 

to appellant’s right knee joint. On August 21, 2019 he administered a viscosupplement injection

to appellant’s right knee joint.

A magnetic resonance imaging (MRI) scan report on appellant’s right knee, dated 

October 1, 2019, revealed severe medial compartment osteoarthritis with degenerative meniscal 

tearing and scattered high-grade patellofemoral chondral wear and fissuring. 

In an October 10, 2019 note, Mr. Bloom examined appellant and diagnosed right knee 

osteoarthritis. 

In a note dated November 20, 2019, Dr. Schule examined appellant and also diagnosed 

right knee osteoarthritis. He discussed the possibility of right total knee arthroplasty.

In a January 19, 2020 note, Dr. Brian Knapp, a specialist in occupational medicine, noted 

that appellant worked as a cargo scheduler for 28 years, frequently climbing stairs and jumping to 

platforms, three to four feet high. He reviewed appellant’s medical record and scheduled a right 

total knee replacement for January 24, 2020.

By decision dated January 23, 2020, OWCP denied appellant’s occupational disease claim, 

finding that that the medical evidence of record was insufficient to establish causal relationship 

between his diagnosed bilateral knee conditions and the accepted factors of his federal 

employment.

On February 28, 2020 appellant requested reconsideration. In an accompanying statement, 

he noted that Dr. Knapp concurred that his injuries were a direct result of his federal employment. 

Appellant attached a copy of appellant’s December 5, 2019 letter, along with his request.
4

By decision dated March 12, 2020, OWCP denied appellant’s request for reconsideration 

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

LEGAL PRECEDENT -- ISSUE 1

An employee seeking benefits under FECA3 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 period of FECA,4that 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.5 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.6

To establish that an injury was sustained in the performance of duty in an occupational 

disease claim, a claimant must submit the following: (1) a factual statement identifying 

employment factors alleged to have caused or contributed to the presence or occurrence of the 

disease or condition; (2) medical evidence establishing the presence or existence of the disease or 

condition for which compensation is claimed; and (3) medical evidence establishing that the 

diagnosed condition is causally related to the identified employment factors.7

Causal relationship is a medical question that requires rationalized medical opinion 

evidence to resolve the issue.8 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 specific employment factors identified by the claimant.9

ANALYSIS -- ISSUE 1

The Board finds that appellant has not met his burden of proof to establish bilateral knee 

conditions causally related to the accepted factors of his federal employment.

 

3 Supra note 1.

4 R.M., Docket No. 20-0342 (issued July 30, 2020); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 

153 (1989).

5 V.P., Docket No. 20-0415 (issued July 30, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 

312 (1988).

6 20 C.F.R. § 10.115; S.A., Docket No. 20-0458 (issued July 23, 2020); L.M., Docket No. 13-1402 (issued 

February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).

7 See B.H., Docket No. 18-1693 (issued July 20, 2020); Roy L. Humphrey, 57 ECAB 238, 241 (2005); Victor J. 

Woodhams, 41 ECAB 345, 352 (1989).

8 L.S., Docket No. 19-1769 (issued July 10, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

9 B.C., Docket No. 20-0221 (issued July 10, 2020); Leslie C. Moore, 52 ECAB 132 (2000).
5

In support of his claim, appellant submitted progress notes from multiple physicians. On 

February 5, 2018 Dr. Bernstein examined appellant and diagnosed left knee osteoarthritis. On 

October 10, 2018 Dr. Schule diagnosed left knee osteoarthritis. On December 17, 2018 he 

performed a left total knee arthroplasty and noted a postoperative diagnosis of left knee 

osteoarthritis. Subsequently on November 20, 2019 Dr. Schule examined appellant and diagnosed 

right knee osteoarthritis. While the physicians provided firm medical diagnoses, they did not offer 

a specific opinion as to whether the accepted employment factors caused or aggravated appellant’s 

diagnosed bilateral knee conditions. The Board has held that medical evidence that does not offer 

an opinion regarding the cause of an employee’s condition is of no probative value on the issue of 

causal relationship.10 As such, these notes are insufficient to meet appellant’s burden of proof.

Appellant also submitted hospital records, orders, and results, dated October 10 and 

December 17, 2018, which did not include a medical diagnosis. He further submitted progress 

notes without a firm medical diagnosis. On January 15, 2019 Dr. Schule examined appellant and 

noted that he was improving following his left total knee arthroplasty. On March 19, 2019 he 

examined appellant and indicated that he had no restrictions. On July 16, 2019 Dr. Valtierra noted 

that appellant experienced constant pain in the right, medial knee that worsened at night. On 

January 19, 2020 Dr. Knapp noted that appellant worked as a cargo scheduler for 28 years and 

reviewed his medical record. These physicians did not provide a medical diagnosis or offer an 

opinion on causal relationship. The Board has held that medical notes which do not provide a firm 

diagnosis or fail to render an opinion on causal relationship are of no probative value and are 

insufficient to establish the claim.11 These hospital records and physicians’ notes are therefore 

insufficient to establish appellant’s claim.

Appellant also submitted physical therapy treatment notes, dated December 17, 2018 and 

January 4, 2019. He also submitted progress notes from Andrew Bloom, a physician assistant, 

dated July 25, August 21, and October 10, 2019. Certain healthcare providers such as physical 

therapists and physician assistants are not considered “physician[s]” as defined under FECA.12 

Consequently, these notes will not suffice for purposes of establishing appellant’s claim.13

The record contains x-ray reports of appellant’s left knee, dated October 10 and 

December 17, 2018, and an MRI scan report of his right knee, dated October 1, 2019. The Board 

has held that diagnostic studies standing alone lack probative value on the issue of causal 

 

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

11 Id.; see also A.K., Docket No. 20-0003 (issued June 2, 2020).

12 Section 8101(2) of FECA provides that medical opinions can only be given by a qualified physician. This section 

defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and 

osteopathic practitioners within the scope of their practice as defined by state law. 5 U.S.C. § 8101(2); 20 C.F.R. 

§ 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) 

(January 2013); M.M., Docket No. 20-0019 (issued May 6, 2020); K.W., 59 ECAB 271, 279 (2007); David P. 

Sawchuk, 57 ECAB 316, 320 n.11 (2006); see also C.K., Docket No. 19-1549 (issued June 30, 2020) (physical 

therapists and physician assistants are not considered physicians under FECA).

13 Id.
6

relationship as they do not provide an opinion as to whether the accepted employment factors 

caused any of the diagnosed conditions.14

As the medical evidence of record does not contain rationalized medical evidence 

establishing causal relationship between appellant’s diagnosed bilateral knee conditions and the 

accepted factors of his federal employment, the Board finds that he has not met his 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(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 or her own motion or on application.15

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

provide evidence or an argument which: (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.16

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

OWCP’s decision for which review is sought.17 If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits.18 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.19

ANALYSIS -- ISSUE 2

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

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

In his timely request for reconsideration, appellant submitted a statement asserting that

Dr. Knapp concurred that his injuries were a direct result of his federal employment. His narrative 

 

14 C.B., Docket No. 20-0464 (issued July 21, 2020).

15 5 U.S.C. § 8128(a); see J.T., Docket No. 19-1829 (issued August 21, 2020); W.C., 59 ECAB 372 (2008).

16 20 C.F.R. § 10.606(b)(3); see J.V., Docket No. 19-0990 (issued August 26, 2020); C.N., Docket No. 08-1569 

(issued December 9, 2008).

17 Id. at § 10.607(a); see M.M., Docket No. 20-0523 (issued August 25, 2020).

18 Id. at § 10.608(a); see M.M., Docket No. 20-0574 (issued August 19, 2020); M.S., 59 ECAB 231 (2007).

19 Id. at § 10.608(b); see J.V., supra note 16; E.R., Docket No. 09-1655 (issued March 18, 2010).
7

statement did not attempt to show that OWCP erroneously applied or interpreted a specific point 

of law or advance a relevant legal argument not previously considered by OWCP. Additionally, 

appellant’s statement is not medical evidence, and he did not submit any medical evidence along 

with his request for reconsideration. The Board therefore finds that appellant failed to show that 

OWCP erroneously applied or interpreted a specific point of law, advanced a relevant legal 

argument not previously considered by OWCP, or submitted relevant and pertinent new evidence 

not previously considered by OWCP.20 

On appeal appellant asserts that he submitted new medical evidence that was never 

reviewed by OWCP. However, the Board finds that appellant did not submit any medical evidence 

with his request for reconsideration. The Board, therefore, 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.21

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish bilateral knee 

conditions causally related to the accepted factors of his federal employment. The Board further 

finds that OWCP properly denied appellant’s request for reconsideration of the merits of his claim 

pursuant to 5 U.S.C. § 8128(a).

 

20 Supra note 16.

21 D.M., Docket No. 18-1003 (July 16, 2020); 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 request for reconsideration without reopening the case for a review on the merits).
8

ORDER

IT IS HEREBY ORDERED THAT the March 12 and January 23, 2020 decisions of the 

Office of Workers’ Compensation Programs are affirmed.

Issued: November 24, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board