United States Department of Labor

Employees’ Compensation Appeals Board

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S.E., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Mobile, AL, Employer

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Docket No. 20-0400

Issued: August 17, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER 

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On December 11, 2019 appellant filed a timely appeal from a November 15, 2019 merit 

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.2

ISSUE

The issue is whether appellant has met his burden of proof to expand the acceptance of his 

claim to include right lateral epicondylitis as a consequential to his accepted January 1, 1994 

employment injury. 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that following the November 15, 2019 decision, OWCP received additional evidence. However, 

the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record 

that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the 

Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this 

additional evidence for the first time on appeal. Id.
2

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances set forth in 

the Board’s prior decision are incorporated herein by reference. The relevant facts are as follows.

On September 26, 2002 appellant, then a 38-year-old postal clerk, filed an occupational 

disease claim (Form CA-2) alleging that factors of his federal employment including walking, 

standing and heavy lifting aggravated his preexisting knee conditions, for which he underwent

several surgeries. He noted that he first became aware of his condition and realized its relation to 

his federal employment in 1994.4 OWCP subsequently accepted his claim for aggravation of 

traumatic arthritis of both knees, including multiple bilateral knee surgical procedures. On 

October 30, 2009 OWCP expanded its acceptance of the claim to include a torn medial meniscus 

of the left knee. 

On December 4, 2014 appellant requested that his claim be expanded to include a 

consequential condition of right elbow lateral epicondylitis due to intermittent falls caused by his 

accepted employment-related knee conditions.

In an October 10, 2014 report, Dr. Andre J. Fontana, a Board-certified orthopedic surgeon, 

noted that appellant has had multiple falls from his employment-related knee injury, which caused

injury to his right elbow. He opined that appellant’s lateral epicondylitis was causally related to 

his employment-related knee conditions. Dr. Fontana indicated in several progress reports that 

appellant had a history of right lateral epicondylitis.

On March 17, 2015 Dr. H.P. Hogshead, a Board-certified orthopedic surgeon serving as a 

district medical adviser (DMA) reviewed the medical evidence of record, along with a statement 

of accepted facts (SOAF). He opined that appellant’s right lateral epicondylitis was not causally 

related to the 1994 employment injury, which occurred 21 years prior. 

In a March 20, 2015 development letter, OWCP informed appellant that the evidence of 

record was insufficient to establish that the acceptance of his claim should be expanded to include

consequential right lateral epicondylitis condition. It advised him of the type of additional medical 

evidence needed to establish the claim. Appellant was afforded 30 days to respond. 

In an April 8, 2015 report, Dr. Fontana related that appellant had right lateral epicondylitis 

which was caused by trauma. He explained that the trauma resulted from a fall which occurred 

due to his work-related bilateral knee arthritis.

By decision dated April 23, 2015, OWCP denied expansion of the acceptance of the claim 

to include right lateral epicondylitis.

 

3 Docket No. 19-0068 (issued August 20, 2019). 

4 OWCP assigned the present claim OWCP File No. xxxxxx400. Appellant also has a 2007 occupational disease 

claim under OWCP File No. xxxxxx834, which OWCP accepted for primary osteoarthritis of right lower leg. OWCP 

has administratively combined File Nos. xxxxxx834 and xxxxxx400, with the latter serving as the master file.
3

On May 6, 2015 appellant requested an oral hearing before a representative of OWCP’s 

Branch of Hearings and Review.

Dr. Fontana reported on January 11, 2016 that appellant had related to him, and the record 

established, that appellant had fallen on a number of occasions and he therefore used a cane in his 

right hand. He explained that because appellant had to use the cane in the right hand, this pressure, 

as well as his falls, had aggravated his lateral epicondylitis of the elbow. Dr. Fontana indicated 

that this problem has been going on since 2013.

By decision dated February 24, 2016, the hearing representative vacated the April 23, 2015 

decision, finding that while DMA Dr. Hogshead had opined that appellant’s right lateral

epicondylitis could not be causally related to the 1994 employment injury, he failed to provide 

rationale explaining his opinion. The hearing representative remanded the case for further 

development of the medical evidence. 

On remand OWCP referred the case record, along with a SOAF, to a second DMA,

Dr. William Tontz, a Board-certified orthopedic surgeon. In an April 28, 2016 report, Dr. Tontz

advised that there was no objective evidence of acute elbow trauma sustained while rehabilitating 

the knees. He indicated that records from April 8, 2015 disclose no direct acute evidence of trauma 

other than near falls and reported falls by appellant and there was no evidence of acute trauma to 

the lateral epicondyle following a fall. Dr. Tontz also related that there was a lack of evidence 

demonstrating acute tearing or contusion of the lateral epicondyle or extensor complex. Thus, the 

DMA opined that there was no evidence to support a compensable consequence for lateral 

epicondylitis.

By de novo decision dated May 16, 2016, OWCP denied the claim for a consequential 

injury, finding that the medical evidence of record was insufficient to establish that the claimed 

right elbow lateral epicondylitis condition was causally related to or a consequence of the accepted

January 1, 1994 injury. 

Appellant requested an oral hearing before a representative of OWCP’s Branch of Hearings 

and Review. The hearing was held telephonically on January 17, 2017. 

Following the hearing, OWCP received a February 8, 2017 report from Dr. Fontana, who 

opined that it was medically reasonable that appellant’s orthopedic issues regarding the knees 

caused his multiple falls, thereby forcing appellant to use a cane and injure his right elbow. He 

indicated that appellant had no preexisting conditions in the elbow and that he had injected 

appellant on multiple occasions in the lateral part of the elbow after the history of falls.

By decision dated April 4, 2017, the hearing representative affirmed OWCP’s May 16, 

2016 decision, finding that Dr. Fontana’s February 8, 2017 opinion was speculative and lacked 

supporting objective evidence.
4

Evidence was received after OWCP’s April 4, 2017 decision.

5

On February 23, 2018 appellant requested reconsideration and submitted additional 

evidence including several internet articles regarding elbow injuries, which he claimed supported 

a finding that falling and use of a cane can cause epicondylitis.6

On May 3, 2018 appellant again requested reconsideration and submitted additional 

evidence pertaining to the accepted conditions. 

By decision dated July 9, 2018, OWCP denied appellant’s request for reconsideration, 

finding that his May 3, 2018 request was untimely filed and failed to demonstrate clear evidence 

of error.

On October 11, 2018 appellant filed an appeal with the Board. By order dated August 20, 

2019, the Board set aside OWCP’s July 9, 2018 decision, finding that appellant’s February 23, 

2018 request for reconsideration was timely filed.7 The Board remanded the case to OWCP to 

apply the correct standard of review for timely requests for reconsideration.

By decision dated November 15, 2019, OWCP denied modification of its April 4, 2017 

decision, finding that the evidence of record was insufficient to establish that appellant’s right 

lateral epicondylitis condition was caused and/or aggravated by his accepted bilateral knee 

conditions.

LEGAL PRECEDENT

When 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.8

To establish causal relationship, the employee must submit rationalized medical opinion 

evidence.9 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 

 

5

In an October 13, 2017 report, Dr. Fontana diagnosed sprain of radiocarpal joint of right wrist. A November 28, 

2017 right wrist magnetic resonance imaging (MRI) scan report was also received. Other evidence received included 

surgical reports of the left knee and right knees, MRI scans of the right knee, progress reports from Dr. Fontana 

regarding appellant’s knees and several physical therapy reports for appellant’s knees.

6 Additional evidence submitted included a March 29, 2017 surgical report of the right knee, and an April 17, 2018 

report from Dr. Fontana concerning appellant’s knees.

7 Supra note 3.

8 See W.C., Docket No. 19-1740 (issued June 4, 2020); T.F., Docket No. 17-0645 (issued August 15, 2018); Jaja K. 

Asaramo, 55 ECAB 200 (2004). 

9 E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).
5

the accepted employment injury.10 The weight of medical evidence is determined by its reliability, 

its probative value, its convincing quality, the care of analysis manifested, and the medical 

rationale expressed in support of the physician’s opinion.11

When an injury arises in the course of employment, every natural consequence that flows 

from that injury likewise arises out of the employment, unless it is the result of an independent 

intervening cause attributable to a claimant’s own intentional misconduct.12 Thus, a subsequent 

injury, be it an aggravation of the original injury or a new and distinct injury, is compensable if it 

is the direct and natural consequence of a compensable primary injury.13

ANALYSIS

The Board finds that this case is not in posture for a decision.

Section 8124(a) of FECA provides that OWCP shall determine and make a finding of fact 

and make an award for or against payment of compensation.14 Its regulations at 20 C.F.R. § 10.126 

provide that the decision of the Director of OWCP shall contain findings of fact and a statement 

of reasons.15 As well, OWCP’s procedures provide that the reasoning behind its evaluation should 

be clear enough for the reader to understand the precise defect of the claim and the kind of evidence 

which would overcome it.16 OWCP’s procedures further provide that “the CE should discuss 

evidence germane to the issue from the beginning of the development process for the particular 

benefit at issue. Specific dates and authors of the relevant evidence (medical reports, statements 

etc.) should be stated.”

17

In its November 15, 2019 merit decision, OWCP did not address the relevant evidence 

received prior to the April 4, 2017 merit decision. The record reflects that pertinent medical 

evidence pertaining to the consequential right elbow condition began with Dr. Fortuna’s 

October 10, 2014 report. As OWCP only reviewed evidence received after its April 4, 2017 merit 

decision, it did review all of the medical evidence regarding the underlying issue. Thus, the case 

will be remanded to OWCP to enable a proper consideration of all the relevant evidence of record 

at the time of its November 15, 2019 decision. 

 

10 D.S., Docket No. 20-0146 (issued June 11, 2020); M.V., Docket No. 18-0884 (issued December 28, 2018); 

Victor J. Woodhams, 41 ECAB 345, 352 (1989). 

11 Id.

12 See S.M., Docket No. 19-0397 (issued August 7, 2019); Mary Poller, 55 ECAB 483, 487 (2004).

13 A.T., Docket No. 18-1717 (issued May 10, 2019); Susanne W. Underwood (Randall L. Underwood), 53 ECAB 

139 (2001).

14 5 U.S.C. § 8124(a).

15 20 C.F.R. § 10.126.

16 Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5(d) (February 2013).

17 Id.
6

Accordingly, the Board will set aside the November 15, 2019 decision and remand the case 

for OWCP to perform a merit review of all the evidence and argument in support of appellant’s 

claim for a consequential right elbow lateral epicondylitis condition and make findings of fact and 

provide reasons for its decision, pursuant to the standards set forth in section 5 U.S.C. § 8124(a) 

and 20 C.F.R. § 10.126. After this and other such further development as OWCP deems necessary, 

it shall issue a de novo decision.

CONCLUSION

The Board finds that this case is not in posture for decision.

ORDER

IT IS HEREBY ORDERED THAT the November 15, 2019 merit decision of the Office 

of Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this decision of the Board.

Issued: August 17, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board