United States Department of Labor

Employees’ Compensation Appeals Board

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X.J., Appellant

and

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, Atlanta, GA, Employer

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Docket No. 20-1283

Issued: January 27, 2022

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 June 20, 2020 appellant filed a timely appeal from a June 15, 2020 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.

ISSUE

The issue is whether appellant has met his burden of proof to establish continuing 

employment-related disability on or after May 19, 2015 causally related to his accepted June 21, 

2013 employment injury. 

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

This case has previously been before the Board.2 The facts and circumstances as set forth 

in the Board’s prior decision and order are incorporated herein by reference. The relevant facts 

are as follows.

On June 25, 2013 appellant, then a 44-year-old correctional officer, filed a traumatic injury 

claim (Form CA-1) alleging that on June 21, 2013 he ruptured his right quadriceps tendon after he 

slipped and fell while descending stairs while in the performance of duty. He stopped work on 

June 21, 2013. OWCP accepted the claim, assigned OWCP File No. xxxxxx192, for a rupture of 

the right quadriceps tendon. On July 16, 2013 Dr. Mathew W. Pombo, a Board-certified 

orthopedic surgeon, performed a repair of the right quadriceps tendon rupture. OWCP paid 

appellant wage-loss compensation for total disability from work beginning August 25, 2013.

On June 28, 2014 OWCP referred appellant to Dr. Alexander N. Doman, a Board-certified 

orthopedic surgeon, for a second opinion examination. 

In an August 26, 2014 report, Dr. Doman found full flexion and extension of the right knee 

with no instability, and normal muscle and quadriceps strength. He determined that appellant had 

no objective findings of his accepted work injury and could return to his regular employment. 

On November 19, 2014 Dr. Pombo found full right knee motion without swelling, a 

negative ligamentous examination, a negative McMurray’s test, full strength, and mild patella 

tenderness. He diagnosed bilateral knee pain and a right quadriceps tendon rupture. Dr. Pombo 

reviewed the results of an October 6, 2014 functional capacity evaluation (FCE) finding that 

appellant could perform heavy work.3 He noted that appellant had a separate claim for problems 

with his left lower back, hip, and knee. In a return to work note dated November 19, 2014,

Dr. Pombo determined that he could return to work without restrictions.

By decision dated May 18, 2015, OWCP terminated appellant’s wage-loss compensation 

benefits effective May 19, 2015 as the weight of the evidence, as represented by Dr. Pombo and

Dr. Doman, established that he had no further employment-related disability. 

On May 28, 2015 appellant requested reconsideration. 

By decision dated June 5, 2015, OWCP denied modification of its May 18, 2015 

termination decision. 

2 Docket No. 15-1776 (issued December 10, 2015); Order Remanding Case, Docket No. 17-1094 (issued 

February5, 2018).

3 A July 30, 2014 FCE, received by OWCP on June 16, 2015, indicated that appellant could perform all the duties 

of his position with the exception of restraining inmates. An October 6, 2014 FCE determined that he could resume 

his full employment without restrictions. It indicated that appellant demonstrated the ability to perform heavy work.
3

A magnetic resonance imaging (MRI) scan of the lumbar spine dated July 15, 2015 

revealed a moderately large disc herniation at L4-5 and migrated disc fragment behind L4 on the 

right causing compression of the thecal sac and bilateral exiting nerve roots. 

On August 4, 2015 appellant requested reconsideration. He submitted June 12 and July 10, 

2015 reports from Dr. Jay B. Bender, a Board-certified physiatrist, in support of his request. 

By decision dated August 14, 2015, OWCP denied appellant’s request for reconsideration 

after finding that he did not submit evidence or raise an argument sufficient to warrant reopening 

his case for further review of the merits under 5 U.S.C. § 8128(a). 

On August 24, 2015 appellant appealed to the Board. By decision dated December 10, 

2015, the Board affirmed the May 18 and June 5, 2015 decisions terminating appellant’s wageloss compensation effective May 19, 2015 as he had no further employment-related disability.4

 

The Board set aside the August 14, 2015 decision, however, finding that the June 12 and July 10, 

2015 reports from Dr. Bender constituted new and relevant medical evidence and that, 

consequently, OWCP had improperly denied his request to reopen the case for further merit review 

under 5 U.S.C. § 8128(a). The Board remanded the case for OWCP to conduct a merit review of 

the claim.5

By decision dated March 3, 2016, OWCP denied modification of its June 5, 2015 decision. 

On April 20, 2016 Dr. Bender diagnosed a right quadriceps tendon tear and advised that 

appellant was “incapacitated and retired at this point.” He recommended continued physical 

therapy. 

On June 6, 2016 Dr. Bender related:

“[Appellant’s] physical activities of dealing with inmates, walking on concrete 

floors, running up and down stairs began the symptoms of his low back pain in 

2011, but [were] aggravated by his fall in 2013 and up until 2015 when the MRI 

[scan] was done which showed a herniated disc which is related to his bending, 

stooping, pushing, running, and restraining inmates, and it was related directly to 

the 2011 work injury. His herniated nucleus from [the] 2011 work-related injury 

was not diagnosed until 2015, and that was directly related again to his 2011 

injury.”

By decision dated October 13, 2016, OWCP denied modification of its March 3, 2016 

decision. It noted that appellant had filed a 2014 claim for an injury to his left leg and hip due to 

arising from overcompensating for his right leg condition. OWCP indicated that it had assigned 

OWCP File No. xxxxxx878 and denied the claim. It further noted that appellant had filed an 

occupational disease claim alleging that he had become aware on March 15, 2011 that performing 

4

Supra note 2.

5 By decision dated January 27, 2016, OWCP granted appellant a schedule award for 12 percent permanent 

impairment of the right lower extremity. 
4

his work duties, including walking on concrete floors and climbing stairs, had caused or aggravated 

his low back condition. OWCP assigned OWCP File No. xxxxxx105 and denied the claim.

On October 26, 2016 Dr. Bender described appellant’s work duties and his June 21, 2013 

slip and fall on stairs. He noted that after his surgery to repair the right quadriceps tendon he had

experienced pain in his left hip and numbness radiating into the left lower extremity. Dr. Bender 

related that he altered his posture because he could not bear full weight on the right side, which 

resulted in a limp and strain on his low back. He asserted that appellant had a consequential injury 

to his left lower extremity and lumbar spine due to his June 21, 2013 employment injury and 

opined that he was totally disabled.6

In a request for expansion of the acceptance of the claim of even date, Dr. Bender advised 

that OWCP should accept lumbar intervertebral disc displacement with myelopathy, lumbar facet 

arthropathy, lumbar degenerative disc disease, and bilateral patellar tendinitis. 

By decision dated January 23, 2017, OWCP denied modification of its October 13, 2016 

decision. It further found that the evidence of record was insufficient to establish that appellant 

had sustained a consequential injury causing disability. 

On January 27, 2017 appellant requested that OWCP expand acceptance of his claim to 

include the additional diagnoses as recommended by Dr. Bender on October 26, 2016. 

On April 20, 2017 appellant appealed to the Board. By order dated February 5, 2018, the 

Board set aside the January 23, 2017 decision.7 The Board remanded the case for OWCP to 

administratively combine OWCP File Nos. xxxxxx878, xxxxxx105 and xxxxxx192, followed by 

an appropriate merit decision on the claim.

By decision dated March 26, 2018, OWCP denied modification of its October 13, 2016 

decision. 

In a report dated April 19, 2018, Dr. John W. Ross, an internist, obtained a history of 

appellant rupturing his right quadriceps on June 21, 2013 falling down stairs. He diagnosed a right 

quadriceps tendon rupture and repair. Dr. Ross advised that he had lumbar disc disease and related, 

“The lower back and both knees are set up like a tripod. Since the lower back is compensating for 

the right knee this will result in lumbar disc disease. This prognosis will eventually get worse over 

time. [Appellant] is experiencing left hip pain because of compensation for [the] right knee.”

Dr. Ross noted that he was not working and recommended continued physical therapy.

On March 11, 2019 appellant requested reconsideration. 

By decision dated April 15, 2019, OWCP denied modification of its March 26, 2018 

decision. 

6 Dr. Bender submitted similar reports dated November 9 and December 20, 2016. 

7

Supra note 2.
5

On June 5, 2019 OWCP expanded the acceptance of appellant’s claim to include other 

internal derangements of the right knee, an unspecified sprain of the right hip, a sacroiliac joint 

sprain, lumbar and lumbosacral intervertebral disc disorders with radiculopathy, and a rupture of 

the right quadriceps muscle. 

On July 8, 2019 appellant requested reconsideration.8 He noted that OWCP expanded his 

diagnoses to include the lower back, left hip, and left leg injuries. Appellant asserted that OWCP 

should not have determined that he could work given his injuries. He requested wage -loss 

compensation for total disability.

In a report dated July 11, 2019, Dr. Robert L. Bowers, an osteopath, evaluated appellant 

for pain in his posterior hip and buttock beginning in 2013. He diagnosed buttock pain, left hip 

pain, left lumbar radiculopathy, and a spasm of the left piriformis muscle.

By decision dated September 13, 2019, OWCP denied modification of its April 15, 2019 

decision. 

An FCE performed on February 12, 2020 indicated that appellant could perform work at a 

medium level. 

On March 12, 2020 appellant asserted that Dr. Bender had found in 2015 that he was 

unable to work in his usual employment. He noted that a 2020 FCE confirmed that he could only 

work at a medium level. Appellant submitted an August 21, 2015 report from Dr. Bender finding 

that he was totally and permanently disabled. 

In a report dated March 13, 2020, Dr. Pombo diagnosed status post right quadriceps tendon 

repair and advised that he could work at a medium capacity.

On March 17, 2020 appellant requested reconsideration. 

In a work capacity evaluation (OWCP-5c) dated March 24, 2020, Dr. Pombo indicated that 

appellant could perform medium employment in accordance with the FCE. 

On May 5, 2020 appellant requested reconsideration. He maintained that he had been 

disabled as of May 19, 2015 due to his accepted employment injury. 

On May 27, 2020 Dr. Miguel E. Stubbs, an internist, obtained a history of the June 21, 

2013 employment injury and noted that appellant had retired in 2015. He indicated that after 

recovery appellant had overcompensated for his right lower extremity injury causing “a significant 

shift in his posture and gait causing him to limp when he ambulated. This new biomechanical 

posture put a significant strain on his low back. In addition, appellant’s left hip and buttocks 

started to develop pain and numbness as well.” Dr. Stubbs provided a list of the accepted 

diagnosed conditions and opined that he had sustained a consequential injury to his lumbar spine 

and left lower extremity. He related, “It is my professional opinion that on June 21, 2013, 

8

In a June 27, 2019 report, Dr.Anna M. McCrate, a Board-certified physiatrist, provided a history of the June 13, 

2013 employment injury. She diagnosed a lumbar disc herniation, left lumbar radiculitis, chronic low back pain, and 

a rupture of the right quadriceps tendon.
6

[appellant] sustained a traumatic injury to his right lower extremity and subsequently his low back 

and left knee, which has caused him to not be able to perform his necessary duties....”

9

 

By decision dated June 15, 2020, OWCP denied modification of its September 13, 2019 

decision. It found that the evidence of record was insufficient to establish that appellant had 

continuing disability due to his June 21, 2013 employment injury. OWCP determined that the 

November 19, 2014 report from Dr. Pombo and the August 29, 2014 report of Dr. Doman 

remained the weight of the evidence.

LEGAL PRECEDENT

Once OWCP properly terminates a claimant’s compensation benefits, he or she has the 

burden of proof to establish continuing disability after that date related to the accepted injury.10 

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

and the employment injury, an employee must submit rationalized medical evidence based on a 

complete medical and factual background, supporting such a causal relationship.11 

ANALYSIS

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

OWCP initially accepted that appellant sustained a right quadriceps tendon ruptures due to 

the accepted June 21, 2013 employment injury. It terminated his wage-loss compensation benefits 

effective May 19, 2015, finding that he had no further disability due to his accepted right tendon 

rupture. OWCP based its termination on the opinion of Dr. Doman, an OWCP referral physician,

who determined that appellant had no objective findings of the right quadriceps tendon rupture 

and his attending physician, Dr. Pombo, who opined that he could resume work without 

restrictions. The Board affirmed OWCP’s termination of appellant’s wage-loss compensation for 

the accepted condition of a right quadriceps tendon rupture. 

As the Board previously affirmed the termination of appellant’s wage-loss compensation, 

absent further merit review of this issue by OWCP pursuant to section 8128 of FECA, the issue is 

res judicata.

12

 The only issue before the Board is whether he has established continuing disability 

on or after May 19, 2015 causally related to the accepted June 21, 2013 employment injury.

In an October 26, 2016 report, Dr. Bender opined that appellant was disabled from 

employment. He found that he had sustained a consequential injury to his left lower extremity and 

lumbar spine as a result of the June 21, 2013 employment injury.

9 Dr. Stubbs provided a similar report on June4, 2020. 

10 L.S., Docket No. 20-0570 (issued December 15, 2020); V.G., Docket No. 17-0583 (issued July 23, 2018).

11 See S.M., Docket No. 18-0673 (issued January 25, 2019); C.L., Docket No. 18-1379 (issued February 3, 2019).

12 R.T., Docket No. 20-0575 (issued September 30, 2020); E.H., Docket No. 19-1352 (issued December 18, 2019).
7

In a report dated May 27, 2020, Dr. Stubbs reviewed the history of the June 21, 2013 

employment injury. He opined that appellant’s altered gait subsequent to his injury had strained 

his lower back and left lower extremity resulting in his inability to perform the duties of his 

employment. Dr. Stubbs further opined that appellant had sustained a traumatic injury to his right 

lower extremity and subsequently his low back and left knee, which has caused him to not be able 

to perform his necessary duties.

Appellant requested that OWCP expand acceptance of his claim to include a consequential 

injury to his left lower extremity and lumbar spine. OWCP, on June 5, 2019, expanded acceptance 

of his claim to include other internal derangements of the right knee, an unspecified sprain of the 

right hip, a sacroiliac joint sprain, lumbar and lumbosacral intervertebral disc disorders with 

radiculopathy and a rupture of the right quadriceps muscle. By decision dated June 15, 2020, 

however, it denied appellant’s request for continuing compensation for employment-related 

disability, finding that the opinions of Dr. Doman and Dr. Pombo continued to constitute the 

weight of the evidence. Dr. Doman and Dr. Pombo, however, failed to address whether he had 

disability due to the expanded conditions of other internal derangements of the right knee, an 

unspecified sprain of the right hip, a sacroiliac joint sprain, and lumbar and lumbosacral 

intervertebral disc disorders with radiculopathy.

Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested 

arbiter. The claimant has the burden of proof to establish entitlement to compensation. However, 

OWCP shares responsibility in the development of the evidence to see that justice is done. 13 Once 

it undertook development of the evidence by referring appellant’s case for a second opinion 

evaluation, it had an obligation to do a complete job and obtain a proper evaluation and report that 

would resolve the issue in this case.14 OWCP expanded acceptance of appellant’s claim 

subsequent to its termination of compensation to include additional conditions. It failed to request 

a supplemental opinion from Dr. Doman; however, regarding whether the expanded conditions 

resulted in continuing disability from employment or the need for medical treatment. 15 

On remand, OWCP shall refer appellant, together with an updated statement of accepted 

facts, which includes the expanded conditions along with the case record, to Dr. Doman for a 

supplemental opinion. After this and other such development as deemed necessary, it shall issue 

a de novo decision.

CONCLUSION

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

13 R.T., id.; A.A., 59 ECAB 726 (2008).

14 See R.L., Docket No. 20-1069 (issued April. 7, 2021); W.W., Docket No. 18-0093 (issued October 9, 2018); 

PeterC. Belkind, 56 ECAB 580 (2005).

15 See C.S., Docket No. 20-0621 (issued December 22, 2020).
8

ORDER

IT IS HEREBY ORDERED THAT the June 15, 2020 decision of the Office of Workers’

Compensation Programs is set aside and the case is remanded for further proceedings consistent 

with this opinion of the Board.

Issued: January 27, 2022

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