United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

P.T., Appellant

and

NATIONAL OCEANIC & ATMOSPHERIC 

ADMINISTRATION, NATIONAL FISHERIES 

SERVICE, ALASKAN OBSERVERS, INC.,

Seattle, WA, Employer

__________________________________________

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Docket No. 22-0841

Issued: January 26, 2023

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

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On May 9, 2022 appellant, through counsel, filed a timely appeal from a January 31, 2022 

merit 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 his burden of proof to establish that his claim 

should be expanded to include left knee arthritis causally related to his accepted August 16, 2014 

employment injury; and (2) whether appellant has met his burden of proof to establish a recurrence 

of disability from October 10, 2015 through March 29, 2016 causally related to his accepted 

August 16, 2014 employment injury.

FACTUAL HISTORY

On September 2, 2014 appellant, then a 43-year-old North Pacific groundfish observer, 

filed a traumatic injury claim (Form CA-1) alleging that on August 16, 2014 he injured his left 

knee, ankle, and foot when his boat hit a wave and he was thrown forward while in the performance 

of duty. OWCP accepted the claim for left knee and ankle sprains. Appellant stopped work on 

September 14, 2014. OWCP paid him wage-loss compensation on the supplemental rolls for 

intermittent disability from October 18, 2014 through June 26, 2015. Appellant subsequently 

returned to full-duty work on July 6, 2015. 

An October 2, 2014 magnetic resonance imaging (MRI) scan of the left knee showed no 

meniscus tear and a ganglion cyst from the posterior joint line that may be related to an otherwise 

unremarkable anterior cruciate ligament (ACL). An October 12, 2015 MRI scan of the left ankle 

revealed a small amount of fluid possibly reflecting tenosynovitis and mild-to-moderate 

degenerative joint disease of the medial midfoot. A January 22, 2016 MRI scan of the left knee 

revealed a small ganglion or synovial cyst. 

On October 5, 2015 Dr. Scott P. Fielder, a Board-certified orthopedic surgeon, diagnosed 

a partial tear of the left ACL, a popliteal cyst, and left ankle instability. 

In a progress report dated October 13, 2015, Dr. Fielder evaluated appellant for pain in his 

left ankle and knee. He diagnosed left knee and ankle pain and noted that an MRI scan of the left 

ankle showed possible tenosynovitis and mild-to-moderate medial midfoot degenerative joint 

disease. In a work status report of even date, Dr. Fielder diagnosed ankle tendinitis and held 

appellant off work for five weeks. He provided a similar progress report on October 20, 2015. In 

progress reports dated November 3, 10, and 18, 2015, Dr. Fielder additionally diagnosed arthritis 

of the knee.

On April 25, 2016 appellant filed a claim for wage-loss compensation (Form CA-7) for 

disability from work from October 10, 2015 through March 29, 2016. 

In a development letter dated May 10, 2016, OWCP advised appellant of the definition of 

a recurrence of disability and requested that he submit additional medical evidence. It afforded 

him 30 days to submit the requested information.

Thereafter, OWCP received an October 26, 2015 report from Dr. Brian T. Damitz, a 

podiatrist. Dr. Damitz reviewed appellant’s history of an August 16, 2014 employment injury 

when he fell on his knee when a wave flipped him over. He diagnosed left tibialis posterior 

tendinitis and peroneal tendinitis of the left lower extremity. Dr. Damitz indicated that he would 

“defer to Dr. Fielder” regarding appellant’s ability to work. In a work status report of even date, 
3

he found that appellant should not work. Dr. Damitz provided a similar progress report on 

November 3 and 17, 2015.

In a May 27, 2016 statement, appellant related that because his condition had been 

misdiagnosed, his left knee “gave out more [and] the left ankle shifted more.”

By decision dated September 23, 2016, OWCP denied appellant’s recurrence claim, 

finding the medical evidence of record was insufficient to establish a material change or worsening

of his accepted conditions from October 10, 2015 through March 29, 2016.

Appellant, through counsel, requested a telephonic hearing before a representative of 

OWCP’s Branch of Hearings and Review.

In a report dated October 17, 2016, Dr. Fielder discussed appellant’s history of an 

August 16, 2014 hyperflexion injury to his left knee working on a deck of a boat. He diagnosed a 

partial ACL tear causing a parameniscal cyst. Dr. Fielder attributed the ACL tear to appellant’s 

employment injury.

On February 1, 2017 OWCP referred appellant for a second opinion examination to 

determine the current diagnoses causally related to the accepted employment injury, whether he 

had continued residuals, and the extent of any resulting disability. It further requested an opinion 

regarding the extent of any permanent impairment.

A telephonic hearing was held on April 28, 2017.

By decision dated June 9, 2017, OWCP’s hearing representative set aside the 

September 23, 2016 decision regarding appellant’s recurrence claim and remanded the case for 

OWCP to obtain and consider the report of the second opinion physician.

Thereafter, OWCP received a June 7, 2017 report from Dr. Sukhjit S. Purewal, a Boardcertified orthopedic surgeon, serving as the second opinion physician. Dr. Purewal noted his 

review of appellant’s history of injury and the medical record. He found that appellant had no 

residuals of his left ankle or knee sprains; however, he determined that appellant had also sustained 

tenosynovitis of the posterior tibial tendon and peroneal tendon of the left ankle and foot due to 

the accepted August 16, 2014 injury. Dr. Purewal noted that appellant had returned to his usual 

employment without restrictions.

On March 21, 2018 OWCP expanded its acceptance of the claim to include tenosynovitis 

of the posterior tibial and peroneal tendons of the left foot and ankle. 

By decision dated April 26, 2018, OWCP denied appellant’s recurrence claim, finding that 

the medical evidence of record was insufficient to establish a recurrence of disability from 

October 10, 2015 through March 29, 2016 causally related to his accepted employment injury.

On May 2, 2018 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. 

Following a preliminary review, by decision dated August 10, 2018, OWCP’s hearing 

representative vacated the April 26, 2018 decision and remanded the case for OWCP to request a 
4

supplemental opinion from second opinion physicianDr. Purewal regarding whether appellant was 

totally disabled from work at any point during the period October 10, 2015 through March 29, 

2016 and whether he had sustained any additional conditions due to the accepted employment 

injury. 

On December 19, 2018 OWCP referred appellant, along with a statement of accepted facts 

(SOAF) and a series of questions, to Dr. Nathan A. Fogt,3 an osteopath, for a second opinion 

examination regarding whether appellant was totally disabled from work during the period

October 10, 2015 through March 29, 2016.

4

In a report dated January 8, 2019, Dr. Fogt discussed appellant’s accepted work injury and 

provided his review of the medical evidence. He opined that the popliteal cyst was not causally 

related to the August 2014 employment injury and that there were no objective findings supporting 

the diagnosis of a torn ACL. Dr. Fogt concluded that the accepted conditions of a left knee sprain, 

left ankle sprain, and tenosynovitis of the posterior tibialis tendon and peroneal tendon would have 

“resolved within several weeks to months post injury.” He opined that the objective findings 

during the claimed period of disability “would have allowed the claimant to return to work with 

restrictions at a minimum.”

By decision dated January 30, 2019, OWCP denied appellant’s claim for a recurrence of 

disability from October 10, 2015 to March 29, 2016 causally related to his accepted employment 

injury.5 It noted that Dr. Fogt had not found any additional employment-related left knee 

conditions.

On February 6, 2019 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. 

A telephonic hearing was held on June 13, 2019. By decision dated August 28, 2019, 

OWCP’s hearing representative set aside the January 30, 2019 decision, findinga conflict between 

the medical opinions of Dr. Fielder and Dr. Fogt regarding whether appellant sustained additional 

left lower extremity conditions due to his accepted employment injury, and whether he was totally 

disabled from work during the period October 10, 2015 through March 29, 2016. The hearing 

representative remanded the case for OWCP to refer appellant for an impartial medical 

examination.

On September 12, 2019 OWCP referred appellant to Dr. James Kemmler, a Board-certified 

orthopedic surgeon, serving as an impartial medical examiner (IME). It requested that he address 

whether the August 16, 2014 employment injury caused a partial ACL tear with a resulting cyst, 

3 Dr. Purewal was no longer available to provide a supplemental report as he had retired.

4 The questions posed to the referral physician noted the beginning date of the period of disability as 

“October 15, 2015.” However, this appears to be a typographical error as the Form CA-7 noted the beginning date as 

“October 10, 2015.”

5 The decision noted the beginning date of the period of disability as “October 15, 2015.” However, this again 

appears to be a typographical error as the Form CA-7 noted the beginning date as “October 10, 2015.”
5

an osteochondral lesion of the left knee, post-traumatic left knee changes, or any other condition,

and whether the injury caused disability from work during the claimed period.

In a report dated October 13, 2019, Dr. Kemmler discussed appellant’s history of injury 

and provided his review of the medical evidence of record. He found that the accepted 

employment injury had caused the partial ACL tear with a resulting parameniscal cyst, but that 

there was no evidence of “any resulting post-traumatic degenerative changes of the left knee.”

Dr. Kemmler opined that the injury had not caused any progression of any degenerative left lower 

extremity condition, and that there were no additional diagnoses causally related to the August 16, 

2014 employment injury. He found that appellant was disabled from work from the date of injury 

until July 6, 2015. Dr. Kemmler noted that appellant had tried to return to his usual employment 

on July 6, 2015, but had worked only two months. He related that the “lack of ability to maintain 

his full return, in my opinion, is subjective” and that he could not find evidence that “necessitated 

ongoing disability from his regular job beyond the date of July 6, 2015.” 

By decision dated October 29, 2019, OWCP again denied appellant’s recurrence claim, 

finding that the medical evidence of record was insufficient to establish a recurrence of disability 

from October 10, 2015 through March 29, 2016 causally related to the accepted employment 

injury. It further found that he had not established a left knee partial ACL tear, left knee popliteal 

cyst, or left knee arthritis due to his work injury.

On November 5, 2019 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review.

A telephonic hearing was held on February 28, 2020.

In a report dated March 17, 2020, Dr. Fielder noted that appellant had received treatment 

for his ankle tendinitis from November 3, 2015 to March 29, 2016 and that he had partial disability 

as a result of his injury until that date. He further found that appellant had a ganglion cyst which 

could be an indication of a lateral meniscal tear and recommended further evaluation of his knee.

By decision dated May 7, 2020, OWCP’s hearing representative vacated the October 29, 

2019 decision, finding that the report of IME Dr. Kemmler required clarification. He remanded 

the case for OWCP to obtain a supplemental report from Dr. Kemmler explaining whether 

appellant’s ACL tear and popliteal cyst had healed, providing a rationalized finding regarding 

whether appellant had sustained left knee arthritis, and addressing whether objective evidence 

supported that an employment-related condition had resulted in disability beginning 

October 10, 2015.

On June 17, 2020 OWCP referred appellant to Dr. Kemmler for a supplemental opinion on 

the issue of whether appellant sustained a recurrence of disability commencing October 10, 2015. 

On June 25, 2020, OWCP requested that Dr. Kemmler reevaluate appellant and provide an 

opinion on the issue of expansion, including whether the August 16, 2014 employment injury 

caused left knee arthritis. 

In a report dated July 7, 2020, Dr. Kemmler opined that appellant had sustained a partial 

tear of the ACL of the left knee and cystic lesion due to the August 16, 2014 employment injury, 

noting that a hyperflexion injury to the knee was consistent with these diagnoses. On examination,
6

he found a stable left knee with no specific tenderness, intact sensation, and no pain with 

McMurray’s testing. Dr. Kemmler further found mild tenderness in the subtalar joint of the foot 

and a stable ankle. He related that a partial ACL tear does not in and of itself heal, and cystic 

lesion does not heal directly, and that the issue was whether the conditions caused continued 

symptoms. Dr. Kemmler opined that the examination findings supported the determination that 

“the injures have resolved in regard to any ongoing clinical symptomatology.” He concluded that

the work injury had not caused left knee arthritis. Dr. Kemmler further found that appellant had 

no further disability from his accepted employment injury after his return to work on July 6, 2015.

On July 27, 2020 OWCP requested that Dr. Kemmler provide another supplemental 

opinion with rationale explaining his conclusion that the work injury had not caused, aggravated, 

accelerated, or precipitated left knee arthritis.

In an addendum report dated August 5, 2020, Dr. Kemmler explained that appellant had 

no significant degenerative changes in the left knee and that the “lack of any significant changes 

noted post injury and currently” supported the conclusion that appellant had not sustained 

degenerative changes due to the injury.

On September 2, 2020 OWCP expanded its acceptance of the claim to include a partial left 

knee ACL tear and left knee cystic lesion.

By decision dated September 2, 2020, OWCP denied appellant’s claim for a recurrence of 

disability for the period October 10, 2015 through March 29, 2016 causally related to his accepted 

employment injury. It further found that acceptance of his claim should not be expanded to include 

left knee arthritis.

On September 11, 2020 appellant, through counsel, requested a telephonic hearing before 

a representative of OWCP’s Branch of Hearings and Review. 

In a September 22, 2020 report, Dr. Fielder disagreed with Dr. Kemmler’s conclusions, 

noting that appellant had not had a further work-up of his left knee or x-rays. He advised that 

partial tears of the ACL did not heal and may progress, and that traumatic arthritis was progressive 

in nature. Dr. Kemmler opined that appellant’s return to work was “on a rolling boat out at sea”

which did not allow for rest or recovery. He noted thatDr. Damitz found that appellant’s traumatic 

tendinitis had not reached maximum medical improvement until March 29, 2016 and opined that 

he was entitled to disability for this period.

A telephonic hearing was held on November 16, 2021. Appellant related that he had 

returned to his usual employment working on a boat in the Bering Sea on July 6, 2015 but 

continued to have left knee problems. He was unable to get off the boat until September 2015. 

Dr. Fielder and Dr. Damitz told him to stay off his knee from October 15, 2015 to March 29, 2016. 

Appellant advised that he experienced severe ankle pain and that work was available for him 

during the claimed period.

By decision dated January 31, 2022, OWCP’s hearing representative affirmed the 

September 2, 2020 decision. 
7

LEGAL PRECEDENT -- ISSUE 1

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.6

Causal relationship is a medical question that requires rationalized medical opinion 

evidence to resolve the issue.7 A physician’s opinion on whether there is a causal relationship 

between the diagnosed condition and the implicated employment factor(s) must b e based on a 

complete factual and medical background.8 Additionally, the physician’s opinion must be 

expressed in terms of a reasonable degree of medical certainty, and must be supported by medical 

rationale explaining the nature of the relationship between the diagnosed condition and appellant’s

employment injury.9

Section 8123(a) of FECA provides, in pertinent part: “If there is disagreement between 

the physician making the examination for the United States and the physician of the employee, the 

Secretary shall appoint a third physician who shall make an examination.”

10

 This is called a referee 

examination and OWCP will select a physician who is qualified in the appropriate specialty and 

who has no prior connection with the case.11

Where a case is referred to an IME for the purpose of resolving the conflict, the opinion of 

such specialist, if sufficiently well rationalized and based on a proper factual background, must be 

given special weight.12

ANALYSIS -- ISSUE 1

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

should be expanded to include left knee arthritis causally related to his accepted August 16, 2014 

employment injury.

OWCP properly found a conflict in medical opinion between Dr. Fielder, appellant’s 

treating physician, and Dr. Fogt, an OWCP referral physician, regarding whether he had sustained 

6

J.R., Docket No. 20-0292 (issued June 26, 2020); W.L., Docket No. 17-1965 (issued September 12, 2018); JajaK. 

Asaramo, 55 ECAB 200, 204(2004).

7 W.N., Docket No. 21-0123 (issued December 29, 2021); E.M., Docket No. 18-1599 (issued March 7, 2019); 

Robert G. Morris, 48 ECAB 238 (1996).

8 F.A., Docket No. 20-1652 (issued May 21, 2021); M.V., Docket No. 18-0884 (issued December 28, 2018); 

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

9

Id.

10 5 U.S.C. § 8123(a).

11 K.C., Docket No. 19-1251 (issued January 24, 2020);R.M., Docket No. 18-1621 (issued August 23, 2019); R.C., 

58 ECAB 238 (2006).

12 See S.N., Docket No. 21-0070 (issued March9, 2022); D.S., Docket No. 19-1698 (issued June 18, 2020); K.C., 

id.; V.K., Docket No. 18-1005 (issued February 1, 2019).
8

left knee arthritis due to his accepted work injury. It referred him to Dr. Kemmler for an impartial 

medical examination to resolve the conflict in medical opinion pursuant to 5 U.S.C. § 8123(a).

In his October 13, 2019 report, Dr. Kemmler found that OWCP should expand its 

acceptance of appellant’s claim to include a partial ACL tear and parameniscal cyst causally related 

to his accepted work injury. He further determined that there was no evidence showing posttraumatic degenerative changes of the left knee. On July 7, 2020 Dr. Kemmler opined that the 

employment injury had not caused left knee arthritis. In an August 5, 2020 addendum report, he

advised that there was no evidence demonstrating significant arthritic changes of the left knee. 

Based on the lack of degenerative changes after the injury and currently, Dr. Kemmler opined that 

appellant had not sustained a degenerative left knee condition.

In situations where the case is referred to an IME for the purpose of resolving a medical 

conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper 

factual background, must be given special weight.13 The Board finds that Dr. Kemmler provided 

a well-rationalized opinion based on a complete background, his review of the SOAF and the 

medical record, and his findings on examination. Dr. Kemmler reached a reasoned conclusion 

regarding whether the acceptance of appellant’s claim should be expanded, noting that there was 

no evidence supporting a degenerative left knee condition. Thus, his opinion is entitled to the 

special weight of the medical evidence with regard to the issue of whether the acceptance of 

appellant’s claim should be expanded to include left knee arthritis.14

In a September 22, 2020 report, Dr. Fielder disagreed with Dr. Kemmler’s conclusions. He 

advised that traumatic arthritis could progress, and that appellant should have x-rays. However,

Dr. Fielder failed to provide a reasoned opinion relating the diagnosed traumatic arthritis to the 

accepted employment injury. Further, he was on one side of the conflict resolved by Dr. Kemmler. 

The Board has held that reports from a physician who was on one side of a medical conflict are 

generally insufficient to overcome the special weight accorded to the IME, or to create a new 

conflict.15 Dr. Fielder’s report is thus insufficient to overcome the special weight accorded to

Dr. Kemmler’s opinion, or to create a new conflict in medical opinion.16

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

A recurrence of disability means an inability to work after an employee has returned to 

work, caused by a spontaneous change in a medical condition which resulted from a p revious 

compensable injury or illness, and without an intervening injury or new exposure in the work 

13 Id.

14 See T.P., Docket No. 20-0970 (issued June 16, 2022); W.N., supranote 7.

15 See N.U., Docket No. 20-1022 (issued January 25, 2022); W.C., Docket No. 19-1740 (issued June4, 2020).

16 Id.
9

environment.17 This term also means an inability to work because a light-duty assignment made 

specifically to accommodate an employee’s physical limitations, and which is necessary because 

of a work-related injury or illness, is withdrawn or altered so that the assignment exceeds the 

employee’s physical limitations. A recurrence does not occur when such withdrawal occurs for 

reasons of misconduct, nonperformance of job duties, or a reduction-in-force.18

OWCP’s procedures provide that a recurrence of disability includes a work stoppage 

caused by a spontaneous material change in the medical condition demonstrated by objective 

findings. That change must result from a previous injury or occupational illness, rather than an 

intervening injury or new exposure to factors causing the original illness. It does not include a 

condition that results from a new injury, even if it involves the same part of the body prev iously 

injured.19

An employee who claims a recurrence of disability due to an accepted employment-related 

injury has the burden of proof to establish by the weight of the substantial, reliable, and probative 

evidence that the disability for which he or she claims compensation is causally related to the 

accepted injury. This burden of proof requires that a claimant furnish medical evidence from a 

physician who, based on a complete and accurate factual and medical history, concludes that, for 

each period of disability claimed, the disabling condition is causally related to the employment 

injury, and supports that conclusion with medical reasoning.20 Where no such rationale is present, 

the medical evidence is of diminished probative value.21

Section 8123(a) of FECA provides in pertinent part that, if there is disagreement between 

the physician making the examination for the United States and the physician of the employee, the 

Secretary shall appoint a third physician who shall make an examination.22 This is called a referee 

examination, and OWCP will select a physician who is qualified in the appropriate specialty and 

who has no prior connection with the case.23 When there are opposing medical reports of virtually 

equal weight and rationale, and the case is referred to an IME for the purpose of resolving the 

conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper 

factual background, must be given special weight.24

17 20 C.F.R. § 10.5(x); J.D., Docket No. 18-1533 (issued February 27, 2019).

18 Id.

19 Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2 (June 2013); P.R., Docket 

No. 20-0596 (issued October 6, 2020); F.C., Docket No. 18-0334 (issued December 4, 2018).

20 L.O., Docket No. 19-0953 (issued October 7, 2019); J.D., Docket No. 18-0616 (issued January 11, 2019).

21 M.G., Docket No. 19-0610 (issued September 23, 2019); G.G., Docket No. 18-1788 (issued March 26, 2019).

22 5 U.S.C. § 8123(a).

23 20 C.F.R. § 10.321.

24 See R.H., Docket No. 21-0493 (issued March 4, 2022); K.S., Docket No. 19-0082 (issued July 29, 2019).
10

When OWCP obtains an opinion from an IME for the purpose of resolving a conflict in 

medical opinion, and the IME’s opinion requires clarification or elaboration, OWCP must secure 

a supplemental report from the specialist to correct the defect in the original report. 25

If the IME is unable to clarify or elaborate on his original report, or if his supplemental 

report is vague, speculative, or lacking in rationale, OWCP shall refer appellant to a new IME. 26

ANALYSIS -- ISSUE 2

The Board finds that the case is not in posture for decision regarding whether appellant has 

met his burden of proof to establish a recurrence of disability from October 10, 2015 through 

March 29, 2016 causally related to his accepted August 16, 2014 employment injury.

OWCP properly found a conflict in medical opinion between Dr. Fielder and Dr. Fogt 

regarding whether appellant sustained a recurrence of disability during the period October 10, 

2015 through March 29, 2016. It referred him to Dr. Kemmler for an impartial medical 

examination to resolve the conflict in medical opinion pursuant to 5 U.S.C. § 8123(a).

In an October 13, 2019 report, Dr. Kemmler opined that appellant was disabled from 

August 16, 2014, the date of injury, until he returned to his usual employment on July 6, 2015. He 

noted that he had stopped work two months after his return. Dr. Kemmler asserted that appellant 

had stopped work for subjective reasons, and that the evidence failed to support disability after

July 6, 2015. OWCP’s hearing representative, by decision dated May 7, 2020, found that

Dr. Kemmler had not sufficiently addressed whether objective evidence supported that appellant 

was unable to work beginning October 10, 2015. In a supplemental report dated July 7, 2020,

Dr. Kemmler again indicated that appellant had no disability after he had resumed work on 

July 6, 2015. He did not, however, provide any rationale for his opinion, or address whether 

objective evidence supported disability from work from October 10, 2015 through 

March 29, 2016. The Board has found that, when an IME fails to provide medical reasoning to 

support his conclusory statements about a claimant’s condition, his opinion is insufficient to 

resolve a conflict in the medical evidence.27

The case must therefore be remanded for further development. As OWCP has already 

sought clarification from Dr. Kemmler, on remand OWCP shall refer appellant, together with an 

updated SOAFand the medical record, to a new IME in the appropriate field of medicine to resolve 

the recurrence of disability issue.28 Following this and other such further development deemed 

necessary, OWCP shall issue a de novo decision.

25 See T.K., Docket No .22-0334 (issued July 13, 2022); R.T., Docket No. 20-0081 (issued June 24, 2020); 

RaymondA. Fondots, 53 ECAB 637, 641 (2002).

26 See C.E., Docket No. 19-1923 (issued March 30, 2021); M.S., Docket No. 18-1228 (issued March 8, 2019); R.H., 

Docket No. 17-1903 (issued July 5, 2018).

27 R.G., Docket No. 21-0812 (issued February 28, 2022); K.C., supranote 11.

28 Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 

2.810.11(e) (September 2010); E.N., Docket No. 20-1171 (issued April20, 2022); R.W., Docket No. 18-1457 (issued 

February1, 2019); Harold Travis, 30 ECAB 1071(1979).
11

CONCLUSION

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

should be expanded to include left knee arthritis causally related to his accepted August 16, 2014 

employment injury. The Board further finds that the case is not in posture for decision regarding 

whether appellant has met his burden of proof to establish a recurrence of disability from 

October 10, 2015 to March 29, 2016 causally related to his accepted August 16, 2014 employment 

injury.

ORDER

IT IS HEREBY ORDERED THAT the January 31, 2022 decision of the Office of 

Workers’Compensation Programs is affirmed in part and set aside in part and the case is remanded 

for further proceedings consistent with this decision of the Board.

Issued: January 26, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board