United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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and
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DEPARTMENT OF VETERANS AFFAIRS,
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VETERANS ADMINISTRATION REGIONAL
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OFFICE, Manchester, NH, Employer
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___________________________________________ )
S.M. Appellant

Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 08-1816
Issued: March 23, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 16, 2008 appellant filed a timely appeal from the May 21, 2008 decision of an
Office of Workers’ Compensation Programs’ hearing representative who affirmed the denial of
appellant’s emotional condition claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over these issues.
ISSUE
The issue on appeal is whether appellant has met her burden of proof to establish that she
sustained an emotional condition in the performance of duty.
FACTUAL HISTORY
On December 1, 2005 appellant, then a 44-year-old letter service representative, filed a
traumatic injury claim alleging that she was harassed by her managers, which caused her to
develop anxiety, depression, stress and a bipolar disorder. She alleged that the injury occurred
on November 29, 2005, the date that she stopped work. Patricia Alonman, a union

representative, indicated on the claim form that she represented appellant in a September 2005
meeting with her immediate supervisor, Marie Brochu. She alleged that Ms. Brochu wrote a
letter of counseling and admonished appellant for “not being in on [tele]phones all day,
something that all employees do at one time or another.” Ms. Alonman indicated that appellant
was “visibly shaken, started crying and said she had to go throw up.” The employing
establishment controverted the claim.
On December 14, 2005 Amy Ellard, a human resources specialist, asserted that
appellant’s emotional reaction was due to poor performance and a conduct issue. A meeting was
held with appellant on November 29, 2005 at 2:00 pm. Appellant’s union representative was
also present. Ms. Brochu discussed the results of her performance improvement plan (PIP),
which had concluded on November 22, 2005. Ms. Ellard noted that, after the meeting, appellant
requested sick leave for the rest of the day. On December 1, 2005 appellant submitted her
traumatic injury claim form and a note from her physician, who placed her off work due to work
stress until January 16, 2006, which coincided with the 45-day maximum for continuation of
pay. The physician noted that appellant had outside stresses as she was the mother of an adult
special needs child, a caretaker for her ailing mother and a newlywed.
Ms. Ellard provided a timeline for appellant’s history with the employing establishment,
which began after her hardship transfer request was granted on November 15, 2004. Appellant
was placed on a performance assistance plan (PAP) on June 23, 2005 and a PIP on
August 22, 2005. On September 13, 2005 she attended court on behalf of her special needs child
and requested court leave. Ms. Ellard explained that appellant did not initially provide the
proper documentation and was advised to use annual leave pending receipt of the documentation.
Subsequently, court leave was granted after appellant presented the summons and management
verified the documents. On September 19, 2005 appellant alleged harassment after she received
oral counseling due to her failure to follow procedures and cover assigned telephone
responsibilities on several occasions. On September 20, 2005 upper level management assured
appellant that she was not being harassed. Ms. Ellard noted that on October 3, 2005 a meeting
was held with appellant, her union representative and the station director, Marybeth Cully,
concerning her harassment allegations regarding court leave, oral counseling and replacement of
her computer without advance notice. On October 6, 2005 Ms. Cully addressed these matters
and explained the basis for the actions taken. Ms. Ellard stated that on October 17, 2005 a
grievance was filed on behalf of appellant alleging harassment for the court leave matter and the
issuance of oral counseling. She indicated that Ms. Brochu met with appellant and her union
representative to discuss the grievance on November 3, 2005 and that the grievance was denied
on November 14, 2005. On November 21, 2005 appellant filed a Step 2 grievance and on
November 28, 2005 a meeting was held with her the union and a supervisor. On November 29,
2005 she met with Ms. Brochu and a union representative, regarding the results of the PIP.
Appellant was advised that she failed to meet minimally acceptable levels. She was also advised
that her within grade pay increase was denied.
By letter dated January 3, 2006, the Office advised appellant that additional factual and
medical evidence was needed. It informed appellant that it would develop her claim as an
occupational disease as she had alleged that her condition occurred from incidents over a period
of time, as opposed to a single workday.

2

On a January 16, 2006 appellant contended that her claim was traumatic in nature, despite
a number of events over a period of time, as she stopped work on November 29, 2005 when she
had a traumatic ordeal. She reiterated that her manager had harassed her, but that she was
“holding it together until that last meeting (11/29/2005) that’s when I just snapped and could not
take the stress of harassment anymore.” Appellant alleged that her supervisor threatened to
terminate her and that, despite doing her job for five years, “all of a sudden at her discretion I
was not making my quality.” She alleged that, two months previous, Ms. Brochu informed a
union representative, Pat Connarn, that she was not going to make her numbers. Appellant noted
that she never had a bad appraisal in 16 years of work until she started working at her present
site. She alleged that she was “singled out to fail.” Appellant worked until November 29, 2005,
when her supervisor “threatened to down grade” or “terminate” her. She alleged that the meeting
caused her to have an emotional breakdown. The following day, appellant dropped off a CA-16
form and Sandy Hill, a service center manager, called her at home and threatened to place her on
absent without leave (AWOL) status and stated that she could terminate her, despite her
physician’s note placing her off work. She noted that the union president, Robert Cortez, heard
the conversation on speaker phone. Appellant denied that her mother or her son caused stress.
She stated that Ms. Cully, on December 21, 2005 offered her a position in another division under
different management, upon her return.
The Office also received a performance appraisal dated October 7, 2002, which indicated
that appellant had a successful rating and a copy of appellant’s CA-16 dated November 29, 2005,
placing her off work from December 1, 2005 to January 16, 2006. In a February 6, 2006
response, the employing establishment controverted her claim.
In a June 13, 2006 decision, the Office denied appellant’s claim, finding that her
emotional condition did not occur in the performance of duty. On July 10, 2006 appellant
requested a hearing, which was scheduled for February 27, 2008.
In a February 28, 2008 letter, appellant reiterated the matters surrounding her request for
administrative leave or court leave. She alleged that she was trying to build up her leave for her
wedding and honeymoon and worked as much as possible, but “no matter” what she did, she was
“never appreciated only reprimanded.”
In a March 3, 2008 letter, appellant provided a November 22, 2005 performance
appraisal, which showed a below standard rating for quality. In a March 2, 2008 statement,
Frank Wardon, a coworker, alleged that he witnessed Ms. Brochu and Ms. Hill harass appellant.
He noted that Ms. Hill harassed appellant on several occasions, making her uncomfortable and
making it really hard to do her job. Mr. Wardon stated that he witnessed Ms. Brochu yelling,
badgering and embarrassing appellant in front of coworkers instead of taking her into her office.
He noted that he sometimes took appellant to lunch so “he could get her away from the office to
let her vent.” Mr. Wardon alleged that appellant cried on many occasions and left the office
visibly shaken and very upset. He stated that some of the actions occurred on September 16, 20,
31, October 3 and December 1, 2005. Mr. Wardon referred to an incident on September 21,
2005, related to a subpoena, in which the manager accused appellant of lying about a subpoena
that she was served, because it was not signed. He alleged that management was trying to get
appellant to use up her annual leave, “so that she would not have enough leave to be approved
for her [honeymoon] on the week of October 22, 2005.”

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In a December 21, 2005 settlement memorandum, appellant withdrew her step three
grievance in return for reassignment to another department. Ms. Connarn indicated that, while
the grievance relating administrative leave for court purposes was withdrawn, it was not an
admission of disagreement with the grievance. In a December 21, 2005 memorandum,
Ms. Cully noted that appellant was offered a new position as a loan specialist, at a lower grade,
at her request and not as an adverse action. Appellant was informed that her unacceptable rating
for her prior position would remain but would not carry over to her new position. The Office
also received documents from appellant and the employing establishment pertaining to the denial
of her within grade increase. The employing establishment indicated that it was denied because
her work was not at an acceptable level.
Appellant provided a January 3, 2006 letter and a copy of a grievance pertaining to the
employing establishment’s actions related to her request for administrative or court leave. She
alleged that the employing establishment retaliated against her because she requested to speak
with her congressman about the refusal to grant administrative leave. Appellant also alleged
that, because she was subpoenaed to appear in court on behalf of her handicapped son, this was a
“case against the handicapped” as well as whistle blower retaliation. She alleged that she was
harassed into using her annual leave instead of administrative leave. Appellant alleged that her
supervisor abused her authority to make it look like appellant’s performance was not acceptable.
She provided handwritten notes from September 16 to November 16, 2005, in which she outlined
events involving pressure and harassment by management: she was written up for oral
counseling on September 16, 2005 for telephone duty; on September 20, 2005 she was informed
that her subpoena was no good and it took several attempts to have administrative leave granted;
and on October 3, 2005 her computer was taken and a new one appeared in its place. Appellant
alleged that the court leave was granted only after many conflicting arguments between
managers. She also alleged that she believed she was being singled out and harassed in relation
to oral counseling for failure to follow local procedures.
On March 19, 2008 the Office received a statement from Ms. Connarn, who addressed
the actions management took to verify whether appellant’s subpoena regarding her child was
proper. Ms. Connarn confirmed that Ms. Cully authorized appellant’s manager to contact the
court to verify the subpoena.
In a March 25, 2008 letter, Charles Woolford, the director of the employing
establishment, asserted that appellant’s allegations were related to administrative actions taken in
accordance with established management practices. He denied that Ms. Brochu would “scream”
or “belittle” her in front of other employees and stated that this type of behavior would not be
tolerated. Mr. Woolford stated that Ms. Brochu held “employees accountable for assigned work
and [would] occasionally advise them to return to the task assigned.” Regarding the
administrative leave matter, he noted that, while appellant alleged that it “took weeks to
accomplish, in fact, the first notice of intent to request leave of any type was received on
Monday, September 12, 2005 and was granted by the station Director on Friday,
September 16, 2005.” The delay arose as the first subpoena submitted was issued in her son’s
name and a second one was submitted which was issued in her name. Mr. Woolford noted that
the employing establishment did not have prior experience with this situation and that
management sought advice from its regional counsel and human resource center. At no time was
appellant accused of lying or falsifying documents. Regarding the computer issue, Mr. Woolford

4

explained that the information technology (IT) staff exchanged her computer while she was on
vacation after appellant contacted the IT staff on several occasions with complaints of her
computer locking up. The IT staff found that the computer was seriously infected with mal-ware
and computers were exchanged without the knowledge of management or the opportunity to
provide notice to appellant. He noted that appellant’s grievance was denied and did not progress
further.
Regarding appellant’s allegations that management unnecessarily found fault with her
work, Mr. Woolford noted that, as early as June 23, 2005, appellant was notified that she failed
to meet minimal quality expectations. She was also notified that a within grade increase could
be delayed pending successful attainment of quality standards. Appellant did not improve and,
as a result, she was placed on a PIP on August 22, 2005 and notified that failure to successfully
complete the PIP could lead to a transfer, demotion or termination. Despite additional training,
implementation of reminder checklists and mentoring, appellant received an unsuccessful
performance evaluation. However, she was offered another opportunity to be successful and
accepted a transfer to the loan guaranty division. Mr. Woolford denied that appellant’s
supervisor “had something up for her.” He noted that, despite being in a new position and under
a different management team, since January 2006, she was again under a PIP. Mr. Woolford
reiterated that the management did not harass appellant.
By decision dated May 21, 2008, Office hearing representative affirmed the June 13,
2006 decision.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every illness that is somehow
related to an employee’s employment. There are situations where an injury or illness has some
connection with the employment but nevertheless does not come within the concept or coverage
of workers’ compensation. Where the disability results from an employee’s emotional reaction
to her regular or specifically assigned duties or to a requirement imposed by the employment, the
disability comes within the coverage of the Federal Employees’ Compensation Act.1 On the
other hand the disability is not covered where it results from such factors as an employee’s fear
of a reduction-in-force or her frustration from not being permitted to work in a particular
environment or to hold a particular position.2
An employee has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition, for which she claims compensation was caused or
adversely affected by employment factors.3 This burden includes the submission of a detailed

1

5 U.S.C. §§ 8101-8193.

2

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler,
28 ECAB 126 (1976).
3

Pamela R. Rice, 38 ECAB 838, 841 (1987).

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description of the employment factors or conditions, which appellant believes caused or
adversely affected the condition or conditions, for which compensation is claimed.4
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office as part of its
adjudicatory function, must make findings of fact regarding, which working conditions are
deemed compensable factors of employment and are to be considered by the physician when
providing an opinion on causal relationship and, which working conditions are not deemed
factors of employment and may not be considered.5 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of the
matter establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.6
ANALYSIS
Appellant attributed her emotional condition to several incidents involving her
supervisors. The Board must review whether these alleged incidents and conditions of
employment are covered employment factors under the terms of the Act.7
Appellant alleged that her managers denied her request for administrative leave, gave her
a poor performance appraisal and oral counseling, threatened to place her on AWOL, denied her
within grade increase, took away her computer and demoted her. The Board finds that these
allegations relate to administrative or personnel matters unrelated to her regular or specially
assigned work duties and do not fall within the coverage of the Act.8 Although the handling of
disciplinary actions, evaluations and leave matters9 are generally related to the employment, they
are administrative functions of the employer and not duties of the employee.10 The Board has
found, however, that an administrative or personnel matter will be considered an employment
factor where the evidence discloses error or abuse on the part of the employing establishment. In
determining whether appellant’s supervisors erred or acted abusively, the Board has examined
whether they acted reasonably.11
4

Effie O. Morris, 44 ECAB 470, 473-74 (1993).

5

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

6

Id.

7

Although appellant stated that she first stopped work on November 29, 2005, the record clearly indicates that
she attributes her injury to conditions and factors that occurred over more than and a single workday or shift.
Consequently, the claim was properly adjudicated as an occupational disease claim. See 20 C.F.R. § 10.5(q), (ee).
8

See Janet I. Jones, 47 ECAB 345, 347 (1996); Jimmy Gilbreath, 44 ECAB 555, 558 (1993); Apple Gate,
41 ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 1266-67 (1988).
9

C.S., 58 ECAB ___ (Docket No. 06-1583, issued November 6, 2006).

10

See supra note 8.

11

See Richard J. Dube, 42 ECAB 916, 920 (1991).

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With respect to her request for administrative or court leave related to a subpoena,
appellant alleged that leave was granted after many conflicting arguments between managers.
Ms. Connarn alleged that the employing establishment questioned the legality of the document
and called appellant a “liar” despite being advised by appellant’s attorney that the document was
legitimate. However, the managers denied acting improperly and provided a reasonable
explanation for their actions. Mr. Woolford noted that the request was authorized only four days
after it was received. He explained that an initial delay arose because the first subpoena
presented by appellant was issued in her son’s name and a second was submitted which was
issued with her name. Mr. Woolford also noted that they did not have experience dealing with
subpoenas and sought advice from counsel. He denied that appellant was accused of “lying or
falsifying documents.” In another leave matter, appellant alleged that she was threatened with
AWOL despite having a physician’s note. The employing establishment explained that it
indicated that appellant was advised of the documentation needed to support her absences.
Appellant has not submitted evidence showing how the employing establishment acted
improperly in this matter. Thus, she did not establish any compensable factors of employment
with regard to these matters.
Appellant alleged that management gave her a poor performance appraisal and demoted
her and that on November 29, 2005 her supervisor threatened to terminate her employment or
downgrade her. She alleged that her poor performance appraisal was due to her supervisor’s
discretion and unwarranted in view of her years of service. Appellant noted that she had never
received a bad appraisal or evaluation. Mr. Wardon stated that he witnessed both Ms. Brochu
and Ms. Hill harass appellant on several occasions and alleged that they made her uncomfortable.
While he referred to several dates, he did not specifically describe or explain what he witnessed
to be unfair on each particular date. The employing establishment explained that appellant was
placed on a PAP on June 23, 2005, which she failed. Appellant’s within grade increase was
subsequently denied because her work was not at an acceptable level of competence after she
was placed on a PIP. Ms. Ellard indicated that a meeting was set for November 29, 2005,
between appellant, her union representative and her supervisor, Ms. Brochu. Appellant was
informed of results of the PIP, which included the denial of her within grade increase and of the
chance to transfer to a different division. Mr. Woolford noted that appellant had documented
performance problems since June 23, 2005 and that the employing establishment provided her
several opportunities to improve her performance. Rather, than terminating appellant, the
employing establishment allowed her to transfer to another division. The record indicates that
she voluntarily accepted the transfer which was at a lower grade. The Board finds that the
appellant has not established a compensable factor in this regard.
Regarding her allegations that the employing establishment improperly gave her oral
counseling and denied her within grade increase, these are also administrative or personnel
matters unrelated to her regular or specially assigned work duties. They do not generally fall
within the coverage of the Act.12 The employing establishment provided statements from
appellant’s supervisors explaining their actions as being in accordance with usual employing
establishment administrative procedures. Appellant did not submit any evidence establishing
that the employing establishment acted unreasonably in these matters. She example did not
12

See Charles D. Edwards, 55 ECAB 258 (2004).

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submit evidence to support that oral counseling was unreasonable in view of her failure to cover
her assigned telephone responsibilities. Appellant had not established a compensable
employment factor regarding these administrative matters.
Appellant also alleged that she was harassed by her supervisors. For harassment or
discrimination to give rise to a compensable disability under the Act, there must be evidence that
harassment or discrimination did in fact occur. Mere perceptions of harassment or
discrimination are not compensable under the Act.13 In the present case, appellant has not
submitted sufficient evidence to establish that she was harassed or discriminated against by her
supervisors or coworkers with regard to certain claimed incidents.14 Appellant alleged that her
supervisors engaged in actions which she believed constituted harassment and discrimination.
Appellant alleged that her supervisors harassed her with regard to request for
administrative leave related to a subpoena, as they were trying to get her to use all of her leave so
that she would not be able to go on her honeymoon. Ms. Connarn indicated that the employing
establishment questioned the legality of the document despite being advised by appellant’s
attorney that they were legitimate. It was alleged that one of the managers was authorized to
contact the court to verify the subpoena. Although Ms. Connarn’s statement confirms that the
employing establishment questioned the document, her statement does not establish that
verifying the subpoena constituted harassment of appellant. The employing establishment
explained that they were not experienced in matters related to subpoenas and sought legal advice.
Appellant’s leave request was granted after only a few days. The Board finds that the appellant
has not established a compensable factor in this regard.
Appellant also alleged she had filed several grievances. However, she did not submit any
evidence establishing that her grievances contained findings of harassment. The Board notes that
grievances and Equal Employment Opportunity complaints, by themselves, do not establish that
workplace harassment or unfair treatment occurred.15 The Board notes that the evidence
supports that the grievances were either settled with no finding of error by either party or denied
as being without merit.
Appellant also alleged that the employing establishment took her computer as an effort to
harass her. However, Mr. Woolford explained that management was not aware that appellant’s
computer was exchanged as she had previously contacted IT staff that her computer was not
properly functioning. The IT staff exchanged her computer while she was on vacation, which
occurred without the knowledge of management or the opportunity to provide prior notice to
appellant. The Board finds that appellant has not established a compensable factor in this regard
as the evidence does not show that the employing establishment acted unreasonably in this
matter.

13

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).

14

See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a claimant must substantiate allegations of
harassment or discrimination with probative and reliable evidence).
15

James E. Norris, 52 ECAB 93 (2000).

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For the foregoing reasons, appellant has not established any compensable employment
factors under the Act and, therefore, has not met her burden of proof in establishing that she
sustained an emotional condition in the performance of duty.16
CONCLUSION
The Board finds that the evidence fails to establish that appellant sustained an emotional
condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs’ hearing representative dated May 21, 2008 is affirmed.
Issued: March 23, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

16

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record; see Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.P., Appellant
and
DEPARTMENT OF AGRICULTURE,
AGRICULTURAL MARKETING SERVICE,
Fresno, CA, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0056
Issued: January 27, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 9, 2017 appellant, through counsel, filed a timely appeal from a September 7,
2017 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.

ISSUE
The issue is whether appellant has met her burden of proof to establish a left knee condition
causally related to the accepted November 15, 2013 employment incident.
FACTUAL HISTORY
On March 3, 2014 appellant, then a 50-year-old agricultural commodity grader, filed a
traumatic injury claim (Form CA-1) alleging that on November 15, 2013 she sustained a complete
tear of her anterior cruciate ligament (ACL) when she “slipped on chicken fat as [she] was exiting
the water chillers stairs” while in the performance of duty. She stated that her leg shot forward as
she tried to regain her balance. Appellant did not stop work.
In a January 27, 2014 statement, appellant’s supervisor indicated that she had not reported
the injury until January 24, 2014.
In a development December 23, 2014 letter, OWCP indicated that when appellant’s claim
was received it appeared to be a minor injury that resulted in minimal or no lost time from work
and, based on these criteria and because the employing establishment did not controvert
continuation of pay or challenge the case, payment of a limited amount of medical expenses was
administratively approved. It explained that it had reopened the claim for consideration because
the employing establishment had now submitted a challenge to the claim. OWCP requested
additional evidence and afforded appellant 30 days to respond to its inquiries.
In response, appellant submitted a December 29, 2014 narrative statement reiterating that
she slipped on a piece of chicken fat and injured her left knee on November 15, 2013 at
approximately 10:30 a.m. She stated that the piece of chicken fat was on the floor of the water
chillers and she slipped on it after performing a routine check of the chickens exiting the water
chillers.
An x-ray of the left knee, dated December 5, 2013, demonstrated minimal degenerative
changes suspected in the area of the tibial spines.
In a December 4, 2013 report, Dr. Judy Miramontes, a Board-certified family practitioner,
diagnosed left knee pain, grief reaction, and depression with anxiety. She noted that appellant had
experienced left knee pain for two weeks, “no injury or trauma,” and her husband had died about
six weeks prior due to stroke.
On December 30, 2013 Dr. Miramontes diagnosed depression with anxiety and insomnia
and advised that appellant was totally disabled for work.
In a January 15, 2014 report, Dr. Miramontes diagnosed ACL tear and chondromalacia of
the left patella.
By decision dated February 4, 2015, OWCP accepted that the November 15, 2013
employment incident occurred as alleged, but denied the claim because the medical evidence of
record failed to establish causal relationship between appellant’s diagnosed conditions and the
accepted November 15, 2013 employment incident.
2

In a January 26, 2014 report, Dr. Peter T. Simonian, a Board-certified orthopedic surgeon,
diagnosed mild arthritis with ACL insufficiency and noted that appellant slipped on chicken fat at
work and injured her left knee.
On January 30, 2014 Dr. Simonian performed an ACL reconstruction and arthroscopic
multi-compartment synovectomy on appellant’s left knee. In a March 24, 2014 report, he found
that appellant was doing well. Dr. Simonian advised her to remain off work for another six weeks.
On August 13, 2014 he prescribed a derotation brace. In an August 14, 2014 report, Dr. Simonian
released appellant to full-duty work without restrictions that day.
On January 21, 2016 appellant, through counsel, requested reconsideration.
A magnetic resonance imaging (MRI) scan of the left knee dated January 11, 2014
demonstrated a complete tear of the ACL, small irregular chondral defect on the lateral femoral
condyle, and early patellar chondromalacia.
In a January 28, 2016 report, a registered nurse clarified that appellant’s initial injury was
to her left knee when she slipped on chicken fat at her work. She noted that appellant did not have
problems with her knee prior to this injury.
By decision dated June 23, 2016, OWCP denied modification of its prior decision.
On June 14, 2017 appellant, through counsel, requested reconsideration.
In a May 29, 2017 report, Dr. Neil Allen, a Board-certified internist and neurologist,
reported that he reviewed appellant’s medical records in order to establish whether causal
relationship exists between “the patient’s left knee injury and work-related trauma sustained on
November 15, 2013.” He reviewed the prior clinical reports and diagnosed a left-sided ACL tear
and opined that appellant’s left knee condition was directly caused by the acute trauma she
sustained on November 15, 2013 at work. Dr. Allen explained that the ACL is usually torn as a
result of a quick deceleration, hyperextension, or rotational injury, which often occurs following a
sudden change of direction. He noted that appellant had reported twisting her left knee as she
slipped on a grease-covered surface while exiting a cooler. Dr. Allen explained that a slip and fall,
like that described by appellant, was an example of a rapid deceleration incident combined with a
rotational injury, which applied stress to the ACL and, in some cases, external forces exceed the
ACL’s ability to stabilize the tibia, which results in a tear. He opined that these stressors applied
to appellant’s left knee ACL resulting in a tear.
By decision dated September 7, 2017, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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

3

time limitation period of FECA,3 that 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.4 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.5
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.6 The second component is whether the employment incident caused a personal injury.
An employee may establish that an injury occurred in the performance of duty, as alleged, but fail
to establish that the disability or specific condition for which compensation is being claimed is
causally related to the injury.7
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence supporting such causal relationship.8 Causal relationship is a medical issue, and
the medical evidence required to establish causal relationship is rationalized medical 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 the specific
employment factors identified by the employee.10 Neither the mere fact that a disease or condition
manifests itself during a period of employment, nor the belief that the disease or condition was
caused or aggravated by employment factors or incidents is sufficient to establish causal
relationship.11

3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

T.W., Docket No. 18-1436 (issued April 10, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

7

M.E., Docket No. 18-0553 (issued November 5, 2018); Shirley A. Temple, 48 ECAB 404, 407 (1997).

8
J.L., Docket No. 18-0698 (issued November 5, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB
465 (2005).
9

L.D., Docket No. 17-1581 (issued January 23, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

10

L.D., id.; see also Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

11

T.H., Docket No. 18-1736 (issued March 13, 2019); Dennis M. Mascarenas, 49 ECAB 215 (1997).

4

ANALYSIS
The Board finds that this case is not in posture for a decision.
In support of her claim appellant submitted a May 29, 2017 medical report from Dr. Allen
who had performed a medical records review and provided an opinion solely on the issue of
whether her accepted employment incident on November 15, 2013 was sufficient to have caused
her left knee ACL tear. In his report, Dr. Allen accurately reported the history of injury (slipping
on a greasy area of chicken fat while exiting a cooler and twisting her knee), appellant’s prior
medical history, and reviewed diagnostic tests noting findings consistent with those of prior
attending physicians. He explained that the ACL is usually torn as a result of a quick deceleration,
hyperextension, or rotational injury, which often occurs following a sudden change of direction.
Dr. Allen noted that appellant had reported twisting her left knee as she slipped at work. He
explained that a slip, like that described by appellant, was an example of a rapid deceleration
incident combined with a rotational injury, due to twisting, which applied stress to the ACL and,
in some cases, external forces exceed the ACL’s ability to stabilize the tibia which results in a tear.
Dr. Allen opined, within a reasonable degree of medical certainty, that these identifiable stressors
applied to appellant’s left knee ACL, which resulted in a tear. He explained that these forces were
therefore the pathophysiologic process involved in causing the left knee ACL tear.
The Board finds that the report of Dr. Allen provides a probative, well-rationalized
affirmative opinion on causal relationship and is sufficient to require further development of the
medical evidence to see that justice is done.12 Dr. Allen is a Board-certified physician who is
qualified in his field of medicine to render rationalized opinions on the issue of causal relationship
and he provided a comprehensive review of the medical record and case history which is consistent
with the findings of other physicians involved in the case. It is further found that he provided a
comprehensive and convincing pathophysiological explanation as to how the mechanism of the
accepted employment incident was sufficient to cause the diagnosed condition and his opinion was
supported by medical literature and the contemporaneous diagnostic testing. Dr. Allen’s opinion
is not contested by other medical evidence of record.
The Board has long held that a physical examination is not required for a physician to
provide a probative medical opinion on the limited issue of causal relationship.13 As the medical
diagnosis had already been established by attending physicians, the Board has found that an
additional physical examination would be of no consequence and would only result in additional
delay and cost.14 It is unnecessary that the evidence of record in a case be so conclusive as to
12
D.S., Docket No. 17-1359 (issued May 3, 2019); X.V., Docket No. 18-1360 (issued April 12, 2019); C.M., Docket
No. 17-1977 (issued January 29, 2019); William J. Cantrell, 34 ECAB 1223 (1983).
13

See W.C., Docket No. 18-1386 (issued January 22, 2019); M.M., Docket No. 17-0438 (issued March 13, 2018);
C.B., Docket No. 17-0726 (issued July 3, 2017); J.R., Docket No. 13-1090 (issued October 28, 2013); Melvina
Jackson, 38 ECAB 443, 447-52 (1987) (the Board has long held that a physical examination is not required for a
physician to provide a medical opinion on the limited issue of causal relationship).
14

See Sherry Shreiber, Docket No. 04-1966 (issued January 24, 2005) (the Board held that the fact that an OWCPselected second opinion physician had not physically examined the claimant was of no consequence as the diagnosis
had already been established, and thus the only question was causal relationship).

5

suggest causal connection beyond all possible doubt. Rather, the evidence required is only that
necessary to convince the adjudicator that the conclusion drawn is rational, sound, and logical.15
Following review of Dr. Allen’s May 29, 2017 report, the Board finds that his medical opinion is
sufficient to require further development of appellant’s claim.
It is well established that proceedings under FECA are not adversarial in nature and, while
appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.16 OWCP has an obligation to see that justice is
done.17
The case will therefore be remanded to OWCP for further action consistent with this
decision of the Board. On remand, after such further development of the medical record as OWCP
deems necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for a decision.
ORDER
IT IS HEREBY ORDERED THAT the September 7, 2017 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: January 27, 2020
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

15

W.M., Docket No. 17-1244 (issued November 7, 2017); E.M., Docket No. 11-1106 (issued December 28, 2011);
Kenneth J. Deerman, 34 ECAB 641, 645 (1983) and cases cited therein).
16

A.P., Docket No. 17-0813 (issued January 3, 2018); Jimmy A. Hammons, 51 ECAB 219, 223 (1999); William J.
Cantrell, 34 ECAB 1233, 1237 (1983).
17

See B.C., Docket No. 15-1853 (issued January 19, 2016).

6

Alec J. Koromilas, dissenting,
The majority opinion finds that, although the medical report of Dr. Neil Allen was
insufficient to meet appellant’s burden of proof to establish their claim, it was sufficient to require
the Office of Workers’ Compensation Programs to further develop the medical evidence. I
disagree.
As a standard proposition, the Board has long held that the weight of medical opinion is
determined by the opportunity for thoroughness of examination, the accuracy, and completeness
of the physician’s knowledge of the facts of the case, the medical history provided, the care of
analysis manifested, and the medical rationale expressed in support of stated conclusions.1
The Federal (FECA) Procedural Manual also sets out parameters for the weighing of
medical evidence.2 It describes a comprehensive report as one which reflects that all testing and
analysis necessary to support the physician’s final conclusions were performed. OWCP’s
procedures provide that, in general, greater probative value is given to a medical opinion based on
an actual examination. An opinion based on a cursory or incomplete examination will have less
value compared to an opinion based on a more complete evaluation.3
The case at bar raises a novel constellation of facts where the appellant’s physician is
providing a causal opinion without examining the appellant. While arguably considered a treating
physician, Dr. Allen never saw in person nor physically examined appellant. He premised his
opinion solely on what he characterized as medical records that he had reviewed. Dr. Allen did
not, however, identify the records provided for his review and only referenced an MRI and X-ray
with regard to the reports on which he relied.
It is an important distinction that the medical report of Dr. Allen in this case is being used
to remand the case for further development.4 The majority finds that, although his opinion contains
insufficient medical rationale to establish the claim, it is sufficient to remand for OWCP to further
develop the claim. This is effectuated by the 30-year-old Board-created standard, which provides
that “when there is sufficient evidence to establish that the incident occurred, as alleged, but the
medical evidence was insufficiently developed to establish the component of fact of injury,
evidence submitted by appellant, which contains a history of injury, an absence of any other noted
trauma, and an opinion that the condition found was consistent with the original injury is sufficient,
given the absence of any opposing medical evidence, to require further development of the
record.”5 It could be characterized as a reduced subjective standard, which effectively shifts the
1

R.C., Docket No 14-1964 (issued January 22, 2015); Anna C. Leanza, 48 ECAB 115 (1996)

2
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.810.6(a)(4)
(September 2010).
3

Id.

4

R.H., Docket No. 17-1966 (issued March 6, 2018); John J. Carlone, 41 ECAB 354 (1989).

5

Id.

burden of proof to OWCP. This case was previously denied by OWCP based on in-person physical
examination(s), which were found to be insufficient under the same reduced standard.
Especially in this posture, I believe certain basic medical examination parameters must be
met. Dr. Allen espoused an opinion on causal relationship without the benefit of direct physical
examination or observations and based his findings on the second-hand opinion(s) of what we
believe to be other physicians. This is the type of injury that lends itself to physical examination
for the purposes of diagnosis and causation, where the physician is able to palpate the patient,
question and receive a first-hand account of the injury and compare same. This remains critical
even when the only issue is causation. I do not agree that words of causation in the ordinary course
alone can be separated from an examination of appellant by appellant’s physician.
Of course, there are occasions where a physical examination cannot be conducted, such as
when appellant is deceased. In that situation, record reviews are required and the weight of
medical reports in the first instance are weighed using the above-mentioned criteria. But those
circumstances are rare and that is inapplicable in the present case.
One could argue that this type of situation is similar to the use by OWCP of a district
medical adviser (DMA). The Board has found that the unique status of the DMA, which allows
for an advisory medical opinion without a physical examination, can be of sufficient probative
value in certain circumstances.6 I believe that there is an important distinction between a DMA as
described in Jackson and a treating physician such as Dr. Allen in this case. A treating physician
and DMA do not share the same status. DMAs have a much more defined and narrow purpose.
They are generally charged with the computations of schedule awards, the medical necessity of
requested surgeries, and other such issues that do not require an in-person examination. As well,
they operate under parameters that ensure appropriate review of the evidence, as they have the
benefit of the complete OWCP record, as well as a statement of accepted facts created by OWCP,
which they must follow for the purposes of history, knowledge, and analysis. In Dr. Allen’s
situation, there are no such safeguards.

6

Melvina Jackson, 38 ECAB 443 (1987) (regarding the importance, when assessing medical evidence, of such
factors as a physician s knowledge of the facts and medical history, and the care of analysis manifested and the medical
rationale expressed in support of the physician’s opinion).

8

If Dr. Allen had physically examined appellant, noted an in-person history, reviewed the
entire record, and made his own conclusions, I would be inclined to perhaps be satisfied with his
knowledge and understanding of the matter and agree with the majority that his opinion would be
sufficient to remand for OWCP to pay for a second opinion physician to further develop the
medical evidence. However, the majority finding in my view, without the benefit of in-person
physical examination, effectively shifts the burden of proof to OWCP to disprove the claim based
on a medical report that is of questionable probative value, leading to what I fear will be the advent
of mail order medicine.

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lincoln Park, NJ, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1106
Issued: November 2, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On April 24, 2012 appellant, through his representative, filed a timely appeal from the
February 15, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP),
which granted an additional schedule award. 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 OWCP properly determined the date of maximum medical
improvement (MMI) for appellant’s additional schedule award.
FACTUAL HISTORY
On February 13, 1993 appellant, a 40-year-old city carrier, fractured bones in his left
ankle when he slipped and fell while delivering mail. OWCP accepted his claim for left ankle
1

5 U.S.C. § 8101 et seq.

fracture and issued a schedule award for a seven percent impairment of the left lower extremity.
The period of the award was from August 16, 1996 to January 4, 1997.
Appellant later claimed an additional schedule award. Dr. David Weiss, an osteopath,
examined him on October 3, 2011 and calculated a 12 percent impairment of the left lower
extremity. He found that appellant reached MMI on that date.
An OWCP medical adviser concurred with the impairment rating. He stated, however,
that he believed MMI would be the date of the previous schedule award.
On February 15, 2012 OWCP issued a schedule award for an additional five percent
impairment of the left lower extremity, as appellant had previously received compensation for
the first seven percent of his new rating. It identified MMI as August 16, 1996. The period of
the additional schedule award was from August 16 to November 24, 1996.2
Appellant does not appeal the 12 percent impairment rating. He asks the Board to review
instead the date of MMI. Appellant cites Board precedent that MMI is usually considered the
date of the evaluation that OWCP accepts as definitive.3 Further, he argues that his condition in
1996 was far better than it is now.
LEGAL PRECEDENT
FECA authorizes the payment of schedule awards for the loss or loss of use of specified
members, organs or functions of the body.4 Such loss or loss of use is known as permanent
impairment. OWCP evaluates the degree of permanent impairment according to the standards
set forth in the specified edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment.5
Only permanent impairment may be rated according to the A.M.A., Guides, and only
after the status of MMI is determined. Impairment should not be considered permanent until a
reasonable time has passed for the healing or recovery to occur. This will depend on the nature
of underlying pathology, as the optimal duration for recovery may vary considerably from days
to months. The clinical findings must indicate that the medical condition is static and well
stabilized for the person to have reached MMI.6

2

This period overlapped that of appellant’s initial schedule award.

3

L.R., Docket No. 11-1397 (issued January 6, 2012).

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404. For impairment ratings calculated on and after May 1, 2009, OWCP should advise any
physician evaluating permanent impairment to use the sixth edition. Federal (FECA) Procedure Manual, Part 2 -Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.6.a (January 2010).
6

A.M.A., Guides 24 (6th ed. 2009); see Orlando Vivens, 42 ECAB 303 (1991) (a schedule award is not payable
until maximum medical improvement -- meaning that the physical condition of the injured member of the body has
stabilized and will not improve further -- has been reached).

2

The period covered by a schedule award commences on the date that the employee
reaches MMI from the residuals of the injury. The question of when MMI has been reached is a
factual one that depends upon the medical findings in the record. The determination of such date
is to be made in each case upon the basis of the medical evidence in that case.7 The date of MMI
is usually considered to be the date of the medical examination that determined the extent of the
impairment.8
If the claimant sustains increased impairment at a later date which is due to work-related
factors, an additional award will be payable if supported by the medical evidence. In such a
case, the original award is undisturbed and the new award has its own date of MMI, percent and
period.9
ANALYSIS
Appellant does not dispute the impairment rating he received. He contests the date the
schedule award began. The Board will therefore review whether OWCP properly determined the
date of MMI.
As the Board noted, the date of MMI is usually considered to be the date of the medical
examination that determined the extent of the impairment. That date was October 3, 2011, the
date that Dr. Weiss, the evaluating osteopath, examined appellant and determined that he had a
12 percent impairment of his left lower extremity. Further, that was the date Dr. Weiss identified
as the date of MMI.
An OWCP medical adviser who believed that the date would be the date of the previous
schedule award offered no medical rationale. The Board finds his opinion to be of little
probative value. As OWCP procedures make clear, an additional schedule award has its own
date of MMI, percent and period.
Accordingly, the Board will modify OWCP’s February 15, 2012 decision to find that
appellant reached MMI by October 3, 2011 and that the period of his additional schedule award
should begin on that date.
CONCLUSION
The Board finds that OWCP improperly determined the date of MMI for appellant’s
additional schedule award.

7

Marie J. Born, 27 ECAB 623 (1976).

8

E.g., Richard Larry Enders, 48 ECAB 184 at n.12 (1996) (date of the audiologic examination).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter
2.808.7.b(2) (January 2010).

3

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
February 15, 2012 decision is modified to reflect the date of MMI as October 3, 2011 and is
affirmed as modified.
Issued: November 2, 2012
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.N., Appellant
and
DEPARTMENT OF THE ARMY, NATIONAL
MUSEUM OF HEALTH & MEDICINE,
Silver Spring, MD, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 19-0994
Issued: November 7, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 1, 2019 appellant filed a timely appeal from an October 18, 2018 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
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish a recurrence
of disability, commencing on or after September 11, 2014, causally related to her accepted
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence on appeal. 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.

February 28, 2014 employment injury; and (2) whether appellant has met her burden of proof to
establish that the acceptance of her claim should be expanded to include additional medical
conditions causally related to her accepted February 28, 2014 employment injury.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On March 6, 2014 appellant, then a 53-year-old management analyst, filed a traumatic
injury claim (Form CA-1) alleging that on February 28, 2014 she sustained injury to her right arm
when lifting binders at work while in the performance of duty.4 OWCP accepted her claim for a
sprain of her right shoulder and upper arm.5 Appellant began performing limited-duty work on a
full-time basis on March 16, 2014, but she periodically stopped work for intermittent periods of
disability thereafter. OWCP paid her wage-loss compensation benefits for intermittent periods of
disability on the daily rolls beginning April 6, 2014.
Appellant stopped work on September 11, 2014. On October 6, 2014 she filed a notice of
recurrence (Form CA-2a) claiming a recurrence of total disability commencing September 11,
2014 due to her accepted February 28, 2014 employment injury.
By decisions dated December 11, 2014 and June 12, September 14, and December 24,
2015, OWCP denied appellant’s recurrence claim because she did not submit sufficient medical
evidence to establish a recurrence of total disability on or after September 11, 2014 causally related
to her February 28, 2014 employment injury.
Appellant submitted several reports, dated between September 18, 2014 and April 2, 2015,
from Dr. David L. Taragin, a Board-certified neurologist, who determined that she was totally
disabled due to her February 28, 2014 employment injury. Dr. Taragin indicated that she had
disability due to employment-related right upper extremity conditions of complex regional pain
syndrome (CRPS) and brachial plexopathy. In reports dated between December 17, 2014 and
May 6, 2015, Dr. Dexter W. Love, a Board-certified orthopedic surgeon, also determined that
appellant was totally disabled due to her February 28, 2014 employment injury. He diagnosed
such conditions as employment-related degenerative disc disease of the cervical spine, cervical
radiculopathy, and anterior/inferior labrum tear of the right shoulder.

3

Docket No. 16-1279 (issued November 7, 2017).

4

OWCP assigned the claim OWCP File No. xxxxxx748. In reports dated beginning in March 2014, appellant
clarified the nature of the February 28, 2014 employment incident to her attending physicians by reporting that, on
that date, a group of binders fell on her right arm when she attempted to catch them.
5

Appellant previously filed a separate claim, OWCP File No. xxxxxx834, in which she alleged that on August 31,
2011 she sustained a traumatic injury when she stepped into a hole of a loading dock floor with her left leg and fell to
the floor. OWCP administratively handled the claim and paid a limited amount of medical benefits without formally
considering the merits of the claim. Appellant also had a history of a nonindustrial cervical radiculopathy from 2008.

2

In October 2014, OWCP had referred appellant to Dr. Robert A. Smith, a Board-certified
orthopedic surgeon, for a second opinion examination. In a November 19, 2014 report, Dr. Smith
determined that she ceased to have residuals of her February 28, 2014 employment injury. He also
noted that appellant did not have clinical findings of brachial plexopathy or CRPS and that she did
not sustain a condition other than right shoulder/upper arm sprain due to her February 28, 2014
employment injury. By decision dated February 5, 2015, OWCP terminated her wage-loss
compensation and medical benefits, effective February 2, 2015, based on Dr. Smith’s
November 19, 2014 report.6
Appellant appealed the December 24, 2015 OWCP decision to the Board and, by decision
dated November 7, 2017,7 the Board set aside the December 24, 2015 decision and remanded the
case to OWCP for further development. It found that the medical reports submitted by her were
sufficient to require further development with respect to the question of whether she sustained a
recurrence of disability on or after September 11, 2014 causally related to her accepted
February 28, 2014 employment injury. The Board specified that such development should include
consideration of whether appellant sustained a condition, other than a right shoulder/upper arm
sprain, causally related to the February 28, 2014 employment injury.
On remand, OWCP requested that Dr. Smith provide a supplemental report addressing the
questions of whether appellant had disability on or after September 11, 2014 causally related to
her February 28, 2014 employment injury, and whether her claim should be expanded to include
brachial plexopathy, CRPS, or any other medical condition causally related to her February 28,
2014 employment injury.
In a March 21, 2018 report, Dr. Smith advised that he had reviewed the medical evidence
of record and indicated that, when he examined appellant in November 2014, she had no clinical
findings of brachial plexopathy or CRPS. Moreover, the findings of her electromyogram and nerve
conduction velocity testing, considered in conjunction with her normal examination findings, ruled
out the existence of brachial plexopathy. Dr. Smith also noted that there were no magnetic
resonance imaging (MRI) scans, technetium bone scans, or x-rays to support the existence of
CRPS. He advised that he had no reason to revise the conclusions of his November 19, 2014 report
with respect to appellant’s claims for disability and expansion of the accepted conditions.8
On April 30, 2018 OWCP found a conflict in the medical opinion evidence between
Dr. Smith and Dr. Taragin regarding whether appellant had disability on or after September 11,
2014 causally related to her February 28, 2014 employment injury, and whether the acceptance of
her claim should be expanded to include additional conditions causally related to her February 28,
2014 employment injury. It referred appellant to Dr. Steven L. Friedman, a Board-certified
orthopedic surgeon, for an impartial medical examination and an opinion on these matters.

6

This termination action is not currently before the Board.

7

Supra note 3.

8
In a March 21, 2018 work capacity evaluation form (OWCP-5c), Dr. Smith indicated that appellant could return
to her regular work without restrictions.

3

In a June 4, 2018 report, Dr. Friedman discussed appellant’s factual and medical history
and reported the findings of his physical examination. He noted that examination of her right
shoulder revealed no visible atrophy, deformity, warmth, or erythema. Appellant had diffuse
tenderness involving the anterior, posterior, superior, and lateral aspects of the right shoulder, but
tenderness was not well localized to any particular anatomic region.9 Dr. Friedman advised that
she suffered a relatively minor trauma on February 28, 2014 when she was holding some binders
in her right arm with her elbow flexed in a fixed position and some additional binders fell from a
shelf onto her right arm. He also indicated that, as early as 2011, there was x-ray evidence of
degenerative changes in appellant’s right shoulder. Dr. Friedman noted that her February 28, 2014
employment injury in the form of a right shoulder/upper arm sprain did render her disabled from
work at that time, but opined that she would have been totally disabled for approximately three
weeks. Dr. Friedman advised that appellant then would have been able to return to work at least
in a position that limited overhead reaching, pushing, pulling, and lifting for an additional three
weeks. He further advised that, during his examination, appellant did not exhibit objective
evidence of CRPS. Dr. Friedman noted that there was no cutaneous allodynia or abnormal pseudomotor activity. Skin temperature, texture, nail growth, hair distribution, and sweat patterns were
bilaterally symmetric.10
Dr. Friedman opined that when he conducted his physical examination there was no
objective evidence of brachial plexopathy when electrodiagnostic testing was performed.
Dr. Friedman also advised that the diagnosis of degenerative disc disease of the cervical spine was
not related to the February 28, 2014 employment injury. He maintained that there was no trauma
to the cervical spine on February 28, 2014 and advised that there was convincing diagnostic
evidence that degenerative disease of the cervical spine existed prior to February 28, 2014.
Dr. Friedman opined that the tear of the anterior/inferior glenoid labrum of appellant’s right
shoulder was not caused by the February 28, 2014 employment injury. He explained that an MRI
scan taken in March 2014 showed a degenerative labral tear, and that the mechanism of the
February 28, 2014 incident as described by her would not be consistent with a diagnosis of
traumatic anterior/inferior glenoid labial tear. Dr. Friedman maintained that anterior/inferior
glenoid labral tears occur when the arm is in a ﬂexed, abducted, and externally rotated position, or
when a violent force pushes the humerus anteriorly and inferiorly with respect to the glenoid
labrum. Therefore, Dr. Friedman concluded that she would have been able to return to work
without speciﬁc restrictions six weeks after February 28, 2014.
By decision dated July 12, 2018, OWCP found that appellant did not meet her burden of
proof to establish a recurrence of disability, commencing on or after September 11, 2014, causally
related to her accepted February 28, 2014 employment injury. It further found that she did not
meet her burden of proof to establish that the acceptance of her claim should be expanded to
include brachial plexopathy, CRPS or any other medical condition causally related to her accepted
February 28, 2014 employment injury.

Dr. Friedman also indicated that appellant had no signiﬁcant motor weakness with respect to resisted internal or
external rotation of the right shoulder. Appellant had pain with right shoulder impingement maneuvers and
examination of the cervical spine revealed that cervical extension caused right trapezial pain.
9

10

Dr. Friedman indicated that, in reviewing the medical records, he did not see any evidence of CRPS in the past.

4

Appellant requested reconsideration of the July 12, 2018 decision and argued that she
sustained more serious medical conditions related to her February 28, 2014 employment injury
than had been accepted by OWCP. She submitted a July 17, 2018 report of Dr. Love who indicated
that he had treated her since February 25, 2016. Dr. Love noted that appellant reported
experiencing chronic right shoulder pain following an injury at work on February 28, 2014. He
advised that her right shoulder condition could beneﬁt from further physical therapy, subacromial
corticosteroid injection, and, if necessary, arthroscopic repair of the rotator cuff/biceps tendon and
subacromial decompression. Dr. Love noted, “The shoulder procedures would more deﬁnitively
treat the shoulder injury sustained February 2014.”11
By decision dated October 18, 2018, OWCP denied modification of the July 12, 2018
decision.
LEGAL PRECEDENT -- ISSUES 1 & 2
An employee seeking benefits under FECA has the burden of establishing 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, that an injury was sustained in the performance of duty as alleged, and
that any specific condition and/or disability for which compensation is claimed are causally related
to the employment injury.12 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.13
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 previous
compensable injury or illness and without an intervening injury or new exposure in the work
environment.14 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.15 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

11

Appellant also submitted a number of medical reports already of record.

12
J.F., Docket No. 09-1061 (issued November 17, 2009).
December 6, 2017.

See also J.T., Docket No. 17-0578 (issued

13

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Dolores C. Ellyett, 41 ECAB 992 (1990).
14

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

15

Id.

5

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 previously injured.16
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, on the basis of 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.17 Where no such rationale is present,
the medical evidence is of diminished probative value.18
Where 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.19 The medical evidence required to establish causal
relationship between a claimed period of disability or specific condition and an employment injury
is rationalized medical opinion evidence. 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.20
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.”21 In situations where
there exist opposing medical reports of virtually equal weight and rationale and the case is referred
to an impartial medical specialist 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.22
ANALYSIS -- ISSUES 1 & 2
The Board finds that appellant has not met her burden of proof to establish a recurrence of
disability, commencing on or after September 11, 2014, causally related to her accepted
16
Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2b (June 2013); L.B., Docket
No. 18-0533 (issued August 27, 2018).
17

J.D., Docket No. 18-0616 (issued January 11, 2019); see C.C., Docket No. 18-0719 (issued November 9, 2018).

18

H.T., Docket No. 17-0209 (issued February 8, 2018).

19

C.S., Docket No. 17-1686 (issued February 5, 2019); Jaja K. Asaramo, 55 ECAB 200, 204 (2004).

20

See E.J., Docket No. 09-1481 (issued February 19, 2010).

21

5 U.S.C. § 8123(a).

22
D.M., Docket No. 18-0746 (issued November 26, 2018); R.H., 59 ECAB 382 (2008); James P. Roberts, 31 ECAB
1010 (1980).

6

February 28, 2014 employment injury. The Board further finds that she has not met her burden of
proof to establish that the acceptance of her claim should be expanded to include additional
medical conditions causally related to her accepted February 28, 2014 employment injury.
The Board finds that OWCP properly determined that a conflict existed in the medical
opinion between Dr. Taragin, an attending physician, and Dr. Smith, an OWCP referral physician,
regarding whether appellant sustained a recurrence of disability, commencing on or after
September 11, 2014, causally related to her February 28, 2014 employment injury, and whether
the acceptance of her claim should be expanded to include additional medical conditions causally
related to her February 28, 2014 employment injury. In order to resolve the conflict, OWCP
properly referred her, pursuant to section 8123(a) of FECA, to Dr. Friedman for an impartial
medical examination and an opinion on the matter.23
The Board finds that the special weight of the medical opinion evidence regarding the
above-noted issues is represented by the thorough, well-rationalized opinion of Dr. Friedman.24
The June 4, 2018 report of Dr. Friedman establishes that appellant did not sustain disability on or
after September 11, 2014 causally related to her February 28, 2014 employment injury and that
she did not sustain any condition causally related to that injury other than the accepted right
shoulder/upper arm sprain.
In his June 4, 2018 report, Dr. Friedman explained that the February 28, 2014 employment
injury was relatively minor in nature and that it was the type of injury that would have fully
resolved to the extent that appellant would have been able to return to work without speciﬁc
restrictions six weeks after February 28, 2014. He further advised that he did not see objective
evidence upon his own examination or in the medical documents of record that she ever exhibited
objective evidence of CRPS or brachial plexopathy. Dr. Friedman also opined that the diagnosis
of degenerative disc disease of the cervical spine was not related to the February 28, 2014
employment injury as there was no trauma to the cervical spine on February 28, 2014 and there
was convincing diagnostic evidence that appellant had degenerative disease of the cervical spine
prior to February 28, 2014. He maintained that the tear of the anterior/inferior glenoid labrum of
her right shoulder was not caused by the February 28, 2014 employment injury. Dr. Friedman
explained that an MRI scan taken in March 2014 showed a degenerative labral tear, and that the
mechanism of the February 28, 2014 incident as described by appellant would not be consistent
with a diagnosis of traumatic anterior/inferior glenoid labial tear.
The Board finds that Dr. Friedman’s opinion has reliability, probative value, and
convincing quality with respect to its conclusions regarding the relevant issues of the present case.
Dr. Friedman provided a thorough factual and medical history, and he accurately summarized the
relevant medical evidence. He provided medical rationale for his opinion by explaining that the
findings of record did not support disability on or after September 11, 2014 causally related to the

23

See id.

24

See id.

7

February 28, 2014 employment injury or that appellant sustained an injury other than a right
shoulder/upper arm sprain causally related to that injury.25
After OWCP denied appellant’s claims for recurrence of disability and expansion of
accepted conditions based on Dr. Friedman’s opinion, she submitted a July 17, 2018 report of
Dr. Love who indicated that her right shoulder condition could beneﬁt from further physical
therapy, subacromial corticosteroid injection, and, if necessary, arthroscopic repair of the rotator
cuff/biceps tendon and subacromial decompression. Dr. Love further indicated, “The shoulder
procedures would more deﬁnitively treat the shoulder injury sustained February 2014.” By
indicating that appellant might need surgery in the future to address her right shoulder condition
related to her February 28, 2014 employment injury, Dr. Love suggested that she sustained right
shoulder conditions related to that injury other than a right shoulder/upper arm sprain. However,
Dr. Love’s July 17, 2018 report does not establish her request to expand the accepted conditions
in that he did not provide a rationalized medical explanation for his ostensible opinion that she
sustained a more serious right shoulder condition related to her February 28, 2014 employment
injury than had already been accepted. The Board has held that a medical report is of limited
probative value on the issue of causal relationship if it contains a conclusion regarding causal
relationship which is unsupported by medical rationale.26
Accordingly, the Board finds that the special weight of the medical evidence is represented
by the impartial medical examiner Dr. Friedman and establishes that appellant did not sustain a
recurrence of disability commencing on or after September 11, 2014, causally related to her
accepted February 28, 2014 employment injury and that the acceptance of her claim should not be
expanded to include additional medical conditions causally related to the accepted February 28,
2014 employment injury. As such, 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(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a recurrence of
disability, commencing on or after September 11, 2014, causally related to her accepted
February 28, 2014 employment injury. The Board further finds that she has not met her burden of
proof to establish that the acceptance of her claim should be expanded to include additional
medical conditions causally related to her accepted February 28, 2014 employment injury.

25

See W.C., Docket No. 18-1386 (issued January 22, 2019); Melvina Jackson, 38 ECAB 443 (1987) (regarding the
importance, when assessing medical evidence, of such factors as a physician’s knowledge of the facts and medical
history, and the care of analysis manifested and the medical rationale expressed in support of the physician’s opinion).
26

Y.D., Docket No. 16-1896 (issued February 10, 2017); C.M., Docket No. 14-0088 (issued April 18, 2014).

8

ORDER
IT IS HEREBY ORDERED THAT the October 18, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 7, 2019
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bradley Beach, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 16-0327
Issued: July 6, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On December 10, 2015 appellant, through counsel, filed a timely appeal from a
September 1, 2015 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 a right knee
condition causally related to the accepted January 28, 2013 employment injury.
FACTUAL HISTORY
On January 28, 2013 appellant, then a 61-year-old customer services supervisor, filed a
traumatic injury claim (Form CA-1) alleging that on that date he sustained left hip and leg
injuries when he fell on a snowy driveway in the performance of duty. The record indicates that
1

5 U.S.C. § 8101 et seq.

appellant underwent left leg surgery on January 30, 2013. OWCP accepted the claim for a
closed fracture of the left femur. Appellant was placed on the periodic rolls and continues to
receive wage-loss compensation for total disability.
In a report dated June 7, 2012, Dr. Mark Figgie, a Board-certified orthopedic surgeon,
reported that appellant complained of left hip pain. He included a note dated November 13,
2012, indicating that appellant’s right knee had become very painful and x-rays showed bone-onbone changes in the medial compartment. Dr. Figgie reported that appellant was a candidate for
total right knee replacement surgery. In a note dated May 10, 2013, he reported that appellant
had ongoing problems with his right knee. Dr. Figgie indicated that appellant had good response
to an injection in November, but that the pain was worsening to the point he wanted to have right
knee surgery. He reported that he injected appellant’s right knee on that date because he was
bone-on-bone. An x-ray report of the right knee dated May 10, 2013, interpreted by Dr. Carolyn
Sofka, a radiologist, showed osteoarthritis of the right knee with bone-on-bone apposition in the
medial compartment with loss of normal valgus alignment.
In a report dated August 9, 2013, Dr. Mark Filippone, a Board-certified physiatrist,
provided a history and results on examination. He noted that he did not have inpatient hospital
records or diagnostic studies, but did have numerous documents provided by appellant, and
appellant presented with a complex medical history. Dr. Filippone wrote that appellant had an
arthritic right knee problem that preceded the January 28, 2013 employment injury, but “as a
result of limping on the painful hip injured in the slip and fall appellant’s right knee was now
totally destroyed.” He also indicated that appellant had a stroke on November 28, 2013.
Dr. Filippone opined, “[T]he right knee injury is an exacerbation of prior injury” and should be
accepted by OWCP.
Appellant submitted a report dated October 7, 2013 from Dr. Robert Dennis, a Boardcertified orthopedic surgeon. Dr. Dennis indicated that appellant had left hip pain and anterior
right knee pain. He provided a history and results on examination, and his diagnoses included
“aggravation and exacerbation of preexisting right knee osteoarthritis secondary to left hip/femur
injury.” Dr. Dennis wrote that the fall on ice “produced aggravation of damage of arthritic
changes” that were already present, and by “putting somewhat more stress on the right knee” this
accelerated the damage to the knee.
OWCP prepared a statement of accepted facts and referred appellant to Dr. Lawrence
Barr, an osteopath and Board-certified orthopedic surgeon. The questions posed to Dr. Barr
included whether appellant continued to have any employment-related conditions, noting that
Dr. Filippone had diagnosed appellant with a right knee injury. In a report dated December 23,
2013, Dr. Barr provided a history and results on examination. He diagnosed fractured left hip,
degenerative joint disease of the right knee, and cerebrovascular incident. Dr. Barr wrote that
“with respect to causal relationship” and the right knee, “I question causality. [Appellant] has
degenerative joint disease which predated this occurrence and there is no actual trauma to the
right knee.” Then in response to a question as to whether any conditions present were either
directly caused, aggravated, or accelerated by the January 28, 2013 injury, Dr. Barr wrote that
“[t]he right knee shows that there was an exacerbation of his underlying degenerative joint
disease.” In response to a question asking for an explanation regarding any aggravation, he

2

indicated that appellant “has degenerative joint disease of his right knee. Apparently, he had
problems with his knee prior to the work occurrence.”
In a report dated February 7, 2014, Dr. Filippone provided results on examination. He
reported that appellant remained totally disabled. By report dated March 11, 2014, Dr. Filippone
indicated that appellant remained totally disabled due to his left hip. He also noted that appellant
needed right knee replacement surgery.
By letter dated March 12, 2014, OWCP requested that Dr. Filippone provide additional
explanation with respect to the right knee condition. On April 15, 2014 it found a conflict in the
medical evidence between Dr. Filippone and Dr. Barr over whether appellant had additional
employment-related medical conditions.
OWCP selected Dr. Michael Gordon, a Board-certified orthopedic surgeon, as a referee
physician. In a report dated July 28, 2014, Dr. Gordon provided a history and results on
examination. He reviewed the medical evidence of record in detail. With respect to the right
knee, Dr. Gordon noted that both physical examination and radiographic findings indicated
advanced osteoarthritis of the right knee. He reported that review of x-rays of the right knee that
were performed both before and after the January 28, 2013 incident showed complete collapse of
the medial joint line with bone-on-bone, compatible with advanced osteoarthritic changes in the
right knee. Dr. Gordon noted the November 13, 2012 treatment report from Dr. Figgie had
reported appellant was a candidate for right total knee replacement and the surgery would be
considered sometime in the next year. An injection into the knee was done on that date. He
further noted that, based on the degree of osteoarthritis, and significant varus deformity noted on
his examination, as well as Dr. Figgie’s preaccident examination, and radiologic studies,
appellant had advanced arthritis in the right knee both before and after this accident. Dr. Gordon
noted that, while a steroid injection in the knee might provide temporary relief of symptoms, the
need for a right total knee arthroplasty was inevitable and was unrelated to the January 28, 2013
incident.
Appellant continued to submit treatment reports from Dr. Filippone. In a report dated
October 8, 2014, Dr. Filippone indicated that appellant continued to have right knee and left hip
pain. By letter dated March 20, 2015, appellant’s counsel noted that appellant had requested
authorization for total knee replacement surgery but had not received a response.
By decision dated April 8, 2015, OWCP declined to expand the claim to accept a right
knee condition. It found the weight of the medical evidence was represented by Dr. Gordon.
On April 15, 2015 appellant, through counsel, requested a hearing before an OWCP
hearing representative. A hearing was held on July 9, 2015. Appellant asserted that right knee
surgery had been put off prior to the January 28, 2013 injury, but the injury that had affected his
right knee contributed to the need for surgery.
By decision dated September 1, 2015, the hearing representative affirmed the April 8,
2015 OWCP decision, finding that the evidence of record was insufficient to establish a right
knee condition or need for surgery as employment related. She found that, referee physician,

3

Dr. Gordon provided a rationalized medical opinion that represented the weight of the medical
evidence.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for
which compensation is claimed is causally related to the employment injury.2 In order to
establish causal relationship, a physician’s opinion must be based on a complete factual and
medical background, 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 activities.3 Medical rationale is a medically sound explanation for the
opinion offered.4
With respect to consequential injuries, it is an accepted principle of workers’
compensation law that when the primary injury is shown to have arisen out of and in the course
of employment, every natural consequence that flows from the injury is deemed to arise out of
the employment, unless it is the result of an independent intervening cause which is attributable
to the employee’s own intentional conduct.5 The basic rule is that a subsequent injury, whether
an aggravation of the original injury or a new and distinct injury, is compensable if it is the direct
and natural result of a compensable primary injury.6
A claimant bears the burden of proof to establish a claim for a consequential injury.7 As
part of this burden, he or she must present rationalized medical opinion evidence, based on a
complete factual and medical background, showing causal relationship. Rationalized medical
evidence is evidence, which relates a work incident or factors of employment to a claimant’s
condition, with stated reasons of a physician. The opinion must be one of reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship of
the diagnosed condition and the specific employment factors or employment injury.8

2

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

3

Gary L. Fowler, 45 ECAB 365 (1994).

4

See Ronald D. James, Sr., Docket No. 03-1700 (issued August 27, 2003); Kenneth J. Deerman, 34 ECAB
641 (1983) (the evidence must convince the adjudicator that the conclusion drawn is rational, sound and logical).
5

Carlos A. Marrero, 50 ECAB 117, 120 (1998); 1 A. Larson, The Law of Workers’ Compensation
§ 10.01 (2002).
6

Id.

7

J.A., Docket No. 12-0603 (issued October 10, 2012).

8

Id.

4

ANALYSIS
In the present case, OWCP accepted that appellant sustained closed fracture of the left
femur when he fell on a snowy and icy driveway while delivering mail on January 28, 2013.
Appellant now seeks to expand his claim to include his right knee and the need for total knee
replacement surgery. In this regard the Board notes the medical evidence contemplates two
possible bases for causal relationship with employment: (1) that the January 28, 2013 incident
itself resulted in an aggravation of a right knee condition, or (2) that as a consequence of an
altered gait or overuse of the right leg because of the employment injury, the right knee condition
was aggravated.
The Board notes that Dr. Gordon was selected as a referee physician under 5 U.S.C.
§ 8123(a).9 For the reasons discussed below, the Board finds there was no conflict and
Dr. Gordon was a second opinion physician. As a second opinion physician, his report may
constitute the weight of the medical evidence.10
The medical evidence of record prior to the referral to Dr. Gordon was of diminished
probative value to the issue presented. Attending physician Dr. Filippone provided an opinion
on August 9, 2013 that there was an exacerbation of the right knee from the January 28, 2013
injury. He suggested this was a consequence from the “limping” due to the left leg injury,
without providing further detail. The Board notes that with respect to an opinion on aggravation
or exacerbation, the opinion must differentiate between the effects of the work-related injury or
disease and the preexisting condition.11 The physician must clearly explain the nature and extent
of any aggravation, including whether temporary or permanent.12 Dr. Filippone does not explain
specifically how the “limping” or altered gait affected the underlying condition. This is
particularly important in this case because appellant seeks right knee surgery, and the physician
should clearly explain how the employment injury contributed to the need for surgery.
Dr. Dennis provided an October 7, 2013 report in which he wrote that the January 28,
2013 incident “produced aggravation” or preexisting right knee arthritis. He does not explain
how or in what way the fall aggravated the right knee, or support his opinion with reference to
the medical history and record. Dr. Dennis then indicates there was some acceleration of the
condition by putting more stress on the right knee, without further explanation.
The initial second opinion physician, Dr. Barr, provided a December 23, 2013 report that
is also of diminished probative value to the issue presented. He wrote that he questioned
“causality” because there was preexisting degenerative changes and no direct trauma to the knee.
Then Dr. Barr asserted there was an exacerbation of the right knee condition, with no
explanation of the nature and extent of any exacerbation. In response to a question requesting
9

This section provides that when there is a disagreement between an attending physician and an OWCP
physician, a third physician is selected to make an examination.
10

Cleopatra McDougal-Saddler, 47 ECAB 480 (1996).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(e) (January 2013).

12

See R.H., Docket No. 15-1785 (issued January 29, 2016).

5

explanation as to any aggravation, he again noted that the condition was preexisting without
offering any additional explanation or rationale.
When medical reports are of diminished probative value, there is no conflict in the
medical evidence on the issue.13 In light of the diminished probative value of the evidence, there
was no conflict under 5 U.S.C. § 8123(a). As such, the referral to Dr. Gordon was as a second
opinion physician. As a second opinion physician, Dr. Gordon provided the only rationalized
medical opinion of record. He provided a detailed medical report dated July 28, 2014 and found
the right knee condition and the need for surgery was not causally related to the January 28, 2013
employment injury. Dr. Gordon noted the pertinent medical evidence of record: that prior to the
January 28, 2013 injury appellant had a severe right knee osteoarthritis as demonstrated by xrays and was considered a candidate for total knee replacement surgery. Dr. Figgie had indicated
on November 13, 2012 that x-rays showed bone-on-bone changes in the medial compartment and
appellant was a candidate for total right knee replacement surgery and that he would consider the
proposed surgery sometime in the next year. Based on the medical evidence and his examination
he came to the reasonable conclusion that the right knee condition and need for surgery were not
related to the January 28, 2013 injury.
The Board finds that Dr. Gordon represents the weight of the medical evidence. Neither
Dr. Filippone nor Dr. Dennis clearly addressed the preexisting right knee condition and explain
how either the incident or using the right leg after the injury had affected the right knee condition
and contributed to the need for surgery that was already contemplated prior to the January 28,
2013 employment injury. Thus appellant has not met his burden of proof.
On appeal, appellant’s counsel argues that Dr. Gordon did not properly resolve the issue
and did not address whether the employment injury had aggravated or accelerated the condition.
As discussed above, Dr. Gordon provided a detailed report and rationalized medical opinion that
appellant did not have an employment-related right knee injury that contributed to the need for
surgery.
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.
CONCLUSION
The Board finds that appellant has not established a right knee condition causally related
to the January 28, 2013 employment injury.

13

See Mary L. Henninger, 52 ECAB 408 (2001).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 1, 2015 is affirmed.
Issued: July 6, 2016
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

7