United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Dallas, TX, Employer
__________________________________________

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

Docket No. 06-2156
Issued: May 11, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 19, 2006 appellant filed a timely appeal of a September 20, 2005 merit
decision of the Office of Workers’ Compensation Programs which terminated his compensation.
Pursuant to 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 the Office properly terminated appellant’s compensation effective
October 30, 2004 on the grounds that he no longer had any residuals or disability causally related
to his employment-related anxiety and aggravation of essential hypertension.
FACTUAL HISTORY
On April 19, 1972 appellant, then a 35-year-old air traffic control specialist, filed an
occupational disease/traumatic injury claim. He alleged that his chronic anxiety reactions were
caused by his regular work duties. Appellant described incidents which occurred from July 1970

through March 14, 1972 where he experienced extreme tension and a rapid heart beat. On
March 17, 1972 he was medically disqualified from performing his duties as an air traffic
controller. On March 20, 1972 he was reassigned to administrative duties in the training
department. The Office accepted appellant’s claim for anxiety and aggravation of essential
hypertension and paid appropriate compensation.
The Office received a March 3, 2003 medical report from Dr. Myrna B. Tucker, an
attending Board-certified psychiatrist. On psychological examination, she reported that appellant
was very disorganized and talked a lot about the days when he worked as an air traffic controller.
Dr. Tucker found it extremely difficult to follow him. She diagnosed recurrent moderate major
depression, generalized anxiety disorder, panic disorder, post-traumatic stress disorder, psychotic
disorder not otherwise specified, alcohol abuse and personality disorder not otherwise specified.
Dr. Tucker opined that appellant was totally disabled and that his prognosis was extremely poor.
By letter dated November 13, 2003, the Office requested that Dr. Tucker review a
statement of accepted facts and answer questions regarding appellant’s emotional condition and
causal relation between his condition and his federal employment. She did not respond.
By letter dated January 27, 2004, the Office referred appellant, together with a statement
of accepted facts, the case record and a list of questions to be addressed, to Dr. Tarakumar B.
Reddy, a Board-certified psychiatrist, for a second opinion medical examination. In a
February 12, 2004 report, Dr. Reddy noted appellant’s current symptoms related to his break up
with his girlfriend about three months prior. He stated that appellant resorted to drinking six to
seven beers a day and three to four hard drinks on a daily basis. Dr. Reddy reported findings on
mental status examination and diagnosed recurrent to moderate anxiety disorder not otherwise
specified and alcohol dependence on Axis I. He stated that appellant had psychosocial problems
on Axis IV and a global assessment functioning of 65 on Axis V. Dr. Reddy deferred a
diagnosis on Axis II and indicated that appellant’s medical history represented a diagnosis on
Axis III. He opined that appellant’s emotional condition was not related to his employment
rather, it was due to personal problems for which he was self-medicating with alcohol. In an
accompanying work capacity evaluation (OWCP-5a Form), Dr. Reddy stated that appellant was
unable to work eight hours a day due to his emotional reaction to the break up with his girlfriend.
On March 4, 2004 the Office found a conflict in the medical opinion evidence between
Dr. Tucker and Dr. Reddy regarding whether appellant had continuing employment-related
residuals or disability. By letter dated April 16, 2004, it referred appellant, together with a
statement of accepted facts, the case record and a list of questions to be addressed, to Dr. Peter B.
Polatin, a Board-certified psychiatrist, for an impartial medical examination.
In a May 3, 2004 report, Dr. Polatin provided a history of appellant’s employment injury
and medical treatment. On psychological examination, he reported that appellant had mild
generalized anxiety disorder and recurrent major depressive disorder and alcohol dependence on
Axis I. On Axis II, Dr. Polatin diagnosed personality disorder not otherwise stated but with
obsessive/compulsive, negativistic, depressive disorder and schizotypal personality traits. He
opined that appellant’s anxiety disorder was more global and worsened after the break up of a
love relationship. Dr. Polatin stated that appellant’s ongoing difficulties with anxiety may be
indicative of social maladjustment and not necessarily fully related to workplace issues. He

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stated that appellant was most likely baseline as far as work motivation. Dr. Polatin indicated
that this did not mean that he could not work, but rather he did not want to work. He related that
it appeared that no meaningful motivation could be utilized other than total curbing of all
benefits to motivate appellant to focus on the workplace again.
In a supplemental report dated June 28, 2004, Dr. Polatin addressed the objective,
clinical, subjective and psychological findings. He stated that appellant experienced panic
attacks when he saw his ex-girlfriend. Appellant did not have panic attacks when he did not see
her. Dr. Polatin opined that currently there was no pervasive anxiety related to appellant’s
employment. He stated that his current work difficulties were certainly not related to his prior
federal employment. Rather, it was more likely related to his Axis II pathology. Dr. Polatin
indicated that appellant developed some level of anxiety while working as an aircraft controller
but he had not worked in that capacity for an extended period of time and still continued to have
these symptoms. He found that there currently was no causal relationship present. Dr. Polatin
further found that appellant’s emotional condition may have been aggravated by the stress of
feeling that he had caused someone’s death but this was a preexisting condition determined by
appellant’s Axis II pathology primarily with a mere exacerbation by the February 18, 1972 workrelated injury.
By letter dated September 24, 2004, the Office issued a notice of proposed termination of
compensation based on Dr. Polatin’s medical opinion. It provided 30 days in which appellant
could respond. He did not respond within the allotted time period.
In a decision dated October 29, 2004, the Office terminated appellant’s compensation
benefits effective October 30, 2004. On November 15, 2004 appellant requested an oral hearing
before an Office hearing representative.
By decision dated September 20, 2005, an Office hearing representative affirmed the
October 29, 2004 decision. The hearing representative found that Dr. Polatin’s medical opinion
as an impartial medical specialist constituted the weight of the medical evidence. The hearing
representative stated that appellant did not submit any additional medical evidence in support of
his claim of continuing employment-related residuals and disability.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation. After it has been determined that an employee has disability
causally related to his employment, the Office may not terminate compensation without
establishing that the disability had ceased or that it was no longer related to the employment.1
The Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.2

1

Jason C. Armstrong, 40 ECAB 907 (1989).

2

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

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When 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.3
ANALYSIS
The Board finds that the Office properly determined that there was a conflict in the
medical opinion evidence between Dr. Tucker, an attending physician, and Dr. Reddy, an Office
referral physician, as to whether appellant had any continuing residuals or disability causally
related to his accepted anxiety condition. Dr. Tucker opined that appellant continued to
experience residuals and total disability due to the accepted employment injuries. Dr. Reddy
opined that his emotional conditions were not causally related to his accepted employmentrelated conditions and that appellant’s inability to work was related to his emotional reaction to
the break up with his girlfriend.
The Office referred appellant to Dr. Polatin, selected as the impartial medical specialist.
In a May 3, 2004 report, Dr. Polatin found that appellant had mild generalized anxiety disorder
and recurrent major depressive disorder and alcohol dependence on Axis I. On Axis II, he
diagnosed personality disorder not otherwise stated but with obsessive/compulsive, negativistic,
depressive disorder and schizotypal personality traits. Dr. Polatin opined that appellant’s anxiety
disorder was more global and worsened after the break up of a love relationship. He further
opined that his ongoing difficulties with anxiety may be indicative of social maladjustment and
not necessarily fully related to workplace issues. Dr. Polatin stated that appellant was most
likely baseline as far as work motivation. He indicated that this did not mean that he could not
work, but rather he did not want to work. Dr. Polatin related that it appeared that no meaningful
motivation could be utilized other than total curbing of all benefits to motivate appellant to focus
on the workplace again.
In a supplemental report dated June 28, 2004, Dr. Polatin stated that appellant only
experienced panic attacks when he saw his ex-girlfriend. He opined that currently there was no
pervasive anxiety related to appellant’s employment. Dr. Polatin indicated that his current work
difficulties were certainly not related to his federal employment. Rather, it was more likely
related to his Axis II pathology. He stated that appellant developed some level of anxiety while
working as an aircraft controller but he had not worked in that capacity for an extended period of
time and still continued to have this symptom. Dr. Polatin found that there was no causal
relationship present at that time. He further found that appellant’s emotional condition may have
been aggravated by the stress of feeling that he had caused someone’s death but this was a
preexisting condition determined by appellant’s Axis II pathology primarily with a mere
exacerbation by the February 18, 1972 work-related injury.

3

James F. Weikel, 54 ECAB 660 (2003); Beverly Grimes, 54 ECAB 543 (2003); Sharyn D. Bannick, 54 ECAB
537 (2003); Daniel F. O Donnell, Jr., 54 ECAB 456 (2003); Phyllis Weinstein (Elliot H. Weinstein), 54 ECAB 360
(2003); Robert V. Disalvatore, 54 ECAB 351 (2003); Bernadine P. Taylor, 54 ECAB 336 (2003); Karen L. Yeager,
54 ECAB 317 (2003); Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002).

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The Board finds that Dr. Polatin’s opinion constitutes the special weight of the medical
evidence as it is based on a proper factual and medical background and is entitled to special
weight. Dr. Polatin found that appellant no longer had any residuals or disability due to the
accepted employment-related anxiety.
However, at the time of the October 29, 2004 and September 20, 2005 decisions, the
Office did not obtain medical evidence regarding appellant’s accepted aggravation of essential
hypertension. The Office based its decision to terminate benefits for the accepted anxiety
condition on current reports. There are no current medical reports which address the accepted
aggravation of essential hypertension. Dr. Polatin did not address the issue of whether appellant
had any continuing residuals or disability causally related to his employment-related aggravation
of essential hypertension. The Office did not develop the claim with respect to this accepted
condition.
The Office accepted appellant’s claim for aggravation of essential hypertension and the
Board finds that there is no current medical evidence of record which would establish that this
condition has resolved. Therefore, the Office improperly terminated appellant’s compensation
benefits effective October 30, 2004 with regard to his accepted aggravation of essential
hypertension.
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation effective
October 30, 2004 on the grounds that he no longer had any residuals or disability causally related
to his accepted employment-related anxiety. The Board, however, finds that the Office
improperly terminated appellant’s compensation on the grounds that he no longer had any
residuals or disability causally related to his accepted employment-related aggravation of
essential hypertension.

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ORDER
IT IS HEREBY ORDERED THAT the September 20, 2005 decision of the Office of
Workers’ Compensation Programs is affirmed with regard to the termination of compensation for
appellant’s employment-related anxiety condition and reversed regarding the termination of
compensation for his employment-related aggravation of essential hypertension condition.
Issued: May 11, 2007
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
London, KY, Employer
__________________________________________

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

Docket No. 08-2356
Issued: June 5, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On August 28, 2008 appellant filed a timely appeal from February 13 and July 23, 2008
merit decisions of the Office of Workers’ Compensation Programs’ Branch of Hearings and
Review. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the
merits of appellant’s case.
ISSUE
The issue is whether appellant has established that she was entitled to wage-loss benefits
intermittently between December 8 and 21, 2007 due to attendance at physical therapy
appointments.
FACTUAL HISTORY
Appellant, a 47-year-old rural route carrier, has an accepted occupational disease claim
(Form CA-2) for bilateral carpal tunnel syndrome. She first became aware of her condition and
its relation to her employment on December 27, 2006. Appellant underwent carpal tunnel

releases on August 7 and October 18, 2007. She returned to work for six hours a day and
received compensation for two hours a day.
Appellant submitted a medical treatment note dated November 30, 2007 from
Dr. Margaret Napolitano, a Board-certified hand surgeon, who stated that appellant was to
continue physical therapy for scar management and strengthening exercises related to bilateral
carpal tunnel release. Dr. Napolitano also stated that appellant is to attend physical therapy for
right cubital tunnel syndrome and modalities. She asserted that appellant could return to full
duty without restrictions on December 3, 2007.
Appellant filed a claim for wage-loss compensation (Form CA-7) for intermittent periods
December 8 through 21, 2007. Time analysis (CA-7a form) revealed that appellant claimed .5
hours of leave without pay (LWOP) on December 10 and .5 hours LWOP on
December 15, 2007. The record reflects that the claimed LWOP was for physical therapy.
The employing establishment controverted this wage-loss compensation claim.
Appellant submitted no additional medical evidence in support of her wage-loss
compensation claim and by letter dated January 3, 2008 the Office notified appellant that the
compensation claim forms she submitted were illegible and asked appellant to verify the actual
dates she was claiming. Additionally, the Office notified appellant that there was no medical
evidence of record to support her attendance of any medical appointments on the dates claimed.
Appellant submitted an illegible medical report signed by Dr. Napolitano, who also
submitted a work capacity evaluation, which released appellant to full duty with restrictions
concerning the amount of lifting and pulling she could perform as well as requiring she take
frequent 15-minute breaks.
Additionally, appellant submitted a physical therapy report, regarding treatment on
December 21, 2007 by Mark Lindsay, a physical therapist. The report states that she was
referred for physical therapy services with a diagnosis of left thumb carpometacarpal (CMC)
osteoarthritis.
By decision dated February 13, 2008, the Office denied appellant’s wage-loss
compensation claim. Appellant, through counsel, requested a telephonic hearing.
At the hearing appellant testified that she was not working and was receiving
compensation on the periodic rolls for a shoulder injury. The Office hearing representative
advised appellant that she needed to submit medical evidence identifying the dates of her
appointment. Appellant submitted no medical evidence concerning the actual dates of the
appointment(s) underlying her compensation claim.
By decision dated July 23, 2008, the Office’s Branch of Hearings and Review affirmed
the Office’s February 13, 2008 decision.

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LEGAL PRECEDENT
Under the Federal Employees’ Compensation Act,1 the term disability is defined as an
inability, due to an employment injury, to earn the wages the employee was receiving at the time
of the injury, i.e., an impairment resulting in loss of wage-earning capacity.2 For each period of
disability claimed, the employee has the burden of establishing that he or she was disabled for
work as a result of the accepted employment injury.3
The Board will not require the Office to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so would essentially allow an employee to self-certify his disability and
entitlement to compensation.4
Case law makes clear that an employee is entitled to disability compensation for any loss
of wages incurred during the time she receives authorized treatment and for the loss of wages for
times spent incidental to such treatment. The rationale for this entitlement is that during such
required examinations and treatment and during the time incidental to undergoing such
treatment, an employee did not receive his or her regular pay.5
ANALYSIS
The Office accepted that appellant sustained bilateral carpal tunnel syndrome in the
performance of duty. Appellant submitted a medical treatment note dated November 30, 2007
wherein Dr. Napolitano authorized appellant to continue physical therapy for scar management
and strengthening exercises related to her bilateral carpal tunnel release.
The only record pertaining to a physical therapy appointment was the physical therapy
report dated December 21, 2007 from Mark Lindsay which did not provide any details regarding
the time and length of this appointment.
The Office instructed appellant on several occasions that she would have to substantiate
the dates and times of the physical therapy appointments for which she claimed wage loss. It is
appellant’s burden of proof to establish that she actually missed time from work due to her
physical therapy appointments.6
1

5 U.S.C. §§ 8101-8193.

2

See S.F., 59 ECAB ___ (Docket No. 08-426, issued July 16, 2008); Prince E. Wallace, 52 ECAB 357 (2001).

3

Sandra D. Pruitt, 57 ECAB 126 (2005); Dennis J. Balogh, 52 ECAB 232 (2001).

4

Amelia S. Jefferson, 57 ECAB 183 (2005); Fereidoon Kharabi, 52 ECAB 291 (2001).

5

Henry Hunt Searles, III, 46 ECAB 192 (1994).

6

It is noted that, while the Office’s procedure manual provides that no more than four hours of compensation
should be allowed for routine medical appointments, longer amounts of time may be allowed when required by the
nature of the medical procedure and or/to travel a substantial distance to obtain the medical care. Federal (FECA)
Procedure Manual, Part 3 -- Medical, Administrative Matters, Chapter 3.900.8 (June 1999).

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The Board finds that appellant has not established that she was disabled between
December 8 and 21, 2007 causally related to her accepted employment injury.
CONCLUSION
The Board finds that appellant has not established that she was disabled between
December 8 and 21, 2007 causally related to her accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the July 23, 2008 decision of the Office of
Workers’ Compensation Programs’ Branch of Hearings and Review is affirmed.
Issued: June 5, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
CLEVELAND ODAR OFFICE, Cleveland, OH,
Employer
__________________________________________

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

Docket No. 16-0878
Issued: December 12, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 23, 2016 appellant, through counsel, filed a timely appeal from a February 24,
2016 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.

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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 met his burden of proof to establish a left knee injury
causally related to the accepted June 19, 2013 employment incident.
FACTUAL HISTORY
On June 26, 2013 appellant, then a 47-year-old Hearing Office Systems Administrator,
filed a traumatic injury claim (Form CA-1) alleging that on June 19, 2013 he was pushing a cart
with a personal computer tower on it when the front wheel of the cart fell off. He explained that
he twisted his left knee when he attempted to prevent the computer from falling off the cart.
Appellant stopped work on June 20, 2013 and returned to work on July 1, 2013.
Along with the claim, appellant submitted x-rays of his left knee dated June 24, 2013,
which related an impression of left knee total arthroplasty with no sign of loosening of
components or fracture, and new small left knee joint effusion.
In a June 20, 2013 report, Dr. Murray Andrew Greenwood, a Board-certified physiatrist,
indicated that appellant had a prior history of hypertension and left knee injury status post total
left knee arthroscopy, for which he was followed by Dr. Bernard N. Stulberg, a Board-certified
orthopedic surgeon. He also noted that an Ohio state workers’ compensation claim of
appellant’s settled in 2012. Dr. Greenwood advised that appellant reported left knee pain after
an incident at work. The incident was described as “pushing a four wheeled cart with IT
equipment that tipped when a wheel broke off and, as [appellant] stepped forward to block the
cart from falling, he twisted the left knee. [Appellant] was sore initially, but was swollen in left
knee by day’s end. He was unable to weight bear on the leg this morning.” Dr. Greenwood
noted that appellant had been well enough in the past year with regard to the left knee and had
not seen Dr. Stulberg. He indicated that clinical presentation and examination were consistent
with left knee effusion, possible internal derangement status post left total knee arthroplasty,
differential included hardware loosening, failure. Dr. Greenwood indicated that left knee films
showed effusion, calcification at the level of the medial femoral condyle and no evidence of
acute fracture or hardware failure. He indicated that appellant could return to sedentary work.
In an August 19, 2013 report, Dr. Stulberg, a Board-certified orthopedic surgeon,
reported that examination showed that appellant’s left knee instability was unchanged, but could
be disruption of the medial cruciate ligament (MCL). He had a modest effusion in the knee joint
and use of the brace had been somewhat helpful. An impression of sprain MCL; left knee eight
years status post revision arthroplasty left knee. Dr. Stulberg noted that if appellant’s symptoms
did not settle down over the next couple of months, a revision of the tibial insert to a varus
valgus constraint device and imbrication of the medial ligaments should be considered. In an
October 21, 2013 report, he provided an impression of persistent instability from recent MCL
sprain status post revision left total knee arthroplasty eight years ago. Dr. Stulberg indicated that
a more rigorous knee brace would be fashioned for appellant. No examination findings were
provided.

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As the employing establishment had not challenged the claim, OWCP administratively
paid limited expenses without formal review of the claim. As the medical expenses exceeded the
designated amounts, OWCP decided to formally adjudicate the claim.
In an April 13, 2015 letter, OWCP advised appellant of the deficiencies in his claim and
provided him the opportunity to submit additional factual and medical evidence. This included a
detailed narrative medical report from his treating physician which contained a history of the
injury and a medical explanation with objective evidence of how the reported work incident
caused or aggravated the claimed condition. Appellant was afforded 30 days to submit such
evidence.
In response, OWCP received an April 20, 2015 letter from counsel and additional
medical evidence, which included a February 10, 2015 x-ray report and medical reports from
Dr. Stulberg.
In a February 11, 2015 report, Dr. Stulberg noted that appellant had reinjured his left
knee in June 2014 and that the knee progressively worsened. He stated that appellant had
increasing instability and recurrent effusion in his left knee replacement aggravated by injury of
the MCL approximately 18 months prior. Left knee surgery was recommended. In an April 13,
2015 report, Dr. Stulberg stated that appellant was experiencing increasing disability related to
progressive instability of his left revision total knee arthroplasty, which was recently aggravated
by an April 8, 2015 injury3 and which had originally been aggravated by a June 6, 2013 injury.
X-rays from April 8, 2015 were reviewed and documented stable positioning of revision left total
knee arthroplasty with cemented tibial and femoral stems, slight medial lucency seen, since
radiographs of February 10, 2015, a substantially greater knee effusion could be seen.
Dr. Stulberg continued to recommend surgery. In an April 28, 2015 report, he indicated that
appellant was experiencing significant and incapacitating left knee instability with pain related to
progression of his MCL sprains which rendered his left knee replacement unstable. Dr. Stulberg
indicated that the instability could only be addressed through revision knee arthroplasty. He took
appellant off work on April 27, 2015.
By decision dated May 14, 2015, OWCP denied appellant’s claim. It found that the
medical evidence submitted failed to establish causal relationship between the claimed June 19,
2013 incident, the MCL sprain, and his need for surgery.
On May 21, 2015 OWCP received counsel’s May 20, 2015 request for a telephonic
hearing before an OWCP hearing representative. Appellant’s telephonic hearing was scheduled
and held on January 4, 2016.
New evidence received into record included operative reports dated June 5,
November 12, and December 21, 2015. The June 5 and November 12, 2015 reports indicated
that Dr. Stulberg performed a revision of appellant’s total knee arthroplasty, tibial component
only. The December 21, 2015 report indicated that Dr. Stulberg performed a cable stabilization
of proximal femoral crack and cable stabilization of the tibial fragment and bone grafting of hole
3

OWCP assigned claim number xxxxxx506 to the April 8, 2015 traumatic injury. It administratively accepted
the claim without formal review for a limited time and medical expense.

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lateral tibia and evacuation of hematoma. Postoperative diagnoses indicated stable proximal
femoral crack related to stem insertion, perforation of posterolateral tibia with stability of tibial
component, and femoral component.
In an April 28, 2015 statement, Dr. Stulberg stated that there was no question in his mind
that appellant’s knee instability was directly related to the MCL injury that occurred as a result of
a work injury on June 19, 2013. He explained that, while an MCL could generally be treated
without surgery, the MCL was critical to the functioning of a total knee replacement.
Dr. Stulberg indicated that appellant’s MCL sprain initially could be managed with bracing and
strengthening exercises, but that appellant’s MCL had stretched so that his instability had slowly
increased. He opined that this instability was significantly aggravated by the April 8, 2015
injury and surgical revision of appellant’s knee replacement was the only means to address this
instability. Dr. Stulberg concluded that appellant’s surgery should be covered under workers’
compensation, as his prior arthroplasty was working well and not showing signs of wear, up until
the June 19, 2013 injury. Appellant was kept off work.
In a December 21, 2015 report, Dr. Stulberg noted that appellant had been his patient for
over a decade. When he first saw appellant, he was having difficulty with a total knee
replacement used to treat his post-traumatic arthritis associated with his work-related injury.
Dr. Stulberg stated that this had failed on the femoral side with loosening, and a revision of all
components using cemented stemmed components was performed in 2005. After that surgery,
appellant returned to work without limitation. Dr. Stulberg stated that appellant sustained
another work-related injury on June 19, 2013, which initially appeared to be related to a sprain of
the MCL. He indicated that, in a nonarthroplasty patient, a collateral ligament injury such as that
could be treated nonoperatively. However, appellant already had two knee replacement
operations and, while they were not optimistic that the sprain could be managed nonoperatively,
they attempted to work with bracing and strengthening exercises to keep him functional without
having to proceed surgically. Dr. Stulberg indicated that, on April 8, 2015, appellant suffered an
additional twisting injury, which appeared to result in progressive medial ligament instability and
progressive instability of his knee replacement with progressive pain and functional limitations.
Eventually, operative intervention to restore medial stability was performed.
On June 5, 2015 appellant underwent a left knee revision procedure, during which it was
discovered that the source of his progressive instability was not related to the MCL disruption,
but was due to a fracture of the femoral component of his prior revision knee arthroplasty. This
occurred at the base of the stem of this device, and was related to absence of bone support of the
medial femoral condyle. As those stems had been placed in cemented fashion and an extended
period of time was required to remove retained cement within the canals of the distal femur and
proximal tibia, another reconstruction surgery was performed. An exploration of this knee was
performed on June 8, 2015, where both components were found to be stable. Stabilization cables
were placed to allow for healing of the bone around those defects. Appellant regained
ambulatory status with crutches rapidly and regained range of motion beyond his preoperative
motion within the first six weeks.
On November 12, 2015 appellant underwent revision of his tibial component and
evaluation of his femoral component fixation. During that procedure, the tibial component was
found to have micromotion of the stem. Revision consisted of implanting a new component with

4

careful repositioning of appellant’s tibial component stem. Dr. Stulberg discussed appellant’s
progress following that recent revision and indicated that they were able to improve stability and
function in his left knee joint in a manner that has restored lost bone to his knee. He opined that
appellant’s present need for revision arthroplasty in June 2015 was related to his preexisting
condition. Dr. Stulberg stated that prior documentation of MCL sprain may have been partly
incorrect in that the ultimate need for revision arthroplasty was related to mechanical failure of
his previously placed device. He stated that while he believed the diagnosis of MCL sprain that
was made related to the injury of June 19, 2013 was accurate, the on April 8, 2015 injury may in
fact have been the “final straw” in the impending failure of appellant’s mechanical device.
Dr. Stulberg stated that the major issues that needed to be addressed through his surgical
interventions were clearly related to mechanical device failure.
At the hearing, appellant testified about his knee injuries sustained from 1989 onward and
discussed his numerous surgeries. He indicated that he last worked on April 8, 2015. Appellant
described the June 19, 2013 work incident and contended, in his testimony, that this incident
caused a series of progressive problems with his left knee. He also described the April 2015
work incident. Counsel argued that appellant’s prior medical records did not need to be
submitted as he believed that Dr. Stulberg’s December 21, 2015 narrative report supported that
appellant had no other incident or accident involving his left knee until the June 19, 2013 work
incident and that it was a known fact that appellant had a history of total knee replacements.
Additional reports from Dr. Stulberg were received into the record along with copies of
the June 5 and 8, and November 12, 2015 operative reports, work excuse statements, x-rays, and
laboratory results.
Following the hearing OWCP received a June 24, 2013 report in which Dr. Stulberg
noted that, since appellant’s last visit, he had an injury at work on June 20, 2013, which resulted
in marked medial knee pain. Appellant was seen at the emergency room, where x-rays were
obtained and advised to follow up with his treating physician. Examination findings were
provided and an MCL sprain with mild-to-moderate instability following the June 20, 2013 work
injury was diagnosed. Other reports dated January 27, May 19, and August 2014 and
February 10, April 13 and 28, July 1 and 21, August 25, September 21, October 21, and
December 1, 21 and 23, 2015 from Dr. Stulberg were received and described appellant’s
progress.
In an August 25, 2015 duty status report (Form CA-17), Dr. Stulberg noted the date of
injury as April 9, 2015.
By decision dated February 24, 2016, an OWCP hearing representative affirmed the
denial of appellant’s claim. The hearing representative found that appellant failed to meet his
burden of proof to establish that his left knee condition was causally related to the June 19, 2013
work incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his claim, including the fact that the individual is an employee of the United States

5

within the meaning of FECA; that the claim was filed within the applicable time limitation; that
an injury was sustained while in the performance of duty as alleged; and that any disability
and/or specific condition for which compensation is claimed are 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 on a traumatic injury or an occupational disease.5
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components that must be considered
conjunctively. First, the employee must submit sufficient evidence to establish that he actually
experienced the employment incident that is alleged to have occurred.6 An employee has not
met his or her burden of proof in establishing the occurrence of an injury when there are such
inconsistencies in the evidence as to cast serious doubt upon the validity of the claim.7 Second,
the employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.8
The medical evidence required to establish causal relationship is generally rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medial certainty and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.9 Neither the 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.10
ANALYSIS
On June 26, 2013 appellant filed a traumatic injury claim alleging that he sustained a left
knee injury on June 19, 2013 when he tried to prevent a computer tower from falling off a cart.
OWCP accepted that the incident occurred as alleged. Appellant returned to work on July 1,
2013 with restrictions and eventually stopped work on April 8, 2015, when he sustained a

4

Joe D. Cameron, 41 ECAB 153 (1989).

5

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

6

Gary J. Watling, 52 ECAB 278 (2001).

7

S.N., Docket No. 12-1222 (issued August 23, 2013); Tia L. Love, 40 ECAB 586, 590 (1989).

8

Deborah L. Beatty, 54 ECAB 340 (2003).

9

Solomon Polen, 51 ECAB 341 (2000).

10

Dennis M. Mascarenas, 49 ECAB 215 (1997).

6

twisting injury to his left knee.11 He underwent left knee surgery on June 5, November 12, and
December 21, 2015. Appellant has not returned to work.
The Board finds that appellant has not met his burden of proof to establish a left knee
injury causally related to the June 19, 2013 work incident.
In his June 20, 2013 report, Dr. Greenwood noted a prior history of appellant’s left knee,
including that he was status post total left knee arthroscopy, for which he was followed by
Dr. Stulberg. He noted that there had been no problems with his left knee in the past year prior
to the June 19, 2013 incident. Dr. Greenwood provided an accurate description of the June 19,
2013 work incident. He listed left knee effusion and calcification at the level of the medial
femoral condyle as clinical findings and diagnosed possible internal derangement status post left
total knee arthroplasty, differential including hardware loosening, failure,12 but provided no
opinion as to the cause of the condition.13 Dr. Greenwood’s opinion is thus insufficient to
establish causal relationship.14
Numerous reports were received from Dr. Stulberg. However, his reports are of limited
probative value as he failed to explain how the June 19, 2013 work incident resulted in the
diagnosed MCL sprain of the left knee. In his first report of June 24, 2013, Dr. Stulberg reported
that appellant had an injury at work, which resulted in marked medial knee pain. While he
diagnosed an MCL sprain and had been appellant’s orthopedic surgeon for his previous left knee
replacement eight years ago, he failed to describe the mechanism of the June 19, 2013 work
injury, which would have resulted in appellant’s mild-to-moderate instability and in disruption of
the MCL. In his subsequent reports of August 19 and October 21, 2013, Dr. Stulberg failed to
mention the June 19, 2013 work incident. In his February 11, 2015 report, he reported that
appellant had reinjured his left knee in June 2013, he simply did not provide a clear history of
appellant’s June 19, 2013 incident and did not explain the medical process as to how this
incident could have caused his left knee condition.15
In his April 13, 2015 report, Dr. Stulberg reported that appellant’s increasing disability
related to progressive instability of his left revision total knee arthroplasty, which had been
initially aggravated by the June 19, 2013 incident and was recently aggravated by an April 8,
2015 work injury. This subsequent injury would break the chain of causation from the June 19,
2013 injury.16

11

See supra note 2.

12

Dr. Greenwood indicated that appellant may return to work with seated job tasks and noted that he was to see
his surgeon next week.
13

See T.P., Docket No. 14-1946 (issued February 13, 2015).

14

See D.R., Docket No. 16-0528 (issued August 24, 2016).

15

Id.

16

See C.D., Docket No. 10-1698 (issued April 12, 2011).

7

In his April 28, 2014 report, Dr. Stulberg explained that in face of appellant’s prior knee
replacement surgery, his MCL had stretched so that his instability slowly increased and was
significantly aggravated by the April 8, 2015 injury. While he opined that appellant’s surgery
should be covered under workers’ compensation as his prior arthroplasty was working well and
not showing signs of wear until the June 19, 2013 injury, he failed to provide sufficient medical
rationale explaining the basis of his conclusion/opinion regarding the causal relationship between
appellant’s diagnosed conditions and the need for surgery. Dr. Stulberg did not provide a clear
discussion as to how the June 19, 2013 incident resulted in the diagnosed MCL sprain of the left
knee, and if in fact the work incident would have caused the stretching of appellant’s MCL,
which led to further instability. A mere conclusion without the necessary rationale explaining
why the physician believes that a claimant’s accepted exposure resulted in a diagnosed condition
is not sufficient.17
In his December 21, 2015 report, Dr. Stulberg provided a detailed account of appellant’s
2005 total knee replacement and indicated that appellant’s June 19, 2013 alleged work injury
initially appeared to be related to an MCL sprain. However, he again failed to provide a
description of the June 19, 2013 work incident or any medical rationale regarding the mechanism
of the alleged injury. In addition, Dr. Stulberg indicated that, during appellant’s revision surgery
on June 5, 2015, he discovered that the source of appellant’s progressive instability was not
related to MCL disruption, but it was related to a fracture of the femoral component of
appellant’s preexisting revision knee arthroplasty. Specifically, he stated that appellant’s
persistent pain was felt to be related to incomplete anchorage of his tibial component. This
report negates the relationship Dr. Stulberg previously attributed to the June 19, 2013 MCL
disruption.
Dr. Stulberg never described in any of his reports the mechanism of the June 19, 2013
incident nor the medical process of how that work incident would have caused the MCL
diagnosis. Furthermore, he does not describe appellant’s preexisting history of left knee injuries
dating back to the 1980’s which, according to appellant’s testimony resulted in numerous left
knee surgeries, a total knee replacement, and several years of disability. Dr. Stulberg only
mentioned appellant’s total knee replacement from 2005. The opinion of a physician supporting
causal relationship must rest on a complete factual and medical background supported by
affirmative evidence, address the specific factual and medical evidence of record, and provide
medical rationale explaining the nature of the relationship between the diagnosed condition and
the established incident or factor of employment.18 The Board finds that the medical reports of
Dr. Stulberg are insufficient to meet appellant’s burden of proof.
The additional medical evidence submitted, which includes x-ray reports, are of limited
probative value as they fail to offer a medical opinion as to how the reported work incident
17

See S.S., 59 ECAB 315 (2008) (medical reports not containing rationale on causal relation are entitled to little
probative value and are generally insufficient to meet an employee’s burden of proof); Beverly A. Spencer, 55
ECAB 501 (2004) (a mere conclusion without the necessary medical rationale explaining how and why the
physician believes that a claimant’s accepted exposure could result in a diagnosed condition is not sufficient to meet
the claimant’s burden of proof).
18

See Roy L. Humphrey, 57 ECAB 238 (2005); Lee R. Haywood, 48 ECAB 145 (1996).

8

caused or aggravated a medical condition. The Board has held that medical evidence which does
not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship.19 A medical opinion is especially needed in this case as
the record reflects appellant has preexisting knee conditions. Thus, these reports are insufficient
to establish appellant’s claim.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s conditions became apparent during a period of employment nor
the belief that his condition was caused, precipitated, or aggravated by his employment is
sufficient to establish causal relationship.20 Causal relationship must be established by
rationalized medical opinion evidence and he failed to submit such evidence.
OWCP advised appellant to provide a comprehensive medical report which described his
symptoms, test results, diagnosis, treatment, and the physician’s opinion, with medical reasons,
on the cause of his condition. Appellant failed to submit appropriate medical documentation in
response to OWCP’s request. As there is no probative, rationalized medical evidence addressing
how his claimed left knee condition was caused, or aggravated by the June 19, 2013 employment
incident, he has not met his burden of proof to establish that he sustained an injury causally
related to factors of his federal employment.
On appeal, counsel contends that the February 24, 2016 decision is contrary to fact and
law. As discussed above, appellant has not established a causal relationship between the
June 19, 2013 work incident and his diagnosed conditions and 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 did not meet his burden of proof to establish a left knee
injury causally related to the accepted June 19, 2013 employment incident.

19

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006).
20

See D.U., Docket No. 10-144 (issued July 27, 2010); D.I., 59 ECAB 158 (2007); Robert Broome, 55 ECAB 39
(2004); Anna C. Leanza, 48 ECAB 115 (1996).

9

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 24, 2016 is affirmed.
Issued: December 12, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.K., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
Bellingham, WA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-1888
Issued: April 10, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 2, 2007 appellant filed a timely appeal from a merit decision of the Office of
Workers’ Compensation Programs’ decision dated June 29, 2007 and nonmerit decisions dated
May 3 and June 26, 2007. Under 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUES
The issues are: (1) whether appellant was entitled to compensation between April 29,
2005 and May 1, 2007 causally related to her federal employment; (2) whether the Office
properly determined that appellant’s request for reconsideration was untimely filed and did not
demonstrate clear evidence of error; and (3) whether the Office properly denied appellant’s
request for an oral hearing before an Office hearing representative.

FACTUAL HISTORY
On November 8, 2003 appellant, a 50-year-old transportation security screener, sustained
injury to her lower left back while lifting luggage. She filed a claim for benefits, which the Office
accepted for a lumbar strain.
In a report dated April 2, 2004, Dr. David L. Goldman, Board-certified in neurosurgery,
noted the history of injury and stated findings on examination. In addition to her low back
symptoms, appellant experience neck pain and stiffness since the November 2003 work injury.
Dr. Goldman related appellant’s belief that she sustained both a cervical strain and a lumbar strain
as a result of the November 2003 incident. He noted that a magnetic resonance imaging (MRI)
scan raised the possibility of a severe cervical strain and cervical myelopathy. In a May 7, 2004
report, Dr. Goldman stated:
“[Appellant] is a 50-year[-]old woman who works for [the employing
establishment] as a screener and her job requires repetitive lifting and moving of
luggage. She reported that she was not having problems with back pain or lumbar
radicular pain until a work-related accident that occurred on November 8, 2003....
[Appellant] was subsequently treated for a lumbar strain.... Following this injury,
she also had a progression of neck pain and stiffness.”
Dr. Goldman noted that an MRI scan showed severe spinal stenosis at C5-6 associated with
flattening of the spinal cord and bilateral C6 neural foraminal narrowing. He diagnosed cervical
myeloradiculopathy and recommended surgery. Dr. Goldman performed a cervical discectomy
and fusion procedure on appellant to ameliorate her condition of cervical myeloradiculopathy on
May 8, 2004.
In a report dated May 23, 2004, Dr. John H. Weaver diagnosed lumbar radiculopathy. He
noted Dr. Goldman’s opinion that appellant had injured her neck during the same incident in which
she injured her lower back.
In a May 27, 2004 letter to the Office, appellant requested that her claim be expanded to
include her cervical condition.
By decision dated August 11, 2004, the Office denied appellant’s claim, finding that the
medical evidence was insufficient to establish that her cervical condition was causally related to
the November 8, 2003 employment injury. The Office noted that none of the medical reports
contemporaneous with the November 8, 2003 injury indicated that appellant had sustained a
cervical strain on that date.
On April 6, 2007 appellant requested an oral hearing.
By decision dated May 3, 2007, the Office denied appellant’s request for an oral hearing.
The Branch of Hearings and Review found that appellant’s request was postmarked April 6,
2007, which was more than 30 days after the issuance of the Office’s August 11, 2004 decision.
Therefore, appellant was not entitled to a hearing as a matter of right. The Office nonetheless
considered the matter in relation to the issue involved and denied appellant’s request on the

2

grounds that the issue was factual and medical in nature and could be addressed through the
reconsideration process by submitting additional evidence.
Appellant submitted a May 5, 2007 Form CA-7 requesting compensation for wage loss for
April 28, 2005 to May 1, 2007. She submitted a May 11, 2005 report from Dr. Weaver, who
stated that appellant was unable to perform her job as airport screener due to neck and lower
back pain which was 100 percent progressive since November 2003. In a November 7, 2006
report, Dr. David E. Baker, Board-certified in neurological surgery, stated:
“[T]his is a fifty-three-year old female who sustained an on-the-job injury on
November 8, 2003. [Appellant] was lifting heavy bags. She injured both her
neck and lower back. The patient underwent conservative treatment for her back
injury. [Appellant] had an MRI scan after the injury, which showed evidence of
diffuse degenerative changes through to the lumbar spine without evidence of
significant lateral recess of foraminal narrowing. The only abnormality was
moderate L4-5 lateral recess and anterior neural foraminal stenosis. Patient has
had chronic back and right radicular symptoms. She subsequently retired on
April 14, 2005. In the interval, she underwent an anterior cervical dis[c]ectomy
and fusion on May 7, 2004 and was able to return back to work activities.”
Dr. Baker stated that on examination appellant showed no percussive tenderness along
the posterior cervical, thoracic or lumbar spine. He noted that his examination of the head and
neck region was atraumatic and normocephalic. Dr. Baker diagnosed lower back and right leg
pain, most consistent with L4 radiculopathy, secondary to far lateral intraforaminal disc
herniation at L4-5.
By letter dated May 3, 2007, the Office asked appellant to submit additional medical
evidence to support disability for the period claimed.
In a memorandum dated November 23, 2005, received by the Office on June 4, 2007, the
employing establishment indicated that its Disciplinary Review Board had formally removed
appellant as of April 29, 2005 due to her failure to pass an annual recertification requirement as a
screener.
On June 15, 2007 appellant requested reconsideration of the August 11, 2004 decision.
She submitted a March 7, 2007 report from Dr. Goldman, who stated:
“I was asked by [appellant] to explain the relationship of cervical myelopathy to
complaints of back pain. I would like to point out that I very carefully
documented this patient’s history in her initial consultation from April 2, 2004. I
reported that she injured her neck and back performing heavy lifting, in moving
luggage, as part of her job. She sustained both a cervical and lumbar strain injury
from this work[-]related accident on November 8, 2003 on a more probable than
not basis and this was documented in her original consultation.
“The patient became very focused on her back pain because she has severe
lumbar spasms. However she was also having problems of bladder sensitivity at
the same time. The lumbar spasms and bladder spasticity were caused by her
3

cervical myelopathy. Pressure on the spinal cord can cause spasms of the lumbar
spine, bladder spasticity, as well as dysesthesias in the lower extremities. The
patient had all of these problems. She had a preexisting narrow canal. This was
not caused by the accident. This was caused by the normal wear and tear of
aging. The work injury caused a tightening of the musculature of the neck, which
reduces the space within the canal by bunching together the ligamentous
structures, which then causes pressure on the spinal cord, swelling of the spinal
cord and a progression of the symptoms of cord compression.
“It should be noted that the cervical strain caused by [appellant’s] work-related
injury on November 8, 2003 caused the cervical cord compression and caused her
symptoms of bladder spasticity and lumbar spasms. It is for this reason that the
strain injury to the neck causes the cord compression on a more probable than not
basis. It is not unusual for this to present primarily as low back pain, muscle
spasms and bladder spasticity. [Appellant] was initially categorized as primarily a
back injury and this categorization was a mistake, an error, caused by the
physicians who initially evaluated her. When [she] was seen in my office she was
being evaluated by a neurosurgeon, someone with expertise to correctly
categorize her as a combination of a neck injury and a low back injury.
“It is my professional opinion that [appellant] had a neck injury caused by her
work accident and that this work injury should be covered. It is my feeling that
[the original physicians] made a mistake by categorizing her injury as strictly a
low back injury.”
In a May 2, 2007 report, Dr. Weaver stated that appellant had complaints of neck pain in
the shoulder blades, radiating down to both arms and her fingers. He reiterated the diagnoses of
lumbar and cervical radiculopathy. In a December 27, 2006 report, Dr. Sanford J. Wright,
Board-certified in neurological surgery, reviewed the history of injury and listed findings on
examination. He indicated that appellant was experiencing chronic low back and neck pain.
Dr. Wright stated that cervical MRI scan results from May 17, 2006 showed cervical
spondylosis, but no critical stenosis. He opined that appellant did not have any severe
neurological deficit in the lower extremities.
In reports dated April 5 and 12, 2007, Dr. Peter W. Ambrose, Board-certified in
preventive medicine, diagnosed low back pain, cervical spine strain, residual right L5 neuropathy
with paresthesias in her right leg and numbness in her right calf. In a May 7, 2007 report, he
listed the history of injury and noted that appellant had underwent cervical discectomy.
Dr. Ambrose indicated that appellant continued to have low back pain. In a Form CA-20 dated
June 11, 2007, he found that appellant had an extruded disc at L4-5 as shown by MRI scan and
chronic pain. Dr. Ambrose checked a box indicating that he believed the condition found was
caused or aggravated by lifting baggage at work. Appellant also submitted a lumbar MRI scan
which diagnosed multilevel degenerative disc disease, spondylosis and facet arthropathy, with
encroachment on the L4 nerve root due to asymmetric disc protrusion.

4

By decision dated June 26, 2007, the Office denied appellant’s request for
reconsideration without a merit review, finding she had not timely requested reconsideration and
failed to submit evidence sufficient to establish clear evidence of error.
By decision dated June 29, 2007, the Office denied appellant’s claim for compensation
based on wage loss for the period April 29, 2005 until May 1, 2007. The Office found that
appellant failed to submit medical evidence to support that she was disabled due to residuals of her
accepted injury. The Office noted that the employing establishment had terminated appellant on
April 29, 2005 due to her failure to pass an annual recertification requirement as a screener.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing that the essential elements of his or her claim by the weight of the
evidence.2 Under the Act, the term disability is defined as an inability, due to an employment
injury, to earn the wages the employee was receiving at the time of injury, i.e., an impairment
resulting in loss of wage-earning capacity.3 For each period of disability claimed, the employee
has the burden of establishing that he or she was disabled for work as a result of the accepted
employment injury.4 Whether a particular injury causes an employee to become disabled for
work and the duration of that disability are medical issues that must be proved by a
preponderance of probative and reliable medical opinion evidence.5 The fact that a condition
manifests itself during a period of employment does not raise an inference that there is a causal
relationship between the two.6 The Board will not require the Office to pay compensation for
disability in the absence of medical evidence directly addressing the specific dates of disability
for which compensation is claimed. To do so would essentially allow an employee to self-certify
his disability and entitlement to compensation.7
ANALYSIS -- ISSUE 1
Appellant submitted a Form CA-7, claim for compensation, for the period April 29, 2005
and May 1, 2007. She has the burden of establishing by the weight of the substantial, reliable
and probative evidence, a causal relationship between her disability commencing April 29, 2005
and the accepted employment-related injury. This burden includes providing medical evidence
from a physician who concludes that the disabling condition is causally related to employment
1

5 U.S.C. §§ 8101-8193.

2

Joe D. Cameron, 41 ECAB 153 (1989).

3

See Prince E. Wallace, 52 ECAB 357 (2001).

4

Dennis J. Balogh, 52 ECAB 232 (2001).

5

Gary L. Watling, 52 ECAB 278 (2001).

6

Manual Garcia, 37 ECAB 767 (1986).

7

Amelia S. Jefferson, 57 ECAB ___ (Docket No. 04-568, issued October 26, 2005); Fereidoon Kharabi, 52
ECAB 291 (2001).

5

factors and supports that conclusion with sound medical reasoning.8 The Office properly denied
compensation because appellant failed to provide sufficient medical evidence to support that she
was disabled due to residuals of her accepted lumbar strain.
Dr. Weaver’s May 11, 2005 report noted that appellant was unable to perform her job as
airport screener due to neck and lower back pain which was 100 percent progressive since
November 2003. Dr. Baker’s November 7, 2006 report noted MRI scan results, stated findings
on examination, and indicated that appellant had experienced chronic back and right radicular
symptoms and lower back and right leg pain. These reports, however, did not provide probative,
rationalized medical opinion explaining how appellant was disabled due to her accepted lumbar
condition.9 The Board notes that the Office did not accept that appellant’s cervical condition was
caused or contributed to by her injury of November 8, 2003.
The reports of the physicians of record are of limited probative value as they do not
address how appellant’s claimed cervical condition was related to the accepted injury.10 The
Office noted that the medical evidence contemporaneous to the injury did not list any cervical
complaints. In turn, Dr. Goldman did not treat appellant until April 2, 2004, five months
following the injury. Causal relationship must be established by rationalized medical opinion
evidence based on an accurate history. Appellant has failed to submit such evidence.
The Board notes that appellant was terminated from her job as screener on
April 29, 2005. The Board has held that an employee is not disabled within the meaning of the
Act where there is no evidence that she was terminated due to her physical inability to perform
her assigned duties. There is no evidence that appellant stopped work due to residuals of her
accepted lumbar strain.11 Appellant has not met her burden of proof in this regard.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated or aggravated by her employment is
sufficient to establish causal relationship.12 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
Consequently, appellant has not met her burden of proof, as she failed to establish that she
sustained any employment-related disability between April 29, 2005 and May 5, 2007. The
Board affirms the Office’s June 29, 2007 decision, as appellant failed to provide medical evidence
establishing that she sustained disability causing wage loss for the periods claimed.

8

See Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

9

William C. Thomas, 45 ECAB 591 (1994).

10

Id.

11

Major W. Jefferson, III, 47 ECAB 295 (1996).

12

Id.

6

LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of the Act13 does not entitle an employee to a review of an Office
decision as a matter of right.14 This section, vesting the Office with discretionary authority to
determine whether it will review an award for or against compensation, provides:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may-(1) end, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”
The Office, through its regulations, has imposed limitations on the exercise of its
discretionary authority under 5 U.S.C. § 8128(a).15 As one such limitation, the Office has stated
that it will not review a decision denying or terminating a benefit unless the application for
review is filed within one year of the date of that decision.16 The Board has found that the
imposition of this one-year time limitation does not constitute an abuse of the discretionary
authority granted by the Office granted under 5 U.S.C. § 8128(a).17
In those cases where a request for reconsideration is not timely filed, the Board had held
however that the Office must nevertheless undertake a limited review of the case to determine
whether there is clear evidence of error pursuant to the untimely request.18 Office procedures
state that the Office will reopen an appellant’s case for merit review, notwithstanding the oneyear filing limitation set forth in 20 C.F.R. § 10.607(b), if the appellant’s application for review
shows “clear evidence of error” on the part of the Office.19
To establish clear evidence of error, an appellant must submit evidence relevant to the
issue which was decided by the Office.20 The evidence must be positive, precise and explicit and
13

5 U.S.C. § 8128(a).

14

Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989), petition for recon. denied,
41 ECAB 458 (1990).
15

Thus, although it is a matter of discretion on the part of the Office whether to review an award for or against
payment of compensation, the Office has stated that a claimant may obtain review of the merits of a claim by
(1) showing that the Office erroneously applied or interpreted a point of law, or (2) advances a relevant legal
argument not previously considered by the Office, or (3) constituting relevant and pertinent new evidence not
previously considered by the Office. See 20 C.F.R. § 10.606(b).
16

20 C.F.R. § 10.607(b).

17

See cases cited supra note 2.

18

Rex L. Weaver, 44 ECAB 535 (1993).

19

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b) (May 1991).

20

See Dean D. Beets, 43 ECAB 1153 (1992).

7

must be manifested on its face that the Office committed an error.21 Evidence which does not
raise a substantial question concerning the correctness of the Office’s decision is insufficient to
establish clear evidence of error.22 It is not enough merely to show that the evidence could be
construed so as to produce a contrary conclusion.23 This entails a limited review by the Office of
how the evidence submitted with the reconsideration request bears on the evidence previously of
record and whether the new evidence demonstrates clear error on the part of the Office.24 To
show clear evidence of error, the evidence submitted must not only be of sufficient probative
value to create a conflict in medical opinion or establish a clear procedural error, but must be of
sufficient probative value to prima facie shift the weight of the evidence in favor of the claimant
and raise a substantial question as to the correctness of the Office’s decision.25 The Board makes
an independent determination of whether an appellant has submitted clear evidence of error on
the part of the Office such that the Office abused its discretion in denying merit review in the
face of such evidence.26
ANALYSIS -- ISSUE 2
The Board finds that the Office properly determined in this case that appellant failed to
file a timely application for review. The Office issued its most recent merit decision in this case
on August 11, 2004. Appellant requested reconsideration on June 15, 2007; thus, appellant’s
reconsideration request is untimely as it was outside the one-year time limit.
The Board notes that a claimant must submit both a timely request for reconsideration
and new and relevant medical evidence within one year of the most recent merit decision of the
Office.27
The Board finds that appellant’s June 15, 2007 request for reconsideration failed to
establish clear evidence of error. The medical reports appellant submitted from Drs. Goldman,
Weaver, Ambrose and Wright indicated that appellant had findings and symptoms of cervical
radiculopathy and cervical myelopathy subsequent to her November 2003 work injury. While
these reports did provide reasoned medical opinion on the relevant issue of whether appellant’s
claimed cervical condition was causally related to the November 8, 2003 accepted lumbar strain
injury, they do not constitute medical evidence, manifest on its face, which establishes that the
Office committed an error. The reports appellant submitted, therefore, do not contain sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of the Office’s August 11, 2004 decision.
21

See Leona N. Travis, 43 ECAB 227 (1991).

22

See Jesus D. Sanchez, supra note 14.

23

See Leona N. Travis, supra note 21.

24

See Nelson T. Thompson, 43 ECAB 919 (1992).

25

Leon D. Faidley, supra note 14.

26

Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458 (1990).

27

See Richard J. Chabot, 43 ECAB 357 (1991).

8

Consequently, they are insufficient to establish clear evidence of error. In addition, the June 11,
2007 Form CA-20 from Dr. Ambrose which stated findings regarding appellant’s low back
condition is of limited probative value as it did not provide a reasoned medical opinion on the
relevant issue of whether appellant’s claimed cervical condition was causally related to the
November 8, 2003 accepted lumbar strain injury.28 Appellant also resubmitted a number of
reports which were previously considered by the Office in the August 11, 2004 decision; these
reports are cumulative and repetitive of reports previously rejected by the Office. No other
evidence was received by the Office.
The Office reviewed the evidence appellant submitted and properly found it to be
insufficient to prima facie shift the weight of the evidence in favor of appellant. Consequently,
the evidence submitted by appellant on reconsideration is insufficient to establish clear evidence
of error on the part of the Office such that the Office abused its discretion in denying merit
review. The Board finds that the Office did not abuse its discretion in denying further merit
review.
LEGAL PRECEDENT -- ISSUE 3
Section 8124(b)(1) of the Act provides that a claimant is entitled to a hearing before an
Office representative when a request is made within 30 days after issuance of and Office’s final
decision.29 A claimant is not entitled to a hearing if the request is not made within 30 days of the
date of issuance of the decision as determined by the postmark of the request.30 The Office has
discretion, however, to grant or deny a request that is made after this 30-day period.31 In such a
case, the Office will determine whether a discretionary hearing should be granted or, if not, will
so advise the claimant with reasons.32
ANALYSIS -- ISSUE 3
In the present case, because appellant’s April 6, 2007 request for a hearing was
postmarked more than 30 days after the Office’s August 11, 2004 decision denying
compensation for a claimed cervical condition, she is not entitled to a hearing as a matter of
right. The Office considered whether to grant a discretionary hearing and correctly advised
appellant that he could pursue her claim through the reconsideration process. As appellant may
address the issue in this case by submitting to the Office new and relevant evidence with a
request for reconsideration, the Board finds that the Office properly exercised its discretion in
denying appellant’s request for a hearing. The Board therefore affirms the Office’s May 7, 2007
decision denying appellant an oral hearing by an Office hearing representative.
28

The Board notes that form reports which support causal relationship with a checkmark are insufficient to
establish the claim. The Board has held that without further explanation or rationale, a checked box is not sufficient
to establish causation. Debra S. King, 44 ECAB 203 (1992); Salvatore Dante Roscello, 31 ECAB 247 (1979).
29

5 U.S.C. § 8124(b)(1).

30

20 C.F.R. § 10.131(a)(b).

31

William E. Seare, 47 ECAB 663 (1996).

32

Id.

9

CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
was entitled to compensation for wage loss from April 29, 2005 and May 1, 2007 causally
related to her federal employment. The Board finds that appellant has failed to submit evidence
establishing clear error on the part of the Office in her reconsideration request dated
June 15, 2007. Inasmuch as appellant’s reconsideration request was untimely filed and failed to
establish clear evidence of error, the Office properly denied further review on June 26, 2007.
The Board finds the Office properly denied appellant’s request for an oral hearing before an
Office hearing representative.
ORDER
IT IS HEREBY ORDERED THAT the June 29 and 26, and May 3, 2007 decisions of
the Office of Workers’ Compensation Programs’ be affirmed.
Issued: April 10, 2008
Washington, DC

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

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

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Ann Arbor, MI, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 10-2015
Issued: April 15, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 3, 2010 appellant, through her attorney, filed a timely appeal of a May 28,
2010 nonmerit decision of the Office of Workers Compensation Programs denying her request
for reconsideration. Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the May 28, 2010 decision. The Board
does not have jurisdiction over the decision on the merits of the claim.2
ISSUE
The issue is whether the Office properly denied appellant’s request for further review of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
1
2

5 U.S.C. § 8101 et seq.

The most recent merit decision was a Board decision dated January 27, 2010. The Board has jurisdiction over
final decisions of the Office. See 20 C.F.R. § 501.2(c). For Office decisions issued prior to November 19, 2008, a
claimant had one year to file an appeal. An appeal of Office decisions issued on or after November 19, 2008 must
be filed within 180 days of the decision. 20 C.F.R. § 501.3(e) (2008).

FACTUAL HISTORY
This case has previously been before the Board.3 In a January 27, 2010 decision, the
Board affirmed the Office’s April 21, 2009 decision finding that appellant did not meet her
burden of proof to establish that she sustained an injury in the performance of duty on
June 10, 2008.4 The Board found that the Office properly determined that appellant had not
established the occurrence of an employment incident on June 10, 2008. There were such
inconsistencies in the record as to cast doubt on the validity of appellant’s claim and her account
of the injury was refuted by strong and persuasive evidence, including late reporting to the
employing establishment and medical personnel. It was noted that she did not file her claim until
more than a month and a half after the claimed June 10, 2008 injury, at which point she had
received a July 3, 2008 notification of a proposed removal action for cause; that she did not seek
medical attention for the claimed injury until August 27, 2008 when she saw Dr. Alexandra
Theisen, an attending physical medicine and rehabilitation physician; and that she continued to
work regular duty from the date of the claimed injury until she stopped work over a month later
on July 19, 2008.
In a February 1, 2010 letter, appellant requested reconsideration of the denial of her claim
that she sustained an injury in the performance of duty on June 10, 2008. She stated that she did
not report her claimed June 10, 2008 injury due to fear of termination and asserted that her visit
to Dr. Theisen was delayed due to being a “new patient.” Appellant took issue with
Dr. Theisen’s comments that she was a poor historian and was uncertain how honest she was
about her mediation intake. She claimed that she had not received a July 3, 2008 notification of
a proposed removal action for cause, but rather that a patient’s wife had complained about her
and that she had to work in the library while the complaint was being investigated. After she
began working in the library, appellant decided that she needed to submit the claim as she could
not complete her work tasks without medication. She contended that coworkers entered the
room immediately after the June 10, 2008 accident occurred and saw that she was bent over and
unable to stand. Appellant asserted that witness statements were not provided because the
coworkers feared harassment and termination. She indicated that Tisha Martin was her
immediate supervisor, rather than Tracie Sockow, and asserted that Ms. Martin harassed her by
falsely charging her with failing to properly care for a patient.
In a May 28, 2010 decision, the Office denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).

3

Docket No. 09-1475 (issued January 27, 2010).

4

On July 31, 2008 appellant, then a 52-year-old practical nurse, filed a traumatic injury claim alleging that on
June 10, 2008 she sustained injury to her back and legs while assisting a patient who had fallen onto one knee. She
stated that she told the patient that he should stand on the count of three, but he sat on the floor when she attempted
to lift him.

2

LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the Act,5
the Office regulations provide that the evidence or argument submitted by a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.6 To be entitled to a merit
review of an Office decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.7 When a claimant fails to
meet one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.8 The Board has held that the submission of evidence
or argument which repeats or duplicates evidence or argument already in the case record9 and the
submission of evidence or argument which does not address the particular issue involved does not
constitute a basis for reopening a case.10 While a reopening of a case may be predicated solely on
a legal premise not previously considered, such reopening is not required where the legal
contention does not have a reasonable color of validity.11
ANALYSIS
In an April 21, 2009 decision, the Office found that appellant did not meet her burden of
proof to establish that she sustained an injury in the performance of duty because she did not
establish the occurrence of the alleged June 10, 2008 employment incident. It was found that
such inconsistencies in the record as to cast doubt on the validity of appellant’s claim and that
her account was refuted by strong and persuasive evidence, including late reporting to the
employing establishment and medical personnel. In a January 27, 2010 decision, the Board
affirmed the Office’s April 21, 2009 decision. Appellant requested reconsideration of her claim
in a February 1, 2010 letter.
As noted, the Board does not have jurisdiction over the merits of the present case. The
issue presented on appeal is whether appellant met any of the requirements of 20 C.F.R.
§ 10.606(b)(2), requiring the Office to reopen the case for review of the merits of the claim. In
her application for reconsideration, appellant did not show that the Office erroneously applied or
interpreted a specific point of law. She did not identify a specific point of law or show that it

5

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” Id. at § 8128(a).
6

20 C.F.R. § 10.606(b)(2).

7

Id. at § 10.607(a).

8

Id. at § 10.608(b).

9

Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).

10

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

11

John F. Critz, 44 ECAB 788, 794 (1993).

3

was erroneously applied or interpreted. Appellant did not advance a new and relevant legal
argument nor did she submit new and relevant documentary evidence.
Appellant presented several arguments in support of her belief that she sustained an
injury in the performance of duty on June 10, 2008, but these arguments either were previously
considered or were not relevant to this matter.12 She indicated that she did not report her claimed
June 10, 2008 injury due to fear of termination, but this argument had previously been presented
to and considered by the Office. Appellant asserted that her visit to Dr. Theisen, an attending
physical medicine and rehabilitation physician, was delayed due to being a “new patient,” but
this argument is of limited relevance to the main issue of the present case due to the fact that she
did not submit any documentary evidence to support this assertion. She took the issue with
comments Dr. Theisen made in a medical report but she did not indicate how these comments
were relevant to her claim that an employment incident occurred on June 10, 2008 when she
attempted to lift a patient. Appellant claimed that she did not receive a notification of a proposed
removal action for cause on July 3, 2008, but she did not explain how her belief that the
disciplinary action taken against her was mischaracterized and relevant to her claim that she
actually experienced an employment incident on June 10, 2008 as alleged. She asserted that,
after she began working in the library during a period a complaint against her was being
investigated, she decided that she needed to “submit the injury” as she could not complete her
work tasks without medication. However, appellant had previously submitted a similar argument
to the Office for not reporting her claimed June 10, 2008 injury at an earlier date. She asserted
that coworkers who witnessed the June 10, 2008 accident immediately after it occurred did not
provide witness statements due to fear of harassment and termination. Appellant did not submit
documents to support this belief and, therefore, the argument is of limited relevance. She
indicated that Ms. Martin, her immediate supervisor, harassed her by falsely charging her with
failing to properly care for a patient, but Ms. Martin did not explain how this claimed action,
even if established, would show that appellant sustained a work injury on June 10, 2008.13
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that the Office erroneously applied or interpreted
a specific point of law, advance a relevant legal argument not previously considered by the
Office, or submit relevant and pertinent evidence not previously considered. Pursuant to 20
C.F.R. § 10.608, the Office properly denied merit review.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for further review of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).

12

See supra notes 9 and 10.

13

Appellant indicated that Ms. Martin, rather than Ms. Sockow, was her immediate supervisor. She did not
explain how this argument was relevant to the main issue of the present case, i.e., whether she established the
occurrence of an employment incident on June 10, 2008.

4

ORDER
IT IS HEREBY ORDERED THAT the May 28, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 15, 2011
Washington, DC

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

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

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

5