United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.G., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Philadelphia, PA, Employer
__________________________________________

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Appearances:
David C. Harrison, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-195
Issued: June 5, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 22, 2007 appellant filed a timely appeal from a June 13, 2007 merit decision
by a hearing representative of the Office of Workers’ Compensation Programs that affirmed the
Office’s denial of appellant’s claim for compensation from January 8 to March 4, 2006.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
claim.
ISSUE
The issue is whether appellant met her burden of proof in establishing that she was totally
disabled from January 8 to March 4, 2006 due to her accepted work-related condition.
FACTUAL HISTORY
On April 26, 2005 appellant, then a 48-year-old supervisory contact representative, filed
an occupational disease claim stating that she developed chronic obstruction pulmonary disease
and chronic asthma in the performance of duty. She noted that she first identified her condition

on September 25, 2000 and first related it to her employment on March 21, 2001. Appellant took
time off work intermittently. The record includes medical and factual evidence indicating that
she has episodic asthma symptoms since 2000 and noting the employing establishment’s effort to
accommodate her condition.
Medical evidence submitted in support of her claim included an October 1, 2000 report
from Dr. Scott B. Rosenberg, a Board-certified internist and pulmonary specialist, who
diagnosed persistent asthma symptoms status post bronchitis. On April 27, 2005 Dr. Michael L.
Lippmann, a Board-certified internist and pulmonary specialist, diagnosed moderate asthma and
noted that appellant first began to develop asthma symptoms and exacerbations after returning to
her workplace from absences or hospitalizations.
On August 29, 2005 the Office referred appellant to Dr. Anita Ko, a Board-certified
pulmonary care specialist, for a second opinion to determine the cause and extent of appellant’s
condition. In a September 22, 2005 report, Dr. Ko diagnosed occupational asthma, which she
defined as new-onset asthma caused at work. She indicated that appellant’s asthma had
improved since she stopped work. However, Dr. Ko noted that appellant had returned to work in
a different building on August 17, 2005 and had noticed a return of her cough, shortness of
breath and respiratory problems, although her symptoms were generally milder. In an undated
supplementary form report received by the Office on November 16, 2005, she reiterated that
appellant’s symptoms were caused by her work environment and dismissed smoking as a major
cause of appellant’s condition.
The Office accepted appellant’s claim for extrinsic asthma (occupational) and paid wageloss compensation for various periods, including December 26, 2005 to January 6, 2006.
In a December 5, 2005 attending physician’s report, Dr. Lippmann released appellant to
return to light-duty work effective January 9, 2006. He stated that, although appellant could
work, she was unable to return to her previous workplace due to “sick building syndrome.” In a
December 22, 2005 duty status report, Dr. Lippmann reiterated that appellant could return to
work on January 9, 2006.
Appellant returned to work on January 9, 2006 but stated that she became sick and left.
She did not work the following day or subsequently.
On February 28, 2006 appellant filed a claim for compensation for leave without pay
from January 8 to 21, 2006. On the same day, she filed claims for compensation for leave
without pay taken from January 23 to 27, February 5 to 18 and February 19 to March 4, 2006.
The employing establishment controverted appellant’s claim for compensation for the period
January 8 to March 4, 2006, noting that she was released to return to work effective January 9,
2006 but did not return and did not provide medical documentation supporting total disability.
By correspondence dated March 14, 2006, the Office requested additional information
concerning appellant’s claim for total disability compensation between January 8 and
March 3, 2006.
In a March 30, 2006 statement, appellant explained that she returned to work on
January 9, 2006 and was hospitalized for asthma on January 12, 2006. She did not indicate
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whether she returned to the same building, but noted that her symptoms persisted throughout
details and relocations to several different buildings on the employing establishment’s office
campus. By correspondence dated April 4, 2006, the employing establishment explained that it
would be “impossible” to offer appellant a light-duty assignment. It advised that she was “not
able to withstand working in our building,” and that she noticed difficulty breathing within a half
hour of arriving at work. The employing establishment noted that appellant had been detailed to
another building on August 21, 2005 but had the same respiratory problem.
By decision dated May 31, 2006, the Office denied appellant’s claim for compensation
benefits for the period January 8 to March 4, 2006, on the grounds that she did not submit
sufficient medical evidence to establish total disability for work during the period claimed.
On June 13, 2006 appellant requested an oral hearing. She submitted a May 26, 2006
report from Dr. Lippmann advising that she had asthma and possible “sick building syndrome”
and had been unable to work since January 10, 2006. Dr. Lippmann explained that appellant
“has been forced to go out of work indefinitely as a result of her symptoms which recur each
time she returns to her place of work.”
On June 30, 2006 the Office resumed appellant’s compensation for total disability
effective March 6, 2006. On August 11, 2006 it placed her on the periodic compensation rolls
effective August 6, 2006.
In a July 11, 2006 report, Dr. Lippmann noted that he had treated appellant for several
years for her asthmatic condition and opined that “some environmental exposure at work has
aggravated her asthma making it untenable to further continue working in the building that she
has been.” He explained that appellant’s symptoms were far less severe when she was away
from her workplace. Dr. Lippmann opined that appellant’s absence from January 8 to March 4,
2006 was work related because appellant’s symptoms were more severe at work and less severe
when she was away from her workplace. He noted that she was hospitalized on January 12,
2006 and attributed the hospitalization to her attempted return to work. Dr. Lippmann concluded
that “any attempt to return to work would endanger [appellant’s] health and cause exacerbation
of her symptoms.”
On August 10, 2006 Dr. Lippmann stated that appellant had “sick building syndrome,”
which he characterized as “a most difficult diagnosis to prove.” He noted that sick building
syndrome “occurs most frequently with federal buildings, as [appellant’s] symptoms of asthma
are worse when going to work.” Dr. Lippmann indicated that appellant could not return to her
place of employment and was seeking work elsewhere. In a work capacity evaluation, also
prepared on August 10, 2006, he diagnosed “sick building syndrome” and concluded that
appellant was unable to work in the employing establishment’s building. In an undated note,
Dr. Lippmann indicated that appellant was seen in his office on February 21, 2006. Appellant
also provided January 12, 2006 emergency room notes diagnosing her with acute exacerbation of
asthma. The notes indicated that appellant’s symptoms were gradual in onset.
An oral hearing was held on March 21, 2007. By decision dated June 13, 2007, the
hearing representative affirmed the denial of appellant’s claim for compensation benefits, finding

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that the medical evidence of record was insufficient to establish that appellant was totally
disabled during the period claimed, due to her accepted condition.
LEGAL PRECEDENT
The term disability as used in the Federal Employees’ Compensation Act1 means the
incapacity because of an employment injury to earn the wages that the employee was receiving
at the time of injury.2 Whether a particular injury caused an employee to become disabled for
employment is a medical issue which must be resolved by competent medical evidence.3 When
the medical evidence establishes that the residuals of an employment injury are such that, from a
medical standpoint, they prevent the employee from continuing in the employment held when
injured, the employee is entitled to compensation for any loss of wage-earning capacity resulting
from such incapacity.4 The Board will not require the Office to pay compensation for disability
in the absence of any medical evidence directly addressing the specific dates of disability for
which compensation is claimed. To do so would essentially allow employees to self-certify their
disability and entitlement to compensation.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.6 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.7 The opinion of the physician must be based on a complete
factual and medical background of the claimant8 and it must be one of reasonable medical
certainty9 explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.10
ANALYSIS
The Board finds that appellant has not met her burden of proof in establishing that she
was disabled for work from January 8 to March 4, 2006, due to her accepted employment-related
1

5 U.S.C. §§ 8101-8193; 20 C.F.R. § 10.5(f).

2

Sean O’Connell, 56 ECAB 195 (2004).

3

Paul E. Thams, 56 ECAB 503 (2005).

4

Id.

5

William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

6

John W. Montoya, 54 ECAB 306 (2003).

7

Conard Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

8

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

9

John W. Montoya, supra note 6.

10

Judy C. Rogers, 54 ECAB 693 (2003).

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condition. The record reflects that the Office accepted appellant’s asthma as work related and
that she took time off from work intermittently. On December 5, 2005 Dr. Lippmann released
appellant to return to work effective January 9, 2006. In her March 30, 2006 statement, appellant
reported that she returned to work on January 9, 2006 but became sick again and was
hospitalized for her asthma on January 12, 2006. She remained out of work indefinitely, but did
not receive compensation for her absence from January 8 to March 3, 2006.
After the Office’s May 31, 2007 decision denying appellant’s claim for compensation for
total disability for the period January 8 to March 4, 2006, appellant submitted medical evidence
from Dr. Lippmann. In a May 26, 2006 report, Dr. Lippmann stated that appellant had “sick
building syndrome” and had been unable to work since January 10, 2006 due to recurring
symptoms of asthma each time she entered her workplace. However, the Board notes that the
mere fact that a disease or condition manifests itself or worsens during a period of employment11
or that work activities produce symptoms revelatory of an underlying condition12 does not raise
an inference of causal relationship between the condition and the employment factors. Although
Dr. Lippmann stated that appellant’s symptoms worsened when she returned to work, this in and
of itself does not establish that her work caused her total disability for work. He also noted
appellant’s complaints of worsening symptoms in his July 11 and August 10, 2006 reports.
However, the mere fact that appellant’s symptoms worsened when going to work does not
establish, without more, that she was totally disabled due to her accepted condition.
In his July 11, 2006 report, Dr. Lippmann related appellant’s condition to “some
environmental exposure at work.” He diagnosed “sick building syndrome,” which he
characterized as “a most difficult diagnosis to prove,” and stated that appellant’s hospitalization
on January 12, 2006 was “clearly … a result of an exacerbation of her asthma when she
attempted to return to work … on January 8, 2006.” However, Dr. Lippmann did not present
adequate explanation and rationale supporting his opinion that appellant was totally disabled for
work due to her accepted asthma. Although he related appellant’s disability to “some
environmental exposure at work,” he did not specifically identify a particular environmental
exposure or atmospheric irritant and explain in detail how any irritant or exposure caused her
disability between January 8 and March 4, 2006. Dr. Lippmann also did not give a detailed
explanation of the reasons for appellant’s January 12, 2006 hospitalization and why he believed
it was related to her return to work four days earlier. The lack of a detailed explanation
regarding causal relationship is especially important since previous reports from Dr. Lippmann
had released appellant to work as of January 9, 2006. Dr. Lippmann also opined that appellant’s
continuing disability was due to the risk that a return to work would endanger her health and
cause another exacerbation of her symptoms. The Board notes, however, that an appellant’s fear
of future injury is not compensable.13 Thus Dr. Lippmann’s reports are insufficient to establish
that appellant’s total disability for work during the period claimed, due to her accepted condition.

11

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

12

Richard B. Cissel, 32 ECAB 1910, 1917 (1981).

13

I.J., 59 ECAB __ (Docket No. 07-2362, issued March 11, 2008), citing Calvin E. King, 51 ECAB 394 (2000).

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Other medical evidence submitted does not specifically address whether appellant’s
disability from January 8 to March 4, 2006 was due to her accepted condition or to employment
factors. Accordingly, the Board finds that the evidence does not establish that appellant was
totally disabled due to her accepted condition between January 8 and March 4, 2006.
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
was totally disabled from January 8 to March 4, 2006 due to her accepted work-related
condition.
ORDER
IT IS HEREBY ORDERED THAT the June 13, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 5, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Portland, OR, Employer
__________________________________________

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

Docket No. 11-2034
Issued: April 23, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 13, 2011 appellant filed a timely appeal of an August 12, 2011 decision of
the Office of Workers’ Compensation Programs (OWCP) which found that he did not sustain an
injury in the performance of duty. 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 met his burden of proof to establish that he sustained an
injury in the performance of duty on May 25, 2011.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 14, 2011 appellant, then a 52-year-old procurement technician, filed a traumatic
injury claim alleging that on May 25, 2011 his heel caught in the carpet while he pushed back
from his desk at work which caused a sprain or strain of his right knee. He did not initially stop
work. The employing establishment controverted the claim.
In a separate statement, Jacob Fenner, a manager, noted that appellant did not report the
injury until June 1, 2011, seven days later. Appellant was scheduled for a Hawaiian vacation,
but it was not known whether he actually went. Mr. Fenner explained that, following his
scheduled vacation, appellant did not report for work and advised the employing establishment
that he would take three days of sick leave to meet with his physician regarding knee
replacement surgery. He further noted that appellant informed him it was with regard to a workrelated incident. Mr. Fenner controverted the claim and advised that there was no medical
evidence to support a work-related condition. He enclosed a copy of an e-mail from appellant
requesting May 26 and 27, 2011 off for a trip to Hawaii. Mr. Fenner also provided a copy of a
June 1, 2011 e-mail from appellant requesting three days of sick leave from that date. A separate
e-mail also dated June 1, 2011 from appellant contained a description of the injury as alleged.
In a June 1, 2011 report, Dr. Fatima Shah, a Board-certified family practitioner and
osteopath, noted that appellant was seen for “severe nature osteoarthritis and having increased
pain in both knees.” He placed appellant off work until June 10, 2011 pending further
evaluation. OWCP received an undated work excuse from Dr. Constantine E. Phiripes, a Boardcertified internist, who placed appellant off work from June 10 to 23, 2011 due to right knee
pain. In a June 20, 2011 work excuse, Dr. Peter T. Simonian, a Board-certified orthopedic
surgeon, indicated that appellant could not return to work for an approximate period of four to
six weeks, as he was temporarily totally disabled.
By letter dated July 1, 2011, OWCP advised appellant that when his claim was initially
received, it appeared to be for a minor injury that resulted in minimal or no lost time from work.
It was administratively approved for limited medical expenses without formal consideration of
the merits of the claim. As the employer challenged the claim, it was being reopened. OWCP
advised appellant that additional factual and medical evidence was needed to establish the claim
and allotted appellant 30 days to submit the requested information. In particular, it asked that
appellant provide an opinion from his physician that explained how the reported work incident
caused or aggravated a medical condition.
OWCP received a July 7, 2011 letter from Yvonne Carson, a nurse and injury
management program manager, who indicated that appellant was a veteran with a previous right
and left knee injury for which he was receiving a military service-connected disability.
In a July 25, 2011 response, appellant described his injury. He noted that he was wearing
a pair of driving loafers with a textured heel and when he attempted to push away from his desk,
his heel dug in and caused stress on his knee which had prior surgical repairs in 1987 and 2004.
Appellant noted that the employing establishment was aware of his severe degenerative arthritis.
He continued with his vacation as planned, but spent the duration of his time icing his knee and
limiting his activities due to severe pain with limited mobility.

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By decision dated August 12, 2011, OWCP denied appellant’s claim on the grounds that
he did not establish an injury as alleged. It found that the evidence was sufficient to show that
the claimed event, pushing away from his desk, occurred as alleged. However, there was
insufficient medical evidence to establish that this employment incident caused or aggravated his
right knee.
LEGAL PRECEDENT
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 FECA2 and that an injury was sustained in the performance of duty.3 These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.4
In order to determine whether an employee actually sustained an 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 which must be considered
in conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred. The second
component is whether the employment incident caused a personal injury and generally this
can be established only by medical evidence.5
The employee must submit sufficient evidence, generally only in the form of medical
evidence, to establish that the employment incident caused a personal injury.6 The medical
evidence required to establish causal relationship is usually rationalized medical 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 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.7

2

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

3

James E. Chadden, Sr., 40 ECAB 312 (1988).

4

Delores C. Ellyett, 41 ECAB 992 (1990).

5

See John J. Carlone, 41 ECAB 354, 357 (1989).

6

Id. For a definition of the term “traumatic injury,” see 20 C.F.R. § 10.5(ee).

7

Id.

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ANALYSIS
Appellant alleged that he pushed back from his desk at work and injured his right knee on
May 25, 2011. OWCP accepted that the claimed event, pushing back from his desk occurred in
the performance of duty at work. The Board finds that the first component of fact of injury, the
claimed incident -- pushing back from his desk, occurred as alleged.
The Board finds that the medical evidence is insufficient to establish that the May 25,
2011 employment incident caused an injury. The medical reports of record do not establish that
pushing back from his desk at work caused a right knee condition. The medical evidence
contains no reasoned explanation of how the employment incident on May 25, 2011 caused or
aggravated an injury.8
Appellant submitted a June 1, 2011 report from Dr. Shah who diagnosed severe
osteoarthritis. Dr. Shah did not provide a medical history of appellant’s knee condition or of the
incident at work. He did not address the cause of the diagnosed arthritis or relate it to appellant’s
May 25, 2011 employment incident. Dr. Shah’s report is of diminished probative value. An
undated work excuse from Dr. Phiripes placed appellant off work from June 10 to 23, 2011 due
to right knee pain. He did not offer any opinion on causal relationship. In a June 20, 2011 work
excuse, Dr. Simonian placed appellant off work for a period of four to six weeks and indicated
that he was temporarily totally disabled. He failed to explain why appellant was off work or
explain how disability was due to the May 25, 2011 incident. These reports are insufficient to
establish appellant’s claim as none of the physicians of record addressed how appellant’s
pushing away from his desk on May 25, 2011 caused or aggravated his right knee condition.9
The reports are of limited probative value and insufficient to meet his burden of proof.
Appellant did not submit any other medical evidence that specifically addressed how the
May 25, 2011 incident caused or aggravated a diagnosed medical condition. Consequently, he
has submitted insufficient medical evidence to establish that the May 25, 2011 incident caused
an injury.
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 his burden of proof in establishing that he
sustained an injury in the performance of duty.

8

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
9

Jaja K. Asaramo, 55 ECAB 200 (2004) (medical evidence that does not offer any opinion regarding the cause of
an employee’s condition is of diminished probative value on the issue of causal relationship).

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ORDER
IT IS HEREBY ORDERED THAT the August 12, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 23, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.J., Appellant
and
U.S. POSTAL SERVICE, DALLAS BULK
MAIL CENTER, Dallas, TX, Employer
__________________________________________

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

Docket No. 09-45
Issued: February 13, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 6, 2008 appellant filed a timely appeal of a July 11, 2008 nonmerit decision
of the Office of Workers’ Compensation Programs, denying her request for reconsideration
because it was not timely filed and failed to establish clear evidence of error. Because more than
one year has elapsed between the most recent merit decision dated June 23, 2005 and the filing
of the appeal, the Board lacks jurisdiction to review the merits of her claim pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3(d)(2).
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and failed to establish clear evidence of error.
FACTUAL HISTORY
On October 6, 2004 appellant, then a 46-year-old distribution clerk, filed an occupational
disease claim alleging that on August 4, 2004 she first became aware of advanced degenerative

disc disease at C4-5 and C6-7. On September 7, 2004 she first realized that her cervical
condition was caused by a change in her modified work duties.
By decision dated December 8, 2004, the Office denied appellant’s claim. It found the
medical evidence insufficient to establish that her cervical condition was causally related to
the established work-related duties. By letter dated December 15, 2004, she requested
reconsideration.
In a December 30, 2004 decision, the Office denied appellant’s request for
reconsideration. It neither raised substantive legal questions nor included new and relevant
evidence and, thus, was insufficient to warrant a merit review of her claim. By letter dated
April 25, 2005, appellant requested reconsideration. She submitted an August 30, 2004 magnetic
resonance imaging scan which demonstrated, among other things, multilevel cervical spinal
stenosis resulting from advanced degenerative disc disease and spondylosis most pronounced at
C4-5 and C6-7.
By decision dated June 23, 2005, the Office denied modification of the December 30,
2004 decision. It found the medical evidence insufficient to establish that appellant sustained a
cervical condition causally related to the established work-related duties. By letter dated
March 31, 2008, she again requested reconsideration. Appellant did not submit any additional
factual or medical evidence with her request.
In a decision dated July 11, 2008, the Office found that appellant’s March 31, 2008 letter
requesting reconsideration was dated more than one year after the June 23, 2005 merit decision,
and was untimely. It further found that she did not submit any evidence establishing clear
evidence of error in the Office’s denial of her claim.1
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act2 does not entitle a claimant
to a review of an Office decision as a matter of right.3 The Office, through its regulations, has
imposed limitations on the exercise of its discretionary authority under section 8128(a). Section
10.607(a) of its implementing regulations provides that an application for reconsideration must
be sent within one year of the date of the Office decision for which review is sought.4
Section 10.607(b) states that the Office will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by the Office in its most recent
1

On appeal, appellant submitted additional medical evidence. The Board may not consider evidence for the first
time on appeal which was not before the Office at the time it issued the final decision in the case. 20 C.F.R.
§ 501.2(c). Appellant can submit this evidence to the Office and request reconsideration. 5 U.S.C. § 8128; 20
C.F.R. § 10.606.
2

5 U.S.C. § 8128(a).

3

Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

4

20 C.F.R. § 10.607(a).

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merit decision. The reconsideration request must establish that the Office’s decision was, on its
face, erroneous.5
To establish clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by the Office.6 The evidence must be positive, precise and explicit and
must be manifest on its face that the Office committed an error.7 Evidence that does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.8 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.9 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.10
The Board makes an independent determination of whether a claimant has submitted
clear evidence of error on the part of the Office such that it abused its discretion in denying merit
review in the face of such evidence.11
ANALYSIS
The Board finds that appellant failed to file a timely application for review of the
June 23, 2005 merit decision. In implementing the one-year time limitation, the Office’s
procedures provide that the one-year time limitation period for requesting reconsideration begins
on the date of the original Office decision. However, a right to reconsideration within one year
accompanies any subsequent merit decision on the issues.12
The most recent merit decision was issued by the Office on June 23, 2005. It found that
appellant’s cervical condition was not causally related to the established work-related duties. As
her March 31, 2008 letter requesting reconsideration was made more than one year after this
decision, it was not timely filed.
Appellant did not submit any additional factual or medical evidence with her untimely
reconsideration request. She has made no showing that the Office committed clear evidence of
error in finding that she did not sustain a cervical condition causally related to the accepted
employment-related duties. For these reasons, the Board finds that she has not established clear
evidence of error on the part of the Office.
5

Id. at § 10.607(b); see also Alberta Dukes, 56 ECAB 247 (2005).

6

Nancy Marcano, 50 ECAB 110, 114 (1998).

7

Leona N. Travis, 43 ECAB 227, 241 (1991).

8

Darletha Coleman, 55 ECAB 143 (2003).

9

Leona N. Travis, supra note 7.

10

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

11

Pete F. Dorso, 52 ECAB 424 (2001).

12

Larry L. Litton, 44 ECAB 243 (1992).

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CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and failed to establish clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the July 11, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 13, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.M., Appellant
and
DEPARTMENT OF THE ARMY, LANDSTUHL
REGIONAL MEDICAL CENTER,
Landstuhl, Germany, Employer
__________________________________________

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

Docket No. 09-2326
Issued: July 12, 2010

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 21, 2009 appellant filed a timely appeal of an August 7, 2009 decision by
the Office of Workers’ Compensation Programs denying reconsideration.1 The most recent
merit decision of record is dated July 18, 2008. As there is no merit decision within 180 days of
September 21, 2009, pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board does not have
jurisdiction over the merits of the case.2
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration
under section 8128(a).
1

On her application for review (Form AB-1), appellant stated that she appealed an August 19, 2008 Office
decision. However, there is no decision of record dated August 19, 2008.
2

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).

On appeal, appellant asserts that she was disabled for work due to degenerative lumbar
disc disease, hearing loss and an emotional condition. She contended that the second opinion
physician’s tests were “untrue.”
FACTUAL HISTORY
The Office accepted that on February 22, 2005 appellant, then a 34-year-old mail clerk,
sustained lumbago and a displaced L5-S1 disc without myelopathy when a coworker tossed a
heavy box to her, striking her in the chest. She stopped work on February 23, 2005 and sought
medical treatment. On March 7, 2005 Dr. Kevin Pettus, an attending Board-certified family
practitioner, diagnosed a possible herniated lumbar disc.3
Appellant returned to work on April 15, 2005 as a full-duty family readiness support
assistant, a sedentary clerical job in an office setting with no loss of pay. She stopped work
again on April 18, 2005 and did not return. The Office accepted a recurrence of disability
commencing April 18, 2005.4 Appellant received wage-loss compensation on the daily and
periodic rolls.
Appellant provided periodic medical reports from her physicians. In a November 22,
2005 report, Dr. Jeffrey A. Lawson, Board-certified in emergency medicine, released her to
part-time limited-duty work. Dr. Richard J. Teff, a Board-certified neurosurgeon, submitted
reports from July to September 2006 diagnosing lumbago, lumbar spondylosis and sciatica. He
restricted appellant to light-duty work. Dr. Shaden Marzouk, a Board-certified neurosurgeon,
submitted reports from September 2006 to May 2007 diagnosing back pain. He noted work
restrictions. In an August 29, 2007 report, Dr. Jeffrey D. McDonald, a Board-certified
neurosurgeon, diagnosed mild L5-S1 degenerative disc disease and sacroiliitis. On January 23,
2008 Dr. John F. Geffen, an attending osteopathic physician Board-certified in physiatry,
diagnosed lumbar pain and functional overlay. Appellant was referred to a pain clinic in
January 2008.5
On March 3, 2008 the Office obtained a second opinion from Dr. L. David Rutberg, a
Board-certified neurologist and Dr. George R. Harper, a Board-certified orthopedic surgeon.
Both physicians reviewed the medical record and statement of accepted facts provided by the
Office. Dr. Rutberg found a normal neurologic examination and possibly factitious pain on
lumbar palpation. Dr. Harper noted pain with hip motion bilaterally. Both physicians noted
extensive pain behaviors with positive Waddell’s inorganic signs. They diagnosed a lumbar
sprain, very minimal L5-S1 disc bulge and chronic depression. Dr. Harper and Dr. Rutberg
3

February 25, 2005 lumbar x-rays were normal.

4

The Office initially denied the recurrence of disability by decision dated July 12, 2005. Following additional
development, the Office vacated the July 12, 2005 decision and accepted the recurrence of disability by decision
dated October 20, 2005.
5

Appellant also submitted imaging studies. An October 28, 2005 lumbar magnetic resonance imaging (MRI)
scan showed a mild to moderate L5-S1 disc bulge with disc desiccation. A January 11, 2008 MRI scan showed a
central L5-S1 disc protrusion. Appellant underwent periodic epidural steroid injections from June 2005
through 2006.

2

found appellant medically able to perform the full duties of the family readiness assistant
position.
Dr. Rutberg and Dr. Harper ordered a functional capacity evaluation, performed on
March 26, 2008. Appellant was rated at a light to medium weight handling capacity. Both
physicians reviewed the report and reiterated that appellant was medically capable of performing
the family readiness assistant position full time.
In a May 7, 2008 letter, the Office requested that Dr. Jay Iyenger, an attending physician,
review copies of the second opinion report and functional capacity evaluation and provide a
response within 30 days. Dr. Iyenger did not respond.
By notice dated June 11, 2008, the Office advised appellant that it proposed to terminate
her wage-loss compensation benefits on the grounds that she was no longer disabled for work
due to the accepted lumbar injury. It noted that the second opinion reports and functional
capacity evaluation established that she was able to perform the readiness assistant position.
In a July 9, 2008 letter, appellant objected to the proposed termination of compensation.
She contended that the Office refused to authorize a new evaluation by Dr. Iyenger. Appellant
argued that Dr. Rutberg and Dr. Harper ignored her pain symptoms.
In a July 18, 2008 decision, the Office terminated appellant’s monetary compensation
benefits effective that day on the grounds that she was no longer disabled for work due to the
accepted lumbar injury. It accorded the weight of medical opinion to Dr. Rutberg and
Dr. Harper, who found that she was capable of full duty as a readiness assistant. The Office
noted that appellant remained entitled to medical benefits for treatment of the accepted lumbar
injury.6
In a letter postmarked on July 18, 2009, appellant requested reconsideration, asserting
that she remained totally disabled for work. She submitted a July 16, 2009 form report (Form
CA-20) from Dr. Mary Wyman, an attending Board-certified family practitioner, who opined
that the February 22, 2005 incident and unspecified work from November 2008 to February 2009
exacerbated a preexisting post-traumatic stress disorder (PTSD) and lumbar pain. Dr. Wyman
diagnosed chronic low back pain, left cubital tunnel syndrome, bipolar disorder and PTSD. She
checked a box “yes” indicating that the conditions were related to work factors. Dr. Wyman
found appellant totally disabled from February 2005 onward but noted that appellant had two
trials of work and might be able to telecommute.
By decision dated August 7, 2009, the Office denied appellant’s July 18, 2009 request for
reconsideration on the grounds that she failed to submit relevant evidence warranting further
merit review of the July 18, 2008 decision terminating her compensation. It found that
Dr. Wyman’s report, while new was irrelevant as it did not address whether the accepted lumbar
injury disabled appellant for work on and after July 18, 2009.

6

In late 2008, appellant’s family relocated from Germany to Tacoma, Washington, then to Virginia.

3

LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,7 section 10.606(b)(2) of Title 20 of the Code of Federal
Regulations provide that 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.8 Section 10.608(b) provides that when an application for review of the
merits of a claim does not meet at least one of the three requirements enumerated under section
10.606(b)(2), the Office will deny the application for reconsideration without reopening the case
for a review on the merits.9
In support of a request for reconsideration, a claimant is not required to submit all
evidence which may be necessary to discharge his or her burden of proof.10 The claimant need
only submit relevant, pertinent evidence not previously considered by the Office.11 When
reviewing an Office decision denying a merit review, the function of the Board is to determine
whether the Office properly applied the standards set forth at section 10.606(b)(2) to the
claimant’s application for reconsideration and any evidence submitted in support thereof.12
ANALYSIS
The Office accepted that appellant sustained lumbago and a displaced lumbar disc on
February 22, 2005. Following a brief return to work in a full-duty, sedentary clerical position,
appellant stopped work on April 18, 2005 and did not return. She received compensation for
total disability based on periodic medical reports from her attending physicians. The Office
terminated appellant’s wage-loss compensation by July 18, 2008 decision, based on a second
opinion report by Dr. Rutberg, a Board-certified neurologist, and Dr. Harper, a Board-certified
orthopedic surgeon, who opined that she was able to work full time in the sedentary clerical
position she held in April 2005.
Appellant requested reconsideration on July 18, 2009, asserting that a July 16, 2009
report from Dr. Wyman, an attending Board-certified family practitioner, established continuing
total disability for work. Dr. Wyman found appellant totally disabled for work from
February 2005 onward due to chronic low back pain, cubital tunnel syndrome, PTSD and bipolar
disorder. She checked a box “yes” indicating that these conditions were related to the
February 22, 2005 lumbar injury. However, the Office did not accept any of the conditions
diagnosed by Dr. Wyman as work related. To be relevant, the evidence submitted supporting the
7

5 U.S.C. § 8128(a).

8

20 C.F.R. § 10.606(b)(2).

9

Id. at § 10.608(b). See also T.E., 59 ECAB ___ (Docket No. 07-2227, issued March 19, 2008).

10

Helen E. Tschantz, 39 ECAB 1382 (1988).

11

See 20 C.F.R. § 10.606(b)(3). See also Mark H. Dever, 53 ECAB 710 (2002).

12

Annette Louise, 54 ECAB 783 (2003).

4

request for reconsideration must address whether the accepted February 22, 2005 lumbar injury
disabled appellant for work on and after July 18, 2008. Dr. Wyman’s attributed appellant’s
disability for work to conditions not accepted by the Office. Therefore, her July 16, 2009 report
is irrelevant to the claim. The Board has held that the submission of evidence which does not
address the particular issue involved does not comprise a basis for reopening a case.13
Appellant has not established that the Office improperly refused to reopen her claim for a
review of the merits under section 8128(a) of the Act. She 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 new evidence not
previously considered by the Office.
On appeal, appellant asserts that she remained disabled for work due, in part, to the
accepted lumbar injury. As noted she did not submit sufficient medical evidence establishing
that this injury disabled her for work on and after July 18, 2008. Appellant also contended that
the second opinion report was “untrue.” The Board notes that she did not submit medical
evidence relevant to establishing any defect in the second opinion report. As noted, the merits of
the case are not presently before the Board.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration.

13

Joseph A. Brown, Jr., 55 ECAB 542 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 7, 2009 is affirmed.
Issued: July 12, 2010
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
MATERIEL COMMAND, McAlester, OK,
Employer
__________________________________________

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

Docket No. 13-1262
Issued: December 9, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 26, 2013 appellant filed a timely appeal from a March 19, 2013 decision of the
Office of Workers’ Compensation Programs (OWCP) regarding a 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.2
ISSUE
The issue is whether appellant established that he sustained more than a two percent
permanent impairment of the right leg, for which he received a schedule award.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the March 19, 2013 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
OWCP accepted that appellant, then a 42-year-old motor vehicle operator, sustained a
right knee sprain, lateral collateral and cruciate ligaments, other internal derangement of right
knee and right chondromalacia patella while moving heavy furniture in the performance of duty
on October 5, 2008. It authorized surgery which he underwent on October 25, 2011 and he was
subsequently placed on the periodic rolls. Appellant returned to full-time, light-duty work with
restrictions effective November 14, 2011.3
On February 7, 2012 appellant filed a claim for a schedule award. In a January 20, 2012
report, Dr. John Hughes, a Board-certified orthopedic surgeon, found that appellant had a 13
percent permanent impairment of the right leg based on the Knee Regional Grid,4 on page 509,
of the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides). He placed appellant in class 1 based on his diagnosis of plica
with inflammatory right knee joint disease and indicated that he had a combination strain and
sprain linked with this diagnosis although that did not lead to his scope procedure.
On February 29, 2012 Dr. Ronald Blum, a Board-certified orthopedic surgeon and
OWCP medical adviser, reviewed the medical evidence of record and a statement of accepted
facts. He addressed Dr. Hughes’ January 20, 2012 report and explained that he erroneously
recommended a 13 percent impairment rating for the right lower extremity which was the
maximum recommended under class 1 diagnoses. Dr. Blum noted that the specific range for soft
tissue changes such as plica equated to a one to two percent impairment rating under the sixth
edition of the A.M.A., Guides. He stated that the descriptions of abnormality provided by
Dr. Hughes were not adequate to allow him to recommend impairment in appellant’s case.
In an April 3, 2012 letter, OWCP requested a supplemental report from Dr. Hughes
regarding appellant’s impairment rating.
In a May 11, 2012 report, Dr. Hughes explained that appellant was dealing with soft
tissue changes and he “just simply thought that [appellant] had enough symptomology and
ongoing problems in his knee to warrant a 13 percent impairment rating” and felt that “a one
percent impairment rating [was] totally inappropriate.” Appellant also submitted physical
therapy notes dated November 11, 2011 through February 26, 2013.
In reports dated August 22, 2011 through February 27, 2013, Dr. Ronald S. LaButti, a
Board-certified orthopedic surgeon, diagnosed synovial impingement in the right knee,
quadriceps dysfunction and dynamic patellofemoral maltracking. Upon examination of the right
knee and lower extremity, he found no appreciable joint effusion, no warmth, erythema or
induration. Appellant had some subjective complaints of pain along the medial joint line with
3

By decision dated November 21, 2011, OWCP made a preliminary determination that appellant received an
overpayment of compensation in the amount of $535.02 which appellant repaid in full by check dated
November 28, 2011.
4

Table 16-3, pages 509-511 of the sixth edition of the A.M.A., Guides is entitled Knee Regional Grid -- Lower
Extremity Impairments.

2

palpation. McMurray’s test was negative for snapping and positive for pain. The patella tracked
normally with active extension of the knee and there was no substantial patellofemoral crepitus
with patellofemoral grind. Dr. LaButti stated that a magnetic resonance imaging (MRI) scan
showed no intra-articular pathology and appellant had no significant subjective findings on
clinical examination that would correlate with his subjective complaints. He opined that
appellant had reached maximum medical improvement and released him to work without
restrictions.
A January 9, 2013 MRI scan of the right knee showed evidence of prior arthroscopic
knee surgery, mild anterior cruciate ligament (ACL) sprain, small joint effusion and mild
marrow edema in the anterior femur.
Appellant submitted reports dated May 2, 2012 through January 9, 2013 from Dr. Don
Barney, a family practitioner, who diagnosed chondromalacia patella, bursitis of the right knee,
postarthroscopic examination, joint aspiration, removal of plica and surgery performed by
Dr. LaButti, cruciate ligament tear, chronic strain of the right knee, degenerative joint disease of
the right knee and degenerative changes of the ligaments of the anterolateral medial aspect of the
knee. Dr. Barney noted that appellant was seen by Dr. Hughes for the purpose of a disability
examination and was given a 13 percent rating. He stated that Dr. Blum gave appellant a two
percent impairment rating without seeing him and recommended a second opinion examination.
OWCP referred appellant, together with a statement of accepted facts and medical
records, to Dr. Timothy Pettingell, a Board-certified physiatrist, for a second opinion evaluation.
In a January 24, 2013 report, Dr. Pettingell advised that appellant had permanent impairment
based on the sixth edition of the A.M.A., Guides. He stated that appellant medically retired in
October 2012 and that the date of maximum medical improvement was December 30, 2011.
Dr. Pettingell found no objective medical evidence that appellant suffered a tear of the right
ACL/posterior cruciate ligament (PCL)/medial collateral ligament (MCL)/lateral collateral
ligament (LCL) or medial/lateral meniscal pathology. Appellant was status postarthroscopic
surgery for hypertrophy of the synovium and symptomatic medial plica. Dr. Pettingell found no
tenderness with palpation of the medial or lateral joint line. McMurray’s testing was
asymptomatic. Active patellofemoral loading demonstrated no palpable patella crepitation.
There was no tenderness with palpation of the quadriceps or patellar tendon. Lachman’s testing
demonstrated a firm endpoint. Anterior and posterior drawer testing demonstrated no instability.
There was no instability with varus and valgus stressing in both the flexed and knee-extended
position and no knee joint effusion or Baker’s cyst. Dr. Pettingell placed appellant in a class 1,
default grade C per page 509, Table 16-3 of the A.M.A., Guides for soft tissue pathology with
range of motion deficits. He assigned appellant a functional history adjustment grade modifier 2
regarding the use of a knee brace/orthotic. Dr. Pettingell assigned physical examination
adjustment grade modifier 1 under Table 16-7, utilizing Table 16-23 as a guideline regarding -8
degrees full extension. Dr. Pettingell assigned clinical studies adjustment grade modifier 1 per
Table 16-8 as an MRI scan confirmed mild pathology. He concluded that appellant had a two
percent right lower extremity impairment regarding soft tissue lesion/synovium/plica.
On February 28, 2013 Dr. Michael M. Katz, a Board-certified orthopedic surgeon and
OWCP medical adviser, reviewed the medical record. He determined that the date of maximum
medical improvement was January 20, 2012.
Dr. Katz concurred with Dr. Pettingell’s

3

impairment rating. He opined that, according to Table 16-3,5 appellant’s bursitis, plica, soft
tissue lesion and consistent motion deficits placed him in class 1, default value two percent
impairment. Using the net adjustment formula of (GMFH - CDX) + (GMPE - CDX) + (GMCS CDX), OWCP’s medical adviser found that (2-1) + (1-1) + (1-1) resulted in a net grade modifier
of 1, resulting in an impairment class 1, grade D, equaling a two percent permanent impairment
of the right lower extremity.
By decision dated March 19, 2013, OWCP granted appellant a schedule award for two
percent permanent impairment of the right lower extremity. The award ran for 5.76 weeks for
the period January 20 through February 29, 2012.
LEGAL PRECEDENT
The schedule award provisions of FECA6 provide for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body. FECA,
however, does not specify the manner in which the percentage loss of a member shall be
determined. The method used in making such determination is a mater which rests in the sound
discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized
the use of a single set of tables so that there may be uniform standards applicable to all
claimants. The A.M.A., Guides has been adopted by OWCP as a standard for evaluation of
schedule losses and the Board has concurred in such adoption.7 For schedule awards after
May 1, 2009, the impairment is evaluated under the sixth edition of the A.M.A., Guides,
published in 2009.8
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).9 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition (CDX), which is then adjusted by grade modifiers based on GMFH, GMPE
and GMCS.10 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS CDX). Evaluators are directed to provide reasons for their impairment rating choices, including
the choices of diagnoses from regional grids and calculations of modifier scores.11

5

Id.

6

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

7

See Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
9

A.M.A., Guides (6th ed., 2009), page 3, section 1.3, The of Functioning, Disability and Health (ICF): A
Contemporary Model of Disablement.
10

Id. at 494-531.

11

See R.V., Docket No. 10-1827 (issued April 1, 2011).

4

ANALYSIS
OWCP accepted that appellant sustained a right knee sprain, lateral collateral and
cruciate ligaments, other internal derangement of right knee and right chondromalacia patella on
October 5, 2008. Appellant underwent surgery on October 25, 2011. He claimed a schedule
award on February 7, 2012. Appellant’s attending physician, Dr. Hughes, placed appellant in
class 1 based on the Knee Regional Grid, Table 16-3, page 509 of the sixth edition of the
A.M.A., Guides resulting from his diagnosis of plica and inflammatory joint knee disease. He
concluded that appellant had a 13 percent impairment. The Board notes, however, that the
maximum the A.M.A., Guides allow for bursitis, plica or other soft tissue lesion is a two percent
impairment. When asked by OWCP for a supplemental opinion regarding the proposed 13
percent impairment, Dr. Hughes replied that he “just simply thought that [appellant] had enough
symptomology and ongoing problems in his knee to warrant a 13 percent rating.” He added that
the one percent impairment rating of Dr. Blum, was inappropriate. Dr. Blum had reported that
the range of impairment for soft tissue changes such as plica was from one to two percent
impairment. He went on to explain that Dr. Hughes’ report did not conform to the A.M.A.,
Guides as his findings on examination did not support the percentage of impairment determined.
Dr. Blum concluded that Dr. Hughes’ report could not be used as a basis for an impairment
rating.
In order to determine the extent and degree of any employment-related impairment of
appellant’s right lower extremity, OWCP properly referred appellant to Dr. Pettingell for a
second opinion evaluation. Dr. Pettingell examined appellant on January 24, 2013 and
concluded that he had a two percent permanent impairment of the right lower extremity. He
found no objective medical evidence that appellant suffered a tear of the right
ACL/PCL/MCL/LCL or medial/lateral meniscal pathology.
Appellant was status-post
arthroscopic surgery for hypertrophy of the synovium and symptomatic medial plica.
Dr. Pettingell found no tenderness with palpation of the medial or lateral joint line. McMurray’s
testing was asymptomatic. Active patellofemoral loading demonstrated no palpable patella
crepitation. There was no tenderness with palpation of the quadriceps or patellar tendon.
Lachman’s testing demonstrated a firm endpoint. Anterior and posterior drawer testing
demonstrated no instability. There was no instability with varus and valgus stressing in both the
flexed and knee-extended position and no knee joint effusion or Baker’s cyst. Dr. Pettingell
placed appellant in a class 1, default grade C per page 509, Table 16-3 of the A.M.A., Guides for
soft tissue pathology with range of motion deficits. He assigned appellant a functional history
adjustment grade modifier 2 regarding the use of a knee brace/orthotic. Dr. Pettingell assigned
physical examination adjustment grade modifier 1 under Table 16-7, utilizing Table 16-23 as a
guideline regarding -eight degrees full extension. He assigned clinical studies adjustment grade
modifier 1 per Table 16-8 as an MRI scan confirmed mild pathology. Dr. Pettingell concluded
that appellant had a two percent right lower extremity impairment regarding soft tissue
lesion/synovium/plica.
Dr. Katz reviewed the clinical findings of Dr. Pettingell on February 28, 2013 and
determined that the date of maximum medical improvement was January 20, 2012. He
concurred with Dr. Pettingell’s impairment rating. Dr. Katz opined that, according to Table 16-

5

3,12 appellant’s bursitis, plica, soft tissue lesion and consistent motion deficits placed him in class
1, default value two percent impairment. Using the net adjustment formula of (GMFH - CDX) +
(GMPE - CDX) + (GMCS - CDX), OWCP’s medical adviser found that (2-1) + (1-1) + (1-1)
resulted in a net grade modifier of 1, resulting in an impairment class 1, grade D, equaling a two
percent permanent impairment of the right lower extremity.
The Board finds that OWCP’s medical adviser applied the appropriate tables and grading
schemes of the sixth edition of the A.M.A., Guides to Dr. Pettingell’s clinical findings. Dr. Katz
agreed with the rating of Dr. Pettingell. There is no medical evidence of record utilizing the
appropriate tables of the sixth edition of the A.M.A., Guides demonstrating a greater percentage
of permanent impairment. Dr. Blum explained that Dr. Hughes’ 13 percent impairment rating
for the right lower extremity was erroneous as the range for soft tissue changes such as plica was
one to two percent impairment under the six edition of the A.M.A., Guides. Therefore, OWCP
properly relied on the medical adviser’s assessment of a two percent permanent impairment of
the right lower extremity.13
As the reports from Drs. LaButti and Barney do not provide an impairment rating based
on the sixth edition of the A.M.A., Guides, the Board finds that they lack probative value and are
insufficient to establish appellant’s claim. The January 9, 2013 MRI scan is diagnostic in nature
and the physical therapy notes dated November 11, 2011 through February 26, 2013 do not
constitute medical evidence as they were not prepared by a physician.14 Therefore, they are
insufficient to establish greater impairment.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established that he sustained more than a two
percent permanent impairment of the right lower extremity, for which he received a schedule
award.

12

Supra note 4.

13

See M.T., Docket No. 11-1244 (issued January 3, 2012).

14

Physical therapists are not physicians under FECA. See 5 U.S.C. § 8101(2).

6

ORDER
IT IS HEREBY ORDERED THAT the March 19, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 9, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cleveland, OH, Employer
__________________________________________

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

Docket No. 17-1914
Issued: November 27, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 5, 2017 appellant filed a timely appeal from a June 29, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish an occupational
disease causally related to the accepted factors of his federal employment.

1

Appellant filed a timely request for oral argument. By order dated October 2, 2018, the Board, after exercising
its discretion, denied his request as his arguments could be adequately addressed in a decision based on a review of
the case record. Order Denying Request for Oral Argument, Docket No. 17-1914 (issued October 2, 2018).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 7, 2016 appellant, then a 64-year-old mail processing clerk, filed an occupational
disease claim (Form CA-2) alleging that he developed a ganglion cyst on his right hand as a result
of repetitively lifting and scanning parcels required in his job. He first became aware of his
condition and realized that it was related to his federal employment on May 19, 2016. Appellant
continued to be exposed to the conditions alleged to have caused his illness.
In a May 19, 2016 report, Dr. Cary C. Scott, Board-certified in emergency medicine,
treated appellant for a ganglion cyst of the right wrist. He prescribed Ibuprofen and provided
discharge instructions for a ganglion cyst.
In a June 30, 2016 claim development letter, OWCP requested that appellant submit
additional factual and medical information including a comprehensive medical report from his
treating physician regarding how specific work factors contributed to his claimed right wrist
condition. It provided a questionnaire for his completion to substantiate the factual elements of
his claim and afforded him 30 days to submit the requested information.
In an emergency room report dated May 19, 2016, Dr. Scott treated appellant for a lump
on the dorsum of the right wrist. Appellant reported that his job involved repetitive motions and
the lump was gradually growing. Findings on examination revealed full range of motion of the
extremity, intact sensation and motor function, a one centimeter diameter round rubbery lesion on
the back of the right hand, nontender to touch, not erythematous, and normal grip strength.
Dr. Scott opined that the clinical examination was suggestive of a ganglion cyst.
A July 19, 2016 report by Dr. Bruce Hensley, an osteopath, noted appellant’s treatment for
a nonpainful lump on his right hand. Appellant reported that on May 19, 2016 he noticed a right
wrist lesion on top of his wrist which was not improving. He indicated that his job required that
he use a hand held scanner and lift trays of mail. Findings on examination of the right wrist
revealed no abrasion, swelling, bruising, erythema, open wound or pain on range of motion, intact
strength, and there was a two-by-two centimeter raised, rubbery, nontender, fixed lesion at the
dorsal surface of the wrist. Dr. Hensley diagnosed bursal cyst of the right wrist. He opined that
the ganglion cyst was not a work-related injury. Appellant was returned to regular-duty work on
July 19, 2016 and referred to his primary care provider for further care. A July 19, 2016 duty
status report (Form CA-17) from Dr. Hensley noted clinical findings of bursal cyst, right wrist.
Appellant was returned to full-duty work. In a report dated July 19, 2016, Dr. Hensley noted that
appellant had a lump on his right hand which occurred on May 19, 2016. He diagnosed ganglion
cyst and noted that appellant’s injury was not causally related to an industrial incident.
In a statement dated July 25, 2016, appellant indicated that he used his right hand to
constantly lift mail and to use a scanner for eight hours a day while at work. He reported working
in this position for three years and he believed that the repetitive motion caused the ganglion cyst
on the back of his right wrist.
By decision dated September 19, 2016, OWCP denied appellant’s claim finding that he
had failed to establish that his claimed medical condition was causally related to the accepted
factors of his employment.

2

In an appeal request form dated September 27, 2016, postmarked October 3, 2016,
appellant requested a telephonic oral hearing before an OWCP hearing representative which was
held on May 17, 2017. He submitted a July 19, 2016 report from a physician’s assistant.
By decision dated June 29, 2017, an OWCP hearing representative affirmed the decision
dated September 19, 2016.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim. When an employee claims an injury in the performance of
duty, the employee must submit sufficient evidence to establish that he or she experienced a
specific event, incident, or exposure occurring at the time, place, and in the manner alleged. The
employee must also establish that such event, incident, or exposure caused an injury.3
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.4 To establish fact of injury in an
occupational disease claim, an employee must submit: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.5
The medical evidence required to establish causal relationship is 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 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 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.6
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish an occupational
disease causally related to the accepted factors of his federal employment. In an emergency room
report dated May 19, 2016, Dr. Scott treated appellant for a lump on the dorsum of his right wrist.
Appellant reported that his job involved repetitive motions and the lump gradually grew. Findings
3
See Walter D. Morehead, 31 ECAB 188, 194 (1979) (occupational disease or illness); Max Haber, 19 ECAB 243,
247 (1967) (traumatic injury). See generally John J. Carlone, 41 ECAB 354 (1989); Elaine Pendleton, 40 ECAB
1143 (1989).
4

S.P., 59 ECAB 184, 188 (2007).

5

R.R., Docket No. 08-2010 (issued April 3, 2009); Roy L. Humphrey, 57 ECAB 238, 241 (2005).

6

Solomon Polen, 51 ECAB 341 (2000).

3

on examination revealed a one centimeter diameter round rubbery lesion on the back of the right
hand, nontender to touch, and not erythematous. Dr. Scott opined that the clinical examination
was suggestive of a ganglion cyst. He repeated the history of injury as reported by appellant,
however, he did not provide his own opinion regarding whether his condition was work related.
To the extent that Dr. Scott is providing his own opinion, he failed to provide a rationalized opinion
regarding the causal relationship between appellant’s ganglion cyst and the factors of employment
believed to have caused or contributed to such condition. The Board has held that medical
evidence that does not offer an opinion regarding the cause of an employee’s condition is of no
probative value on the issue of causal relationship.7 Therefore, this report is insufficient to meet
appellant’s burden of proof.
On July 19, 2016 Dr. Hensley treated appellant for a non painful lump to the right hand.
Appellant reported that on May 19, 2016 he noticed a right wrist lesion on top of his wrist which
was not improving. He indicated that at work he used a hand held scanner and lifted trays of mail.
Findings on examination of the right wrist revealed a two-by-two centimeter raised, rubbery,
nontender, fixed lesion at the dorsal surface of the wrist. Dr. Hensley diagnosed bursal cyst of the
right wrist. He opined that the ganglion cyst was not a work-related injury. Similarly, in a report
dated July 19, 2016, Dr. Hensley noted that appellant had a lump on his right hand which occurred
on May 19, 2016. He diagnosed ganglion cyst and noted that appellant’s injury was not causally
related to an industrial incident. These reports do not support causal relationship, rather,
Dr. Hensley opines that the diagnosed ganglion cyst was not work related. Therefore, the reports
are insufficient for appellant to establish his claim.
A July 19, 2016 duty status report (Form CA-17) from Dr. Hensley noted clinical findings
of bursal cyst, right wrist and returned appellant to work full duty. However, he did not provide
a history of injury or specifically address whether the factors of employment caused or aggravated
a diagnosed medical condition. Medical opinions based on an incomplete history or which are
speculative or equivocal in character have little probative value.8
Appellant also submitted a July 19, 2016 report from a physician assistant. However,
reports of physician assistants have no probative value as medical evidence.9 Therefore, this report
was not considered medical evidence as a physician assistant is not considered a physician under
FECA10 and is not competent to render a medical opinion under FECA.

7

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

8

Frank Luis Rembisz, 52 ECAB 147 (2000).

9

See S.E., Docket No. 08-2214 (issued May 6, 2009).

10

See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and
physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection
defines a “physician” as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by State law).

4

As the medical evidence does not contain a physician’s reasoned opinion regarding the
causal relationship between appellant’s claimed conditions and the accepted factors of his federal
employment, he has not met his burden of proof to establish his occupational disease claim.
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 his burden of proof to establish an occupational
disease causally related to the accepted factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the June 29, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: November 27, 2018
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Callahan, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 19-1393
Issued: January 29, 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 June 10, 2019 appellant filed a timely appeal from a February 13, 2019 merit decision
and a May 15, 2019 nonmerit 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 to review the merits of this case.2
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish left knee
conditions causally related to the accepted factors of her federal employment; and (2) whether

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.

OWCP properly denied appellant’s request for reconsideration of the merits of her claim pursuant
to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On December 4, 2018 appellant, then a 56-year-old customer service supervisor, filed an
occupational disease claim (Form CA-2) alleging a left knee injury due to factors of her federal
employment including prolonged standing on hardwood floors, and kneeling and bending. She
noted that she first became aware of the conditions on August 4, 2018 and first realized that her
conditions had been caused or aggravated by factors of her federal employment on
August 11, 2018. Appellant stopped work on December 6, 2018.
In support of her claim, appellant submitted a December 2, 2018 statement describing her
injury. She noted that she cased mail for the box section, approximately three hours per day for
the week of August 11, 2018, and noticed that her left knee was swollen and hurting with a burning
sensation. Appellant explained that “the more she walked, the worse it felt.” She noted that she
worked “another hour or so” and decided to go to the emergency room where x-rays of her foot
were read as normal. Appellant noted that her injury occurred at work while assisting in the box
section which required kneeling, bending, and prolonged standing on a hard floor without
supporting mats.
In a December 14, 2018 attending physician’s report (Form CA-20), Dr. Richard Lucie, a
Board-certified orthopedic surgeon, noted that appellant “had not described a work-related injury.”
He indicated that a magnetic resonance imaging (MRI) scan of appellant’s left knee revealed a
partial anterior cruciate ligament tear, a tear of the medial and internal meniscus, and
chondromalacia. Dr. Lucie proposed a left knee arthroscopy, medial and lateral meniscectomy,
partial chondroplasty, and a medial femoral condyle and multiple compartment synovectomy. He
indicated that appellant was totally disabled from December 7, 2018 to February 1, 2019.
In a development letter dated December 26, 2018, OWCP advised appellant of the factual
and medical deficiencies of her claim. It informed her of the evidence necessary to establish her
claim and provided a questionnaire for her completion regarding the circumstances of the injury.
OWCP afforded appellant 30 days to respond. It also sent a development letter of even date to the
employing establishment requesting information regarding appellant’s employment duties in
relation to her claim.
In a letter dated January 11, 2019, C.B., an employing establishment human resources
specialist, controverted the claim. She asserted that appellant failed to provide medical rationale
to demonstrate that the claimed condition was causally related to factors of her employment.
OWCP also received responses to questions from the employing establishment on January 14,
2019 which in part indicated that appellant had foot surgery on March 1, 2018, was off work for
five months, and returned to work on August 8, 2018. The responses also indicated that appellant
complained of swelling in her knee three days after she returned to work. OWCP reported that
appellant only stood for 2.5 hours consecutively, and that her duties were primarily administrative
and required minimal physical activity.

2

OWCP received a copy of appellant’s job description along with physical therapy reports
dated December 10, 2018 and January 23, 2019. It also received a December 7, 2018 operative
report from Dr. Lucie, documenting the arthroscopic procedures performed on that date.
A December 10, 2019 MRI scan of the left knee was a report to reveal a partial thickness
tear of the distal anterior cruciate ligament, complex tearing of the body and posterior horn of the
medial meniscus, oblique tear of the body of the lateral meniscus with a small to moderate effusion,
and a partial thickness chondromalacia of the medial compartment.
In a September 14, 2018 report, Dr. Lucie noted that appellant had a left toe bunionectomy
on May 23, 2018, and was out of work until August 7, 2018. He indicated that appellant worked
for a week and then her left knee became swollen. Dr. Lucie diagnosed left knee effusion. In an
October 8, 2018 report, he diagnosed left knee synovitis and left knee synovitis with effusion. In
an October 17, 2018 report, Dr. Lucie noted that appellant was examined for follow up of her left
knee and diagnosed a medial and lateral meniscus tear of the left knee. He recommended a left
knee arthroscopy. Dr. Lucie also saw appellant for follow-up appointments on December 18,
2018, and January 8 and 14, 2019.
In a January 8, 2019 report, Dr. Lucie noted appellant’s history of a left toe bunionectomy
on May 23, 2018, and her return to work on August 7, 2018. He indicated that, after a week of
work, her left knee became swollen. Dr. Lucie opined “there was no history that appellant
sustained an injury at work, but that her return to work seemed to flare up her knee, but he could
not directly relate the flare up to something in her job.”
By decision dated February 13, 2019, OWCP denied appellant’s claim finding that the
medical evidence submitted did not establish that the claimed left knee conditions were causally
related to her work events or factors of employment.
On March 15, 2019 appellant requested reconsideration. She argued that she had not been
aware of her knee conditions until the MRI scan was performed and revealed a torn meniscus, that
her physician incorrectly wanted her to file a traumatic injury claim and not an occupational
disease claim despite his noting her repetitive work on hard floors and lifting heavy packages
would cause injury, and she disagreed with the date of injury and explained that she was not at
work on August 4, 2018, and had not returned until August 7, 2018.
OWCP also received a February 14, 2019 return to work note from Dr. Lucie, who
indicated that appellant was able to return to work on February 11, 2019, with restrictions.
By decision dated May 15, 2019, OWCP denied appellant’s request for reconsideration of
the merits of her claim.
LEGAL PRECEDENT -- ISSUE 1
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 establish that an injury was sustained in the performance of duty in an occupational disease
claim, a claimant must submit: (1) a factual statement identifying employment factors alleged to
have caused or contributed to the presence or occurrence of the disease or condition; (2) medical
evidence establishing the presence or existence of the disease or condition for which compensation
is claimed; and (3) medical evidence establishing that the diagnosed condition is causally related
to the employment factors identified by the claimant.6
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.7 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.8
Neither the fact that the condition became apparent during a period of employment, nor the belief
that the condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.9
In a case where a preexisting condition involving the same part of the body is present and
the issue of causal relationship therefore involves aggravation, acceleration, or precipitation, the
physician must provide a rationalized medical opinion that differentiates between the effects of the
work-related injury or disease and the preexisting condition.10
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish left knee
conditions causally related to the accepted factors of her federal employment.

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

S.C., Docket No. 18-1242 (issued March 13, 2019); I.D., Docket No. 18-1118 (issued December 31, 2018); R.B.,
Docket No. 18-0720 (issued November 13, 2018).
7

K.L., Docket No. 18-0937 (issued December 28, 2018).

8

See supra notes 4 and 5.

9

See supra note 5; Dennis M. Mascarenas, 49 ECAB 215 (1997).

10
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
See N.C., Docket No. 19-1191 (issued December 19, 2019); R.D., Docket No. 18-1551 (issued March 1, 2019).

4

In support of her claim, appellant submitted several reports from her treating physician,
Dr. Lucie. However, Dr. Lucie consistently indicated that there had been no employment-related
injury. In his December 14, 2018 Form CA-20, he noted that appellant “had not described a workrelated injury.” Additionally, in his January8, 2019 report, Dr. Lucie noted appellant’s history of
a left toe surgery and opined “there was no history that she injured herself at work, but her knee
seemed to flare up when she returned to work, however, he could not directly relate the flare up to
something in her job.” As appellant’s treating physician, Dr. Lucie, has indicated that her injury
was not work related, his reports do not support appellant’s claim. As his reports are unsupportive
of appellant’s claim, they are therefore insufficient to meet her burden of proof.11
Appellant also submitted an MRI scan report. However, the Board has held that reports of
diagnostic tests lack probative value as they do not provide an opinion on causal relationship
between appellant’s employment duties and a diagnosed condition.12
As appellant has not submitted rationalized medical opinion evidence which supports that
the left knee conditions are causally related to the accepted factors of her federal employment, she
has not met her burden of proof to establish her claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against payment of compensation at any time on his own motion or on application.13
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted a
specific point of law; (2) advances a relevant legal argument not previously considered by OWCP;
or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP.14
A request for reconsideration must also be received by OWCP within one year of the date
of OWCP’s decision for which review is sought.15 If OWCP chooses to grant reconsideration, it

11

See L.W., Docket No. 19-0698 (issued September 3, 2019).

12

See J.M., Docket No. 17-1688 (issued December 13, 2018).

13

5 U.S.C. § 8128(a).

14

20 C.F.R. § 10.606(b)(3); see also B.W., Docket No. 18-1259 (issued January 25, 2019).

15

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.

5

reopens and reviews the case on its merits.16 If the request is timely, but fails to meet at least one
of the requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.17
ANALYSIS – ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
The Board finds that appellant has not alleged or demonstrated that OWCP erroneously
applied or interpreted a specific point of law. Moreover, she has not advanced a relevant legal
argument not previously considered. Consequently, appellant is not entitled to a review of the
merits of her claim based on the first and second above-noted requirements under section
10.606(b)(3).18
The Board further finds that appellant has not submitted relevant and pertinent new
evidence not previously considered relative to the issue of whether she has established left knee
conditions causally related to the accepted factors of her federal employment. With her
reconsideration request, she submitted a statement regarding her disagreement with her physician’s
handling of her claim. Appellant’s statement in opposition to her physician is not relevant to the
underlying issue in this case, which is whether the medical evidence establishes that she sustained
employment-related left knee conditions. As the Board has held, the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case.19 This is a medical issue that must be addressed by relevant medical evidence,
including the rationalized opinion of a physician.20 Appellant also submitted a February 14, 2019
return to work note by Dr. Lucie, but that report did not address causal relationship. As appellant
did not provide relevant and pertinent new evidence, she is not entitled to a merit review based on
the third requirement under section 10.606(b)(3).21
Accordingly, appellant did not meet any of the requirements of 20 C.F.R. § 10.606(b)(3).
Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish left knee
conditions causally related to the accepted factors of her federal employment. The Board further

16

Id. at § 10.608(a); see also A.P., Docket No. 19-0224 (issued July 11, 2019).

17

Id. at § 10.608(b); A.G., Docket No. 19-0113 (issued July 12, 2019).

18

C.B., Docket No. 18-1108 (issued January 22, 2019).

19
See J.R., Docket No. 19-1280 (issued December 4, 2019); M.K., Docket No. 18-1623 (issued April 10, 2019);
Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).
20

M.C., Docket No. 18-0841 (issued September 13, 2019).

21

R.L., Docket No. 18-0175 (issued September 5, 2018).

6

finds that OWCP properly denied her request for reconsideration of the merits of her claim under
5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the May 15 and February 13, 2019 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: January 29, 2020
Washington, DC

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

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

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

7