United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.N., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Santa Clarita, CA, Employer
__________________________________________

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

Docket No. 21-0509
Issued: August 17, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On February 17, 2021 appellant filed a timely appeal from an August 27, 2020 merit
decision and a January 19, 2021 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 over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish a diagnosed
medical condition causally related to the accepted factors of his federal employment; and
(2) whether OWCP properly determined that appellant abandoned his request for an oral hearing
before an OWCP hearing representative.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 13, 2020 appellant, then a 50-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that he developed spinal arthritis due to factors of his federal
employment. He described carrying mail for over five years, which he believed aggravated his
spinal arthritis. Appellant noted that he first became aware of his condition on November 23, 2019
and realized its relation to federal employment on November 25, 2019. He stopped work on
July 1, 2020 and worked intermittently thereafter.
In support of his claim, appellant submitted a January 3, 2020 report from Dr. Edgardo Y.
Francia, a Board-certified internist, who treated appellant for back pain that began in 2019.
Dr. Francia noted that a thoracic spine x-ray performed in November 2019 revealed degenerative
changes in the spine consistent with appellant’s symptoms and complaints. He returned appellant
to light duty. In a duty status report (Form CA-17) dated January 21, 2020, Dr. Francia noted
clinical findings of back pain and diagnosed spinal arthritis. Appellant was returned to modified
duty. In a work status report dated June 23, 2020, Dr. Francia noted that appellant was totally
disabled from work from June 22 through 24, 2020. In separate a note dated June 23, 2020, he
restricted appellant to four hours of mail delivery in an eight-hour work shift.
In a statement dated July 1, 2020, appellant indicated that his letter carrier duties involved
heavy lifting, twisting, and bending, which he believed exacerbated his spinal condition.
In a development letter dated July 20, 2020, OWCP notified appellant of the deficiencies
of his claim. It advised him of the type of factual and medical evidence needed and provided a
questionnaire for his completion. OWCP afforded him 30 days to submit the necessary evidence.
On September 16, 2019 a nurse practitioner treated appellant for right mid-back pain
radiating to the right side of appellant’s body and increased blood pressure. Appellant reported
working as a mail carrier, which involved prolonged walking and carrying.
On September 30, 2019 Dr. Estak M. Choudhury, a Board-certified emergency room
physician, treated appellant for back pain and abdominal bloating.
Dr. Tony K. G. Hwang, a Board-certified family practitioner, evaluated appellant on
October 4, 2019 for right upper back pain and abdominal discomfort. Appellant reported working
as a postal carrier and was unsure if his back condition was work related, but reported lifting heavy
boxes.
On November 7, 2019 Dr. Chris Aghayan, a Board-certified family practitioner, treated
appellant for flank pain and muscle spasm of the thoracic back.
In a form report dated November 25, 2019, Dr. Phillip Nugent, a Board-certified surgeon,
diagnosed thoracic strain that occurred on November 23, 2019. He returned appellant to modified
duty.
In a physician’s first report of occupational injury or illness dated November 25, 2019,
Dr. Jack Feldsher, a Board-certified family practitioner, treated appellant for back pain. Appellant
reported working as a city carrier and while delivering mail on November 23, 2019 he stepped on
2

a hole and fell. Appellant’s history was significant for a prior thoracic strain. Findings on
examination revealed mild right pain from T8-12, mild spasms, and limited range of motion.
X-rays of the thoracic spine revealed degenerative joint disease from T10-12. Dr. Feldsher
diagnosed thoracic sprain, initial encounter, muscle spasm of the back, and pain in the thoracic
spine. He prescribed medication, and physical therapy and returned appellant to limited duty.
In visit summaries dated December 2, 2019 and June 23, 2020, Dr. Francia evaluated
appellant for back pain and elevated blood pressure. In a December 4, 2019 progress note, he
treated appellant in follow-up for upper back pain beginning two months prior. Findings on
examination revealed normal range of motion, no bony tenderness, and no swelling of the cervical
and thoracic back. Dr. Francia diagnosed back pain and elevated blood pressure. On
December 17, 2019 he reviewed an x-ray of the thoracic spine, which revealed degenerative
changes from T6-12 and L1. In a progress note dated January 3, 2020, Dr. Francia advised that
appellant was reassigned to light duty due to back pain.
A registered nurse, evaluated appellant on July 14, 2020 and provided vital signs.
In a July 27, 2020 narrative statement, appellant responded to OWCP’s development
questionnaire. He reported being treated by Dr. Nugent, who indicated that carrying mail, lifting,
and bending over a five-year period aggravated appellant’s arthritic condition and resulted in his
diagnosis. Appellant stated that he did not experience similar symptoms before his injury. He
asserted that heavy lifting and carrying caused his back symptoms, which became progressively
worse over time. Appellant listed outside activities of yoga, surfing, swimming, and gym
workouts.
Appellant continued to treat with Dr. Francia, who on July 29, 2020 diagnosed back pain
and elevated blood pressure. Dr. Francia noted that appellant was unable to work unless appellant
was reassigned to a desk job. In an accompanying light-duty work ability evaluation he diagnosed
spinal arthritis and provided permanent restrictions. In a letter dated July 29, 2020, Dr. Francia
reported treating appellant since October 2019 for back pain, back spasms, and fatigue. He
indicated that a thoracic spine x-ray performed in November 2019 revealed degenerative changes
in the spine or arthritis and opined that these findings were consistent with appellant’s symptoms.
Dr. Francia recommended that appellant be reassigned to a desk job and avoid heavy lifting and
carrying. In a work status report dated July 30, 2020, he placed appellant off work from July 6
through August 15, 2020. In a letter dated August 5, 2020, Dr. Francia reported treating appellant
since October 2016 and advised that appellant did not complain of back pain until October 2019.
He noted that a November 2019 x-ray of the thoracic spine revealed degenerative changes and
arthritis and opined that appellant’s symptoms were consistent with the x-ray findings. Dr. Francia
further opined that appellant’s symptoms were caused by constantly carrying heavy mail, up to 35
pounds, five days a week, averaging 12 to 13 miles of walking per day for years. He again
requested that appellant be reassigned to a desk job and avoid lifting and carrying heavy items.
By decision dated August 27, 2020, OWCP accepted that the employment factors occurred,
as alleged, but denied the claim, finding that the medical evidence of record was insufficient to
establish a medical diagnosis in connection with the accepted employment factors. Thus, it
concluded that the requirements had not been met to establish an injury as defined by FECA.

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In an undated appeal request form postmarked September 2, 2020, appellant requested an
oral hearing before a representative of OWCP’s Branch of Hearings and Review.
In a November 5, 2020 notice, OWCP’s hearing representative informed appellant that his
oral hearing was scheduled for January 6, 2021 at 12:15 p.m. Eastern Standard Time (EST). He
instructed appellant to “call the toll free number listed below … [and w]hen prompted, enter the
pass code.” The hearing representative mailed the notice to appellant’s last known address of
record. Appellant did not appear for the hearing and no request for postponement was made.
By decision dated January 19, 2021, OWCP determined that appellant had abandoned his
request for an oral hearing as he failed to make an appearance. It further found that there was no
indication in the record that appellant had contacted the Branch of Hearings and Review either
prior to or subsequent to the scheduled hearing to explain his failure to appear.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including 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 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 question that requires rationalized medical opinion
evidence to resolve the issue.7 The opinion of the physician must be based on a complete and
accurate factual and medical background of the claimant, must be one of reasonable medical
2

Id.

3

J.W., Docket No. 18-0678 (issued March 3, 2020); 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.S., Docket No.18-0657 (issued February 26, 2020); J.M., Docket No. 17-0284 (issued February 7,
2018); James E. Chadden, Sr., 40 ECAB 312 (1988).
5

L.J., Docket No. 19-1343 (issued February 26, 2020); R.R., Docket No.18-0914 (issued February 24,
2020); Delores C. Ellyett, 41 ECAB 992 (1990).
6

S.C., Docket No. 18-1242 (issued March 13, 2019); R.H., 59 ECAB 382 (2008).

7

J.F., Docket No. 18-0492 (issued January 16, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

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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.8
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents, is sufficient to establish causal relationship.9
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision.
In support of his claim appellant submitted an August 5, 2020 letter from Dr. Francia who
reported treating appellant since October 2016 and advised that appellant did not complain of back
pain until October 2019. A November 2019 x-ray of the thoracic spine revealed degenerative
changes and arthritis. Dr. Francia opined that appellant’s condition was caused by constantly
carrying heavy mail, up to 35 pounds, five days a week, averaging 12 to 13 miles of walking per
day for years. Similarly, in a letter dated July 29, 2020, he reported treating appellant since
October 2019 for back pain, back spasms, and fatigue. In other reports dated January 21 and
July 29, 2020, Dr. Francia diagnosed spinal arthritis.
On November 25, 2019 Dr. Feldsher noted that appellant worked as a letter carrier and
while delivering mail on November 23, 2019 he fell. He diagnosed thoracic sprain, initial
encounter, muscle spasm of the back, and pain in the thoracic spine. On November 7, 2019
Dr. Aghayan treated appellant for flank pain and muscle spasm of the thoracic back. Dr. Nugent
also treated appellant on November 25, 2019, who diagnosed thoracic strain that occurred on
November 23, 2019.
The Board therefore finds that, based on the reports of Drs. Francia, Feldsher, Aghayan,
and Nugent, appellant has met his burden of proof to establish a diagnosed medical condition
causally related to the accepted factors of his federal employment.
As the medical evidence of record establishes a diagnosed condition, the case must be
remanded for consideration of the medical evidence with regard to the issue of causal relationship.
Following any further development as deemed necessary, OWCP shall issue a de novo decision.
LEGAL PRECEDENT -- ISSUE 2
A claimant who has received a final adverse decision by OWCP may obtain a hearing by
writing to the address specified in the decision within 30 days of the date of the decision for which
a hearing is sought.10 Unless otherwise directed in writing by the claimant, OWCP’s hearing
representative will mail a notice of the time and place of the hearing to the claimant and any

8

A.M., Docket No. 18-0562 (issued January 23, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

9

E.W., Docket No. 19-1393 (issued January 29, 2020); Gary L. Fowler, 45 ECAB 365 (1994).

10

20 C.F.R. § 10.616(a).

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representative at least 30 days before the scheduled date.11 OWCP has the burden of proof to
establish that it properly mailed to a claimant and any representative of record a notice of a
scheduled hearing.12
A claimant who fails to appear at a scheduled hearing may request in writing, within 10
days after the date set for the hearing that, another hearing be scheduled. Where good cause for
failure to appear is shown, another hearing will be scheduled and conducted by teleconference.
The failure of the claimant to request another hearing within 10 days, or the failure of the claimant
to appear at the second scheduled hearing without good cause shown, shall constitute abandonment
of the request for a hearing.13
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly determined that appellant abandoned his request for
an oral hearing before an OWCP hearing representative.
Following OWCP’s August 27, 2020 decision, appellant filed a timely request for an oral
hearing before a representative of OWCP’s Branch of Hearings and Review. In a November 5,
2020 letter, OWCP’s hearing representative notified appellant that it had scheduled a telephonic
hearing for January 6, 2021 at 12:15 p.m. EST. The hearing representative properly mailed the
hearing notice to appellant’s last known address of record and provided instructions on how to
participate. However, appellant neither appeared for the scheduled hearing, nor requested a
postponement or provided an explanation to OWCP for his failure to appear within 10 days of the
scheduled hearing.14 The Board thus finds that OWCP properly determined that he abandoned his
request for an oral hearing.15
CONCLUSION
The Board finds that this case is not in posture for decision with regard to whether appellant
has met his burden of proof to establish medical conditions causally related to the accepted factors
of his federal employment. The Board further finds that OWCP properly determined that he
abandoned his request for an oral hearing before an OWCP hearing representative.

11

Id. at § 10.617(b).

12

T.R., Docket No. 19-1952 (issued April 24, 2020); M.R., Docket No. 18-1643 (issued March 1, 2019); T.P.,
Docket No. 15-0806 (issued September 11, 2015); Michelle R. Littlejohn, 42 ECAB 463 (1991).
13

20 C.F.R. § 10.622(f); Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Review of the Written
Record, Chapter 2.1601.6(g) (October 2011); A.J., Docket No. 18-0830 (issued January 10, 2019); L.B., Docket No.
18-0533 (issued August 27, 2018).
14

E.S., Docket No. 19-0567 (issued August 5, 2019).

15

Supra note 13.

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ORDER
IT IS HEREBY ORDERED THAT the August 27, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for proceedings
consistent with this decision of the Board and the January 19, 2021 decision is affirmed.
Issued: August 17, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.H., Appellant
and
DEPARTMENT OF THE ARMY, MATERIEL
COMMAND, Richmond, KY, Employer
__________________________________________

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

Docket No. 14-38
Issued: April 11, 2014

Case Submitted on the Record

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

JURISDICTION
On October 17, 2013 appellant filed a timely appeal from an April 24, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits effective November 30, 2011 as he had no
residuals of his accepted work injuries; and (2) whether appellant met his burden of proof to
establish that he had continuing residuals of his accepted work injuries after November 30, 2011.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
OWCP accepted that on August 5, 1980 appellant, then a 23-year-old water plant
operator, sustained a right knee contusion when he bumped it on a desk. On September 30, 1980
he underwent OWCP-authorized surgery on his right knee, including arthroscopy, arthrotomy,
repair of capsular defect and release of plica synovialis.2 Appellant was injured again on July 2,
1981 due to a fall down steps at work and he stopped work on that date, returned to work on
July 20, 1981 but stopped again on April 8, 1982.3 OWCP initially accepted the July 2, 1981
injury for a right knee contusion, right elbow abrasion, lumbar spine contusion and lumbosacral
sprain. It later accepted permanent aggravation of the underlying right knee condition of “old
disruption of anterior cruciate ligament.” Appellant received wage-loss compensation on the
periodic rolls. On October 22, 1985 Dr. Robert Goodman, an attending Board-certified
orthopedic surgeon, discussed treatment of appellant’s right knee and back conditions. He
diagnosed a chronic lumbar strain by history and status post medial meniscectomy and pes
transfer, right knee with anterior cruciate deficient knee.
On February 3, 1986 OWCP granted appellant a schedule award for 18 percent
permanent impairment of his right leg. In a November 13, 1986 decision, it reduced his
compensation to reflect his ability to earn wages in the constructed position of cashier.
Appellant received treatment for his right knee condition from attending physicians.
OWCP noted in early 2011 that the record lacked current medical reports from these physicians
and therefore it referred him for a second opinion examination to Dr. Stanley W. Collis, a Boardcertified orthopedic surgeon.4
In a May 17, 2011 report, Dr. Collis detailed appellant’s August 5, 1980 and July 2, 1981
work injuries as well as the mid-1970s injury in the military which led to a right knee
meniscectomy. He also noted appellant’s history of right knee surgery in September 1980.
Dr. Collis reported findings on physical examination including full range of right knee motion,
good right quadriceps strength and no lateral, anterior or posterior instability of the right knee,
lack of spasm or tenderness in the back and reasonably good range of back motion. McMurray’s
sign was not elicited, knee and ankle reflexes were equal bilaterally and appellant did not have
any obvious pain upon knee motion. Dr. Collis noted that the examination did not reveal any
objective evidence of residuals of the accepted work injuries with respect to the right knee, back
or right elbow. He indicated that there was no evidence of a work-related permanent aggravation
of the right knee, but he found that appellant’s need for work restrictions was due to the
preexisting degenerative condition of his right knee.

2

Appellant originally injured his right knee in the military in the mid-1970s and underwent meniscectomy
surgery on the same knee. The injury has been variously reported as occurring in 1974, 1975 or 1976.
3

After stopping work for the employing establishment, appellant performed work for private employers. He has
not worked since the late 1980s.
4

The last medical evidence of record prior to the time of the second opinion referral was a December 19, 2008
report in which an attending physician stated that appellant reported right knee and leg pain. The physician did not
provide any examination findings, but noted that appellant should continue with work restrictions.

2

In a June 1, 2011 letter, OWCP advised appellant that it proposed to terminate his wageloss compensation and medical benefits as he had no residuals of his accepted work injuries.
The proposed action was based on the opinion of Dr. Collis. Appellant was provided 30 days to
submit evidence and argument challenging the proposed termination action.
In an August 5, 2011 decision, OWCP terminated appellant’s wage-loss compensation
and medical benefits effective August 5, 2011 noting that the weight of the medical opinion
evidence, represented by the opinion of Dr. Collis, showed that his accepted work-related
conditions had resolved.
Appellant requested a hearing with an OWCP hearing representative. Prior to the
hearing, the hearing representative issued a November 3, 2011 decision setting aside OWCP’s
August 5, 2011 decision and remanding the case to OWCP for further development. He found
Dr. Collis’ May 17, 2011 report was not based on a complete and accurate statement of accepted
facts and noted therefore that OWCP had not met its burden to terminate appellant’s
compensation. The hearing representative determined that, since OWCP had not advised
Dr. Collis of the exact nature of the preexisting right knee problem that was aggravated by the
July 2, 1981 work injury (old disruption of anterior cruciate ligament), his opinion was of
insufficient probative value to show the injury-related conditions had resolved. He directed
OWCP to advise Dr. Collis of the specific nature of the preexisting right knee condition that was
aggravated by the July 2, 1981 work injury and to ask him to explain whether appellant still had
residuals of the accepted aggravation.
OWCP wrote to Dr. Collis and requested a supplemental report on November 7, 2011. In
an undated report received on November 10, 2011, Dr. Collis responded that he was aware of the
accepted facts included a diagnosis of permanent aggravation of old disruption of anterior
cruciate ligament and stated, “Apparently, it was temporary since the examination reveals no
anterior instability or any other instability.” He indicated that knee x-rays revealed some
narrowing of the medial compartment that was “developmental post two surgeries for
preexisting” but not work-related injuries.5
By decision dated November 30, 2011, OWCP indicated that it was terminating
appellant’s wage-loss and medical benefits effective November 30, 2011.6 It found that the
opinion of Dr. Collis showed that appellant ceased to have residuals of his accepted work
injuries. OWCP indicated that Dr. Collis determined that there was no current instability of
appellant’s right knee and reasoned any aggravation of his right knee by his federal employment
was temporary and without current objective residuals.
Appellant requested a telephonic hearing with an OWCP hearing representative and a
hearing was held on June 7, 2012. During the hearing, he testified that he continued to have
5

Dr. Collis made reference to appellant’s left knee, but this reference appears to have been inadvertent as it is
clear from his May 17, 2011 report that he understood that appellant’s right knee condition was accepted as work
related.
6

OWCP indicated that appellant’s wage-loss compensation and medical benefits were terminated effective
November 30, 2011, but those benefits were terminated on August 5, 2011. It did not reinstate his compensation
after setting aside its August 5, 2011 termination decision.

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work-related residuals and indicated that he would be submitting a medical report of
Dr. Richard T. Sheridan, an attending Board-certified orthopedic surgeon.
In a June 5, 2012 report, Dr. Sheridan discussed appellant’s medical history, including his
two work-related injuries and reported his findings on physical examination. He stated that
appellant’s right knee condition had not resumed a baseline level of progression as a result of his
1980 and 1981 injuries. Dr. Sheridan noted that appellant also had residuals of his work-related
lumbar contusion and strain as evidenced by some diminution of back motion and by positive
straight leg raising tests. He posited that appellant still had work restrictions (including no
lifting, pushing or pulling more than 20 pounds) due to his accepted work injuries.
By decision dated August 23, 2012, an OWCP hearing representative determined that
OWCP had properly terminated appellant’s wage-loss compensation and medical benefits, but
noted that the receipt of new evidence after the hearing established a conflict in medical evidence
between Dr. Collis and Dr. Sheridan. The hearing representative remanded the case to OWCP
and instructed it to refer appellant for an independent medical examination to resolve the
conflict.
OWCP referred appellant to Dr. Robert F. Baker, a Board-certified orthopedic specialist,
for an independent medical examination and opinion regarding whether appellant continued to
have residuals of his accepted work injuries.
In a November 5, 2012 report, Dr. Baker discussed the medical history of record and
detailed prior findings on physical examination and diagnostic testing. He reported the findings
of his own physical examination noting that appellant walked in a slow deliberate manner with a
stabilizing brace on the right knee. Dr. Baker stated that appellant did not exhibit any classic
pain behavior but noted that on several occasions he expressed discomfort with pain in his right
knee. Appellant complained of tenderness to very light palpation of his right knee and there was
no significant swelling of his right knee. Dr. Baker noted that it was difficult to assess
appellant’s right knee stability due to pain complaints, but indicated that he had 2+ instability
with right knee flexion in the varus/valgus directions and about 1+ instability with anterior
posterior stress. He stated that the 1980 arthroscopy revealed that only the plica was restricted
and showed evidence of the old anterior cruciate ligament injury. Dr. Baker stated:
“Subsequent to the injury wherein [appellant] fell on July 2, 1981, he was treated
conservatively and then subsequently released from the orthopedic clinic on
October 1, 1981 and given a return on [an as needed] basis only. No further
evidence of follow up from an orthopedic point of view with respect to the knee
was noted in the records until the October 22, 1985 evaluation by Dr. [Goodman]
as noted above. Therefore, it would be medically probable to state that there was
no evidence of any permanent aggravation to [appellant’s] chronic right knee
problem from either the August 5, 1980 or the July 2, 1981 incidents.
“With respect to [appellant’s] knee, the steady progression of the degenerative
changes primarily affecting the medial joint compartment and the patellofemoral
joint are in my opinion secondary and a not unusual consequence of the incident
that occurred while on active duty which caused his partial medial meniscectomy

4

and [anterior cruciate ligament] disruption and subsequently chronically unstable
right knee.
“On this basis, it would be my opinion that [appellant] could only perform a sitdown type job where he would not be standing or repetitively walking or climbing
or descending stairs or ladders with respect to the right knee. Again, I would
emphasize that, in my opinion, the restrictions suggested for the right knee would
be on the basis of the sequelae of the original incident that occurred in 1976. (It
will be noted that the date of the original injury is not represented by any
documentation of treatment and the date given to me today by [appellant] was
1974 and it is to be noted that other individuals and evaluating physicians in the
record have either said 1974, 1975 or 1976.)”
In a December 3, 2012 decision, OWCP found that appellant had not met his burden of
proof to establish residuals of his accepted work injuries after November 30, 2011. It based this
decision on the opinion of Dr. Baker.
Appellant disagreed with this decision and requested a review of the written record by an
OWCP hearing representative. In an April 24, 2013 decision, the hearing representative affirmed
OWCP’s December 3, 2011 decision. The hearing representative found that the original
November 30, 2011 termination of appellant’s compensation was proper and also found that he
did not meet his burden of proof to establish continuing residuals of his accepted work injuries
after November 30, 2011.
LEGAL PRECEDENT -- ISSUE 1
Under FECA, once OWCP has accepted a claim it has the burden of justifying
termination or modification of compensation benefits.7 It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.8
OWCP’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.9
ANALYSIS -- ISSUE 1
OWCP accepted that on August 5, 1980 appellant sustained a right knee contusion when
he bumped his right knee on a desk and, in September 1980, he underwent OWCP-authorized
surgery on his right knee.10 Appellant was injured again on July 2, 1981 due to a fall down steps
at work and OWCP initially accepted this injury for right knee contusion, right elbow abrasion,
lumbar spine contusion and lumbosacral sprain. OWCP later accepted that on July 2, 1981 he
7

Charles E. Minniss, 40 ECAB 708, 716 (1989); Vivien L. Minor, 37 ECAB 541, 546 (1986).

8

Id.

9

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

10

Appellant originally injured his right knee in the military in the mid-1970s and underwent meniscectomy
surgery on the same knee.

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sustained a permanent aggravation of the underlying right knee condition of old disruption of
anterior cruciate ligament. It terminated appellant’s wage-loss compensation and medical
benefits effective November 30, 2011 based on the opinion of Dr. Collis, a Board-certified
orthopedic surgeon serving as an OWCP referral physician, who produced a May 17, 2011 report
and a supplemental report, which was received on November 10, 2011.11
The Board finds that the weight of the medical evidence regarding whether appellant had
work-related residuals after November 30, 2011 is represented by the thorough, well-rationalized
opinion of Dr. Collis. The reports of Dr. Collis establish that after November 30, 2011 appellant
did not have residuals of his August 5, 1980 and July 2, 1981 work injuries and OWCP met its
burden of proof to terminate his wage-loss and medical benefits effective November 30, 2011.
In his reports, Dr. Collis detailed appellant’s factual and medical history, including the
August 5, 1980 and July 2, 1981 work injuries and his findings on physical examination.12 He
noted that appellant had full range of right knee motion, good right quadriceps strength and
reasonably good range of back motion. There was no lateral, anterior or posterior instability of
the right knee and there was no spasm or tenderness in the back. Dr. Collis noted that the
examination did not reveal any objective evidence of residuals of the accepted work injuries with
respect to the right knee, back or right elbow. He also indicated that there was no evidence of a
work-related permanent aggravation of the right knee.
The Board has carefully reviewed the opinion of Dr. Collis and notes that it has
reliability, probative value and convincing quality with respect to its conclusions regarding the
relevant issue of the present case. Dr. Collis provided a thorough factual and medical history and
accurately summarized the relevant medical evidence.13 He provided medical rationale for his
opinion by explaining that there was no objective evidence of appellant’s work injuries and
noting that his need for work restrictions was due to the preexisting degenerative condition of his
right knee. Appellant did not submit medical evidence showing that he had continuing workrelated residuals. Therefore, OWCP properly terminated appellant’s compensation effective
November 30, 2011.14

11

OWCP initially terminated appellant’s compensation effective August 5, 2011 based on Dr. Collis’ May 17,
2011 report, but it set aside this termination action and requested Dr. Collis produce a supplemental report to clarify
his opinion. After receiving Dr. Collis’ supplemental report, it terminated appellant’s compensation effective
November 30, 2011.
12

In a report received on November 10, 2011, Dr. Collis noted that he was aware that the accepted facts included
a diagnosis of permanent aggravation of the preexisting condition of old disruption of anterior cruciate ligament.
13

See Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1957).

14

OWCP indicated that appellant’s wage-loss compensation and medical benefits were terminated effective
November 30, 2011, but they actually had been terminated since August 5, 2011. It did not reinstate his
compensation after setting aside its August 5, 2011 termination decision. Appellant would be entitled to wage-loss
compensation and medical benefits from August 5 to November 30, 2011.

6

LEGAL PRECEDENT -- ISSUE 2
After termination or modification of compensation benefits, clearly warranted on the
basis of the evidence, the burden for reinstating compensation benefits shifts to appellant. In
order to prevail, appellant must establish by the weight of the reliable, probative and substantial
evidence that he had an employment-related disability which continued after termination of
compensation benefits.15
Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”16 In situations
where there exist opposing medical reports of virtually equal weight and rationale and the case is
referred to an impartial medical specialist for the purpose of resolving the conflict, the opinion of
such specialist, if sufficiently well rationalized and based upon a proper factual background,
must be given special weight.17
In a situation where OWCP secures an opinion from an impartial medical examiner for
the purpose of resolving a conflict in the medical evidence and the opinion from such examiner
requires clarification or elaboration, it has the responsibility to secure a supplemental report from
the examiner for the purpose of correcting the defect in the original opinion.18
ANALYSIS -- ISSUE 2
After OWCP’s November 30, 2011 decision terminating appellant’s compensation
effective November 30, 2011, he submitted additional medical evidence. Given that the Board
has found that OWCP properly relied on the opinion of OWCP’s referral physician, Dr. Collis, in
terminating his compensation effective November 30, 2011, the burden shifts to him to establish
that he is entitled to compensation after that date.
Appellant submitted a June 5, 2012 report in which Dr. Sheridan, an attending Boardcertified orthopedic surgeon, determined that he continued to have work-related residuals after
November 30, 2011. OWCP determined that there was a conflict in the medical opinion between
Dr. Sheridan and Dr. Collis on the issue of whether appellant met his burden of proof to establish
that he had residuals of his accepted work injuries after November 30, 2011. In order to resolve
the conflict, it properly referred appellant to Dr. Baker, a Board-certified orthopedic surgeon, for
an impartial medical examination and an opinion on the matter.19

15

Wentworth M. Murray, 7 ECAB 570, 572 (1955).

16

5 U.S.C. § 8123(a).

17

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

18

Nancy Lackner (Jack D. Lackner), 40 ECAB 232, 238 (1988).

19

See supra note 16.

7

In a November 5, 2012 report, Dr. Baker reported physical examination findings noting
appellant complained of tenderness to very light palpation of his right knee and that he had 2+
instability with right knee flexion in the varus/valgus directions and about 1+ instability with
anterior posterior stress. He discussed appellant’s treatment after his 1980 and 1981 work
injuries and stated, “Therefore, it would be medically probable to state there was no evidence of
any permanent aggravation to [appellant’s] chronic right knee problem from either the August 8,
1980 or the July 2, 1981 incidents.” In the next paragraph, Dr. Baker stated that the steady
progression of the degenerative changes of appellant’s right knee were a “secondary and a not
unusual consequence of the incident that occurred while on active duty” which in turn caused the
need for right meniscectomy surgery and the anterior cruciate ligament disruption which led to a
chronically unstable right knee.
The Board finds that the opinion of Dr. Baker is not sufficiently well rationalized to
constitute the weight of the medical evidence regarding appellant’s claim that he had workrelated residuals after November 30, 2011.20 The Board notes that it remains unclear whether
Dr. Baker has acknowledged OWCP’s accepted that appellant sustained a permanent aggravation
of the underlying right knee condition of old disruption of anterior cruciate ligament. As noted,
an opinion on causal relationship must be based on a complete and accurate factual and medical
history.21 His opinion is vague with respect to this matter. Dr. Baker’s report also indicates that
he felt that appellant’s right knee problems were due to his military injury in the mid-1970s.
However, Dr. Baker did not provide a detailed history of appellant’s military injury or explain
how it could be the cause of his current right knee problems.
For these reasons, the opinion of Dr. Baker is in need of clarification and elaboration.
The case will be remanded to OWCP for referral of the case record, a statement of accepted facts
and, if necessary, appellant, to Dr. Baker for a supplemental report regarding whether appellant
had continuing residuals of his accepted work injuries after November 30, 2011. If Dr. Baker is
unable to clarify or elaborate on his original report or if his supplemental report is also vague,
speculative or lacking in rationale, OWCP must submit the case record and a detailed statement of
accepted facts to a second impartial specialist for the purpose of obtaining his or her rationalized
medical opinion on the issue.22 After such further development as OWCP deems necessary, an
appropriate decision should be issued regarding whether appellant had residuals of his accepted
work injuries after November 30, 2011.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation benefits effective November 30, 2011 on the grounds that he had no residuals of
his accepted work injuries after that date. Appellant is entitled to receive wage-loss
compensation and medical benefits between August 5 and November 30, 2011. The Board

20

See supra note 17.

21

See supra note 9.

22

Harold Travis, 30 ECAB 1071, 1078 (1979).

8

further finds that the case is not in posture for decision regarding whether he met his burden of
proof to establish that he had residuals of his accepted work injuries after November 30, 2011.
ORDER
IT IS HEREBY ORDERED THAT the April 24, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed as modified to reflect that OWCP met its burden
of proof to terminate appellant’s compensation benefits effective November 30, 2011, but that he
would be entitled to receive wage-loss compensation and medical benefits between August 5 and
November 30, 2011. The April 24, 2013 decision is set aside with respect to the matter of
whether appellant has established that he had residuals of his accepted work injuries after
November 30, 2011 and the case is remanded to OWCP for further development.
Issued: April 11, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. CUSTOMS & BORDER PROTECTION,
Porthill, ID, Employer
__________________________________________

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

Docket No. 21-1336
Issued: March 11, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 4, 2021 appellant filed a timely appeal from March 16 and August 30, 2021
merit decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
FACTUAL HISTORY
On July 30, 2019 appellant, then a 54-year-old customs and border patrol officer, filed an
occupational disease claim (Form CA-2) alleging that he sustained Valley Fever
(coccidioidomycosis) causally related to factors of his federal employment while deployed to the
1

5 U.S.C. § 8101 et seq.

southern border. He noted that he first became aware of his claimed condition and its relation to
his federal employment on July 12, 2019. On July 12, 2019 Dr. Jonathan Klaucke, a Boardcertified orthopedic surgeon, performed left ankle surgery, later authorized by OWCP, which
included incision, drainage, and washing out of the left subtalar and tibiotalar joints. Appellant
stopped work on the date of the surgery and returned to work in late-July 2019 in a light-duty
position. Dr. Klaucke provided follow-up care until late-December 2019. After development of
the evidence, OWCP accepted appellant’s claim for Valley Fever and septic arthritis of the left
ankle.
On May 3, 2020 appellant filed a claim for compensation (Form CA-7) for a schedule
award due to his accepted work-related conditions.
In a May 11, 2020 development letter, OWCP requested that appellant submit an
impairment rating report, which applied the standards of the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).2 It afforded
him 30 days to submit the requested evidence.
OWCP subsequently received a May 18, 2020 letter in which appellant requested that
OWCP send him for a second opinion examination and evaluation to assess his permanent
impairment.
On December 14, 2020 OWCP referred appellant, along with a statement of accepted facts
(SOAF), for a second opinion examination and evaluation with Dr. Steven Nadler, a Boardcertified orthopedic surgeon. It requested that Dr. Nadler provide an opinion on the permanent
impairment of appellant’s left lower extremity under the standards of the sixth edition of the
A.M.A., Guides.
In a January 28, 2021 report, Dr. Nadler discussed appellant’s factual and medical history
and reported the findings of his physical examination. He noted that appellant had a well-healed
scar on his left ankle and indicated that the septic arthritis would affect the left ankle joint and
leave patients with residual symptoms. Dr. Nadler opined that appellant reached maximum
medical improvement (MMI) on April 29, 2020 and indicated that he had ordered weight-bearing
x-rays of the ankles to determine if there was any loss of cartilage space. In a February 4, 2021
addendum report, he concluded that, based on his examination and review of x-ray testing,
appellant had no impairment of the left lower extremity due to his accepted left ankle conditions
under the sixth edition of the A.M.A., Guides. Dr. Nadler indicated that February 1, 2021 x-ray
testing of the right ankle revealed that the joint space was preserved and noted, “[b]ased on this
ﬁnding that the joint space is preserved and equal to that of the left, the patient is not entitled to an
impairment rating at this time as a result of his injury at work.”
On February 8, 2021 OWCP referred appellant’s case to Dr. David Krohn, a Boardcertified internist serving as an OWCP district medical adviser (DMA). It requested that Dr. Krohn

2

A.M.A., Guides (6 th ed. 2009).

2

review the evidence of record, including Dr. Nadler’s reports, and provide an opinion on left lower
extremity permanent impairment under the standards of the sixth edition of the A.M.A., Guides.
In a March 11, 2021 report, Dr. Krohn indicated his agreement with Dr. Nadler that
appellant did not have permanent impairment under the sixth edition of the A.M.A., Guides. He
explained that, under Table 16-2 on page 506, permanent impairment for arthritis could only be
assigned when there was x-ray evidence of mild osteophytes with impingement, full-thickness
cartilage defect, cystic changes on one side of the joint, focal areas of avascular necrosis, or
ununited osteochondral fracture. Dr. Krohn added that, alternately, subtalar joint impairment
could be assigned for a cartilage interval of less than two millimeters or, with respect to the
tibiotalar joint, for a cartilage interval of less than three millimeters. He noted that weight-bearing
x-rays of the ankles ordered by Dr. Nadler on February 1, 2021 demonstrated that the articular
surfaces were smooth with normal cartilage intervals of the tibiotalar and subtalar joints.
Dr. Krohn opined that, therefore, appellant had preserved joint spaces without radiographic
evidence of arthritis. There was no narrowing of the cartilage interval on the left compared with
the right. Dr. Krohn indicated that, given that the radiologist’s interpretation of the left ankle
x-rays demonstrated normal appearing ankle joints symmetrically, “impairment for arthritis of the
subtalar and tibiotalar joints each is Class 0, correlating with zero percent impairment of the left
lower extremity” under Table 16-2 of the sixth edition of the A.M.A., Guides.
By decision dated March 16, 2021, OWCP denied appellant’s schedule award claim,
finding that the weight of the medical opinion evidence regarding left lower extremity permanent
impairment rested with the opinions of Dr. Nadler, OWCP’s referral physician, and Dr. Krohn, the
DMA.
On March 23, 2021 appellant requested a telephonic hearing before a representative of
OWCP’s Branch of Hearings Review. During the hearing held on July 7, 2021, he testified that
he still experienced pain in his left ankle.
By decision dated August 30, 2021, OWCP’s hearing representative affirmed the
March 16, 2021 decision.
LEGAL PRECEDENT
The schedule award provisions of FECA 3 and its implementing federal regulations 4 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall b e determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants and the Board has

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

3

concurred in such adoption.5 As of May 1, 2009, the sixth edition of the A.M.A., Guides is used
to calculate schedule awards. 6
In determining impairment for the lower extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the lower extremity
to be rated. With respect to the ankle, the relevant portion of the leg for the present case, reference
is made to Table 16-2 (Foot and Ankle Regional Grid) beginning on page 501. 7 After the class of
diagnosis (CDX) is determined from Table 16-1 (including identification of a default grade value),
the net adjustment formula is applied utilizing modifiers for functional history, physical
examination, and clinical studies.8
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
In a January 28, 2021 report, OWCP’s referral physician, Dr. Nadler, discussed appellant’s
factual and medical history and reported the findings of his physical examination. He noted that
appellant had a well-healed scar on his left ankle and opined that he reached MMI on
April 29, 2020. Dr. Nadler ordered weight-bearing x-rays of the ankles to determine if there was
any loss of cartilage space. In a February 4, 2021 addendum report, he concluded that, based on
his examination and review of x-ray testing, appellant had no permanent impairment of the left
lower extremity due to his accepted left ankle conditions under the six th edition of the A.M.A.,
Guides. Dr. Nadler indicated that February 1, 2021 x-ray testing of the right ankle revealed that
the joint space was preserved and noted, “[b]ased on this ﬁnding that the joint space is preserved
and equal to that of the left, the patient is not entitled to an impairment rating at this time as a result
of his injury at work.”
In his March 11, 2021 report, DMA Dr. Krohn indicated his agreement with Dr. Nadler
that appellant did not have permanent impairment under the sixth edition of the A.M.A., Guides.
He explained that, under Table 16-2 on page 506, permanent impairment for arthritis could only
be assigned when there was x-ray evidence of mild osteophytes with impingement, full-thickness
cartilage defect, cystic changes on one side of the joint, focal areas of avascular necrosis, or
ununited osteochondral fracture. Dr. Krohn added that, alternately, subtalar joint impairment
could be assigned for a cartilage interval of less than two millimeters or, with respect to the
tibiotalar joint, for a cartilage interval of less than three millimeters. He indicated that, given that
the radiologist’s interpretation of the left ankle x-rays demonstrated normal appearing ankle joints

5

Id.; see V.J., Docket No. 1789 (issued April 8, 2020); Jacqueline S. Harris, 54 ECAB 139 (2002).

6
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims, Chapter
2.808.5a (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and
Exhibit 1 (January 2010).
7

See A.M.A., Guides 501-08 (6 th ed. 2009).

8

Id. at 515-22.

4

symmetrically, “impairment for arthritis of the subtalar and tibiotalar joints each is Class 0,
correlating with 0 [percent] impairment of the left lower extremity” under Table 16-2.
Dr. Nadler, OWCP’s referral physician, and Dr. Krohn, the DMA properly applied the
A.M.A., Guides in finding that appellant had no permanent impairment of a scheduled member or
function of the body.9 As their reports were detailed, well rationalized, and based on a proper
factual background and application of the sixth edition of the A.M.A., Guides, their opinions
represent the weight of the medical evidence. 10
As there is no other current medical evidence in conformance with the sixth edition of the
A.M.A., Guides establishing permanent impairment of a scheduled member or function of the
body, the Board finds that appellant has met not his burden of proof.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased permanent impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.

9

See B.B., Docket No. 20-1187 (issued November 18, 2021); M.D., Docket No. 20-0007 (issued May 13, 2020);
M.S., Docket No. 19-1011 (issued October 29, 2019); W.H., Docket No. 19-0102 (issued June 21, 2019); J.M., Docket
No. 18-1387 (issued February 1, 2019).
10

See B.B., id., D.S., Docket No. 18-1816 (issued June 20, 2019).

5

ORDER
IT IS HEREBY ORDERED THAT the March 16 and August 30, 2021 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 11, 2022
Washington, DC

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

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.P., Appellant
and
DEPARTMENT OF AGRICULTURE,
FOREST SERVICE, Albuquerque, NM,
Employer
__________________________________________

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

Docket No. 12-302
Issued: June 25, 2012

Case Submitted on the Record

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

JURISDICTION
On November 28, 2011 appellant, through his attorney, filed a timely appeal from the
October 24, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying his claim for work-related right knee arthrofibrosis and authorization of right knee
arthroscopic surgery. 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 work-related
arthrofibrosis of his right knee or that a repeat arthroscopic surgery of his right knee should be
authorized.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
OWCP accepted that on February 4, 2007 appellant, a 34-year-old social service
assistant, sustained injury to his right knee due to an incident at work. On February 4, 2007 he
was walking up stairs, slipped on salt used for winter weather and, while recovering his balance,
felt pain in his right knee. Appellant did not fall to the ground. The claim was accepted for a
torn medial meniscus of the right knee. OWCP authorized a May 9, 2007 right knee arthroscopy
with medial shelf plica excision and minor synovectomy by Dr. Michael R. Magoline, an
attending Board-certified orthopedic surgeon. It was later accepted that appellant sustained
thrombosis of his right leg as a result of the authorized surgery. Appellant received wage-loss
compensation for periods of disability.2
To determine the nature of appellant’s work-related residuals and his need for further
medical treatment, OWCP scheduled a second opinion examination. In an October 19, 2009
report, Dr. Manhal A. Ghanma, a Board-certified orthopedic surgeon, reviewed the medical
evidence of record, listed a history of appellant’s injury and detailed findings of his medical
examination. Upon physical examination, the right knee range of motion was from 0 to 120
degrees of flexion, the right knee measured 38 centimeters and the left knee measured 39
centimeters. The right calf measured 35 centimeters, the left calf measured 34 centimeters, both
thighs were equal at 42 centimeters and the knees were nine degrees of valgus bilaterally, with
no evidence of popliteal cysts. Dr. Ghanma noted that there was no evidence of any
discoloration or swelling of the right knee and no evidence of any localizing tenderness on
examination. He reported there was no abnormality of gait, stance, balance or motor strength.
Dr. Ghanma advised that there were no current findings to support evidence of the work-related
right medial meniscus tear that was still active or causing objective symptoms. He stated that
there were no residuals from appellant’s work injury and that he could return to his date-ofinjury job in a full-duty capacity. Dr. Ghanma advised that no additional medical treatment was
necessary.
In an October 26, 2009 report, Dr. Magoline requested that OWCP authorize another
arthroscopy of appellant’s right knee due to persistent pain. Upon examination on the right knee,
appellant had tenderness over the lateral retinaculum and crepitus with range of motion and that
he also had mild pain anteriorly. Dr. Magoline diagnosed chondromalacia patella with
patellofemoral mal tracking and possible painful scar tissue, i.e., arthrofibrosis. He stated that
the surgical plan would be to inspect the patellofemoral joint and to possibly perform a lateral
release and resect scar tissue, as necessary.
On December 7, 2010 OWCP sent Dr. Ghanma’s report to Dr. Magoline for his review
and comments. On January 18, 2010 Dr. Magoline responded that he had read and reviewed
Dr. Ghanma’s report. He noted that, while there was no lymphadenopathy present, appellant
continued to complain of right anterior knee pain with some peripatellar tenderness over both the
lateral aspect and the medial aspect of the knee. Dr. Magoline felt that these findings were
consistent with the existence of scar tissue in the right knee. He diagnosed status post right knee

2

Appellant stopped work on February 4, 2007 and did not return to work.

2

arthroscopy with excision of medial shelf plica, ongoing on the right. Dr. Magoline again
recommended a repeat arthroscopy of the right knee.
Due to the difference in medical opinion regarding the nature of appellant’s medical
condition and the need for surgery, OWCP found a conflict in medical opinion between
Dr. Magoline and Dr. Ghanma. It referred appellant to Dr. Robert Kleinman, a Board-certified
orthopedic surgeon, for an impartial medical examination.
Dr. Kleinman performed an impartial medical examination on February 23, 2010. In a
March 1, 2010 report, he detailed his review of the case file and described appellant’s medical
history and findings on physical examination. Appellant did not exhibit right knee effusion, but
there was positive crepitation with active range of motion of both knees which was painful on the
right but not on the left. Dr. Kleinman noted free range of motion in the right hip, no varus or
valgus instability and negative Lachman’s, anterior drawer and McMurray’s tests. He stated that
appellant’s thighs showed no difference in circumference, but that the right calf measured two
centimeters larger in circumference compared to the left calf. There was minimal tenderness on
palpation in the calf region and pain on palpation over the anteromedial joint line, anterolateral
joint line and the medial and lateral parapatellar regions, medial greater than lateral.
Dr. Kleinman stated that there was a positive patellar inhibition test, that appellant could perform
2/3 of a squat before it became too painful and that he could walk on his heels and toes.
Appellant had 0 to 120 degrees active range of motion in his right knee and that, while doing a
McMurray’s test, he could get to 130 degrees. Dr. Kleinman diagnosed a right medial meniscus
tear by history, thrombosis of the right lower extremity, chondromalacia of the right knee patella
and medial plica by history.
Dr. Kleinman advised that the right knee torn medial meniscus and thrombosis of the
right leg were work related, but that the other two diagnoses were not work related. He
explained that, despite an initial magnetic resonance imaging (MRI) scan test that showed an
abnormality in the medial meniscus, arthroscopic evaluation indicated that the medial meniscus
was intact and the September 9, 2009 MRI scan showed that there was no evidence of internal
derangement.3 Dr. Kleinman found there was no further residual related to the medial meniscal
tear and posited that appellant’s symptoms did not appear related to the medial meniscus as he
demonstrated minimal pain in the region of the posterior horn of the medial meniscus and had a
negative McMurray’s test. He noted that there were no objective findings to support residuals of
the right lower extremity arthrosis as still being present and active. Appellant was capable of
returning to his duties as a social service assistant with the limitation of no standing or walking
for greater than two hours at a time and no greater than four hours in a shift. Dr. Kleinman noted
this restriction was based strictly on the residual of the thrombosis. He stated that no further
treatment was required for the allowed condition of the tear of the medial meniscus of the right
knee and that the venous thrombosis could be treated with periodic elevation and the use of
nonsteroidal anti-inflammatory medication. Dr. Kleinman stated that no surgical treatment was
required for the allowed conditions in appellant’s claim and that the proposed surgical treatment
was directed at medical conditions that were not work related.

3

Dr. Kleinman indicated that arthroscopic evaluation was the most accurate method of assessing a meniscal tear.

3

Dr. Kleinman’s report was sent to Dr. Magoline on March 24, 2010 for review. On
April 12, 2010 Dr. Magoline responded that appellant likely had parapatellar adhesions that were
definitely related to his original surgery and that he required surgery for this condition. On
May 17, 2010 he provided a further diagnosis of arthrofibrosis of the right knee and advised that
this condition should be allowed in the claim due to the long-standing postoperative troubles
appellant experienced with his right knee.
The reports of Dr. Magoline were sent to Dr. Kleinman for review and comment.
Dr. Kleinman provided an addendum report dated June 16, 2010, stating that in his medical
opinion, appellant did not have right knee arthrofibrosis. He noted that arthrofibrosis was
typically a complication of either a knee injury or a surgical procedure on the knee leading to
excessive scar tissue and painful loss of motion in that knee. Dr. Kleinman stated that during the
February 23, 2010 physical examination appellant demonstrated actively 0 to 120 degrees of
right knee motion and passively he could get appellant to 130 degrees of motion of the knee.
These findings were inconsistent with the diagnosis of arthrofibrosis and he concluded there was
insufficient objective medical evidence to support the diagnosis of arthrofibrosis.
Dr. Kleinman advised that appellant’s current knee complaints were related to
chondromalacia of the patellofemoral joint along with thinning of the retropatellar cartilage. He
explained that the surgery performed on May 9, 2007 included a minor synovectomy and that a
medial plica was resected. Dr. Magoline had noted a lateral tilt of the patella on radiographic
studies, a radiographic finding which was often associated with chondromalacia patella and
thought to be one of the possible causes of chondromalacia patella. He opined that, if scar tissue
had formed from the synovectomy and excision of the medial plica, it would have resulted in
scarring along the medial side of the patellofemoral joint and compressed the medial side of the
patella. Such findings would be inconsistent with a lateral patellar tilt. Dr. Kleinman opined that
this lateral tilt preexisted the injury and it was noted upon examination that both knees
demonstrated crepitation with active flexion and extension, findings consistent with
chondromalacia of the patella. He concluded that arthroscopic surgery to address adhesions in
the right knee was not medically necessary and posited that there was no further treatment
necessary for the allowed knee conditions related to the February 4, 2007 work injury.
In a November 16, 2010 decision, OWCP denied appellant’s claim finding that he did not
sustain work-related arthrofibrosis of his right knee or establish that repeat arthroscopic surgery
of his right knee should be authorized. It found that the special weight of the medical opinion
evidence rested with the impartial opinion of Dr. Kleinman.
Appellant requested a hearing with an OWCP hearing representative. During a telephone
hearing held on March 15, 2011, counsel contended that the opinion of Dr. Kleinman was not
sufficiently well rationalized to constitute the weight of the medical evidence. He argued that
there was no conflict in medical opinion as to the existence of arthrofibrosis and, therefore,
Dr. Magoline’s opinion should be accepted.
In a May 4, 2011 decision, OWCP’s hearing representative affirmed the November 16,
2010 decision. He found that the weight of the medical evidence with respect to appellant’s
claimed conditions and request for additional surgery was with the opinion of Dr. Kleinman.

4

In an August 3, 2011 report, Dr. Magoline stated that he had been following appellant
with regards to his right knee for over a year. Appellant had a prior work-related injury to his
right knee and underwent a right knee arthroscopy complicated by deep vein thrombosis and
hemarthrosis within the right knee. He had persistent right knee pain since that time.
Dr. Magoline stated that appellant suffered postoperative adhesions in his right knee related to
his initial right knee surgery which occurred as a result of his work-related injury. He posited
that appellant suffered complications postoperatively as a result of his right knee surgery which
was performed due to his work-related injury and therefore it should be acceptable to be able to
treat him for these complications. Dr. Magoline stated:
“[Appellant] has failed all conservative management for this and the only thing
that I can offer him at this point in time is a repeat arthroscopy of the right knee
with lysis of adhesions and examination of his patellofemoral joint. I feel this is
reasonable given the circumstances. It is my strong feeling that this should be
also included in [appellant’s] workers’ compensation claim as these complications
have occurred as a direct result of the surgery which was performed to address his
work[-]related injury.”
In an October 24, 2011 decision, OWCP affirmed its May 4, 2011 decision denying
appellant’s claim for work-related arthrofibrosis and additional right knee surgery.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his claim including the fact that the individual is an “employee of the United States”
within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any specific condition for which compensation is claimed is causally related to the
employment injury.4 The medical evidence required to establish a causal relationship between a
specific claimed condition and an accepted employment injury 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 was a causal relationship between
the claimant’s diagnosed condition and the compensable 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.5
Section 8103(a) of FECA states in pertinent part: “The United States shall furnish to an
employee who is injured while in the performance of duty, the services, appliances, and supplies
prescribed or recommended by a qualified physician, which the Secretary of Labor considers
likely to cure, give relief, reduce the degree or the period of disability or aid in lessening the

4

J.F., Docket No. 09-1061 (issued November 17, 2009).

5

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

5

amount of the monthly compensation.”6 The Board has found that OWCP has great discretion in
determining whether a particular type of treatment is likely to cure or give relief.7 The only
limitation on OWCP’s authority is that of reasonableness.8 Abuse of discretion is generally
shown through proof of manifest error, clearly unreasonable exercise of judgment or actions
taken which are contrary to both logic and probable deductions from established facts. It is not
enough to merely show that the evidence could be construed so as to produce a contrary factual
conclusion.9
Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”10 In situations
where there exist opposing medical reports of virtually equal weight and rationale and the case is
referred to an impartial medical specialist for the purpose of resolving the conflict, the opinion of
such specialist, if sufficiently well rationalized and based upon a proper factual background,
must be given special weight.11
ANALYSIS
OWCP accepted that on February 4, 2007 appellant sustained a torn medial meniscus of
his right knee when he slipped on stairs at work. It authorized a May 9, 2007 right knee
arthroscopy with medial shelf plica excision and minor synovectomy by Dr. Magoline, an
attending Board-certified orthopedic surgeon. It was later accepted that appellant sustained
thrombosis of his right leg as a result of the authorized surgery. In October 2009, Dr. Magoline
requested that OWCP authorize another arthroscopy of appellant’s right knee due to persistent
pain. He stated that appellant had painful scar tissue, i.e., arthrofibrosis, which was related to the
May 2007 surgery. OWCP denied appellant’s claim for an additional right knee condition and
his request for further right knee surgery based on the opinion of Dr. Kleinman, a Board-certified
orthopedic surgeon, who served as an impartial medical specialist.
OWCP properly determined that a conflict in medical opinion arose between
Dr. Magoline and Dr. Ghanma, a Board-certified orthopedic surgeon, who served as an OWCP
referral physician. Their medical opinions differed in whether appellant had work-related

6

5 U.S.C. § 8103.

7

Vicky C. Randall, 51 ECAB 357 (2000).

8

Lecil E. Stevens, 49 ECAB 673, 675 (1998).

9

Rosa Lee Jones, 36 ECAB 679 (1985).

10

5 U.S.C. § 8123(a).

11

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

6

arthrofibrosis of the right knee and whether right knee surgery was necessary to treat a
work-related condition.12 In order to resolve the conflict, OWCP properly referred appellant,
pursuant to section 8123(a) of FECA, to Dr. Kleinman, for an impartial medical examination and
an opinion on these matters.13
In a March 1, 2010 report, Dr. Kleinman reported the findings of his February 23, 2010
physical examination and diagnosed a right medial meniscus tear by history, thrombosis of the
right lower extremity, chondromalacia of the right knee patella and medial plica by history. He
advised that the right knee torn medial meniscus and the thrombosis of the right leg were work
related, but that the other two diagnoses were not work related. In a supplemental June 16, 2010
report, Dr. Kleinman concluded that appellant did not have work-related arthrofibrosis of the
right knee. He stated that during the February 23, 2010 physical examination appellant
demonstrated actively 0 to 120 degrees of right knee motion and passively he could get appellant
to 130 degrees of motion of the knee. Dr. Kleinman opined that these findings were inconsistent
with the diagnosis of arthrofibrosis and, therefore, there was insufficient objective medical
evidence to support the diagnosis of arthrofibrosis. He indicated that Dr. Magoline noted a
lateral tilt of the patella on radiographic studies, a radiographic finding which was often
associated with chondromalacia patella. Dr. Kleinman further noted that Dr. Magoline had
opined that if scar tissue had formed from the synovectomy and excision of the medial plica, it
would have resulted in scarring along the medial side of the patellofemoral joint and compressed
the medial side of the patella. He explained that these findings would be inconsistent with a
lateral patellar tilt and opined that this lateral tilt preexisted the work injury. Dr. Kleinman
concluded that arthroscopic surgery to address adhesions in the right knee was not medically
necessary and posited that there was no further treatment necessary for the allowed knee
conditions related to the February 4, 2007 work injury.
The Board has carefully reviewed the opinion of Dr. Kleinman and notes that it has
reliability, probative value and convincing quality with respect to its conclusions regarding the
relevant issues of the present case. Dr. Kleinman provided a thorough factual and medical
history and accurately summarized the relevant medical evidence.14 He provided medical
rationale for his opinion by providing a detailed explanation of how the physical examination
and diagnostic testing findings did not support the existence of work-related arthrofibrosis or the
need for additional right knee surgery due to a work-related condition. Dr. Kleinman further
explained that appellant’s current knee complaints were related to nonwork-related
chondromalacia of the patellofemoral joint along with thinning of the retropatellar cartilage.
12

In October 26, 2009 and January 18, 2010 reports, Dr. Magoline provided an opinion that appellant had
work-related arthrofibrosis of the right knee and that additional right knee surgery should be performed to treat this
work-related condition. In contrast, Dr. Ghanma found in his October 19, 2009 report that appellant had no
residuals of a work-related condition and that no additional treatment was required for treatment of a work-related
condition. Appellant, through counsel, argued that there was no conflict in the medical opinion evidence between
Dr. Magoline and Dr. Ghanma regarding the existence of work-related arthrofibrosis, but such a conflict existed
because Dr. Magoline posited that such a condition existed and Dr. Ghanma found that appellant did not have any
residuals of a work-related condition.
13

See supra note 10.

14

See Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1957).

7

After Dr. Kleinman provided his opinion, Dr. Magoline submitted reports dated
August 12, 2010 and August 3, 2011, in which he reiterated his opinion that appellant had
work-related arthrofibrosis of the right knee which required additional surgery. As he was on
one side of the conflict, his additional reports essentially duplicated his previous opinion and are
insufficient to give rise to a new conflict.15
For these reasons, appellant did not meet his burden of proof to establish that he sustained
work-related arthrofibrosis of his right knee or that repeat arthroscopic surgery of his right knee
should be authorized. With respect to the denial of repeat right knee surgery, there is no
evidence that OWCP abused its discretion in denying his request for such additional medical
treatment.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained work-related arthrofibrosis of his right knee or that repeat arthroscopic surgery of his
right knee should be authorized.

15

See Richard O’Brien, 53 ECAB 234 (2001).

8

ORDER
IT IS HEREBY ORDERED THAT the October 24, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 25, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Louis, MO, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-1352
Issued: April 6, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 15, 2010 appellant filed a timely appeal from a March 8, 2010 merit decision of
the Office of Workers’ Compensation Programs. Pursuant to the Federal Employees’
Compensation Act (the Act)1 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 has established a recurrence of disability commencing
December 9, 2009 causally related to her February 5, 2009 employment injury.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the March 8, 2010 Office decision and on appeal, appellant
submitted new evidence. However, the Board is precluded from reviewing evidence which was not before the
Office at the time it issued its final decision. See 20 C.F.R. § 501.2(c)(1). Appellant may resubmit this evidence,
together with a formal written request for reconsideration to the Office, pursuant to 5 U.S.C. § 8128(a) and
20 C.F.R. § 10.606.

FACTUAL HISTORY
On April 15, 2010 appellant, then a 50-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that her body hurt “all over” after she twisted her left ankle and fell on
damaged steps in the performance of duty on February 5, 2009.
On March 25, 2009 the Office accepted appellant’s claim for neck sprain, contusion of
left shoulder, left ankle sprain and back sprain in the lumbar region.3
Appellant submitted a December 9, 2009 emergency department summary by Yolanda A.
Acklin, a nurse practitioner, who diagnosed cervical sprain. Ms. Acklin noted that appellant
presented with neck pain from lifting at work and reported that appellant had a magnetic
resonance imaging scan when she hurt her neck in February 2009.
On January 13, 2010 appellant filed a notice of recurrence (Form CA-2a) for neck and
shoulder pain which commenced on December 9, 2009 as she was pulling down mail. She
stopped work on December 9, 2009. Appellant stated that after returning to work after the
February 5, 2009 employment injury she was unable to work her entire route for five months and
described the December 9, 2009 pain as “the same” pain she experienced since the original
employment injury.
On February 4, 2010 the Office requested additional factual and medical information
from appellant. It allotted her 30 days to submit additional evidence and respond to its inquiries.
Appellant submitted a report dated February 11, 2010 by Dr. Fred J. Balis, a Boardcertified internist, who reported that he saw appellant on February 10, 2009 after she was
“involved in a motor vehicle accident while driving for the employing establishment and
suffered a significant head and neck trauma.” Also, later that day, she stumbled and fell at work
injuring her left shoulder. In a duty status report (Form CA-17) dated January 26, 2010,
Dr. Balis indicated that he examined appellant on December 10, 2009 and diagnosed her with
left cervical radiculopathy. He advised appellant to resume work on January 12, 2010 with
restrictions on walking and lifting over 10 pounds.
By decision dated March 8, 2010, the Office denied appellant’s claim for a recurrence of
disability for the period December 9, 2009 through January 11, 2010 on the basis that the
medical evidence submitted was insufficient to establish that she sustained a recurrence of
disability commencing on December 9, 2009, causally related to the February 5, 2009
employment injury.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which has resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
3

On July 16, 2009 appellant filed a claim for compensation (Form CA-7) for 16 hours of leave without pay from
June 25 to 26, 2009. The Office denied this claim on July 22, 2009.

2

caused the illness.4 A person who claims a recurrence of disability due to an accepted
employment-related injury has the burden of establishing by the weight of the substantial,
reliable and probative evidence that the disability for which she claims compensation is causally
related to the accepted injury. This burden of proof requires that a claimant furnish medical
evidence from a physician who, on the basis of a complete and accurate factual and medical
history, concludes that the disabling condition is causally related to the employment injury and
supports that conclusion with sound medical reasoning.5
ANALYSIS
On March 25, 2009 the Office accepted appellant’s claim for neck sprain, contusion of
her left shoulder, left ankle sprain and back sprain in her lumbar region. The issue on appeal is
whether she has established a recurrence of disability commencing on December 9, 2009. The
medical evidence of record does not contain a rationalized medical opinion establishing a
spontaneous change in the accepted medical condition resulting in an inability to work. The
Board finds that appellant has failed to establish that she sustained a recurrence of disability
commencing December 9, 2009, causally related to her February 5, 2009 employment injury.
On February 11, 2010 Dr. Balis reported that he saw appellant on February 10, 2009 after
she sustained significant head and neck trauma and a left shoulder injury while in the
performance of duty. In a January 26, 2010 report, he indicated that he examined and diagnosed
her with left cervical radiculopathy on December 10, 2009. Dr. Balis advised appellant to
resume work on January 12, 2010 without walking or lifting over 10 pounds. He did not provide
a report establishing a spontaneous change in the accepted employment-related injuries.
Dr. Balis did not indicate knowledge of a recurrence of disability on December 9, 2009 at work
and did not reference any particular employment factors as causing appellant’s shoulder and
neck pain. Therefore, appellant did not meet her burden of proof.
The December 9, 2009 emergency department summary from Ms. Acklin, a nurse
practitioner, is of no probative value as nurse practitioners are not physicians under the Act.6 As
such, the Board finds that appellant did not meet her burden of proof with this submission.
The Board finds that the evidence submitted by appellant lacks adequate rationale to
establish a causal connection between her alleged recurrence of disability and the February 5,
2009 employment injury. Thus, appellant did not meet her burden of proof to establish a claim
for a recurrence.

4

20 C.F.R. § 10.5(x). See T.S., Docket No. 09-1256 (issued April 15, 2010).

5

B.B., Docket No. 09-1858 (issued April 16, 2010). See Robert H. St. Onge, 43 ECAB 1169 (1992); Dennis J.
Lasanen, 43 ECAB 549 (1992).
6

5 U.S.C. § 8101(2). Section 8101(2) of the Act provides as follows: “(2) ‘physician’ includes surgeons,
podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the
scope of their practice as defined by State law.” See also Paul Foster, 56 ECAB 208, 212 n.12 (2004); Joseph N.
Fassi, 42 ECAB 677 (1991); Barbara J. Williams, 40 ECAB 649 (1989).

3

CONCLUSION
The Board finds that appellant failed to establish that she sustained a recurrence of
disability commencing December 9, 2009 causally related to her February 5, 2009 employment
injury.
ORDER
IT IS HEREBY ORDERED THAT the March 8, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 6, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4