United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.L., Appellant
and
DEPARTMENT OF AGRICULTURE, FOOD,
SAFETY & INSPECTION SERVICE,
Long Beach, CA, Employer
__________________________________________

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Appearances:
John S. Evangelisti, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 16-0004
Issued: June 14, 2016

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 October 14, 2015 appellant, through counsel, filed a timely appeal from an April 24,
2015 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 over the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish a recurrence of
disability on August 24, 2010, causally related to a March 7, 1983 employment injury.

1

Appellant, through counsel, also timely requested oral argument before the Board, pursuant to 20 C.F.R.
§ 501.5(b). However, by letter dated December 14, 2015, appellant withdrew her request.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. In a May 3, 2007 decision, the Board
affirmed OWCP’s decision dated August 29, 2005.3 The Board found that OWCP met its burden
of proof to terminate wage-loss compensation and medical benefits, effective
November 29, 2004. The Board also found that appellant did not establish that she had any
continuing disability after November 29, 2004. The facts and history of the case as set forth in
the Board’s prior decision are incorporated herein by reference. The relevant facts are set forth
below.
On March 18, 1983 appellant, a 32-year-old food inspector filed a traumatic injury claim
(Form CA-1) alleging that on March 7, 1983 she sustained an injury to her sternum when was
examining a steer head. OWCP accepted the claim for strain and separation at costa sternal
junction and paid appropriate compensation. Appellant stopped work on March 8, 1983.
Appellant continued to pursue her claim and, in a decision dated August 24, 2010,
OWCP expanded appellant’s claim to include sprain of the chondrosternal joint, left
sternoclavicular joint strain, and left fifth, sixth and seventh rib fracture.4
Appellant was followed by Dr. Gary Okamura, a Board-certified orthopedist. On
April 11, 2011 Dr. Okamura treated appellant for a left sternoclavicular joint anterior dislocation.
He noted a March 15, 2011 MRI scan arthrogram showed tendinosis and evidence of a superior
labral tear. Dr. Okamura diagnosed left shoulder superior labrum anterior posterior (SLAP) tear
and partial versus full thickness rotator cuff tendon tear. He noted since appellant had a rib
fracture in the sternoclavicular joint it was possible that she sustained shoulder injuries and he
believed this was a workers’ compensation injury. Dr. Okamura recommended surgery.
Appellant was also treated for neck, chest, and left shoulder pain by Dr. D. Scott
McCaffrey, Board-certified in occupational medicine. In reports dated December 3, 2010 to
March 1, 2011, she reported being a meat inspector and indicated that she was injured in four
different workers’ compensation accidents dating since 1983 that involved her left shoulder, left
rib separation, and back. Appellant presented with neck and bilateral knee pain, aching left
shoulder, pain radiating down the left arm, pain in the chest, and pain in the left rib region.
Dr. McCaffrey noted findings of decreased cervical spine range of motion, significant right
3

Docket No. 06-0810 (issued May 3, 2007), petition for recon. denied (issued November 26, 2007). This was
developed under File No. xxxxxx472. Under File No. xxxxxx056 appellant injured her left shoulder at work on
October 22, 1980. OWCP accepted for left shoulder girdle strain and left pectoralis major muscle strain. Appellant
also filed a claim for an injury sustained in a fall at work on October 14, 1982, which OWCP accepted for multiple
contusions of the ribs, File No. xxxxxx772. These claims were consolidated into the current claim before the Board
File No. xxxxxx472.
4

OWCP determined that there was a conflict of opinion between appellant’s treating physician, Dr. Christopher
Ryan, a treating Board-certified physiatrist, and Dr. Jeffrey J. Sabin, an OWCP referral physician examiner and
Board-certified orthopedic surgeon, on this issue as to whether appellant had objective findings of chondrosternal
sprain, chronic sprain of the acromioclavicular and sternoclavicular joints, and cervical sprain with cervical disc
displacement and if so, whether these conditions were work related. To resolve the conflict OWCP referred
appellant to Dr. Gabriel Ma, a Board-certified orthopedist, who issued a report dated May 24, 2010. Dr. Ma opined
that the following conditions were causally related to appellant’s employment injury: sprain of the chondrosternal
joint, left sternoclavicular joint strain, and left 5th, 6th, and 7th rib fracture.

2

shoulder range of motion loss, left shoulder hypertrophy, and tenderness over the
acromioclavicular (AC) joint. He diagnosed left shoulder sprain with persistent residuals, rule
out internal derangement, acute and chronic costochondritis left greater than right, and left
sternoclavicular joint sprain. Dr. McCaffrey noted that appellant’s job status was unchanged, she
continued to be significantly impaired, and activities of daily living were affected. He noted that
appellant was off duty.
On January 25, 2011 Dr. McCaffrey released appellant to modified duty.
In a March 1, 2011 report, Dr. McCaffrey noted that appellant’s activities were very
restricted. On March 29 and April 26, 2011 he indicated that a left shoulder MRI scan revealed a
labrum tear, rotator cuff tendinosis and mild degenerative changes. Dr. McCaffrey diagnosed
left shoulder superior labrum tear, rotator cuff tendinosis, left sternoclavicular joint sprain,
costochondritis and multiple broken ribs, a single rib nonunion, and chronic pain syndrome. He
recommended acupuncture for chronic pain and left shoulder physical therapy. Dr. McCaffrey
indicated that appellant’s job status was unchanged. On July 14, 2011 he noted appellant’s
complaints of chronic shoulder, back, knee, foot, and chest pain. Appellant reported working
light duty and noted her activities of daily living were affected. Dr. McCaffrey noted that
appellant was scheduled for right shoulder surgery on July 20, 2011.5 He noted that she was off
duty.
On July 10, 2011 appellant submitted a Form CA-7 claim for compensation, for total
disability for the period August 24, 2010 to July 10, 2011.
In a letter dated August 19, 2011, OWCP requested that appellant submit additional
information to support her claim for compensation. It requested that she submit medical
evidence establishing that total disability was due to the accepted conditions for the period
claimed.
Appellant submitted reports from Dr. McCaffrey dated August 4 and 18, 2011, noting
appellant’s treatment for left shoulder, neck, back, and chest pain. Diagnoses included: left
shoulder superior labrum tear and rotator cuff tendinosis, left sternoclavicular joint sprain,
costochondritis, multiple broken ribs with a single rib nonunion, chronic pain syndrome, and
history of breast cancer. Dr. McCaffrey noted that appellant recently had right shoulder surgery
and was off duty.
Appellant submitted a September 16, 2011 report from Dr. Ryan who noted a history of
appellant’s injury and medical treatment. Dr. Ryan noted that he last saw appellant in 2005. He
noted degenerative abnormality of the sternoclavicular joints, nonunion fracture of the sixth rib,
abnormality in the AC joint, and arthritic sternoclavicular joint changes. Dr. Ryan indicated that
appellant continued to have residual effects of her injury that occurred years ago which resulted
in the sternoclavicular arthritic changes and the nonunion of the sixth rib fracture. He opined
that to a reasonable degree of medical certainty, she remained disabled from the job of meat
inspector. Dr. Ryan noted that appellant continued to have objective evidence of arthritis. He
noted that as long as she stayed within her restrictions, which disabled her from the meat

5

No report of this surgery is in the record. OWCP did not authorize the procedure.

3

inspector position, she would remain relatively asymptomatic. If appellant returned to her job,
he opined that she would become more disabled.
On August 22, 2012 Dr. Okamura performed an authorized left shoulder arthroscopic
SLAP repair, including decompression and extensive debridement of partial articular side of the
rotator cuff tendon tear.
On October 12, 2012 appellant, through counsel, requested a status update on her Form
CA-7, claim for compensation, for the period commencing on August 24, 2010.
On February 8, 2013 appellant was treated by Dr. Xuong K. Tang, an osteopath, for a left
shoulder injury that occurred on March 7, 1983 which caused neck, midback, chest, left
shoulder, clavicle, and bilateral knee pain. Dr. Tang noted that appellant’s symptoms improved
until she underwent bilateral mastectomies in July 2008 when she experienced pain in the lateral
area of her left rib cage in the area of her former fractures. Appellant reported sternal pain since
the surgery around the incisions of surgery. Dr. Tang noted findings of antalgic gait, restricted
range of motion of the bilateral shoulders, lumbar spine and left hip, and tenderness over the
fifth, sixth, and seventh rib. He diagnosed right rotator cuff repair, SLAP lesions, closed fracture
of two ribs and left nonunion, cervical spondylosis without myelopathy and osteoarthrosis.
In a decision dated July 1, 2013, OWCP denied appellant’s claim for compensation for
temporary total disability and left shoulder surgery beginning August 22, 2012. It also advised
that the authorization for the left shoulder SLAP was rescinded as the medical evidence of record
did not demonstrate that the surgery and associated disability was causally related to the
March 7, 1983 work injury.
In a letter dated July 2, 2013, OWCP informed appellant that no further action would be
taken on the Form CA-7, claim for compensation, beginning August 24, 2010, based on the
newly accepted conditions.
In a letter dated July 26, 2013, appellant requested that OWCP develop her claim and
issue a decision on whether the newly accepted additional conditions resulted in disability. On
September 11, 2013 she requested reconsideration of the July 1, 2013 OWCP decision.
Appellant asserted that the surgery was improperly rescinded after it was performed.
On October 11, 2013 appellant requested that her claim be expanded to include Tietze’s
syndrome. She submitted a report from Dr. McCaffrey dated October 11, 2013 who noted that
Tietze’s syndrome was a chronic condition of recurrent inflammation of the costochondral joints
associated with local swelling and it is the result of the initial dislocation and strain. In an
October 14, 2011 report, Dr. McCaffrey opined that appellant’s left shoulder structural multiple
muscle, tendon, labral injuries were directly related to her work environment and the injury and
injuries which occurred on March 7, 1983.
On December 5, 2013 OWCP vacated the decision dated July 1, 2013. It indicated that
the expenses and the disability related to the August 22, 2012 surgery would be paid.6

6

Appellant subsequently received wage-loss compensation beginning August 22, 2012.

4

OWCP, on January 10, 2014, requested that appellant submit additional information to
support her claim, including medical evidence showing that the claimed disability was due to the
accepted condition from August 24, 2010 to July 10, 2011.
Appellant submitted a January 14, 2014 report from Dr. McCaffrey who treated her for
chronic left shoulder, neck, and chest/rib pain, causally related to the March 7, 1983 work injury.
He noted appellant was status post arthroscopic repair on August 22, 2012. He repeated previous
diagnoses and noted appellant was off duty. In February 11 and March 11, 2014 reports,
Dr. McCaffrey noted that appellant reported being a meat inspector and that she was injured in
four different work accidents involving her left shoulder, left rib separation, and back. He noted
findings of decreased range of motion of the lumbar spine and significant range of motion loss in
the left shoulder. Dr. McCaffrey diagnosed left rotator cuff, status post repair, left SLAP lesion,
cervical spondylosis without myelopathy, primary localized osteoarthrosis of the lower leg and
enthesopathy of the hip region, sleep disturbance, Tietze’s disease and strain of the
sternoclavicular joint, status post separation. He referred appellant to anesthesiology for nerve
blocks and noted appellant was off duty.
Appellant submitted a form report dated February 19, 2014, prepared by Dr. Rosalyn
Cheng, a Board-certified radiologist, who noted that appellant was injured on March 7, 1983 and
sustained a partial tear of the rotator cuff and articular cartilage disorder of the left shoulder.
Dr. Cheng noted that the accident did not result in disability from work. A February 6, 2014
MRI scan arthrogram of the left shoulder revealed evidence of prior labral repair, full thickness
cartilage loss over the superior glenoid and humeral head, minimal articular sided fraying of the
distal supraspinatus tendon, mild tendinosis of the long head bicipital tendon, and mild clavicular
joint degenerative change.
On April 8, 2014 OWCP notified appellant that evidence of record indicated a possibility
of a recurrence in her case beginning August 24, 2010. It noted that the August 29, 2005
termination of benefits and the August 24, 2010 acceptance of additional conditions, specifically,
sprain of the chondrosternal joint, left sternoclavicular joint strain, and left fifth, sixth, and
seventh rib fracture. OWCP noted that appellant’s case remained open for medical treatment for
these conditions. It requested that she respond to a questionnaire and submit additional medical
evidence including treatment from August 10, 2005 to December 2, 2010.
On May 28, 2014 appellant asserted that she was unable to obtain medical treatment from
August 5 to December 2, 2010 because her claim was in denied status. She submitted a copy of
Dr. Ma’s May 24, 2010 referee medical report. Dr. Ma opined that a chondrosternal sprain was
suggested by appellant’s subjective complaints of pain and tenderness to palpation over the left
chondrosternal junction areas. She indicated that this condition would have essentially resolved
in six to eight weeks. Dr. Ma did not find any current objective clinical findings that would
relate chronic AC joint sprain to appellant’s work injury. She noted that appellant had subjective
complaints of pain and tenderness in the left sternoclavicular joint. Dr. Ma indicated that
objective findings of a strain of the left sternoclavicular joint could be found on the CT scan
which revealed slight arthritic changes consistent with previous injury. She opined that imaging
studies of the chest were consistent with previous fracture of the left fifth, sixth, and seventh ribs
with solid healing of the fifth and seventh ribs and residual nonunion of the sixth rib.

5

In a decision dated August 5, 2014, OWCP denied appellant’s claim for a recurrence,
finding that the evidence was insufficient to establish that she was disabled due to a material
change or worsening of appellant’s accepted work-related conditions.
On September 2, 2014 appellant’s counsel requested an oral hearing which was held
before an OWCP hearing representative on March 9, 2015. Appellant submitted a July 25, 2014
report from Dr. Okamura who noted that appellant was status post left shoulder SLAP repair.
Dr. Okarmura advised that a February 6, 2014 MRI scan revealed some sonic postoperative
surgical changes involving the superior labrum but no obvious retear. He noted restricted range
of motion of the left shoulder, slightly positive impingement signs, and good rotator cuff
strength. Dr. Okarmura diagnosed status-post left shoulder SLAP repair and debridement partial
rotator cuff tear with a mild frozen shoulder. He provided a steroid injection.
In September 8, 2014 and January 22, 2015 reports, Dr. McCaffrey treated appellant for
increasing left shoulder pain. He diagnosed left rotator cuff, status post repair, superior glenoid
labrum lesions (SLAP), left, cervical spondylosis without myelopathy, and primary localized
osteoarthrosis of the lower leg. Dr. McCaffrey noted that appellant was off duty. On
September 15 and December 5, 2014 he prescribed physical therapy.
Appellant submitted reports from Dr. Xuong Tang, dated August 11 and October 27,
2014, who noted a history of appellant’s work injury and treated her for increasing left shoulder
pain. Dr. Tang diagnosed left rotator cuff, status post repair, superior glenoid labrum lesions
(SLAP), left, cervical spondylosis without myelopathy, and primary localized osteoarthrosis of
the lower leg. He noted appellant was off duty.
Appellant was treated by Dr. Margaret Irish, an osteopath, on November 25, 2014 and
Dr. Carl Hodel, an osteopath, on December 23, 2014, for shoulder and chest pain. The
physicians noted diagnoses and indicated appellant was off duty.
On February 19 and March 19, 2015 appellant was treated by Dr. Fred J. Brenner, Boardcertified in emergency medicine, for chronic left shoulder, neck and chest/rib pain. Dr. Brenner
noted that appellant had left shoulder pain and decreased range of motion due to a rotator cuff
injury and repair. He diagnosed rotator cuff, left shoulder status post repair, superior glenoid
labrum lesions, left, cervical spondylosis without myelopathy, primary localized osteoarthrosis,
lower leg, enthesopathy of hip region, sleep disturbance, Tietze’s disease, sprain and strain of
sternoclavicular (joint). Dr. Brenner noted appellant was off duty.
Appellant also provided reports from Dr. Ryan dated January 27, 1998 to
March 27, 2015. In a report dated July 27, 1998, Dr. Ryan noted that appellant sustained an
injury originally to her ribs and the articulation of the ribs with the sternum. Appellant had
functional limitations and could not work as a meat inspector. Dr. Ryan opined that appellant
would have difficulty being employed in any capacity. On January 11, 2002 he noted that she
had an injury to the ribs articulation with the sternum and had significant functional limitation of
the left shoulder girdle. Dr. Ryan diagnosed strain of the chondrosternal region, cervical sprain
and chronic sprain of the acromioclavicular joint. He opined that appellant could not be
gainfully employed and was totally disabled. In work capacity evaluations dated January 11,
2002 and November 5, 2003, Dr. Ryan diagnosed strain and separation of the costa sternal
junction. He reiterated that appellant was disabled and noted restrictions on reaching, twisting,
pushing, pulling, lifting, squatting, kneeling, and climbing. On November 5, 2003 Dr. Ryan
6

noted diagnoses and opined that the mechanism of injuries supported the diagnosed
costochondritis as well as the sprain of the acromioclavicular and sternoclavicular joints. He
repeated that appellant was disabled from employment. Similarly, in a report dated March 27,
2015, Dr. Ryan opined that appellant’s ongoing pain and disability was the result of permanent
injury resulting in permanent limitation of the use of her upper limb. He noted that increased
activity did not promote increased functionality but more pain. Dr. Ryan noted that appellant
continued to be disabled from her job as a meat inspector.
In a decision dated April 24, 2015, OWCP affirmed the decision dated August 5, 2014.
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 resulted from a previous
injury or illness without an intervening injury or a new exposure to the work environment.7
When an employee claims a recurrence of disability causally related to an accepted
employment injury, he or she has the burden of establishing by the weight of the reliable,
probative, and substantial medical evidence that the claimed recurrence of disability is causally
related to the accepted injury.8 This burden includes the necessity of furnishing 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.9 An award of compensation may not be made on
the basis of surmise, conjecture, or speculation or on an appellant’s unsupported belief of causal
relation.10
ANALYSIS
OWCP originally accepted appellant’s claim for strain and separation at costa sternal
junction, left shoulder girdle strain, left pectoralis major muscle strain, and multiple contusion of
the ribs. In a decision dated August 29, 2005, OWCP terminated appellant’s benefits effective
November 29, 2004. On May 3, 2007 the Board affirmed OWCP’s termination of benefits.
Subsequently, on August 24, 2010, OWCP expanded the claim to include sprain of the
chondrosternal joint, left sternoclavicular joint strain, and left fifth, sixth, and seventh rib
fracture. Thereafter, appellant submitted a Form CA-7, claim for compensation, for total
disability for the period August 24, 2010 to July 10, 2011. OWCP developed appellant’s claim
as recurrence of disability claim. The Board finds that the medical record lacks a well-reasoned
narrative from appellant’s treating physicians relating appellant’s claimed recurrent disability
beginning August 24, 2010 to her employment injury that is currently accepted for

7

20 C.F.R. § 10.5(x).

8

Alfredo Rodriguez, 47 ECAB 437 (1996); see Dominic M. DeScala, 37 ECAB 369 (1986).

9

See Nicolea Bruso, 33 ECAB 1138 (1982).

10

Ausberto Guzman, 25 ECAB 362 (1974).

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chondrosternal joint sprain, left sternoclavicular joint strain, and left fifth, sixth, and seventh rib
fracture.11
Appellant submitted a September 16, 2011 report from Dr. Ryan who noted that when he
last saw appellant in 2005 she was disabled from her meat inspector job. Dr. Ryan noted
appellant’s diagnoses and advised that she still had residuals of the injury that resulted in the
sternoclavicular arthritic changes and the nonunion of a sixth rib fracture. He opined that
appellant remained disabled as a meat inspector job. Dr. Ryan noted that as long as appellant
stays within her restrictions, which disabled her from being a meat inspector, she would remain
relatively asymptomatic. However, if she returned to her job she would become more disabled.
His restrictions on appellant’s return to work are prophylactic in nature. Fear of future injury is
not compensable under FECA.12 In a March 27, 2015 report, Dr. Ryan opined that appellant’s
ongoing pain and disability was the result of permanent injury causing permanent limitation of
the use of her upper limb. He noted that appellant remained disabled from her job as a meat
inspector. However, Dr. Ryan did not specifically explain whether appellant sustained a
recurrence of disability causally related to the accepted employment condition or otherwise
provide medical reasoning explaining why any current condition or disability beginning
August 24, 2010 is due to an accepted injury. Other reports from Dr. Ryan are of limited
probative value as they predate the claimed period of disability.
Appellant submitted numerous reports from Dr. McCaffrey.
In reports dated
December 3, 2010 to March 1, 2011, she reported being a meat inspector who was injured in four
different work accidents since 1983 that involved her left shoulder, a left rib separation, and her
back. Dr. McCaffrey diagnosed left shoulder sprain with persistent residuals, possible internal
derangement, acute and chronic costochondritis, and left sternoclavicular joint sprain. He noted
that appellant was off duty. In reports dated March 29 to August 18, 2011, Dr. McCaffrey
diagnosed left shoulder superior labrum tear, rotator cuff tendinosis, left sternoclavicular joint
sprain, costochondritis and multiple broken ribs, a single rib nonunion and chronic pain
syndrome. In a October 14, 2011 report, Dr. McCaffrey opined that appellant’s left shoulder
structural multiple muscle, tendon, labral injuries were directly related to her work environment
and the injury and injuries which occurred on March 7, 1983. He indicated that appellant’s job
status was unchanged and she continued to be significantly impaired. However, Dr. McCaffrey
did not specifically explain whether appellant’s disability beginning August 24, 2010 was
causally related to the accepted employment condition or otherwise provide medical reasoning
explaining why any current condition or disability was due to the employment injury. Other
reports from Dr. McCaffrey do not explain how appellant’s disability beginning August 24, 2010
was causally related to the accepted conditions.13
Likewise, reports from other physicians of record do not specifically support that
appellant sustained a recurrence of disability beginning August 24, 2010 causally related to the
11

As noted, supra note 5, OWCP paid appellant wage-loss compensation beginning August 22, 2012. Thus,
wage loss on and after that date are not at issue before the Board.
12

See Mary Geary, 43 ECAB 300, 309 (1991); Pat Lazzara, 31 ECAB 1169, 1174 (1980) (finding that
appellant’s fear of a recurrence of disability upon return to work is not a basis for compensation).
13

See William A. Archer, 55 ECAB 674 (2004) (the Board will not require OWCP to pay compensation for
disability in the absence of medical evidence directly addressing the specific dates of claimed disability).

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accepted conditions. These reports do not address how appellant had a spontaneous change in
her accepted conditions beginning August 24, 2010 which caused disability.
On appeal appellant asserts that her work-related condition was chronic and continued to
cause her disability. However, as found above, the medical evidence submitted does not contain
a rationalized medical opinion explaining why her claimed recurrent condition or disability on
August 24, 2010 was due to the March 7, 1983 work 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 her burden of proof to establish that she
sustained a recurrence of disability causally related to her accepted condition.
ORDER
IT IS HEREBY ORDERED THAT the April 24, 2015 Office of Workers’
Compensation Programs’ decision is affirmed.
Issued: June 14, 2016
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Seattle, WA, Employer
__________________________________________

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Appearances:
Stephanie Leet, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0493
Issued: March 4, 2022

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 15, 2021 appellant, through counsel, filed a timely appeal from a
December 17, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case. 3
1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the December 17, 2020 decision, appellant submitted additional evidence to
OWCP. However, the Board’s Rules of Procedures 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.

ISSUE
The issue is whether appellant has met his burden of proof to expand the acceptance of his
claim to include additional conditions as causally related to the accepted January 1, 2005
employment injury.
FACTUAL HISTORY
This case has previously been before the Board. 4 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On February 22, 2005 appellant, then a 65-year-old lead screener, filed a notice of
recurrence (Form CA-2a) alleging that on January 1, 2005 he experienced a recurrence of a
previously accepted cervical spine condition. 5 He stopped work on February 12, 2005 and did not
return. OWCP developed the claim as one for a new occupational disease (Form CA-2). On
May 5, 2005 it accepted a lumbar strain, cervical thoracic strain, and lumbar radiculopathy. On
July 27, 2005 OWCP expanded its acceptance of the claim to include the additional diagnosis of
an L4-5 disc herniation.
On August 29, 2005 appellant underwent an OWCP-authorized laminectomy, facetectomy,
and foraminotomy at L4 and L5. OWCP paid wage-loss compensation. It placed appellant on the
periodic rolls, effective February 19, 2006.
Appellant underwent a series of OWCP-authorized cervical facet block and cervical
epidural injections from January 12 through July 18, 2007, and lumbar epidural steroid injections
on August 28, 2007.6 From December 30, 2014 through January 23, 2017, he also underwent a
series of OWCP-authorized bilateral L3, L4, and L5 medial branch and dorsal ramus blocks,
OWCP-authorized bilateral radiofrequency ablation from L3 through L5, and OWCP-authorized
caudal and bilateral L4-5 transforaminal epidural steroid injections.
On May 30, 2017 OWCP obtained a second opinion regarding appellant’s work capacity
and the etiology of his continuing condition from Dr. Vicki Kalen, a Board-certified orthopedic
surgeon. In a June 21, 2017 report, Dr. Kalen opined that multilevel degenerative disc changes
visible on imaging studies were normal for appellant’s age, and that surgery had resolved the
accepted L4-5 disc herniation. She found that the accepted employment injuries had resolved
4

Docket No. 17-1423 (issued November 8, 2017).

5

Appellant has a previously accepted traumatic injury claim under OWCP File No. xxxxxx865 for a cervical strain.
OWCP administratively combined OWCP File Nos. xxxxxx840 and xxxxxx865, with OWCP File No. xxxxxx840
serving as the master file.
6

A January 23, 2006 cervical magnetic resonance imaging (MRI) scan demonstrated disc narrowing at C4-5, C5-6,
and C6-7 with degenerative disc bulges. A June 3, 2008 lumbar MRI scan demonstrated bilateral posterior
laminectomies at L4-5 with 5 millimeter (mm) anterolisthesis of L4 on L5, increased since a March 4, 2005 study,
resulting in bilateral neural foraminal narrowing, with possible compression of the left exiting L4 nerve root, a
posterior osteophyte at L5-S1 contributing to moderate bilateral neural foraminal narrowing with contact of the exiting
L5 nerve roots bilaterally, mildly increased posterior disc bulge at L2 -3 with mild spinal canal and neural foraminal
narrowing, and moderate-to-severe facet arthropathy at L4-5. June 3, 2008 lumbar x-rays demonstrated a Grade 1
anterolisthesis of L4 on L5 with instability, and prominent degenerative disc disease present at L5 -S1.

2

without residuals. In a July 10, 2017 supplemental report, Dr. Kalen noted work restrictions
related to appellant’s age of 78 and age-related spinal complaints, unrelated to the employment
injury.
In a July 20, 2017 report, Dr. Russel R. Kinder, Board-certified in anesthesiology and pain
medicine, diagnosed a sprain of the ligaments of the cervical and lumbar spine. On September 6,
2017 he performed OWCP-authorized bilateral transforaminal epidural steroid injections at L4-5.
Dr. Kinder diagnosed lumbar radiculopathy. 7
On March 6, 2018 OWCP found a conflict of medical opinion between Dr. Kalen, for the
government, and Dr. Kinder, for appellant, regarding the relationship of appellant’s continuing
condition to the employment injury. To resolve the conflict, on March 20, 2018 OWCP referred
appellant for an impartial medical examination with Dr. Lowell Anderson, a Board-certified
orthopedic surgeon. In an April 18, 2018 report, Dr. Anderson, serving as the impartial medical
examiner (IME), reviewed appellant’s history of injury, medical records, and the statement of
accepted facts (SOAF). On examination, he observed restricted range of motion of the cervical
spine, paraspinal tenderness to palpation of the cervical spine, left intrascapular region, and
lumbosacral junction, possible mild weakness of the left lower extremity evident on toe -raise and
step testing, possible mild hamstring weakness in the left lower extremity, subjective dec reased
sensation in the second, third, and fourth fingers of the left hand, minimally decreased sensation
in the fifth finger of the left hand, limited lumbar range of motion, decreased sensation in the entire
left lower extremity, and negative seated straight leg raising tests bilaterally. Dr. Anderson also
noted that thigh circumference at 10 centimeters proximal to the patella was 51/49, right over left.
He diagnosed multilevel cervical spondylosis, cervical spinal stenosis, likely left upper extremity
radiculopathy symptoms related to nerve root irritation at multiple levels of the cervical spine,
central cervical stenosis related to genetic and age-related progression of a preexisting cervical
condition. Dr. Anderson opined that the accepted injury “with likely L4-5 herniated disc” and
surgery had resolved without residuals as it was “likely satisfactorily treated” by surgery. He noted
that appellant’s ongoing cervical and lumbar conditions were due only to age-related degenerative
changes. Dr. Anderson indicated that appellant had attained maximum medical improvement
“many years ago.” He found appellant unable to perform his date-of-injury position due to
nonoccupational, age-related degenerative changes of the cervical and lumbar spine.
On May 9, 2018 OWCP proposed to terminate appellant’s wage-loss compensation as he
was no longer disabled from work as a result of the accepted January 1, 2005 injuries, based on
Dr. Anderson’s opinion as the IME. It afforded him 30 days to respond.
In a letter dated June 6, 2018 appellant, through counsel, contended that Dr. Anderson
failed to differentiate between sequelae of the employment injury and age-related degenerative
changes. Appellant submitted a June 1, 2018 report by Dr. Xi Tian, Board-certified in
anesthesiology and pain medicine, diagnosing a ligamentous cervical spine sprain and chronic
postoperative pain.
By decision dated June 14, 2018, OWCP terminated appellant’s wage-loss compensation,
effective that day, based on the special weight accorded Dr. Anderson’s report as the impartial
7

A December 6, 2017 MRI scan of the cervical spine demonstrated moderate-to-severe spondylosis at C5-6, C6-7,
and C7-T1 with spinal stenosis, multiple areas of facet arthrosis, and neuroforaminal narrowing.

3

medical examiner. It noted that the decision did not affect appellant’s entitlement to medical
benefits.
On June 19, 2018 OWCP received a June 7, 2018 report by Dr. Tian, diagnosing a sprain
of ligaments of cervical spine.
In a June 22, 2018 report, Dr. Richard Wohns, a Board-certified neurosurgeon, noted the
accepted January 1, 2005 occupational injury and diagnosed cervical stenosis, cervical
radiculopathy, cervical pain, bilateral occipital neuralgia, and low back pain. 8 He opined that the
January 1, 2005 employment aggravated or activated these latent, asymptomatic conditions. 9
On July 3, 2018 appellant requested a telephonic oral hearing before a representative of
OWCP’s Branch of Hearings and Review, held November 14, 2018.
In a December 11, 2018 letter, counsel asserted that OWCP should expand its acceptance
of the claim to include an L5-S1 disc herniation, lumbar stenosis, and failed back syndrome.
Appellant submitted additional evidence.
By decision dated January 29, 2019, an OWCP hearing representative affirmed the
June 14, 2018 termination decision.
On February 11, 2019 OWCP received a November 1, 2018 report by Dr. Wohns, in which
he opined that appellant’s cervical and lumbar conditions were caused by repetitive flexion and
extension of the upper and lower body while lifting and throwing heavy luggage at work on
January 1, 2005. Dr. Wohns explained that appellant’s accepted lumbar sprain, cervical-thoracic
sprain, herniated L4-5 disc, and lumbar radiculitis had naturally progressed over time subsequent
to a failed L4-5 laminectomy. He listed additional diagnoses of cervical stenosis, cervical
radiculopathy, and bilateral occipital neuralgia. 10
On April 11, 2019 OWCP received a November 15, 2018 report by Dr. Tian, diagnosing
lumbago, other chronic postoperative pain, and a ligamentous lumbar sprain.
8

A July 11, 2018 MRI scan of the lumbar spine demonstrated central stenosis at L2 -3 with broad-based central
protrusion, L3-4 central stenosis with broad-based bulging, small central canal, and left foraminal and central disc
protrusion, degenerative spondylosis at L4-5 with marked narrowing of the right nerve root and marked flattening of
the existing L4 nerve, L5-S1 broad-based disc bulging and retrolisthesis with bilateral neuroforaminal narrowing, and
right S1 nerve root displacement.
9

Appellant consulted several other physicians in 2018 and 2019. In an October 25, 2018 report, Dr. David
Hoffman, a Board-certified family practitioner, referred him to a pain management clinic. In a January 10, 2019
report, Dr. Darin Blackburn, a Board-certified family practitioner, noted treating appellant since the January 1, 2005
employment injury. He opined that appellant’s injury-related cervical and lumbar spine symptoms had not resolved
and necessitated work limitations. In reports dated January 25 and April 10, 2019, Dr. Michael J. Martin, a Boardcertified orthopedic surgeon, noted a history of the accepted January 1, 2005 employment injury and subsequent
treatment. On examination he noted slightly diminished cervical and lumbar lordosis, and limited range of cervical
and lumbar spine motion. Dr. Martin recommended physical therapy.
10

A March 8, 2019 MRI scan of the cervical spine and April 9, 2019 MRI scans of the thoracic and lumbar spine
demonstrated degenerative changes throughout the spine as evident on prior imaging studies. The April 9, 2019
lumbar MRI scan demonstrated a midline laminectomy with excellent decompression of the spinal canal at L4-5 and
L5-S1.

4

In July 1, 2019 and January 8, 2020 reports, Dr. Wohns opined that appellant required a
C5-6 and C6-7 anterior cervical discectomy and fusion, and extension of the prior lumbar
laminectomy to include L2 and L3 due to severe lumbar stenosis.
On January 16, 2020 appellant, through counsel, requested reconsideration of the
January 29, 2019 decision.
In a January 21, 2020 report, Dr. Wohns noted that the January 1, 2005 L4-5 laminectomy
had relieved appellant’s bilateral lower extremity radiculopathy, but that sharp, persistent lumbar
pain remained. He diagnosed bilateral occipital neuralgia, cervical radiculopathy, cervical
stenosis, cervical pain, lumbar stenosis with neurogenic claudication, mid back pain, and low back
pain.11
By decision dated January 29, 2020, OWCP denied modification of the prior decision.12
In a February 4, 2020 report, Dr. Wohns diagnosed cervical stenosis of the spinal canal,
lumbar stenosis with neurogenic claudication, and mid-back pain. He ordered a cervical MRI scan.
A June 25, 2020 MRI scan of the cervical spine demonstrated left C2-3 facet arthropathy,
a mild C3-4 disc protrusion with facet arthropathy and bilateral bony foraminal stenosis, possible
partial bony fusion of the endplates and right facets at C4-5 with mild bony stenosis of the right
foramen, degenerative disc narrowing at C5-6 with posterior disc protrusion and central canal
narrowing, partial desiccation of the C6-7 disc with diffuse posterior disc protrusion and central
canal narrowing, and mild anterolisthesis of C7 on T1 with mild posterior disc protrusion and facet
arthropathy.
In a July 20, 2020 report, Dr. Wohns opined that the June 25, 2020 MRI scan demonstrated
the need for a C5-6 andC6-7 microdiscectomy and fusion, to be followed by L2 to L4
laminectomies and foraminotomies.
In an August 13, 2020 letter, counsel requested that OWCP expand its acceptance of
appellant’s claim to include additional conditions as noted by Dr. Wohns. She submitted August 4
and November 17, 2020 letters by Dr. Wohns, who related appellant’s account that the January 5,
2005 employment incident caused the sudden onset of excruciating “electric shock-like pain”
throughout his neck and back, radiating into his head and all extremities. Dr. Wohns explained
that the employment injury caused a herniated lumbar disc “due to a mechanical strain between
two vertebrae, as he twisted to throw the luggage.” He opined that the employment incident also
caused spondylosis and radiculopathy at C5-6, C6-7, and C7-T1 due to strain in his spine “and
shoulder as he twisted to throw the heavy luggage.” Dr. Wohns reiterated that the January 5, 2005
employment injury directly caused or aggravated preexisting cervical stenosis of the spinal canal,
cervical radiculopathy, cervical pain, bilateral occipital neuralgia, and low back pain.
11

In a January 17, 2020 report, Dr. Kathy Wang, an osteopathic physician Board-certified in anesthesiology,
administered a discogram with provocative lumbar discography at L2 -3, L3-4, and L5-S1, which demonstrated
nonconcordant pain at L2-3, L3-4, and L4-5.
12

On July 27, 2020 appellant, through counsel, appealed the January 29, 2020 merit decision to the Board. By
decision dated February 9, 2022, the Board reversed the January 29, 2020 decision, finding that IME Dr. Anderson’s
report was inconsistent with the SOAF. Docket No. 20-1442 (issued February 9, 2022).

5

On November 17, 2020 OWCP referred the medical record and SOAF to Dr. Michael M.
Katz, a Board-certified orthopedic surgeon serving as OWCP’s district medical adviser, for an
opinion on whether the accepted employment injury caused additional conditions. Dr. Katz
submitted a November 19, 2020 report in which he reviewed the medical record and SOAF. He
disagreed with Dr. Wohns’ support for causal relationship, as appellant’s cervical spine conditions
were present prior to a January 23, 2006 MRI scan, and the accepted cervical spine sprain was a
self-limiting condition. Dr. Katz opined that appellant’s cervical spondylosis, cervical stenosis,
and bilateral occipital neuralgia were due to the aging process and “natural history of the
degenerative conditions of the cervical spine” rather than a neck sprain. He commented that the
proposed diagnosis of low back pain was vague, and duplicative of the accepted lumbar conditions,
which were known to produce low back pain.
By decision dated December 17, 2020, OWCP denied expansion of the claim to include
additional conditions, as they appeared to be preexisting or degenerative in nature, unrelated to the
accepted January 1, 2005 employment injury. It accorded the weight of the medical evidence to
the opinion of Dr. Katz.
LEGAL PRECEDENT
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.13
To establish causal relationship, the employee must submit rationalized medical opinion
evidence.14 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 accepted employment injury. 15 The weight of medical evidence is determined by its reliability,
its probative value, its convincing quality, the care of analysis manifested, and the medical
rationale expressed in support of the physician’s opinion.16
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint a
third physician who shall make an examination. 17 When there are opposing reports of virtually

13

J.R., Docket No. 20-0292 (issued June 26, 2020); Jaja K. Asaramo, 55 ECAB 200 (2004).

14

E.W., Docket No. 20-0338 (issued October 9, 2020).

15

L.P., Docket No. 20-0609 (issued October 15, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

16

C.L., 20-0213 (issued September 15, 2021); J.L., Docket No. 20-0717 (issued October 15, 2020); James Mack,
43 ECAB 321 (1991).
17

5 U.S.C. § 8123(a); D.B., Docket No. 19-0663 (issued August 27, 2020); L.T., Docket No. 18-0797 (issued
March 14, 2019); Shirley L. Steib, 46 ECAB 309, 317 (1994).

6

equal weight and rationale, the case must be referred to an impartial medical specialist, pursuant
to section 8123(a) of FECA, to resolve the conflict in the medical evidence. 18
ANALYSIS
The Board finds that this case is not in posture for decision.
In support of his request for claim expansion, appellant submitted reports dated June 22,
2018 through November 17, 2020 by Dr. Wohns. In a June 22, 2018 report, Dr. Wohns opined
that the January 1, 2005 employment injury aggravated or activated latent cervical stenosis,
cervical radiculopathy, cervical pain, bilateral occipital neuralgia, and low back pain. He
indicated, in July 1, 2019, January 8, 2020 and July 20, 2020 reports, that sequelae of the
January 1, 2005 injury required C5-6 and C6-7 anterior discectomy and fusion, and extension of a
prior lumbar laminectomy to L2-3. Dr. Wohns explained in his August 3, 2020 letter that
repetitive flexion and extension of the upper and lower body while lifting and throwing heavy
luggage at work on January 1, 2005 caused the additional cervical and lumbar conditions. In his
November 17, 2020 letter, he attributed C5-6, C6-7, and C7-T1 radiculopathy to a strain in
appellant’s spine and shoulder as he twisted to throw heavy luggage on January 5, 2005.
In a November 19, 2020 report, Dr. Katz advised that Dr. Wohns’ reports failed to support
a causal relationship between the January 1, 2005 employment injury and cervical spondylosis,
cervical stenosis, and bilateral occipital neuralgia. He opined that these diagnoses were preexisting
conditions unrelated to the January 1, 2005 employment injury, and that the diagnosis of low back
pain was vague and duplicative.
As noted above, if there is a disagreement between an employee’s physician and an OWCP
referral physician, OWCP will appoint an impartial medical specialist who shall make an
examination. 19 The Board finds that a conflict exists between the appellant’s treating physician,
Dr. Wohns, and the DMA, Dr. Katz, regarding whether the claim should be expanded to include
additional cervical conditions.
Therefore, the case must be remanded to OWCP for referral of appellant to an impartial
medical specialist for resolution of the conflict in medical opinion evidence in accordance with
5 U.S.C. § 8123(a).20 After this and other such further development as OWCP deems necessary,
it shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

18

D.B., id., D.W., Docket No. 18-0123 (issued October 4, 2018).

19

A.R., Docket No. 19-1204 (issued February 25, 2021); see S.S., Docket No. 19-1658 (issued November 12, 2020);
C.S., Docket No. 19-0731 (issued August 22, 2019).
20

A.R., id.; S.M., Docket No. 19-0397 (issued August 7, 2019).

7

ORDER
IT IS HEREBY ORDERED THAT the December 17, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: March 4, 2022
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

8


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

)
)
)
)
)
)
)
)

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

Docket No. 21-0537
Issued: October 18, 2021

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 February 24, 2021 appellant, through counsel, filed a timely appeal from a
November 20, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a right knee
condition causally related to the accepted November 30, 2019 employment incident.
FACTUAL HISTORY
On December 11, 2019 appellant, then a 62-year-old letter carrier,3 submitted a traumatic
injury claim (Form CA-1) alleging that she injured her right knee on November 30, 2019 when
she fell while carrying mail on her route in the performance of duty. On the reverse side of the
claim form appellant’s supervisor acknowledged that appellant was injured in the performance of
duty.
Appellant submitted a report dated December 3, 2019 from Jean Szorady, a nurse
practitioner. Ms. Szorady related that appellant tripped while carrying mail on November 30, 2019
and injured her right knee. She diagnosed an injury to the right knee and completed a work status
report listing appellant’s work restrictions.
In a report dated December 5, 2019, Erik Johnson, a physician assistant, related that
appellant was following up regarding an injury to her right knee and that her right knee swelling
had increased. He diagnosed contusion of the right knee.
In a report dated December 6, 2019, Maureen Doolan, a physician assistant, diagnosed
right knee contusion. She provided appellant with work restrictions and completed a work status
report.
On December 11, 2019 appellant was seen again by Mr. Johnson who related appellant’s
physical examination findings and diagnosed right knee contusion. In a duty status report (Form
CA17) dated December 11, 2019, he related appellant’s diagnosis as right knee medial meniscus
tear and noted appellant’s work restrictions.
In a development letter dated December 17, 2019, OWCP informed appellant that
additional evidence was necessary to establish her claim. It advised appellant of the type of factual
and medical evidence needed and provided a questionnaire for her completion. OWCP afforded
appellant 30 days to submit the necessary evidence.
In response, appellant submitted a medical report dated December 10, 2019 from
Dr. Matthew Levy, a Board-certified orthopedic surgeon. Dr. Levy noted an assessment of right
knee contusion and also related that appellant fell on gravel and that the x-ray evaluation indicated
a medial meniscus tear. He indicated that appellant should continue her work restrictions.

3

Appellant did not list her occupation on the Form CA-1. However, in subsequent statements she alleged that her
injury occurred while she was delivering mail on her route.

2

In a report dated December 24, 2019, Melissa T. Khan, a physician assistant, noted that
appellant presented in the office for a follow up and that her symptoms remained the same.
Appellant’s diagnosis was listed as right knee contusion.
In a medical report dated January 7, 2020, Dr. Levy related that appellant had a medial
meniscus tear and was waiting for approval for surgery. He also completed a work status report,
which outlined appellant’s work restrictions.
By decision dated January 24, 2020, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish that the incident occurred as alleged. It noted that
appellant had not responded to the development questionnaire. OWCP concluded, therefore, that
the requirements had not been met to establish an injury as defined by FECA.
OWCP thereafter received a report dated January 16, 2020 from Ms. Doolan regarding
appellant’s follow-up appointment for her right knee injury. Appellant’s diagnosis was again listed
as right knee contusion. Ms. Doolan also completed a work status report, which listed appellant’s
work restrictions.
OWCP received a statement from appellant on February 3, 2020. Appellant attested that
on November 30, 2019 she was delivering mail and she slipped and fell in the driveway.
Appellant submitted a work status report dated February 11, 2020 from Dr. Levy, which
noted a diagnosis of right knee contusion and listed appellant’s work restrictions.
On February 21, 2020 appellant, through counsel, timely requested a telephonic hearing
before a representative of OWCP’s Branch of Hearings and Review, which was held on
June 11, 2020.
OWCP received a more legible copy of appellant’s traumatic injury claim (Form CA-1),
which indicated that on November 30, 2019 appellant fell on her route and tore her right knee
meniscus.
By decision dated August 5, 2020, OWCP’s hearing representative modified OWCP’s
January 24, 2020 decision, finding that the incident occurred as alleged. However, the claim
remained denied as causal relationship had not been established.
On August 24, 2020 appellant, through counsel, requested reconsideration.
OWCP subsequently received a letter dated July 9, 2020 from Dr. Levy, which stated that
appellant was first seen on December 10, 2019 after falling on both of her knees during the course
of her work duties and was diagnosed with a medial meniscus tear. Dr. Levy stated that appellant
had no prior injuries and that her diagnosis was a direct and proximate result of a work injury,
which occurred on “1/1/1.”
By decision dated November 20, 2020, OWCP denied modification of its August 5, 2020
decision.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA 4 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 period of FECA, 5 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. 6 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. 7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a fact of injury has been established.
There are two components involved in establishing fact of injury. The first component to be
established is that the employee must submit sufficient evidence to establish that he or she a ctually
experienced the employment incident at the time, place, and in the manner alleged. The second
component is whether the employment incident caused a personal injury and can be established
only by medical evidence.8
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 9 The opinion of
the physician must be based on a complete factual and medical background of the employee, 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 specific employment factors
identified by the employee. 10
OWCP’s procedures provide that, if a condition reported is a minor one, such as a burn,
laceration, insect sting, or animal bite, which can be identified on visual inspection by a lay person,
a case may be accepted without a medical report and no development of the case need be
4

Id.

5

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
6

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
7

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
9

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
10

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).

4

undertaken, if the injury was witnessed or reported promptly, and no dispute exists as to the
occurrence of an injury, and no time was lost from work due to disability. This section of OWCP’s
procedures further states that in cases of serious injury (motor vehicle accidents, stabbings,
shootings, etc.) if the employing establishment does not dispute the facts of the case and there are
no questionable circumstances, the case may be accepted for a minor condition, such as laceration,
without a medical report, while simultaneously developing the case for other more serious
conditions. This is true even if there is lost time due to such a serious injury. 11
ANALYSIS
The Board finds that appellant has met her burden of proof to establish a right knee
contusion.
On November 30, 2019 appellant tripped while carrying mail and injured her right knee.
She was seen and evaluated by Mr. Johnson, Ms. Doolan and Ms. Khan, all physician assistants.
All three individuals related that appellant tripped on November 30, 2019 and diagnosed her with
a right knee contusion. In his report dated December 10, 2019, Dr. Levy also noted a right knee
contusion and related that appellant had fallen on gravel on November 30, 2019 while delivering
her mail route. The Board, thus, finds that this evidence is sufficient to establish that appellant
sustained a right knee contusion during the accepted November 30, 2019 employment incident.12
Upon return of the case record, OWCP shall make payment and/or reimbursement of medical
expenses and wage-loss compensation, if any, with regard to the accepted right knee contusion.13
The Board further finds, however, that appellant has not established additional conditions
as causally related to the accepted employment injury.
The record contains medical reports dated December 10, 2019 and January 7, 2020 wherein
Dr. Levy diagnosed medial meniscus tear. However, Dr. Levy did not provide a medical opinion
explaining the cause of appellant’s diagnosed 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.14 As such, these reports are insufficient to establish
appellant’s claim.
OWCP also received a letter dated July 9, 2020 wherein Dr. Levy diagnosed medial
meniscus tear. Dr. Levy stated that appellant had no prior injuries and that her diagnosis was a
11

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.6(a)
(June 2011).
12

See T.U., Docket No. 19-1636 (issued October 29, 2020).

13

See S.K., Docket No. 20-1049 (issued June 28, 2021) (the Board accepted a left knee contusion as causally related
to the accepted employment incident); B.C., Docket No. 20-0498 (issued August 27, 2020) (the Board accepted lumbar
contusion as causally related to the accepted employment incident); S.H., Docket No. 20-0113 (issued June 24, 2020)
(the Board accepted a right ankle contusion as causally related to the accepted employment incident); M.A., Docket
No. 13-1630 (issued June 18, 2014).
14

D.C., Docket No. 19-1093 (issued June 25, 2020); see L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,
Docket No. 17-1549 (issued July 6, 2018).

5

direct and proximate result of a work injury, which occurred on January 1, 2001. The factors that
determine the probative value of medical evidence include the opportunity for and thoroughness
of examination performed by the physician, the accuracy or completeness of the physician’s
knowledge of the facts and medical history, the care of analysis manifested, and the medical
rationale expressed by the physician on the issues addressed to him by OWCP. 15 Appellant has
alleged that she injured her right knee on November 30, 2019. She did not allege a January 1,
2001 injury. Dr. Levy’s opinion is, therefore, based on an inaccurate history of injury. It is well
established that medical reports must be based on a complete and accurate factual and medical
background and that medical opinions based on an incomplete or inaccurate history are of limited
probative value.16 This letter is, therefore, insufficient to establish causal relationship.
The evidence from the nurse practitioner and physician assistants noted above is also
insufficient to establish additional conditions as causally related to the accepted e mployment
injury. They are not considered physicians under FECA. As such their reports are of no probative
value.17
As discussed above, the Board finds that the evidence of record is sufficient to warrant
acceptance of a right knee contusion, but insufficient to establish any additional conditions as
causally related to the accepted November 30, 2019 employment incident.
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 met her burden of proof to establish a right knee
contusion as causally related to the accepted November 30, 2019 employment incident. The Board
further finds, however, that appellant has not established additional conditions causally related to
the accepted employment injury.

15

A.G., Docket No. 19-0220 (issued August 1, 2019); James T. Johnson, 39 ECAB 1252 (1988).

16

A.C., Docket No. 19-1522 (issued July 27, 2020); J.R., Docket No. 12-1099 (issued November 7, 2012);
Douglas M. McQuaid, 52 ECAB 382 (2001).
Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3a(1) (January 2013); 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); see also R.L., Docket No. 19-0440 (issued July 8, 2019) (nurse practitioners are not considered physicians
under FECA).
17

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ORDER
IT IS HEREBY ORDERED THAT the November 20, 2020 decision of the Office of
Workers’ Compensation Programs is reversed in part and affirmed in part, and the case is
remanded for further proceedings consistent with this decision of the Board.
Issued: October 18, 2021
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.M., Appellant
and
U.S. POSTAL SERVICE, WEST GLEN
STATION, Peoria, IL, Employer
__________________________________________

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

Docket No. 09-243
Issued: August 11, 2009

Case Submitted on the Record

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

JURISDICTION
On November 3, 2008 appellant filed a timely appeal from a July 24, 2008 schedule
award decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award determination in this
case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he has greater
than 10 percent left lower extremity impairment for which he received schedule awards.1 On
appeal appellant generally argues that he is entitled to an increased schedule award.

1

The Board notes that the July 24, 2008 schedule award decision contains a typographical error in that it states
that the schedule award is for the left upper extremity.

FACTUAL HISTORY
On August 4, 2005 appellant, then a 35-year-old city letter carrier, filed a Form CA-2,
occupational disease claim, alleging that his job duties caused bilateral knee pain. His supervisor
indicated that he was on restricted duty performing office work only. Appellant did not stop
work. On October 3, 2005 the Office accepted that he sustained bilateral knee sprains/strains.
On October 21, 2005 Dr. Michael J. Gibbons, a Board-certified orthopedic surgeon, performed a
left knee arthroscopy with chondroplasty of the patella. On November 15, 2005 the Office
accepted that appellant sustained bilateral chondromalacia patella. On January 27, 2006
Dr. Gibbons performed right knee arthroscopy with chondroplasty. Appellant received
compensation and returned to limited duty. He missed intermittent periods for medical therapy
and treatment.
In a May 19, 2006 report, Dr. Gibbons diagnosed bilateral knee patellofemoral chondral
damage and bilateral shoulder rotator cuff tendinopathy with impingement, and advised that
appellant’s physical conditions impacted his ability to work.2 On June 19, 2006 he advised that
appellant had reached maximum medical improvement.
Appellant filed a schedule award claim on June 27, 2006. In a November 28, 2006
report, Dr. Gibbons diagnosed right hip pain of uncertain etiology, mild hip osteoarthritis,
possible impingement and possible labral tear.
By letter dated December 28, 2006, the Office informed appellant of the evidence needed
to support a schedule award claim. In a one-page form report dated January 11, 2007,
Dr. Daniel R. Hoffman, Board-certified in internal and geriatric medicine, advised that
examination of the left knee demonstrated no flexion and 220 degrees of extension with 90
degrees of ankylosis. He advised that a prosthesis was required for knee stability and that
appellant had an additional impairment of 75 percent due to weakness, atrophy, pain or
discomfort, for a total 100 percent impairment of the left lower extremity. Appellant retired on
January 25, 2007. By letter dated June 26, 2005, the Office again informed appellant of the
evidence required to support a schedule award claim. In a June 30, 2007 report, Dr. Hoffman
noted appellant’s surgical history provided examination findings for appellant’s right knee.
The Office forwarded appellant’s medical records to Dr. David H. Garelick, an Office
medical consultant Board-certified in orthopedic surgery. In a July 23, 2007 report, Dr. Garelick
advised that maximum medical improvement was reached on June 19, 2006. In accordance with
Table 17-31 of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (hereinafter A.M.A., Guides),3 appellant had a five percent impairment of each knee
for residual patellofemoral pain without evidence of joint space narrowing on x-ray.

2

Appellant also submitted a November 22, 2005 report in which Dr. Gary H. Cohen, an osteopath, provided an
impairment rating for bilateral carpal tunnel syndrome.
3

A.M.A., Guides (5th ed. 2001); Joseph Lawrence, Jr., 53 ECAB 331 (2002).

2

In an August 15, 2007 schedule award decision, appellant was granted five percent
impairment for both the left and right lower extremities, a total of 28.8 weeks to run from
January 20 to August 9, 2007.
On August 27, 2007 appellant requested a review of the written record. In an August 22,
2007 report, Dr. Hoffman reiterated his previous findings and conclusions regarding appellant’s
right knee. By decision dated December 21, 2007, an Office hearing representative remanded
the case to the Office for further review. The Office subsequently referred appellant to Dr. Lisa
Snyder, Board-certified in physical and pain medicine.4
In a May 23, 2008 report, Dr. Snyder reviewed the medical records and appellant’s
complaint of bilateral knee pain. She noted that he ambulated with bilateral canes and wore a
knee brace on the left. Physical examination demonstrated no evidence of muscle wasting or
atrophy in the lower extremities with good muscle definition in all major muscle groups.
Strength with manual muscle testing demonstrated give-way weakness, particularly in the left
lower extremity with strength of 5/5 in all major muscle groups in the lower extremities.
Reflexes at the knees and ankles were 2+ and symmetrical, and sensation to pin was intact in all
dermatomes in the lower extremities. Examination of the knees demonstrated no swelling or
erythema and no joint line tenderness. Anterior and posterior drawer signs were negative.
Compression of the left patella caused pain but none on the right. Dr. Synder stated that the left
knee could be actively ranged to 108 degrees. Bilateral knee extension revealed no extension
lag. Dr. Synder advised that, using Table 17-10 of the A.M.A., Guides, appellant had a mild left
knee flexion impairment that yielded a 10 percent lower extremity disability.
In a June 16, 2008 report, Dr. Garelick reviewed the medical evidence and advised that,
in accordance with Table 17-2 of the A.M.A., Guides, an impairment rating could not be
awarded for both degenerative joint disease and range of motion deficits. As appellant had
previously been awarded five percent permanent impairment for residual patellofemoral pain
syndrome under Table 17-31, an additional impairment rating could not be awarded for his slight
loss of left knee motion. Dr. Garelick concluded that appellant did not have greater impairment
of either lower extremity.
By decision dated June 18, 2008, the Office found that appellant was not entitled to an
increased schedule award for either lower extremity. In a July 24, 2008 decision, it advised
appellant to disregard the June 18, 2008 decision as it was issued in error, and granted him an
additional 5 percent left lower extremity impairment, for a total impairment of 10 percent of the
left lower extremity.
LEGAL PRECEDENT
Under section 8107 of the Federal Employees’ Compensation Act5 and section 10.404 of
the implementing federal regulations,6 schedule awards are payable for permanent impairment of
4

Appellant was out of the country from April 2 to May 22, 2008.

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

3

specified body members, functions or organs. The Act, however, does not specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice under the law for all claimants, good administrative practice necessitates 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 the Office, and the Board has concurred in such adoption,
as an appropriate standard for evaluating schedule losses.7 Chapter 17 provides the framework
for assessing lower extremity impairments.8 Office procedures indicate that referral to an Office
medical adviser is appropriate when a detailed description of the impairment from the attending
physician is obtained.9
It is the claimant’s burden to establish that he or she sustained a permanent impairment of
a scheduled member or function as a result of an employment injury. Office procedures provide
that, to support a schedule award, the file must contain competent medical evidence which shows
that the impairment has reached a permanent and fixed state and indicates the date on which this
occurred (“date of maximum medical improvement”), describes the impairment in sufficient
detail to include, where applicable, the loss in degrees of active and passive motion of the
affected member or function, the amount of any atrophy or deformity, decreases in strength or
disturbance of sensation or other pertinent description of the impairment and the percentage of
impairment should be computed in accordance with the fifth edition of the A.M.A., Guides.10
The procedures further provide that, after obtaining all necessary medical evidence, the file
should be routed to the Office medical adviser for an opinion concerning the nature and
percentage of impairment.11
ANALYSIS
The Board finds that Dr. Hoffman’s January 11, 2007 report is insufficient to establish
the extent of impairment to appellant’s left lower extremity. Schedule awards are to be based on
the A.M.A., Guides,12 and an estimate of permanent impairment is of diminished probative value
where it is not based on the A.M.A., Guides.13 Dr. Hoffman merely provided a percentage of
impairment without addressing the A.M.A., Guides. His report does not constitute probative
medical evidence regarding the degree of permanent impairment to appellant’s left lower
extremity.

7

See Joseph Lawrence, Jr., supra note 3; James J. Hjort, 45 ECAB 595 (1994); Leisa D. Vassar, 40 ECAB 1287
(1989); Francis John Kilcoyne, 38 ECAB 168 (1986).
8

A.M.A., Guides, supra note 4 at 523-64.

9

Thomas J. Fragale, 55 ECAB 619 (2004).

10

Supra note 3.

11

J.P., 60 ECAB ___ (Docket No. 08-832, issued November 13, 2008).

12

Joseph Lawrence, Jr., supra note 3.

13

Shalanya Ellison, 56 ECAB 150 (2004).

4

Appellant’s schedule award on August 15, 2007 was based on the opinion of
Dr. Garelick, an Office medical consultant. In his July 23, 2007 report, Dr. Garelick advised that
appellant had five percent impairment to each lower extremity, in accordance with Table 17-31
of the A.M.A., Guides. This table which provides that a complaint of patellofemoral pain
without joint space narrowing on x-rays is equal to a five percent lower extremity impairment.14
Dr. Snyder, however, provided a second opinion evaluation for the Office. In a May 23, 2008
report, she found that under Table 17-10 appellant had a mild left knee flexion impairment that
yielded a 10 percent left lower extremity impairment. As noted, however, Table 17-2 precludes
combining impairment ratings for degenerative joint disease, as found in Table 17-31, and range
of motion deficits, as found in Table 17-10.15
It is the responsibility of the evaluating physician to explain in writing why a particular
method to assign the impairment rating was chosen. When uncertain about which method to
choose, the evaluator should calculate the impairment using the different alternatives and choose
the method or combination of methods that gives the most clinically accurate impairment
rating.16 In this case, both Dr. Garelick and Dr. Snyder provided proper analysis under the
A.M.A., Guides. As Dr. Snyder’s recommendation utilizing Table 17-10 is more favorable to
appellant, the Board finds that her report establishes that he has 10 percent left lower extremity
impairment, the amount awarded with a July 24, 2008 decision.
Finally, the Board notes that the impairment rating of appellant’s right lower extremity is
in an interlocutory position. In a December 21, 2007 decision, an Office hearing representative
remanded the case to the Office for a second opinion evaluation regarding both lower
extremities. In the June 18, 2008 decision, the Office determined that appellant was not entitled
to an additional schedule award for his right lower extremity. It subsequently determined that
the June 18, 2008 decision was issued in error. However, the July 24, 2008 decision, adjudicated
only appellant’s left lower extremity. The Board’s jurisdiction is limited to consider and decide
appeals from final decisions of the Office issued within one year prior to the filing of the
appeal.17 As the Office has not issued a final decision regarding appellant’s right lower
extremity impairment, the Board lacks jurisdiction to consider this issue in the current appeal.
CONCLUSION
The Board finds that appellant is entitled to a 10 percent left lower extremity impairment.

14

A.M.A., Guides, supra note 3 at 544.

15

Id. at 526; see Phillip A. Norulak, 55 ECAB 690 (2004).

16

Tara L. Hein, 56 ECAB 431 (2005).

17

20 C.F.R. § 501.2c (2007); see Annette Louise, 54 ECAB 783 (2003).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 24, 2008 be affirmed.
Issued: August 11, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6