United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.D., Appellant
and
U.S. POSTAL SERVICE, CORTESE STATION,
San Jose, CA, Employer
__________________________________________

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

Docket No. 16-1394
Issued: January 26, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 20, 2016 appellant filed a timely appeal of a June 6, 2016 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 to
consider the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish a left knee condition
causally related to factors of his federal employment.
FACTUAL HISTORY
On July 25, 2015 appellant, then a 23-year-old city carrier assistant, filed an occupational
disease claim (Form CA-2) alleging that on that date he first became aware that his left knee
condition was caused by excessive walking and walking on uneven surfaces. On the back of the
1

5 U.S.C. § 8101 et seq.

form the employing establishment reported that he stopped work on July 26, 2015 and had not
returned to work.
In a July 25, 2015 supplemental statement, appellant related that while walking his route
he felt a sharp pain in his left knee. He continued his route, but the pain worsened to the point
where he was unable to bend his knee. Appellant immediately informed his supervisor.
A July 27, 2015 U.S. Health Works Medical Group treatment authorization form noted
the employing establishment as the employer. A.L., Supervisor, Customer Service signed the
form authorizing treatment for appellant on July 27, 2015 at 11:40 a.m. with U.S. Health Works
Medical Group. The date of injury was listed as July 25, 2015 with the injured body part listed
as left knee.
In a July 28, 2015 report, Dr. Eric Jackson-Scott, a specialist in occupational medicine,
provided physical examination findings and history of illness and diagnosed left knee/leg
sprain/strain. Under history of illness, he noted that appellant attributed his condition to
excessive walking on uneven surfaces and that he first noticed a sudden sharp left kneecap pain
on July 25, 2015. Dr. Scott-Jackson noted that appellant had been in his position for less than 90
days, that he worked more than 60 hours per week, and that he attributed his injury/condition to
his employment. A physical examination revealed a normal gait, moderate tenderness of the left
patella, no joint effusion, and some left lower extremity flexion muscle strength weakness.
Appellant was released to return to work with restrictions on July 28, 2015 and was referred for
physical therapy. Regarding causation, Dr. Jackson-Scott reported that the diagnosis and
physical examination findings were consistent with appellant’s description of the injury. He
concluded that there had been no aggravation of a preexisting condition by the injury/exposure,
but that the current symptoms and findings were more likely to have been caused by the reported
injury.
In a completed OWCP questionnaire form appellant indicated that he was filing an
occupational disease claim and not a traumatic injury claim. He attributed his left knee condition
to over nine hours per day of walking on gravel, rocks, sidewalk cracks, potholes, and curbs and
going up stairs.
In a July 31, 2015 work status report, Dr. Jackson-Scott diagnosed a left leg/knee
strain/sprain and provided work restrictions.
By correspondence dated August 10, 2015, OWCP informed appellant that the evidence
of record was insufficient to establish his claim. It advised him regarding the medical and
factual evidence required and afforded him 30 days to provide the requested evidence.
On August 11, 2015 OWCP received a July 31, 2015 report by Dr. Jackson-Scott, which
noted an injury date of July 25, 2015, a diagnosis of left knee/leg sprain/strain, and reported
appellant was improving slowly. Appellant’s physical examination revealed tenderness on the
left medial and lateral joint lines, no left patella subluxation or tenderness, and normal left knee
range of motion. Dr. Jackson-Scott reported that appellant was capable of working with
restrictions and a leg brace as of July 31, 2015.

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OWCP subsequently received an August 6, 2015 report from Dr. Charles Potter, a Boardcertified family medicine practitioner, noting an injury date of July 25, 2015 and diagnosis of left
knee/leg sprain/strain. A physical examination revealed no tenderness of the left medial and
lateral joint lines, no left patella subluxation or tenderness, and normal left knee range of motion.
The report noted that appellant had no work restrictions.
In an August 17, 2015 report, Dr. Diana Johns, a specialist in occupational medicine,
diagnosed left patella pain and prepatellar bursitis, which she indicated was not employment
related. She noted that appellant’s physical examination revealed no tenderness of the left
medial and lateral joint lines, no left patella subluxation, mild tenderness over the patella pole,
and normal left knee range of motion. In support of her conclusion that the condition was not
employment related, Dr. Johns explained that it was not credible that the condition had been
caused by his employment based on his complaints of pain after walking 10 minutes and a
normal examination. Furthermore, the examination findings of patellar bursa swelling and
redness were more consistent with a fall or contusion.
By decision dated September 16, 2015, OWCP denied the claim as it found that the
medical evidence of record insufficient to establish that appellant’s left knee condition had been
caused or aggravated by the accepted employment activities.
On February 2, 2016 OWCP received appellant’s December 24, 2015 request for an oral
hearing before an OWCP hearing representative.
In a February 2, 2016 statement, appellant provided a history of his injury and that during
orientation the employing establishment stressed that if he was injured on the job that he must
document it. Appellant’s supervisor advised him to fill out a Form CA-2 after being notified of
his injury. Appellant related that his supervisor took him to a physician at U.S. Health Works
and advised that the medical costs would be paid by the employing establishment.
On February 3, 2016 OWCP received a July 28, 2015 work status report signed by
Mary Bustillo, a nurse practitioner, releasing appellant to return to work that day with
restrictions.
By decision dated February 24, 2016, the Branch of Hearings and Reviewed denied
appellant’s February 24, 2016 request for an oral hearing as untimely. It noted that his oral
hearing request had not been filed within 30 days of the September 16, 2015 decision and
advised that the issue could equally well be addressed by requesting reconsideration.
On March 10, 2016 OWCP received appellant’s March 7, 2016 request for
reconsideration.
In a March 16, 2016 CA-110 notes, the employing establishment informed OWCP that
appellant returned to work following the July 25, 2015 incident and voluntarily resigned after
working a week.
By decision dated June 6, 2016, OWCP denied modification. It found the weight of the
evidence rested with the well-rationalized opinion of Dr. Johns who opined that appellant’s left
knee condition was unrelated to his employment.
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LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.6 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors.7 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 the specific employment factors identified by the employee.8
ANALYSIS
The Board finds that the medical evidence of record is insufficient to establish a left knee
condition causally related to walking on his mail route.
Dr. Jackson-Scott, in his July 28, 2015 report, diagnosed left knee/leg sprain strain. He
reported that appellant had been in his position for less than 90 days and that appellant attributed
2

Id.

3

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

4

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

5

D.U., Docket No. 10-144 (issued July 27, 2010); R.H., 59 ECAB 382 (2008); Roy L. Humphrey, 57 ECAB 238
(2005); Donald W. Wenzel, 56 ECAB 390 (2005).
6

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).
7

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).

8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

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his knee pain to the excessive walking required in his job. Dr. Jackson-Scott noted that
appellant’s description of the knee injury was consistent with the diagnosis and examination
findings. In addition, as appellant did not have a preexisting condition, Dr. Jackson-Scott opined
it was more likely than not that the knee condition had been caused by appellant’s employment.
However, he failed to explain how the specific activity of excessive walking for less than
90 days caused or aggravated his left knee condition. A mere conclusion without the necessary
rationale explaining how and why the physician believes that a claimant’s accepted exposure
resulted in the diagnosed condition is insufficient to meet appellant’s burden of proof.9
Dr. Jackson-Scott did not adequately explain why the physical examination findings and
appellant’s brief period of employment brought him to the conclusion that there was causal
relationship between the diagnosed left knee condition and identified employment factor.10
Furthermore, the mere fact that a disease or condition manifests itself during a period of
employment, nor the belief that the left knee condition had been caused by the identified
employment factor, is sufficient to establish a causal relationship.11
Moreover, Dr. Jackson-Scott’s July 21, 2015 report is also insufficient to support
appellant’s claim. While he diagnosed a left leg/knee sprain/strain, he offered no opinion as to
the cause of the condition. The Board has held that medical evidence offering no opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of
causal relationship.12 For the above reasons, the Board finds Dr. Jackson-Scott’s reports
insufficient to establish a causal relationship between the diagnosed left knee condition and the
identified employment factor.
The record also contains a report from Dr. Potter diagnosing a left knee/leg sprain/strain
and injury date of July 25, 2015. He provided examination findings, but offered no opinion as to
the cause of the diagnosed left knee condition. As explained above, medical evidence offering
no opinion regarding the cause of an employee’s condition is of limited probative value on the
issue of causal relationship and insufficient to support appellant’s claim.13 Thus, Dr. Potter’s
report is insufficient to support appellant’s burden.
OWCP received a July 28, 2015 report signed by nurse practitioner, Ms. Bustillo.
Section 8101(2) of FECA14 provides that the term “physician” includes surgeons, podiatrists,
dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within
the scope of their practice as defined by the applicable state law. Reports by nurse practitioners
are not considered medical evidence as nurse practitioners are not considered physicians under

9

G.M., Docket No. 14-2057 (issued May 12, 2015); Cecelia M. Corley, 56 ECAB 662 (2005).

10

See R.E., Docket No. 14-868 (issued September 24, 2014); Robert Broome, 55 ECAB 339 (2004).

11

S.E., Docket No. 08-2214 (issued May 6, 2009); Kathryn E. Demarsh, 56 ECAB 677 (2005).

12

A.F., 59 ECAB 714 (2008); Ellen L. Noble, 55 ECAB 530 (2004); Michael E. Smith, 50 ECAB 313 (1999).

13

Id.

14

See 5 U.S.C. § 8101(2). See also Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board has held
that a medical opinion, in general, can only be given by a qualified physician).

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FECA.15 This report is therefore of no probative medical value in establishing appellant’s
claim.16
Appellant also submitted an August 17, 2015 report from Dr. Johns diagnosing left
patella pain and prepatellar bursitis. However, Dr. Johns concluded that these conditions were
not employment related and were more consistent with a contusion or fall. As she found that
appellant’s diagnosed left knee condition was not employment related, her report is also
insufficient to establish his claim.
Finally, the Board notes that OWCP’s implementing regulations allow for authorization
of medical treatment in emergency circumstances. While 20 C.F.R. § 10.300 explains that
authorization of emergency medical treatment is usually provided by issuance of a Form CA-16,
section 10.304 allows for authorization of emergency treatment, in the absence of a Form CA-16,
in cases involving emergencies or unusual circumstances.17 While there was no Form CA-16
issued in this case, the record reveals that appellant was accompanied by his supervisor who
authorized treatment. Upon return of the case record, after such development deemed necessary,
OWCP shall adjudicate whether his treatment on July 27, 2015 should be authorized due to an
emergency or unusual circumstances.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained a left knee condition causally related to factors of his federal employment.

15

Id., see also M.S., Docket No. 16-1497 (issued December 20, 2016).

16

J.C., Docket No. 16-1182 (October 11, 2016).

17

See also N.B., Docket No. 15-0708 (issued July 15, 2015); K.J., Docket No. 13-271 (issued May 23, 2013).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 6, 2016 is affirmed.
Issued: January 26, 2017
Washington, DC

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

Colleen Duffy Kiko, 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.O., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, Fresno, CA,
Employer
__________________________________________

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

Docket No. 19-0885
Issued: November 4, 2019

Case Submitted on the Record

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

JURISDICTION
On March 18, 2019 appellant filed a timely appeal from a November 5, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether OWCP properly terminated appellant’s wage-loss compensation and
medical benefits effective November 5, 2018.
FACTUAL HISTORY
On October 5, 2015 appellant, then a 43-year-old tax examining technician, filed a
traumatic injury claim (Form CA-1) alleging that on September 30, 2015 she tripped over a cart
1

5 U.S.C. § 8101 et seq.

and injured her knee and back while in the performance of duty. OWCP accepted the claim for
contusion of the left front wall of thorax, sprain of ligaments of lumbar spine, strain of unspecified
muscles and tendons of the lower left leg, and contusion of the lower back and pelvis. Appellant
stopped work on September 30, 2015 and received continuation of pay beginning October 1, 2015.
OWCP paid her supplemental wage loss from November 15, 2015 to March 1, 2018.
A magnetic resonance imaging (MRI) scan of the lumbar spine dated December 5, 2015
revealed moderate-to-severe disc height loss, central to left paracentral disc extrusion extending to
the inferior endplate of L4, mildly stenotic spinal canal narrowing of the left lateral recess, and left
neural foraminal stenosis.
Appellant was treated by Dr. Adam J. Brant, a Board-certified neurosurgeon, on
January 13 and March 28, 2016 for a two-year history of low back pain. He noted that appellant
was treated for a previous lumbar condition at Kaiser Permanente in the prior two years and
underwent five epidural injections without relief. Dr. Brant provided diagnoses including
exacerbation of preexisting pain and sciatica following an on-the-job fall on September 30, 2015.
He noted worsening symptoms despite limited conservative treatment. Dr. Brant recommended
physical therapy.
On June 17, 2016 OWCP referred appellant to Dr. Aubrey A. Swartz, a Board-certified
orthopedic surgeon, along with a statement of accepted facts (SOAF) and a copy of the medical
record, for a second opinion examination to determine whether she continued to suffer residuals
and remained disabled due to her September 30, 2015 employment injury. In an August 2, 2016
report, Dr. Swartz reviewed appellant’s medical history and provided findings on physical
examination. He diagnosed status post trip and fall with temporary aggravation of preexisting
condition of the lumbar spine. Dr. Swartz noted normal range of motion of the lumbar spine,
normal neurologic examination of the lumbar spine, and no radiculopathy. He noted
inconsistencies in his examination of appellant with no clearly valid findings on examination.
Dr. Swartz requested, for comparison purposes, that OWCP obtain the prior imaging studies from
Kaiser Permanente for treatment received in 2013 and 2014. He concluded that appellant was able
to perform her job duties with restrictions. In a supplemental report dated October 5, 2016,
Dr. Swartz indicated that he was informed that the previous films were unavailable. He noted
preexisting conditions of degenerative disc disease with moderate left and right neuroforaminal
stenosis at L4-5 and preexisting spondylosis which would have resolved by December 30, 2015.
Dr. Swartz opined that appellant was able to return to work full time with restrictions relating to
her preexisting conditions.
On October 27, 2016 appellant’s treating physician, Dr. Kulraj S. Sidhu, a Board-certified
internist, disagreed with Dr. Swartz’s opinion and indicated that appellant’s aggravation of
preexisting conditions was not resolved and that she continued to be totally disabled. On
January 23, 2017 he returned appellant to work four hours a day with restrictions. In a duty status
report (Form CA-17) dated February 13, 2017, Dr. Sidhu diagnosed herniated lumbar disc at L45 and increased her work to six hours per day with restrictions.
On November 22, 2016 OWCP determined that a conflict in medical opinion existed
between Dr. Sidhu, appellant’s treating physician, and Dr. Swartz, OWCP’s referral physician,
with respect to her employment-related conditions and disability. It referred appellant, along with

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a SOAF and a copy of the record, to Dr. Ernest Miller, a Board-certified orthopedic surgeon, to
resolve the conflict. In a May 31, 2017 report, Dr. Miller reviewed the SOAF and recounted
appellant’s medical history, and diagnosed morbid obesity with a 60-pound weight gain since
September 30, 2015, chronic low back pain with severe degenerative disc disease at L4-5, no
evidence of radiculopathy, and no evidence of strain/sprain injury, but evidence of poor muscle
tone. He opined that all strain/sprain injuries accepted as a result of the September 30, 2015 injury
resolved and would have resolved within three to six months of the fall. Dr. Miller noted that
physical examination and medical record review demonstrated no residual evidence of the
accepted injuries. He indicated that a possible temporary aggravation of chronic lower back pain
secondary to obesity and degenerative disc disease at L4-5 may have occurred, but it would have
been resolved within one year of the September 30, 2015 employment injury. Dr. Miller noted
that an x-ray dated September 30, 2015 revealed severe degenerative disc disease at L4-5 which
preexisted the September 30, 2015 injury; however, the medical records pertaining to appellant’s
prior five years of treatment with Kaiser Permanente were unavailable for review. He returned
appellant to work with preexisting work restrictions based on poor muscle tone and obesity.
The diagnostic studies previously unavailable were received by OWCP and included MRI
scans of the lumbar spine dated July 27, 2012, November 7, 2014, and December 5, 2015, which
generally revealed worsening degenerative disc disease at L4-5. An electromyogram (EMG) dated
March 21, 2018 revealed no abnormalities.
Dr. Sanjay J. Chauhan, a Board-certified neurologist, treated appellant from September 20,
2017 to May 2, 2018, and reviewed the previously unavailable MRI scan results which
demonstrated a clear worsening of the disc at L4-5 since the MRI scan in 2012 and in 2014. He
opined that the September 30, 2015 employment injury caused a permanent severe aggravation of
appellant’s preexisting low back pain and disc degeneration with new radicular symptoms from
2012 as evidenced on imaging. Dr. Chauhan further addressed appellant’s left knee, noting that
she sustained an abrasion and bruising post fall on September 30, 2015 which has worsened with
symptoms of give-away weakness and popping.
On April 27, 2018 OWCP proposed to terminate appellant’s wage-loss compensation and
medical benefits. It found that the weight of medical evidence rested with the opinion of the
impartial medical examiner, Dr. Miller, who determined in a May 31, 2017 report that there were
no objective findings to demonstrate continued residuals of her accepted September 30, 2015
employment injury. OWCP advised appellant that she had 30 days to submit additional evidence
or argument if she disagreed with the decision.
On May 29, 2018 OWCP requested Dr. Miller review the March 19 and May 2, 2018
reports from Dr. Chauhan along with preinjury MRI scan results from 2012 and 2014 that were
not previously available for comparison with the post-injury results and advise whether this
evidence would alter his May 31, 2017 opinion that the work injury had resolved.
In an OWCP telephone memorandum (Form CA-110) dated June 27, 2018, Dr. Miller’s
office contacted OWCP and spoke with the senior claims examiner and requested a copy of the
SOAF. The claims examiner updated the SOAF and faxed it to Dr. Miller’s office. No
supplemental report was received.

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By decision dated November 5, 2018, OWCP finalized the termination of appellant’s
wage-loss compensation and medical benefits, effective that date. It determined that weight of the
medical evidence rested with Dr. Miller’s May 31, 2017 report which found that the medical
evidence failed to demonstrate that appellant continued to suffer residuals or continuing disability
as a result of his September 30, 2015 employment injury.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.2 After it has determined that an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.3 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.4
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.5 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.6
Section 8123(a) of FECA provides that, if there is a disagreement between the physician
making the examination for the United States and the physician of an employee, the Secretary shall
appoint a third physician (known as a referee physician or impartial medical specialist) who shall
make an examination.7 This is called a referee examination and OWCP will select a physician
who is qualified in the appropriate specialty and who has no prior connection with the case.8 When
there exists 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.9
Board precedent further provides that when OWCP obtains an opinion from an impartial
medical specialist for the purpose of resolving a conflict in the medical evidence and the
2

M.M., Docket No. 17-1264 (issued December 3, 2018).

3

E.B., Docket No. 18-1060 (issued November 1, 2018).

4

G.H., Docket No. 18-0414 (issued November 14, 2018).

5

L.W., Docket No. 18-1372 (issued February 27, 2019).

6

R.P., Docket No. 18-0900 (issued February 5, 2019).

7

5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued
May 4, 2009).
8

20 C.F.R. § 10.321.

9

Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

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specialist’s opinion requires clarification or elaboration, it must secure a supplemental report from
the specialist to correct the defect in his original report. Only when the impartial specialist is
unable to clarify or elaborate on his original report or if his supplemental report is also vague,
speculative or lacking in rationale, should OWCP refer the claimant to a second impartial
specialist.10
ANALYSIS
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
compensation benefits, effective November 5, 2018.
OWCP accepted that appellant sustained a contusion of the left front wall of thorax, sprain
of ligaments of lumbar spine, strain of unspecified muscles and tendons of the lower left leg, and
contusion of the lower back and pelvis. Appellant stopped work on October 1, 2015 and OWCP
paid her wage-loss compensation and medical benefits until November 5, 2018. In reports dated
August 2 and October 5, 2016, Dr. Swartz, an OWCP referral physician, determined that
appellant’s employment injuries had resolved and that she was able to return to work full time with
restrictions. He requested, for comparison purposes, that OWCP obtain the prior imaging studies
from Kaiser Permanente for treatment received in 2013 and 2014. In various reports dated
October 27, 2016 to February 13, 2017, Dr. Sidhu, appellant’s treating physician, opined that
appellant continued to have work-related residuals and disability. To resolve the conflict of
medical opinion evidence between appellant’s physicians and the referral physician, OWCP
referred appellant to Dr. Miller for an impartial examination. The Board finds that OWCP properly
determined that a conflict in medical opinion existed and referred appellant for an impartial
medical examination in order to resolve the conflict, pursuant to 5 U.S.C. § 8123(a).
Where a case is referred to an impartial medical specialist for the purpose of resolving a
conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper
factual and medical background, must be given special weight.11 OWCP issued a notice of
proposed termination of benefits based on Dr. Miller’s May 31, 2017 report. As noted, prior to
the final termination of appellant’s wage-loss compensation and medical benefits it received
additional medical evidence. OWCP requested Dr. Miller, the impartial medical specialist, review
the additional medical evidence and advise whether this evidence altered his May 31, 2017 opinion
that the work injury had resolved. No further action was taken by OWCP to obtain a supplemental
report prior to termination of appellant’s benefits.
Proceedings under FECA12 are not adversarial in nature. OWCP shares responsibility in
the development of the evidence and has an obligation to see that justice is done.13 The Board
finds, therefore, that OWCP erred by terminating appellant’s compensation effective November 5,
10

See id.

11

See Roger Dingess, 47 ECAB 123 (1995).

12

5 U.S.C. §§ 8101-8193.

13

William B. Webb, 56 ECAB 156 (2004).

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2018 based on Dr. Miller’s May 31, 2017 impartial medical report. The Board will reverse
OWCP’s decision terminating appellant’s wage-loss compensation and medical benefits.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective November 5, 2018.
ORDER
IT IS HEREBY ORDERED THAT the November 5, 2018 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: November 4, 2019
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Merrifield, VA, Employer
__________________________________________

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

Docket No. 21-0995
Issued: March 2, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 17, 2021 appellant filed a timely appeal from a December 21, 2020 nonmerit
decision and an April 15, 2021 merit decision and 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 properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error; and (2) 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.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. 2 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 May 10, 1989 appellant, then a 35-year-old mail handler, filed a traumatic injury claim
(Form CA-1) alleging that on May 9, 1989 he sustained a left knee injury when pulling an allpurpose container (APC) while in the performance of duty. He did not stop work but was granted
disability retirement on March 11, 1992. OWCP accepted that appellant sustained a sprain/strain
of the left knee and leg, a tear of the left lateral meniscus, and left corns/calluses. It authorized
arthroscopic surgery on the left knee, performed on January 23, 1990.3
On April 15, 2005 appellant filed a notice of recurrence of disability (Form CA-2a),
alleging that he experienced pain and weakness in his left knee commencing October 30, 2004,
causally related to the accepted May 10, 1989 employment injury.
By decision dated August 16, 2006, OWCP denied appellant’s recurrence of disability
claim, finding that the evidence of record was insufficient to establish that appellant sustained a
recurrence of disability commencing October 30, 2004 causally related to his work injury of
May 9, 1989.
On November 28, 2006 appellant appealed to the Board. 4 By decision dated June 7, 2007,
the Board affirmed the August 16, 2006 OWCP decision.
OWCP received additional evidence. Appellant subsequently submitted employing
establishment medical records dated March 4, 1977 through June 7, 1988 where he was treated for
several conditions including ankle, toe, right foot, and back pain. He was treated by Dr. Michael
Redlich, a Board-certified neurologist, on February 25, 1992 for cervical and thoracic disc
syndrome. Likewise, from March 12, 1993 through August 11, 2000, Dr. A. Janati, a Boardcertified neurologist, treated appellant for chronic neck and left lower extremity pain. He
diagnosed degenerative arthritis of the cervical and thoracic spine, which was related to trauma
while in the military in 1978. Appellant attended physical therapy from July 17, 1978 through
March 16, 2000. He also submitted a position description for a personnel clerk.
Dr. Azer treated appellant from October 20, 1989 through September 10, 1991 for
callouses on his left foot and left knee pain. OWCP received diagnostic studies from March 3,
1992 through December 21, 2017.

2

Docket No. 07-406 (issued June 7, 2007).

3

On January 23, 1990 Dr. Samir N. Azer, a Board-certified orthopedist, performed arthroscopy of the left knee,
removed loose chondral fracture, shaved crater, and diagnosed loose chondral body of the left knee with greater defect
of the left medial femoral condyle weight bearing surface.
4

Supra note 2.

2

On January 21, 2017 Dr. Ferdinand M. Amante, Jr., an orthopedic surgeon, reevaluated
appellant for a painful left knee. Appellant reported sustaining a proximal left leg fracture at 14
years old and underwent a left knee meniscectomy in 1990. He diagnosed osteoarthritis of the left
knee and left leg length discrepancy which could be an aggravating factor for osteoarthritis.
In a statement dated September 13, 2018, appellant provided a history of his employment
with the Federal Government. He sought to expand the acceptance of his claim to include
aggravated underlying preexisting medical conditions. In a statement dated December 13, 2018,
appellant again requested expansion of his claim.
In a medical certificate and report dated November 20, 2018, Dr. Emiliano B. Tablante, a
Board-certified orthopedist, noted a history of the May 9, 1989 work injury and provided a medical
history from May 1967 through January 2, 2018. He noted that appellant underwent a posterior
decompression L3-4 and L4-5 on January 2, 2018. Dr. Tablante noted findings on examination of
decreased stride length, tight on trapezius, paracervical and lats doris, muscle spasm o f lower
trapezius, intermittent localized pain of the knee and patella, muscle spasm with dull pain in the
feet and hand, and cervical pain with radiculopathy. He diagnosed left ganglion cyst of first
metatarsal head, focal right synovitis, posterior calcaneal spur, left os peroneum, right pes planus,
overpronation of the foot, osteoarthritis changes of the knees, left patella osteophyte, right knee
varus, status post chronic low back pain with radiculopathy, levoscoliosis, compression deformity
of the thoracic spine, thoracic spondylosis, cervical spondylosis with radiculopathy at C4-5, C5-6,
C6-7, mild anterior wedge compression deformities at C5-6, and bilateral carpal tunnel syndrome.
Dr. Tablante opined within a reasonable degree of medical certainty that the above medical
conditions were consequential to the accepted left knee and leg sprain/strain, left lateral meniscus
tear, and left calluses. He recommended further diagnostic work up including epidural cervical
injections and diagnostic arthroscopy of the left knee.
On May 30, 2019 appellant again requested his claim be reopened and expanded to include
additional conditions.
On September 28, 2020 appellant requested reconsideration of the August 16, 2006 OWCP
decision denying his recurrence claim. He alleged clear evidence of error in the last OWCP
decision based on OWCP’s failure to develop his subsequent injury claims after the January 25,
1990 OWCP-authorize arthroscopic left knee surgery revealed loose chondral bodies and defect
of the medial femoral condyle. Appellant also requested a schedule award for the left lower
extremity, and expansion of the acceptance of his claim.
On September 28, 2020 OWCP received an electromyogram (EMG) and nerve conduction
velocity (NCV) study dated September 18, 2003 that revealed multiple peripheral neuropathy,
sensorimotor affecting the lower more than upper extremities without ruling out bilateral chronic
cervical C5-6 radiculopathies and bilateral lumbar L5 radiculopathies. X-rays of the feet dated
October 3, 2017 revealed posterior calcaneal spurs and os peroneum of the left foot. An x -ray of
the right hip dated November 24, 2019 revealed no discrete fracture or dislocation. An x-ray of
both knees dated March 10, 2020 revealed mild degenerative osteoarthritic changes and bilateral
patellar enthresophytes.

3

On October 9, 2020 appellant filed a claim for compensation (Form CA-7) for a schedule
award.
In a development letter dated October 20, 2020, OWCP requested that appellant submit an
impairment evaluation addressing whether he had reached MMI and provide an impairment rating
using the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides).5 It afforded him 30 days to submit additional medical
evidence in support of his schedule award claim.
By decision dated December 21, 2020, OWCP denied appellant’s reconsideration request
of the August 16, 2006 recurrence decision, finding that it was untimely filed and failed to
demonstrate clear evidence of error.
By decision dated April 15, 2021, OWCP denied appellant’s schedule award claim, finding
that the medical evidence of record was insufficient to establish permanent impairment of a
scheduled member or function of the body, warranting a schedule award.
LEGAL PRECEDENT -- ISSUE 1
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.6 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought. 7 Timeliness is determined by the document receipt date (i.e.,
the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS)). 8
Imposition of this one-year filing limitation does not constitute an abuse of discretion. 9
OWCP may not deny a request for reconsideration solely because the application was not
timely filed. When a request for reconsideration is untimely, it undertakes a limited review to
determine whether the request demonstrates clear evidence that OWCP’s most recent merit
decision was in error. 10 OWCP’s procedures provide that it will reopen a claimant’s case for merit
review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the
claimant’s request for reconsideration demonstrates clear evidence of error on the part of OWCP.11
5

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

6

5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued
March 16, 2009).
7

20 C.F.R. § 10.607(a).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (September 2020).

9

G.G., Docket No. 18-1074 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
10

See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB
499, 501-02 (1990).
11

L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See
also id. at § 10.607(b); supra note 8 at Chapter 2.1602.5 (September 2020).

4

In this regard, OWCP will limit its focus to a review of how the newly submitted evidence bears
on the prior evidence of record. 12
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP.13 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error. Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate
clear evidence of error. It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP. To demonstrate clear evidence
of error, the evidence submitted must not only be of sufficient probative value to create a conflict
in medical opinion or establish a clear procedural error but must be of sufficient probative value
to shift the weight of the evidence in favor of the claimant and raise a substantial question as to
the correctness of OWCP’s decision. The Board makes an independent determination as to
whether a claimant has demonstrated clear evidence of error on the part of OWCP. 14
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
OWCP’s regulations15 and procedures 16 establish a one-year time limit for requesting
reconsideration, which begins on the date of the last merit decision issued in the case. A right to
reconsideration within one year also accompanies any subsequent merit decision on the issues,
including a merit decision of the Board.17 The most recent merit decision on the recurrence issue
was the Board’s June 7, 2007 decision, which affirmed the denial of appellant’s claim for a
recurrence of disability on October 30, 2004. As OWCP received his request for reconsideration
on September 28, 2020, more than one year after the June 7, 2007 decision, the Board finds that it
was untimely filed. Because appellant’s request was untimely filed, he must demonstrate clear
evidence of error on the part of OWCP in its August 16, 2006 decision.

12

J.M., Docket No. 19-1842 (issued April 23, 2020); J.W., Docket No. 18-0703 (issued November 14, 2018);
Robert G. Burns, 57 ECAB 657 (2006).
13

S.C., Docket No. 18-0126 (issued May 14, 2016); supra note 8 at Chapter 2.1602.5(a) (September 2020).

14

U.C., Docket No. 19-1753 (issued June 10, 2020).

15

20 C.F.R. § 10.607(a); see F.N., Docket No. 18-1543 (issued March 6, 2019); Alberta Dukes, 56 ECAB
247 (2005).
16

Supra note 8 at Chapter 2.1602.4 (September 2020); see L.A., Docket No. 19-0471 (issued October 29, 2019);
Veletta C. Coleman, 48 ECAB 367, 370 (1997).
17

20 C.F.R. § 10.607(b); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.4a. (September 2020); R.G., Docket No. 21-0540 (issued November 9, 2021); B.P., Docket No. 20-0178
(issued August 23, 2021); Debra McDavid, 57 ECAB 149 (2005).

5

Appellant submitted employing establishment medical records dated March 4, 1977
through June 7, 1988; treatment notes from Dr. Redlich dated February 25, 1992; reports from
Dr. Janati dated March 12, 1993 through August 11, 2000; physical therapy treatment notes from
July 17, 1978 through March 16, 2000; and reports from Dr. Azer dated October 20, 1989 through
September 10, 1991. These reports are not relevant to the recurrence claim as they predate the
alleged date of the recurrence and do not raise a substantial question as to whether the August 16,
2006 decision was in error. 18
Appellant submitted diagnostic studies dated March 3, 1992 through March 10, 2020
including x-rays, MRI scans, and an EMG/NCV study. Diagnostic studies, standing alone, lack
probative value on the issue of causal relationship. 19 Therefore, none of this evidence manifests
on its face that OWCP committed an error in denying appellant’s claim for recurrence of disability
commencing October 30, 2004. Thus, the evidence is insufficient to demonstrate clear evidence
of error.20
Appellant also submitted a January 21, 2017 report from Dr. Amante who diagnosed
osteoarthritis of the left knee and left leg length discrepancy, which could be an aggravating factor
for osteoarthritis. Similarly, in a medical certif icate and report dated November 20, 2018,
Dr. Tablante provided additional nonaccepted diagnoses and opined within a reasonable degree of
medical certainty the mentioned diagnoses were consequential to the accepted left knee and leg
sprain/strain, left lateral meniscus tear, and left calluses. However, these reports do not address
the claimed recurrence of disability commencing October 30, 2004. Thus, this evidence does not
raise a substantial question as to the correctness of OWCP’s August 16, 2006 merit decision. 21
As appellant has not raised an argument or submitted any evidence that manifests on its
face that OWCP committed an error in denying his recurrence claim, the Board finds that his
untimely request for reconsideration failed to demonstrate clear evidence of error. 22
LEGAL PRECEDENT -- ISSUE 2
The schedule award provisions of FECA, 23 and its implementing federal regulations,24 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 be determined. For
18

M.P., Docket No. 17-0367 (issued March 12, 2018); Leona N. Travis, 43 ECAB 227 (1991).

19

See P.A., Docket No. 18-0559 (issued January 29, 2020); A.P., Docket No. 18-1690 (issued December 12, 2019);
R.M., Docket No. 18-0976 (issued January 3, 2019).
20

J.C., Docket No. 20-1250 (issued May 24, 2021); W.D., Docket No. 19-0062 (issued April 15, 2019).

21

T.C., Docket No. 19-1709 (issued June 5, 2020); B.W., Docket No. 19-0626 (issued March 4, 2020).

22

Id.

23

5 U.S.C. § 8107.

24

20 C.F.R. § 10.404.

6

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. 25 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards. 26
It is the claimant’s burden of proof to establish permanent impairment of a scheduled
member or function of the body as a result of an employment injury. 27 OWCP’s 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 that the date on
which this occurred (date of MMI), describes the impairment in sufficient detail so that it can be
visualized on review, and computes the percentage of impairment in accordance with the A.M.A.,
Guides.28 Its procedures further provide that, if a claimant has not submitted a permanent
impairment evaluation, it should request a detailed report that includes a d iscussion of how the
impairment rating was calculated. 29 If the claimant does not provide an impairment evaluation
and there is no indication of permanent impairment in the medical evidence of file, the claims
examiner may proceed with a formal denial of the award.30
The claimant has the burden of proof to establish that the condition for which a schedule
award is sought is causally related to his or her employment. 31 OWCP procedures, however,
further provide that if a claimant does not provide an impairment evaluation from his or her
physician when requested, and there is an indication of permanent impairment in the medical
evidence of file, the claims examiner (CE) should refer the claimant for a second opinion
evaluation. The CE may also refer the case to the DMA prior to scheduling a second opinion
examination to determine if the evidence in the file is sufficient for the DMA to provide an
impairment rating. If the case is referred for a second opinion, the report should contain the
information described in 6a above.32 If it does not contain this information, clarification with the
second opinion should be sought. 33

25

Id. at § 10.404(a).

26

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter
3.700.2 and Exhibit 1 (January 2010).
27

Edward Spohr, 54 ECAB 806, 810 (2003); Tammy L. Meehan, 53 ECAB 229 (2001).

28

Supra note 8 at Chapter 2.808.5 (March 2017).

29

Id. at Chapter 2.808.6(a) (March 2017).

30

Id. at Chapter 2.808.6(c).

31

Id.

32

Chapter 2.808.6a(1) provides that the medical evidence should include a detailed history of clinical presentation,
physical findings, functional history, clinical studies or objective tests, analysis of findings, and the appropriate
impairment based on the most significant diagnosis, as well as a discussion of how the impairment rating was
calculated. Supra note 8 at Chapter 2.808.6a.
33

Supra note 8 at Chapter 2.808.6d (March 2017).

7

ANALYSIS -- ISSUE 2
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.
OWCP accepted the claim for sprain/strain of the left knee and leg, a tear of the left lateral
meniscus, left corns/calluses, and aggravation of other spondylosis with radiculopathy,
lumbosacral region. On October 9, 2020 appellant filed a claim for a schedule award. Under
FECA,34 where a claimant is seeking a schedule award, he or she must submit a medical report
that “must contain accurate measurements of the function of the organ or member, in accordance
with the A.M.A., Guides.”35 The burden is on the claimant to provide this evidence. 36
In support of his claim, appellant submitted a November 20, 2018 report by Dr. Tablante.
However, the Board finds that it is of diminished probative value because he neither utilized the
sixth edition of the A.M.A., Guides, nor found that appellant reached MMI. Therefore,
Dr. Tablante’s report is insufficient to establish permanent impairment of a scheduled member or
function of the body causally related to appellant’s accepted employment condition. 37
The remaining medical evidence submitted by appellant is also insufficient to establish
permanent impairment of a scheduled member or function of the body causally related to
appellant’s accepted employment condition as it also does not conform with the protocols of the
A.M.A., Guides.
Accordingly, the Board finds that appellant has not met 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 OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error. The Board
further finds that appellant has not met his burden of proof to establish permanen t impairment of
a scheduled member or function of the body, warranting a schedule award.

34

Supra note 1.

35

20 C.F.R. § 10.333.

36

Id. at § 10.115.

37

See M.G., Docket No. 19-0823 (issued September 17, 2019).

8

ORDER
IT IS HEREBY ORDERED THAT the April 15, 2021 and December 21, 2020 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: March 2, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.S., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTIBUTION CENTER, Greensboro, NC,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 13-2010
Issued: September 26, 2014

Oral Argument September 16, 2014

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 3, 2013 appellant filed a timely application for review from a March 21,
2013 nonmerit decision and an August 23, 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 properly denied appellant’s request for an oral
hearing; and (2) whether appellant met his burden of proof to establish a traumatic injury in the
performance of duty on November 24, 2010.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 3, 2012 appellant, then a 61-year-old maintenance mechanic, filed a
traumatic injury claim (Form CA-1) alleging that on November 24, 2010 he twisted his right
knee upon descending a ladder after retrieving mail. His supervisor checked a box indicating
that he had been injured in the performance of duty. An OWCP Form CA-16, authorization for
examination and/or treatment was issued by the employing establishment on October 3, 2012.2
By letter dated October 3, 2012, OWCP advised appellant that the evidence submitted
was insufficient to establish his claim. It noted that he had not provided evidence sufficient to
support that his claim was timely filed, that he actually experienced the traumatic incident
alleged to have caused injury, that he had been diagnosed with a condition resulting from such
injury, that he was within the performance of duty, or that a physician had opined as to how his
injury resulted in the condition diagnosed. OWCP afforded appellant 30 days to submit
additional evidence and respond to its inquiries.
In a report dated October 3, 2012, Dr. Peter G. Dalldorf, a Board-certified orthopedic
surgeon, assessed appellant with moderate right unicompartment degenerative joint disease.
Appellant told Dr. Dalldorf he had twisted his right knee in November 2010 when he was
“coming down off of a bumper device.” Dr. Dalldorf stated that appellant had increasing
discomfort in the right knee over the ensuing months, localized laterally in the patellofemoral
area of the right knee. He noted that appellant had previous knee surgery, but could not recall
whether it was for the right or left knee. Dr. Dalldorf recommended a knee brace and noted that
appellant continued to work regular duty.
On October 31, 2012 Dr. Dalldorf assessed appellant with mild to moderate right medial
compartment degenerative joint disease. He noted that appellant’s current discomfort was mild,
but that it worsened when performing duties of crawling, climbing or squatting. Dr. Dalldorf
stated that he thought it was “okay” that appellant was working regular duty with a hinged knee
brace.
By decision dated November 16, 2012, OWCP denied appellant’s claim. It found that he
had not established a causal relationship between his right knee condition and the incident of
November 24, 2010.
Appellant requested an oral hearing before an OWCP hearing representative on
February 14, 2013. He also requested reconsideration on this date.3
2

The Board has held that where an employing establishment properly executes a Form CA-16, which authorizes
medical treatment as a result of an employee’s claim for an employment-related injury, it creates a contractual
obligation, which does not involve the employee directly, to pay the cost of the examination or treatment regardless
of the action taken on the claim. This Form CA-16 however was not properly completed as it did not authorize
treatment by a specific medical provider. See D.M., Docket No. 13-535 (issued June 6, 2013). See also 20 C.F.R.
§ 10.300.
3

By letter dated February 26, 2013, OWCP informed appellant that because he could only request one type of
appeal at a time, the Branch of Hearings and Review (BHR) currently had jurisdiction over his request and that once
BHR had made a decision, he would be advised of his rights to appeal at that time.

2

In a report dated December 17, 2012, Dr. Dalldorf noted that he may have performed an
arthroscopy on appellant’s right knee 15 years before, but he could not be certain because there
were no scars on either knee and he did not have records of the procedure. He stated that
appellant had a documented injury that occurred “about two years back when he [was] coming
down off a bumper device and twisted his right knee.” On examination, Dr. Dalldorf noted mild
crepitation on full extension, pain to the posterior medial joint line to palpation and a positive
McMurray test for pain. He found right knee chondromalacia with a probable torn meniscus, a
right shoulder arthroscopy from 2011, and lumbar spondylosis. Dr. Dalldorf noted that appellant
told him that the duties of his position had changed such that he was kneeling and climbing
more, leading to increased pain in his knee. He stated that appellant was “now about two years
from a twisting injury and this is getting worse, at least in part due to the nature of his new job
responsibilities.” Appellant’s history and examination were consistent with a meniscal injury
with a history of a twisting injury coming down off a piece of machinery. Dr. Dalldorf noted
that it was also consistent with an exacerbation of moderate degenerative changes, and that a
magnetic resonance imaging (MRI) scan would be required to discover the nature of his
condition.
Appellant attached a statement dated February 15, 2013 to Dr. Dalldorf’s December 17,
2012 report. He noted that he injured his right knee on November 24, 2010 while descending a
buffer and that he notified his supervisor immediately. Appellant informed his supervisor that he
did not wish to seek medical attention at that time and completed a form declining to file a claim
for compensation at that time. He noted there were no witnesses to his injury, and that the
effects of the injury included pain, swelling, tenderness while bearing weight and a slight limp
while walking. Appellant stated that his symptoms were most problematic at work while
kneeling on concrete floors or climbing conveyor belts.
In an undated form letter, a supervisor indicated that on November 24, 2010, appellant
advised him that he did not wish to file a claim for traumatic injury, and he had three years to file
a claim, if he chose to do so. Both appellant and a supervisor signed the letter. The letter noted
that, if appellant completed both a declination and a Form CA-1, the declination would be void.
By decision dated March 21, 2013, OWCP denied appellant’s request for an oral hearing
as untimely.
Appellant requested reconsideration of OWCP’s November 16, 2012 decision by letter
dated July 15, 2013 but not received until August 19, 2013. In an attached statement, appellant
noted that Dr. Dalldorf had associated his right knee condition to the work he performed, which
strained his knee. He stated that, if his case was not traumatic in nature, then he should have
been instructed to submit an occupational disease claim; but he was not instructed to do so.
Appellant noted that Dr. Dalldorf recommended surgery for a meniscus tear to his right knee due
to a traumatic injury that occurred on March 4, 2013 under case Claim No. xxxxxx279.4
Appellant resubmitted the October 3 and 31, and December 17, 2012 reports of Dr. Dalldorf,
with the undated letter declining to file a Form CA-1.
4

Appellant submitted to the record a Form CA-1 notice of traumatic injury and claim for compensation relating
to an incident on March 4, 2013.

3

By decision dated August 23, 2013, OWCP denied appellant’s request for
reconsideration. The decision reflects that it reviewed Dr. Dalldorf’s reports, noting that he
assessed appellant with chondromalacia and a probable meniscus tear. OWCP found that he had
not submitted sufficient evidence to warrant review of the November 16, 2012 decision, noting
that “the specific deficiency is that the evidence is still not sufficient to establish causal
relationship.” The decision noted that appellant had filed a claim under Claim No. xxxxxx279
following a trip and fall at work on March 4, 2013 which had been accepted.
LEGAL PRECEDENT -- ISSUE 1
Section 8124(b)(1) of FECA provides that “a claimant for compensation not satisfied
with a decision of the Secretary [...] is entitled, on request made within 30 days after the date of
the issuance of the decision, to a hearing on his claim before a representative of the Secretary.”5
Sections 10.617 and 10.618 of the federal regulations implementing this section of FECA
provide that a claimant shall be afforded a choice of an oral hearing or a review of the written
record by a representative of the Secretary.6 A claimant is entitled to a hearing or review of the
written record as a matter of right only if the request is filed within the requisite 30 days as
determined by postmark or other carrier’s date marking and before the claimant has requested
reconsideration.7 Although there is no right to a review of the written record or an oral hearing if
not requested within the 30-day time period, OWCP may within its discretionary powers grant or
deny appellant’s request and must exercise its discretion.8 OWCP’s procedures require that it
exercise its discretion to grant or deny a hearing when the request is untimely or made after
reconsideration under section 8128(a).9
ANALYSIS -- ISSUE 1
A request for a hearing must be made within 30 days after issuance of a final decision by
OWCP. Appellant requested an oral hearing before the Branch of Hearings and Review on
February 14, 2013. As his request was submitted more than 30 days following issuance of the
November 16, 2012 decision, it was untimely filed.
OWCP has the discretionary authority to grant a review of the written record when a
claimant is not entitled to a review of the written record as a matter of right. The Board finds
that OWCP, in its March 21, 2013 decision, properly exercised its discretion by stating that it
had considered the matter in relation to the issue involved and had denied appellant’s request for
an oral hearing because his claim could be addressed through a reconsideration application. The
Board has held that the only limitation on OWCP’s authority is reasonableness. Abuse of
discretion is generally shown through proof of manifest error, clearly unreasonable exercise of
5

5 U.S.C. § 8124(b)(1).

6

20 C.F.R. §§ 10.616-618.

7

Id. at § 10.616(a).

8

Eddie Franklin, 51 ECAB 223, 227 (1999); Delmont L. Thompson, 51 ECAB 155, 157 (1999).

9

See R.T., Docket No. 08-408 (issued December 16, 2008).

4

judgment, or actions taken which are contrary to both logic and probable deduction from
established facts.10 The record establishes that OWCP properly exercised its discretion in
connection with its denial of appellant’s request for an oral hearing.
LEGAL PRECEDENT -- ISSUE 2
An employee seeking benefits under FECA11 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.12 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.13
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.14
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged.15 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.16
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.17 An award of
compensation may not be based on appellant’s belief of causal relationship. 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 a causal relationship.18

10

Teresa M. Valle, 57 ECAB 542 (2006).

11

5 U.S.C. § 8101 et seq.

12

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364, 366 (2006).

13

S.P., 59 ECAB 184, 188 (2007); Joe D. Cameron, 41 ECAB 153, 157 (1989).

14

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 12 at n.5.

15

D.B., 58 ECAB 464, 466 (2007); David Apgar, 57 ECAB 137, 140 (2005).

16

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734, 737 (2008); Bonnie A. Contreras,
supra note 12 at n.5.
17

Roma A. Mortenson-Kindschi, 57 ECAB 418, 428 n.37 (2006); Katherine J. Friday, 47 ECAB 591, 594 (1996).

18

P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

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Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.19 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and
compensable employment factors.20 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 the specific employment factors identified by the employee.21
ANALYSIS -- ISSUE 2
Appellant filed a claim for a traumatic injury on October 3, 2012 alleging that on
November 24, 2010 he twisted his right knee upon descending a ladder after retrieving mail.
OWCP denied his claim on November 16, 2012, finding that he had not submitted sufficient
medical evidence to establish a causal relationship between his right knee condition and the
incident of November 24, 2010. Appellant requested reconsideration and, by decision dated
August 23, 2013, OWCP stated that it had not reviewed the merits of appellant’s claim and
declined his request for reconsideration. Although the August 23, 2013 decision stated that it
was not a review of the merits of appellant’s claim, the decision reflects that a merit review was
conducted. The decision evaluated the medical evidence from Dr. Dalldorf, including his
October 3 and 31, and December 17, 2012 reports. OWCP stated that the specific deficiency of
appellant’s request for reconsideration was that “the evidence is still not sufficient to establish
causal relationship.” The determination of whether the evidence submitted by appellant suffices
to establish an element of his claim, rather than whether the standard for reconsideration has
been met, constitutes a merit review. The August 23, 2013 decision of OWCP reviewed the
merits of appellant’s claim. The Board finds that it constitutes a merit decision of the evidence
submitted by appellant.22
The issue is whether appellant submitted sufficient medical evidence to establish a causal
relationship between his diagnosed conditions and the ladder incident of November 24, 2010.23
The Board finds that appellant has not submitted sufficient medical evidence to establish causal

19

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149, 155-56 (2006); D’Wayne Avila, 57
ECAB 642, 649 (2006).
20

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379, 384 (2006).

21

I.J., 59 ECAB 408, 415 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

22

See M.M., Docket No. 07-1657 (issued May 15, 2008).

23

At oral argument, appellant contended that he had not filed an appeal in the present claim. As noted above, the
docket file reflects that he filed a Form AB-1 application for review, listing Claim No. xxxxxx265, on
September 3, 2013.

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relationship as the medical reports provide insufficient explanation of how the employment
incident of November 24, 2010 caused or contributed to his diagnosed right knee condition.24
In a December 17, 2012 report, Dr. Dalldorf noted that appellant had a documented
injury that occurred “about two years back when he [was] coming down off a bumper device and
twisted his right knee.” He assessed appellant with right knee chondromalacia with a probable
torn meniscus, a right shoulder arthroscopy from 2011 and lumbar spondylosis. Dr. Dalldorf
stated that appellant was “now about two years from a twisting injury and this is getting worse, at
least in part due to the nature of his new job responsibilities. Appellant’s history and
examination are consistent with a meniscal injury. He has a history of a twisting injury coming
down off a piece of machinery and he has had pain off and on since that time, which would be
quite consistent with a meniscal injury.” Dr. Dalldorf further noted that it was also consistent
with an exacerbation of moderate degenerative changes, and that an MRI scan would be required
to discover the nature of his condition. The Board finds that Dr. Dalldorf did not provide
adequate medical rationale on causal relationship other than noting that his findings were
consistent with either a meniscal injury or exacerbation of moderate degenerative changes.
Dr. Dalldorf did not explain in physiological terms how the specific incident of November 24,
2010 caused or contributed to appellant’s right knee chondromalacia with a probable torn
meniscus. The Board has long held that medical opinions not containing rationale on causal
relation are entitled to little probative value and are generally insufficient to meet appellant’s
burden of proof.25 Without any reasoning to support the conclusion that the findings were
consistent with the history of injury, his reports are insufficient to meet appellant’s burden of
proof.26
Dr. Dalldorf’s reports of October 3 and 31, 2012 contain findings on examination and
reiterate the history of injury that appellant gave to him, but do not contain an opinion regarding
the cause of appellant’s conditions. Medical evidence that does not offer any opinion regarding
the cause of an employee’s condition is of limited probative value on the issue of causal
relationship.27 Hence, these reports are insufficient to meet appellant’s burden of proof to
establish a causal relationship between his conditions and the incident of November 24, 2010.
Appellant’s burden of proof includes the submission of rationalized medical opinion
evidence, based on a complete factual and medical background, supporting such a causal
relationship between the employment and the diagnosed condition. As he has not submitted
medical evidence from a physician explaining how his diagnosed conditions are causally related
24

At oral argument, appellant noted that he had filed another claim for a right knee and shoulder strain due to a
March 4, 2013 employment-related injury under Claim No. xxxxxx279, and contended that authorization for
medical treatment had been denied under that claim. A footnote to the August 23, 2013 decision indicates that this
claim had been approved. There is no evidence present in the case record of a final adverse decision by OWCP
under Claim No. xxxxxx279; therefore, the Board lacks jurisdiction to review Claim No. xxxxxx279 in this
decision.
25

Carolyn F. Allen, 47 ECAB 240, 246 (1995).

26

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (finding that a medical opinion not fortified by medical
rationale is of little probative value).
27

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

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to specific work activities on November 24, 2010, the evidence is insufficient to meet his burden
of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for an oral hearing. The
Board further finds that he did not meet his burden of proof to establish that his claimed
conditions were causally related to an employment-related incident on November 24, 2010.
ORDER
IT IS HEREBY ORDERED THAT the March 21, 2013 nonmerit decision of the Office
of Workers’ Compensation Programs is affirmed; and the August 23, 2013 merit decision is also
affirmed.
Issued: September 26, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees' Compensation Appeals Board

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

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