United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Jersey City, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
James D. Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-0091
Issued: August 10, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 15, 2014 appellant, through counsel, filed a timely appeal from an August 28,
2014 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 terminated appellant’s entitlement to
compensation on September 17, 2012 as she no longer had residuals of an accepted left ankle
contusion; and (2) whether appellant met her burden of proof to establish a left knee condition
caused or aggravated by her May 8, 2012 employment injury.
On appeal counsel asserts that the weight of the medical evidence rests with the opinion
of appellant’s attending physician who found her left knee condition was caused or aggravated
by the May 8, 2012 employment injury.
1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On May 8, 2012 appellant, then a 54-year-old mail handler, filed a traumatic injury claim
alleging that she injured her left ankle that day when she tripped while unloading a trailer of
mail. She stopped work and was seen at the Christ Hospital emergency room. A nurse
practitioner indicated that appellant should stay off her ankle for two days and see her private
physician. On May 15, 2012 Joshua Falto, a physician assistant, stated that appellant was under
his care for a left ankle, left knee, and right hand injury after a fall at work on May 8, 2012.
Appellant could not return to work until further evaluation. In a duty status report dated May 11,
2012, Dr. David N. Feldman, a Board-certified orthopedic surgeon, diagnosed left ankle and
knee sprains and advised that she could not work. In a May 16, 2012 attending physician’s
report, he noted the history of injury and advised that appellant had previous left knee surgery.
Dr. Feldman indicated that the left ankle and knee were negative for fracture, diagnosed sprains
of the knee and ankle, and advised by checking a form box “yes” that the diagnosed conditions
were caused by work activities. An ankle brace was provided. On June 5 and 14, 2012 Sharon
Lee, a physician assistant, advised that appellant should remain off work until July 1, 2012.
By letter dated June 22, 2012, OWCP informed appellant that when her claim was
received it appeared to be a minor injury and was administratively handled but that the claim was
being reopened and would be formally adjudicated. It noted that a contusion of the left ankle
was accepted as compensable but that injuries to the left knee and right hand were not.
Appellant was informed of the evidence needed to support her request to expand the accepted
conditions. She received continuation of pay for the period May 9 to June 22, 2012 and
thereafter submitted claims for compensation.
A May 8, 2012 triage report from the Christ Hospital emergency department, completed
by a registered nurse, indicated that appellant’s chief complaint was her right hand, left knee, and
top of her left foot. A hospital physical examination form, bearing an illegible signature,
reported appellant with right hand, left foot and knee pain following an injury and that appellant
was medicated. Right hand and left ankle x-rays were normal. Dr. Ronald Bookbinder, who
practices emergency medicine, noted appellant’s complaints of right hand and left foot pain.
Physical examination findings included left foot tenderness. Dr. Bookbinder reviewed the x-rays
and diagnosed hand contusion and foot sprain. The foot was wrapped with an ace bandage and
appellant was discharged on medication, to follow-up with her private physician.
In a May 11, 2012 attending physician’s report, Dr. Feldman noted the history of injury,
stating that appellant caught her ankle when she fell. Appellant had an ankle air cast and
prescribed medication. On June 1, 2012 Dr. Feldman indicated that she was seen in follow-up
for left knee and ankle pain. He advised that a May 11, 2011 left knee magnetic resonance
imaging (MRI) scan showed extensive marrow abnormality involving the medial greater than
lateral femoral condyles with a differential diagnosis including osteonecrosis, infection,
inflammation, or neoplasm thought to be less likely; possible distal femoral intraosseous lipoma;
grade 1 sprain of the medial collateral ligament; grade 4 chondromalacia patellae, lateral patellar
facet; moderate suprapatellar effusion; and grade 2 signal posterior horn medial meniscus.
Dr. Feldman noted that appellant had a previous left knee arthroscopy on June 3, 2011, provided
findings, and advised that right wrist, hand, and left ankle sprains had resolved. He diagnosed
chondromalacia patella of the knee and effusion and recommended a knee sleeve and cane.

2

Dr. Feldman indicated that appellant could return to modified duty. In treatment notes dated
June 5 to July 13, 2012, he noted that she had continued moderate left knee pain and provided
examination findings. Dr. Feldman further noted that appellant had a history of cardiac valve
replacement and back pain. Diagnoses included osteoarthritis, chondromalacia patella, effusion,
and pain of the left leg. Dr. Feldman anticipated that appellant would eventually need a total
knee replacement for pain and recommended a new MRI scan study. A return to work was
pending authorization of the MRI scan to assess the extent of trauma.
A July 30, 2012 left knee MRI scan study showed moderate joint effusion and extensive
marrow and cortical changes throughout the distal femur. It was noted that Paget’s disease
and/or a treated cartilage lesion could give this appearance. Also shown were degeneration and
fraying of the posterior horn and body of the medial meniscus with no discrete meniscal tear and
moderate joint effusion. A computerized tomography (CT) scan of the knee and distal femur
was recommended. On August 9, 2012 Dr. Feldman reviewed the MRI scan study and noted left
knee examination findings of crepitation and joint line tenderness with no laxity. He
recommended a CT scan and medical clearance for total knee replacement surgery. Dr. Feldman
continued to advise that appellant could not return to work.
In July 2012 OWCP referred appellant to Dr. Jeffrey F. Lakin, a Board-certified
orthopedic surgeon, for a second opinion evaluation. In an August 6, 2012 report, Dr. Lakin
noted the history of injury, his review of the medical record and statement of accepted facts, and
appellant’s complaint of left knee pain. He found that she had previous left knee arthroscopy but
that she could not remember how she injured her knee at that time. Examination of the left knee
demonstrated minimal patellofemoral crepitus and patellofemoral grind with no joint line
tenderness and well-healed arthroscopic portals. Range of motion demonstrated less than three
degrees of extension to 110 degrees of flexion. There was no varus or valgus instability, and
motor strength of quadriceps and hamstrings was 5/5. In answer to specific OWCP questions,
Dr. Lakin advised that appellant’s left ankle contusion had completely resolved and, regarding
that injury, she could return to full duty without restriction. In an attached work capacity
evaluation, he advised that she had reached maximum medical improvement and could return to
her regular job.
In undated correspondence received by OWCP on August 20, 2012, appellant requested
that her accepted conditions be expanded to include her left knee, stating that she injured it on
May 8, 2012.
An MRI scan of the left knee on August 21, 2012 demonstrated a mild sprain of the
anterior cruciate ligament; a grade 2 sprain of the medial collateral ligament; that the body
segment and posterior horn of the medial meniscus appeared diminutive with marked
heterogeneous intrasubstance signal possibly related to previous arthroscopic surgery or meniscal
tear, grade III-IV chondromalacia over the median ridge as well as the lateral aspect of the
medial patellar facet without significant subchondral marrow change grade III-IV
chondromalacia over the middle trochlear groove, the appearance of significant cortical
thickening of the distal femoral diaphysis which could be seen in Paget’s disease, and low signal
material with associated mild surrounding hyperintense signal within the distal femoral
metadiaphysis that likely reflected sequelae of previous surgery with reported filling of the area
of avascular necrosis with calcium phosphate cement. An August 21, 2012 CT scan of the left

3

leg showed similar results. The left ankle joint was intact. Limited CT evaluation demonstrated
intact soft tissues and musculature.
In a supplemental report dated August 29, 2012, Dr. Lakin noted appellant’s history of
previous left knee surgery in May 2011. His left knee examination demonstrated minimal
patellar femoral crepitus and no joint line tenderness, well-healed arthroscopic portals, no
instability, and motor strength of 5/5. Dr. Lakin concluded that there was absolutely no
relationship between the current left knee findings and the May 8, 2012 employment injury.
Rather, he opined that the knee findings were related to a preexisting condition.
On August 29, 2012 Dr. Feldman reported that he first examined appellant on May 11,
2012 when she reported an injury to her left knee, left ankle, and left hand at work on
May 8, 2012. He stated that each subsequent visit was related to her complaints of ankle and
knee pain and that, while her ankle condition had resolved, her left knee pain was getting worse
and was clearly related to her fall at work.
On September 7, 2012 OWCP denied appellant’s claim for disability compensation for
the period June 23 to September 7, 2012 because the medical evidence did not establish that she
was totally disabled due to conditions caused by the May 8, 2012 employment injury. On
September 11, 2012 appellant, through counsel, requested a hearing.
In a September 17, 2012 decision, OWCP found that appellant no longer had disability or
residuals due to the accepted left ankle condition and terminated her entitlement to compensation
benefits.2 It also noted that her left knee condition was preexisting. Counsel also requested a
hearing from the September 17, 2012 decision and asked that both matters be heard at the same
time.
Dr. Feldman continued to submit treatment notes describing appellant’s left knee
condition. In a September 26, 2012 report, he indicated that she had been under his care since
May 11, 2012 for a May 8, 2012 employment injury to her left knee, left ankle, and right hand.
Dr. Feldman stated that appellant’s knee pain was the most annoying with swelling and increased
pain with weight bearing, that she was limited to walking two to three blocks, and that she had
difficulty with stairs. He reported that on June 30 2011 she had left knee arthroscopy.
Appellant’s last visit regarding that procedure was October 31, 2011 and that she continued to do
well with only occasional pain until the May 8, 2012 injury. Dr. Feldman noted physical
findings of decreased knee range of motion with crepitation, tenderness, and effusion. He
advised that appellant’s pain and disability had progressed, that she was unable to walk without a
cane, could not stand for long periods, was on narcotic medication, and now needed total knee
replacement surgery. Dr. Feldman described her job duties and indicated that, due to pain, she
was disabled from the mail handler position because she was unable to bend, stoop, kneel, climb,
lift heavy packages, twist or pivot on the knee. He concluded that the May 8, 2012 fall
exacerbated appellant’s underlying condition, increasing her pain, and disability.
At the hearing, held on December 12, 2012, appellant testified that she was out of work
from June to October 2011 for nonwork-related left knee surgery performed by Dr. Feldman’s
2

The record reflects that appellant received no wage-loss compensation under this claim.

4

associate. She described her job duties, that she injured her left ankle, left knee, and right hand
on May 8, 2012 and described her treatment at Christ Hospital. Appellant indicated that she then
came under the care of Dr. Feldman who recommended a total knee replacement. Counsel
maintained that the May 8, 2012 employment injury caused a permanent aggravation of
appellant’s left knee arthritis and that Dr. Feldman’s opinion was sufficient to establish
entitlement.
On February 20, 2013 an OWCP hearing representative found that appellant’s left ankle
condition had resolved and that she did not sustain a left knee injury on May 8, 2012. He
affirmed OWCP’s findings.
On October 7, 2013 counsel requested reconsideration of the February 20, 2013 decision
and prior decisions. Dr. Feldman continued to submit treatment notes and reports describing
appellant’s condition and advising that she could not work. On May 23, 2013 he reiterated his
request for authorization for left total knee replacement surgery. A June 24, 2013 MRI scan
study of the left ankle demonstrated a chronic mild type 2 tear of the distal posterior tibial tendon
with no evidence of talonavicular fault or pes planus. On March 20, 2014 Dr. Feldman
described appellant’s care since May 11, 2012. He found that her left knee arthritic condition
progressively worsened and that on February 4, 2014 she underwent left total knee replacement
surgery. Dr. Feldman described appellant’s postoperative care, noting that she still had moderate
discomfort. He concluded that the May 8, 2012 employment injury exacerbated her underlying
left knee arthritic condition and accelerated her symptomatology to the point that she required a
total knee replacement, noting that she had previously done well after a knee arthroscopy the
year previously and was able to do her job as a mail handler until the May 8, 2012 injury.
In a merit decision dated August 28, 2014, OWCP found that the weight of the medical
evidence rested with the opinion of Dr. Lakin regarding whether appellant’s left knee condition
was related to the May 8, 2012 employment injury and denied modification of the February 20,
2013 decision.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.3
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.4
ANALYSIS -- ISSUE 1
On May 8, 2012 appellant sustained a left ankle contusion when she tripped while
unloading a trailer of mail. The Board finds that OWCP properly terminated appellant’s
entitlement to compensation benefits on September 17, 2012 for the accepted left ankle
3

Jaja K. Asaramo, 55 ECAB 200 (2004).

4

Id.

5

contusion because the medical evidence established that the accepted condition had resolved. On
August 6, 2012 Dr. Lakin, an OWCP referral physician, advised that appellant’s left ankle
contusion had completely resolved and she could return to full duty without restriction regarding
that injury. On August 29, 2012 Dr. Feldman, an attending orthopedic surgeon, also advised that
appellant’s ankle condition had resolved. There is no additional contemporaneous medical
evidence that addresses appellant’s ankle condition.
The Board therefore concludes that OWCP properly terminated her entitlement to
wage-loss and medical benefits for this condition on September 17, 2012.5
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 regarding this issue.
LEGAL PRECEDENT -- ISSUE 2
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.6 The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.7 Neither the mere fact that a disease or condition manifests itself during a period
of employment nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.8
Section 8123(a) of FECA 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.9 The implementing regulations
state that, if a conflict exists between the medical opinion of the employee’s physician and the
medical opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall
appoint a third physician to make an examination. This is called a referee examination, and
5

The Board notes that a pretermination notice was not issued in this case. However, OWCP procedures provide
that a notice is not required if the treating physician indicates further medical treatment is not necessary or treatment
has ended. If the claimant’s treating physician has indicated that medical treatment for the work-related condition
has ended, or states that further medical treatment is not necessary for the work-related condition, medical benefits
may be terminated without providing the claimant prior notice, but if the claimant is in the receipt of compensation
benefits, a pretermination notice is needed to terminate such benefits. Federal (FECA) Procedure Manual, Part 2 -Claims, Disallowances, Chapter 2.1400.4.1(8) (February 2013). In this case, as noted above, on August 29, 2012
Dr. Feldman, an attending orthopedic surgeon, advised that appellant’s ankle condition, the accepted condition in
this case, had resolved. As appellant had never received wage-loss compensation under this claim, a pretermination
notice was not required.
6

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

7

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

8

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

9

5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008).

6

OWCP will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case.10
ANALYSIS -- ISSUE 2
The Board finds this case is not in posture for decision as to whether appellant’s
diagnosed left knee condition was caused or aggravated by the May 8, 2012 employment injury.
In its September 17, 2012, February 20, 2013, and August 28, 2014 merit decisions,
OWCP found that appellant had not established a left knee condition causally related to the
May 8, 2012 incident, noting that the weight of the medical opinion evidence rested with
Dr. Lakin, an OWCP referral physician. The Board, however, finds that a conflict exists in the
medical evidence between Dr. Lakin and appellant’s attending orthopedic surgeon, Dr. Feldman,
with respect to whether the fall at work on May 8, 2012 caused or aggravated a preexisting left
knee condition.11
Dr. Feldman first saw appellant on May 11, 2012, three days after the employment injury.
He furnished treatment notes and reports from that day through March 20, 2014, following total
knee replacement surgery. Dr. Feldman reported a history that appellant previously had
arthroscopic surgery on her left knee on June 3, 2011 but that she was able to return to mail
handler duties in October 2011 and did well until the fall on May 8, 2012. On August 9, 2012 he
noted his review of a July 30, 2012 MRI scan and noted physical examination findings of left
knee crepitation and joint line tenderness. An additional MRI scan was completed on
August 21, 2012. In an August 29, 2012 report, Dr. Feldman noted that appellant’s left knee
condition progressed following her first visit on May 11, 2012, and on September 26, 2012
indicated that she had increased knee pain with weight bearing that limited her activities and that
she had physical findings of decreased knee range of motion, crepitation, tenderness, and
effusion. He advised that she was disabled from the mail handler position because she could not
bend, stoop, kneel, climb, lift heavy packages, twist or pivot on the knee. Dr. Feldman
concluded that the May 8, 2012 fall exacerbated appellant’s underlying condition to the degree
that she was disabled. On March 20, 2014 he reiterated that the May 8, 2012 employment injury
exacerbated an underlying arthritic condition and accelerated her symptomatology to the point
that she required total knee replacement, which was done on February 4, 2014.
Dr. Lakin, OWCP referral physician who had reviewed the medical record and statement
of accepted facts, examined appellant on August 6, 2012. He indicated that she had previous left
knee arthroscopic surgery, but that she could not remember how she injured her knee at that
time. Dr. Lakin listed examination findings and concluded that the left ankle contusion had
resolved. In an August 29, 2012 supplemental report, he noted that appellant had left knee
surgery in May 2011. Dr. Lakin opined that there was absolutely no relationship between the
current left knee findings and the May 8, 2012 employment injury. Rather, he considered the
knee findings were related to a preexisting condition.

10

20 C.F.R. § 10.321.

11

F.B., Docket No. 13-2066 (issued March 11, 2014).

7

The Board finds that the opinion of Dr. Feldman is of equal weight to the opinion of
Dr. Lakin. Dr. Feldman and Dr. Lakin reached opposite conclusions regarding whether
appellant’s diagnosed left knee condition was caused or aggravated by the May 8, 2012
employment injury. Dr. Lakin opined that appellant’s condition was preexisting and not related
to the employment injury. Dr. Feldman opined that her preexisting condition was permanently
aggravated by the May 8, 2012 fall. When there is a conflict of opinion between the claimant’s
attending physician and the physician performing an examination for the government, OWCP
shall appoint a third physician to resolve the disagreement.12 Where a person has a preexisting
condition that is not disabling, but which becomes disabling because of aggravation causally
related to employment, then regardless of the degree of such aggravation, the resulting disability
is compensable.13
Upon return of the case record, OWCP should refer appellant, the case record, a
statement of accepted facts, and appropriate questions, to a Board-certified specialist to
determine if appellant’s left knee condition is causally related to the May 8, 2012 employment
injury, either directly or through aggravation, precipitation, or acceleration. Following this and
any other development deemed necessary, OWCP shall issue an appropriate decision on the
merits of appellant’s claim.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s entitlement to compensation
on September 17, 2012 because she no longer had residuals of an accepted left ankle contusion,
and that a conflict in medical opinion evidence exists regarding whether her left knee condition
was caused of aggravated by a May 8, 2012 employment injury.

12

Supra note 8.

13

A.M., Docket No. 14-320 (issued November 21, 2014).

8

ORDER
IT IS HEREBY ORDERED THAT the August 28, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part and the case is
remanded to OWCP for proceedings consistent with this opinion of the Board.
Issued: August 10, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pittsburgh, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Linda Temple, for the appellant
Office of Solicitor, for the Director

Docket No. 08-876
Issued: September 17, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 4, 2008 appellant filed a timely appeal of a November 7, 2007 decision of
the Office of Workers’ Compensation Programs, finding that appellant’s request for
reconsideration was untimely and failed to show clear evidence of error. Pursuant to 20 C.F.R.
§ 501.3, the Board’s jurisdiction is limited to decisions issued within one year of the filing of the
appeal. Since the last merit decision was issued May 17, 2004, the Board does not have
jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly determined appellant’s application for
reconsideration was untimely and failed to show clear evidence of error.

FACTUAL HISTORY
The case was before the Board on a prior appeal.1 Appellant requested review of a
June 1, 2006 Office decision finding his application for reconsideration untimely and that he
failed to show clear evidence of error in a May 17, 2004 merit decision. In a September 13, 2007
order, the Board noted that some of the evidence referenced by the Office in its June 1, 2006
decision was not in the record transmitted to the Board. The case was remanded to the Office for
proper assemblage of the case record.
By decision dated November 7, 2007, the Office determined that appellant’s May 18,
2006 application for reconsideration was untimely and failed to show clear evidence of error in
the May 17, 2004 decision.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides that the Office may review an
award for or against compensation upon application by an employee (or his or her representative)
who receives an adverse decision.2 The employee shall exercise this right through a request to
the district Office. The request, along with the supporting statements and evidence, is called the
“application for reconsideration.”3
Section 8128(a) of the Act4 does not entitle a claimant to a review of an Office decision
as a matter of right.5 This section vests the Office with discretionary authority to determine
whether it will review an award for or against compensation. The Office, through regulations,
has imposed limitations on the exercise of its discretionary authority under 5 U.S.C. § 8128(a).6
As one such limitation, the Office has stated that it will not review a decision denying or
terminating a benefit unless the application for reconsideration is filed within one year of the
date of that decision.7 The Board has found that the imposition of this one-year limitation does
not constitute an abuse of the discretionary authority granted the Office under 5 U.S.C.
§ 8128(a).8
1

Docket No. 07-1213 (issued September 13, 2007).

2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.605 (1999).

4

5 U.S.C. § 8128(a).

5

Leon D. Faidley, Jr., 41 ECAB 104 (1989).

6

Thus, although it is a matter of discretion on the part of the Office whether to review an award for or against
payment of compensation, the Office has stated that a claimant may obtain review of the merits of a claim by:
(1) showing that the Office erroneously applied or interpreted a specific point of law; or (2) advancing a relevant
legal argument not previously considered by the Office; or (3) constituting relevant and pertinent evidence not
previously considered by the Office; see 20 C.F.R. § 10.606(b).
7

20 C.F.R. § 10.607(a).

8

See Leon D. Faidley, Jr., supra note 5.

2

The Board has held, however, that a claimant has a right under 5 U.S.C. § 8128(a) to
secure review of an Office decision upon presentation of new evidence that the decision was
erroneous.9 In accordance with this holding the Office has stated in its procedure manual 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(a), if the claimant’s application for review shows “clear evidence of
error” on the part of the Office.10
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.11 The evidence must be positive, precise and explicit and must
be manifest on its face that the Office committed an error.12 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.13 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.14 This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office.15 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of the Office decision.16 The Board makes an
independent determination of whether a claimant has submitted clear evidence of error on the
part of the Office such that the Office abused its discretion in denying merit review in the face of
such evidence.17
ANALYSIS
Appellant filed an occupational disease claim (Form CA-2) on October 30, 2000 alleging
his duties as a letter carrier had contributed to a left shoulder and arm condition. The Office
accepted the claim for a left shoulder strain on January 9, 2001. On May 6, 2003 appellant filed
a claim for intermittent wage-loss compensation from August 12 to October 17, 2000. By merit
decision dated May 17, 2004, the Office denied appellant’s claim for wage-loss compensation
during the period August 12 to October 17, 2000.
9

Leonard E. Redway, 28 ECAB 242 (1977).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c) (May 1996).

11

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

12

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

13

See Jesus D. Sanchez, 41 ECAB 964 (1990).

14

See Leona N. Travis, supra note 13.

15

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

16

Leon D. Faidley, Jr., supra note 5.

17

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

3

The application for reconsideration in this case was dated May 18, 2006. Since this is
more than one year after the May 17, 2004 Office merit decision, it is untimely pursuant to 20
C.F.R. § 10.607(a).
As the application for reconsideration was untimely, appellant must demonstrate clear
evidence of error on the part of the Office in its merit decision. He submitted a number of
documents relating to light-duty job assignments, disciplinary actions, witness statements and
grievance settlements. Appellant’s argument appears to be that the employing establishment
failed to provide him with “suitable work” during the period August 12 to October 17, 2000.
The underlying issue is not, however, a refusal of suitable work. Appellant filed a claim for
wage-loss compensation and it was his burden to submit medical evidence establishing an
employment-related disability for the period claimed.18 The Office noted in its May 17, 2004
decision that the evidence must establish disability due to an employment-related condition.
Appellant did not establish clear evidence of error on the part of the Office in the denial
of his claim for wage-loss compensation. The medical evidence submitted did not establish an
employment-related disability for the period claimed. An attending orthopedic surgeon, Dr. J.
Howard DeHoff, noted in a September 19, 2000 report that appellant carried mail and had been
having left shoulder problems for six months. He indicated in a separate note dated
September 19, 2000 that until September 29, 2000 appellant should not perform route work
unless he could use a wheeled cart. Dr. DeHoff did not provide a rationalized opinion on causal
relationship between disability and a diagnosed employment-related condition. There was no
probative medical evidence establishing an employment-related disability for the period claimed.
As noted above, to warrant reopening the case on an untimely application for
reconsideration, appellant must submit relevant evidence that clearly establishes error by the
Office. He did not show clear evidence of error in denying his claim for wage-loss
compensation from August 12 to October 17, 2000.
CONCLUSION
The application for reconsideration was untimely filed and failed to show clear evidence
of error on the part of the Office.

18

See Sandra D. Pruett, 57 ECAB 126 (2005).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 7, 2007 is affirmed.
Issued: September 17, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.Y., Appellant
and
DEPARTMENT OF THE AIR FORCE, TRAVIS
AIR FORCE BASE, CA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 13-471
Issued: January 2, 2014

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On December 20, 2012 appellant filed a timely appeal from a December 18, 2012
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration. The Board assigned Docket No. 13-471.
OWCP accepted that appellant sustained a temporary aggravation of psoriasis due to his
employment duties as an aircraft mechanic.1 On January 29, 2009 appellant filed a claim for a
schedule award. By decision dated March 19, 2010, OWCP denied his claim as the evidence
was insufficient to establish that he sustained a permanent impairment. An OWCP hearing
representative affirmed the denial on June 28, 2010 based on the opinion of the independent
medical adviser.2 Following reconsideration, by decision dated September 22, 2011, the hearing
representative denied modification finding that appellant had not established that his accepted
skin condition contributed to a permanent impairment for schedule award purposes. Although
appellant timely requested reconsideration on November 11, 2011, in its February 16, 2012
decision, OWCP denied appellant’s request for reconsideration on the grounds that the request
1
2

Appellant retired from the employing establishment effective September 7, 2004.

On January 21, 2011 the Board granted appellant’s request to dismiss his appeal. Docket No. 10-1982 (issued
January 21, 2011).

was untimely filed and failed to establish clear evidence of error. Appellant requested
reconsideration on March 23, 2012. By decision dated June 20, 2012, OWCP denied his request
for reconsideration without a review of the merits, stating that he “neither raised substantive
legal questions nor included new and relevant evidence.”
Appellant again requested
reconsideration on November 6, 2012 of the February 16, 2012 decision. On December 18, 2012
OWCP informed him to refer to the appeal rights that accompanied the February 16, 2012
decision.
Section 8124(a) of FECA provides: “[OWCP] shall determine and make a finding of fact
and make an award for or against payment of compensation ....”3 Section 10.126 of Title 20 of
the Code of Federal Regulations provide: “The decision shall contain findings of fact and a
statement of reasons.”4 Moreover, OWCP’s procedures provide: “The reasoning behind the
[OWCP’s] evaluation should be clear enough for the reader to understand the precise defect of
the claim and the kind of evidence which would overcome it.”5
OWCP did not discharge its responsibility to provide appellant a statement explaining the
disposition so that appellant could understand the basis for the decision as well as the precise
defect and the evidence needed to overcome the denial of his claim.
The case must be returned to OWCP for a proper decision which includes findings of fact
and a clear and precise statement regarding appellant’s request for reconsideration on the denial
of his claim for a schedule award or why he is not entitled to further reconsideration. Following
this and such further development as OWCP deems necessary, it shall issue an appropriate
decision.

3

5 U.S.C. § 8124(a); see Hubert Jones, Jr., 57 ECAB 467 (2006); Paul M. Colosi, 56 ECAB 294 (2005).

4

20 C.F.R. § 10.126. See also O.R., 59 ECAB 432 (2008).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.4(e) (March 1997).

2

IT IS HEREBY ORDERED THAT the December 18, 2012 Office of Workers’
Compensation Programs’ decision be set aside and the case remanded for further action
consistent with this order of the Board.
Issued: January 2, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL PROTECTION SERVICE,
Boston, MA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 18-1246
Issued: February 13, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On June 4, 2018 appellant filed a timely appeal from a February 26, 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.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the February 26, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant met his burden of proof to establish an acute pancreatitis
condition causally related to the accepted December 30, 2017 employment incident.
FACTUAL HISTORY
On December 30, 2017 appellant, then a 32-year-old federal law enforcement officer, filed
a traumatic injury claim (Form CA-1), alleging that on that day, while patrolling and conducting
law enforcement operations for the disaster relief centers in Puerto Rico, he experienced lower
back and abdominal pain. He did not stop work.
Appellant submitted a “Warning Order” from the employing establishment dated
November 16, 2017 indicating that federal protective services personnel were deployed to the
Caribbean, including the U.S. Virgin Islands and Puerto Rico, after the islands were struck with
two Category 5 hurricanes in September 2017 and suffered catastrophic damage.
In a December 30, 2017 report from Ashford Presbyterian Community Hospital, it was
noted that appellant presented with complaints of abdominal pain and was diagnosed with acute
pancreatitis.
Appellant further submitted an incomplete, unsigned, and undated OWCP Form CA-16,
authorization for examination. Attached to the form was an attending physician’s report (Form
CA-20) dated January 3, 2018 from Dr. Ernesto Munoz, a Board-certified internist, who indicated
that appellant had abdominal pain and diagnosed acute pancreatitis. He checked a box marked
“No” indicating that these conditions were not caused or aggravated by an employment activity.
In a January 3, 2018 duty status report (Form CA-17), Dr. Munoz diagnosed abdominal
pain and acute pancreatitis and advised appellant to resume full-time work.
In a note dated January 3, 2018, Dr. Munoz indicated that appellant was under his care
from December 30, 2017 to January 3, 2018 and was able to return work on January 15, 2018.
In a January 24, 2018 developmental letter, OWCP notified appellant of the deficiencies
of his claim and afforded him 30 days to submit additional evidence and respond to its inquiries.
It did not receive a response.
By decision dated February 26, 2018, OWCP accepted that the December 30, 2017
employment incident occurred as alleged, but denied the claim because the medical evidence of
record was insufficient to establish causal relationship between appellant’s diagnosed acute
pancreatitis condition and the December 30, 2017 work incident.
LEGAL PRECEDENT
A claimant seeking benefits under FECA has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including that an injury was sustained in the performance of duty as alleged and that any specific

2

condition or disability claimed is 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 determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
allegedly occurred.5 The second component is whether the employment incident caused a personal
injury.6 An employee may establish that an injury occurred in the performance of duty as alleged,
but fail to establish that the disability or specific condition for which compensation is being
claimed is causally related to the incident.7
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.8 The opinion of the physician must be based on a
complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the employee.9
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish an acute
pancreatitis condition causally related to the accepted December 30, 2017 employment incident.
In his various reports from January 2018, Dr. Munoz diagnosed abdominal pain and acute
pancreatitis, but provided no opinion on causal relationship. The Board has held that medical
evidence that does not offer an opinion regarding the cause of an employee’s condition is of no

3

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

4

J.R., Docket No. 18-1079 (issued January 15, 2019); Michael E. Smith, 50 ECAB 313 (1999).

5

Elaine Pendleton, 40 ECAB 1143 (1989).

6

Robert G. Morris, 48 ECAB 238 (1996); John J. Carlone, 41 ECAB 354 (1989); Victor J. Woodhams, 41 ECAB
345, 352 (1989).
7

Shirley A. Temple, 48 ECAB 404, 407 (1997).

8

G.N., Docket No. 18-0403 (issued September 13, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

9

K.V., Docket No. 18-0723 (issued November 9, 2018); Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler,
45 ECAB 365 (1994).
10

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

3

probative value on the issue of causal relationship.11 Dr. Munoz also completed a form on which
he checked a box marked “No” indicating that appellant’s conditions were not caused or
aggravated by an employment activity. He released appellant to full-time work as of
January 15, 2018. The Board has held that a report is of limited probative value regarding causal
relationship if it does not contain medical rationale explaining how a given medical
condition/disability was related to an employment incident.12 Dr. Munoz failed to provide a
rationalized opinion regarding how appellant’s work patrolling and conducting law enforcement
operations on December 30, 2017 is causally related to his acute pancreatitis condition. To the
contrary, he checked a box marked “No” that appellant’s condition was not caused or aggravated
by an employment activity. For these reasons, the Board finds that appellant has not met his burden
of proof to establish causal relationship between his acute pancreatitis and the accepted work
incident.
As appellant has not submitted rationalized medical evidence sufficient to establish causal
relationship between his acute pancreatitis condition and the December 30, 2017 employment
incident, the Board finds that he has not met his burden of proof to establish his claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an acute
pancreatitis condition causally related to the accepted December 30, 2017 employment incident.

11

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

12

See D.S., Docket No. 18-0280 (issued June 12, 2018) (finding that a report is of limited probative value regarding
causal relationship if it does not contain medical rationale describing the relation between an accepted employment
incident and a diagnosed condition/disability).

4

ORDER
IT IS HEREBY ORDERED THAT the February 26, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 13, 2019
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.E., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
REGIONAL OFFICE, Phoenix, AZ, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-1502
Issued: June 7, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 8, 2007 appellant filed a timely appeal of the November 13, 2006 merit decision
of the Office of Workers’ Compensation Programs, which denied her claim for an employmentrelated traumatic injury. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has
jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty on
September 5, 2006.
FACTUAL HISTORY
Appellant, a 49-year-old veterans service representative, filed a September 5, 2006 claim
alleging that she injured her left knee and ankle earlier that day. The injury allegedly occurred
when she stumbled and fell while walking down stairs. Two managers, Dave Luzi and Keith
Hancock, reported witnessing appellant running in the office less than an hour after her alleged
injury.

Although appellant represented to the Office that she did not have any similar disability
or symptoms prior to the alleged September 5, 2006 incident, the record indicated that she
previously sustained an employment-related left knee injury on August 25, 2004. Her prior
claim, file number 13-2112944, was accepted for chondromalacia patella. Additionally, on
July 26, 2006 appellant received treatment for a left knee injury that reportedly occurred a few
weeks earlier when she was exercising on a treadmill and just four days prior to her claimed
September 5, 2006 injury, appellant was seen by Dr. Richard J. Emerson for an unspecified left
ankle injury. At that time, Dr. Emerson recommended obtaining an x-ray and a magnetic
resonance imaging (MRI) scan of the left ankle to rule out a stress fracture of the lateral
malleolus.
On September 8, 2006 Dr. Emerson excused appellant from work due to left knee and left
ankle pain. In a September 15, 2006 report, he noted that appellant claimed to have injured
herself on “[August 5, 2006]” when she fell down stairs at work. Appellant reportedly landed
directly on her left knee and twisted her ankle. She experienced immediate pain and swelling
and had difficulty ambulating. Dr. Emerson noted that a recent imaging study revealed Grade 3
chondrosis of the left knee.1 He also reported that a left ankle MRI scan showed a longitudinal
split-type tear involving the peroneous brevis and peroneous longus tendons, with surrounding
peritendinous edema. The ankle MRI scan also revealed a Grade 1 injury to the anterior
talofibular ligament and an osteochondral injury on the medial aspect of the talar dome.
Dr. Emerson stated that there was a causal relationship between the diagnosed conditions and
factors related to appellant’s employment.
On September 18, 2006 Dr. Emerson diagnosed left longitudinal tear involving the
malleolar and inframalleolar brevis tendons, which he attributed to appellant falling down the
stairs at work.
Dr. Mark D. Campbell, a Board-certified orthopedic surgeon, examined appellant on
September 20, 2006. Appellant told Dr. Campbell that she had fallen down stairs on
September 5, 2006 and experienced immediate pain in the left ankle. It was not until later that
she noticed increased pain in the left knee. In addition to conducting a physical examination,
Dr. Campbell reviewed recent x-rays and MRI scans of appellant’s left knee and ankle. He noted
that the left knee was benign and the left ankle showed some involvement of the peroneal
tendon, but there was no indication of a complete tear or rupture. Dr. Campbell’s assessment
was left ankle pain and he excused appellant from work for four weeks.
On October 18, 2006 the Office accepted appellant’s claim for left ankle strain.
However, on its own motion the Office reopened appellant’s case and based upon further review,
rescinded acceptance of the claim by decision dated October 25, 2006. Two days later, the
Office set aside the October 25, 2006 decision and advised appellant that the claim remained
open for medical treatment for the accepted left ankle strain. Several weeks later, the Office
again reopened the case on its own motion and rescinded acceptance of the claim by decision

1

Dr. Robert Allen interpreted a September 11, 2006 left knee MRI scan as revealing Grade 3 chondromalacia
patella, which was reportedly unchanged from a prior MRI scan dated July 27, 2006. The MRI scan report noted
that appellant “[fell down stairwell last week.]”

2

dated November 13, 2006. The Office found that appellant failed to establish that she sustained
an injury as alleged.
LEGAL PRECEDENT
A claimant seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of her claim by the weight of the reliable, probative
and substantial evidence, including that an injury was sustained in the performance of duty as
alleged and that any specific condition or disability claimed is causally related to the
employment injury.3
To determine if an employee sustained a traumatic injury in the performance of duty, the
Office begins with an analysis of whether “fact of injury” has been established. Generally, fact
of injury consists of two components that must be considered in conjunction with one another.
The first component to be established is that the employee actually experienced the employment
incident that is alleged to have occurred.4 The second component is whether the employment
incident caused a personal injury.5 An employee may establish that an injury occurred in the
performance of duty as alleged but fail to establish that the disability or specific condition for
which compensation is being claimed is causally related to the injury.6
ANALYSIS
After initially accepting appellant’s claim for left ankle strain, the Office rescinded
acceptance of the claim on November 13, 2006. The Act authorizes the Office to reconsider on
its own motion a decision for or against compensation. The Office may initiate such an action at
any time.7 In rescinding acceptance, the Office explained that upon further examination of the
record there were some factual discrepancies that called into question whether appellant injured
2

5 U.S.C. § 8101 et seq. (2000).

3

20 C.F.R. § 10.115(e), (f) (2006); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996). Causal relationship is
a medical question that can generally be resolved only by rationalized medical opinion evidence. See Robert G.
Morris, 48 ECAB 238 (1996). A physician’s opinion on the issue of whether there is a causal relationship between
the claimant’s diagnosed condition and her employment must be based on a complete factual and medical
background. Victor J. Woodhams, 41 ECAB 345, 352 (1989). Additionally, to be considered rationalized, the
physician must express his or her opinion in terms of a reasonable degree of medical certainty, and it must be
supported by medical rationale, explaining the nature of the relationship between the diagnosed condition and the
employment incident or implicated employment factors. Id.
4

Elaine Pendleton, 40 ECAB 1143 (1989).

5

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

6

Shirley A. Temple, 48 ECAB 404, 407 (1997). The fact that the etiology of a disease or condition is unknown or
obscure does not relieve an employee of the burden of establishing a causal relationship by the weight of the medical
evidence nor does it shift the burden of proof to the Office to disprove an employment relationship. Judith J.
Montage, 48 ECAB 292, 294-95 (1997).
7

5 U.S.C. § 8128(a); see also 20 C.F.R. § 10.610; Delphina Y. Jackson, 55 ECAB 373, 376 (2004) (the Office
must provide a clear rationale for rescinding acceptance of a claim).

3

herself while falling down at work on September 5, 2006. The Office further explained that the
medical evidence, particularly the reports provided by Drs. Emerson and Campbell, was
insufficient to establish a causal relationship between appellant’s left lower extremity condition
and the alleged September 5, 2006 employment incident. The Board finds that the Office
provided a clear rationale for rescinding acceptance of the claim.
On the question of causal relationship, Dr. Emerson was the only physician who
attributed appellant’s left ankle injury to her alleged fall at work, which he reported occurred on
August 5, 2006. Dr. Emerson neglected to explain how appellant’s fall at work caused or
contributed to what he diagnosed as a left longitudinal tear of the malleolar and inframalleolar
brevis tendons.8 Furthermore, Dr. Emerson’s September 15 and 18, 2006 reports did not discuss
or even mention appellant’s prior history of injury involving both the left knee and left ankle.
Thus, his opinion on causal relationship was neither supported by medical rationale nor based on
a complete factual and medical background. While earlier treatment records indicate that
Dr. Emerson was clearly aware of appellant’s prior injuries, he made no attempt to reconcile
those injuries with the injury she allegedly sustained as a result of a September 5, 2006 fall at
work. As the record does not include rationalized medical evidence demonstrating a causal
connection between the claimed left lower extremity condition and appellant’s employment, the
Office properly denied the claim.
CONCLUSION
Appellant failed to establish that she sustained an injury in the performance of duty on
September 5, 2006.

8

When Dr. Campbell reviewed appellant’s recent left ankle MRI scan, he did not find evidence of a complete tear
or rupture of the tendon.

4

ORDER
IT IS HEREBY ORDERED THAT the November 13, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 7, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
TENNESSEE VALLEY HEALTH CARE
SYSTEM, Murfreesboro, TN, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 06-2075
Issued: February 8, 2007

Case Submitted on the Record

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

JURISDICTION
On September 11, 2006 appellant filed a timely appeal from a November 16, 2005 merit
decision of the Office of Workers’ Compensation Programs awarding her compensation for a 10
percent permanent impairment of her left lower extremity. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the schedule award issue in this case.
ISSUES
The issues are: (1) whether appellant has established that she has more than a 10 percent
permanent impairment of her left lower extremity for which she received a schedule award; and
(2) whether the Office properly refused to reopen appellant’s case for further review of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On June 9, 2004 appellant, a 47-year-old nurse, filed a traumatic injury claim alleging
that she injured her knees on that date when she was struck by a stretcher at work. The Office

accepted her claim for bilateral chondromalacia and left medial meniscus tear. Appellant’s claim
was expanded on November 3, 2005 to include medial meniscus tear of the right knee. She
underwent meniscectomies of the left and right knees on October 12 and November 16, 2004
respectively.
On August 24, 2005 appellant filed a request for a schedule award. By letter dated
October 3, 2005, the Office informed her that the evidence submitted was insufficient to support
her request. The Office advised appellant to provide a physician’s assessment on the date of
maximum medical improvement (MMI) and the loss of function of her lower extremities based
upon the American Medical Association, Guides to the Evaluation of Permanent Impairment (5th
ed. 2001) (hereinafter, A.M.A., Guides ).
Appellant submitted a report dated June 24, 2005 from Dr. Charles R. Kaelin, Jr., a
Board-certified orthopedic surgeon, who found that she had full range of motion of her knees.
Dr. Kaelin concluded that, based upon her range of motion, quad atrophy and narrowing at the
compartment of her knee, appellant had a 15 percent impairment of each lower extremity. He
recommended a permanent 15-pound lifting restriction. Additional restrictions included sitting
eight hours per day, with 15-minute rest periods, standing and walking three hours per day and
no repetitive climbing.
The Office forwarded the case file to the district medical adviser for an opinion on the
degree of permanent impairment of appellant’s lower extremities. In a November 10, 2005
report, the Office medical adviser concluded that the date of MMI was June 24, 2005, the date of
Dr. Kaelin’s report. He noted that appellant had undergone an arthroscopy for partial medial and
lateral meniscectomies on October 12, 2004. Referring to Table 17-33, page 546 of the A.M.A.,
Guides, the Office medical adviser concluded that appellant had a 10 percent impairment rating
of her left lower extremity. He stated that Table 17-2, page 526 precluded combining
impairments for diagnosis-based estimates with atrophy, gait, strength and range of motion. He
further concluded that there was no basis given for a schedule award for appellant’s right lower
extremity.1
On November 16, 2005 the Office granted appellant a schedule award for a 10 percent
impairment of her left lower extremity, finding the date of MMI to be June 24, 2005. The award
was for a period of 57.60 weeks, from February 21, 2005 to March 31, 2006.
On December 15, 2005 appellant submitted a request for reconsideration of the Office’s
November 16, 2005 schedule award. In support of her request, appellant submitted copies of
operative reports and physician’s reports previously submitted. Appellant also submitted an
unsigned June 2, 2005 functional capacity evaluation.
By decision dated January 6, 2006, the Office denied appellant’s request for
reconsideration.

1

The Board has jurisdiction to consider and decide appeals from final decisions; there shall be no appeal with
respect to any interlocutory matter disposed of during the pendency of the case. 20 C.F.R. § 501.2(c). As of the
date of the filing of this appeal, the Office had not issued a final determination on the degree of permanent
impairment of appellant’s right lower extremity. Therefore, the Board does not have jurisdiction over this matter.

2

LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulation3 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, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to 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
implementing regulation as the appropriate standard for evaluating schedule losses.4
Office procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an Office medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.5
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for a decision. The case will be remanded
to the Office for further development of the medical evidence.
In support of her claim for a schedule award, appellant submitted a June 24, 2005 report
from Dr. Kaelin who found that she had full range of motion of her knees. Based upon her range
of motion, quad atrophy and narrowing at the compartment of her knee, Dr. Kaelin concluded
that appellant had a 15 percent impairment of her left lower extremity. However, he provided no
clinical findings to support his opinion, provided no explanation as to how he arrived at his
rating and failed to opine that appellant had reached maximum medical improvement.
Moreover, Dr. Kaelin failed to indicate the applicable tables and figures of the A.M.A., Guides
upon which he relied in calculating the impairment. For all of these reasons, it is impossible for
the Board to determine from Dr. Kaelin’s report the degree of appellant’s permanent disability or
the date of MMI.
The Office medical adviser utilized Dr. Kaelin’s findings in concluding that appellant had
a 10 percent impairment of her left lower extremity. However, as indicated above, Dr. Kaelin’s
report did not provide a sufficient basis for a determination of permanent impairment. The
Board finds that further development of the medical record is needed to establish the degree of
impairment to appellant’s left lower extremity. On remand the Office should refer appellant to
an appropriate medical specialist for an evaluation of permanent impairment caused by the
June 9, 2004 employment injury and an impairment rating based on a proper application of the
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

A.M.A., Guides (5th ed. 2001).

5

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (March 1995).

3

fifth edition of the A.M.A., Guides. Following such further development as the Office deems
necessary, it should issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for a decision on the schedule award issue
and must be remanded for further development of the medical evidence. In light of the Board’s
ruling on the first issue, the second issue is moot.
ORDER
IT IS HEREBY ORDERED THAT the November 16, 2005 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further action
consistent with this decision.
Issued: February 8, 2007
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.A., Appellant
and
TENNESSEE VALLEY AUTHORITY, COAL &
GAS OPERATIONS, PARADISE FOSSIL
PLANT, Drakesboro, KY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Elizabeth A. Bruce, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1612
Issued: June 21, 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 September 10, 2020 appellant, through counsel, filed a timely appeal from a March 31,
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 his burden of proof to establish a pulmonary
condition causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On November 27, 2018 appellant, then a 55-year-old scrubber board operator, filed an
occupational disease claim (Form CA-2) alleging that he developed occupational pneumoconiosis
due to factors of his federal employment. He noted that he first became aware of his condition and
its relation to his federal employment on September 4, 2018. Appellant did not stop work.
In support of his claim, appellant submitted a statement dated September 4, 2018, asserting
that he had been advised by a physician that he had an occupational lung disease that was related
to his employment at the employing establishment. He noted that he last worked at the employing
establishment on July 18, 2018.
In answers referencing FECA Bulletin No. 85-33, “Evidence Required in Supporting a
Claim for Asbestos-Related Illness,” accompanying his claim, appellant asserted that he began
working at the employing establishment on July 20, 1987 as a public safety officer in the
employing establishment. Initially, he was exposed to coal dust eight hours a day, five days a
week. Appellant noted his federal positions included that of a conveyor car dump operator in the
coal yard, operator’s maintenance training program, scrubber assistant unit operator, and scrubber
board operation. In his subsequent positions, he indicated that he was exposed to coal dust,
limestone dust, and asbestos from boilers and steam lines on a daily basis. Appellant advised that
he wore paper masks occasionally. He asserted that he did not smoke.
In an October 10, 2018 report, Dr. Glen Baker, a Board-certified pulmonologist and
National Institute for Occupational Safety and Health (NIOSH) certified B-reader, noted that he
examined appellant for possible dust-induced lung disease secondary to his employment.
Dr. Baker indicated that appellant worked at the employing establishment for 31 years with
exposure to asbestos, coal dust, odors, and fumes. He further noted that appellant had never
smoked. Dr. Baker listed appellant’s symptoms of dyspnea on exertion for the past one to two
years, occasional cough, and obstructive sleep apnea. On physical examination he found that
appellant had 16 respirations per minute and that his lungs were clear to auscultation and
percussion. Dr. Baker reviewed an August 16, 2018 chest x-ray which indicated occupational
pneumoconiosis category 1/2. He also provided findings of October 5, 2018 pulmonary function
studies and interpreted these findings as mild restrictive ventilatory defect. Dr. Baker diagnosed
occupational pneumoconiosis category 1/2, mild restrictive ventilatory defect based on pulmonary
function testing, and obstructive sleep apnea. He opined that appellant’s occupational
pneumoconiosis and mild restrictive defect was caused by asbestos and coal dust exposure at the
employing establishment. Dr. Baker attributed appellant’s sleep apnea to obesity. He found that
appellant had a permanent impairment rating of six percent.
In a December 3, 2018 development letter, OWCP requested that appellant submit
additional evidence in support of his claim. It advised him of the type of factual and medical
evidence needed and provided a questionnaire of his completion. By separate letter of even date,

2

OWCP also requested additional information from the employing establishment. It afforded both
parties 30 days to respond.
On January 16, 2019 OWCP referred appellant, a statement of accepted facts (SOAF) and
a list of questions to Dr. Harold Dale Haller, Jr., a Board-certified pulmonologist, for a second
opinion examination.
In a January 18, 2019 response to OWCP’s development questionnaire, the employing
establishment noted that appellant was employed for approximately 31 years. It further indicated
that data of exposure to asbestos and coal dust for appellant was not available, but that assessments
for car dump operators at the employing establishment consistently demonstrated that personal
exposures experienced by all workers were below occupational exposure limits. The employing
establishment contended that appellant did not perform insulating/abatement duties of asbestos
and that his positions did not routinely require the use of respirators because dust levels were well
below Occupational Safety & Health Administration (OSHA) established limits. It disputed
appellant’s allegations of dust or asbestos exposure.
In a February 26, 2019 report, Dr. Haller noted appellant’s employment exposure and
symptoms. He reviewed the spirometry from Dr. Baker dated October 5, 2018 and found no
evidence of significant lung disease. Dr. Haller opined that the interpretation of restriction by
Dr. Baker was incorrect as it was based on spirometry alone rather than after formal lung volume
testing. He also disagreed with Dr. Baker’s finding of occupational pneumoconiosis category on
x-rays. Dr. Haller recommended a high resolution chest computerized tomography (CT) scan to
identify pneumoconiosis. Dr. Haller performed lung volume testing, and found that appellant’s
lung volumes were well within normal limits and noted that appellant’s restrictions could be due
to his obesity. He also noted that appellant’s diffusing capacity was normal, while even mild
restrictive disease would result in a decreased diffusion capacity. On physical examination
Dr. Haller noted that appellant had no bloody sputum, chest discomfort, coughing, or shortness of
breath. He found that appellant’s examination was generally normal, but that appellant did
experience nasal congestion, sleep apnea, and had a history of dyspnea. Dr. Haller opined that it
was very unlikely that appellant currently had any significant pulmonary disease.
By decision dated March 28, 2019, OWCP denied appellant’s occupational disease claim,
finding that Dr. Haller’s report was entitled to the weight of the medical evidence.
On April 2, 2019 appellant requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review.
On May 7, 2019 appellant sought treatment due to shortness of breath. He underwent an
electrocardiogram (EKG) and Allen’s test for arterial blood gas (ABG) results.
Following a preliminary review, by decision dated June 18, 2019, OWCP’s hearing
representative found that the case was not in posture for a decision and remanded the claim for a
supplemental report from Dr. Haller, including review of the May 7, 2019 test results.
On June 19, 2019 OWCP requested that Dr. Haller provide a detailed narrative report
reviewing the May 7, 2019 ABG and EKG results and opining whether there was significant lung
disease based on these studies.
3

In notes dated May 28 and August 23, 2019, Dr. Haller noted reviewing the ABG and EKG
results from May 7, 2019 and found that these results did not change his diagnosis or impression
of appellant’s conditions. He further noted that the EKG was in normal sinus rhythm.
By decision dated August 28, 2019, OWCP denied appellant’s occupational disease claim
finding that Dr. Haller’s reports were entitled to the weight of the medical evidence and did not
establish a medical condition as the result of his accepted employment exposures. On
September 5, 2019 appellant, through counsel, requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review.
On January 15, 2020 appellant testified before an OWCP hearing representative and
described his employment exposures to coal dust, limestone dust, and asbestos. He noted that he
had never smoked or experienced difficulty breathing prior to his employment. Counsel contended
that there was a conflict of medical opinion evidence between the reports from Drs. Baker and
Haller.
By decision dated March 31, 2020, OWCP’s hearing representative found that appellant
had not established a causal relationship between his diagnosed pulmonary conditions and his
accepted employment exposure. He found that the weight of the medical opinion evidence was
accorded to Dr. Haller.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.4 These are the essential elements of every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (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 identified employment factors.6

3

Id.

4

K.V., Docket No. 18-0947 (issued March 4, 2019); M.E., Docket No. 18-1135 (issued January 4, 2019); Kathryn
Haggerty, 45 ECAB 383, 388 (1994).
5

K.V., id., and M.E., id.; Elaine Pendleton, 40 ECAB 1143 (1989).

6
R.G., Docket No. 19-0233 (issued July 16, 2019); Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46
ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).

4

Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.7 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.8 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s).9
Section 8123(a) of FECA in pertinent part states 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 (known as a referee physician or impartial medical
specialist) who shall make an examination.10 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.11 When there exists opposing 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.12
ANALYSIS
The Board finds that this case is not in posture for decision.
Dr. Baker, in his October 10, 2018 report, reviewed appellant’s August 16, 2018 chest
x-ray and found occupational pneumoconiosis category 1/2. Dr. Haller disagreed with the finding
of occupational pneumoconiosis 1/2 on x-rays. He recommended a high resolution chest CT scan.
The Board finds that a conflict in the medical evidence exists between appellant’s treating
physician, Dr. Baker, who found occupational pneumoconiosis 1/2 on x-rays and Dr. Haller, the
second opinion physician, who disagreed. Drs. Baker and Haller both offered assessments of
appellant’s chest x-rays and their reports are of equal probative value. Consequentially, the case
must be referred to an impartial medical specialist to resolve the existing conflict in the medical
opinion evidence regarding whether appellant’s chest x-rays demonstrated occupational
pneumoconiosis 1/2.

7

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

8

M.V., Docket No. 18-0884 (issued December 28, 2018).

9

See J.R., Docket No. 20-0903 (issued April 22, 2021); Victor J. Woodhams, supra note 6.

10

5 U.S.C. § 8123(a); see C.G., Sr., Docket No. 20-0808 (issued April 23, 2021); R.S., Docket No. 10-1704 (issued
May 13, 2011); S.T., Docket No. 08-1675 (issued May 4, 2009); M.S., 58 ECAB 328 (2007).
11

20 C.F.R. § 10.321; C.G., Sr., id.; R.C., 58 ECAB 238 (2006).

12
S.T., Docket No. 16-1911 (issued September 7, 2017); G.B., widow of R.B., Docket No. 16-1363 (issued March 2,
2017); Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

5

On remand OWCP shall refer appellant, along with the case file and a SOAF, to a specialist
in the appropriate field of medicine for an impartial medical evaluation and a report including a
rationalized opinion as to whether appellant’s diagnosed pulmonary conditions are causally related
to the accepted employment factors. Following this and other such further development as OWCP
deems necessary, it shall issue a de novo decision regarding his claim for an employment-related
pulmonary condition.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the March 31, 2020 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further proceedings
consistent with this decision of the Board.
Issued: June 21, 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

6