United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Kings Mountain, NC, Employer
__________________________________________

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Appearances:
Humphrey S. Cummings, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-893
Issued: November 6, 2009

Case Submitted on the Record

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

JURISDICTION
On February 18, 2009 appellant filed a timely appeal from the December 3, 2008 merit
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office properly determined that an overpayment of
$1,504.32 was created; and (2) whether the Office properly denied waiver of the overpayment.
FACTUAL HISTORY
The Office accepted that appellant sustained left rotator tendinitis as a result of a motor
vehicle accident in the performance of duty on September 13, 2006. Appellant began receiving
compensation for temporary total disability. On September 1, 2007 a compensation payment of
$2,447.73 was direct deposited into her bank account for the period August 5 to
September 1, 2007.

The record indicates that appellant returned to full-time, light-duty work on
August 16, 2007. A vocational rehabilitation nurse’s report dated September 20, 2007 reported
that she returned to full-time work on August 16, 2007.
In a letter dated September 12, 2008, the Office made a preliminary determination that an
overpayment of $1,504.34 had been created from August 17 to September 1, 2007. It noted that
appellant had received a $2,477.73 compensation payment for the period August 5 to
September 1, 2007, but she should have received $973.39 in compensation for the period
August 5 to 15, 2007. With respect to fault, the Office found appellant was not at fault in
creating the overpayment. Appellant was advised to submit an OWCP-20 and supporting
financial documents so that the Office could consider the issue of waiver of the overpayment.
On October 3, 2008 appellant submitted an OWCP-20 form indicating that she had
$3,380.00 in monthly income and $4,432.00 in monthly expenses. By letter dated November 7,
2008, the Office advised appellant that she must submit additional evidence, such as bank
account statements and copies of bills, to support the income and expenses listed. It advised her
to submit the requested information within 15 days.
By decision dated December 3, 2008, the Office determined that an overpayment of
$1,504.32 was created.1 It denied waiver of the overpayment on the grounds that appellant had
not submitted the requested financial information.
LEGAL PRECEDENT -- ISSUE 1
Section 8116 of the Federal Employees’ Compensation Act defines the limitations on the
right to receive compensation benefits. This section of the Act provides that while an employee
is receiving compensation, she may not receive salary, pay or remuneration of any type from the
United States, except in limited circumstances.2 20 C.F.R. § 10.500 provides that “compensation
for wage loss due to disability is available only for any periods during which an employee’s
work-related medical condition prevents him or her from earning the wages earned before the
work-related injury.”
ANALYSIS -- ISSUE 1
Appellant did not contest on appeal that an overpayment of compensation was created.
The record establishes that she returned to full-time work on August 16, 2007. As noted,
compensation for wage loss is available only for periods when a claimant’s employment-related
condition prevents her from earning the date-of-injury wages.
Appellant received a
compensation payment covering the period August 5 to September 1, 2007. Since she was
entitled to wage-loss compensation only from August 5 to 15, 2007, an overpayment of
compensation was created.

1

There were no additional calculations as to the amount of the overpayment. It appears the Office inadvertently
reported the amount as $1,504.32 instead of $1,504.34.
2

5 U.S.C. § 8116(a).

2

As to the amount of the overpayment, the Office noted that appellant had received
$2,477.73 in compensation from August 5 to September 1, 2007, but calculated that she should
have received $973.39 from August 5 to 15, 2007. Accordingly, an overpayment of $1,504.34
was created. The Office erroneously reported the amount as $1,504.32 in its final decision.
LEGAL PRECEDENT -- ISSUE 2
The waiver or refusal to waive an overpayment of compensation is a matter that rests
within the Office’s discretion pursuant to statutory guidelines.3 These statutory guidelines are
found in section 8129(b) of the Act which states: “Adjustment or recovery [of an overpayment]
by the United States may not be made when incorrect payment has been made to an individual
who is without fault and when adjustment or recovery would defeat the purpose of [the Act] or
would be against equity and good conscience.”4 Since appellant was found to be without fault in
the creation of the overpayment, then, in accordance with section 8129(b), the Office may only
recover the overpayment if it determined that recovery of the overpayment would neither defeat
the purpose of the Act nor be against equity and good conscience.
Section 10.436 of the implementing regulations5 provide that recovery of an overpayment
will defeat the purpose of the Act if recovery would cause hardship to a currently or formerly
entitled beneficiary because: (a) the beneficiary from whom the Office seeks recovery needs
substantially all of his or her current income (including compensation benefits) to meet current
ordinary and necessary living expenses; and (b) the beneficiary’s assets do not exceed a specified
amount as determined by the Office from data furnished by the Bureau of Labor Statistics.6 An
individual is deemed to need substantially all of his or her income to meet current ordinary and
necessary living expenses if monthly income does not exceed monthly expenses by more than
$50.00.7
Section 10.437 provides that recovery of an overpayment is considered to be against
equity and good conscience when an individual who received an overpayment would experience
severe financial hardship in attempting to repay the debt; and when an individual, in reliance on
such payments or on notice that such payments would be made, gives up a valuable right or
changes his or her position for the worse.8

3

Robert Atchison, 41 ECAB 83 (1989).

4

See 5 U.S.C. § 8129(b); Carroll R. Davis, 46 ECAB 361 (1994).

5

20 C.F.R. § 10.436 (1999).

6

An individual’s assets must exceed a resource base of $4,800.00 for an individual or $8,000.00 for an individual
with a spouse or one dependent plus $960.00 for each additional dependent. This base includes all of the
individual’s assets not exempt from recoupment; see Federal (FECA) Procedure Manual, Part 6 -- Debt
Management, Initial Overpayment Actions, Chapter 6.200.6 (October 2004).
7

Sherry A. Hunt, 49 ECAB 467 (1998).

8

20 C.F.R. § 10.437 (1999).

3

With respect to a claimant’s obligations to submit financial information, the Office
regulations provide:
“(a) The individual who received the overpayment is responsible for providing
information about income, expenses and assets as specified by [the Office]. This
information is needed to determine whether or not recovery of the overpayment
would defeat the purpose of the [Act], or be against equity and good conscience.
This information will also be used to determine the repayment schedule, if
necessary.
“(b) Failure to submit the requested information within 30 days of the request
shall result in denial of waiver and no further request for waiver shall be
considered until the requested information is furnished.”9
ANALYSIS -- ISSUE 2
Appellant submitted an OWCP-20 overpayment recovery questionnaire dated
September 30, 2008. The Office requested in its September 12, 2008 preliminary determination
letter that appellant submit financial documents, such as bank statements, to support the amounts
reported on the OWCP-20. In addition, after receiving the OWCP-20, the Office specifically
requested additional financial documentation to support the expenses and income she listed on
the form. The November 7, 2008 letter advised appellant to submit the requested information
within 15 days. No documentation was received.
On appeal, appellant contends that she submitted additional documentation which the
Office failed to review. The record, however, establishes only that the Office received evidence
after the December 3, 2008 final decision. The Board’s jurisdiction is limited to reviewing the
evidence that was before the Office at the time of its final decision.10 At the time of the
December 3, 2008 decision, appellant had not responded to the request for supportive financial
documents. The Board finds that pursuant to 20 C.F.R. § 10.438, the Office properly denied
wavier of the overpayment. As to the recovery of the overpayment, the Office requested that
appellant send a payment for the full amount of the overpayment. The Board’s jurisdiction is
limited to recovery from continuing compensation benefits and therefore the issue is not before
the Board on this appeal.11
CONCLUSION
The Board finds the evidence establishes that an overpayment of $1,504.32 was created,
and the Office properly denied waiver of the overpayment.

9

Id. at § 10.438.

10

Id. at § 501.2(c)(1) (2008).

11

See Levon H. Knight, 40 ECAB 658, 665 (1989).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 3, 2008 is affirmed.
Issued: November 6, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.S., Appellant
(Widow of P.K.S.)
and
DEPARTMENT OF THE NAVY, NORTH
ISLAND NAVAL BASE, Coronado, CA,
Employer
__________________________________________
Appearances:
Steven E. Brown, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-1400
Issued: March 14, 2022

Case Submitted on the Record

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

On September 23, 2021 appellant, through counsel, filed an appeal from a purported
decision of the Office of Workers’ Compensation Programs (OWCP) dated August 24, 2019. The
Clerk of the Appellate Boards assigned the appeal Docket No. 21-1400.
The Board has duly considered the matter and concludes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act. 2
This jurisdiction encompasses any final adverse decision issued by OWCP within 180 days of the
date appellant filed her appeal. 3 The case record as transmitted to the Board does not contain a
final adverse decision of OWCP issued within 180 days from the date of docketing of the current
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.; 20 C.F.R. §§ 501.2(c) and 501.3(a).

20 C.F.R. § 501.3(e) provides in pertinent part: “Any notice of appeal must be filed within 180 days from the
date of issuance of a decision of the OWCP.”
3

appeal.4 As there is no final adverse decision issued by OWCP over which the Board may properly
exercise jurisdiction, the Board concludes that the appeal docketed as No. 21-1400 must be
dismissed.5 Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as Docket No. 21-1400 is
dismissed.
Issued: March 14, 2022
Washington, DC

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

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

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

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Id. The most recent decision of record was issued by this Board on August 24, 2021, under Docket No. 20-0215.
See Docket No. 20-0215 (issued August 24, 2021). Appellant, through counsel, filed a timely petition for
reconsideration from that Board decision. An order on appellant’s petition for reconsideration will be issued under a
separate order.
The Board’s decisions and orders are “final upon the expiration of 30 days from the date of their issuance.” 20
C.F.R. § 501.6(d).
5

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bellmawr, NJ, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-156
Issued: March 24, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 31, 2014 appellant, through his attorney, filed a timely appeal from a July 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.
ISSUE
The issue is whether appellant established a bilateral knee condition in the performance
of duty.
FACTUAL HISTORY
This is the second appeal before the Board in this case. By decision and order issued
November 18, 2011,2 the Board set aside OWCP’s October 29, 2010 decision denying
1

5 U.S.C. § 8101 et seq.

2

Docket No. 11-692 (issued November 18, 2011).

appellant’s occupational disease claim for bilateral knee osteoarthritis. The Board found that the
opinion of Dr. Lawrence Barr, a Board-certified internist and second opinion physician in the
case, could not represent the weight of the medical evidence as it was based on an inaccurate
factual history inconsistent with the statement of accepted facts. The Board remanded the case to
OWCP to obtain a referral opinion regarding whether appellant’s years of walking up and down
steps in his job caused or aggravated his claimed condition. The law and facts of the case as set
forth in the Board’s prior decision and order are incorporated by reference.
On remand of the case, OWCP obtained a second opinion from Dr. Stanley Askin, a
Board-certified orthopedic surgeon, who provided a January 26, 2012 report attributing
appellant’s bilateral knee osteoarthritis to aging. Dr. Askin submitted a February 10, 2012
addendum report finding no causal relationship between appellant’s employment and the
development of the claimed condition.
By decision dated April 2, 2012, OWCP denied appellant’s occupational disease claim on
the grounds that causal relationship was not established, based on Dr. Askin’s opinion as the
weight of the medical evidence. Counsel disagreed with this decision and requested a hearing.
By decision dated June 3, 2012, OWCP’s Branch of Hearings and Review set aside the
April 2, 2012 decision on the grounds that Dr. Askin’s opinion could not represent the weight of
the medical evidence. The hearing representative found that Dr. Askin’s reports were based on
an incomplete history and insufficiently rationalized. She directed that OWCP prepare a new
statement of accepted facts, detailing the 2003 and 2011 occupational knee injuries, then request
an addendum from Dr. Askin based on that factual framework.
On June 28, 2012 OWCP prepared an updated statement of accepted facts, noting that
appellant walked “up and down steps over many years as a letter carrier.” It listed a February 21,
2003 left knee injury under claim File No. xxxxxx922, an April 30, 2011 right knee sprain under
claim File No. xxxxxx852, and a left knee contusion sustained in a work-related motor vehicle
accident claim under File No. xxxxxx345. At OWCP’s request, Dr. Askin submitted July 5,
November 28, and December 11, 2012 addendum reports. He opined that appellant’s knee
injuries and employment duties did not cause, aggravate, or accelerate the claimed bilateral knee
osteoarthritis.
By decision dated May 21, 2013, OWCP denied appellant’s occupational disease claim
on the grounds that causal relationship was not established, based on Dr. Askin’s reports as the
weight of the medical evidence.
In a May 28, 2013 letter, counsel requested a hearing. At the hearing, held September 24,
2013, he asserted that Dr. Askin’s opinion should be given no medical weight as he was unable
to clarify his opinion on causal relationship in any of his five reports. The probative value of
Dr. Askin’s opinion was further diminished by his reliance on incomplete statements of accepted
facts.
Counsel provided a September 21, 2013 report from Dr. Colin A. Campbell, an attending
osteopathic physician Board-certified in internal medicine, who noted treating appellant for
many years. Dr. Campbell opined that the 2003 left meniscal tear, October 2011 left knee

2

contusion, and the cumulative effect of bending, squatting, lifting heavy packages, and carrying a
heavy mail satchel, were all causal factors in the deterioration of appellant’s knees. He
explained that climbing steps and carrying heavy packages on a deranged left knee caused
additional damage to the meniscus and abnormal wear leading to arthritis. Dr. Campbell
explained that the “beginning of the degradation of [appellant’s] left knee started with a
work[-]related injury in 2003 and has certainly been exacerbated by his physically taxing
employment. [A] subsequent work[-]related injury in 2011 injured [appellant’s] left knee further
and has certainly helped to progress the degeneration of his knee.”
Appellant provided a September 17, 2013 statement reiterating his claim that carrying
mail up and down steps and the 2003 accepted left knee injury caused a left medial meniscal tear
and bilateral knee osteoarthritis.
By decision dated December 11, 2013, OWCP’s Branch of Hearings and Review set
aside the May 21, 2013 decision. The hearing representative directed OWCP to prepare a
statement of accepted facts with the full physical requirements of a letter carrier, and including
accepted left knee injuries in 2003 and 2011 under claim file numbers xxxxxx922 and
xxxxxx345.3 She instructed it to refer appellant to a new second opinion specialist, as Dr. Askin
“already provided numerous addendums which had defects.”
In a December 20, 2013 letter, OWCP prepared an updated statement of accepted facts
which included appellant’s job description and the 2003 and 2011 injuries. It then referred
appellant to Dr. Askin for a second opinion examination. Dr. Askin provided a January 3, 2014
report opining that appellant’s bilateral knee osteoarthritis was an idiosyncratic, age-related
condition unrelated to his federal employment or knee injuries.
On February 18, 2014 OWCP obtained a second opinion report from Dr. Robert Smith, a
Board-certified orthopedic surgeon, who opined that the 2003 knee injury was not competent to
produce osteoarthritis. In a February 26, 2014 letter, it requested that Dr. Smith submit a
supplemental report addressing whether appellant sustained the claimed occupational condition,
noting that the claim was not for a traumatic injury. Dr. Smith provided a March 9, 2014
addendum, stating that appellant appeared to have “symmetrical primary arthritis of both knees,
consistent with a 57-year-old male. There was nothing about his examination to indicate that he
had post-traumatic arthritis of his knees either by the two traumatic incidents related in 2003 and
2011, or his routine work activities with the postal service.” Dr. Smith characterized primary
osteoarthritis as a “developmental condition and a disease of life.” He concluded that appellant’s
work activities and the 2003 and 2011 injuries “did not cause, aggravate, accelerate, or
precipitate his knee arthritis which would have occurred in any event, whether he worked for the
postal service or not.”
By decision dated March 12, 2014, OWCP denied appellant’s occupational disease claim
on the grounds that causal relationship was not established, based on Dr. Smith’s opinion as the
weight of the medical evidence.
3

The Board notes that by order issued August 12, 2013, under Docket No. 13-924, it remanded appellant’s appeal
under File No. xxxxxx345 to OWCP for doubling with File No. xxxxxx382 and issuance of a de novo decision.
OWCP subsequently doubled the files under claim File No. xxxxxx345.

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In a March 18, 2014 letter, counsel requested a hearing, held June 9, 2014. At the
hearing, he contended that OWCP should have accorded the weight of the medical evidence to
Dr. Campbell, who provided extensive medical rationale supporting causal relationship.
Alternatively, counsel asserted a conflict between Dr. Campbell and Dr. Smith, requiring
resolution by an impartial medical examiner.
By decision dated July 28, 2014, the hearing representative affirmed the March 12, 2014
decision, finding that Dr. Smith provided adequate rationale explaining that appellant’s bilateral
knee osteoarthritis was age related, with no contribution from his employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was 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.4 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.5
An occupational disease is defined as a condition produced by the work environment
over a period longer than a single workday or shift.6 To establish that an injury was sustained in
the performance of duty in an occupational disease claim, a claimant must submit the following:
(1) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; (2) factual statement identifying employment factors alleged to have
caused or contributed to the presence or occurrence of the disease or condition; and (3) medical
evidence establishing that the employment factors identified by the claimant were the proximate
cause of the condition for which compensation is claimed or, stated differently, medical evidence
establishing that the diagnosed condition is causally related to the employment factors identified
by the claimant.
The medical evidence required to establish causal relationship is generally rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medial certainty and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.7

4

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

5

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

6

20 C.F.R. § 10.5(q).

7

Solomon Polen, 51 ECAB 341 (2000).

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Section 8123(a) of FECA provides that when there is a disagreement between the
physician making the examination for the United States and the physician of the employee, a
third physician shall be appointed to make an examination to resolve the conflict.8 When there
are opposing medical reports of virtually equal weight and rationale, the case must be referred to
an impartial medical specialist, pursuant to section 8123(a), to resolve the conflict in the medical
evidence.9
ANALYSIS
Appellant claimed that he sustained osteoarthritis of both knees, causally related to
walking up and down steps and heavy lifting at work, and to 2003 and 2011 occupational left
knee injuries. OWCP denied the claim on the grounds that causal relationship was not
established.
In support of his claim, appellant submitted a September 21, 2013 report from
Dr. Campbell, an attending osteopathic physician Board-certified in internal medicine, who
opined that the 2003 meniscal tear caused internal derangement of the left knee, predisposing
appellant to degenerative osteoarthritis, accelerated by wear and tear from years of walking,
heavy lifting, and carrying, and stair climbing in the performance of duty. The 2011 left knee
contusion sustained in a work-related motor vehicle accident caused additional degradation.
OWCP obtained a second opinion from Dr. Smith, a Board-certified orthopedic surgeon,
who opined on February 18, 2014 that appellant’s presentation did not indicate a traumatic
injury. Dr. Smith provided a March 9, 2014 addendum, stating that appellant’s arthritis was age
related as it appeared symmetrical in both knees. It had no relation to appellant’s history of
injury or his federal employment.
In the July 28, 2014 decision denying appellant’s claim, OWCP accorded the weight of
the medical evidence to Dr. Smith. The Board finds, however, that Dr. Smith’s opinion as
second opinion specialist is in conflict with that of Dr. Campbell, appellant’s attending
physician. Dr. Smith provided rationale explaining that bilaterally symmetrical knee arthritis
was due to aging, whereas Dr. Campbell reasoned that walking, climbing, lifting, and carrying
on a deranged left knee led directly to the development of osteoarthritis. He reached opposing
conclusions regarding the etiology of the claimed condition.
As there is an outstanding conflict of medical opinion, the case will be remanded to
OWCP for appointment of an impartial medical examiner.10 OWCP shall refer appellant, the
medical record, and a statement of accepted facts to the impartial specialist to obtain a
well-reasoned opinion on causal relationship. After this and any other development deemed
necessary, it shall issue a de novo decision in the case.

8

5 U.S.C. § 8123(a); Robert W. Blaine, 42 ECAB 474 (1991).

9

Delphia Y. Jackson, 55 ECAB 373 (2004).

10

5 U.S.C. supra note 8; id.

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On appeal, counsel asserts that Dr. Smith’s report is insufficient to represent the weight
of the medical evidence when compared to Dr. Campbell’s detailed and well-rationalized
opinion supporting causal relationship. He alleges that Dr. Smith did not review the updated
statement of accepted facts as he misstated the 2003 date of injury, indicated that the October 11,
2011 motor vehicle accident was not included, and did not list the accepted injuries. Counsel
notes that Dr. Smith used speculative language and failed to provide any medical rationale to
support his opinion. Alternatively, he contends that there is a conflict of medical opinion
between Dr. Campbell and Dr. Smith regarding the etiology of appellant’s knee osteoarthritis.
As stated above, the case will be remanded to OWCP to select an impartial medical examiner
and obtain his or her opinion.
CONCLUSION
The Board finds that the case is not in posture for a decision due to a conflict of medical
opinion.
ORDER
IT IS HEREBY ORDERED THAT the July 28, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for additional
development consistent with this decision and order.
Issued: March 24, 2015
Washington, DC

Patricia Howard Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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DEPARTMENT OF JUSTICE, U.S. MARSHALS )
SERVICE, New York, NY, Employer
)
__________________________________________ )
R.T., Appellant

Appearances:
Capp P. Taylor, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-438
Issued: March 28, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 17, 2014 appellant, through her attorney, filed a timely appeal from a
September 16, 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.
ISSUE
The issue is whether OWCP properly terminated appellant’s wage-loss compensation
effective September 21, 2014 on the grounds that she no longer had any disability causally
related to her accepted employment-related injuries.
On appeal counsel contends that the medical report of an OWCP referral physician is not
entitled to the weight of the medical opinion evidence, as it is speculative and fails to provide a
rationalized opinion explaining how the accepted employment-related degeneration of the
lumbar intervertebral disc has resolved. He contends that the referral physician failed to
demonstrate his knowledge of the physical requirements of appellant’s job or her residual
1

5 U.S.C. § 8101 et seq.

physical capacity as he only reviewed the duties of the position without discussion and reviewed
prior diagnostic test results without citing to recent diagnostic test results in support of his
opinion that there are no objective findings of a residual disabling condition. Counsel also failed
to discuss whether appellant’s limitations related to her consequential right knee condition allow
her to resume her date-of-injury position or any other suitable position.
FACTUAL HISTORY
This case has previously been before the Board. In an October 14, 2009 decision, the
Board found that OWCP properly suspended appellant’s compensation effective November 23,
2008 for failing to submit a Form EN1032, as requested.2 In an April 3, 2014 decision, the
Board reversed OWCP’s termination of her compensation based on its finding that she had no
further employment-related residuals or disability.3 The facts of the case as set forth in the
Board’s prior decision are incorporated herein by reference. The relevant facts are set forth
below.
OWCP accepted that on March 30, 1981 appellant, then a 26-year-old deputy marshal,
sustained employment-related low back derangement and degeneration of the lumbar or
lumbosacral intervertebral disc when she slipped while exiting a vehicle. Appellant stopped
work on the date of injury and has not returned to work. OWCP paid compensation for total
disability.
In a February 18, 2013 progress note, Dr. G. Clay Baynham, an attending Board-certified
orthopedic surgeon, provided a history of the March 30, 1981 employment injuries and
appellant’s medical treatment, social, and family background. He noted her complaints of back
pain and bilateral leg, right groin, and left foot pain and numbness. Dr. Baynham provided
findings on physical examination and magnetic resonance imaging scan test results. He also
provided an impression of back and bilateral left greater than right lower extremity radicular
pain, numbness, and paresthesias. Dr. Baynham advised that on physical examination appellant
had no focal neurological deficit. Appellant’s complaints appeared to be generally consistent
with a femoral radiculopathy. Radiographically, her complaints appeared to correlate well with
lateral recess stenosis bilaterally at L3-4. Dr. Baynham concluded that appellant’s complaints of
groin pain on the left appeared to correlate well with a focal left lateral herniation at L2-3 and
addressed her treatment plan.
By letter dated April 15, 2014, OWCP referred appellant, together with a statement of
accepted facts and the medical record, to Dr. Peter J. Millheiser, a Board-certified orthopedic
surgeon, for a second opinion. In a May 15, 2014 report, Dr. Millheiser reviewed a history of the
March 30, 1981 employment injuries and appellant’s medical record. He noted her complaint of
constant and sharp back pain that radiated to her pelvis in both legs more on the left than on the
right. The back pain increased with bending, lifting, twisting, walking, sitting, standing, and
sleeping, but not with coughing, sneezing, or bowel movements. The pain went down to both
feet, more on the left than on the right, and there was numbness in both feet. On examination of
the lumbar spine, he reported mildly restricted range of motion. There was no tenderness, trigger
2

Docket No. 09-675 (issued October 14, 2009).

3

Docket No. 14-75 (issued April 3, 2014).

2

points, spasm, list, tilt, or sciatic scoliosis. A motor and sensory examination of the lower
extremities was normal. Knee and ankle reflexes were equal and active bilaterally. A straight
leg raising test was negative. Sitting caused back pain at 80 degrees on the right. Over
exaggeration tests were negative. The right calf measured .25 inch more than the left calf.
Dr. Millheiser reported that appellant was not using orthosis and she had normal ability to get on
and off an examination table. Appellant had normal gait and station. Dr. Millheiser diagnosed
postlumbar radiculopathy, postlumbar sprain, and degenerative disease of the lumbar spine. He
reviewed the duties of a federal marshal. Dr. Millheiser found no significant objective findings
in the lumbar spine. He advised that there were no objective findings to support residuals or
disability from the compensable medical conditions as indicated in the statement of accepted
facts. Dr. Millheiser concluded that appellant could perform the physical requirements of her
deputy marshal job as listed in the statement of accepted facts without restrictions and on a fulltime basis.
On June 30, 2014 OWCP issued a notice of proposed termination of appellant’s wageloss compensation based on Dr. Millheiser’s medical opinion. Appellant was advised that she
had 30 days to submit additional evidence in response to the proposed termination.
In a July 6, 2014 letter, appellant stated that OWCP failed to provide her with 30 days to
respond to its notice. She related that she was not able to get an appointment with her physician
until the end of July 2014 due to the Fourth of July holiday and vacation. Appellant contended
that there were no changes in her health and back pain since her 1981 employment injury and
that she continued to require medical treatment.
In a September 16, 2014 decision, OWCP finalized the termination of appellant’s wageloss compensation benefits effective September 21, 2014. It found that the opinion of
Dr. Millheiser constituted the weight of the medical evidence. OWCP did not terminate medical
benefits.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
termination or modification of an employee’s benefits.4 It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.5
The burden of proof includes the necessity of furnishing rationalized medical opinion evidence
based on a proper factual and medical background.6
ANALYSIS
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation as of September 21, 2014. OWCP accepted that appellant sustained low back
derangement and degeneration of the lumbar or lumbosacral intervertebral disc while in the
4

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

5

Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37
ECAB 541 (1986).
6

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

3

performance of duty.
evaluation.

It subsequently referred her to Dr. Millheiser for a second opinion

In a May 15, 2014 report, Dr. Millheiser reviewed a complete and accurate factual and
medical background, and provided a reasoned medical opinion that appellant could return to her
date-of-injury position. He noted the lack of significant objective findings based on physical
examination and reviewed the diagnostic studies. Dr. Millheiser found essentially normal
examination findings with the exception of mildly restricted range of motion of the lumbar spine.
He determined that there were no objective findings to support any disability due to the accepted
conditions. Dr. Millheiser reviewed a description of appellant’s deputy marshal position. He
concluded that she could return to this full-time position without restrictions. The Board notes
that there is no contemporaneous medical evidence from an attending physician that discussed a
continuing employment-related disability. Prior to the termination,7 the February 18, 2013 report
of Dr. Baynham found that appellant had back and bilateral leg pain, numbness, and paresthesias.
However, he did not address the issue of continuing employment-related disability.
The Board finds that Dr. Millheiser’s report represents the weight of the medical
evidence and that OWCP properly relied on his report in terminating appellant’s wage-loss
compensation for the accepted employment-related conditions on September 16, 2014.
On appeal counsel contended that Dr. Millheiser’s report was not entitled to the weight of
the medical opinion evidence. He asserted that his report was extremely speculative and failed to
provide a rationalized opinion explaining how the accepted employment-related degeneration of
the lumbar intervertebral disc had resolved. Dr. Millheiser opined that there were no objective
findings to support residuals of appellant’s accepted conditions, yet he also diagnosed lumbar
spine degenerative disease, an accepted employment-related condition. While Dr. Millheiser did
not provide a definitive opinion as to whether appellant had any continuing employment-related
residuals, the Board notes that OWCP did not terminate medical benefits for any of her accepted
conditions.
Counsel further asserted that Dr. Millheiser failed to demonstrate his knowledge of the
physical requirements of appellant’s job and her residual physical capacity as he only reviewed
the duties of the position without discussion and he reviewed prior diagnostic test results without
citing to recent diagnostic test results in support of his opinion that there were no objective
findings of a residual disabling condition. There is no evidence that Dr. Millheiser’s
examination was deficient in any way. He provided detailed clinical findings, and reviewed the
medical record and a description of appellant’s deputy marshal duties. After a thorough
examination, Dr. Millheiser concluded that there were no objective findings to support any
residual employment-related disability and that appellant could return to her regular work duties
with no restrictions.
Lastly, counsel contended on appeal that Dr. Millheiser failed to discuss limitations
related to appellant’s consequential right knee condition and whether she could resume her dateof-injury position or any other suitable position due to this condition. However, OWCP has not
7

The Board notes that, prior to OWCP’s September 16, 2014 termination decision, OWCP properly gave
appellant 30 days to respond to its June 30, 2014 pretermination notice. Federal (FECA) Procedure Manual, Part
2 -- Claims, Disallowances, Chapter 2.1400.7 (February 2013).

4

accepted appellant’s claim for a right knee condition. For conditions not accepted by OWCP as
being employment related, it is appellant’s burden to provide rationalized medical evidence
sufficient to establish causal relation.8 Appellant did not submit any rationalized medical
evidence establishing that she sustained a right knee condition as a consequence of her accepted
employment-related injuries.
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 terminated appellant’s wage-loss compensation
effective September 21, 2014 on the grounds that she no longer had any disability causally
related to her accepted employment-related injuries.
ORDER
IT IS HEREBY ORDERED THAT the September 16, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.9
Issued: March 28, 2016
Washington, DC

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

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

8

T.M., Docket No. 08-975 (issued February 6, 2009).

9

James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the
Board effective November 16, 2015.

5


United States Department of Labor
Employees’ Compensation Appeals Board

___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Denville, NJ, Employer
)
___________________________________________ )
R.G., Appellant

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

Docket No. 16-0647
Issued: July 1, 2016

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 January 25, 20161 appellant filed a timely appeal from the August 20, 2015 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

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from August 20, 2015, the date of OWCP’s last decision, was
February 16, 2016. Since using February 18, 2016, the date the appeal was received by the Clerk of the Appellate
Boards would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of
the U.S. Postal Service postmark is January 25, 2016, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue on appeal is whether appellant met his burden of proof to establish a recurrence
of disability beginning September 30, 2014, causally related to his September 1, 1997
employment injury.
FACTUAL HISTORY
OWCP accepted that on or before September 1, 1997 appellant, then a 42-year-old letter
carrier, sustained a tear of the lateral meniscus on the right and a partial tear of the anterior
cruciate ligament in the performance of duty. Appellant did not initially stop work. OWCP
authorized an arthroscopic partial lateral meniscectomy, synovectomy, and chondroplasty of
femoral trochlea performed on February 1, 2010. Appellant received wage-loss compensation
from February 1 to April 2, 2010. He returned to full duty on April 5, 2010.3 Appellant last
received medical care for his work-related conditions on August 30, 2012.
OWCP received treatment notes dating October 29, 2014 to June 1, 2015 from
Dr. Lerner. In a January 22, 2015 report, Dr. Lerner advised that appellant was struggling with
the right knee. He recommended arthroscopy of the right knee and lateral unicondylar
replacement, and a possible total knee replacement. Dr. Lerner indicated that he would request
authorization for the surgery.
On March 12, 2015 OWCP referred the request for surgery to an OWCP medical adviser.
In a March 12, 2015 report, the OWCP medical adviser noted appellant’s history of injury and
treatment. He indicated that the treating physician, Dr. Lerner, requested authorization to
perform a total right knee replacement or a unicondylar replacement. Recent x-rays revealed
complete loss of the lateral joint space and 11 degrees of valgus deformity. The medical adviser
recommended the requested surgery and opined that it was related to the accepted conditions and
the prior surgery performed on February 1, 2010. He explained that enough conservative
treatment had been provided and the requested procedure was appropriate for the degenerated
right knee.
On April 13, 2015 OWCP authorized the right total knee replacement. Dr. Lerner
performed the authorized surgery on May 12, 2015.4 He continued to submit notes for follow-up
treatment following the procedure.
On April 20, 2015 appellant filed a claim for compensation (Form CA-7) for the period
beginning February 21, 2015.
On April 20 and June 9, 2015 appellant filed a claim for a recurrence of disability (Form
CA-2a) beginning September 30, 2014. He noted that his pay stopped after the recurrence on
3

Dr. Kent S. Lerner, a Board-certified orthopedic surgeon, advised on April 19, 2010 that appellant was capable
of performing his usual job without any restrictions.
4

The operative report mentions the left knee but this appears to be a typographical error. Appellant received
wage-loss compensation from May 12 through August 31, 2015.

2

February 21, 2015. Appellant indicated that over the years his pain had progressively worsened
with minimal relief. He explained that five years earlier, arthroscopic surgery on his right knee
was performed and the pain was diminished, but still hindered his ability to function normally on
a daily basis.
In a letter dated June 22, 2015, OWCP accepted the claim for a recurrence of disability
effective May 12, 2015, based upon the authorized surgery. Regarding the earlier claim for
compensation, it indicated that it was unable to process the request. In a separate letter dated
June 22, 2015, OWCP advised appellant of the additional factual and medical information
needed to establish his claim for compensation beginning September 30, 2014 through
May 11, 2015. It advised appellant of the additional factual and medical evidence needed to
support his claim for a recurrence and requested that he submit such evidence within 30 days.
OWCP received records from the May 12, 2015 surgery that included an anesthesia
report, pathology report, hospital admittance record, and operative report.
In a June 22, 2015 treatment note, Dr. Lerner diagnosed pain in the lower joint. He noted
that appellant was six weeks post right knee lateral compartment unicondylar replacement and
had effusion again in the right knee.
In an August 20, 2015 decision, OWCP denied appellant’s claim for a recurrence of
disability beginning September 30, 2014. It noted that the evidence of record did not indicate
what occurred on September 30, 2014 that caused the claimed recurrent disability.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from a personal
injury sustained while in the performance of duty.5 Disability means the incapacity, because of
an employment injury, to earn the wages the employee was receiving at the time of injury. It
may be partial or total.6
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.7 An individual who claims a recurrence of disability resulting from an
accepted employment injury has the burden of establishing that the disability is related to the
accepted injury. This burden requires furnishing medical evidence from a physician who, on the
basis of a complete and accurate factual and medical history, concludes that the disabling
condition is causally related to the employment injury and who supports that conclusion with
sound medical reasoning.8 In this regard, medical evidence of bridging symptoms between the
5

5 U.S.C. § 8102(a).

6

20 C.F.R. § 10.5(f).

7

Id. at § 10.5(x).

8

Dennis E. Twardzik, 34 ECAB 536 (1983); Max Grossman, 8 ECAB 508 (1956).

3

recurrence and the accepted injury must support the physician’s conclusion of a causal
relationship.9 Where no such rationale is present, the medical evidence is of diminished
probative value.10
ANALYSIS
The Board finds that appellant has not established that he sustained a recurrence of
disability beginning September 30, 2014. OWCP accepted that appellant sustained a tear of the
lateral meniscus on the right and a partial tear of the anterior cruciate ligament. Before the
claimed recurrence of disability, appellant last received treatment for his condition in
August 2012. On January 22, 2015 he advised that appellant was struggling with the right knee
and requested authorization for arthroscopy of the right knee and lateral unicondylar
replacement, and a possible total knee replacement. In a March 12, 2015 report, the OWCP
medical adviser approved the request and the surgery occurred on May 12, 2015.
The Board finds that there is insufficient medical evidence of record to establish that his
claimed recurrent disability from September 30, 2014 to May 11, 2015 is causally related to his
work-related injury. Dr. Lerner advised, in his October 29, 2014 report, that appellant came to
see him about his left knee which was extremely painful. He explained that appellant “states that
he is been working as a driver for the post office, but can no longer be a letter carrier.
Dr. Lerner’s been out of work for the last three months because of a back problem.” The Board
notes that a back condition has not been accepted by OWCP and Dr. Lerner does not establish
disability causally related to his work-related right knee injury. On January 22, 2015 Dr. Lerner
advised that appellant was struggling with his right knee. He recommended surgery. While
OWCP later authorized the right-sided surgery, Dr. Lerner did not offer any opinion on
appellant’s ability to work prior to the surgery. Because this report does not specifically address
how appellant’s disability beginning September 30, 2014 is causally related to his accepted
conditions, it is of limited probative value and insufficient to establish a recurrence of disability
before May 12, 2015. Other reports from Dr. Lerner also do not specifically address the cause of
appellant’s disability from September 30, 2014 to May 11, 2015.
There are no other medical reports which offer an opinion on the cause of appellant’s
disability from September 30, 2014 to May 11, 2015. The Board has held that a medical report
without an opinion as to causal relationship is of little probative value.11 As a result, the medical
evidence of record is insufficient to discharge appellant’s burden of proof.
On appeal, appellant argues that he complained of both knees since the start of his workrelated injury. He explained that he requested authorization for his right knee in January 2015.
However, the authorization for surgery did not occur for many months, and it did not occur until
9

Rickey S. Storms, 52 ECAB 349 (2001). For the importance of bridging information in establishing a claim for
a recurrence of disability, see Robert H. St. Onge, 43 ECAB 1169 (1992).
10

Mary A. Ceglia, 55 ECAB 626 (2004).

11

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

4

May 12, 2015. Appellant argues that he was unable to work prior to the surgery because his hip
and back were bothering him. He indicated that those problems were related to his knee
problems. Appellant explains that it is was unsafe for him to continue to work, so he retired
early effective August 31, 2015.
He also notes that he had a hip replacement on
October 13, 2015. The Board notes, as found above, that the medical evidence of record does
not indicate that appellant was unable to work during the period for which he is requesting
compensation and his claim for such benefits is denied. Additionally, it appears he may be
requesting an expansion on his claim or a consequential condition stemming from the original
injury. The Board notes that appellant’s back and hip conditions were not accepted and
expansion of the claim is not presently before the Board.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish a recurrence
causally related to his September 1, 1997 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the August 20, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 1, 2016
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
__________________________________________
C.S., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
Chicago, Il, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 19-0421
Issued: August 1, 2019

Case Submitted on the Record

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

JURISDICTION
On December 19, 2018 appellant, through counsel, filed a timely appeal from a June 27,
2018 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.
ISSUE
The issue is whether appellant has met her burden of proof to establish a back injury
causally related to the accepted September 13, 2015 employment incident.

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.

FACTUAL HISTORY
On October 27, 2015 appellant, then a 30-year-old service representative, filed a traumatic
injury claim (Form CA-1) alleging that on September 13, 2015 she injured her back when a
coworker and her supervisor accidently struck her in the back with a table they were folding while
she was in the performance of duty. She also provided a narrative statement explaining that on
September 13, 2015 she refused medical treatment, took pain medication, and went to bed. On
September 14, 2015 appellant sought medical attention and her physician provided additional pain
medication. On September 15, 2015 she received an epidural steroid injection.
On October 29, 2015 appellant’s supervisor submitted a statement and confirmed that on
September 13, 2015 while an employee was attempting to close a table, part of the metal leg of the
table struck appellant in her back. He noted that it did not seem to be a heavy hit, but might have
been hard enough to cause a bruise. Appellant’s supervisor also noted that appellant had a
preexisting back condition that was causing her pain before the claimed. September 13, 2015
employment incident.
On October 29, 2015 appellant submitted a September 30, 2015 magnetic resonance
imaging (MRI) scan of her lumbar spine. This scan demonstrated degenerative lumbar
spondylosis, posterior annual tears of L3-4, L4-5, and L5-S1 discs, and at L2-3 mild left foraminal
stenosis. Appellant also provide screenshots of her texts with Dr. Mohammed A. Alawad, a
Board-certified internist, reporting that her back and leg pain were intolerable on
September 15, 2015. Dr. Alawad arranged for appellant to receive an injection. In a note dated
October 22, 2015, Dr. Keith L. Schaible, a Board-certified neurologist, diagnosed herniated disc
and indicated that appellant underwent surgery on October 12, 2015.
In a November 3, 2015 development letter, OWCP advised appellant of the deficiencies of
her claim. It requested additional factual and medical evidence from her. OWCP afforded
appellant 30 days to respond.
On November 11, 2015 Dr. Alawad noted appellant’s preexisting discogenic lower back
pain and referenced a July 18, 2015 MRI scan. He reported that she was able to function until she
was injured at work in September 2015 at which time she experienced severe lower back pain and
was referred to a neurosurgeon. Appellant underwent an additional MRI scan on September 30,
2015 which showed a new disc injury. Dr. Alawad reported that appellant’s examination on
September 14, 2015 showed severe lower extremity weakness and decreased sensation with
radiculopathy. He found that she continued to experience left foot drop and weakness in her left
lower extremities.
By decision dated December 15, 2015, OWCP denied appellant’s claim finding that she
had not established causal relationship between her claimed back conditions and the accepted
September 13, 2015 employment incident.
On January 14, 2016 appellant, through counsel, requested an oral hearing from an OWCP
hearing representative. Appellant attempted to call-in for the scheduled telephone hearing on
September 7, 2016, but there was a telephone connection problem and she agreed to convert the
oral hearing to a review of the written record.

2

Appellant submitted the July 18, 2015 lumbar MRI scan report which demonstrated
posterior annular tears at L2-3 and L3-4, disc bulges at L2-3, L3-4, L4-5, and L5-S1.
In a June 7, 2016 report, Dr. Alawad noted that appellant first reported low back pain in
June 2015, but that she continued to work until September 13, 2015 when she was struck in the
back by a table leg. Appellant experienced rapid deterioration on September 14, 2015 and
exhibited new symptoms including foot drop, lower extremity weakness, and decreased sensation
with radiculopathy. She underwent a second MRI scan on September 30, 2015 which
demonstrated progression with increase in the dimensions of the disc fragment extrusion and
increased spinal stenosis at L4-5 as well as the development of posterior annual tears of L4-5 and
L5-S1. Dr. Alawad concluded that appellant’s discogenic low back pain and radiculopathy was
aggravated by her September 13, 2015 work incident.
On June 21, 2016 appellant underwent electromyogram and nerve conduction velocity
(EMG/NCV) studies which demonstrated L5 radiculopathy on the left. She also provided her more
recent July 13, 2016 MRI scan.
By decision dated November 22, 2016, OWCP’s hearing representative set aside the
December 15, 2015 decision and remanded the case for further development of the medical
evidence by OWCP, including referral to a second opinion physician to be followed by a de novo
decision.
In a December 20, 2016 development letter, OWCP again advised appellant of the
deficiencies of her claim. It requested additional factual and medical evidence from her. OWCP
afforded appellant 30 days to respond.
On February 3, 2017 appellant submitted her medical records. On July 14, 2015
Dr. Alawad noted her continued reports of back pain as well as shooting pains down into her left
leg. He diagnosed discogenic low back pain. On August 24, 2015 appellant again reported back
pain radiating into her left leg. Dr. Alawad diagnosed spinal stenosis. He repeated this diagnosis
on September 8, 2015.
On September 10, 2015 Dr. Schaible noted that appellant’s two-year history of back pain
seemed to be progressing with bilateral leg pain and left lateral lower leg numbness. He reviewed
her MRI scan and found that she might be symptomatic from L4-5 disc protrusion. Dr. Schaible
suggested that surgery was an option.
In a note dated September 12, 2015, Dr. Alawad noted that appellant was reporting
increasing back pain and numbness beginning two days prior. He found that her reflexes were
normal, positive straight leg raising bilaterally, normal motor and sensory examination, and normal
gait. Dr. Alawad diagnosed spinal stenosis and lumbosacral radiculopathy. He completed a work
release note on September 15, 2015 and indicated that appellant was experiencing severe pain due
to a herniated disc.
On September 26, 2015 Dr. Alawad noted that appellant was experiencing severe pain and
scheduled for surgery on October 5, 2015. He noted that she was experiencing left leg numbness,
weakness, and tingling. Dr. Alawad diagnosed lumbosacral radiculopathy and bulging lumbar
disc. He reported that appellant’s sensory examination and her gait were normal. In a
September 28, 2015 note, Dr. Alawad reported that she had lifted her son and felt she pulled
3

something in her back. He found that appellant had left leg numbness and weakness. Dr. Alawad
found that she was walking with a noticeable limp. He diagnosed lumbar radiculopathy and leg
weakness. Dr. Alawad noted that she was scheduled for back surgery with Dr. Schaible on
October 12, 2015.
On October 29, 2015 Dr. Alawad examined appellant following her October 12, 2015
lumbar laminectomy and discectomy at L4-5 and L5-S1. Appellant described her September 13,
2015 employment incident when she was struck by a folding table as she was bending forward and
gathering some papers. Dr. Alawad noted that she had reported this incident to Dr. Schaible on
October 13, 2015 following her surgery. He found that appellant’s September 30, 2015 MRI scan
showed progression with increase in dimension of the disc fragment extrusion and increase in
spinal canal stenosis at L4-5 as well as development of posterior annular tear of L4-5 and L5-S1
which was not observed on the July 18, 2015 MRI scan.
In notes dated October 22, November 12, and December 17, 2015, Dr. Schaible reported
that appellant continued to experience symptoms of postoperative discomfort and foot drop.
On December 10, 2015, February 9, and March 8 and 17, 2016, Dr. Alawad examined
appellant due to back pain due to spinal stenosis and a September 2015 employment injury when
a folding table fell from another worker’s hand and hit her back. Appellant did not fall, but was
jolted forward. Since then she experienced pain with associated numbness in the left leg.
Dr. Alawad diagnosed lumbar radiculopathy, discogenic low back pain, status post lumbar
laminectomy, bilateral foot drop, and hypothyroidism.
On March 22, 2016 Dr. Schaible noted that appellant had degenerative changes at L2-3,
and L3-4 with postoperative changes at L4-5 and L5-S1. He found no need for further surgery.
In a note dated April 21, 2016, Dr. Alawad reported that appellant continued to experience
chronic back pain and numbness of the left lateral leg down to her toes. He diagnosed degenerative
lumbar disc, abnormal weight gain, and depression. On June 7, 2016 Dr. Alawad noted that
appellant received epidural steroid injections. In his November 22, 2016 note, he diagnosed low
back pain with acute worsening of a chronic condition.
On July 6, 2017 OWCP referred appellant, a statement of accepted facts (SOAF), and a
series of questions to Dr. Allan Brecher, a Board-certified orthopedic surgeon, for a second opinion
examination.
In his September 15, 2017 report, Dr. Brecher noted appellant’s history of injury including
preexisting back pain. He reviewed appellant’s diagnostic tests and medical records. Dr. Brecher
performed a physical examination and found positive straight leg raising on the left and left foot
drop. He reported global decreased sensation below the left knee. Dr. Brecher noted that appellant
did not report her work injury to her physicians until after her surgery. He found that appellant’s
physical findings changed between September 26 and 28, 2015 which appeared to be after she
picked up her son earlier in September 2015. Dr. Brecher opined that appellant’s September 13,
2015 employment incident had not caused or contributed to her back pain as her back condition
had worsened after lifting her son. He noted that appellant reported seeking medical attention two
days after her September 13, 2015 employment incident, but that there was no documentation of
this visit. Dr. Brecher found that Dr. Alawad’s notes did not support that the September 13, 2015

4

incident caused a change in appellant’s back condition and concluded that her back condition was
preexisting and was not caused or aggravated due to her accepted employment incident.
By decision dated January 11, 2018, OWCP denied appellant’s claim, finding that she had
not met her burden of proof to establish causal relationship between her diagnosed back conditions
and the accepted September 13, 2015 employment incident.
On February 7, 2018 appellant, through counsel, requested a review of the written record
by an OWCP hearing representative.
On October 7, 2016 Dr. Alawad reported that appellant began experiencing back pain on
June 15, 2015 and underwent a lumbar spine MRI scan on July 18, 2015 which demonstrated L5S1 compression of the nerve roots and mild stenosis. He noted that on September 13, 2015 she
was struck by a table at work and experienced deterioration in her back pain which prevented her
from functioning. Dr. Alawad reported that appellant underwent a second MRI scan on
September 30, 2015 which showed a significant new lesion, increased disc disease, ruptured discs,
and significant worsening of her spinal stenosis. He opined that these additional injuries were due
to her incident at work. Dr. Alawad concluded that when appellant was struck by the table at work
she sustained ruptured discs and muscle spasms which lead to worsening of disc disease which in
turn led to worsening of her spinal stenosis.
In a report dated February 5, 2017, Dr. Alawad noted that appellant sustained a back injury
at work on September 13, 2015 and was unable to tolerate physical therapy on
September 14, 2015. She underwent an urgent epidural injection to the lumbar spine on
September 15, 2015 with no improvement. Dr. Alawad reported that she was scheduled for back
surgery prior to September 28, 2015. He noted that appellant was functioning both at work and at
home until the September 13, 2015 employment incident. Dr. Alawad further noted that back
surgery was scheduled before she attempted to lift her child and that her MRI scan prior to
September 18, 2015 was positive for discogenic disc disease. He opined that attempting to lift her
child had not worsened or caused a disc injury.
On February 1, 2018 Dr. Alawad attributed appellant’s conditions of discogenic low back
pain, depression, left foot drop, and radicular pain to her September 13, 2015 employment incident.
He noted that she was struck in the back with a table. On September 14, 2015 Dr. Alawad was
able to secure an appointment in a pain clinic where appellant received an epidural injection. He
opined that she sustained an aggravation of her low back pain and radiculopathy secondary to the
September 13, 2015 employment incident.
By decision dated June 27, 2018, OWCP’s hearing representative3 found that Dr. Brecher’s
report was entitled to the weight of the medical evidence and that appellant had not established a
causal relationship between her September 13, 2015 employment incident and her ongoing back
conditions.

3
OWCP’s hearing representative noted that appellant had filed a separate occupational disease claim alleging
aggravation of her underlying back condition which was denied in OWCP File No. xxxxxx920.

5

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,4 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.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time and place, and in the manner alleged.
Second, is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.7 The evidence required to establish causal relationship is
rationalized medical opinion evidence, based upon complete factual and medical background,
showing a causal relationship between the claimed condition and the identified factors.8 The belief
of the claimant that a condition was caused or aggravated by the employment incident is
insufficient to establish a causal relationship.9
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence sufficient to establish such causal relationship.10 Rationalized medical opinion
evidence is generally required to establish causal relationship. The opinion of the physician must
be based on a complete factual and medical background, must be one of reasonable medical

4
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined, respectively).
8

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

9

See M.J., Docket No. 17-0725 (issued May 17, 2018); see also Lee R. Haywood, 48 ECAB 145 (1996); Kathryn
Haggerty, 45 ECAB 383, 389 (1994).
10

K.V., Docket No. 18-0723 (issued November 9, 2018).

6

certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.11
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.12
ANALYSIS
The Board finds this case not in posture for decision.
Appellant’s physician, Dr. Alawad, opined that appellant’s underlying back conditions
were aggravated by her accepted September 13, 2015 employment incident. In reports dated
February 5, 2017 and February 1, 2018, he noted that appellant was unable to tolerate physical
therapy on September 14, 2015. Dr. Alawad also reported that appellant underwent an urgent
epidural injection to the lumbar spine on September 15, 2015. These reports confirm appellant’s
narrative statement and the text messages appellant submitted regarding her medical treatment
immediately following the September 13, 2015 employment incident. Dr. Alawad also submitted
a series for reports from October 29, 2015 through February 1, 2018 supporting causal relationship
through an aggravation or acceleration of appellant’s underlying back condition by the
September 13, 2015 employment incident.
In his September 15, 2017 report, Dr. Brecher, OWCP’s second opinion physician, noted
that appellant alleged that she sought medical treatment two days after the September 13, 2015
employment incident, but that there was no documentation in the record supporting this statement.
He found that Dr. Alawad’s notes did not support that the claimed September 13, 2015
employment injury aggravated or accelerated her preexisting back condition. Dr. Brecher
attributed appellant’s additional back conditions as identified on the September 30, 2015 MRI scan
to her nonemployment-related lifting of her son between September 26 and 28, 2015. Based on
Dr. Brecher’s September 15, 2017 report, OWCP denied appellant’s traumatic injury claim.
The Board finds that Dr. Brecher’s September 15, 2017 report was not based on a proper
factual background. He based his conclusion that appellant’s underlying back condition was not
aggravated or accelerated by her September 13, 2015 employment incident, in part, on his finding
that there was no medical evidence supporting that she sought medical treatment immediately
following this injury. As noted above, Dr. Alawad’s February 5, 2017 and February 1, 2018
reports indicate that appellant did in fact require and receive additional medical treatment in the
form of an epidural steroid injection within two days of the accepted employment incident on
September 13, 2015. When a second opinion physical renders a medical opinion based on an

11

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 45 ECAB 345(1989).

12
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
D.S., Docket No. 17-1359 (issued May 3, 2019).

7

incomplete or inaccurate review of the facts, the probative value of the opinion is diminished or
negated altogether.13
Once OWCP undertakes development of the medical evidence it has the responsibility to
do so in a manner that will resolve the relevant issues in the case.14 Accordingly, the Board finds
that the case must be remanded to OWCP. On remand, OWCP should provide Dr. Brecher with
Dr. Alawad’s additional reports and request that he provide a supplemental report with a
rationalized opinion with regard to whether appellant’s accepted September 13, 2015 employment
incident contributed to her underlying preexisting back condition through acceleration or
aggravation. Following this and any other such further development as deemed necessary, OWCP
shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the June 27, 2018 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further action consistent with
this opinion of the Board.
Issued: August 1, 2019
Washington, DC

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

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

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

13

See K.S., Docket No. 18-0845 (issued October 26, 2018); R.B., Docket No. 14-1043 (issued December 12, 2014);
V.H., Docket No. 14-0433 (issued July 3, 2014).
14

See M.C., Docket No. 09-1880 (issued June 21, 2010); George Tseko, 40 ECAB 948 (1989).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Arlington, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 15-1267
Issued: September 2, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 20, 2015 appellant filed a timely appeal from a February 18, 2015 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 appellant met his burden of proof to establish that his right knee
condition was causally related to the accepted July 10, 2014 employment incident.
FACTUAL HISTORY
On July 30, 2014 appellant, then a 69-year-old transportation security specialist, filed a
traumatic injury claim alleging that on July 10, 2014 he bruised his left arm and sprained his
1

5 U.S.C. § 8101 et seq.

right knee when he fell from atop a desk while closing air conditioning vents. He did not stop
work.
Appellant submitted a medical reimbursement claim form in the total amount of
$1,344.25. He also provided various invoices for medication, x-ray testing, and medical
examinations and copies of the currency conversion between Singapore and U.S. dollars.
In an August 22, 2014 report, Dr. Kevin Yip, an orthopedic surgeon, stated that appellant
had cartilage damage to his right knee. He indicated that he gave appellant an injection and
prescribed celebrex.
On January 4, 2015 appellant faxed a statement to OWCP. He reported that his injury
had not improved and that the pain was fairly constant. Appellant stated that his doctor
recommended a partial knee replacement, but he needed a magnetic resonance imaging scan
before proceeding with any surgery. He explained that he was able to work, but had been
working with pain since July 2014. Appellant noted that he was including a doctor’s statement
and copies of two x-rays.
In a November 26, 2014 report, Dr. Yung W.Y. Ambrose, an orthopedist specializing in
knee replacement surgery, examined appellant for persistent right knee pain. He reported that
clinical examination and x-ray of appellant’s right knee suggested that he suffered from right
knee medial compartment grade 4 osteoarthritis. Dr. Ambrose stated that although appellant
received conservative medical treatment he had progressively severe knee pain symptoms. He
recommended that appellant undergo right knee replacement surgery. Dr. Ambrose provided
copies of x-rays of appellant’s right knee.
By letter dated January 6, 2015, OWCP advised appellant that the evidence submitted
was insufficient to establish his traumatic injury claim. It requested additional medical evidence
that explained how his right knee condition was causally related to the July 10, 2014
employment incident.
On January 7, 2015 appellant submitted a January 7, 2015 report by Dr. Ambrose who
noted that he had treated appellant for his right knee problem since his July 10, 2014
employment injury when he fell in his office. Dr. Ambrose reported that clinical examination
and x-ray of the right knee showed that appellant suffered from an acute right knee chondral
injury with background of medial compartment osteoarthritis. He stated that conservative
management and physical therapy had been used for the past five months, but appellant’s
symptoms and disability persisted. Dr. Ambrose noted that appellant was asymptomatic in his
right knee before the July 10, 2014 injury. He opined that appellant “acutely injured his right
knee cartilage during the fall.” Dr. Ambrose stated that he had discussed surgical management
options with appellant and reported that unincompartmental knee replacement was a better
option for appellant.
In a January 23, 2015 statement, appellant explained that on July 10, 2014 at
approximately 1500 hours he adjusted the air-conditioning vent above his desk cubical by
climbing onto the desk. He slipped on the desk top and fell, landing on the concrete floor.
Appellant stated that he struck his left arm, causing pain and bruising and sprained his right knee,

2

causing pain, swelling, and bruising. When the knee pain and swelling continued, he made an
appointment with an orthopedic clinic. Appellant reported that prior to the accident he did not
have any pain or swelling of the knee or difficulties walking. He noted that the incident was
witnessed by a Transportation Security Specialist and reported to his supervisor and manager.
Appellant stated that on July 30, 2014 he prepared the Form CA-1, TSA First Notice of Injury
Call-In Sheet, TSA Form 1178, and TSA Form 2401 as required by TSA.
By decision dated February 18, 2015, OWCP denied appellant’s traumatic injury claim.
It accepted that the July 10, 2014 employment incident occurred as alleged and that he sustained
a diagnosed right knee condition, but denied the claim finding insufficient medical evidence to
demonstrate that his right knee condition was causally related to the accepted incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence3 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether “fact of injury” has been established.5
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place, and in the manner alleged.6 Second, the employee must submit evidence,
generally only in the form of probative medical evidence, to establish that the employment
incident caused a personal injury.7 An employee may establish that the employment incident
occurred as alleged, but fail to show that his or her disability or condition relates to the
employment incident.8
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence.9 The opinion of the physician must be
based on a complete factual and medical background of the employee, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
2

5 U.S.C. §§ 8101-8193.

3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

4

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

6

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

7

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

8

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

9

See J.Z., 58 ECAB 529 (2007); Paul E. Thams, 56 ECAB 503 (2005).

3

relationship between the diagnosed condition and the specific employment factors identified by
the employee.10 The weight of the medical evidence is determined by its reliability, its probative
value, its convincing quality, the care of analysis manifested, and the medical rationale expressed
in support of the physician’s opinion.11
ANALYSIS
Appellant alleged that on July 10, 2014 he sustained a left arm and right knee injury
when he fell off his desk in the performance of duty.12 OWCP accepted that the incident
occurred as alleged and that he had been diagnosed with a right knee chondral injury. It denied
appellant’s traumatic injury claim finding insufficient medical evidence to establish that his right
knee condition was causally related to the accepted incident. The Board finds that he did not
meet his burden of proof to demonstrate that his right knee condition resulted from the July 10,
2014 employment incident.
In support of his claim, appellant submitted reports from Dr. Ambrose dated
November 26, 2014 and January 7, 2015, which discussed his right knee condition. Dr. Ambrose
noted that he had treated appellant for a right knee problem since a July 10, 2014 employment
injury when he fell down in his office. He reported that clinical examination and x-ray of the
right knee showed that appellant suffered from an acute right knee chondral injury with
background of medial compartment osteoarthritis. Dr. Ambrose stated that appellant received
conservative management and physical therapy treatment, but his symptoms persisted. He
recommended that appellant undergo right knee unincompartmental replacement surgery and
provided copies of x-rays of appellant’s right knee. Dr. Ambrose noted that appellant was
asymptomatic in his right knee before the July 10, 2014 injury. He opined that appellant
“acutely injured his right knee cartilage during the fall.”
Dr. Ambrose accurately described the July 10, 2014 employment incident, provided
findings on examination, and diagnosed a right knee chondral injury with osteoarthritis. The
Board finds that he did not provide sufficient medical rationale explaining how appellant’s fall at
work caused or contributed to his right knee condition.13 The only explanation provided was that
appellant was asymptomatic before the July 10, 2014 fall at work. The Board has held that an
opinion that a condition is causally related because the employee was asymptomatic before the
injury is insufficient, without sufficient rationale, to establish causal relationship.14 Accordingly,
Dr. Ambrose’s reports are insufficient to establish appellant’s claim.

10

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

11

James Mack, 43 ECAB 321 (1991).

12

The Board notes that appellant did not submit any medical evidence pertaining to his left arm.

13

Medical evidence that states a conclusion but does not offer any rationalized medical explanation regarding the
cause of an employee’s condition is of limited probative value on the issue of causal relationship. See J.F., Docket
No. 09-1061 (issued November 17, 2009); A.D., 58 ECAB 149 (2006).
14

T.M., Docket No. 08-975 (issued February 6, 2009); Michael S. Mina, 57 ECAB 379 (2006).

4

Appellant also received treatment from Dr. Yip, who in an August 22, 2014 report, stated
that appellant had cartilage damage to his right knee. Dr. Yip indicated that he gave appellant an
injection and prescribed celebrex. The Board notes that, although he provided a right knee
diagnosis, he does not provide any opinion on the cause of appellant’s right knee injury. The
Board has held that 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.15
Dr. Yip’s report, therefore, is insufficient to establish causal relationship.
On appeal appellant submitted a copy of the February 18, 2015 OWCP denial decision
and highlighted the portion regarding Dr. Ambrose’s January 7, 2015 medical report. The Board
finds that this evidence is insufficient to establish appellant’s traumatic injury claim. As
explained above, Dr. Ambrose’s June 7, 2015 report is insufficient to establish appellant’s
traumatic injury 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 did not meet his burden of proof to establish that his right
knee condition was causally related to the July 10, 2014 employment incident.

15

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
supra note 13.

5

ORDER
IT IS HEREBY ORDERED THAT the February 18, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 2, 2015
Washington, DC

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

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

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

6