United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
DEPARTMENT OF THE AIR FORCE,
WRIGHT PATTERSON AIR FORCE BASE,
Dayton, OH, Employer
__________________________________________

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

Docket No. 10-612
Issued: November 30, 2010

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 January 4, 2010 appellant filed a timely appeal from July 7 and December 9, 2009
merit decisions of the Office of Workers’ Compensation Programs denying his recurrence claim.
Pursuant to 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 that he sustained a recurrence of disability on
or after April 20, 2009.
FACTUAL HISTORY
On April 4, 2008 appellant, then a 54-year-old gardener, filed a traumatic injury claim
alleging that he sustained a back injury in the performance of duty while lifting wet sod. The

Office accepted his claim for thoracic strain.1 Appellant missed work due to the accepted injury
from April 4 through 6, 2008. He returned to full, unrestricted duty on April 7, 2008 and began
working in a full-time, limited-duty capacity in March 2009.
Appellant stopped work on April 20, 2009. He submitted a claim for wage-loss
compensation alleging total disability commencing April 20, 2009 due to severe low back and
radicular pain to his legs.
Appellant submitted a March 5, 2009 fitness examination report from Dr. Jon Jacobson,
an employing establishment physician Board-certified in the field of occupational medicine.
Dr. Jacobson noted that appellant would be off duty until April 20, 2009 due to upcoming carpal
tunnel surgery, which was scheduled for March 10, 2009. Continued use of narcotics for lower
back pain would continue to result in restrictions from driving and operating machinery.
In an April 15, 2009 report, Dr. Risa Spieldoch, a Board-certified family practitioner,
noted that she had been treating appellant for several years for debilitating lower back and
radicular pain associated with a 1992 military injury and a 1999 work injury. She stated that
appellant’s pain had become more severe since he underwent a physical therapy session two
weeks’ prior. Noting that appellant required sedation to address the pain, Dr. Spieldoch
restricted him from driving and recommended that he be “off work” until evaluated by a
workers’ compensation physician.
On April 15, 2009 Dr. Paul Simon, a treating physician, diagnosed degenerative joint
disease, with associated lower back pain. He recommended that appellant be restricted from
lifting, pushing or pulling more than 10 pounds, or sitting or standing for more than two hours at
a time.
On April 20, 2009 Dr. S.L. Patwa, an employing establishment physician, stated that
appellant was “not cleared for duty” until evaluated by a workers’ compensation physician. In
an undated note, Shanthl Venkat, a physical therapist, advised that appellant had disc and facet
changes with potentially significant encroachment of the left neural foramen at L5-S1. The
record contains a report of a March 23, 2009 magnetic resonance imaging (MRI) scan.
In a letter dated May 12, 2009, the Office informed appellant that the evidence and
information submitted was insufficient to establish his claim. Appellant was advised to submit a
medical report with a diagnosis and opinion explaining how his claimed disabling condition was
causally related to the accepted injury.
In a March 2, 2009 note, Dr. Spieldoch recommended continued light duty through
April 27, 2009.
In a March 5, 2009 return-to-duty report, Dr. Jacobson stated
that appellant’s April 1, 2008 injury was not work related and recommended restrictions
regarding driving and the use of power tools.

1

Appellant’s claim was originally accepted administratively as “quick close case” and treated as a minor injury
with no time lost from work. Conservative medical care and treatment was approved up to $1,500.00. The filing of
appellant’s claim for lost wages prompted formal adjudication of the claim.

2

Appellant submitted a June 9, 2009 report from Dr. Kedar Deshpande, a Board-certified
physiatrist, who provided a history of the April 1, 2008 lifting injury and noted appellant’s
complaints of constant lower back pain. Examination of the lumbar spine revealed tenderness
around the right L5 facet distribution and right S1 facet distribution. Extension was decreased
and with pain; flexion was decreased and SLR was positive for leg pain on the right side. Deep
tendon reflexes were symmetrical. Strength was normal. There were no focal sensory deficits.
An MRI scan of the lumbar spine revealed potentially significant encroachment of the left neural
foramen at L5-S1. Dr. Deshpande found that appellant had a combination of facetogenic pain
and symptoms of radiculopathy. He opined that appellant’s claim should be accepted for facet
arthropathy. Dr. Deshpande stated:
“[Appellant] did not have pain prior to his injury. In addition he also has
symptoms of radiculopathy and this now goes beyond a simple sprain strain.”
Appellant submitted reports from Dr. Ronald Lakatos, a Board-certified orthopedic
surgeon, for the period May 4 through June 22, 2009. Dr. Lakatos stated that appellant’s lower
back pain was worsening with any kind of mechanical activities especially bending, lifting and
twisting. He noted that appellant had recently been through physical therapy, which “if anything
aggravated his symptoms and did not tend to improve it.” Examination of the cervical spine
revealed good range of motion, with no significant symptoms at endpoints. Tinel’s examination
was positive. Pain was present at the low lumbar and lumbosacral region, with no spasm.
Forward flexion was around 40 to 45 degrees. There was no clonus noted and no lack of
sensation. A March 23, 2009 MRI scan revealed normal lordotic position of the spine; some low
grade facet arthropathy involving the lower levels; and some foraminal narrowing bilaterally, left
greater than right at L5-S1 causing foraminal stenosis. The L5-Sl disc has loss of disc space
height and some signal intensity. Dr. Lakatos diagnosed “chronic low back pain with what
sounds like intermittent radicular symptoms, some foraminal stenosis bilaterally at L5-S1, also
status post prior bypass operation with successful amount of weight loss and carpal tunnel
symptoms as stated.” In May 4 and 26, 2009 disability slips, Dr. Lakatos advised that appellant
would be able to return to work on June 3, 2009.
On June 15, 2009 Dr. Lakatos reviewed the April 1, 2008 lifting injury as reported by
appellant, noting that his lower back pain had worsened with mechanical activities. He reviewed
appellant’s position description, which included tasks such as stooping, bending, reaching and
lifting up to 80 pounds, and noted appellant’s feeling that he was unable to perform the duties of
the job. Dr. Lakatos stated that restrictions were appropriate, as well as “possibly” consideration
for part-time or off-duty status until symptoms improved. He opined that relative to the dates of
total or partial disability, based on the information provided, this would extend from April 20,
2009 to the present. Dr. Lakatos stated:
“It is my understanding that these symptoms are similar to the symptoms that began
on April 2008, with a definite occurring on April 20, 2009. That is the same type of
symptom pattern but more intense. It is well known that continued mechanical
activities including bending, lifting, twisting can reaggravate the type of
symptomatology which [appellant] had previously had and this is not uncommon
with spinal conditions, which were seen on his MRI scan that is disc degeneration

3

and associated foraminal stenosis, and it is my opinion that is what has occurred with
[appellant] and his current situation.”
Dr. Lakatos concluded that, in addition to foraminal stenosis and disc degeneration at L5S1, diagnoses of spinal stenosis with sciatica, lumbar disc degeneration and lumbosacral
radiculitis were appropriate. In a June 22, 2009 letter, he reiterated that appellant had been
totally disabled since April 20, 2009.
By decision dated June 7, 2009, the Office denied appellant’s claim for wage-loss
compensation beginning April 20, 2009. It found that he had not submitted sufficient medical
evidence to establish a causal relationship between his current disability and the accepted
April 1, 2008 injury.
On July 20, 2009 appellant requested a telephonic hearing.
Appellant submitted reports from Dr. Jacobson for the period May 5 through
October 26, 2009. Dr. Jacobson related appellant’s report of a herniated disc at L5-S1 and that
he was not cleared to return to work until June 3, 2009. On July 27, 2009 he advised appellant
that the Office would likely deny his claim because there was no medical evidence establishing a
causal connection between his diagnosed herniated disc and degenerative joint disease and the
April 1, 2008 injury. In August 28, September 25 and October 26, 2009 reports of follow-up
visits, Dr. Jacobson indicated that appellant could continue to work with restrictions.
In a July 21, 2009 report, Dr. Spieldoch noted that she had been treating appellant for
over 12 years for numerous conditions, including depression. Performing even simple tasks,
such as mowing his yard, significantly worsened appellant’s low back pain.
Appellant submitted additional reports from Dr. Deshpande.
On July 9, 2009
Dr. Deshpande recommended that appellant’s claim be accepted for lumbosacral spondylosis and
lumbar degenerative disc disease. He opined that they were causally related to the April 1, 2008
injury. Physical examination revealed tenderness around the L5 and S1 facet distribution.
Extension was decreased and with pain and flexion was decreased. A March 23, 2009 MRI scan
revealed multiple levels of facet joint changes and disc changes. On July 29, 2009
Dr. Deshpande diagnosed a combination of facetogenic pain and symptoms of radiculopathy.
Results of an EMG study revealed mild neurogenic changes in lower lumbar paraspinal muscles
in the L5-S1 region. On July 31, 2009 Dr. Deshpande related appellant’s continued complaints
of low back pain radiating into his lower extremities. A July 9, 2009 EMG showed bilateral L5S1 radiculopathy, which he opined was causally related to the accepted work injury. On
August 26 and October 22, 2009 Dr. Deshpande administered bilateral facet joint injections.
Appellant provided back-to-work releases from Dr. Lakatos dated July 23, August 21 and
September 24, 2009. On November 30, 2009 Dr. Lakatos reiterated his diagnosis of disc
degeneration at L5-S1. Examination revealed tenderness to palpation in the lower lumbar spine,
with some slight giveaway in the right leg on ratchety with knee extension. Dr. Lakatos
recommended permanent restrictions.
Appellant submitted a July 6, 2009 report from Dr. Clay Baldwin, Board-certified in
occupational medicine. Referring to the April 1, 2008 work injury, Dr. Baldwin stated that
4

appellant was not cleared for duty until July 31, 2009 and diagnosed lower back pain with
radiculopathy. He noted, however, that the radicular symptoms were predominately on the right,
which did not correspond with MRI scan findings. Dr. Baldwin opined that appellant’s
symptoms seemed out of proportion to results of testing.
On September 25, 2009 Michelle Bester, a certified nurse practitioner, diagnosed a
combination of facetogenic pain with radiculopathy. The record contains an October 23, 2009
work excuse from the administrative coordinator for Dr. Deshpande.
In the October 6, 2009 telephonic hearing, appellant testified that he never healed after
the April 1, 2008 injury, even though he returned to light duty. He stopped work on April 20,
2009 due to debilitating back pain.
By decision dated December 9, 2009, an Office hearing representative affirmed the
July 7, 2009 decision. He found that the medical evidence was insufficient to establish a
recurrence of disability causally related to appellant’s accepted injury.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.2
Office procedures state that a recurrence of disability includes a work stoppage caused by
a spontaneous material change, demonstrated by objective findings, in the medical condition that
resulted from a previous injury or occupational illness without an intervening injury or new
exposure to factors causing the original illness. It does not include a condition that results from a
new injury, even if it involves the same part of the body previously injured.3
When an employee, who is disabled from the job he held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence of record
establishes that he can perform the light-duty position, the employee has the burden to establish
by the weight of the reliable, probative and substantial evidence a recurrence of total disability
and show that he cannot perform such light duty. As part of this burden, the employee must
show a change in the nature and extent of the injury-related condition or a change in the nature
and extent of the light-duty requirements.4
Appellant has the burden of establishing by the weight of the substantial, reliable and
probative evidence a causal relationship between his recurrence of disability and his employment
2

20 C.F.R. § 10.5(x); see S.F., 59 ECAB 525 (2008). See 20 C.F.R. § 10.5(y) (defines recurrence of a medical
condition as a documented need for medical treatment after release from treatment for the accepted condition).
3

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(b) (May 1997).
Kenneth R. Love, 50 ECAB 193, 199 (1998).
4

Terry R. Hedman, 38 ECAB 222 (1986).

5

injury.5 This burden includes the necessity of furnishing evidence from a qualified physician
who, on the basis of a complete and accurate factual and medical history, concludes that the
condition is causally related to the employment injury.6 The physician’s conclusion must be
supported by sound medical reasoning.7
ANALYSIS
The Office accepted that appellant sustained a thoracic strain on April 1, 2008 in the
performance of duty. The record reflects that he returned to full-time work in April 7, 2008, and
began working in a full-time, limited-duty capacity in March 2009. The issue is whether
appellant has established that he sustained a recurrence of disability on or after April 20, 2009
causally related to his accepted injury.
The evidence of record fails to establish that appellant sustained a recurrence of
disability. As noted, 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 resulting from a
previous injury or illness without a new or intervening injury.8 Appellant submitted no
rationalized medical evidence supporting that he experienced a spontaneous change in his
medical condition due to the accepted injury. Rather, he reported to the Office and to his
physicians that his pain was exacerbated by a physical therapy session in early April 2009,
immediately prior to his alleged date of disability. Dr. Lakatos opined that continued mechanical
job activities, including bending, lifting, twisting, reaggravated appellant’s spinal condition,
resulting in disc degeneration and associated foraminal stenosis. The Board finds that
appellant’s claim does not meet the definition of a recurrence of disability.9
Appellant did not allege that his light-duty job requirements changed or that his position
was withdrawn. Rather he contended that his accepted condition worsened such that he was
unable to perform the duties of his position. The medical evidence of record, however, fails to
establish that appellant’s claimed disabling condition was causally related to the employment
injury.10
On May 4, 2009 Dr. Lakatos provided examination findings and diagnosed chronic low
back pain with intermittent radicular symptoms, foraminal stenosis bilaterally at L5-S1. He
reviewed a report of a March 23, 2009 MRI scan, which revealed normal lordotic position of the
spine; some low grade facet arthropathy involving the lower levels and some foraminal
narrowing bilaterally, left greater than right at L5-S1 causing foraminal stenosis. Dr. Lakatos did
not, however, express an opinion as to the cause of appellant’s radicular condition. Medical
5

Carmen Gould, 50 ECAB 504 (1999); Lourdes Davila, 45 ECAB 139 (1993).

6

S.S., 59 ECAB 315 (2008).

7

Alfredo Rodriguez, 47 ECAB 437 (1996); Louise G. Malloy, 45 ECAB 613 (1994).

8

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

9

See Bryant F. Blackmon, 56 ECAB 752 (2005).

10

S.S., supra note 6.

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evidence which does not offer an opinion regarding the cause of an employee’s condition is of
limited probative value on the issue of causal relationship.11 Dr. Lakatos did not address how the
newly diagnosed facet arthropathy and foraminal stenosis conditions were causally related to the
accepted thoracic strain. The medical record notes a history of low back and radicular symptoms
back to 1992 associated with a military service injury. Dr. Lakatos did not address the relevance
of appellant’s preexisting low back condition to the 2008 injury.
On June 15, 2009 Dr. Lakatos noted a similarity between the symptoms appellant
experienced following the April 1, 2008 injury and his current symptoms. In addition to
foraminal stenosis and disc degeneration at L5-S1, he diagnosed spinal stenosis with sciatica,
lumbar disc degeneration and lumbosacral radiculitis. Dr. Lakatos did not, however, explain
how these conditions were related to the April 1, 2008 incident. Rather, he attributed them to
continued mechanical activities including bending, lifting and twisting. Dr. Lakatos’ opinion
implicates that appellant’s claimed disability was not a spontaneous occurrence, but was due to a
new injury or occupational exposures.
On June 22, 2009 Dr. Lakatos stated that he had been totally disabled since April 20,
2009 and estimated that he would continue to be disabled through August 31, 2009. Reports
through November 30, 2009 reflect his opinion that appellant was at least partially disabled due
to his diagnosed back condition. None of these reports, however, contains an explanation as to
how appellant’s current condition was causally related to the accepted injury. Therefore, they
are of limited probative value and insufficient to establish his claim.
On June 9, 2009 Dr. Deshpande provided a history of injury and treatment, as well as
examination findings. He found that appellant had a combination of facetogenic pain and
symptoms of radiculopathy and opined that his claim should be expanded to include an
additional diagnosis of facet arthropathy on the grounds that he had no pain prior to his injury
and his current symptoms of radiculopathy “now goes beyond a simple sprain strain.”
Dr. Deshpande’s report, however, does not explain the development of appellant’s current
condition or how it is related to the accepted injury. The mere fact that the newly diagnosed
conditions manifested themselves subsequent to appellant’s return to work is insufficient to
establish a causal relationship.12 On July 31, 2009 Dr. Deshpande opined that appellant’s
bilateral L5-S1 radiculopathy was causally related to the accepted work injury. Neither this, nor
any other report from him, contains medical reasoning explaining the relationship. Medical
conclusions unsupported by rationale are of limited probative value.13
Dr. Spieldoch’s reports were devoid of an opinion on the cause of appellant’s current
condition. Therefore, they are of limited probative value. Moreover, Dr. Spieldoch’s April 15,
2009 report reflects that appellant’s back pain increased significantly after undergoing a physical
therapy session two weeks earlier, and that simple tasks, such as mowing his yard, significantly
worsened his low back pain. Her conclusion that physical tasks worsened the back pain suggests
11

A.D., 58 ECAB 149 (2006); Michael E. Smith, 50 ECAB 313 (1999).

12

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

13

Willa M. Frazier, 55 ECAB 379 (2004).

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that appellant’s current condition is due to an intervening, rather than to a spontaneous
occurrence related to the April 1, 2008 incident.
Dr. Jacobson’s reports, which reflect visits performed “for administrative purposes,” do
not support a causal relationship between appellant’s current condition and the accepted injury.
On March 5, 2009 he indicated that appellant’s April 1, 2008 injury was not work related. On
July 27, 2009 Dr. Jacobson advised appellant that the Office would likely deny his claim because
there was no medical evidence establishing a causal connection between his diagnosed herniated
disc and degenerative joint disease and the accepted injury. As none of his reports contain an
opinion as to the cause of appellant’s diagnosed conditions, they are of limited probative value.
The remaining medical evidence of record is insufficient to establish appellant’s claim.
Reports from Dr. Simon, Dr. Baldwin and Dr. Patwa lack an opinion on causal relationship.
Therefore, they are of limited probative value. Appellant submitted reports signed by physical
therapists, certified nurse practitioners and administrative coordinators. As these reports were
not signed by individuals that qualify as physicians under the Act, the Board finds that they do
not constitute probative medical evidence.14 Reports of EMGs, MRI scans and other diagnostic
test results which do not contain an opinion on causal relationship are also of limited probative
value.
Appellant did not submit any medical reports from a physician who, on the basis of a
complete and accurate factual and medical history, concluded that he was totally disabled as of
April 20, 2009 due to residuals of his accepted injury. He has failed to establish by the weight of
the reliable, probative and substantial evidence, a change in the nature and extent of the injuryrelated condition resulting in his inability to perform the duties of his modified employment. As
appellant has not submitted any medical evidence showing that he sustained a recurrence of
disability due to his accepted employment injury, the Board finds that he has not met his burden
of proof.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish a recurrence
of disability on or after April 20, 2009.

14

A medical report may not be considered as probative medical evidence if there is no indication that the person
completing the report qualifies as “physician” as defined in 5 U.S.C. § 8101(2). Section 8101(2) of the Act provides
as follows: “(2) ‘physician’ includes surgeons, podiatrists, dentists, clinical psychologists, optometrists,
chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.” See
Merton J. Sills, 39 ECAB 572, 575 (1988).

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ORDER
IT IS HEREBY ORDERED THAT the December 9 and July 7, 2009 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: November 30, 2010
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.D., Appellant
and
U.S. POSTAL SERVICE, Mobile, AL, Employer
__________________________________________

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

Docket No. 08-1007
Issued: August 14, 2008

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 February 19, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated December 31, 2007 which denied his traumatic
injury claim.1 Pursuant to 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 sustained a traumatic injury in the performance of duty.
FACTUAL HISTORY
On November 13, 2007 appellant, then a 44-year-old electronic technician, filed a
traumatic injury claim alleging that on November 11, 2007 a fan became jammed between the
door and his left leg causing his knee to twist.

1

The record includes medical evidence received after the Office issued the December 31, 2007 decision. The
Board cannot consider new evidence for the first time on appeal. 20 C.F.R. § 501.2(c) (2004).

In a November 26, 2007 letter, the Office requested additional information from appellant
including a statement from anyone who witnessed appellant’s injury and a detailed narrative
medical report explaining how the reported work incident caused appellant’s injury.
In a November 14, 2007 report, appellant’s supervisor included a description of the
accident stating that appellant was returning a portable fan to the maintenance office when the
base of the fan got jammed between the office door and his left knee causing his left knee to
twist.
In a December 7, 2007 letter, Juanita Westry stated that she was the acting MDO when
appellant reported that he had injured himself on the job.
In a December 5, 2007 note, Dr. Ronald W. Perdue, Board-certified in family medicine,
diagnosed a left knee strain, checked “yes” next to the job-related line and stated that appellant
could return to full duty with no restrictions.
In a December 20, 2007 statement, appellant explained that he did not go to the doctor
the night of the accident because the pain lessened and went away until a couple of weeks later
when he had stiffness in the knee and surrounding area.
On December 13, 2007 the Office denied appellant’s claim finding that the evidence was
insufficient to establish that the events occurred as alleged and that there was no medical
evidence of a diagnosis connected to the claimed event.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 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 the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that an injury was
sustained in the performance of duty as alleged and that any disability and/or specific condition,
for which compensation is claimed are causally related to the employment injury.3 These are the
essential elements of each and every compensation claim regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.4
In order to determine whether 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.5 The second
2

5 U.S.C. §§ 8101-8193.

3

Elaine Pendleton, 40 ECAB 1143 (1989).

4

Victor J. Woodhams, 41 ECAB 345 (1989).

5

Elaine Pendleton, supra note 3.

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component is whether the employment incident caused a personal injury.6 Causal relationship is
a medical question that can generally be resolved only by rationalized medical opinion
evidence.7
ANALYSIS
Appellant alleged that he sustained a left knee condition when he twisted his knee as a
result of it being jammed between an office door and a fan. The Office denied that the event
occurred as alleged. An employee’s statement that an injury occurred at a given time and in a
given manner is of great probative value and will stand unless refuted by strong or persuasive
evidence.8 Appellant’s statement is not refuted. His statements are consistent. Additionally,
appellant’s supervisor provided the same description of the incident. As such, the Board finds
that the incident occurred as alleged. The question for determination is whether this incident
caused an injury.
In order to establish that the employment incident caused an injury appellant must
establish through medical evidence that he has a diagnosed condition causally related to the
incident. Appellant submitted a note from Dr. Perdue who diagnosed left knee strain and
checked “yes” next to the job-related line. The Board has held that prescription notes or form
reports that provide a check mark in support of causal relation are of diminished probative
value.9 Dr. Perdue’s note is the extent of the medical evidence. While it indicates a diagnosis of
left knee strain, it does not establish that the left knee strain was causally related to the
November 11, 2007 incident. To establish causal relationship, appellant must submit a
physician’s report in which the physician reviews the employment factors identified by appellant
as causing his condition and, taking these factors into consideration as well as findings upon
examination, state whether the employment injury caused or aggravated the diagnosed conditions
and present medical rationale in support of his or her opinion.10 No physician opinions were
submitted. The Board finds that appellant has not met his burden to establish that his left knee
strain was causally related to the accepted employment incident.
CONCLUSION
The Board finds that appellant has not established that he sustained a traumatic injury in
the performance of duty.

6

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

7

See Robert G. Morris, 48 ECAB 238 (1996). A physician’s opinion on the issue of causal relationship must be
based on a complete factual and medical background of the claimant. Victor J. Woodhams, 41 ECAB 345,
352 (1989). Additionally, in order to be considered rationalized, the 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 claimant’s specific employment factors. Id.
8

Gregory J. Reser, 57 ECAB 277 (2005); Virgil F. Clark, 40 ECAB 575 (1989);

9

See Cecelia M. Corley, 56 ECAB 662 (2005); Donald W. Long, 41 ECAB 142 (1989).

10

D.D., 57 ECAB 734 (2006); Calvin E. King, 51 ECAB 394 (2000).

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ORDER
IT IS HEREBY ORDERED THAT the December 31, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: August 14, 2008
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New York, NY, Employer
__________________________________________

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

Docket No. 19-0460
Issued: May 18, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On December 27, 2018 appellant, through counsel, filed a timely appeal from a
November 21, 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.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that following the November 21, 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 has met her burden of proof to establish a right knee
condition causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On March 30, 2016 appellant, then a 30-year-old city carrier associate, filed an
occupational disease claim (Form CA-2) alleging that she developed a right knee condition due to
factors of her federal employment including prolonged repetitive use of her knee. She noted that
she first became aware of her condition on November 5, 2014 and realized it was causally related
to her federal employment on January 2, 2015. Appellant stopped work on January 20, 2016.
In a certificate of health care provider form dated March 21, 2016, Dr. Jill Groves, Boardcertified in family practice, noted that appellant’s job required heavy lifting, extensive walking,
and delivering parcels. She indicated that her right knee condition had begun in November 2014
and since that time she had experienced flare-ups and was unable to walk long distances, lift heavy
objects, bend, or stand for prolonged periods of time.
In an August 4, 2016 development letter, OWCP advised appellant of the deficiencies of
her claim. It requested that she submit additional factual and medical evidence, including a
reasoned report from her physician addressing causal relationship between a diagnosed medical
condition and the identified work factors. OWCP further provided a questionnaire for her
completion to substantiate the factual allegations of her claim. It afforded her 30 days to submit
the necessary evidence.
Subsequently, OWCP received a June 10, 2015 report from Dr. Frank Maselli, a Boardcertified family practitioner, who noted that appellant was incapacitated from work from
June 9 to 14, 2015.
On June 15, 2015 Dr. Groves found that appellant was unable to work from
June 9 to 16, 2015.4
On October 26 and November 5, 2015 Dr. I Martin Levy, a Board-certified orthopedic
surgeon, found that appellant was disabled from work until further evaluation.5
A magnetic resonance imaging (MRI) scan of the right knee dated November 2, 2015
revealed localized edema, a Hoffa’s fat pad impingement possibly causing abnormal
patellofemoral dynamics, low-grade chondromalacia at the medial patella facet, and no evidence
of a meniscal tear.
Appellant attended physical therapy treatment on February 8, 2016.

4

Dr. Grove also provided a work excuse note on August 22, 2015.

5

Dr. Levy indicated that he had treated appellant on April 4, 2016.

2

On August 9, 2016 Dr. Soo Yeon Kim, a Board-certified physiatrist, diagnosed
patellofemoral syndrome and recommended physical therapy.
In response to OWCP’s development questionnaire, on September 3, 2016 appellant
indicated that she had no prior knee condition and had worked for the employing establishment
since 2014. She attributed her right knee condition to performing repetitive work duties, running
up and down truck stairs, and working in excess of 12 hours a day six days a week.
By decision dated September 28, 2016, OWCP denied appellant’s occupational disease
claim finding that the factual evidence of record was insufficient to establish that the alleged
factors occurred as described. It noted that she had not adequately responded to its request for a
detailed explanation of the work factors that she felt caused or contributed to her claimed condition.
Thereafter, appellant submitted a September 16, 2016 report from Dr. Jacob Hascalovici,
a Board-certified anesthesiologist, who diagnosed patellofemoral syndrome of the right knee.
Dr. Hascalovici noted that her injury “may be related to her prior work at the [employing
establishment].”6
On October 18, 2016 Dr. Lee H. Trosterman, a Board-certified physiatrist, treated appellant
for right knee pain which reportedly developed on November 5, 2014 after repetitive heavy lifting
as a mail carrier. Examination of the right knee revealed restricted range of motion, tenderness at
the lateral joint line and supra patella tendon, a negative varus and valgus stress tests, and intact
strength. Dr. Trosterman diagnosed right knee strain/sprain and right knee derangement. He
noted, “With reasonable degree of medical certainty, I conclude that the accident that occurred on
November 5, 2014 is the competent producing cause of [appellant’s] injuries and there is a causal
relationship between the accident and the injuries.” Dr. Trosterman opined that she was unable to
work due to pain.
On October 18, 2016 Dr. Orsuville Cabatu, a Board-certified physiatrist, diagnosed right
knee strain, sprain, and derangement. He found that appellant was totally disabled from work until
November 15, 2016.
In a letter dated October 18, 2016, Dr. Carl Franzetti, an osteopath, advised that appellant’s
work conditions had exacerbated her knee injury and indicated that she was unable to work due to
increased pain and swelling. Dr. Maselli provided a similar letter on October 24, 2016.
Appellant attended physical therapy treatment on October 24, 2016.
On October 26, 2016 appellant requested a review of the written record before a
representative of OWCP’s Branch of Hearings and Review.
On November 7, 2016 Dr. David Capiola, a Board-certified orthopedist, evaluated
appellant for right knee pain. He obtained a history that she sustained an accident on November 5,

6
On April 18, 2016 appellant filed a notice of traumatic injury (Form CA-1) alleging that on November 5, 2014
she developed Hoffa’s fat pad impingement as a result of excessive use of the right knee while in the performance of
duty.

3

2014 and right knee pain as a result of repetitively lifting heavy objects at work. Dr. Capiola
diagnosed right knee derangement and recommended physical therapy.
In reports dated November 17 and December 20, 2016, Dr. Cabatu provided examination
findings of restricted range of motion, tenderness at the lateral joint line and supra patella tendon,
and antalgic gait. He diagnosed right knee strain, sprain, and derangement and opined that
appellant was totally disabled.
By decision dated February 15, 2017, an OWCP hearing representative affirmed the
September 28, 2016 decision. She found that appellant had established that the employment
factors identified as causing her condition occurred as alleged, but that the medical evidence of
record was insufficient to establish a diagnosed condition as a result of the accepted employment
factors.
In progress reports dated February 24 to May 12, 2017, Dr. Cabatu treated appellant for
right knee pain. He provided examination findings and diagnosed right knee strain/sprain and
internal derangement of the right knee. Dr. Cabatu found that appellant was totally disabled from
work.
A March 29, 2017 MRI scan of the right knee revealed an intrasubstance tear of the
posterior horn of the medial meniscus and a partial tear of the anterior cruciate ligament.
On March 6, 2017 Dr. Capiola provided a history of appellant sustaining an injury at work
on November 5, 2014 with right knee pain due to repetitive lifting at work. He diagnosed right
knee derangement. On April 17, 2017 Dr. Capiola provided the same history of injury and
reviewed the results of the right knee MRI scan. He diagnosed right knee derangement with a
symptomatic meniscal tear and quadriceps atrophy and recommended surgery.
On May 31, 2017 appellant requested reconsideration. She submitted an employing
establishment report of unsafe condition or practice dated July 2, 2015. Appellant asserted that
from July 27, 2014 to July 5, 2015 she worked consecutive Sundays without proper rotation.
OWCP subsequently received additional evidence including a note from a physician
assistant noting evaluation of appellant on May 22, 2017 and a May 24, 2017 report wherein
Dr. Cabatu advised that he was treating appellant for employment injuries sustained on
November 5, 2014. Dr. Cabatu noted that she had worked three and a half years for the employing
establishment and, “While at work she experienced right knee pain due to repetitive heavy lifting
as a mail carrier. As a direct result of the accident she sustained the following injuries: right knee
strain/sprain.” He discussed his treatment of appellant beginning October 18, 2016 and his
examination findings. Dr. Cabatu opined that within a reasonable degree of medical certainty the
November 5, 2014 accident was “the competent producing cause of [her] injuries and there is a
causal relationship between the accident and the injuries.”
By decision dated December 19, 2017, OWCP denied modification of its February 15,
2017 decision.
Thereafter, OWCP received a May 22, 2017 report from Dr. Cabatu in which he noted that
appellant had worked as a carrier since September 2013 and that she worked 10 to 13 hours a day,
six days a week, on her feet for 8 hours, driving 2 to 5 hours, and lifting 30 to over 50 pounds.
4

Dr. Cabatu diagnosed right knee strain/sprain and right knee derangement. He opined that
appellant was totally disabled from employment.
On August 28, 2018 appellant, through counsel, requested reconsideration.
In support of her request, appellant submitted a June 1, 2018 report from Dr. Cabatu.
Dr. Cabatu noted that she had sustained “a repetitive stress injury to her right knee while employed
at [the employing establishment].” He described her employment duties, including working long
hours on her feet, driving, and lifting up to 50 pounds. Dr. Cabatu advised that a right knee MRI
scan showed a tear of the medial meniscus and a partial tear of the anterior cruciate ligament. He
noted that appellant indicated that her right knee began hurting while working full time with
overtime and that she denied prior injury to her right knee. Dr. Cabatu indicated that she was
totally disabled pending surgery.
On August 28, 2018 Dr. Cabatu again diagnosed right knee strain, sprain, and derangement
and found that appellant was totally disabled from work.
By decision dated November 21, 2018, OWCP denied modification of the December 19,
2017 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA7 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was filed within the applicable time limitation
period of FECA,8 that an injury was sustained while in the performance of duty as alleged, and
that any disability or specific condition for which compensation is claimed is causally related to
the employment injury.9 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.10
In an occupational disease claim, appellant’s burden requires submission of 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 employment factors
identified by the employee.11

7

Supra note 2.

8
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
9

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
10

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).
11

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

5

Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence.12 The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the claimant.13
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a right knee
condition causally related to the accepted factors of her federal employment.
In a report dated May 24, 2017, Dr. Cabatu advised that he had treated appellant after a
November 5, 2014 employment injury. He diagnosed right knee strain and sprain due to repetitive
heavy lifting in the course of her employment, noting that she had worked for the employing
establishment for three and a half years. Dr. Cabatu, however, failed to provide medical rationale
supporting his opinion. The Board has held that a medical opinion is of limited value if it is
conclusory in nature.14 A medical opinion must explain how the implicated employment factors
physiologically caused, contributed to, or aggravated the specific diagnosed conditions.15 Without
this explanation, Dr. Cabatu’s report is insufficient to meet appellant’s burden of proof to establish
her claim.16
On October 18, 2016 Dr. Trosterman diagnosed right knee strain/sprain and right knee
derangement. He noted that appellant had a history of an accident on November 5, 2014 and had
experienced right knee pain as a result of heavy lifting at work. Dr. Trosterman opined that, to a
reasonable degree of medical certainty, the November 5, 2014 accident caused appellant’s injuries.
He did not, however, provide medical rationale explaining the basis of his conclusory opinion
regarding the causal relationship between appellant’s right knee condition and the factors of
employment.17 As Dr. Trosterman’s opinion lacks the necessary medical rationale explaining how
or why the accepted employment factors were sufficient to result in the diagnosed medical
conditions, his report is insufficient to establish her claim.18
On June 1, 2018 Dr. Cabatu described appellant’s employment duties, including lifting up
to 50 pounds. He noted that she had experienced right knee pain while working overtime without
12

A.M., Docket No. 18-1748 (issued April 24, 2019); T.H., 59 ECAB 388 (2008).

13

M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008).

14

R.S., Docket No. 19-1774 (issued April 3, 2020); C.M., Docket No. 19-0360 (issued February 25, 2020).

15

K.G., Docket No. 18-1598 (issued January 7, 2020).

16

Id.

17

See C.M., Docket No. 19-0360 (issued February 25, 2020); T.M., Docket No. 08-0975 (issued February 6, 2009)
(a medical report is of limited probative value on the issue of causal relationship if it contains a conclusion regarding
causal relationship which is unsupported by medical rationale).
18

L.S., Docket No. 18-0518 (issued February 19, 2020); J.D., Docket No. 14-2061 (issued February 27, 2015).

6

a history of a prior right knee injury. Dr. Cabatu opined that a right knee MRI scan showed a tear
of the medial meniscus and a partial tear of the anterior cruciate ligament. He advised that
appellant had sustained a repetitive stress injury to her right knee while working at the employing
establishment. While Dr. Cabatu provided a description of the employment factors believed to
have either caused or contributed to her condition, and supported causal relationship, he failed to
provide any rationale in support of his opinion.19 Consequently, as previously explained, his report
is insufficient to meet appellant’s burden of proof.20
On October 18, 2016 Dr. Franzetti opined that appellant’s working conditions had
aggravated her knee injury. On October 24, 2016 Dr. Maselli provided a similar report.
Dr. Franzetti and Dr. Maselli, however, failed to identify specific factors of appellant’s federal
employment responsible for a diagnosed right knee condition. To be of probative value, a
physician’s opinion must explain the nature of the relationship between a diagnosed medical
condition and the accepted employment factors.21
In a report dated September 16, 2016, Dr. Hascalovici diagnosed patellofemoral syndrome
of the right knee. He advised that appellant’s injury may be related to her work at the employing
establishment. The Board has held that a medical opinion supporting causal relationship must be
one of reasonable medical certainty and not speculative or equivocal in character.22 As
Dr. Hascalovici’s opinion regarding causation is couched in speculative terms, it is of limited
probative value.23
In a March 21, 2016 certificate of health care provider form, Dr. Groves noted that
appellant’s job required lifting, walking, and delivering parcels. She indicated that appellant’s
condition had begun in November 2014 and that she was unable to lift heavy objects, walk long
distances, or bend and stand for prolonged periods. On November 7, 2016 and March 6, 2017
Dr. Capiola advised that appellant had a history of a November 5, 2014 accident and right knee
pain due to performing repetitive heavy lifting at work. He diagnosed right knee derangement.
On April 17, 2017 Dr. Capiola provided a history of injury and diagnosed right knee derangement
with a symptomatic meniscal tear and quadriceps atrophy. On May 22, 2017 Dr. Cabatu discussed
appellant’s employment duties and diagnosed a right knee strain/sprain and right knee
derangement. While the physicians described appellant’s employment duties, they failed to
specifically address whether her work duties caused or aggravated a diagnosed medical condition.
Medical evidence that does not offer an opinion regarding the cause of an employee’s condition is
of no probative value on the issue of causal relationship.24
Appellant submitted a June 9, 2015 report from Dr. Maselli, a June 15, 2015 report from
Dr. Groves, and October 26 and November 5, 2015 reports from Dr. Levy finding that she was
19

D.S., Docket No. 19-1814 (issued April 1, 2020).

20

Supra note 15.

21

A.S., Docket No. 19-1766 (issued March 26, 2020); Victor J. Woodhams, 41 ECAB 345 (1989).

22

D.S., supra note 19; A.M., Docket No. 19-1138 (issued February 18, 2020).

23

Id.

24

P.L., Docket No. 19-1750 (issued March 26, 2020); L.A., Docket No. 18-0819 (issued March 17, 2020).

7

disabled from employment. On August 9, 2016 Dr. Kim diagnosed patellofemoral syndrome. In
reports dated October 18, 2016 to May 12, 2017 and August 28, 2018, Dr. Cabatu diagnosed right
knee strain/sprain and internal derangement and found that appellant was totally disabled from
work. None of these physicians, however, addressed the issue of causation in their reports. Their
opinions are, therefore, of no probative value.25
Appellant also submitted the results of diagnostic testing. The Board has held, however,
that diagnostic studies lack probative value as they do not address whether the employment
incident caused any of the diagnosed conditions.26
The record also contains reports authored by physical therapists and a physician assistant.
The Board has held that medical reports signed solely by a physical therapist or a physician
assistant are of no probative value as such health care providers are not considered “physician[s]”
as defined under FECA and are therefore not competent to provide medical opinions.27
As the medical evidence of record is insufficient to establish causal relationship, the Board
finds that appellant has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

25

Id.

26

K.S., Docket No. 19-1623 (issued March 19, 2020); J.M., Docket No. 18-0853 (issued March 9, 2020).

27

See T.T., Docket No. 19-1121 (issued November 29, 2019); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006)
(lay individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical
opinion under FECA); 5 U.S.C. § 8101(2) (this subsection defines a physician as surgeons, podiatrists, dentists,
clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as
defined by state law). E.T., Docket No. 17-0265 (issued May 25, 2018) (physician assistants are not considered
physicians under FECA); J.M., 58 ECAB 448 (2007) (physical therapists are not considered physicians under FECA).

8

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a right knee
condition causally related to the accepted factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the November 21, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 18, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Banning, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 21-0515
Issued: August 24, 2021

Case Submitted on the Record

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

JURISDICTION
On February 17, 2021 appellant filed a timely appeal from a September 15, 2020 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 in this case.
ISSUE
The issue is whether OWCP properly denied appellant’s claim to augmented
compensation.
FACTUAL HISTORY
On May 15, 2013 appellant, then a 48-year-old city letter carrier, filed an occupational
disease claim (Form CA-2) alleging that she developed carpal tunnel syndrome as a result of her

1

5 U.S.C. § 8101 et seq.

repetitive work duties including repetitive casing of mail.2 She noted that she first became aware
of her condition on February 1, 2011 and of its relationship to her federal employment on
March 1, 2011. OWCP assigned the claim OWCP File No. xxxxxx042. On June 10, 2014 it
accepted the claim for right complete rotator cuff rupture and right carpal tunnel syndrome.
Appellant underwent OWCP-authorized right shoulder arthroscopy with repair of the rotator cuff
on July 24, 2014.
On August 4 and 11, 2014 appellant filed claims for wage-loss compensation (Form CA-7)
for disability from July 12 to August 8, 2014. In the August 4, 2014 Form CA-7, she listed her
son, who was born on December 31, 1979, and nephew, who was born on August 15, 2000, as
dependents.
OWCP paid appellant wage-loss compensation on the supplemental rolls for temporary
total disability from work for the period July 12 through August 8, 2014 at the basic statutory twothirds pay rate.
In an August 21, 2014 letter, OWCP advised appellant that, if her son was incapable of
self-support, she should submit a medical report describing his mental or physical disability. It
also advised her that she was only entitled to compensation for her nephew if she had formally
adopted him. OWCP requested that appellant submit documentation verifying the adoption.
Appellant subsequently filed additional Form CA-7 claims for wage-loss compensation for
disability from August 9 through November 14, 2014. OWCP paid her wage-loss compensation
on the supplemental rolls for temporary total disability from work for the period August 9 through
November 15, 2014 at the basic two-thirds pay rate.
On February 17, 2015 appellant returned to work in a modified carrier technician position.
Subsequently, she filed Form CA-7 claims for wage-loss compensation for intermittent disability
from February 17, 2015 through March 5, 2016.
OWCP continued to pay appellant wage-loss compensation on the supplemental rolls for
temporary total disability from work for the period February 17, 2015 through January 14, 2016
due to work restrictions at the basic two-thirds pay rate.
By decision dated May 11, 2016, OWCP denied appellant’s claim for a recurrence of
disability from January 19 through March 5, 2016. It found that the medical evidence of record
was insufficient to establish that she was disabled from work due to a material change or worsening
of her accepted employment-related conditions.
On May 26, 2016 appellant requested reconsideration.

2

Appellant subsequently filed a traumatic injury claim (Form CA-1) under OWCP File No. xxxxxx124, alleging
that on September 16, 2016 she sustained an injury when a fence fell on her while in the performance of duty. OWCP
accepted that claim for strain of unspecified muscle, fascia, and tendon at shoulder and upper arm level, left arm; strain
of unspecified muscle, fascia, and tendon at shoulder and upper arm level, right arm, and strain of unspecified muscle,
fascia, and tendon at neck level. Appellant also filed a claim for an injury under OWCP File No. xxxxxx058. OWCP
has not administratively combined these claims with the instant claim.

2

By decision dated June 2, 2016, OWCP denied appellant’s request for reconsideration of
the merits of her claim, pursuant to 5 U.S.C. § 8128(a), finding that it neither raised substantial
legal questions, nor included new or relevant evidence.
OWCP received a letters of guardianship form from the Superior Court of California,
County of Riverside dated July 14, 2016, appointing appellant as the legal guardian of her nephew.
The letters of guardianship indicated that appellant’s nephew was born on December 28, 2002. An
August 30, 2016 memorandum of telephone call (Form CA-110) indicated that OWCP confirmed
with the California court that appellant was granted guardianship of her nephew by the July 14,
2016 letters of guardianship.
Thereafter, appellant filed additional Form CA-7 claims for wage-loss compensation for
intermittent disability from April 7 through 28, 2020 and May 5 through 14, 2020. OWCP paid
her wage-loss compensation on the supplemental rolls for temporary total disability due to
absences to attend physical therapy treatments during the periods April 7 through 30, 2020 and
May 5 through 14, 2020 at the augmented 75 percent rate.
On May 27 and June 17, 2020 appellant requested that OWCP change her dependent status
because she had changed it in her other OWCP claims.
By decision dated September 15, 2020, OWCP found that appellant was not entitled to
augmented compensation during the period of her disability from work. It explained that, although
she was the guardian of her nephew, he was not considered a “child” as defined under 5 U.S.C.
§ 8101(9) and, thus, he was not an eligible dependent as defined under 5 U.S.C. § 8110.
LEGAL PRECEDENT
FECA provides that the United States shall pay compensation for the disability or death of
an employee resulting from a personal injury sustained while in the performance of duty.3 If the
disability is total, the United States shall pay the employee during the period of total disability the
basic compensation rate of 66 2/3 percent of her monthly pay. A disabled employee is entitled to
an augmented compensation rate of 75 percent if he or she has one or more dependents.4
Section 8110(a) of FECA provides that a dependent includes an unmarried child who,
while living with the employee or receiving regular contributions from the employee toward his
or her support, is either under 18 years of age or over 18 years of age and incapable of self-support
due to physical or mental disability.5 A child is also considered a dependent if he or she is an
unmarried student under 23 years of age who has not completed four years of education beyond

3

5 U.S.C. § 8102(a).

4

R.G., Docket No. 18-1251 (issued November 26, 2019); O.R., 59 ECAB 432, 436 (2008); id. at §§ 8105(a) and
8110(b).
5

Id. at § 8110(a).

3

the high school level and is currently pursuing a full-time course of study at a qualifying college,
university, or training program.6
Pursuant to section 8101(9) of FECA the definition of a child includes stepchildren,
adopted children, and posthumous children, but does not include married children.7
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that her wageloss compensation should have been paid at an augmented compensation rate.
The Board notes that a nephew is not recognized as an eligible dependent for purposes of
augmented compensation. As noted, pursuant to section 8101(9) of FECA, the term child may
include stepchildren, adopted children, or posthumous children. The Board has specifically held
that, when a claimant has legal guardianship over a nephew, this does not qualify the child as a
dependent if the recipient of compensation has not adopted the child.8 Although appellant’s
nephew may be living with her and she may be his legal guardian, appellant has not legally adopted
her nephew. Therefore, he does not qualify as an eligible dependent.9
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her wageloss compensation should have been paid at an augmented compensation rate.

6

R.G., supra note 4; see also E.G., 59 ECAB 599, 603 n.10 (2008).

7

5 U.S.C. § 8101(9).

8

Aretha Hudson, 28 ECAB 423 (1988).

9

See C.V., Docket No. 13-2108 (issued June 17, 2014).

4

ORDER
IT IS HEREBY ORDERED THAT the September 15, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 24, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.F., Appellant
and
DEPARTMENT OF THE NAVY,
MARINE CORPS -- STATIONS,
Camp LeJeune, NC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 13-24
Issued: April 4, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 3, 2012 appellant filed a timely appeal from a September 12, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP) regarding his schedule
award claim. 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 the claim.
ISSUE
The issue is whether appellant has more than 23 percent permanent impairment of the
right leg, for which he received a schedule award.
FACTUAL HISTORY
On April 12, 2006 appellant, then a 42-year-old coal handler equipment operator,
sustained injury while getting off a tractor ladder. He stepped in a hole and twisted his right
1

5 U.S.C. §§ 8101-8193.

knee. OWCP initially accepted the claim for right knee strain. On July 21, 2006 appellant
underwent right knee arthroscopy with partial medial and lateral meniscectomies and
synovectomy. By decision dated May 11, 2007, OWCP granted him a schedule award for 17
percent permanent impairment of the right lower extremity. On April 8, 2008 it accepted the
conditions of right knee primary localized osteoarthrosis, right medial meniscus tear, right lateral
meniscus tear and synovitis. By decision dated October 5, 2009, OWCP found appellant’s actual
earnings as a material handler fairly and reasonably represented his wage-earning capacity and
there was no loss in earning capacity. On February 12, 2010 appellant underwent right knee
arthroscopy with complete synovectomy. On January 3, 2011 he underwent an approved right
total knee replacement.2 On May 4, 2012 appellant requested an additional schedule award.
On May 9, 2012 OWCP requested that its medical adviser review the medical reports of
record and provide an impairment rating for loss of use of the right leg under the sixth edition of
the American Medical Association, Guides to the Evaluation of Permanent Impairment
(hereinafter A.M.A., Guides) and date of maximum medical improvement. In a May 9, 2012
report, Dr. James W. Dyer, an OWCP medical adviser, opined that appellant reached maximum
medical improvement as of January 3, 2012, one year after his right total knee replacement.
Following the knee replacement, appellant had right knee pain and tenderness and no atrophy.
Using the sixth edition of the A.M.A., Guides, Dr. Dyer opined that, under Table 16-3, page 511,
appellant had class 2 , grade C impairment or 25 percent impairment of the right lower extremity
for a good result of total knee replacement. A grade modifier of 2 was given for Functional
History (GMFH), Physical Examination (GMPE) and Clinical Studies (GMCS). The net
adjustment formula was applied and resulted in zero net adjustment or no change from the
default grade C. The medical adviser subtracted the previous award of 17 percent right leg
impairment from the 25 percent impairment rating to find appellant had an additional 8 percent
right leg impairment.
On May 14, 2012 OWCP received a permanent impairment worksheet of the lower
extremity dated May 9, 2012 from Dr. Brian J. Battersby, Jr., a Board-certified orthopedic
surgeon, who opined that appellant had 43 percent impairment of right lower extremity.
Dr. Battersby opined that maximum medical improvement was reached on March 13, 2012.
Under Table 16-3, page 511 of the sixth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides), he found that appellant
was class 3, grade E for total knee replacement, with an impairment value of 43 percent.
Dr. Battersby did not address how any grade modifier adjustments were made.
On May 23, 2012 OWCP requested that a medical adviser review Dr. Battersby’s May 9,
2012 report. In a May 23, 2012 report, Dr. H.P. Hogshead, an OWCP medical adviser,
referenced Dr. Dyer’s report of May 9, 2012 that maximum medical improvement was reached
by January 3, 2012. He noted that the medical evaluation of record found a stable knee with
2

OWCP subsequently developed the issue of whether appellant had consequential left knee osteoarthritis and
bilateral carpal tunnel syndrome. By decision dated August 7, 2012, OWCP’s hearing representative set aside an
April 10, 2012 decision denying the claimed consequential conditions and remanded the case to OWCP for
additional development and a de novo decision. On November 19, 2012 OWCP accepted additional conditions of
sprain of knee, lateral collateral ligament; localized primary osteoarthritis, bilateral lower leg; other and unspecified
derangement of medial meniscus, right; derangement lateral meniscus, right; and bilateral carpal tunnel syndrome.

2

good range of motion post total knee replacement. A rating of class 2, grade C was
recommended for 25 percent impairment of right lower extremity. As appellant previously
received 17 percent impairment, he had an additional 8 percent impairment. Dr. Hogshead noted
that Dr. Battersby stated that the result should be class 3, grade E resulting in 43 percent
impairment, but the rating was not adequately explained and the sixth edition of the A.M.A.,
Guides was not specifically referenced. He recommended a second opinion examination.
OWCP referred appellant, together with his record, a statement of accepted facts and a
list of questions to Dr. Edward R. Mulcahy, a Board-certified orthopedic surgeon, for an second
opinion impairment evaluation. In an August 9, 2012 report, Dr. Mulcahy provided examination
findings and reviewed the medical record. He advised that appellant could extend his knee fully
and there was no instability on testing. Under the sixth edition of the A.M.A., Guides,
Dr. Mulcahy opined that appellant had 18 percent impairment of the right leg. Under Table 163, he found appellant was class 2 for total knee replacement. Under Table 16.5 through Table
16.9, Dr. Mulcahy opined that appellant had Functional History modifier grade 2, Physical
Examination grade modifier 1 and Clinical Studies grade modifier 2. Utilizing the net
adjustment formula, he found a -1, which moved the default grade C to grade B or 18 percent
impairment under Table 16-3. In an August 27, 2012 report, Dr. Mulcahy amended the
impairment rating to reflect that under Table 16-3, page 511, a class 2, grade B would result in
an impairment rating of 23 percent for the lower right extremity.
In a September 10, 2012 report, Dr. Hogshead reviewed Dr. Mulcahy’s reports and
agreed that the impairment rating of 23 percent for class 2, grade B under Table 16-3 of the
A.M.A., Guides was correct. As appellant previously received an impairment of 17 percent
impairment right lower extremity, Dr. Hogshead found that appellant had an additional 6 percent
impairment.
Dr. Hogshead noted that maximum medical improvement was achieved
January 3, 2012.
By decision dated September 12, 2012, OWCP granted appellant a schedule award for
additional 6 percent right leg impairment or a total impairment of 23 percent. The award ran for
17.28 weeks from August 26 to December 24, 2012.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations3 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. FECA, however, does not
specify the manner in which the percentage of loss shall be determined. The method used in
making such a determination is a matter that rests within the sound discretion of OWCP.4 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

3

20 C.F.R. § 10.404.

4

Linda R. Sherman, 56 ECAB 127 (2004); Danniel C. Goings, 37 ECAB 781 (1986).

3

regulations as the appropriate standard for evaluating schedule losses.5 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.6
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).7 Under the sixth edition, for lower extremity impairments the evaluator
identifies the impairment class for the diagnosed condition (CDX), which is then adjusted by
grade modifiers based on GMFH, GMPE and GMCS.8 The net adjustment formula is (GMFH CDX) + (GMPE - CDX) + (GMCS - CDX).9
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s 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.10
ANALYSIS
OWCP accepted appellant’s claim for right knee strain, right leg primary localized
osteoarthrosis, right medial meniscal tear and right lateral meniscal tear. Appellant under a right
knee arthroscopy on July 21, 2006, a second right knee arthroscopy with complete synovectomy,
multiple cartilaginous drillings of the lateral femoral condyle and the trochlear groove on
February 12, 2010 and a right total knee replacement on January 3, 2011. By decision dated
May 11, 2007, OWCP granted him a schedule award for 17 percent impairment of the right leg.
Appellant later claimed an increased schedule award for additional impairment. By decision
dated September 12, 2012, it granted him an additional 6 percent impairment of the right lower
extremity, for a total impairment of 23 percent based on the findings of Dr. Mulcahy and
Dr. Hogshead.
The Board finds that OWCP properly relied on the opinion of Dr. Mulcahy and
Dr. Hogshead that appellant has 23 percent right leg impairment.
In a May 9, 2012 impairment worksheet, Dr. Battersby, appellant’s physician, opined that
appellant had 43 percent right leg for class 3, grade E total knee replacement under Table 16-3,
page 511 of the sixth edition of the A.M.A., Guides. The Board notes that he failed to explain
5

Ronald R. Kraynak, 53 ECAB 130 (2001).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
7

A.M.A., Guides 3, 6 (6th ed. 2008).

8

Id. at 494-531.

9

Id. at 521.

10

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).

4

how he rated impairment or support how he arrived at a grade E rating. Further, Dr. Battersby
did not address any grade modifiers or how they were applied to reach the final impairment
rating. It is well established that, when the attending physician fails to provide an estimate of
impairment conforming to the A.M.A., Guides, his or her opinion is of diminished probative
value. OWCP may rely on the opinion of its medical adviser to apply the A.M.A., Guides to the
findings of the attending physician.11
When OWCP requested that Dr. Hogshead reviewed Dr. Battersby’s May 9, 2012 report,
he noted that Dr. Battersby did not adequately explain his impairment finding and recommended
a second opinion examination. The Board finds that this development was proper as
Dr. Battersby’s report supports how the physical examination merited a finding of a class 3,
grade E impairment for appellant’s total knee replacement.
Dr. Mulcahy, a Board-certified orthopedic surgeon and OWCP referral physician, found
that appellant had 23 percent permanent impairment of the right lower extremity for total knee
replacement. Under Table 16-3, page 511, he found that appellant had class 2 rating for total
knee replacement based on the statement of accepted facts and examination findings.
Dr. Mulcahy found on examination that appellant could extend his knee fully and had no knee
instability on testing. He utilized Table 16.5 through Table 16.9 to find grade modifiers of 2 for
functional history, 1 for physical examination, and 2 for clinical studies. Dr. Mulcahy applied
the grade modifiers to the net adjustment formula and found a net adjustment of -1. Under the
net adjustment formula, (GMFH - CDX) (2-2) + (GMPE - CDX) (1-2) + (GMCS - CDX) (2-2)
results in a net adjustment of -1. This represents grade B or 23 percent right lower extremity
impairment for total knee replacement.
Dr. Hogshead reviewed Dr. Mulcahy’s reports and concurred in his impairment rating.
He noted that appellant was previously granted 17 percent impairment of the right lower
extremity for the knee problem had an additional impairment of 6 percent for total knee
replacement. When a current impairment rating duplicates a prior rating, the schedule award
benefits are reduced by the period of compensation paid under the schedule award for an earlier
injury.12 Since the current impairment for the right lower extremity was 23 percent and appellant
was previously paid for 17 percent impairment, he is entitled to an additional award of 6 percent.
The Board finds that OWCP properly awarded an additional schedule award of six percent lower
extremity impairment in this case. The Board finds that the medical evidence establishes that
appellant sustained no more than a 23 percent total impairment of the right lower extremity.
On appeal, appellant states that he has additional problems with his knee replacement and
he does not understand how Dr. Mulcahy could provide a lower rating than Dr. Battersby. As
noted, Dr. Mulcahy provided an impairment rating consistent with the examination findings
utilizing the A.M.A., Guides. The rating of Dr. Battersby did not fully comply with the A.M.A.,
Guides.

11

A.M.A., Guides 521. J.B., Docket No. 09-2191 (issued May 14, 2010).

12

T.S. Docket No. 09-1308 (issued December 22, 2009); 20 C.F.R. § 10.404(c).

5

Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has no more than 23 percent total permanent impairment
of the right lower extremity, for which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the September 12, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 4, 2013
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Duluth, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-1625
Issued: December 3, 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 30, 2007 appellant filed a timely appeal from a May 7, 2007 merit decision of a
hearing representative of the Office of Workers’ Compensation Programs that affirmed the
termination of his entitlement to compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the termination issue.
ISSUE
The issues are: (1) whether the Office met its burden of proof in terminating appellant’s
entitlement to compensation benefits effective November 13, 2006; and (2) whether appellant
met his burden of proof in establishing that his condition or disability was causally related to his
employment after November 13, 2006.
FACTUAL HISTORY
On October 11, 2005 appellant, then a 48-year-old tractor trailer operator, filed an
occupational disease claim stating that he developed lower back and bilateral knee conditions in

the performance of duty. Appellant stopped work on August 10, 2005 and did not return. He
officially retired in March 2006.
In support of his claim, appellant provided an August 25, 2005 report from Dr. Timothy
Watts, a Board-certified internist, who diagnosed “a variety of arthritis issues, mostly of a
degenerative variety and mostly related to his line of work.” Dr. Watts stated that appellant’s
mobility was limited due to his condition. In a July 24, 2002 magnetic resonance imaging (MRI)
scan of appellant’s right knee, Dr. John Reeder1 diagnosed mild patellofemoral chondromalacia
and mild lateral meniscal degeneration. In an August 22, 2005 MRI scan of appellant’s left
knee, Dr. Gilbert H. Maulsby, a Board-certified radiologist, diagnosed subtle patellofemoral
chondromalacia without high-grade chondral defect or internal derangement. In an MRI scan of
his lumbar spine, dated the same day, he diagnosed left paracentral protrusion at L4-5, central
protrusion at L5-S1 and mild degenerative changes from L4 to S1. In a May 1, 1997 report from
Dr. W. Shadburn,2 who noted that appellant’s history was significant for bilateral knee pain
beginning about 10 to 15 years earlier. He recorded appellant’s complaints of consistent pain
and swelling for the previous two years and diagnosed “probable bilateral patellofemoral
syndrome.” Dr. Shadburn also noted that appellant underwent physical therapy during his time
in military service but this treatment was ineffective.
In a December 9, 2005 report, Dr. Paul F. Richin, a Board-certified orthopedic surgeon
and treating physician, indicated that appellant’s “heavy work” had exacerbated a ruptured disc
in his back and chondromalacia in his knees. He concluded: “I really do [not] think that
[appellant] is going to be able to do this kind of heavy work without always injuring these areas.”
Appellant also provided treatment notes and physical therapy forms.
On December 9, 2005 appellant filed a claim for compensation for leave without pay
beginning on August 10, 2005 and continuing.
On August 11, 2006 the Office referred appellant to Dr. Harold H. Alexander, a Boardcertified orthopedic surgeon, for a second opinion. In an August 30, 2006 report, Dr. Alexander
recorded appellant’s stated history of aggravation when performing heavy lifting activities. He
indicated that appellant reported experiencing pain when he lifted a 500- to 600-pound door into
a truck. On examination, Dr. Alexander found that appellant had 80 degrees range of motion of
both knees and complained of pain with light touch and minimal compression on the
patellofemoral joint. He also indicated that his mobility was “markedly limited.” Dr. Alexander
diagnosed mild chondromalacia patella and lumbar degenerative disc disease. He opined that
appellant’s work caused him to experience a temporary exacerbation of preexisting bilateral
chondromalacia patella and lumbar degenerative disc disease. Dr. Alexander explained that
appellant’s work caused temporary aggravation of his symptoms, “but no actual physical
worsening.” Rather, he concluded that appellant’s condition returned to its baseline level after
appellant stopped work. Dr. Alexander also noted that both chondromalacia patella and lumbar
degenerative disc disease were common conditions among individuals in appellant’s age group
and were “not necessarily clinically significant.” In a work capacity evaluation prepared the
1

The Board is unable to ascertain Dr. Reeder’s specialty from the record.

2

The Board is unable to ascertain Dr. Shadburn’s specialty from the record.

2

same day, he indicated that appellant had reached maximum medical improvement and had
permanent restrictions.
On September 15, 2006 the Office requested that Dr. Alexander clarify whether his
recommended work restrictions were based on appellant’s injury of May 8, 2002.
In a September 22, 2006 report, Dr. Alexander replied that appellant’s work restrictions
were not based on his “actual injury,” but rather on his preexisting condition. He explained that
the restrictions were “not preventative in nature” but were recommended because appellant
would experience pain due to his preexisting lumbar degenerative disc disease should he exceed
the recommended activity level. However, Dr. Alexander indicated that additional activity
would not permanently aggravate appellant’s preexisting condition so appellant could exceed his
restrictions if he had an “adequate pain threshold.”
On October 5, 2006 the Office accepted appellant’s claim for temporary aggravation of
degeneration of lumbar intervertebral disc and temporary aggravation of chondromalacia
patellae. On the same day the Office issued a notice of proposed termination of appellant’s
entitlement to compensation benefits.
Following the Office’s notice of proposed termination, appellant provided an October 11,
2006 report from Dr. Paul F. Richin, a physician, who stated that he had treated appellant for
back and knee conditions which had been “going on for quite some time,” since 2002.
Dr. Richin explained that appellant’s lumbar degenerative disc disease was a permanent,
progressive condition which had been exacerbated by his work. He noted that appellant’s
condition was a “developmental” change which was aggravated by “the kind of lifting work that
he does.” With regard to appellant’s knee conditions, Dr. Richin noted that appellant’s
chondromalacia patella had been “going on as well for many years” but had been exacerbated by
his work. Dr. Richin concluded that both appellant’s back condition and knee condition had
been aggravated by his employment factors and could be “expected to progress as time goes on
depending on what kind of activities he does.”
By decision dated November 13, 2006, the Office finalized its termination of appellant’s
entitlement to medical benefits and wage-loss compensation effective the same day.
On November 20, 2006 appellant requested an oral hearing that was held on
March 16, 2007. After the hearing, he submitted a March 23, 2007 report from Dr. Ned B.
Armstrong, a Board-certified orthopedic surgeon, who diagnosed lumbar degenerative disc
disease, lumbar herniated nucleus pulposis without myelopathy and bilateral chondromalacia
patella/arthrosis. Dr. Armstrong related appellant’s condition to his military service as a
paratrooper, noting that “the degenerative changes are not associated with acute soft tissue
swelling that would be presented as peri-facetal or disc edema or definitive joint effusions. This
indicates that his [employing establishment] activity related pain is an aggravation of what
appears to be a preexisting problem.” In April 3, 2007 Dr. Armstrong diagnosed lumbar
degenerative disc disease, bilateral chondromalacia with degenerative changes and bilateral
degenerative arthrosis. With regard to appellant’s knee condition, he stated that appellant was
still symptomatic. Dr. Armstrong attributed appellant’s condition to a number of factors,
including both his military service and federal civilian employment. He noted that appellant’s

3

repetitive activities on the job contributed to his condition as did his age, genetic predisposition
and other activities. Dr. Armstrong concluded: “[Appellant] remains on medical disability
because of multiplicity of problems, chronicity of complaints and clinical picture and MRI scan
findings.”
Appellant also submitted several new diagnostic testing reports. In a March 30, 2007
right knee MRI scan report, Dr. Val M. Phillips, a radiologist, diagnosed some possible patchy
marrow edema throughout the patella but no fracture line and no significant chondromalacia. In
a left knee MRI scan report dated the same day, he diagnosed degenerative changes of the medial
meniscus, mild irregular chondromalacia and minimal patellar tendinitis. In a March 30, 2007
lumbar MRI scan, Dr. Robert A. Eisenberg, a neuroradiologist, diagnosed small bulging discs at
the L4-5 and L5-S1 levels, small disc herniation versus annular tear at L4-5 and mild bulging
from L2 to L4.
In a May 7, 2007 decision, the hearing representative affirmed the Office’s termination of
appellant’s entitlement to compensation benefits.
LEGAL PRECEDENT -- ISSUE 1
When employment factors cause an aggravation of an underlying physical condition, the
employee is entitled to compensation for the periods of disability related to the aggravation.
However, when the aggravation is temporary and leaves no permanent residuals, compensation is
not payable for periods after the aggravation has ceased. This is true even though the employee
is found medically disqualified to continue in such employment because of the effect which the
employment factors might have on the underlying condition. Under such circumstances, his
disqualification for continued employment is due to the underlying condition, without any
contribution by the employment.3 The Office may not terminate compensation without
establishing that the disability ceased or that it was no longer related to the employment.4
ANALYSIS -- ISSUE 1
The Board finds that the Office met its burden of proof in terminating appellant’s
entitlement to compensation benefits. The record reflects that appellant developed lumbar
degenerative disc disease and bilateral chondromalacia patella during his military service before
entering federal civilian employment. In his May 1, 1997 report, Dr. Shadburn indicated that
appellant had received some treatment for these conditions in the military and had been
experiencing symptoms for 10 to 15 years.
The Office referred appellant to Dr. Alexander for a second opinion. In a well
rationalized August 30, 2006 report, Dr. Alexander explained that appellant had preexisting
lumbar degenerative disc disease and bilateral chondromalacia patella, which were temporarily
aggravated by his employment duties or specifically, by his heavy lifting activities. However,
although he determined that appellant’s work temporarily exacerbated his condition,
3

John Watkins, 47 ECAB 597 (1996); James L. Hearn, 29 ECAB 278 (1978).

4

Watkins, id.

4

Dr. Alexander concluded that appellant’s preexisting conditions returned to their baseline level
when he stopped work. He presented examination findings to support his opinion and explained
that any symptoms appellant continued to experience were due to the preexisting conditions and
not to the temporary work-related aggravation. In a work capacity evaluation, he advised that
appellant had permanent work restrictions. The Office requested that he clarify his opinion on
whether appellant’s permanent work restrictions were due to the work-related exacerbation. In a
September 22, 2006 reply, Dr. Alexander explained that appellant’s restrictions, while
permanent, related to his preexisting conditions and not to the temporary aggravation that he had
experienced while working.
Following the Office’s notice of proposed termination, appellant submitted an
October 11, 2006 report from his treating physician, Dr. Richin, who agreed that appellant’s
work exacerbated his preexisting lumbar degenerative disc disease and chondromalacia patella
but indicated that appellant’s condition was progressive and developmental in nature. However,
Dr. Richin did not respond to Dr. Alexander’s assessment of appellant’s work-related condition
as a “temporary” aggravation which returned to its baseline condition after appellant stopped
work. He did not specifically explain whether appellant’s “permanent” aggravation caused
residuals that were directly related to his employment factors rather than to his preexisting
conditions. Dr. Richin also did not present sufficient rationale in support of his conclusion that
appellant had continuing work-related residuals; instead, he simply stated that appellant’s
condition was permanent and progressive but did not distinguish between the baseline
preexisting conditions and appellant’s conditions after the accepted “temporary” aggravation of
lumbar degenerative disc disease and bilateral chondromalacia patella.
The Board finds that Dr. Alexander’s reports establish that appellant’s employmentrelated exacerbation of his preexisting conditions was temporary and his condition returned to
the baseline, without employment-related residuals, after appellant stopped work on
August 10, 2005. The Board finds that the Office considered the medical evidence and met its
burden of proof in terminating appellant’s entitlement to compensation benefits, effective
November 13, 2006.
LEGAL PRECEDENT -- ISSUE 2
After termination or modification of compensation benefits, clearly warranted on the
basis of the evidence, the burden for reinstating compensation shifts to appellant. In order to
prevail, appellant must establish by the weight of the reliable, probative and substantial evidence
that he had an employment-related disability which continued after termination of compensation
benefits.5
The medical evidence required to establish causal relationship is rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between
appellant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of appellant, must be one
5

Talmadge Miller, 47 ECAB 673, 679 (1996); Wentworth M. Murray, 7 ECAB 570, 572 (1955).

5

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 appellant.6
ANALYSIS -- ISSUE 2
The Board finds that appellant did not meet his burden of proof in establishing that he
had continuing employment-related residuals after November 13, 2006. Following the Office’s
final termination of his entitlement to medical benefits and wage-loss compensation, appellant
submitted two reports from Dr. Armstrong. In both his March 23 and April 3, 2007 reports,
Dr. Armstrong supported that appellant had preexisting back and bilateral knee conditions which
were aggravated by his employment factors. However, he did not address Dr. Alexander’s
conclusion that the work-related exacerbation of appellant’s condition returned to its preinjury
baseline after appellant stopped working and that consequently appellant had no employmentrelated residuals after November 13, 2006. Dr. Armstrong opined that appellant’s continuing
symptoms were due to a multiplicity of factors, including age, genetic predisposition, his military
activities and his work activities as a federal civilian employee. But he did not distinguish
between appellant’s preexisting or baseline conditions, his conditions during his time as a federal
civilian employee and his symptoms after stopping work. Therefore, the Board finds that
Dr. Armstrong did not present sufficient rationale to support that appellant continued to
experience residuals specifically related to his employment on and after November 13, 2006.
Appellant also provided several diagnostic testing reports. However, these reports did
not address whether appellant had continuing employment-related residuals after
November 13, 2006. Therefore, the Board finds that they are insufficient to meet appellant’s
burden of proof.
CONCLUSION
The Board finds that the Office met its burden of proof in terminating appellant’s
entitlement to medical benefits and wage-loss compensation effective November 13, 2006 and
that appellant did not meet his burden of proof in establishing that he had continuing
employment-related residuals on and after November 13, 2006.

6

Victor J. Woodhams, 41 ECAB 345 (1989).

6

ORDER
IT IS HEREBY ORDERED THAT the May 7, 2007 and November 13, 2006 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: December 3, 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

7