United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.H., Appellant
and
DEPARTMENT OF AGRICULTURE,
MEDICINE WHEEL RANGER DISTRICT,
Lovell, WY, Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1427
Issued: May 16, 2012

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 June 1, 2011 appellant, through her attorney, filed a timely appeal of the
December 20, 2010 and May 19, 2011 merit decisions of the Office of Workers’ Compensation
Programs and a May 17, 2011 merit decision rescinding the acceptance of another recurrence of
disability 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 this case.
ISSUES
The issues are: (1) whether appellant established that she sustained a recurrence of
disability commencing November 1, 2004 causally related to her accepted September 26, 1999
employment injuries; and (2) whether OWCP properly rescinded an acceptance of her claim for a
recurrence of disability effective September 21, 2005.
On appeal, counsel contends that the withdrawal of appellant’s limited-duty position
effective October 30, 2004 constituted a recurrence of disability. He further contends that her
1

5 U.S.C. § 8101 et seq.

continuing disability is due to her accepted employment injuries and that she is entitled to wageloss compensation for her employment-related total disability effective September 21, 2005.
FACTUAL HISTORY
OWCP accepted that on September 26, 1999 appellant, then a 71-year-old temporary fulltime seasonal visitor information technician, sustained a rotator cuff tear and strain of the right
shoulder and cervical strain when she slipped and fell in an area covered with snow and ice at
work.2 It authorized arthroscopic acromioplasty and mini-open rotator cuff repair of the right
shoulder which were performed on December 21, 1999 by Dr. James G. Randolph, an attending
orthopedic surgeon.
On June 4, 2000 appellant returned to part-time work as a temporary intermittent seasonal
visitor information technician with restrictions. On August 21, 2000 Dr. Randolph released her
to return to full-time work with restrictions. On September 10, 2000 appellant returned to her
date-of-injury position on a full-time basis with restrictions. This position was terminated by the
employing establishment on September 28, 2000.3 On June 3, 2001 appellant again returned to
full-time temporary work as a seasonal visitor information technician. On July 29, 2011 the
position was converted into a full-time term information receptionist position.
On July 14, 2005 appellant filed a claim (Form CA-2a) for a recurrence of disability on
October 30, 2004. She stopped work on that date because her term appointment as a visitor
information specialist and receptionist was not extended by the employing establishment. On the
reverse of the claim form, the employing establishment noted that it was unaware of a recurrence
but was aware of a nonemployment-related motor vehicle accident resulting in injury to
appellant’s cervical spine in July 2001 and also of a nonemployment-related fall in July 2005.
In an October 31, 2005 progress note, Dr. Richard A. Knackendoffel, an attending
orthopedic surgeon, listed findings on physical examination. He diagnosed partial rotator cuff
tear, glenohumeral degenerative arthritis with loose chondral bodies and degenerative arthritis of
the acromioclavicular (AC) joint of the right shoulder. Appellant advised Dr. Knackendoffel that
her right shoulder conditions were related to her 1999 work-related injury. She fell on July 1,
2005, but she believed that her shoulder pain only developed one week after the fall. Appellant
did not believe that she fell on her right shoulder. Dr. Knackendoffel stated that his review of
her medical records revealed that she broke her fall with her right arm.
In a March 23, 2006 progress note, Dr. Knackendoffel listed findings on physical
examination. He advised that appellant had adhesive capsulitis of the right shoulder. Appellant
also had recurrent rotator cuff tear of the right shoulder that was probably related to the 1999
work injury and authorized surgery. Dr. Knackendoffel noted appellant’s complaint of pain
since her 1999 rotator cuff repair. He stated that she probably exacerbated her shoulder pain
when she fell in her daughter’s pasture on July 1, 2005, but she probably sustained a repeat tear
of the right shoulder much earlier than that date. Dr. Knackendoffel also stated that perhaps the
rotator cuff repair never completely healed. He concluded that appellant had developed some
2

Appellant’s full-time temporary seasonal visitor information technician position ended on September 30, 1999.

3

In a February 13, 2001 decision, OWCP granted appellant a schedule award for 20 percent impairment of the
right upper extremity.

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adhesive capsulitis since her July 1, 2005 injury which was probably the source of her pain.
Dr. Knackendoffel recommended arthroscopy with manipulation under anesthesia, lysis of some
adhesions and repeat arthroscopic rotator cuff repair of the right shoulder.
In a July 20, 2006 report, Dr. Knackendoffel obtained a history of the September 26,
1999 employment injuries and the July 1, 2005 fall. When he originally evaluated appellant on
September 14, 2005, she demonstrated significant adhesive capsulitis which was probably
producing a significant exacerbation of her original 1999 rotator cuff tear. A September 21,
2005 MRI scan demonstrated tearing of the supraspinatus and rotator cuff of the right shoulder
with impingement secondary to a hypertrophic AC joint. Dr. Knackendoffel suspected that the
impingement had persisted after the rotator cuff tear. The distal clavicle was not resected and
probably produced continued impingement in the right shoulder.
It was unclear to
Dr. Knackendoffel whether the rotator cuff healed following the 1999 injury. Given appellant’s
history of continued treatment and pain since 1999, he suspected that the impingement had
persisted after the rotator cuff tear. Dr. Knackendoffel advised that she had now developed
adhesive capsulitis following the July 1, 2005 fall. He stated that this probably represented
significant exacerbation of the chronic impingement of the right shoulder. Dr. Knackendoffel
recommended manipulation under anesthesia and probable arthroscopic rerepair of the rotator
cuff and arthroscopic Mumford procedure with excision of the distal right clavicle. He
concluded that appellant’s current condition was primarily due to her 1999 employment-related
rotator cuff tear with some exacerbation by the July 1, 2005 fall.
On August 24, 2006 OWCP accepted that appellant sustained a recurrence of disability
effective September 21, 2005. It stated that the September 21, 2005 MRI scan showed that her
supraspinatus tendon of the right shoulder had been retorn.
In an October 2, 2006 report, Dr. Knackendoffel advised that appellant’s rotator cuff tear
of the right shoulder was massive and her adhesive capsulitis of the same shoulder was severe.
Appellant was unable to work due to pain and limited range of motion of the right shoulder. In a
February 22, 2007 progress note, Dr. Knackendoffel reiterated his prior diagnoses of persistent
adhesive capsulitis and rotator cuff tear of the right shoulder and surgery recommendation.
Reports from physical therapists addressed the treatment of appellant’s right shoulder
adhesive capsulitis from September 26, 2006 to February 21, 2007.
On March 13, 2007 OWCP granted appellant’s request to undergo arthroscopic right
shoulder rotator cuff repair surgery. On May 18, 2007 it rescinded authorization for the
proposed right shoulder surgery pending further medical development of appellant’s case.
On April 4, 2007 appellant filed a claim for wage-loss compensation (Form CA-7)
commencing November 1, 2004.
On May 21, 2007 OWCP issued a notice of proposed rescission of the acceptance of
appellant’s claim for a recurrence of disability effective September 21, 2005. It found that her
July 1, 2005 fall and a July 15, 2001 car accident for which she underwent a cervical
laminectomy in 2001 constituted intervening nonemployment-related injuries and medical
treatment. OWCP further found that Dr. Knackendoffel’s March 23, 2006 progress note did not
support the change in his initial medical opinion with a rationalized explanation of the causal
relationship between appellant’s current right shoulder condition and her accepted right shoulder
3

condition. He did not provide any objective findings with medical rationale taking into
consideration her intervening personal activities, medical history and the natural aging process.
Dr. Knackendoffel’s opinion regarding the nature of appellant’s right shoulder tear was
speculative in nature. OWCP also determined that she did not sustain a recurrence of disability
on October 30, 2004 because she was not performing a light-duty position specifically assigned
to accommodate her physical restrictions due to the accepted injuries. It stated that such a lightduty position was not withdrawn because appellant was a temporary employee on the date of
injury and at all times thereafter.4
In a May 31, 2007 report, Dr. Knackendoffel advised that appellant had improved
adhesive capsulitis of the right shoulder with rotator cuff tear.
By letter dated October 5, 2009, appellant, through her attorney, requested that OWCP
accept adhesive capsulitis and rotator cuff tear of the right shoulder and cervical degenerative
disc disease based on Dr. Randolph’s January 16, 2001 report, Dr. Knackendoffel’s July 20,
2006 report and a November 10, 2008 progress note from Dr. J. Dale Utt, a family practitioner.
In the January 16, 2001 report, Dr. Randolph advised that appellant had 23 percent
impairment of the right upper extremity which represented 14 percent impairment of the whole
person based on the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides) (5th ed. 2001). In the November 10, 2008 progress note, Dr. Utt
noted appellant’s complaints of shoulder and neck pain and dizziness. He listed findings on
physical examination and diagnosed chronic pain, hypertension, dizziness, rotator cuff
syndrome, cervical degenerative disc disease and chronic Stage III kidney disease. Dr. Utt
opined that appellant was unable to perform any significant gainful employment due to her
multiple impairments. Counsel contended that she was entitled to wage-loss compensation for
total disability back to October 30, 2004. He also contended that the employing establishment’s
withdrawal of appellant’s limited-duty position, effective that date, for which she was assigned
due to her accepted conditions, constituted a recurrence of disability. Counsel further contended
that the fact that appellant’s term appointment expired on October 30, 2004 did not negate her
entitlement to compensation benefits because she had continued disability causally related to her
accepted employment injuries.
On November 13, 2009 OWCP advised appellant to submit a Form CA-7 for the period
commencing October 30, 2004. On March 15, 2010 appellant filed a Form CA-7 for the period
commencing November 1, 2004.
By letter dated April 30, 2010, OWCP advised the employing establishment that
appellant’s March 15, 2010 Form CA-7 constituted a recurrence of disability claim and requested
the submission of factual evidence regarding her claim. It advised appellant that the evidence
submitted was insufficient to establish her claim. OWCP requested that she submit additional
factual and medical evidence which included a rationalized medical report from an attending
physician which demonstrated knowledge of all her personal and work activities after June 4,
2000, provided a diagnosis, history of all medical treatment, medical findings and an opinion
4

In the May 21, 2007 notice, OWCP advised appellant that her April 4, 2007 Form CA-7, claiming compensation
commencing November 1 2004, was not valid as the employing establishment did not sign the form and she did not
indicate an end date for the claimed compensation.

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with medical reasons on whether and how her disability as of November 1, 2004 was caused by
her September 26, 1999 employment injuries.
In a May 21, 2010 narrative statement, appellant contended that she had never recovered
from her accepted right shoulder injury for which she received medical treatment. She provided
a history of her federal employment and medical treatment. Appellant experienced diverticulitis
and shingles in 2003. She was hospitalized in August 2004 for blacking out and right shoulder
pain. Appellant stated that her July 2005 fall did not involve the right shoulder.
In treatment notes dated January 16 through December 4, 2001, Dr. Randolph addressed
appellant’s cervical condition, medical treatment and permanent impairment of her right upper
extremity.
In a May 25, 2010 letter, Elaine F. Lassner, an employing establishment human
resources/injury compensation specialist, stated that appellant was a temporary seasonal
employee beginning in June 1996. She worked from June through September each year. There
was no evidence in either appellant’s workers’ compensation records or official personnel file
indicating that light-duty accommodations were ever requested. Ms. Lassner stated that an
accompanying description of her visitor information receptionist position listed few physical
demands since it was primarily a sedentary job. There was no evidence of any agreements
revising termination dates. Ms. Lassner submitted notification of personnel action forms (SF-50)
which showed the flow of temporary appointments effective in June and terminations or
resignations effective in September each year. She noted that in July 2001 appellant’s regular
appointment was converted to a term appointment after she applied and was selected for an
information receptionist position. Ms. Lassner explained that a term appointment meant that
appellant was guaranteed full-time employment for one year. She noted that appellant’s
workers’ compensation file contained no medical documentation beyond November 22, 1999.
In a December 20, 2010 decision, OWCP denied the claim for a recurrence of disability
from November 1, 2004 to September 21, 2005. It found no contemporaneous medical evidence
establishing that appellant had disabling residuals of her September 26, 1999 employmentrelated conditions. OWCP determined that the evidence was insufficient to establish that the
claimed recurrence of disability was due to the withdrawal of her light-duty position on
October 30, 2004 as there were no agreements to revise her termination dates and the position
was not made specifically to accommodate physical limitations related to her accepted injuries.
By decision dated May 17, 2011, OWCP finalized its proposed rescission of appellant’s
recurrence of disability claim commencing September 21, 2005. The medical evidence
submitted by appellant was found to be insufficient to establish total disability on the claimed
date due to her accepted injuries. OWCP stated that the intervening July 15, 2001 motor vehicle
accident and resultant cervical surgery and July 2, 2005 fall broke the chain of causal
relationship. As a consequence of rescinding the acceptance of the recurrence, OWCP further
denied authorization for the proposed right shoulder surgery.
In a May 19, 2011 decision, OWCP denied appellant’s claim for a recurrence of disability
commencing September 21, 2005. It found that the medical evidence was insufficient to
establish total disability causally related to her September 26, 1999 employment injuries.

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LEGAL PRECEDENT -- ISSUE 1
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.5 This term also means an inability to work that takes place when a lightduty assignment made specifically to accommodate an employee’s physical limitations due to his
or her work-related injury or illness is withdrawn (except when such withdrawal occurs for
reasons of misconduct, nonperformance of job duties or a reduction-in-force), or when the
physical requirements of such an assignment are altered so that they exceed his or her established
physical limitations.6
When an employee who is disabled from the job she held when injured on account of
employment-related residuals returns to a limited-duty position or the medical evidence of record
establishes that she can perform the limited-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 to show that she cannot perform such limited-duty work. 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 limited-duty job requirements.7
To show a change in the degree of the work-related injury or condition, the claimant must
submit rationalized medical evidence documenting such change and explaining how and why the
accepted injury or condition disabled the claimant for work on and after the date of the alleged
recurrence of disability.8
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a rotator cuff tear and strain of the right
shoulder and a cervical strain on September 26, 1999 while working as a temporary full-time
seasonal visitor information technician. Following these injuries, she returned to light-duty work
as a full-time term information receptionist. Appellant claimed recurrences of disability
commencing November 1, 2004.
The record reflects that appellant was a seasonal employee whose term expired on
October 30, 2004. In a May 25, 2010 letter accompanied by several SF-50 forms, the employing
establishment stated that appellant worked from June through September each year commencing
in June 1996. It related that in July 2001 her regular appointment was converted to a term
appointment which meant that she was guaranteed full-time employment for one year following
her selection to work as a visitor information technician. The employing establishment stated
that there was no evidence of any agreements revising appellant’s termination date. Appellant
5

20 C.F.R. § 10.5(x).

6

Id.

7

Albert C. Brown, 52 ECAB 152, 154-55 (2000); Barry C. Peterson, 52 ECAB 120 (2000); Terry R. Hedman, 38
ECAB 222, 227 (1986).
8

James H. Botts, 50 ECAB 265 (1999).

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worked in this position through October 30, 2004 when the term appointment ended. The Board
has held that, when a claimant stops work for reasons unrelated to the accepted employment
injury, there is no disability within the meaning of FECA.9 A recurrence of disability also does
not include work stoppage caused by the termination of a temporary employment.10 In this case,
both the employing establishment and appellant stated that she was a temporary employee and
that her term appointment terminated on October 30, 2004. The Board finds that the evidence
does not establish that she was off work due to a medical disability.
The Board further finds that the medical evidence fails to establish that appellant was
disabled as a result of her September 26, 2009 employment injuries. Dr. Knackendoffel’s reports
found that appellant had partial rotator cuff tear, glenohumeral degenerative arthritis with loose
chondral bodies, degenerative arthritis of the AC joint, chronic impingement syndrome and
adhesive capsulitis of the right shoulder. His statement that her rotator cuff tear, pain and
adhesive capsulitis of the right shoulder were probably related to the accepted injuries and
authorized surgery is speculative in nature and unsupported by a full history of injury or
rationalized medical opinion explaining the nature of the relationship between her right shoulder
conditions and the accepted employment-related conditions. The Board has held that medical
opinions which are speculative or equivocal in character have little probative value.11 Further,
the Board has consistently held that pain is a symptom, not a compensable medical diagnosis.12
Dr. Knackendoffel determined that appellant’s right shoulder rotator cuff tear and adhesive
capsulitis were caused or exacerbated by her July 1, 2005 fall, but the Board finds that he
attributed the claimed recurrence of disability to an intervening injury which broke the chain of
causation stemming from the accepted conditions caused by the September 26, 1999
employment injury. For these reasons, the Board finds that Dr. Knackendoffel’s reports are
insufficient to establish appellant’s claim.
Dr. Randolph’s treatment notes dated January 16 through December 4, 2001 and a
January 16, 2001 report addressed appellant’s cervical condition, medical treatment and
permanent impairment of the right upper extremity. He did not provide a rationalized medical
opinion addressing her disability for work during the claimed period causally related to the
accepted injuries. Medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.13 The
Board finds, therefore, that Dr. Randolph’s treatment notes and report are insufficient to establish
appellant’s claim.

9

Hubert A. Jones, 57 ECAB 467 (2006); John W. Normand, 39 ECAB 1378 (1988).

10

D.M., Docket No. 11-194 (issued October 5, 2011); see also Federal (FECA) Procedure Manual, Part 2 -Claims, Recurrences, Chapter 2.1500.3(b)(2)(a) (May 1997). The Board has also noted that an employee generally
will not be considered to have experienced a compensable recurrence of disability as defined in 20 C.F.R. § 10.5(x)
merely because his or her employer has eliminated the employee’s light-duty position in a reduction-in-force or
some other form of downsizing. See 20 C.F.R. § 10.509.
11

L.R. (E.R.), 58 ECAB 369 (2007); Kathy A. Kelley, 55 ECAB 206 (2004).

12

C.F., Docket No. 08-1102 (issued October 10, 2008); Robert Broome, 55 ECAB 339 (2004).

13

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

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Dr. Utt’s November 10, 2008 progress note found that appellant was unable to work due
to her chronic pain, hypertension, dizziness, rotator cuff syndrome, cervical degenerative disc
disease and chronic Stage III kidney disease. However, he failed to provide medical rationale
explaining how or why the diagnosed conditions were caused by the accepted September 26,
1999 employment injuries.14 Further, Dr. Utt did not identify any period of total disability due to
appellant’s accepted employment-related injuries.
The reports from appellant’s physical therapists are of no probative value because a
physical therapist is not a physician as defined under FECA.15 The Board finds, therefore, that
these reports are insufficient to establish appellant’s claim.
On appeal, counsel argued that the withdrawal of appellant’s limited-duty position
effective October 30, 2004 constituted a recurrence of disability. He further argued that she has
continuing disability due to her accepted employment injuries. As stated, the record
demonstrates that appellant was a seasonal employee whose appointment ended on
October 30, 2004. The record substantiates that she stopped work because her term appointment
expired, not because of her accepted injuries. Further, the medical evidence failed to establish
that appellant was disabled from work as a result of the September 26, 1999 injuries. Appellant
failed to meet her burden of proof in this case and, thus, OWCP properly denied her claims for a
recurrence of disability.
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.
LEGAL PRECEDENT -- ISSUE 2
Section 8128 of FECA provides that the Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.16 The Board
has upheld OWCP’s authority to reopen a claim at any time on its own motion under section
8128 of FECA and, where supported by the evidence, set aside or modify a prior decision and
issue a new decision.17 The Board has noted, however, that the power to annul an award is not
an arbitrary one and that an award for compensation can only be set aside in the manner provided
by the compensation statute.18 Workers’ compensation authorities generally recognize that
compensation awards may be corrected, in the discretion of the compensation agency and in
conformity with statutory provision, where there is good cause for so doing, such as mistake or
fraud. It is well established that, once OWCP accepts a claim, it has the burden of justifying the
termination or modification of compensation benefits. This holds true where OWCP later

14

See Frederick H. Coward, Jr., 41 ECAB 843 (1990); Lillian M. Jones, 34 ECAB 379 (1982).

15

See 5 U.S.C. § 8101(2); A.C., Docket No. 08-1453 (issued November 18, 2008).

16

5 U.S.C. § 8128.

17

Eli Jacobs, 32 ECAB 1147 (1981); see also 20 C.F.R. § 10.610.

18

Doris J. Wright, 49 ECAB 230 (1997); Shelby J. Rycroft, 44 ECAB 795 (1993).

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decides that it erroneously accepted a claim. In establishing that its prior acceptance was
erroneous, OWCP is required to provide a clear explanation of the rationale for rescission.19
ANALYSIS -- ISSUE 2
As stated, OWCP accepted that on September 26, 1999 appellant sustained employmentrelated rotator cuff tear and strain of the right shoulder and a cervical strain. Appellant claimed a
recurrence of disability as of September 21, 2005. OWCP did accept that she was entitled to
compensation for temporary total disability for the claimed date and, therefore, it is its burden to
rescind acceptance and must provide a clear explanation of the rationale for the rescission.
OWCP explained that the medical evidence did not support a recurrence of disability as
of September 21, 2005. As stated, 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.20 The Board finds that the medical evidence is not
of sufficient probative value on the issue presented.
A September 21, 2005 MRI scan showed that appellant had a retorn supraspinatus tendon
of the right shoulder. Dr. Knackendoffel stated in an October 31, 2005 progress note that,
despite appellant’s belief that she did not fall on her right shoulder on July 1, 2005, his review of
her medical records revealed that she broke her fall on that date with her right arm. In a
March 23, 2006 progress note, he found that her right shoulder pain following the accepted
September 26, 1999 injuries and authorized surgery was exacerbated by the July 1, 2005 injury.
The Board finds that Dr. Knackendoffel noted that appellant’s claimed disability was due to an
intervening injury that negated the causal relationship between the accepted conditions and her
condition as of September 21, 2005. Dr. Knackendoffel’s subsequent opinion in the March 23,
2006 progress note, that appellant’s recurrent rotator cuff tear of the right shoulder was probably
related to the accepted injuries perhaps because the rotator cuff repair never completely healed is
speculative in nature and he did not provide any medical rationale explaining the change in his
opinion.21 In light of the foregoing, the Board finds that appellant’s claim does not meet the
definition of a recurrence of disability.
The Board finds that OWCP properly explained that there was no probative medical
evidence establishing a recurrence of disability as of September 21, 2005 causally related to the
accepted September 26, 1999 employment injuries. Therefore, OWCP met its burden to justify
rescission in this case.
On appeal, counsel contended that appellant was entitled to wage-loss compensation for
her employment-related total disability effective September 21, 2005. The Board finds,
however, that, for the reasons explained above, OWCP met its burden of proof to rescind
acceptance of appellant’s recurrence of disability claim for September 21, 2005.

19

R.M., Docket No. 07-1066 (issued February 6, 2009); John W. Graves, 52 ECAB 160 (2000).

20

20 C.F.R. § 10.5(x).

21

See cases cited, supra note 11.

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CONCLUSION
The Board finds that appellant failed to establish that she sustained a recurrence of
disability commencing November 1, 2004 causally related to her accepted September 26, 1999
employment injuries. The Board further finds that OWCP properly rescinded an acceptance of
appellant’s claim for a recurrence of disability effective September 21, 2005.
ORDER
IT IS HEREBY ORDERED THAT the May 19 and 17, 2011 and December 20, 2010
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: May 16, 2012
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
__________________________________________
J.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bethesda, MD, Employer
__________________________________________

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

Docket No. 18-1304
Issued: May 1, 2019

Case Submitted on the Record

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

JURISDICTION
On June 18, 2018 appellant filed a timely appeal from a January 17, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish total disability for
the period September 26 through October 7, 2017 causally related to her accepted August 26, 2017
employment injury.

1
2

5 U.S.C. § 8101 et seq.

Together with her appeal request, appellant submitted a timely request for oral argument pursuant to 20 C.F.R.
§ 501.5(b). By order dated March 4, 2019, the Board exercised its discretion and denied the request, as appellant’s
arguments on appeal could be adequately addressed in a decision based on a review of the case as submitted on the
record. Order Denying Request for Oral Argument, Docket No. 18-1304 (issued March 4, 2019).

FACTUAL HISTORY
On August 28, 2017 appellant, then a 62-year-old clerk, filed a traumatic injury claim
(Form CA-1) alleging that, on August 26, 2017, she was lifting parcels and pulling/pushing allpurpose containers on an Express Mail run causing bilateral upper extremity muscle strains while
in the performance of duty. On the reverse side of the claim form the employing establishment
indicated that she stopped work on the date of injury and returned to work on August 28, 2017.
On August 26, 2017 appellant was treated in the emergency department at Bowie Health
Center and received a diagnosis of bilateral biceps strain. Dr. Kraig A. Melville, Board-certified
in emergency medicine, advised that she could return to work on August 28, 2017 with restrictions
of no physical activity and no heavy lifting over 10 pounds. The restrictions applied through
August 31, 2017. Dr. Melville indicated that, after August 31, 2017, appellant should be able to
fully participate in all work duties or activities.
On September 1, 2017 Dr. Susan J. Liu, a Board-certified physiatrist, noted that appellant
presented with complaints of pain and aching in her biceps. Appellant told Dr. Liu that she had
been involved in a work-related incident on August 26, 2017 and that, over the past week, she had
been lifting and picking up heavy boxes. She also told Dr. Liu that she had been off work for five
days, subsequent to August 26, 2017, and that when she attempted to return to work the lifting had
aggravated her symptoms. On examination Dr. Liu noted tenderness to palpation in the bulk of
the biceps muscle with resisted maneuvers and discomfort. She diagnosed bilateral biceps strain
as a result of a work-related injury on August 26, 2017. Dr. Liu noted that appellant was currently
not working, as she was on vacation, and advised that she could return to work in a light-duty
capacity on September 11, 2017 with a restriction of no lifting. She also prescribed physical
therapy.
In a duty status report (Form CA-17) dated September 7, 2017, Dr. Liu recommended work
restrictions of: no lifting; driving a vehicle no more than one hour per day; sitting, walking,
bending/stooping, and pulling/pushing no more than four hours per day; and kneeling, twisting,
fine manipulation, and reaching above the shoulder no more than six hours per day. She reported
that appellant could return to work as of September 11, 2017.
On September 21, 2017 Dr. Liu noted that appellant was working light duty with
restrictions of no lifting. She noted that appellant was awaiting approval for physical therapy and
again diagnosed bilateral biceps strain as a result of the work-related injury on August 26, 2017.
In an undated statement, which OWCP received on September 29, 2017, appellant
described how her bilateral upper extremity condition developed over a two-day period, August 25
to 26, 2017. She also noted a prior history of bilateral rotator cuff surgeries.
During an October 6, 2017 follow-up examination, appellant told Dr. Liu that, due to the
light-duty restriction of no lifting, she had been unable to return to work.
In an internal OWCP memorandum dated October 16, 2017, a claims examiner noted that,
based on appellant’s statement, her claim should be converted to an occupational disease claim
because it had developed over a period of two days rather than as a single incident.

2

On October 16, 2017 OWCP accepted appellant’s claim for bilateral biceps strain.
On October 18, 2017 Dr. Liu noted that appellant was on light duty with a restriction of no
lifting over five pounds.
On November 1, 2017 appellant filed a claim for compensation (Form CA-7) for the period
September 26 through October 18, 2017. In an attached time analysis form (Form CA-7a), she
stated that she was under her physician’s care on September 26, 2017 and that her manager told
her that there was no work was available. From September 26 through October 7, 2017, appellant
claimed eight hours of leave without pay (LWOP) for each date she was scheduled to work. She
further noted that she attended an appointment with her physician on October 18, 2017 and claimed
3.28 hours of LWOP for that date.
On November 8, 2017 Dr. Liu noted that appellant had begun physical therapy and that her
right arm pain had improved, but she still had pain in the left bicep. On examination she noted
tenderness to palpation of the left upper extremity. Dr. Liu indicated that appellant remained on
light duty with no lifting over five pounds.
By letter dated November 14, 2017, OWCP notified appellant that it could not process her
claim for compensation for the period September 26 through October 18, 2017 because it was
unclear why she was off work, as she had been released to full-time limited duty. It advised that
if she was claiming compensation because the employing establishment had no work within her
restrictions, she would need to provide written verification of this situation from a knowledgeable
supervisor.
On November 20, 2017 Dr. Liu noted that appellant had seen an orthopedist who had
previously performed surgery on her left shoulder for a rotator cuff injury, and who administered
a cortisone shot. On examination she noted mild tenderness to palpation of the left upper extremity
and mild pain with resisted maneuvers. Dr. Liu recommended that appellant remain on light duty
with no lifting over five pounds.
On December 4, 2017 Dr. Liu noted that another physician had placed appellant on
permanent light duty with a five-pound lifting restriction.
Appellant submitted physical therapy notes dated from October 30 through
December 12, 2017.
By letter dated December 12, 2017, appellant stated that she had requested that her
supervisor write a statement regarding the fact that no work had been available due to her work
restriction of no lifting, but that her supervisor had refused.
In a record of a telephone conversation dated January 5, 2018, appellant informed OWCP
that she had sent an e-mail to the employing establishment asking them to confirm whether work
within her restrictions was unavailable for the period September 26 through October 18, 2018.
By decision dated January 17, 2018, OWCP authorized payment of compensation for 3.28
hours of lost wages on October 18, 2017 due to a medical appointment. However, it denied
appellant’s claim for compensation for temporary total disability from September 26 through
3

October 7, 2017. OWCP noted that it had not received either a narrative medical report from
appellant’s physician explaining why she was disabled from work for the period in question, or a
letter from the employing establishment indicating that there was no work available within
appellant’s restrictions.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.4 For each period of disability
claimed, the employee has the burden of proof to establish that he or she was disabled from work
as a result of the accepted employment injury.5 Whether a particular injury causes an employee to
become disabled from work, and the duration of that disability, are medical issues that must be
proven by a preponderance of probative and reliable medical opinion evidence.6
Under FECA the term disability means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.7 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.8 An employee who has a physical impairment causally related to his or her federal
employment, but who nonetheless has the capacity to earn the wages that he or she was receiving
at the time of injury, has no disability and is not entitled to compensation for loss of wage-earning
capacity.9 When, however, the medical evidence establishes that the residuals or sequelae of an
employment injury are such that, from a medical standpoint, they prevent the employee from
continuing in his or her employment, he or she is entitled to compensation for any loss of wages.
The Board will not require OWCP to pay compensation for disability in the absence of any
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so would essentially allow employees to self-certify their disability and entitlement
to compensation.10
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden of proof to establish entitlement to compensation,
OWCP shares responsibility to see that justice is done.11 The non-adversarial policy of
3

Supra note 1.

4

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986).

5

See Amelia S. Jefferson, id.

6

See Edward H. Horton, 41 ECAB 301 (1989).

7

S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); 20 C.F.R. § 10.5(f).

8

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

9

Merle J. Marceau, 53 ECAB 197 (2001).

10

William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

11

K.S., Docket No. 18-0845 (issued October 26, 2018); John J. Carlone, 41 ECAB 354 (1989).

4

proceedings under FECA is reflected in 20 C.F.R. § 10.121.12 Once OWCP undertakes to develop
the evidence, it has the responsibility to do so in a proper manner.13
ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP has not fully developed appellant’s claim for disability compensation for the period
from September 26 through October 7, 2017. After she filed her Form CA-7, it notified appellant
by letter dated November 14, 2017 that it could not process her claim for compensation for the
claimed period because it was unclear why she was off work, as she had been released to full-time
limited duty. OWCP informed appellant that she would need to provide written verification of
this situation from a knowledgeable supervisor. Appellant responded that her supervisor refused
to provide the necessary documentation to her regarding the unavailability of light-duty work. In
a record of a telephone conversation with an OWCP representative dated January 5, 2018, OWCP
was noted that an e-mail had been sent to the employing establishment requesting confirmation as
to whether work was unavailable for appellant for the period September 26 through
October 18, 2018. No response was provided from the employing establishment.
Although it is appellant’s burden to establish her claim, OWCP is not a disinterested
arbiter, but rather, shares responsibility in the development of the evidence, particularly when such
evidence is of the character normally obtained from the employing establishment or other
government source.14 The employing establishment was instructed to provide the necessary
information regarding whether light-duty employment had been made available to appellant, but
it failed to respond as required.
For these reasons, the case will be remanded to OWCP to obtain additional information
from the employing establishment regarding whether light-duty employment was available during
the claimed period of disability.15 After carrying out such further development, OWCP shall issue
a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

12

20 C.F.R. § 10.121.

13

C.F., Docket No. 18-1607 (issued March 12, 2019); L.B., Docket No. 15-0905 (issued September 19, 2016).

14

D.M., Docket No. 14-0460 (issued February 11, 2016); C.S., Docket No. 14-1994 (issued January 21, 2015).

15

L.B., Docket No. 17-1671 (issued November 6, 2018).

5

ORDER
IT IS HEREBY ORDERED THAT the January 17, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision of the Board.
Issued: May 1, 2019
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Memphis, TN, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 17-1952
Issued: February 9, 2018

Case Submitted on the Record

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

On September 20, 2017 appellant, through counsel, filed a timely appeal from an
August 2, 2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). The
appeal was docketed as No. 17-1952.
On October 30, 2016 appellant filed an occupational disease claim (Form CA-2) alleging
that his job required a lot of sitting that caused right arm pain. He first became aware of the
condition on July 23, 2015. The employing establishment indicated that appellant was working
sedentary duties. In an attached statement, appellant described a previous right shoulder injury
that occurred when he was lifting a stuck rear door on a work vehicle. He had shoulder surgery
on November 30, 2015 and returned to modified duty in June 2016. Appellant also reported that
he had previous rotator cuff surgery in 2012 due to an injury that occurred at home.

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.

By decision dated January 13, 2017, OWCP denied the claim, finding that the medical
evidence of record did not establish an occupational disease caused by his sedentary, modified
duties. Counsel timely requested a hearing that was held on June 29, 2017. In an August 2,
2017 decision, the hearing representative affirmed the January 13, 2016 decision. She noted that
appellant had a previous claim for a July 23, 2015 employment injury, adjudicated under File
No. xxxxxx708, accepted for right wrist sprain and right shoulder sprain, and that he had
authorized right shoulder arthroscopy by Dr. Thomas W. Throckmorton, a Board-certified
orthopedic surgeon, under that claim on November 30, 2015. The hearing representative
referenced an October 3, 2016 report in which Dr. Throckmorton indicated that the arthroscopic
repair he performed on the right rotator cuff on September 12, 2012 had failed four years later.
She noted that this surgery was for a nonindustrial injury and thus did not support that
appellant’s current condition was causally related to employment factors. The hearing
representative directed that File Nos. xxxxxx149 and xxxxxx708 be combined under OWCP
procedures which provide for combining cases where correct adjudication depends on crossreferencing between files.2
The Board finds that the case is not in posture for decision. Pursuant to 20 C.F.R.
§ 501.2(c)(1), 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. Decisions on claims are based on the written
record, which may include forms, reports, letters, and other evidence of various types such as
photographs, videotapes or drawings.3 Evidence may not be incorporated by reference, nor may
evidence from another claimant’s case file be used.4 Evidence contained in another of the
claimant’s case files may be used, but a copy of that evidence should be placed into the case file
being adjudicated.5 All evidence that forms the basis of a decision must be in that claimant’s
case record.6 Furthermore, OWCP procedures provide for doubling case files when correct
adjudication of the issues depends on frequent cross-reference between files such as when a new
injury case is reported for an employee who previously filed an injury claim for a similar
condition or the same part of the body.7
The hearing representative’s August 2, 2017 decision referenced evidence associated
with OWCP File No. xxxxxx708 and she directed OWCP to double this file with File No.
xxxxxx149. She discussed an October 3, 2016 report by Dr. Throckmorton and relied on this
medical evidence in denying appellant’s occupational disease claim at issue here. However, the
Board notes that Dr. Throckmorton’s October 3, 2016 report is not in the current case record,
File No. xxxxxx149, and OWCP has not doubled File Nos. xxxxxx149 and xxxxxx708 as
directed by the hearing representative. In the instant appeal, it appears that, for a full and fair
2

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)(1)
(February 2000).
3

Id. at Initial Development of Claims, Chapter 2.800.5a (June 2011).

4

Id.

5

Id.

6

Id.

7

Supra note 2.

2

adjudication, OWCP’s claims pertaining to appellant’s right arm conditions should be combined
pursuant to OWCP procedures.8 The case will be remanded to OWCP to combine case File Nos.
xxxxxx149 and xxxxxx708. Following this and such other development as deemed necessary,
OWCP shall issue an appropriate merit decision on appellant’s claim.
IT IS HEREBY ORDERED THAT the August 2, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with this order of the Board.
Issued: February 9, 2018
Washington, DC

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

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

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

8

Id. at File Maintenance and Management, Chapter 2.400.8(c) (February 2000).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
PHILADELPHIA VETERANS
ADMINISTRATION MEDICAL CENTER,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 15-0883
Issued: August 6, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On March 9, 2015 appellant filed a timely appeal of a September 12, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed between July 16, 2014, the date of the most recent merit decision to the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of appellant’s claim.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for further merit review
pursuant to 5 U.S.C. § 8128(a).
1
2

5 U.S.C. §§ 8101-8193.

The Board notes that appellant submitted evidence with her appeal to the Board. The Board cannot consider this
evidence as its jurisdiction is limited to the evidence that was before OWCP at the time it issued its final decision.
20 C.F.R. § 501.2(c)(1).

On appeal appellant asserts that the record establishes that she sustained an employmentrelated emotional condition.
FACTUAL HISTORY
On November 4, 2013 appellant, then a 60-year-old supervisor in the travel department,
filed an occupational disease claim alleging that harassment and bullying by employing
establishment management caused a panic disorder, stress, and depression. In an attached
statement, she claimed that she first became aware of the conditions on or about May 2012 and
the relationship to employment on August 14, 2013. On August 19, 2013 appellant stopped
work. She stated that a number of supervisors in the travel department harassed and bullied her.
Appellant specifically, stated that she was improperly reprimanded, improperly placed on a
performance improvement plan, that a contract was improperly discontinued, that an audit was
improperly done, and that she did not receive proper assistance in filing her claim.
In an October 21, 2013 report, Lillian S. Goertzel, Ph.D., advised that appellant required
a leave of absence until at least November 30, 2013. On December 24, 2013 she advised that
appellant was seen for outpatient psychotherapy and required a continued leave of absence until
at least January 31, 2014.
In letters dated January 10, 2014, OWCP informed appellant of the evidence needed to
support her claim and asked the employing establishment to respond.
In a February 8, 2014 report, Dr. Goertzel reported that appellant had attended a number
of psychotherapy sessions beginning on May 14, 2013 with diagnoses of panic disorder and
major depressive disorder. She indicated that appellant had described a number of events of
mistreatment at work which caused her psychological diagnosis.
Appellant submitted a February 17, 2014 statement in which she described her job duties.
She alleged that there was an overwhelming workload created by staffing shortages and minimal
assistance from her managers, which led to increased stress. Appellant stated that she dealt with
constant bullying and harassment and was threatened with removal from her supervisory
position, and reiterated her description of events and concerns, with more detail, as compared to
her prior statement. She related that she had prior stress conditions in 1993 and 2003 when she
was a victim of reprisal for filing Equal Employment Opportunity Commission complaints.
Appellant also submitted a number of reports from physicians at Penn Medicine. These included
a treatment note dated May 31, 2012 in which Dr. Carol Chou, a Board-certified internist,
reported that appellant’s job stress began in 2006. Dr. Chou diagnosed stress reaction. On
May 24, 2014 Dr. Michelle Hu, Board-certified in internal medicine, noted appellant’s
complaints of stress and depression. She diagnosed depressive disorder and noted that appellant
was seeing a psychologist.
The employing establishment submitted statements from Jeffrey C. Vollum and Syvonne
Carter, both of whom countered each of appellant’s allegations with specific explanations.
By decision dated July 16, 2014, OWCP found that appellant had not established a
compensable factor of employment and denied her claim. It further found that, even had she

2

established a compensable employment factor, the medical evidence of record was insufficient to
establish causal relationship.
On August 13, 2014 appellant faxed a reconsideration request to OWCP, stating that
additional information to support her request would be forthcoming. On an attached appeal
request form, she checked that she was requesting reconsideration.
In a nonmerit decision dated September 12, 2014, OWCP denied appellant’s
reconsideration request. It noted that she submitted no evidence or argument to support her
request.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation, either under its own authority or on
application by a claimant.3 Section 10.608(a) of OWCP’s regulations provides that a timely
request for reconsideration may be granted if OWCP determines that the employee has presented
evidence and/or argument that meets at least one of the standards described in section
10.606(b)(3).4 This section provides that the application for reconsideration must be submitted
in writing and set forth arguments and contain evidence that either: (i) shows that OWCP
erroneously applied or interpreted a specific point of law; (ii) advances a relevant legal argument
not previously considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not
previously considered by OWCP.5 Section 10.608(b) provides that when a request for
reconsideration is timely but fails to meet at least one of these three requirements, OWCP will
deny the application for reconsideration without reopening the case for a review on the merits.6
ANALYSIS
The only decision before the Board in this appeal is the nonmerit decision of OWCP
dated September 12, 2014 denying appellant’s application for review. Because there is no
OWCP merit decision within the Board’s jurisdiction, the Board lacks jurisdiction to review the
merits of her claim.7
The Board finds that, as appellant did not assert that OWCP erroneously applied or
interpreted the law or advance a relevant legal argument not previously considered by OWCP,
she was not entitled to a review of the merits of her claim based on the first and second
above-noted requirements under section 10.606(b)(3).8
3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.608(a).

5

Id. at § 10.608(b)(1) and (2).

6

Id. at § 10.608(b).

7

Id. at § 501.3(e).

8

Id. at § 10.606(b)(3); see R.M., 59 ECAB 690 (2008).

3

With respect to the third above-noted requirement under section 10.606(b)(2), appellant
submitted no additional evidence.
As appellant did not show that OWCP erred in applying a point of law, advance a
relevant legal argument not previously considered, or submit relevant and pertinent new
evidence not previously considered by OWCP, it properly denied her reconsideration request.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
consideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the September 12, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 6, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Piedmont, MO, Employer
__________________________________________

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Appearances:
Jim Lawing, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1971
Issued: August 21, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On September 8, 2011 appellant, through her representative, filed a timely appeal from
April 12 and August 10, 2011 merit decisions of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant is entitled to a schedule award for a permanent impairment
of the left arm.
FACTUAL HISTORY
On June 20, 2005 appellant, then a 55-year-old rural carrier associate, filed a traumatic
injury claim alleging that on June 18, 2005 she injured her left hand, wrist, shoulder, head and
right leg in a motor vehicle accident. OWCP accepted the claim for left wrist sprain, multiple
contusions and major depression.
1

5 U.S.C. § 8101 et seq.

By decision dated June 20, 2006, OWCP terminated appellant’s compensation effective
that date after finding that she had no further disability due to her accepted work injuries.
In a letter dated July 1, 2009, appellant requested expansion of her claim to include carpal
tunnel syndrome. On July 6, 2009 her attorney requested that she receive a schedule award
based on a February 23, 2009 impairment evaluation by Dr. John W. Ellis, Board-certified in
family medicine, who applied the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides) (5th ed. 2001) and concluded that she had a 46 percent
permanent impairment of the left upper extremity.
In a May 18, 2010 impairment evaluation, Dr. Ellis diagnosed left wrist, elbow, shoulder
and upper back sprains and strains, left ulnar nerve entrapment and cubital tunnel syndrome,
internal derangement of the left shoulder joint, left brachial plexus impingement, medial
epicondylitis with left ulnar nerve impingement, resolved back, hip and right knee contusions
and post-traumatic stress disorder with depression. He attributed the diagnosed conditions to the
employment injury based on the impact forces from the motor vehicle accident. Dr. Ellis opined
that appellant was totally disabled. Applying the sixth edition of the A.M.A., Guides, he
concluded that she had a 40 percent permanent impairment of the left arm due to loss of range of
motion of the shoulder and wrist and elbow entrapment neuropathy.
On December 31, 2010 an OWCP medical adviser reviewed Dr. Ellis’ report. He noted
that OWCP had only accepted left wrist sprain and that diagnostic studies were negative for
other conditions. The medical adviser determined that Dr. Ellis did not measure range of motion
in accordance with the sixth edition of the A.M.A., Guides. He asserted that appellant’s
continued symptoms might result from a psychiatric condition.
On February 1, 2011 OWCP informed appellant that the evidence was currently
insufficient to establish entitlement to a schedule award as Dr. Ellis addressed conditions other
than those related to her work injury. It advised her of the evidence required to establish a
schedule award and provided her 30 days to submit such evidence.
By decision dated April 12, 2011, OWCP denied appellant’s claim for a schedule award.
It found that she had not submitted any medical evidence in response to its February 1, 2011
letter.
In an April 27, 2011 impairment evaluation, Dr. Ellis listed left wrist findings of a
moderately positive Finkelstein test, swelling over the distal radius and
carpometacarpophalangeal thumb joint, a positive Tinel’s sign and Phalen’s test and the near loss
of a radial pulse when raising the left hand to shoulder height. He diagnosed left shoulder and
neck strain, left brachial plexus impingement, tendinitis and internal derangement of the left
shoulder, a left elbow contusion with lateral and medial epicondylitis and cubital tunnel
syndrome with ulnar nerve impingement and left wrist tendinitis and carpal tunnel
syndrome. Dr. Ellis attributed the diagnosed conditions to the motor vehicle accident based on
the forces involved in the collision. He stated:
“The forces were such that it caused sudden jerking of her neck and left shoulder.
This caused [a] tear of the muscles and ligaments in her neck and left shoulder.
Physical examination revealed palpable asymmetric tightness of the left shoulder
girdle and neck. This type of asymmetric intrinsic tightness cannot be faked or
2

feigned. The tight muscles in the left shoulder girdle area caused brachial plexus
and thoracic outlet impingement down the left arm.”
Dr. Ellis further described his findings and diagnoses for the left elbow and wrist. He
indicated that he would only rate the left wrist impairment as it was the accepted condition.
Using Figures 15-2 of the sixth edition of the A.M.A., Guides, Dr. Ellis identified the diagnosed
condition as a wrist sprain and applied grade modifiers to find a two percent left arm impairment.
On May 10, 2011 appellant, through her attorney, requested reconsideration. In a
decision dated August 10, 2011, OWCP found that Dr. Ellis’ report was of little probative value
as there were no examination records supporting his diagnoses or that indicated that she required
further medical treatment for her left wrist sprain and multiple contusions.
On appeal, appellant’s attorney argues that OWCP ignored the evidence from Dr. Ellis.
LEGAL PRECEDENT
FECA2 provides compensation for both disability and physical impairment. “Disability”
means the incapacity of an employee, because of an employment injury, to earn the wages the
employee was receiving at the time of injury.3 In such cases, FECA compensates an employee
for loss of wage-earning capacity. In cases of physical impairment FECA, under section
8107(a), compensates an employee, pursuant to a compensation schedule, for the permanent loss
of use of certain specified members of the body, regardless of the employee’s ability to earn
wages.4
The schedule award provision of FECA5 and its implementing federal regulations,6 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.7 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.8

2

Id.

3

Lyle E. Dayberry, 49 ECAB 369 (1998).

4

Renee M. Straubinger, 51 ECAB 667 (2000).

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

8

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

3

ANALYSIS
OWCP accepted that appellant sustained left wrist sprain, multiple contusions and major
depression due to a June 18, 2005 motor vehicle accident. On June 20, 2006 it terminated her
compensation after finding that she had no further employment-related disability due to her
accepted work injuries.
Appellant requested a schedule award and submitted a February 23, 2009 impairment
evaluation from Dr. Ellis finding that she had a 46 percent permanent impairment of the left
upper extremity under the fifth edition of the A.M.A., Guides. As of May 1, 2009, however, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.9 In an impairment
evaluation dated May 18, 2010, Dr. Ellis determined that appellant had a 40 percent permanent
impairment of the left arm under the sixth edition of the A.M.A., Guides due to loss of shoulder
and wrist motion and elbow entrapment neuropathy. He further opined that she had numerous
other left upper extremity conditions as a result of her motor vehicle accident. An OWCP
medical adviser reviewed Dr. Ellis’ opinion and determined that he did not measure range of
motion in accordance with the provisions of the A.M.A., Guides.10 He further noted that the
only accepted condition was left wrist sprain.
In an impairment evaluation dated April 27, 2011, Dr. Ellis found a moderately positive
Finkelstein test of the left wrist, swelling over the thumb joint, a positive Tinel’s sign and
Phalen’s test and the near loss of a radial pulse when raising the left hand to the height of the
shoulder. He diagnosed left shoulder and neck strain, left brachial plexus impingement,
tendinitis and internal derangement of the left shoulder, a left elbow contusion with lateral and
medial epicondylitis and cubital tunnel syndrome with ulnar nerve impingement and left wrist
tendinitis and carpal tunnel syndrome. Dr. Ellis attributed the diagnosed conditions to the motor
vehicle accident based on the degree of force involved in the crash and his findings on physical
examination.
In its August 10, 2011 decision, OWCP denied appellant’s claim after finding that there
was no evidence that she required continued medical treatment for her left wrist sprain and
multiple contusions. It further noted that there were no examination findings supporting the
other diagnosed conditions. The issue, however, is not whether appellant required further
medical treatment for her accepted condition but whether she is entitled to a schedule award for a
permanent impairment. A claimant may have an employment-related condition that results in
permanent impairment under the A.M.A., Guides without any disability for work or the need for
continued medical treatment.11
Accordingly, pursuant to its procedures, OWCP should have referred Dr. Ellis’ April 27,
2011 impairment evaluation to an OWCP medical adviser for an opinion regarding whether

9

Id.

10

See A.M.A., Guides 464.

11

See B.K., 59 ECAB 228 (2007).

4

appellant has a permanent impairment of the left arm.12 The case will be remanded to OWCP for
proper adjudication of the issue of the extent of impairment of the left arm.13
The Board notes that appellant requested expansion of her claim to include additional left
upper extremity conditions and submitted medical evidence in support of her request. Upon
return of the case record, OWCP should adjudicate whether she sustained additional conditions
as a result of her June 18, 2005 motor vehicle accident.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the August 10 and April 12, 2011 decisions of the
Office of Workers’ Compensation Programs are set aside and the case is remanded for further
proceedings consistent with this opinion of the Board.
Issued: August 21, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

12

See C.C., Docket No. 10-2204 (issued June 2011); see also Federal (FECA) Procedure Manual, supra note 8 at
Chapter 2.808.6d.
13

The Board notes that in determining entitlement to a schedule award, preexisting impairments to the scheduled
member are included; see Peter C. Belkind, 56 ECAB 580 (2005).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
O.R., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Miami, FL, Employer
__________________________________________

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

Docket No. 18-1458
Issued: August 2, 2019

Case Submitted on the Record

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

JURISDICTION
On July 28, 2018 appellant filed a timely appeal from a July 9, 2018 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a right knee injury
causally related to the accepted August 6, 2014 employment incident.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts and circumstances as set forth
in the Board’s prior order are incorporated herein by reference. The relevant facts are as follows.
On May 22, 2017 appellant, then a 34-year-old former transportation security officer, filed
a traumatic injury claim (Form CA-1) alleging that on August 6, 2014 he injured his right knee
when reportedly doing lunge exercises as part of a physical therapy/work conditioning program
while in the performance of duty. He further alleged that his right knee pain worsened over time
at work. Appellant described his claimed condition as right knee joint effusion with ruptured
popliteal cyst and vastus medialis obliquus atrophy. He last worked on November 16, 2015.3 On
the reverse side of the claim form, a supervisor stated that August 6, 2014 was a scheduled day off
for appellant.
Appellant submitted physical therapy treatment records covering the period August 6
through 11, 2014. An August 6, 2014 physical therapy record noted that he complained of
increased right knee “pain after doing lunges.”
In a consultation note dated April 8, 2015, Dr. Francis McCormick, an orthopedic surgeon,
examined appellant and diagnosed right knee pain. She noted no evidence of fracture or
dislocation in his x-rays.
On April 23, 2015 a magnetic resonance imaging (MRI) scan of appellant’s right knee
demonstrated a 1.2 centimeter cartilage defect superiorly in the trochlea; joint effusion; and intact
cruciate ligaments and menisci. Attached to this report was another diagnostic report dated
April 1, 2016. This MRI scan of appellant’s right knee demonstrated joint effusion with a ruptured
popliteal cyst, no definitive internal derangement of the knee, and findings suggesting a bone
bruise of the posterior outer lateral tibial plateau without definitive fracture.
In a report dated April 5, 2016, Dr. Samy Bishai, an orthopedic surgeon, diagnosed a
herniated lumbar disc at L5-S1 with right-sided radiculopathy of the right lower extremity, a status
postop right inferior L5 hemilaminectomy and right S1 hemilaminectomy and partial facetectomy
for the L5 nerve root and lysis of adhesions with excision of disc herniation at L5-S1, and slight
atrophy of the vastus medialis right knee joint. He noted that on April 22, 2013 appellant sustained
an injury at work after lifting heavy passenger luggage, which resulted in a sprain of his lumbar
spine. Dr. Bishai noted that appellant suffered an aggravation of his condition at work on May 14,
2013 when he dragged oversized luggage. He stated that Dr. Jonathan A. Hyde, a Board-certified
orthopedic surgeon, performed surgery on appellant’s back on April 1, 2014 including a right
inferior L5 hemilaminectomy, a right S1 anterior hemilaminectomy, an S1 foraminotomy, a partial
facetectomy for the L5 nerve root, and lysis of adhesions and excision of the disc herniation at the
L5-S1 disc space. Dr. Bishai opined that within a reasonable degree of medical certainty that

2

Order Remanding Case, Docket No. 18-0013 (issued April 9, 2018).

3

Effective April 14, 2016, appellant was removed from employment.

2

appellant’s vastus medialis atrophy was not related to a primary pathology of the right knee joint,
but rather related to his back condition, which was due to an injury on May 14, 2013.
By letter dated May 12, 2017, appellant explained that, after he had back surgery due to an
accepted work-related injury claim, he attended physical therapy/work conditioning. He stated
that on or about August 6, 2014 he began to feel pain in his right knee after performing lunges.
The knee pain became worse over time, and although it improved with rest and ice, it would resume
intermittently in the performance of appellant’s duties. Appellant stated that he was released to
full duty and returned on August 25, 2014 after which his right leg condition and back condition
began to deteriorate. He noted that he felt that he was not capable of bending, squatting, pushing,
dragging, or lifting items in excess of 50 pounds in an awkward, repetitive position on a permanent
basis.
By development letter dated June 2, 2017, OWCP advised appellant of the factual and
medical deficiencies of his claim. It provided a questionnaire for his completion to establish the
employment factors alleged to have caused or contributed to his medical condition and requested
a medical report from his attending physician explaining how and why his federal work activities
caused, contributed to, or aggravated his medical condition. OWCP afforded appellant 30 days to
submit the necessary evidence. No additional evidence was received.
By decision dated July 7, 2017, OWCP denied appellant’s claim, finding that the evidence
of record was insufficient to establish that the August 6, 2014 incident occurred in the performance
of duty as alleged.
On August 14, 2017 appellant requested reconsideration and submitted January 23, 2015
treatment notes from Dr. Hyde, who diagnosed lumbar disc displacement.
In a report dated June 14, 2017, Dr. Bishai stated that, in his initial report of April 5, 2016,
he had indicated that appellant’s vastus medialis atrophy was not related to a primary pathology in
the right knee joint, but rather to his back condition. He also indicated his opinion that the atrophy
was related to an injury on May 14, 2013 which aggravated his original injury of April 22, 2013,
and caused the development of radiculopathy due to compression of a nerve root in his back.
By decision dated September 20, 2017, OWCP modified the prior decision to find that
appellant had established a diagnosis. However, the claim remained denied as appellant had not
submitted sufficient medical evidence to establish causal relationship between his diagnosed
conditions and the accepted employment incident.
On October 2, 2017 appellant timely appealed the September 20, 2017 decision to the
Board. By order dated April 9, 2018, the Board set aside OWCP’s September 20, 2017 decision
and remanded the case for further development. The Board found that OWCP had referenced an
August 22, 2014 treatment note from Dr. Hyde and an undated report from Dr. Jesse Z. Shaw, an
orthopedic surgeon, both obtained from OWCP File No. xxxxxx033, but had not included the
referenced evidence in the current case record, OWCP File No. xxxxxx404.
On remand OWCP included additional evidence in the current file, OWCP File No.
xxxxxx404. In an August 22, 2014 treatment note, Dr. Hyde examined appellant for a follow-up
after physical therapy. He stated that physical therapy had helped appellant and that appellant was
3

ready to return to work. Appellant informed Dr. Hyde that, when he performed flexibility stretches
while attending physical therapy treatment, he felt pain radiating down his right leg. On
examination he noted normal findings in the right knee, as well as normal findings on inspection
of the right and left lower extremities. Dr. Hyde diagnosed lumbar disc displacement and stated
that appellant was at maximum medical improvement. By letter dated October 5, 2015, Dr. Shaw,
an orthopedic surgeon, indicated that appellant sustained a work-related injury on April 22, 2013
after lifting luggage. He noted that an MRI scan of appellant’s lumbar spine demonstrated disc
protrusion at L5-S1 and that appellant had a lumbar laminectomy/discectomy on April 1, 2014.
Dr. Shaw opined that the atrophy of the right quadriceps was due to the injury of appellant’s lumbar
spine on April 22, 2013, which led to nonphysiological altered gait mechanics and pathologic knee
symptoms.
On October 26, 2015 Dr. Shaw examined appellant for complaints of right thigh and knee
pain. On examination of the right thigh he noted tenderness on palpation, 4/5 strength, and full
active and passive range of motion without pain. Dr. Shaw noted that an MRI scan revealed a
1.2 cm cartilage defect of the trochlea. He diagnosed right joint effusion, right muscle wasting
and atrophy, and generalized right muscle weakness. Dr. Shaw noted that there was atrophy of
the right quadriceps, leading to nonphysiological altered gait and pathological knee symptoms. He
stated that he believed that appellant’s symptoms resulted from a prior injury.
In an attached accompanying undated letter, Dr. Shaw stated that appellant had been seen
in his office on October 5, 2015. He noted that appellant had sustained a work-related injury on
April 22, 2013 after lifting luggage at work, with complaints of pain radiating down his right leg.
An MRI scan demonstrated disc protrusion at L5-S1 with a mass effect on the right nerve root.
An electromyogram and nerve conduction velocity test demonstrated increased insertional activity
at the right L5 and S1 regions with some increased activity. Dr. Shaw noted that appellant
underwent lumbar surgery on April 1, 2014, after which appellant attended physical therapy.
Appellant began to complain of right knee pain and spasms down the leg, along with problems
walking and standing for long periods of time without fatigue. On examination, Dr. Shaw
observed tenderness of the right thigh with weakness on strength testing of the quadriceps. He
diagnosed right quadriceps muscle weakness and atrophy, right knee effusion, and right knee
cartilage defect of the trochlea. Dr. Shaw opined that the atrophy of the right quadriceps was due
to the injury of appellant’s lumbar spine on April 22, 2013 leading to nonphysiological altered gait
and pathologic knee symptoms.
By letter dated May 19, 2018, appellant argued that a review of his physical therapy notes
would indicate that he sustained knee pain around August 11, 2014. He stated that he had no
history of knee pain prior to his physical therapy sessions. Appellant therefore attributed his knee
conditions to physical therapy and subsequent duties of his federal employment.
By de novo decision dated July 9, 2018, OWCP denied appellant’s claim. It found that he
had not submitted sufficient medical evidence to establish that performing lunge exercises on
August 6, 2014 had caused his diagnosed right knee conditions. OWCP concluded, therefore, that
the requirements had not been met to establish an injury or condition causally related to the
accepted employment incident.

4

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA, that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Generally, fact of
injury consists of two components that must be considered in conjunction with one another. First
the employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time, place, and in the manner alleged.6 Second, the employee must
submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.7
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background. Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s).8
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a right knee
injury casually related to the accepted August 6, 2014 employment incident.
In support of his claim, appellant submitted reports from Dr. Shaw and Dr. Bishai dated
October 5, 2015 through June 14, 2017. On October 5, 2015 Dr. Shaw, an orthopedic surgeon,
stated that appellant sustained a work-related injury on April 22, 2013 after lifting luggage. He
opined that the atrophy of the right quadriceps was due to the injury of appellant’s lumbar spine
on April 22, 2013. On October 26, 2015 Dr. Shaw examined appellant for complaints of right
thigh and knee pain. He stated that he believed that appellant’s symptoms resulted from a prior
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5
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).
6

S.F., Docket No. 18-0926 (issued July 26, 2018); Elaine Pendleton, 40 ECAB 1143 (1989).

7

M.H., Docket No. 18-1737 (issued March 13, 2019); John J. Carlone, 41 ECAB 354 (1989).

8

S.S., Docket No. 18-1488 (issued March 11, 2019).

5

injury. In an undated letter, Dr. Shaw stated that appellant had sustained a work-related injury on
April 22, 2013 after lifting luggage at work and opined that the atrophy of the right quadriceps was
due to the injury of appellant’s lumbar spine on April 22, 2013. In a report dated April 5, 2016,
Dr. Bishai noted that on April 22, 2013 appellant sustained an injury at work after lifting heavy
passenger luggage, and that he suffered an aggravation of his condition at work on May 14, 2013.
On June 14, 2017 he stated that vastus medialis atrophy was related to an injury on May 14, 2013
which aggravated appellant’s original injury of April 22, 2013.
It is well established that medical reports must be based on a complete and accurate factual
and medical background, and medical opinions based on an incomplete or inaccurate history are
of limited probative value.9 While Dr. Shaw and Dr. Bishai provided opinions on the cause of
appellant’s condition, they did not attribute appellant’s conditions to an injury resulting from the
accepted August 6, 2014 employment incident.10
In an August 22, 2014 treatment note, Dr. Hyde examined appellant for a follow-up after
physical therapy. Appellant informed Dr. Hyde that, when he performed flexibility stretches while
attending physical therapy treatment, he felt pain radiating down his right leg. In this treatment
note, Dr. Hyde merely repeated the history of injury as reported by appellant without providing
his own opinion regarding whether his condition was related to an incident on August 6, 2014.11
Medical evidence that does not offer an opinion regarding the cause of an employee’s condition
or disability is of no probative value on the issue of causal relationship.12
Appellant submitted notes from Dr. Hyde and Dr. McCormick dated January 23 and
April 8, 2015. In January 23, 2015 treatment notes, Dr. Hyde diagnosed lumbar disc displacement.
On April 8, 2015 Dr. McCormick examined appellant and diagnosed right knee pain. The Board
has held that medical evidence that does not offer an opinion regarding the cause of an employee’s
condition is of no probative value on the issue of causal relationship. These notes do not offer
such an opinion and are therefore insufficient to establish appellant’s claim.13
Appellant submitted the results of MRI scans of his right knee dated April 1 and 23, 2015.
The Board has held that reports of diagnostic tests lack probative value as they do not provide an
opinion on causal relationship between appellant’s employment incident and a diagnosed
condition.14 Appellant also submitted physical therapist records dated August 6 through 11, 2014.
Certain healthcare providers such as physician assistants, nurse practitioners, physical therapists,

9

T.C., Docket No. 18-1351 (issued May 9, 2019); J.M., Docket No. 17-1002 (issued August 22, 2017); J.R., Docket
No. 12-1099 (issued November 7, 2012); Douglas M. McQuaid, 52 ECAB 382 (2001).
10

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

11

See R.T., Docket No. 17-1353 (issued December 3, 2018).

12

See supra note 10.

13

K.K., Docket No. 18-1209 (issued March 7, 2019).

14

T.H., Docket No. 18-1736 (issued March 13, 2019); A.B., Docket No. 17-0301 (issued May 19, 2017).

6

and social workers are not considered “physician[s]” as defined under FECA.15 Consequently,
their medical findings and/or opinions will not suffice for purposes of establishing entitlement to
FECA benefits.16
As appellant has not submitted rationalized medical evidence to support his claim that he
sustained an injury causally related to the accepted employment incident of August 6, 2014, the
Board finds that he has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a right knee
injury causally related to the accepted August 6, 2014 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the July 9, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: August 2, 2019
Washington, DC

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

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

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
15

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

16

See M.F., Docket No. 17-1973 (issued December 31, 2018).

7