United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.R., Appellant
and
U.S. POSTAL SERVICE, FORT MILL POST
OFFICE, Fort Mill, SC, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Erik B. Blowers, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1611
Issued: October 26, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 24, 2019 appellant, through counsel, filed a timely appeal from a July 17, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the

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

Together with her appeal request, appellant submitted a timely request for oral argument pursuant to 20 C.F.R.
§ 501.5(b). After exercising its discretion, by order dated October 21, 2020, the Board 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. 19-1611 (issued October 21, 2020).

Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.4
ISSUE
The issue is whether appellant has met her burden of proof to establish a recurrence of total
disability for the period October 13 through 31, 2018 causally related to her accepted August 8,
2017 employment injury.
FACTUAL HISTORY
On August 10, 2017 appellant, then a 47-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that she sustained injury to her head, neck, and spine on August 8,
2017 when her postal vehicle was hit head on by another vehicle while in the performance of duty.
She indicated that her body jerked forward and backward injuring her neck and spine, and she hit
her head on the dashboard. Appellant stopped work on August 8, 2017.
After development of the evidence, OWCP accepted appellant’s claim for sprains of
ligaments of the cervical, thoracic, and lumbar areas of the spine, cervical disc disorder with
radiculopathy, and intervertebral disc disorder with radiculopathy of the lumbar spine. Appellant
returned to light-duty work in a modified position. The position restricted her from lifting over 10
pounds, and engaging in bending/twisting or prolonged standing. OWCP paid appellant wageloss compensation on the supplemental rolls for intermittent periods of disability from work
between October 13, 2017 and July 24, 2018.
In an October 8, 2018 report, Dr. Eric B. Laxer, a Board-certified orthopedic surgeon, noted
that appellant complained of pain in her neck, upper/lower back, left arm, and left leg which she
associated with her employment-related August 8, 2017 vehicular accident. He noted that she
reported that she recently fell and sustained a fracture of her left foot. In the physical examination
portion of the report, Dr. Laxer observed that appellant’s left foot was splinted and that she was
using crutches and a wheelchair for ambulation.
Appellant stopped work on October 13, 2018 and, on October 23, 2018, she filed a notice
of recurrence (Form CA-2a) alleging a recurrence of total disability, commencing on October 13,
2018, causally related to her accepted August 8, 2017 employment injury. She indicated that on
October 8, 2018 an attending physician changed her work restrictions to include no jumping in
and out of her postal vehicle and no delivering mail. Appellant asserted that, on October 12, 2018,
the Postmaster at the employing establishment stated that she was “too much of a liability and told

3

5 U.S.C. § 8101 et seq.

4

The Board notes that following the July 17, 2019 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.

2

her to go home.” She noted that she was off work awaiting authorization for surgery from OWCP.5
In response to a portion of the Form CA-2a requesting that she describe all injuries, appellant
suffered between the date she returned to work after the original injury and the date of the claimed
recurrence, appellant indicated, “No additional injuries.”
On October 25, 2018 the employing establishment offered appellant a new light-duty
position as a modified rural carrier, a job which involved casing mail, answering telephones, filing,
and assisting customers at the window. The physical requirements included lifting up to 10
pounds, reaching over the shoulder level with one piece of mail at a time, and alternating between
sitting and standing for a half hour at a time for each action. On the same date, counsel indicated
that appellant would not accept the offered position until her attending physician had reviewed it.
In a development letter dated October 30, 2018, OWCP requested that appellant submit
additional factual and medical evidence in support of her recurrence claim. It afforded her 30 days
to submit the requested evidence.
In response, appellant submitted an October 10, 2018 work status form report from
Dr. Laxer who advised that appellant could return to modified-duty work on October 12, 2018
with restrictions of lifting/pushing/pulling up to 10 pounds, lifting up to 5 pounds to shoulder level,
no overhead lifting, and no carrying mail. Dr. Laxer noted that appellant was able to case mail.
In an October 18, 2018 report, Dr. Richard I. Park, a Board-certified anesthesiologist, advised that
appellant reported injuring her left foot/ankle on an unspecified date and then slipping and injuring
her right foot a week after the left foot injury. He noted that appellant’s right foot was wrapped in
a bandage.
Appellant filed a claim for compensation (Form CA-7) for disability for the period she was
in leave without pay (LWOP) status from October 13 through 28, 2018. She continued to file
CA-7 forms for disability for periods of LWOP subsequent to that period.
A November 1, 2018 work/school release form, by a staff member for Dr. Garath A.
Maenpaa, a Board-certified orthopedic surgeon, indicated that appellant would be off work from
November 1 through December 15, 2019. In a November 28, 2018 work/school release form, he
noted that appellant was unable to lift, twist, turn, bend, drive, or squat because these actions might
cause more damage to an existing injury. Dr. Maenpaa indicated that appellant was unable to
return to work for at least 60 to 90 days.
In a December 3, 2018 report, Dr. Kenechukwu Ugokwe, a Board-certified orthopedic
surgeon serving as a district medical adviser (DMA), noted his agreement with the need for fusion
surgery at the C5-6 level, but not at the C6-7 level.
By decision dated December 11, 2018, OWCP denied appellant’s claim for a recurrence of
total disability, commencing on October 13, 2018, causally related to her accepted August 8, 2017
employment injury. It determined that she had not submitted sufficient medical evidence to
establish that her employment-related condition worsened such that she could no longer perform
5
The case record contains an October 23, 2018 request for authorization from Dr. Laxer for cervical spine fusion
surgery at C5 through C7.

3

the duties of her light-duty assignment. OWCP further found that appellant failed to demonstrate
that management withdrew her light-duty assignment such that she sustained a recurrence of total
disability commencing October 13, 2018, or that she had restrictions during the claimed period of
disability.
On January 9, 2019 appellant, through counsel, requested reconsideration of the
December 11, 2018 decision. Counsel asserted that appellant was totally disabled commencing
October 13, 2018 because her light-duty assignment had been withdrawn.
Appellant submitted several medical reports predating the claimed recurrence of total
disability, including August 8, 2017 emergency room reports, an August 8, 2017 computerized
tomography (CT) scan of the thoracic spine, a March 6, 2018 report of Dr. Seth L. Jaffe, an
osteopath Board-certified in orthopedic surgery, and a June 28, 2018 magnetic resonance imaging
(MRI) scan of the cervical spine.
In a December 31, 2018 report, Dr. Maenpaa advised that appellant had been under his care
since shortly after her August 8, 2017 employment injury. He indicated that he examined appellant
on November 1, 2018 and posited that the examination findings revealed a worsening of her
employment-related cervical condition. Dr. Maenpaa advised that he then concluded that appellant
needed to avoid lifting and repetitive activity. On January 17, 2018 OWCP advised appellant that
it had granted authorization for cervical fusion surgery at the C5-6 level.
In a February 28, 2019 report, Dr. Laxer indicated that appellant was seen in his office on
October 10, 2018 to receive ongoing care until cervical surgery was approved by OWCP. He
noted that, at that time, he determined that she had a worsening of her cervical condition and
believed that restricting her activities, including no engaging in repetitive activities and decreasing
the amount of weight she could lift, was warranted. Dr. Laxer indicated that it was his
understanding that the employing establishment sent appellant home as a result of these increased
restrictions. He advised that he understood that Dr. Maenpaa determined that appellant was unable
to continue to work due to increased pain from her August 8, 2017 injury and the fear of additional
complications. Dr. Laxer noted, “I agree with that assessment and ﬁnd that it was medically
warranted for [appellant] to remain out of work from October 10, 2018 until her surgery is
completed.” He opined that she remained disabled due to concern about the worsening of her
cervical injuries.
Appellant submitted a December 12, 2018 statement from a coworker who indicated that
on October 12, 2018 appellant came to the employing establishment and had a meeting with the
Postmaster. He indicated that, after the meeting, appellant “informed me that she was being sent
home by the Postmaster because of her worsening medical condition.”
By decision dated April 9, 2019, OWCP vacated the December 11, 2018 decision in part
and modified the decision to reflect that appellant had submitted sufficient medical evidence to
demonstrate that she had employment-related total disability commencing November 1, 2018 and

4

continuing.6 However, it affirmed the December 11, 2018 decision in part to reflect that appellant
had not established a recurrence of total disability for the period October 13 through 31, 2018
causally related to her accepted August 8, 2017 employment injury.
On May 8, 2019 appellant, through counsel, requested reconsideration of the April 9, 2019
decision. Counsel continued to argue that the employing establishment withdrew appellant’s lightduty work effective October 13, 2018.
Appellant submitted several reports, dated between September 11, 2017 and May 13, 2019,
from attending physicians, including Dr. Maenpaa, Dr. Glenn L. Scott, a Board-certified
orthopedic surgeon, and Dr. Puneet Kumar Aggarwal, a Board-certified physical medicine and
rehabilitation physician. A February 26, 2019 emergency room report addressed the treatment of
burns that appellant received on her left trunk from a heating pad. In a June 24, 2019 report,
Dr. Scott recommended that she undergo back surgery.
By decision dated July 17, 2019, OWCP denied modification of the April 9, 2019 decision.
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 resulted from a previous
compensable injury or illness and without an intervening injury or new exposure in the work
environment.7 This term also means an inability to work because a light-duty assignment made
specifically to accommodate an employee’s physical limitations, and which is necessary because
of a work-related injury or illness, is withdrawn or altered so that the assignment exceeds the
employee’s physical limitations.8
OWCP’s procedures provide that a recurrence of disability includes a work stoppage
caused by a spontaneous material change in the medical condition demonstrated by objective
findings. That change must result from a previous injury or occupational illness rather than 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.9
An employee who claims a recurrence of disability due to an accepted employment-related
injury has the burden of proof to establish by the weight of the substantial, reliable, and probative
evidence that the disability for which he or she claims compensation is causally related to the
6

OWCP noted that this determination was based on the reports of Dr. Maenpaa. It then paid appellant wage-loss
compensation for total disability from work on the supplemental rolls effective November 1, 2018. Appellant received
wage-loss compensation for total disability on the periodic rolls commencing April 28, 2019.
7

20 C.F.R. § 10.5(x); see J.D., Docket No. 18-1533 (issued February 27, 2019).

8

See id. A recurrence does not occur when such withdrawal occurs for reasons of misconduct, nonperformance of
job duties, or a reduction-in-force. Id.
9
Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2b (June 2013); L.B., Docket
No. 18-0533 (issued August 27, 2018).

5

accepted injury. This burden of proof requires that a claimant furnish medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes that,
for each period of disability claimed, the disabling condition is causally related to the employment
injury, and supports that conclusion with medical reasoning.10 Where no such rationale is present,
the medical evidence is of diminished probative value.11
When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals returns to a limited-duty position or the medical evidence of
record establishes that he or she can perform the limited-duty position, the employee has the burden
of proof to establish by the weight of the reliable, probative, and substantial evidence a recurrence
of total disability and to show that he or she cannot perform such limited-duty work.12 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.
ANALYSIS
The Board finds that the case is not in posture for decision.
Before OWCP and on appeal, counsel has argued that appellant established her claim for
recurrence of total disability for the period October 13 through 31, 2018 because the Postmaster at
her workplace told her to go home on October 12, 2018, thereby establishing the withdrawal of a
light-duty assignment which was specifically designed to accommodate her employment-related
physical limitations.13 The Board finds that once appellant alleged that the offered light-duty
employment position was withdrawn by the Postmaster, OWCP should have requested that the
employing establishment confirm or deny in a statement from a knowledgeable supervisor as to
the correctness of her assertion.
Further, in support of her recurrence claim, appellant submitted a February 28, 2019 report
from Dr. Laxer who indicated that appellant was seen in his office on October 10, 2018 to receive
ongoing care until cervical surgery was approved by OWCP. Dr. Laxer noted that, at that time, he
determined that appellant had a worsening of her cervical condition and believed that restricting
her activities, including not engaging in repetitive activities and decreasing the amount of weight
she could lift, was warranted. He advised that he understood that Dr. Maenpaa determined that
she was unable to continue to work due to increased pain from her August 8, 2017 employment
injury and the fear of additional complications. Dr. Laxer noted, “I agree with that assessment and
ﬁnd that it was medically warranted for [appellant] to remain out of work from October 10, 2018

10

J.D., Docket No. 18-0616 (issued January 11, 2019); see C.C., Docket No. 18-0719 (issued November 9, 2018).

11

H.T., Docket No. 17-0209 (issued February 8, 2018).

12

See D.W., Docket No. 19-1584 (issued July 9, 2020); S.D., Docket No. 19-0955 (issued February 3, 2020);
Terry R. Hedman, 38 ECAB 222 (1986).
13

See supra note 8.

6

until her surgery is completed.”14 He opined that she remained disabled due to concern about the
worsening of her cervical injuries.
The Board notes that proceedings under FECA are not adversarial in nature, and OWCP is
not a disinterested arbiter.15 The Board finds that while Dr. Laxer’s February 28, 2019 report is
insufficient to meet appellant’s burden of proof, it raises an uncontroverted inference of causal
relation between her claimed recurrence of total disability for the period October 13 through 31,
2018 and her accepted August 8, 2017 employment injury. Further development of appellant’s
claim in therefore required.16
On remand, OWCP shall prepare a statement of accepted facts and refer appellant to an
appropriate Board-certified specialist for a second opinion examination and an evaluation
regarding whether appellant sustained a recurrence of total disability for the period October 13
through 31, 2018 causally related to her accepted August 8, 2017 employment injury. If the
physician opines that appellant did not sustain an employment-related recurrence of disability
during this claimed period, he or she must explain with rationale how or why the opinion differs
from that of Dr. Laxer. Additionally, OWCP shall obtain a statement from a knowledgeable
supervisor as to appellant’s allegation that her light-duty employment position was withdrawn.
Following any necessary further development, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

14

The Board notes that, on January 17, 2018, OWCP advised appellant that it had granted authorization for cervical
fusion surgery at the C5-6 level. Dr. Maenpaa had determined that appellant had total disability commencing
November 1, 2018 due to her worsening employment-related cervical condition and OWCP paid appellant wage-loss
compensation for total disability from work on the supplemental rolls effective beginning November 1, 2018. She
received wage-loss compensation for total disability on the periodic rolls commencing April 28, 2019. There is no
indication in the case record that appellant has yet undergone the authorized fusion surgery.
15

See B.B., Docket No. 18-1321 (issued April 5, 2019).

16

See C.M., Docket No. 17-1977 (issued January 29, 2019); John J. Carlone, 41 ECAB 354 (1989).

7

ORDER
IT IS HEREBY ORDERED THAT the July 17, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded to OWCP for further proceedings
consistent with this decision of the Board.
Issued: October 26, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.R., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, FEDERAL
CORRECTIONS COMPLEX, Florence, CO
Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

Appearances:
Martin Kaplan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-126
Issued: April 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 October 16, 2007 appellant filed a timely appeal of a September 14, 2007 decision of
the Office of Workers’ Compensation Programs, denying his claim for a recurrence of disability.
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 had a recurrence of disability on November 14, 2005
causally related to his January 18, 1996 accepted degenerative arthritis of the left knee.

FACTUAL HISTORY
This is the second appeal in this case.1 By order dated June 14, 2007, the Board
dismissed appellant’s appeal at his request so that he could file a request for reconsideration with
the Office.
On March 30, 1996 appellant, then a 48-year-old correctional officer, filed a claim
alleging that he developed degenerative joint disease of the left knee beginning January 18, 1996
due to a traumatic injury that he sustained at work on September 9, 1993.2 The Office accepted
his claim for degenerative arthritis of the left knee. Appellant received medical treatment
through March 19, 1996. On November 14, 2005 he filed a claim for a recurrence of disability.
Appellant indicated that his accepted left knee degenerative arthritis had worsened.
In reports dated March 25 and April 10, 1996, Dr. Robert D. McCurry, an attending
Board-certified family practitioner, stated that appellant injured his left knee on September 9,
1993 when he hyperextended the knee while carrying a roll of floor mats down a flight of stairs.
His last medical visit was on March 19, 1996 at which time he complained of continued left knee
pain. Dr. McCurry diagnosed degenerative joint disease of the left knee due to the September 9,
1993 employment incident. He stated that appellant’s degenerative knee condition would slowly
progress over time. Accelerated progression would occur the more time he spent standing on his
feet.
In a December 2, 2005 report, Dr. Christian A. Gallery, an attending Board-certified
family practitioner, stated that he examined appellant for hip and knee pain on May 1, 2002.
Appellant did not indicate a possible cause of his condition. Dr. Gallery saw him again on
July 3, 2002 for leg pain with “unclear cause.”
By letter dated February 8, 2006, the Office asked appellant to submit additional
evidence, including a rationalized medical opinion explaining how his recurrence of disability on
November 14, 2005 was causally related to his January 18, 1996 employment injury. No
additional evidence was received.
By decision dated March 17, 2006, the Office denied appellant’s claim on the grounds
that the evidence failed to establish that he sustained a recurrence of disability on November 14,
2005 causally related to his January 18, 1996 accepted left knee degenerative arthritis.
On July 26, 2007 appellant requested reconsideration and submitted additional medical
evidence. In notes dated July 19, 2006, Dr. Aimee S. Klapach, an attending Board-certified
orthopedic surgeon, provided a history of left knee pain dating from 1993 when appellant
hyperextended his knee at work. In 1996 appellant was diagnosed with degenerative joint
1

See Docket No. 06-1649 (issued June 14, 2007).

2

It appears that the Office accepted that appellant sustained a left knee strain at work on September 9, 1993. In a
June 17, 1996 memorandum, an Office medical adviser stated that appellant’s onset of left knee degenerative
arthritis began at the time of the September 9, 1993 work incident. He stated, “[T]he degenerative arthritis of the
left knee had its onset at that time -- a rather common cause of arthritis of this type. There does not seem to be any
evidence of preexisting arthritis which may have been aggravated.” (Emphasis omitted.)

2

disease. Dr. Klapach provided findings on physical examination and diagnosed mild left knee
degenerative joint disease and probable left hip osteoarthritis. In notes dated February 14, 2007,
Dr. Klapach reviewed the medical history given by appellant and provided findings on physical
examination. She noted that x-rays of his left knee revealed mild medial joint space narrowing.
Dr. Klapach diagnosed mild left knee degenerative joint disease. In a report dated February 14,
2007, she provided findings on physical examination and diagnosed osteoarthritis of the left
knee. Dr. Klapach stated:
“A history of the worsening condition is given by [appellant]. When I evaluated
[him] in July of 2006, he noted an injury in 1993 when he was working for the
[employing establishment] while ambulating on stairs, missed a step and
hyperextended his knee. [Appellant] had pain and catching at that time. In 1996,
he noted [that] he started having some swelling and was given the diagnosis of
degenerative joint disease. Since that time, [appellant] has had on and off pain
and swelling, no subsequent documented injury. He has been treated with several
anti-inflammatories. Since his last visit on [July 19,] 2006, [appellant] continues
to have some aching pain…. He notes pain medially and anteriorly. [Appellant]
notes some clicking and popping. He does have some aching at nighttime. The
anti-inflammatories are offering good relief.”
***
“Based on the history given to me by [appellant] on [July 19,] 2006 and
[February 14,] 2007, I feel his history is consistent with an injury that occurred in
1993 when he was working for the [employing establishment], ambulating, had a
misstep and hyperextended his knee. He had pain and catching in his knee. Over
the subsequent three years [appellant] started having increased swelling. He was
evaluated by a physician in 1996. I do not have access to those records.
[Appellant] was given a diagnosis of degenerative joint disease at that time. Since
that time[,] until my appointment on July 19, 2006[,] he had on and off pain and
swelling and required anti-inflammatories. Through the history, I did not note
any subsequent injury. Since I last saw [appellant] at his visit on [July 19,] 2006
to today, he continues to have aching and pain.... The worsening of his
degenerative arthritis was a natural progression of his condition … documented at
the time of his 1996 visit.”
By decision dated September 14, 2007, the Office upheld its denial of appellant’s claim
for a recurrence of disability.
LEGAL PRECEDENT
An employee who claims a recurrence of disability due to an accepted employmentrelated injury has the burden of establishing by the weight of the substantial, reliable and
probative evidence that the disability for which compensation is claimed is causally related to the
accepted injury.3 This burden includes the necessity of furnishing medical evidence from a
3

Charles H. Tomaszewski, 39 ECAB 461 (1988).

3

physician who, on the basis of a complete and accurate factual and medical history, concludes
that the disabling condition is causally related to the employment injury and supports that
conclusion with sound medical rationale.4 Where no such rationale is present, medical evidence
is of diminished probative value.5
“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.”6
ANALYSIS
Appellant has the burden to provide medical evidence establishing that he sustained a
recurrence of disability beginning November 14, 2005 due to a worsening of his accepted left
knee degenerative arthritis. However, it is well established that proceedings under the Federal
Employees’ Compensation Act are not adversarial in nature, and, while the claimant has the
burden to establish entitlement to compensation, the Office shares responsibility in the
development of the evidence.7 The Office has an obligation to see that justice is done.8 Once the
Office undertakes development of the record, it has the responsibility to do so in a proper
manner.9
Dr. Klapach examined appellant on July 19, 2006 and February 14, 2007. She provided
a history of left knee pain dating from 1993 when appellant hyperextended his knee at work. In
1996 appellant was diagnosed with degenerative joint disease. Dr. Klapach provided findings on
physical examination and diagnosed mild left knee degenerative joint disease and probable left
hip osteoarthritis. She noted that x-rays of his left knee revealed mild medial joint space
narrowing. Dr. Klapach stated that appellant provided a history of a worsening of his left knee
condition since the 1996 diagnosis of degenerative joint disease. Since 1996 appellant
experienced pain, swelling, clicking and popping and required anti-inflammatory medication.
He did not indicate that he had sustained any intervening injury since 1996. Dr. Klapach noted
that the history provided by appellant was consistent with an injury that occurred in 1993 when
he hyperextended his knee at work, developed increased swelling over the next three years and
was diagnosed with degenerative joint disease in 1996. Dr. Klapach opined that “The worsening
of his degenerative arthritis was a natural progression of his condition … documented at the time
of his 1996 visit.”

4

Lourdes Davila, 45 ECAB 139 (1993).

5

Michael Stockert, 39 ECAB 1186 (1988).

6

20 C.F.R. § 10.5(x).

7

See Udella Billups, 41 ECAB 260 (1989).

8

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

9

See Henry G. Flores, Jr., 43 ECAB 901 (1992).

4

Dr. Klapach noted a worsening of appellant’s symptoms since 1996 and opined that it
was a natural progression of his left knee degenerative arthritis. X-rays revealed medial joint
space narrowing.10 An Office medical adviser noted in 1996 that there was no evidence that
appellant’s left knee arthritis preexisted his original 1993 accepted left knee strain. Thus, the
record indicates that appellant’s traumatic left knee injury in 1993 precipitated the left knee
degenerative arthritis diagnosed in 1996. In 1996 Dr. McCurry stated that appellant’s accepted
degenerative knee condition would slowly progress over time. The progression would be
accelerated with long periods of standing. Although the medical evidence is not sufficient to
establish that appellant’s claimed November 14, 2005 recurrence of disability was causally
related to his accepted left knee degenerative arthritis, it does suggest such a causal relationship,
and is sufficient to require further development of the medical evidence. On remand, the Office
should refer appellant to an appropriate medical specialist for an examination and evaluation of
whether his left knee degenerative arthritis worsened after 1996 such that he sustained a
recurrence of disability on November 14, 2005. After such further development as it deems
necessary, the Office should issue an appropriate decision on appellant’s claim.
CONCLUSION
The Board finds that this case requires further development of the medical evidence. On
remand, the Office should refer appellant to an appropriate specialist for an examination and
evaluation as to whether his accepted left knee arthritis worsened to the point that he sustained a
recurrence of disability on November 14, 2005. After such further development as the Office
deems necessary, it should issue an appropriate decision.

10

The record does not show whether x-rays were taken in 1996. On remand, the Office should determine whether
any such x-rays exist. If so, a physician could compare the 1996 and 2006 x-rays to determine whether there was a
change in appellant’s cartilage level which might indicate a worsening of his left knee arthritis.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 14, 2007 is set aside and the case is remanded for
further development consistent with this decision.
Issued: April 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.H., Appellant
and
DEPARTMENT OF JUSTICE BUREAU OF
PRISONS, Fort Dix, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 18-0004
Issued: May 3, 2018

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 October 2, 2017 appellant, through counsel, filed a timely appeal from an August 23,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant met his burden of proof to establish right carpal tunnel
syndrome, right trigger finger, and right ulnar nerve neuropathy causally related to the accepted
factors of his federal employment.
FACTUAL HISTORY
On September 29, 2016 appellant, then a 37-year-old correctional officer, filed an
occupational disease claim (Form CA-2) alleging that he developed right carpal tunnel syndrome
and right trigger finger as a result of overusing his hand in the performance of his federal
employment duties. He reported that he had worked as a correctional officer from November 25,
2007 and his duties included opening locks to gates, gripping and pulling doors weighing
approximately 600 to 800 pounds, and using a set of 20 to 30 keys which were very heavy.
Appellant reported that on March 7, 2016 he was assigned to the mailroom and his duties entailed
opening hundreds of envelopes which required constant twisting and bending of his right wrist.
He complained of right hand pain which was later identified to be carpal tunnel syndrome.
Appellant reported that he first became aware of his condition and its relationship to his federal
employment on September 8, 2016.3 He did not stop work.
In a September 8, 2016 diagnostic report, Dr. Mark Dimarcangelo, a Board-certified
diagnostic radiologist, reported that an x-ray of the right hand revealed no acute osseous pathology.
In a September 8, 2016 medical report, Dr. Jason Wong, a Board-certified orthopedic
surgeon, reported that appellant presented for evaluation of his right ring finger with complaints
of numbness and tingling over the median and ulnar nerve distributions. He reported difficulty
with his right ring finger since his right elbow injury. Dr. Wong noted that appellant had been
working light duty in the mailroom which was causing him discomfort in his hand. He provided
physical examination findings and reviewed the results of the right hand x-ray. Dr. Wong
diagnosed trigger finger of the right finger most likely an overuse tendinitis which was exacerbated
by his light-duty work in the mailroom. He also diagnosed carpal tunnel syndrome to the right
upper extremity which may also have been caused by an exacerbation of repetitive motion use at
work. Dr. Wong noted ulnar nerve neuropathy, etiology unknown, which he opined could also be
due to overuse of the right upper extremity at work. He recommended electromyography (EMG)
and nerve conduction velocity (NCV) testing.
In a September 27, 2016 diagnostic report, Dr. Salvatore Russomano, Board-certified in
physical medicine and rehabilitation, reported that an EMG/NCV study revealed abnormal
findings. He noted electrical evidence of carpal tunnel syndrome on the right which was mild-tomoderate given the abnormal medial nerve conduction studies. Dr. Russomano further reported
no electrical evidence of axon loss given the normal needle findings in the right abductor policies
brevis musculature.

3
The Board notes that the record reflects five other traumatic injury claims with a date of injury ranging from
June 17, 2008 to July 7, 2015. The record before the Board contains no other information pertaining to these claims.

2

In an October 6, 2016 report, Dr. Wong reported that appellant complained of pain and
worsening discomfort in his right hand over several months prior to his September 8, 2016
evaluation. He reviewed the EMG/NCV findings which revealed mild-to-moderate right carpal
tunnel syndrome. Dr. Wong diagnosed trigger finger of the right finger exacerbated by light-duty
work from repetitive motion in the mailroom and right upper extremity carpal tunnel syndrome
which was a repetitive motion type of injury that occurred most likely from working in the
mailroom. He noted that he believed that appellant had early ulnar nerve neuropathy due to a
repetitive motion type of injury from working in the mailroom, although the diagnosis was not
confirmed by EMG testing.
By development letter dated November 4, 2016, OWCP informed appellant that the
evidence of record was insufficient to support his claim. Appellant was advised of the medical
and factual evidence needed. He was afforded 30 days to submit the necessary evidence.
In a November 14, 2016 narrative statement, appellant responded to OWCP’s
questionnaire and described his employment duties as a correctional officer. He reported that the
repetitive movements from holding heavy keys and turning locks all day, as well as pushing and
pulling heavy gates and doors, caused his hand and wrist great discomfort. In March 2016,
appellant was placed on light-duty assignment in the mailroom per his physician’s restrictions.
However, his repetitive employment duties in the mailroom caused his right hand condition to
worsen, causing him to seek treatment with Dr. Wong on September 8, 2016. Appellant reported
that he was required to use a letter opener to open hundreds of envelopes in the mailroom, causing
him to bend and twist his wrist. He believed that this repetitive motion caused his right hand carpal
tunnel and trigger finger. Appellant reported a prior micro surgery to the right index finger when
he was five years old. He further reported bruising and contusion to his right elbow from a
work-related fall down the stars on December 21, 2014 which turned into bursitis and enthesopathy
of the elbow region.
By decision dated December 23, 2016, OWCP denied appellant’s claim, finding that the
evidence of record failed to establish that his diagnosed conditions were causally related to the
accepted federal employment factors.
On January 3, 2017 appellant, through counsel, requested a telephone hearing before an
OWCP hearing representative.
In support of his claim, appellant submitted a December 15, 2016 medical narrative report
from Dr. Wong. Dr. Wong reported that he initially evaluated appellant on March 17, 2016 at
which time he was status post debridement of the right lateral epicondyle secondary to chronic
lateral epicondylitis. Appellant was on light duty and reported that he had developed some pain
and discomfort to the right ring ﬁnger and still had weakness to his right upper extremity from the
surgery. Aside from appellant’s right elbow surgery, Dr. Wong opined that appellant had a new
onset of trigger finger of the right ring finger. He continued to evaluate appellant postoperatively
for the right elbow and on April 28, 2016, noted further complaints of locking the right ring finger
with pain. Appellant reported that, on that date, he was performing light-duty work in the
mailroom which required opening boxes and mail with a razor blade, causing his finger to lock.
Dr. Wong discussed appellant’s subsequent evaluations for right hand and wrist complaints and
noted that EMG testing revealed mild-to-moderate carpal tunnel syndrome. He diagnosed right

3

carpal tunnel syndrome, right trigger finger of the ring finger, and right ulnar nerve neuropathy
and he related that all three diagnoses were due to repetitive motion and it was well documented
in medical literature that repetitive motion does cause these problems. Dr. Wong opined within a
reasonable degree of medical certainty that appellant had developed the above diagnoses due to
the repetitive motion required for his activities at work which was consistent with the above
diagnoses and repetitive type of injury.
A hearing was held on July 10, 2017, during which appellant testified in support of his
occupational disease claim. He again related the factors of employment he believed caused his
diagnosed conditions. The record was held open for 30 days. No other evidence was received.
By decision dated August 23, 2017, OWCP’s hearing representative affirmed the
December 23, 2016 decision, finding that the evidence of record failed to establish that his
diagnosed conditions were causally related to the accepted federal employment factors.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.5 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or occupational disease.6
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.7
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence supporting such causal relationship.8 The opinion of the physician must be based
on a complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.
4

Supra note 2.

5

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

6

Michael E. Smith, 50 ECAB 313 (1999).

7

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

8

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

4

This medical opinion must include an accurate history of the employee’s employment injury and
must explain how the condition is related to the injury. The weight of medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of analysis
manifested, and the medical rationale expressed in support of the physician’s opinion.9
ANALYSIS
The Board finds that the medical evidence of record is insufficient to establish that
appellant developed right carpal tunnel syndrome, right trigger finger, and right ulnar nerve
neuropathy causally related to the accepted factors of his federal employment as a correctional
officer.
In support of his claim, appellant submitted medical reports dated September 8 through
December 15, 2016 from Dr. Wong, his treating physician. Dr. Wong diagnosed right carpal
tunnel syndrome, right trigger finger of the ring finger, and right ulnar nerve neuropathy. He
opined that appellant’s diagnoses were causally related to his repetitive employment duties as a
correctional officer. The Board finds that the opinion of Dr. Wong is not well rationalized.
Dr. Wong reported that he evaluated appellant on March 17, 2016 at which time he was
status post debridement of the right lateral epicondyle secondary to chronic lateral epicondylitis.
Appellant was on light duty and reported complaints of pain and discomfort to the right ring ﬁnger,
which Dr. Wong speculated was a new onset of trigger finger. The Board notes that Dr. Wong
failed to provide a detailed medical history pertaining to appellant’s right upper extremity
conditions, only briefly noting a prior right elbow surgery. While Dr. Wong noted the right lateral
epicondyle secondary to chronic lateral epicondylitis, he never addressed what caused the
underlying condition and need for surgery, nor did he discuss whether this preexisting injury had
progressed beyond what might be expected from the natural progression of that condition.10 Given
appellant’s complaints pertaining to the right ring finger following his elbow surgery, Dr. Wong’s
medical reports failed to provide a fully comprehensive opinion on causal relationship as he never
addressed why appellant’s right trigger finger was not related to his right elbow injury and surgery
given that his complaints began postoperatively. A well-rationalized opinion is particularly
warranted when there is a history of preexisting condition.11 As such, Dr. Wong’s reports lack the
specificity and detail needed to establish that appellant’s injuries are a result of a work-related
occupational exposure.12
Dr. Wong also noted that EMG testing revealed right carpal tunnel syndrome, diagnostic
studies failed to provide support for right ulnar nerve neuropathy diagnosis. His opinion on
causation regarding these conditions is highly vague and speculative as he noted that appellant’s
right carpal tunnel syndrome, right trigger finger of the ring finger, and right ulnar nerve
neuropathy were due to repetitive motion because they were repetitive type injuries. To be of
9

James Mack, 43 ECAB 321 (1991).

10

R.E., Docket No. 14-0868 (issued September 24, 2014).

11

T.M., Docket No. 08-0975 (issued February 6, 2009); Michael S. Mina, 57 ECAB 379 (2006).

12

P.O., Docket No. 14-1675 (issued December 3, 2015); S.R., Docket No. 12-1098 (issued September 19, 2012).

5

probative value, a physician’s opinion on causal relationship should be one of reasonable medical
certainty.13 While Dr. Wong had some understanding of appellant’s employment duties, his
statement on causation failed to provide a sufficient explanation as to the mechanism of injury
pertaining to this occupational disease claim, namely, how repetitive pushing, pulling, grasping,
turning, and opening mail would cause or aggravate appellant’s right hand injuries.14 His general
assertion that the given diagnoses are repetitive type injuries is insufficient to establish a
work-related occupational disease. Without explaining how physiologically the movements
involved in appellant’s employment duties caused or contributed to his diagnosed conditions,
Dr. Wong’s opinion on causal relationship is equivocal in nature and of limited probative value.15
The remaining medical evidence of record is also insufficient to establish appellant’s
occupational disease claim. Dr. Dimarcangelo and Dr. Russomano’s diagnostic reports only
interpreted imaging studies and provided no opinion on the cause of appellant’s injury.16 The
Board has held that medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value.17 Without any mention of the repetitive
employment duties, any findings made could not be related to his claim to establish causal
relationship.18
The Board notes that there is no requirement that the federal employment be the only cause
of appellant’s injury. An employee is not required to prove that occupational factors are the sole
cause of his claimed condition. If work-related exposures caused, aggravated, or accelerated
appellant’s condition, he is entitled to compensation.19 However, an award of compensation may
not be based on surmise, conjecture, speculation, or on the employee’s own belief of causal
relation.20 Appellant’s honest belief that his occupational employment duties caused his medical
injury, however sincerely held, does not constitute medical evidence sufficient to establish causal
relationship.21
The Board finds that the case record lacks rationalized medical evidence establishing
causal relationship between appellant’s federal employment duties as a correctional officer and his
diagnosed right hand conditions. Thus, appellant has not met his burden of proof.

13

See Beverly R. Jones, 55 ECAB 411 (2004).

14

S.W., Docket 08-2538 (issued May 21, 2009).

15

See L.M., Docket No. 14-0973 (issued August 25, 2014); R.G., Docket No. 14-0113 (issued April 25, 2014);
K.M., Docket No. 13-1459 (issued December 5, 2013); A.J., Docket No. 12-0548 (issued November 16, 2012).
16

D.H., Docket No. 11-1739 (issued April 18, 2012).

17

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

18

S.Y., Docket No. 11-1816 (issued March 16, 2012).

19

See Beth P. Chaput, 37 ECAB 158, 161 (1985); S.S., Docket No. 08-2386 (issued June 5, 2008).

20

D.D., 57 ECAB 734 (2006).

21

H.H., Docket No. 16-0897 (issued September 21, 2016).

6

Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s 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 right carpal
tunnel syndrome, right trigger finger of the ring finger, and right ulnar nerve neuropathy causally
related to the accepted factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated August 23, 2017 is affirmed.
Issued: May 3, 2018
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Baton Rouge, LA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-1125
Issued: April 14, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 26, 2007 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ merit decision dated June 28, 2007. 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 the Office met its burden of proof to terminate appellant’s
compensation benefits on the grounds that she refused suitable work.
FACTUAL HISTORY
On October 11, 1990 appellant, then a 32-year-old machine operator, filed a traumatic
injury claim alleging that she injured her right thumb and wrist.1 The Office accepted this claim
for radial styloid tenosynovitis and cervical strain. On August 19, 1996 it found that the position

1

This case number is xxxxxx317.

of modified distribution clerk fairly and reasonably represented appellant’s wage-earning
capacity.
On June 26, 2001 appellant, then a 42-year-old modified clerk, filed an occupational
disease claim alleging that she developed bilateral carpal tunnel syndrome due to typing, writing,
filing and using a computer in the course of her federal employment. The Office accepted
appellant’s claim for bilateral carpal tunnel syndrome and trigger thumb of both hands on
October 23, 2003. Appellant underwent a right carpal tunnel release and right trigger thumb
release on November 11, 2003. The Office entered appellant on the periodic rolls on
January 26, 2004. Appellant underwent a left carpal tunnel release and excision of dorsal
ganglion cyst of the left wrist on May 19, 2004. The Office expanded appellant’s claim to
include this condition.
Appellant returned to light-duty work for four hours on October 18, 2004. She filed a
new claim on October 27, 2004 alleging that she injured her low back. The Office accepted this
claim for lumbar strain and right buttock strain. Appellant accepted a light-duty position on
November 5, 2004. She accepted a new light-duty work assignment on January 25, 2005. By
letter dated February 14, 2005, the Office reduced appellant’s compensation benefits to reflect
her earnings as a modified mail processing clerk.
Dr. Robert F. Brennan, a Board-certified orthopedic surgeon, performed a left wrist
arthroscopy, debridement and synovectomy including an excision of a ganglion cyst and left
de Quervain’s release on May 10, 2005. The Office entered appellant on the periodic rolls on
June 3, 2005. Dr. Brennan completed a form report on June 27, 2005 and indicated he
anticipated that appellant could work eight hours a day on July 27, 2005.
The Office referred appellant for a second opinion evaluation with Dr. Christopher E.
Cenac, a Board-certified orthopedic surgeon. In a report dated December 13, 2005, Dr. Cenac
reviewed the statement of accepted facts and found that appellant was hostile on examination.
He stated that symptom magnification and illness behavior was documented. Dr. Cenac found
that appellant had no objective residual causally related to her cervical strain, radio-styloid
tenosynovitis, bilateral carpal tunnel syndrome, bilateral trigger thumbs and ganglion cyst. He
concluded that appellant had reached maximum medical improvement and could return to
modified work. Dr. Cenac stated, “She has subjective complaints not substantiated by objective
physical findings relative to the above[-]stated conditions.” He found that appellant’s lumbar
and right buttock strains were a temporary aggravation of preexisting conditions of advanced
degenerative disease and vacuum disc phenomenon at L5-S1. Dr. Cenac reviewed a functional
capacity evaluation and stated that appellant could return to her prior occupation as a modified
clerk. He stated that she had no need of further orthopedic evaluation or treatment. Dr. Cenac
completed a work capacity evaluation on February 8, 2008 and found appellant could work eight
hours a day with limitations on pushing, pulling, lifting, squatting, kneeling and climbing.
In a note dated January 11, 2006, Dr. Brennan found that appellant had tenderness in the
right wrist and diagnosed bilateral wrist strain. The Office requested that Dr. Brennan respond to
Dr. Cenac’s report on February 24, 2006.

2

Dr. Jorge E. Isaza, a Board-certified orthopedic surgeon, completed notes on October 5,
2005, December 6 and 20, 2005 and diagnosed facet arthropathy and L4-5 and L5-S1 and disc
herniation at L5-S1 along with left meniscal tear due to her October 27, 2004 employment
injury. On physical examination, Dr. Isaza found decreased reflexes in the lower extremities and
appropriate Waddell test. He recommended injections. Dr. Isaza stated that some of appellant’s
findings were preexisting, but that appellant reported no pain prior to her injury and that
therefore her symptoms were due to her employment injury.
On May 2, 2006 Dr. Brennan stated that appellant had tenderness over her wrist and
range of motion pain. He stated, “The patient does not want to work.” Dr. Brennan supported
appellant’s need for additional range of motion and strengthening exercises on June 20, 2006.
The Office referred appellant for an impartial medical evaluation with Dr. Gordon P.
Nutik, a Board-certified orthopedic surgeon.2 In a report dated July 21, 2006, Dr. Nutik
reviewed appellant’s history of her injuries and performed a physical examination. He noted that
appellant had increased range of motion in the neck after testing was complete. Dr. Nutik found
decreased sensation in her fingers, weakness on muscle testing, but no atrophy of the upper
extremities. He found no spasm of the back muscles and variation in appellant’s abilities when
she was tested. Dr. Nutik stated that it was difficult to assess appellant’s upper extremity and
neck function and opined that she should be restricted to sedentary activity in these areas. He
opined that appellant’s October 27, 2004 injury was consistent with a low back sprain. Dr. Nutik
noted that Dr. Isaza diagnosed disc herniation, but requested to review the magnetic resonance
imaging scan before rendering an opinion. He again noted that appellant exhibited
inconsistencies in her abilities which raised questions about the validity of appellant’s subjective
complaints. Dr. Nutik recommended that appellant perform sedentary work six hours a day with
no repetitive activities or sitting or standing for prolonged periods of time.
Dr. Nutik completed a work restriction evaluation on August 24, 2006. He opined that
appellant could work six hours a day standing for one hour, sitting for six hours, reaching for one
hour and reaching above the shoulder for two hours. Dr. Nutik indicated that appellant should
not twist, bend, stoop or operate a motor vehicle. Appellant could push, pull and lift up to 10
pounds with no squatting, kneeling or climbing. She could perform repetitive movements of the
wrists or elbow one hour each with a weight of no more than 10 pounds.
Dr. Brennan completed a note on August 21, 2006 and indicated that appellant should
continue her exercises due to chronic left hand pain.
On April 24, 2007 the employing establishment offered appellant a limited-duty position
as a modified mail processing clerk. In a letter dated April 26, 2007, the Office informed
appellant that the offered position was suitable and allowed her 30 days to accept the position or
offer her reasons for refusal. Appellant responded on May 5, 2007 and stated that she had not
been released by her physicians and could not yet accept the offered position. In a letter dated
June 13, 2007, the Office informed appellant that her reasons for refusing the offered position
were not valid. It allowed appellant 15 days to accept the position. By decision dated June 28,
2007, the Office terminated appellant’s compensation benefits on the grounds that she refused an
2

The statement of accepted facts indicates that appellant’s claim files were doubled at this time.

3

offer of suitable work. It concluded that the weight of the medical evidence rested with the
impartial medical examiner, Dr. Nutik, who determined that appellant could work with
restrictions six hours a day. The Office found that the position offered by the employing
establishment was within these restrictions and that appellant failed to offer a valid reason for
refusing the position of modified mail processing clerk.3
LEGAL PRECEDENT
Once the wage-earning capacity of an injured employee is properly determined, it
remains undisturbed regardless of actual earnings or lack of earnings.4 A modification of such a
determination is not warranted unless there is a material change in the nature and extent of the
injury-related condition, the employee has been retrained or otherwise vocationally rehabilitated
or the original determination was in fact erroneous. The burden is on the Office to establish that
there has been a change so as to affect the employee’s capacity to earn wages in the job
determined to represent her earning capacity. Compensation for loss of wage-earning capacity is
based upon loss of the capacity to earn and not on actual wages lost.5
In addition, Chapter 2.814.11 of the Office procedure manual contains provisions
regarding the modification of a formal loss of wage-earning capacity. The relevant part provides
that a formal loss of wage-earning capacity will be modified when: (1) the original rating was in
error; (2) the claimant’s medical condition has changed; or (3) the claimant has been vocationally
rehabilitated. Office procedures further provide that the party seeking modification of a formal
loss of wage-earning capacity decision has the burden to prove that one of these criteria has been
met. If the Office is seeking modification, it must establish that the original rating was in error,
that the injury-related condition has improved or that the claimant has been vocationally
rehabilitated.6
ANALYSIS
In the present case, the Office terminated appellant’s compensation benefits effective
June 28, 2007 in a decision of that date, on the grounds that she refused an offer of suitable work.
Section 8106(c) of the Act provides in pertinent part, “A partially disabled employee who ...
(2) refuses or neglects to work after suitable work is offered ... is not entitled to compensation.”7
Prior to terminating appellant’s compensation on June 28, 2007, the Office issued a formal loss
of wage-earning capacity decision on February 14, 2005, in which it reduced appellant’s
3

Following appellant’s July 26, 2007 appeal to the Board, the Branch of Hearings and Review issued a decision
dated January 22, 2008 regarding the termination of appellant’s compensation benefits. As this decision was issued
after appellant filed her appeal with the Board on July 26, 2007, it is null and void. See Douglas E. Billings,
41 ECAB 880 (1990); Oren E. Beck, 33 ECAB 1551 (1982).
4

Sharon C. Clement, 55 ECAB 552, 555 (2004).

5

Id.

6

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.11 (July 1997).
7

5 U.S.C. § 8106(c).

4

compensation benefits to reflect her earnings as a modified mail processor which it found fairly
and reasonably represented appellant’s wage-earning capacity. However, it did not follow the
applicable case law and procedures regarding appellant’s wage-earning capacity prior to
terminating her compensation. The Office did not address its prior formal loss of wage-earning
capacity decision or otherwise formally modify this loss of wage-earning capacity decision
which was in place at the time that it made its suitable work determination on June 28, 2007.
Board precedent establishes that a formal loss of wage-earning capacity decision remains
undisturbed unless appropriately modified. As the Office has not appropriately modified
appellant’s formal loss of wage-earning capacity decision, the suitable work termination is not
appropriate.8
CONCLUSION
The Board finds that the Office improperly terminated appellant’s wage-loss
compensation on the grounds that she refused suitable work.
ORDER
IT IS HEREBY ORDERED THAT June 28, 2007 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: April 14, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8

Sharon C. Clement, supra note 4.

5


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

)
)
)
)
)
)
)
)

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

Docket No. 18-0113
Issued: April 4, 2018

Case Submitted on the Record

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

JURISDICTION
On October 19, 2017 appellant filed a timely appeal from a June 6, 2017 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days lapsed from
the last merit decision, dated April 14, 2017, to the filing of this appeal, pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks
jurisdiction to review the merits of this case.3

1

The Board notes that appellant submitted additional evidence after OWCP rendered its June 6, 2017 decision.
The Board’s jurisdiction, however, is limited to the evidence that was before OWCP at the time of its final decision.
Therefore, the Board is precluded from considering this additional evidence for the first time on appeal. 20 C.F.R.
§ 501.2(c)(1); Dennis E. Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952).
2

5 U.S.C. § 8101 et seq.

3

20 C.F.R. § 501.3(e).

ISSUE
The issue is whether OWCP properly denied appellant’s request for a review of the written
record before the Branch of Hearings and Review as untimely filed under 5 U.S.C. § 8124(b).
FACTUAL HISTORY
On January 13, 2017 appellant, then a 58-year-old mail handler equipment operator, filed
a traumatic injury claim (Form CA-1) alleging that, on January 11, 2017, she sustained right leg,
knee, and shoulder injuries when trying to contain a tub that was spinning out of control. She
stopped work, notified her supervisor, and first received medical care on the date of injury.
In support of her claim, appellant submitted a January 11, 2017 summary from Good
Samaritan Hospital Emergency Department documenting treatment for a knee sprain.
By development letter dated February 6, 2017, OWCP notified appellant that when her
claim had been received, it appeared to be a minor injury, which resulted in minimal or no lost
time from work, and payment of a limited amount of medical expenses was administratively
approved. It reopened the claim for consideration because appellant had not returned to work in a
full-time capacity. OWCP advised appellant of the type of medical and factual evidence needed
to establish her claim and afforded her 30 days to submit the necessary evidence.
In support of her claim, appellant submitted medical reports, diagnostic studies, and work
restrictions dated January 17 through March 7, 2017 documenting treatment for her right knee
condition. In January 17 and February 6, 2017 medical reports, Dr. Robert Lippe, a Boardcertified orthopedic surgeon, diagnosed right knee sprain, right knee tear of the medial meniscus,
and primary osteoarthritis of the right knee. In reports dated February 7 and March 7, 2017,
Dr. Michael Carroll, a Board-certified orthopedic surgeon, diagnosed tear of the medial meniscus
and primary osteoarthritis of the right knee. He administered joint injections for treatment.
By decision dated April 14, 2017, OWCP denied appellant’s claim, finding that the medical
evidence of record failed to establish that her diagnosed right knee condition was causally related
to the accepted January 11, 2017 employment incident.
On an appeal request form dated May 12, 2017, appellant requested review of the written
record before an OWCP hearing representative. The request was postmarked May 17, 2017 and
received by OWCP on May 22, 2017. In support of her claim, appellant submitted additional
medical reports dated January 11 through April 25, 2017 documenting treatment for her right knee
injury.
By decision dated June 6, 2017, an OWCP hearing representative denied appellant’s
request for a review of the written record finding that her request was not made within 30 days of
the April 14, 2017 OWCP decision. He further determined that the issue in the case could equally
well be addressed by requesting reconsideration from OWCP and submitting evidence not
previously considered which established that appellant’s diagnosed condition was causally related
to the accepted January 11, 2017 employment incident.

2

LEGAL PRECEDENT
Section 8124(b)(1) of FECA, concerning a claimant’s entitlement to a hearing before a
representative of OWCP’s Branch of Hearings and Review, provides in pertinent part: “Before
review under section 8128(a) of this title, a claimant for compensation not satisfied with a decision
of the Secretary ... is entitled, on request made within 30 days after the date of the issuance of the
decision, to a hearing on his claim before a representative of the Secretary.”4 Section 10.615 of
the federal regulations implementing this section of FECA provides that a claimant shall be
afforded a choice of an oral hearing or a review of the written record.5 As section 8124(b)(1) is
unequivocal in setting forth the time limitation for requesting a hearing, a claimant is not entitled
to a hearing as a matter of right unless the request is made within the requisite 30 days.6 OWCP’s
regulations and Board precedent provide that the request for an oral hearing or review of the written
record must be sent within 30 days of the date of issuance of the decision (as determined by the
postmark or other carrier’s date marking) for which an oral hearing or review of the written record
is sought.7
The Board has held that OWCP, in its broad discretionary authority in the administration
of FECA,8 has the power to hold hearings in certain circumstances where no legal provision was
made for such hearings and that OWCP must exercise this discretionary authority in deciding
whether to grant a hearing.9 OWCP procedures, which require OWCP to exercise its discretion to
grant or deny a hearing when the request is untimely or made after reconsideration, are a proper
interpretation of FECA and Board precedent.10
ANALYSIS
The Board finds that OWCP properly found in its June 6, 2017 decision that appellant was
not entitled to a review of the written record as a matter of right because her request was not made
within 30 days of its April 14, 2017 decision.11
Appellant’s May 12, 2017 request for review of the written record was postmarked on
May 17, 2017. As noted the request for review of the written record must be sent within 30 days
of the date of issuance of the decision as determined by the postmark or other carrier’s date
4

5 U.S.C. § 8124(b)(1).

5

20 C.F.R. § 10.615.

6

Ella M. Garner, 36 ECAB 238, 241-42 (1984).

7

Supra note 5 at § 10.616(a).

8

5 U.S.C. § 8101 et seq.

9

Marilyn F. Wilson, 52 ECAB 347 (2001).

10

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

11
Supra note 8; Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record,
Chapter 2.1601.4(a) (October 2011).

3

marking.12 The time limitation to request a review of the written record by OWCP’s Branch of
Hearings and Review expired on May 15, 2017, 30 days after the April 14, 2017 decision.13
Therefore, OWCP properly found in its June 6, 2017 decision that appellant was not entitled to a
review of the written record as a matter of right because her request was not made within 30 days
of its April 14, 2017 decision.14
While OWCP also has the discretionary power to grant a review of the written record when
a claimant is not entitled to a review as a matter of right, OWCP’s hearing representative, in her
June 6, 2017 decision, properly exercised her discretion by indicating that she had carefully
considered appellant’s request and had determined that the issue of the case could equally well be
addressed by requesting reconsideration and submitting additional evidence in support of her claim
for a work-related traumatic injury. The Board has held that the only limitation on OWCP’s
authority is reasonableness and an abuse of discretion is generally shown through proof of manifest
error, clearly unreasonable exercise of judgment, or actions taken which are contrary to both logic
and probable deduction from established facts.15 In this case, the evidence of record does not
indicate that OWCP abused its discretion in its denial of appellant’s request for review of the
written record. Accordingly, the Board finds that OWCP properly denied her request.16
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for a review of the written
record under section 8124(b) of FECA as it was untimely filed.

12

Supra note 7.

13

The Board notes that the 30-day time limitation ran on Sunday, May 14, 2017. Because the time limitation
expired on a nonbusiness day, the limitation is extended to include the next business day, Monday, May 15, 2017. See
M.H., Docket No. 13-1901 (issued January 8, 2014); Debra McDavid, 57 ECAB 149, 150 (2005); Angel M.
Lebron, Jr., 51 ECAB 488, 490 (2000); Gary J. Martinez, 41 ECAB 427, 427-28 (1990).
14

Supra note 7.

15

Daniel J. Perea, 42 ECAB 214, 221 (1990).

16

D.P., Docket No. 14-308 (issued April 21, 2014); D.J., Docket No. 12-1332 (issued June 21, 2013).

4

ORDER
IT IS HEREBY ORDERED THAT the June 6, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 4, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Cincinnati, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Brad Harris, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-1149
Issued: January 16, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 10, 2013 appellant, though counsel, filed a timely appeal from the October 15,
2012 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 met her burden of proof to establish that she sustained a
right knee injury as a consequence of her accepted left knee injury.

1
2

5 U.S.C. §§ 8101-8193.

In a July 18, 2013 order, the Board denied appellant’s request for oral argument before the Board finding that
appellant’s arguments could be addressed on appeal and that oral argument in the appeal would further delay
issuance of a Board decision and not serve a useful purpose.

FACTUAL HISTORY
OWCP accepted that on September 8, 2003 appellant, then a 52-year-old nursing
assistant, sustained a left knee strain and left medial meniscus tear when she twisted her left knee
while assisting with the transfer of a patient from a bed to a stretcher.3 She stopped work on
September 9, 2003 and returned to work on September 10, 2003.4
On February 27, 2004 Dr. James T. Bilbo, an attending Board-certified orthopedic
surgeon, performed surgery on appellant’s left knee, including arthroscopy, partial medial
meniscectomy, abrasion arthroplasty of her medial femoral condylar and lateral tibial plateau
articular surfaces, partial lateral meniscectomy with chondroplasty of her lateral compartment
and articular surfaces and chondroplasty of her patella and femoral trochlear groove articular
surfaces. These procedures were authorized by OWCP.5
In a January 30, 2006 report, Dr. Bilbo stated that appellant’s need for a joint replacement
was the result of dormant, preexisting degenerative changes in her left knee that were further
aggravated by her work-related injury. Because appellant had failed limited operative and
nonoperative treatment, the only other alternative was to undergo total joint replacement.
Dr. Bilbo stated, “Were it not for the work[-]related injury and subsequent surgery, she may not
have required the joint replacement, especially at this time.”
In a November 13, 2008 report, Dr. Forest Heis, an attending Board-certified orthopedic
surgeon, stated that appellant sustained a right knee injury as a consequence of her September 8,
2003 left knee injury. He noted that, while she had a preexisting right knee condition, the effects
of her left knee condition caused a worsening of her right knee condition.
In letters dated February 5, 10 and 13, 2009, counsel argued that appellant had sustained
a right knee injury as a consequence of her accepted left knee injury.
In a March 5, 2009 report, Dr. Paul Cangemi, a Board-certified orthopedic surgeon
serving as an OWCP referral physician, described appellant’s medical history and reported the
findings of his examination. He stated, “The additional stress of weight bearing following the
injury on her left knee was inconsequential as compared to the history of the disease process in
her right knee. I do not feel that this resulted in a relevant or significant aggravation of a
preexisting condition or arthritis in the right knee.”
3

Appellant indicated that the stretcher failed to lock when she pulled up on it.

4

Appellant previously sustained a twisting injury to her left knee on July 23, 1998 and she underwent OWCPauthorized left knee surgery on November 9, 1998, including arthroscopy, partial medial meniscectomy,
chondroplasty and abrasion arthroplasty of her patellar articular surface and chondroplasty of her medial femoral
condylar and lateral tibial plateau articular surfaces. On October 6, 2000 she underwent right knee surgery,
including partial medial meniscectomy, chondroplasty of her patella, medial femoral condyle and medial tibial
plateau articular surfaces and abrasion arthroplasty of her patellar articular surface.
5

In August 26, 2003, Dr. Bilbo had stated that appellant reported that both of her knees were becoming
increasingly symptomatic. He observed that she had a somewhat antalgic gait pattern and that there was guarding at
terminal motion. Dr. Bilbo stated that x-ray testing showed progression of degenerative changes in both knees with
marginal spur formation and narrowing but not complete collapse of the medial compartments.

2

In an April 30, 2009 decision, OWCP granted appellant a schedule award for 50 percent
permanent impairment of her left leg. The award ran for 144 weeks from April 15, 2009 to
January 17, 2012.
OWCP determined that there was a conflict in the medical opinion evidence between
Dr. Heis and Dr. Cangemi regarding whether appellant sustained a right knee injury was a
consequence of her accepted left knee injury. In order to resolve the conflict, it referred
appellant to Dr. Arthur F. Lee, a Board-certified orthopedic surgeon, for an impartial medical
examination and opinion on whether she sustained such a consequential injury.
In August 7 and October 17, 2009 reports, Dr. Lee detailed appellant’s factual and
medical history and provided his examination findings.6 He noted that she was involved in a
September 8, 2003 event where she sustained a left knee strain, but indicated that the left knee
strain “did not appear to cause any significant alteration or change in this woman’s natural
history when one considers the medical records.” Dr. Lee noted that this statement took into
account Dr. Bilbo’s own medical records describing absolutely no change in appellant’s
examination between August 26 and September 23, 2003. He indicated that appellant had
progressive degeneration changes with gait abnormalities and early varus deformities before the
September 8, 2003 accident occurred, as documented by an August 26, 2003 report. Dr. Lee
stated that the natural history of her arthritic knees, particularly considering her weight,
necessitated left knee total knee replacement because of her preexisting nonwork-related
arthritis. He posited that none of the surgeries performed were necessitated by the September 8,
2003 injury and stated:
“There is certainly no indication that the natural history of this woman’s right
knee was in anyway altered or changed due to the September 8, 2003 event.
From an employment perspective there would be no limitations or restrictions
placed upon [appellant] because of her history of the September 8, 2003 injury.
She has completely recovered from this event and is left with no permanent
sequelae.”
In a November 17, 2009 decision, OWCP denied appellant’s claim noting that Dr. Lee,
the impartial medical specialist, provided a well-rationalized opinion finding that she did not
sustain a right knee injury as a consequence of her accepted left knee injury.
In a February 22, 2010 decision, OWCP’s hearing representative set aside OWCP’s
November 17, 2009 decision and remanded the case to OWCP for further development. He
found that OWCP had not produced a proper statement of accepted facts that included all of the
accepted work conditions and surgeries. The hearing representative indicated that, on remand,
OWCP should produce an updated, complete statement of accepted facts and should refer the
case to Dr. Lee for a supplemental opinion regarding whether appellant sustained a right knee
injury as a consequence of her accepted left knee injury.

6

The August 7, 2009 report contained examination findings from that date and the October 17, 2009 report
contained a review of the medical records.

3

On remand, OWCP produced a new statement of accepted facts and referred the case to
Dr. Lee for a supplemental report. It requested that Dr. Lee respond to various questions. On
April 7, 2010 Dr. Lee stated in response:
“(1) Has [appellant’s] right knee condition been caused or aggravated by the
work[-]related injuries and authorized surgeries of July 23,1998 and September 8,
2003 as described in the [statement of accepted facts] SOAF? Answer:
[Her]right knee condition has not, in anyway, been caused or aggravated by the
work[-]related injuries and authorized surgeries of July 23,1998 or September 8,
2003.
“(2) If aggravated, please indicate whether it was a temporary or permanent
aggravation? Please explain in detail. Answer: It is my professional opinion,
based upon the [SOAF] information, that [appellant] did not sustain any
aggravation whether it be temporary or permanent.”
In an April 28, 2010 decision, OWCP denied appellant’s claim that she sustained a right
knee injury as a consequence of her accepted left knee injury, noting that the well-rationalized
opinion of Dr. Lee, the impartial medical specialist, showed that she did not sustain such an
injury.
Appellant submitted a May 10, 2011 report in which Dr. Heis again indicated that she
sustained a right knee injury as a consequence of her accepted left knee injury.
In a July 27, 2012 decision, OWCP affirmed its April 28, 2010 decision denying
appellant’s consequential injury claim indicating that the weight of the medical opinion evidence
on this matter continued to rest with the opinion of the impartial specialist, Dr. Lee.
Counsel continued to argue that appellant sustained a consequential right leg condition
and submitted additional medical reports regarding the condition of her legs.
In an October 15, 2012 decision, OWCP affirmed its July 27, 2012 decision denying
appellant’s consequential injury claim again noting that the weight of the medical opinion
evidence on this matter continued to rest with the opinion of Dr. Lee.
LEGAL PRECEDENT
The general rule respecting consequential injuries is that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause, which is attributable to the employees own intentional conduct.7
A claimant bears the burden of proof to establish a claim for a consequential injury. As part of
this burden, he or she must present rationalized medical opinion evidence.8
7

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

8

Charles W. Downey, 54 ECAB 421 (2003).

4

Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”9 When there are
opposing reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a) of FECA, to resolve the conflict in the medical
evidence.10 In situations where there exist opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving the
conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper
factual background, must be given special weight.11
In a situation where OWCP secures an opinion from an impartial medical specialist for
the purpose of resolving a conflict in the medical evidence and the opinion from such examiner
requires clarification or elaboration, OWCP has the responsibility to secure a supplemental
report from the examiner for the purpose of correcting the defect in the original opinion.12 If the
impartial medical specialist is unable to clarify or elaborate on his or her original report or if his or
her supplemental report is also vague, speculative or lacking in rationale, OWCP should submit the
case record and a detailed statement of accepted facts to a second impartial specialist for the
purpose of obtaining his rationalized medical opinion on the issue.13
ANALYSIS
OWCP accepted that appellant sustained a left knee strain, left medial meniscus tear and
aggravation of osteoarthritis of her left knee when she twisted her left knee at work on
September 8, 2003.14 Appellant claimed that she sustained a right knee injury as a consequence
of her accepted left knee injury, but it denied her claim based on the opinion of Dr. Lee, a Boardcertified orthopedic surgeon serving as an impartial medical specialist.
OWCP properly determined that there was a conflict in the medical opinion between
Dr. Heis, appellant’s attending Board-certified orthopedic surgeon, and Dr. Cangemi, a Boardcertified orthopedic surgeon acting as an OWCP referral physician, on the issue of whether

9

5 U.S.C. § 8123(a).

10

William C. Bush, 40 ECAB 1064, 1975 (1989).

11

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

12

Nancy Lackner (Jack D. Lackner), 40 ECAB 232, 238 (1988).

13

Harold Travis, 30 ECAB 1071, 1078 (1979).

14

Appellant previously sustained a twisting injury to her left knee on July 23, 1998 and she underwent OWCPauthorized left knee surgery on November 9, 1998, including arthroscopy, partial medial meniscectomy,
chondroplasty and abrasion arthroplasty of her patellar articular surface, and chondroplasty of her medial femoral
condylar and lateral tibial plateau articular surfaces. On October 6, 2000 appellant underwent right knee surgery
which was not authorized by OWCP. On February 27, 2004 she underwent left knee surgery which was authorized
by it.

5

appellant sustained a right knee injury as a consequence of her accepted left knee injury.15 In
order to resolve the conflict, OWCP properly referred appellant, pursuant to section 8123(a) of
FECA, to Dr. Lee for an impartial medical examination and an opinion on the matter.
The Board finds that, despite being provided an opportunity to produce a supplemental
report, Dr. Lee failed to produce a well-rationalized opinion on the question of whether appellant
sustained a right knee injury as a consequence of her accepted left knee injury. Therefore, his
opinion does not represent the weight of the medical evidence with respect to this matter.16
In August 7 and October 17, 2009 reports, Dr. Lee detailed appellant’s factual and
medical history and provided his examination findings,17 but he did not provide a clear opinion
on the relevant issue of this case, i.e., whether she sustained a right knee condition due to her
September 8, 2003 left knee injury. He devoted much of the text of these reports to explaining
why he felt that the September 8, 2003 was insignificant in nature and did not contribute to the
need for OWCP-authorized surgery. For example, Dr. Lee stated, “There is certainly no
indication that the natural history of this woman’s right knee was in anyway altered or changed
due to the September 8, 2003 event.” In this regard, his opinion is not based on a complete and
accurate factual and medical history as he appears to deviate from the facts in the statement of
accepted facts regarding accepted conditions and surgeries.
In order to gain an opinion from Dr. Lee regarding the issue of a consequential right knee
injury, OWCP produced a new statement of accepted facts and requested a supplemental report.
Dr. Lee’s supplemental report still did not provide a detailed opinion on the existence of a
consequential right knee injury; his opinion was conclusory in nature and did not contain any
supporting medical rationale. For example, in response to a question regarding whether
appellant’s right knee condition was caused or aggravated by the work-related injuries and
authorized surgeries, Dr. Lee merely stated that appellant’s “right knee condition has not, in
anyway, been caused or aggravated by the work-related injuries and authorized surgeries of
July 23, 1998 or September 8, 2003.”18
The Board finds that there is a continuing conflict in the medical opinion evidence
regarding whether appellant sustained a right knee injury as a consequence of her accepted left
knee injury. Therefore, appellant and the case record should be referred to a new impartial
medical specialist for an examination and opinion on the issue of whether she sustained a

15

In a November 13, 2008 report, Dr. Heis stated that appellant sustained a right knee injury as a consequence of
her September 8, 2003 left knee injury. In contrast, Dr. Cangemi indicated on March 5, 2009 that she did not sustain
a consequential injury.
16

See supra note 11.

17

The August 7, 2009 report contained examination findings from that date and the October 17, 2009 report
contained a review of the medical records.
18

The Board further notes that it is unclear whether Dr. Lee was provided with an adequate definition of a
consequential injury under FECA.

6

consequential right knee injury.19 After such development it deems necessary, OWCP shall issue
an appropriate decision on this matter.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
sustained a right knee injury as a consequence of her accepted left knee injury. The case is
remanded to OWCP for further development of the medical evidence.
ORDER
IT IS HEREBY ORDERED THAT the October 15, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with this decision.
Issued: January 16, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

19

See supra note 13.

7