United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.P., Appellant
and
DEPARTMENT OF THE NAVY,
CHARLESTON NAVAL SHIPYARD,
Charleston, SC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 10-1869
Issued: May 23, 2011

Case Submitted on the Record

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

JURISDICTION
On July 2, 2010 appellant filed a timely appeal from a January 6, 2010 decision of the
Office of Workers’ Compensation Programs. Pursuant to the Federal Employees’ Compensation
Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly reduced appellant’s compensation to zero,
effective December 21, 2008, on the grounds that she failed, without good cause, to cooperate
with vocational rehabilitation efforts.
On appeal appellant asserts that she did not receive notification of the scheduled
September 25, 2008 appointment until September 29, 2008 and was not told that transportation
for the testing was authorized.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On December 5, 1990 appellant, then a 31-year-old insulator, sustained an employmentrelated injury to her left knee when her leg fell through a grating. The claim was accepted for
meniscus tear of the left knee. Appellant began working limited duty. On August 1, 1991
Dr. James J. McCoy, a Board-certified orthopedic surgeon, performed left knee arthroscopic
surgery. The postoperative diagnosis was chronic left knee sprain superimposed on preexisting
chondromalacia. Appellant returned to limited duty. On May 3, 1993 she was granted a
schedule award for a 13 percent impairment of the left lower extremity.2 Appellant transferred
from the insulator position to that of supply clerk; but was separated from the employing
establishment effective March 10, 1995 because her restrictions could not be accommodated.
The Office accepted that she sustained a recurrence of disability and she was placed on the
periodic compensation rolls.3
In a September 4, 2001 report, Dr. Gerald D. Schuster, a Board-certified orthopedic
surgeon and Office referral physician, provided examination findings and diagnosed internal
derangement of both knees with evidence of chondromalacia patellae, especially on the left. He
advised that a September 10, 2001 magnetic resonance imaging (MRI) scan of the left knee was
unremarkable and showed no evidence of a tear of the medial meniscus. Dr. Schuster advised
that appellant could work eight hours a day with restrictions to her physical activity.
Appellant came under the care of Dr. Bright McConnell, III, Board-certified in
orthopedic surgery. In reports dated October 3, 1997 to July 31, 2002, Dr. McConnell noted her
symptoms of bilateral knee pain. He diagnosed mild persistent patellofemoral malalignment,
more consistent for enthesopathy. In an October 26, 2007 report, Dr. McConnell noted that he
had last seen appellant in September 2005 for mild degenerative changes of her knees.4 He
noted her current complaint of multiple foci joint pain involving both knees, hands, ankles and
spine, exacerbated by activity. Physical examination findings included a mild antalgic gait with
full hip and knee range of motion and no knee instability and no knee effusion. Appellant had
diffuse medial and lateral joint line tenderness and minimal patellofemoral crepitus.
Neurovascular examination was unremarkable. Dr. McConnell diagnosed mild degenerative
arthritis of the left knee with varus malalignment and patellofemoral syndrome, rule-out
polyarthropathy, with possible rheumatologic source. On November 12, 2007 he reported that
appellant’s laboratory studies ruled out rheumatologic involvement. Regarding her work
activities, Dr. McConnell advised that appellant should avoid repetitious kneeling, squatting and
lifting weights in excess of 20 pounds.

2

By decision dated August 27, 1993, an Office hearing representative affirmed the May 3, 1993 schedule award
decision. Appellant also has a closed claim, adjudicated under file number xxxxxx955, for bilateral carpal tunnel
syndrome.
3

The March 15, 1995 letter notifying appellant that the recurrence was accepted contains a typographical error,
noting that a right knee meniscal tear was accepted, not the left. Appellant was referred for vocational rehabilitation
in August 1995 and services were discontinued in October 1996.
4

A copy of a September 2005 report from Dr. McConnell is not found in the case record.

2

By report dated February 20, 2008, Dr. Dowse D. Rustin, a Board-certified orthopedic
surgeon, who provided a second opinion evaluation for the Office.5 He noted the history of left
knee injury and appellant’s report that she also injured her right knee on December 5, 1990.
Dr. Rustin described her medical treatment and provided findings on physical examination. He
advised that appellant was ambulating independently and able to get on and off the examining
table without difficulty. Dr. Rustin reported full flexion and extension of both knees with only
trace fluid. The patella appeared to track well in both knees without significant crepitus, and she
had good mediolateral stability, a negative anterior drawer test and a good Lachman test.
Dr. Rustin stated that there was no indication of internal derangement of the left knee and only
minimal findings of chondromalacia, and advised that appellant could return to her previous
position with restrictions of no stooping, squatting or kneeling. A March 18, 2008 left knee MRI
scan demonstrated minimal joint effusion, minimal patellar chondromalacia, minimal
chondromalacia involving the medial femoral condyle and no meniscus tear.
In March 2008 appellant was referred for vocational rehabilitation. By letter dated
May 5, 2008, Tonetta Watson-Coleman, a vocational consultant, noted that appellant had not
responded to her April 18, 2008 letter or to messages left at her home regarding appellant’s
referral for vocational rehabilitation services.6 She asked that appellant telephone her, and again
contacted appellant by letter on May 14, 2008. On June 20, 2008 the Office confirmed that
appellant had not responded to any of Ms. Watson-Coleman’s attempts to reach her.
By report dated June 20, 2008, Dr. McConnell advised that appellant had an episode of
falling and aggravation of neck and back pain with weakness in her left leg. He stated that
physical examination demonstrated no demonstrable effusion in either knee, with mild
patellofemoral crepitus, left more than right and quadriceps weakness on wall slide test.
Dr. McConnell advised that he would not recommend intervention for her post-traumatic
chondromalacia and that she could have mild neuropathy on the left.
Ms. Watson-Coleman telephoned the Office on June 26, 2008, stating that appellant
called her and reported that she had been ill since April 23, 2008 and that she had no telephone.
Appellant met with the rehabilitation counselor on July 2, 2008. She stated that appellant
maintained that she needed left knee surgery and had many physical complaints. On July 11,
2008 Ms. Watson-Coleman telephoned the Office reporting that she had met with appellant, but
it did not appear that the vocational rehabilitation process would be successful. By letter dated
August 4, 2008, she informed appellant that an appointment had been scheduled on August 25,
2008 with L. Randolph Waid, Ph.D., for vocational evaluation. On August 14, 2008 appellant
advised that she had another appointment on August 25, 2008 and asked that the appointment
with Dr. Waid be rescheduled. She also asked that transportation services be provided because
she could not drive due to medication.

5

Appellant was initially referred to Dr. James Bethea. She did not attend the appointment scheduled for
November 16, 2007, stating that it was inconvenient to attend an appointment in Columbia, South Carolina, so far
from her home in Charleston, South Carolina. An appointment was rescheduled with Dr. Rustin, in Charleston,
South Carolina.
6

The record does not contain a copy of April 18, 2008 correspondence.

3

In an August 25, 2008 treatment note, Dr. McConnell noted appellant’s complaint of
knee pain. Examination demonstrated no effusion and mild patellofemoral crepitus with no
instability. Dr. McConnell noted that appellant was having similar problems with her right knee.
By letter dated August 25, 2008, Ms. Watson-Coleman informed appellant that the
appointment with Dr. Waid had been rescheduled, and to please call to discuss the appointment.
In a letter dated September 10, 2008, the rehabilitation counselor advised appellant the
transportation could be provided for the scheduled appointment, and stated that, since she did not
have a telephone number where appellant could be reached or a street address where the service
could pick her up, appellant should telephone her.7 In an October 3, 2008 rehabilitation action
report, Ms. Watson-Coleman noted that appellant had declined to provide a telephone number
and had not cooperated with vocational rehabilitation efforts. The report stated that certified
letters had been mailed to appellant on August 25 and September 10, 2008 informing her of the
September 25, 2008 appointment with Dr. Waid, that transportation could be provided and that
appellant had not contacted her.8
In an October 16, 2008 letter, the Office proposed to suspend appellant’s monetary
compensation on the grounds that she failed to cooperate in rehabilitation efforts. Appellant was
notified of the penalty provisions of section 8113(b) of the Act9 and section 10.519 of the
Office’s regulations.10 The Office informed her that it was assumed that vocational rehabilitation
would have resulted in a return to work with no loss of wage-earning capacity and, accordingly,
compensation would be reduced to zero. Appellant was directed to make a good faith effort to
participate in vocational rehabilitation and given 30 days in which to respond.
On November 11, 2008 appellant requested a copy of Dr. Schuster’s report and all
vocational rehabilitation files. In a November 13, 2008 letter, she stated that she did not impede
vocational rehabilitation efforts, and contended that she did not receive correspondence
regarding a September 25, 2008 appointment until September 29, 2008. Appellant noted that she
could not drive due to medication and had no means of transportation. In addition to injuries to
both knees, she had cervical and lumbar injuries and bilateral carpal tunnel syndrome caused by
her federal employment.11 Appellant stated that, because the meeting with Ms. Watson-Coleman
on July 2, 2008 lasted more than an hour, she was in excruciating pain from sitting, and reported
that she needed cervical, lumbar, knee and bilateral carpal tunnel surgery. She asserted that all
her injuries should be addressed.
In a decision dated December 4, 2008, the Office found that appellant did not provide any
medical documentation to support her contentions regarding other medical conditions that
prevented her participation in vocational rehabilitation efforts. It determined that her failure to
undergo the essential preparatory effort of vocational testing did not permit an assessment of her
7

Appellant changed her address of record to a post office box in 1995.

8

The record indicates that the letters were sent certified mail and one was picked up on September 29, 2008 and
the other returned as not picked up, but contains contradictory information regarding which was picked up.
9

5 U.S.C. § 8113(b).

10

20 C.F.R. § 10.519.

11

The record indicates that appellant has a closed claim for bilateral carpal tunnel syndrome.

4

wage-earning capacity, had she undergone the testing and rehabilitation effort, and that, in the
absence of evidence to the contrary, the vocational rehabilitation effort would have resulted in
her return to work at the same or higher wages than for the position held when injured. The
Office reduced appellant’s compensation to zero on the grounds that she failed to cooperate with
vocational rehabilitation efforts. Appellant was informed that the reduction would continue until
she, in good faith, participated in directed vocational testing, or showed good cause for not
complying, at which time the reduction of compensation would cease.
On January 6, 2009 appellant requested a review of the written record. She stated that
she had not timely received notice of the September 25, 2008 appointment for testing, and
asserted that the Office should have medical evidence regarding her employment injuries.
Appellant submitted additional evidence including a May 2, 2008 lumbar spine MRI scan that
demonstrated degenerative changes, worse at L3-4 through L5-S1, and an extruded disc at L3-4.
A June 10, 2008 cervical MRI scan demonstrated multilevel cervical spondylosis, and a
November 28, 2008 right knee MRI scan demonstrated a small tear involving the anterior horn of
the lateral meniscus with minimal associated parameniscal cyst and areas of minimal
chondromalacia. A November 28, 2008 brain MRI scan was unremarkable.
By decision dated August 13, 2009, an Office hearing representative denied appellant’s
request for a written review of the record on the grounds that the request was not timely filed.
On December 4, 2009 appellant requested reconsideration, noting that she had several
employment-related injuries including bilateral carpal tunnel syndrome, and reiterating that she
also injured her right knee on December 5, 1990.
She submitted a June 25, 2008
electromyographic (EMG) study that had no summary or interpretation report. By report dated
July 29, 2009, Dr. McConnell noted seeing appellant for complaints of her left knee. He
provided examination findings and diagnosed effusion of the lower leg, lateral meniscus tear and
Baker’s cyst. On September 2, 2009 Dr. McConnell reported that appellant was still having
anterior left knee pain, aggravated by steps and sitting for prolonged periods of time. He stated
that he had been following her for several years for a right knee condition. Dr. McConnell
diagnosed patella tendinitis and chondromalacia patella. On November 11, 2009 he injected the
left knee patellar tendon.12
In a merit decision dated January 6, 2010, the Office denied modification of the
December 4, 2008 decision.
LEGAL PRECEDENT
Section 8113(b) of the Act provides:
“If an individual without good cause fails to apply for or undergo vocational
rehabilitation when so directed under section 8104 of this title, the Secretary, on
review under section 8128 of this title and after finding that in the absence of the
failure the wage-earning capacity of the individual would probably have
substantially increased, may reduce prospectively the monetary compensation of
the individual in accordance with what would probably have been his wage12

Appellant also submitted duplicates of medical evidence previously of record.

5

earning capacity in the absence of the failure, until the individual in good faith
complies with the direction of the Secretary.”13
20 C.F.R. § 10.519 provides in pertinent part:
“If an employee without good cause fails or refuses to apply for, undergo,
participate in, or continue to participate in a vocational rehabilitation effort when
so directed, [the Office] will act as follows:”
***
“(b) Where a suitable job has not been identified, because the failure or
refusal occurred in the early but necessary stages of a vocational
rehabilitation effort (that is, meetings with the [the Office] nurse,
interviews, testing, counseling, functional capacity evaluations, and work
evaluations) [the Office] cannot determine what would have been the
employee’s wage-earning capacity.
“(c) Under the circumstances identified in paragraph (b) of this section, in
the absence of evidence to the contrary, [the Office] will assume that the
vocational rehabilitation effort would have resulted in a return to work
with no loss of wage-earning capacity, and [the Office] will reduce the
employee’s monetary compensation accordingly (that is, to zero). This
reduction will remain in effect until such time as the employee acts in
good faith to comply with the direction of [the Office].”14
The Office’s procedure manual states that specific instances of noncooperation include a
failure to appear for the initial interview, counseling sessions, a functional capacity evaluation,
other interviews conducted by the rehabilitation counselor, vocational testing sessions and work
evaluations, as well as lack of response or inappropriate response to directions in a testing
session after several attempts at instruction.15
ANALYSIS
Appellant’s claim was accepted for a left knee meniscus tear for which she underwent
surgery. The Office developed the medical evidence regarding her work restrictions.
Appellant’s attending orthopedic surgeon, Dr. McConnell, advised on November 12, 2007 that
appellant should avoid repetitious kneeling, squatting and climbing and should not repetitiously
lift weight in excess of 20 pounds. Dr. Rustin, an Office referral physician, advised in a
February 20, 2008 report that she could return to her previous job with restrictions of no
stooping, squatting or kneeling. He noted that appellant was an insulin-dependent diabetic and

13

5 U.S.C. § 8113(b).

14

20 C.F.R. § 10.519; see R.H., 58 ECAB 654 (2007).

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Vocational Rehabilitation Services,
Chapter 2.813.11(a) (November 1996); see Sam S. Wright, 56 ECAB 358 (2005).

6

had a past medical history of carpal tunnel syndrome and hypertension. Dr. Rustin advised that
she could return to work.
The Office referred appellant to Ms. Watson-Coleman for vocational rehabilitation
services, to develop a vocational plan and assist appellant in returning to gainful employment
within her physical limitations.
After an initial interview, held more than two months after Ms. Watson-Coleman first
attempted to contact appellant, the rehabilitation counselor scheduled a vocational testing
appointment with Dr. Waid on August 25, 2008. That appointment was rescheduled at
appellant’s request. Appellant reasonably should have been aware at that time that the
appointment would be rescheduled.
She did not provide a telephone number to
Ms. Watson-Coleman. Appellant was notified by certified letters dated August 25 and
September 10, 2008 of the rescheduled appointment for September 25, 2008 and that
transportation would be provided. The record indicates that the letters were sent to her address
of record, a post office box, and that one was picked up on September 29, 2008 and the other
returned.
Office procedures recognize that failure to attend a vocational testing session is a specific
instance of noncooperation in vocational rehabilitation.16 The issue is whether appellant’s failure
to participate was “without good cause” under section 8113(b) of the Act and section 10.519 of
the Office’s regulations. There is no evidence that her failure to exercise a reasonable standard
of cooperation was based on good cause. Appellant changed her address of record to a post
office box in 1995.17 It was her responsibility to pick up her mail, especially since she did not
provide a telephone number to Ms. Watson-Coleman. The Board finds that the rehabilitation
counselor properly provided appellant notice of the appointment scheduled for September 25,
2008, that appellant did not attend.
Moreover, appellant submitted no probative evidence to establish “good cause” for her
failure to participate in vocational rehabilitation. Ms. Watson-Coleman had scheduled
vocational testing, and none of the medical reports indicated that appellant was physically unable
to attend the testing session. If a suitable job was subsequently identified, appellant would have
an opportunity to submit relevant evidence as to the medical or vocational suitability of the
position.
In this case, the failure to participate was clearly in the early but necessary stage of
vocational rehabilitation, prior to the identification of a suitable job. Under this circumstance the
Office will assume, in the absence of contrary evidence that the rehabilitation effort would have
resulted in a return to work with no loss of wage-earning capacity. Pursuant to section 10.519,
the Office will reduce compensation to zero until such time as appellant in good faith complies
with the direction of the Office. The Board finds the Office properly applied the provisions of
the Act and the implementing regulations in reducing appellant’s compensation to zero effective

16

Id.

17

Supra note 7.

7

December 21, 2008 because she failed to participate in the early and necessary stages of
vocational rehabilitation was “without good cause.”18
The Board also finds that appellant has not demonstrated a willingness to undergo
vocational testing or provide good cause for not complying since that time. Appellant has
asserted that she needs surgery on her neck, back, knees and for carpal tunnel syndrome, and has
generally argued that her several medical conditions prevent her from working. The medical
evidence submitted is, however, insufficient to establish good cause for failure to participate in
vocational rehabilitation services. There is no medical report specifically discussing appellant’s
claimed carpal tunnel syndrome, degenerative cervical and lumbar condition, or other medical
conditions, and there is no medical evidence that indicates that she needs surgery of any sort.
The MRI scan studies submitted were either unremarkable or demonstrated degenerative
changes, and the EMG study did not include a medical interpretation. In reports submitted by
Dr. McConnell subsequent to the December 21, 2008 suspension of wage-loss compensation,
Dr. McConnell merely noted appellant’s continued complaints of bilateral new pain. Thus, none
of the evidence submitted demonstrates that appellant could not participate in vocational
rehabilitation services and she has not established good cause for her failure to participate.
CONCLUSION
The Board finds that the Office properly reduced appellant’s compensation to zero on the
grounds that she failed to cooperate with the early stages of vocational rehabilitation efforts.

18

Supra note 13.

8

ORDER
IT IS HEREBY ORDERED THAT the January 6, 2010 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: May 23, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Miami, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-1460
Issued: January 7, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 5, 2013 appellant filed a timely appeal from the December 10, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her claim for
compensation for traumatic injury. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant has established that she sustained a traumatic injury in the
performance of duty on February 23, 2012.
FACTUAL HISTORY
On April 25, 2012 appellant, then a 52-year-old city mail carrier, filed a traumatic injury
claim (Form CA-1) alleging a torn muscle and abrasion with swelling and inflammation in her
1

5 U.S.C. § 8101 et seq.

left arm in the performance of duty on February 23, 2012. She stated that her injury occurred as
a result of being pushed against a metal general parcel container by her supervisor,
Timothy Price. Appellant listed Mike Jordan, Michelle Cooper-Wilson, Larry Murdock and
Mr. Price as witnesses to the incident.
In a sheriff’s office offense report dated February 23, 2012, a police officer stated that he
had been dispatched to a hospital in reference to a battery complaint. Appellant stated that she
had been battered by her supervisor, Mr. Price. She described the incident as occurring when her
supervisor reached to get mail from the floor and bumped her, which caused her to strike a
container with her left shoulder. When asked whether appellant thought Mr. Price had intended
to strike her, she stated, “I think he meant to hit me and the incident wasn’t reported.”
In an x-ray report dated February 23, 2012, Dr. Jaime Toro, a Board-certified radiologist,
concluded that appellant’s left shoulder did not have a fracture or dislocation. The
acromioclavicular joint was normal.
In a report dated March 12, 2012, Dr. Nicholas Sama, a Board-certified orthopedic
surgeon, noted that appellant stated that her injury occurred as a result of an altercation with a
coworker on February 23, 2012. He diagnosed a left rotator cuff tear and a left labral tear, noting
upon examination that she had resolved abrasions over the lateral aspect of her shoulder and was
unable to tolerate any kind of range of motion examination of her shoulder, elbow, forearm, wrist
or hand. Dr. Sama reviewed a magnetic resonance imaging (MRI) scan that appellant provided
and stated that it revealed significant acromioclavicular joint signal intensity suggestive of
ligament hypertrophy as well as osteoarthritic changes, a high-grade tear of the supraspinatus
tendon, increased thickness of the infraspinatus tendon and a tear of the glenoid.
In a report dated March 21, 2012, Dr. David R. Simpson, a Board-certified orthopedic
surgeon, diagnosed left shoulder tendinitis and early complex regional pain syndrome. He asked
appellant to explain the injury and she refused to answer any questions, instead presenting him
with a handwritten note. Dr. Simpson could not understand exactly what the note stated, but he
was able to determine that she was forced up against some type of mail container. Appellant
complained of severe incapacitating pain when he lightly touched the skin of her left arm,
forearm or hand. She refused to move the left arm at all or let him touch her, which made
physical examination of her left shoulder impossible. Dr. Simpson examined the same MRI scan
as Dr. Sama, noting that it was of poor quality and concluded that there was some tendinosis
within the distal supraspinatus tendon, but no evidence of a full-thickness rotator cuff tear. He
asserted that he had no way of explaining appellant’s incapacitating symptoms because she
would not let him near her.
In progress notes dated April 25, 2012, Dr. Simpson diagnosed a partial left rotator cuff
tear, adhesive capsulitis of the left shoulder and a possible left labral tear. On physical
examination of the left shoulder, he found 15 degrees of forward elevation and 15 degrees of
abduction before there was considerable pain and inability to move the arm. Dr. Simpson also
stated that appellant’s left shoulder had 10 degrees of internal rotation and 0 degrees of external
rotation. Appellant’s range of motion of the left elbow, wrist and hand was unimpeded.

2

In a narrative statement dated April 25, 2012, appellant described the alleged incident.
She stated that she was holding the front bar of a general parcel container when Mr. Jordan
grabbed the side of the container. Mr. Price then pushed his body against appellant, which
pushed her into the metal container. Appellant then reached down and Mr. Price violently
agitated the flat baskets in the container, causing them to strike her hand and arm. She also
asserted that her left arm was hit against the metal container.
A special agent with the employing establishment interviewed Mr. Price on
May 14, 2012.
Mr. Price denied that he had pushed, hit or shoved appellant on
February 23, 2012. He requested that she move her general parcel container because it was
behind her casing station. When appellant refused, Mr. Price requested that Mr. Jordan move the
container. Appellant grabbed onto the container and pulled back, stating that there were things
in the container that she needed such as her buckets. Mr. Price attempted to retrieve the buckets,
but appellant tried to pull them out of his hand and he let go. Appellant stated that Mr. Jordan
witnessed the incident. Mr. Jordan reported that Mr. Price did not strike her. Appellant
delivered her route for two hours before coming back. When she was requested to fill out
documentation concerning the incident, she refused. Appellant submitted a traumatic injury
claim on April 25, 2012.
The special agent conducted several interviews with appellant’s coworkers on May 17,
2012 regarding the February 23, 2012 incident. Mr. Murdock, a coworker, stated that appellant’s
supervisor was approximately 75 to 100 hundred feet away from appellant when he told her to
move a general parcel container. Mr. Jordan subsequently moved the container. He never heard
appellant cry out in pain or state that she was hurt until she was called in for an investigative
interview, at which point she stated that Mr. Price had hit her.
Susan Halstead, a coworker, stated that Mr. Price approached appellant and stated that
she could not have equipment on the floor and that she needed to put it back. Appellant refused,
at which point Mr. Price asked Mr. Jordan to move the general parcel container. A tug-of-war
ensued between Mr. Jordan and appellant, but at no time did Mr. Price make physical contact
with her, as there was some distance between them. Ms. Halstead never heard appellant state
that she was hurt during the incident and never saw Mr. Price step toward her.
Myriam Rivera, a coworker, stated that Mr. Price asked appellant to move a general
parcel container and that she refused to follow his order. Mr. Price then asked Mr. Jordan to
move the container. Ms. Rivera did not hear appellant cry in pain or note that she had been hurt,
but later overheard appellant asking Mr. Jordan whether he had seen Mr. Price hit her.
Mr. Jordan replied that he had not. Ms. Rivera stated that she did not observe any violence.
Lora Cooper, a coworker, stated that she saw appellant and the Mr. Price talking, but that
she did not see him strike or push appellant.
Nancy Mooney, a coworker, stated that Mr. Price was speaking with appellant and telling
her that she could not have a general parcel container covering her case due to safety concerns.
Mr. Price asked Mr. Jordan to move the general parcel container and appellant stated to
Mr. Jordan, “If you grab that you will hurt me.” He then walked away without touching her or
pushing her case. Ms. Mooney witnessed appellant yelling about a safety hazard at the time

3

Mr. Jordan walked away, but did not hear her yell that she was hurt. She asserted in a sworn
statement that Mr. Price and appellant did not make physical contact.
Andrew Moir, a manager for customer service, stated that he heard Mr. Price request that
appellant move the general parcel container. Mr. Price then asked Mr. Jordan to move the
container, but appellant held on to it and stated that her stuff was in it. Appellant became loud,
but did not indicate in any way that she was in pain. Mr. Moir stated that he did not see
everything that transpired, but that he did not hear her indicate that she was injured in any
manner. When appellant was called in for an investigative interview, she left for the restroom
for several minutes and when she returned she stated that Mr. Price had hit her and that
Mr. Jordan had witnessed the incident. Mr. Moir stated that Mr. Price did not hit, pull or push
appellant.
Mr. Jordan, asserted in a sworn statement that Mr. Price asked appellant to move a
general parcel container. He grabbed the container and so did she. Mr. Price then asked
appellant to remove the buckets in the container and she refused. He attempted to remove the
buckets himself, but she grabbed them from him. Mr. Jordan asserted that there was no physical
contact between appellant and Mr. Price and that Mr. Price had not pushed, hit or touched her in
any way.
On May 23, 2012 the special agent interviewed Nena Sanders, a supervisor. She
indicated that she was not present when the incident of February 23, 2012 occurred, but received
a call from appellant about two hours after the incident, in which appellant stated that she could
not finish her route. When appellant arrived, she was able to unload her vehicle with no
difficulty and did not ask for assistance in unloading from Ms. Sanders or anyone else.
On May 29, 2012 the special agent interviewed Ms. Cooper-Wilson, a supervisor for
customer service, who was not present when the incident of February 23, 2012 occurred, but she
was called into the office during an investigative interview. Appellant stated that Mr. Price had
hit her and Ms. Cooper-Wilson asked if she had witnesses. She advised that Mr. Jordan was her
witness, but when he was called into the office for questioning, he stated that he had not seen
Mr. Price hit her. Instead, Mr. Jordan asserted that appellant had grabbed something from
Mr. Price. After appellant ended her shift early, Ms. Cooper-Wilson asked appellant if she
wanted to file paperwork, but she walked away despite Ms. Cooper-Wilson’s calls for her to
wait.
On June 4, 2012 the special agent attempted to contact appellant by telephone, but did not
succeed. The agent left a voice mail with contact information and requested that appellant
contact her. As of June 8, 2012, appellant did not return the agent’s call.
Investigative surveillance performed from May 11 through June 13, 2012 revealed that
appellant was observed walking, sitting, standing, shopping, getting in and out of her vehicle and
holding items with her left hand. On May 14, 2012 she was observed lifting two plastic
recycling containers with her left hand without difficulty. On May 24, 2012 appellant was
observed unloading a plastic box with both hands from her vehicle to her house. On May 25,
2012 she was observed going to the bank, Home Depot and Wal-Mart without wearing a sling on
her left shoulder, but she reported to work wearing a sling. On May 28, 2012 appellant was

4

observed unloading shopping bags using her left hand into her vehicle and from her vehicle to
her residence. On May 31, 2012 she was observed carrying books with her left arm from her
vehicle into her residence.
On June 25, 2012 OWCP requested additional factual and medical evidence from
appellant, on the grounds that the factual and medical evidence submitted were not sufficient to
support her claim. It afforded her 30 days to submit additional evidence. No further evidence
was received.
By decision dated August 1, 2012, OWCP denied appellant’s claim, finding that the
evidence was not sufficient to support that the employment incident of February 23, 2012
occurred as alleged.
On August 27, 2012 appellant requested review of the written record by an OWCP
hearing representative.
In a narrative statement dated August 27, 2012, appellant recounted the events of
February 23, 2012 in substantially the same manner as in her April 25, 2012 statement. She
noted that she had asked Ms. Cooper-Wilson and Ms. Moir to take a picture of her injuries, but
that neither had a camera. Appellant also stated that Ms. Cooper-Wilson had told her that there
was no paperwork that needed to be done, because it was available online and that she did not
need paperwork to go to the hospital. She stated that she called Ms. Cooper-Wilson on
February 24, 2012 and asked her if she needed to do anything further because she could not
come in to work and that Ms. Cooper-Wilson replied that she needed to come in.
In a report dated February 29, 2012, Dr. Adolfo Colman, a Board-certified family
physician, noted that appellant stated that her injury was the result of her manager pushing her
against a large metal container, whereupon she tripped and landed over her left shoulder. His
examination revealed anterior and lateral shoulder tenderness and a decreased range of motion,
but no left shoulder bony deformity.
In a report dated March 7, 2012, Dr. Colman, diagnosed appellant with tendinosis of the
left shoulder, tenosynovitis of the bicepts and tearing of the glenoid labrum. He noted that there
was no complete rotator cuff tear, no significant subacromial-subdeltoid bursal collection and no
significant joint effusion.
In a report dated April 6, 2012, Dr. Colman noted that appellant stated that she was still
on physical therapy for a left shoulder rotator cuff injury. His examination revealed a diminished
range of motion in the left shoulder and anterolateral shoulder tenderness.
In a progress note dated May 23, 2012, Dr. Colman diagnosed appellant with ulnar
neuropathy of the right hand unrelated to direct trauma. In a progress note dated June 11, 2012,
he stated that she may have carpal tunnel syndrome of the right hand and wrist. In a progress
note dated July 6, 2012, Dr. Colman diagnosed appellant with bilateral carpal tunnel syndrome.
Appellant also submitted physical therapy notes dated August 27, 2012, which were not
countersigned by a physician.

5

On May 25, 2012 appellant submitted a Form CA-7 claim for compensation for
intermittent leave without pay, leave buyback and other wage loss, including overtime.
In an emergency patient record dated February 25, 2012, Dr. Joseph Zarlengo, a Boardcertified physician of emergency medicine, noted that appellant had limited use of her left arm
and pain with palpation to the left humeral area. He also noted that she stated that she was
pushed into a piece of metal equipment by a supervisor and that she had pain in the left shoulder
area.
In a time analysis form dated May 25, 2012, appellant stated that she was disabled for
work between February 23 and June 1, 2012.
By decision dated December 10, 2012, an OWCP hearing representative affirmed the
decision of August 1, 2012. He found that appellant had not met her burden of proof to establish
that a left shoulder injury occurred at work on February 23, 2012 because she had not provided a
witness statement supporting her allegation, whereas other personnel present at the incident had
stated to investigators that Mr. Price had not touched her.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury3 was sustained in the performance of duty as alleged
and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit sufficient
evidence, generally only in the form of medical evidence, to establish that the employment
incident caused a personal injury. An employee may establish that the employment incident
occurred as alleged but fail to show that his or her condition relates to the employment incident.5

2

Id.

3

OWCP’s regulations define a traumatic injury as a condition of the body caused by a specific event or incident,
or series of events of incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
4

T.H., 59 ECAB 388, 393 (2008); see Steven S. Saleh, 55 ECAB 169, 171-72 (2003); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
5

Id. See Shirley A. Temple, 48 ECAB 404, 407 (1997); John J. Carlone 41 ECAB 354, 356-57 (1989).

6

With respect to the first component of fact of injury, the employee has the burden of
establishing the occurrence of an injury at the time, place and in the manner alleged, by a
preponderance of the reliable, probative and substantial evidence.6 An injury does not have to be
confirmed by eyewitnesses in order to establish the fact that an employee sustained an injury in
the performance of duty, but the employee’s statements must be consistent with the surrounding
facts and circumstances and his or her subsequent course of action.7 An employee has not met
his or her burden of proof of establishing the occurrence of an injury when there are such
inconsistencies in the evidence as to cast serious doubt upon the validity of the claim.8 Such
circumstances as late notification of injury, lack of confirmation of injury, continuing to work
without apparent difficulty following the alleged injury and failure to obtain medical treatment
may, if otherwise unexplained, cast sufficient doubt on an employee’s statements in determining
whether a prima facie case has been established.9 However, an employee’s statement alleging
that an injury occurred at a given time and in a given manner is of great probative value and will
stand unless refuted by strong or persuasive evidence.10
ANALYSIS
On April 25, 2012 appellant filed a traumatic injury claim alleging that she sustained a
left shoulder injury on February 23, 2012 as a result of being pushed against a metal general
parcel container by her supervisor, Mr. Price. OWCP denied her claim finding that she had not
established that the specific incident occurred at the time, place and in the manner described.
The initial question presented is whether appellant established that the February 23, 2012
employment incident occurred as alleged. The Board finds that there are such inconsistencies in
the evidence as to cast serious doubt upon the validity of her claim that she sustained an injury
on February 23, 2012. The record contains evidence that calls into serious question appellant’s
account of the events of that date.
In a narrative statement dated April 25, 2012, appellant described the alleged incident.
She stated that she was holding the front bar of a general parcel container when Mr. Jordan
grabbed the side of the container. Mr. Price then pushed his body against appellant, which
pushed her into a metal container. Appellant then reached down and Mr. Price violently agitated
the flat baskets in the container, causing them to hit her hand and arm. In the same statement,
she also asserted that her left arm was hit against the metal container itself.
A special agent for the employing establishment conducted interviews of appellant’s
coworkers present at the time of the alleged incident. Five coworkers asserted that they were
present and witnessed the alleged incident. Each witness asserted that Mr. Price did not make
6

William Sircovitch, 38 ECAB 756, 761 (1987); John G. Schaberg, 30 ECAB 389, 393 (1979).

7

Charles B. Ward, 38 ECAB 667, 670-71 (1987); Joseph Albert Fournier, Jr., 35 ECAB 1175, 1179 (1984).

8

Tia L. Love, 40 ECAB 586, 590 (1989); Merton J. Sills, 39 ECAB 572, 575 (1988).

9

Samuel J. Chiarella, 38 ECAB 363, 366 (1987); Henry W.B. Stanford, 36 ECAB 160, 165 (1984).

10

D.B., 58 ECAB 464, 466-67 (2007); Robert A. Gregory, 40 ECAB 478, 483 (1989).

7

physical contact with appellant and their accounts of the incident were consistent. Witnesses
Mr. Murdock, Ms. Halstead, Ms. Rivera, Ms. Mooney and Mr. Moir stated that they did not hear
appellant indicate in any way that she had been injured. Although appellant had called upon
Mr. Jordan to recount the events of February 23, 2012, in a meeting on that day, witnesses to that
meeting asserted that he had stated that there was no physical contact between Mr. Price and
appellant. Ms. Sanders did not witness the incident, but stated that she had seen appellant
unloading her vehicle later the same day without difficulty or asking for help. Investigative
surveillance, gathered between May 11 and June 13, 2012, revealed that appellant used her left
arm apparently without difficulty in a variety of tasks, such as lifting containers, shopping bags
and books. It also revealed that she did not wear her arm sling on May 25, 2012 when she went
to the bank, Home Depot and Wal-Mart, but that she reported to work that day wearing a sling.
Appellant’s account of the February 23, 2012 incident is inconsistent both with the accounts of
coworkers interviewed in the course of investigation and inconsistent with her own observed
behavior.
Appellant’s own account of the events of February 23, 2012 is also internally
inconsistent. In her narrative statement dated April 25, 2012, she asserted that Mr. Price caused
the flat baskets inside the general parcel container to hit her hand and arm. Yet in the same
statement, appellant also asserted that her left arm was hit against the metal container itself. In
her narrative statement dated April 25, 2012, she asserted that Mr. Price violently agitated the
flat baskets in the container when she stooped to pick-up mail from the floor. Yet in the sheriff’s
office offense report dated February 23, 2012, appellant stated that Mr. Price had reached over a
general parcel container to retrieve mail from the floor, which caused her to strike the container
with her left shoulder.
Further, doubt is cast upon the factual aspects of appellant’s claim by the fact that she did
not file a traumatic injury claim for the alleged February 23, 2012 work injury until two months
later, on April 25, 2012. Appellant did not adequately explain why she delayed so long in filing
her claim. She asserted that Ms. Cooper-Wilson had told her that filing was unnecessary on
February 23, 2012 because she could do so online and that on February 24, 2012 Ms. CooperWilson had told her to come into work in order to file her claim. In an interview dated May 17,
2012, Ms. Cooper-Wilson asserted that appellant had walked away from her when she asked
whether appellant wanted to file a claim despite her calls for appellant to wait. Appellant’s
explanation for delay is not consistent with Ms. Cooper-Wilson’s May 17, 2012 interview and
not consistent with her claimed injury, insofar as that injury would prevent her from filing a
claim.
On appeal, appellant advances several arguments. She asserts that Mr. Price admitted
that there was physical contact in his May 17, 2012 interview. Mr. Price did state that appellant
pulled a bucket out of his hand when he attempted to retrieve it from her container, but did not
state that he pushed her with his body as alleged by her. Appellant asserts that Ms. CooperWilson stated that Mr. Jordan admitted that there was physical contact in her May 17, 2012
interview. Ms. Cooper-Wilson did state that appellant had grabbed something from Mr. Price,
but did not state that he pushed her as alleged by appellant. Appellant asserts that she did not
receive any interviews or follow ups to an investigation by the employing establishment. The
special agent from the employing establishment attempted to contact her on June 4, 2012 and did
not receive a response.

8

Although an employee’s statement alleging that an injury occurred at a given time and in
a given manner is generally accorded great probative value, there is strong and persuasive
evidence refuting appellant’s account of the events of February 23, 2012.11 The Board finds that
she has not established the occurrence of the February 23, 2012 work incident as alleged and
therefore has not established that she sustained an injury on February 23, 2012 in the
performance of duty.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an injury on February 23, 2012 in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the December 10, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 7, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

11

See Robert A. Gregory, 40 ECAB 478, 483 (1989); Thelma S. Buffington, 34 ECAB 104, 109 (1982).

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Plainfield, IN, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 20-0596
Issued: October 6, 2020

Case Submitted on the Record

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

JURISDICTION
On January 23, 2020 appellant, through counsel, filed a timely appeal from an October 24,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a recurrence of
disability commencing December 21, 2017 causally related to her accepted February 5, 2014
employment injury.
FACTUAL HISTORY
On February 10, 2014 appellant, then a 53-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on February 5, 2014 she injured her knee while in the performance
of duty. She explained that she was in the loading area when she fell over a chunk of ice and
landed on her knee. Appellant stopped work on February 6, 2014. On May 8, 2014 OWCP
accepted her claim for a right knee sprain/strain.
OWCP subsequently received an April 15, 2014 work status report with an illegible
signature indicating that appellant could return to work with the restrictions of performing desk
work only.
In a May 22, 2014 medical report, Dr. Kyle Ritter, a Board-certified orthopedic surgeon,
evaluated appellant for right knee pain related to the February 5, 2014 employment incident. He
made note of her previous 2006 right knee arthroscopy and her preexisting medical conditions of
hypertension, anxiety, fibromyalgia and degenerative arthritis.3 Dr. Ritter diagnosed right knee
arthritis and recommended that she undergo a right knee total arthroplasty to treat her condition.
In an August 13, 2014 letter, the employing establishment noted that appellant had been
receiving treatment and light-duty assignment related to right knee arthritis and not the accepted
right knee sprain/strain. It terminated her limited-duty assignment and instructed her to apply for
light duty.
In a May 27, 2014 diagnostic report, Dr. Joseph Mulholland, a Board-certified diagnostic
radiologist, performed a magnetic resonance imaging (MRI) scan of appellant’s right knee and
diagnosed a degenerative tear of the posterior horn and midbody of the medial meniscus with
displaced meniscal fragments in the intercondylar notch, a chronic tear of the anterior cruciate
ligament, degenerative changes with articular cartilage loss diffusely in the medial compartment,
thinning of the undersurface of the patella and focal cartilage loss over the articular surface of the
lateral femoral condyle and a large Baker’s cyst.4

3

The Board notes that appellant has a prior claim under OWCP File No. xxxxxx298 which was accepted for the
conditions of open wound of the hip and thigh without complications. Appellant also has a prior claim under OWCP
File No. xxxxxx656 which was accepted for the conditions of neck and back (lumbar) sprains and contusion of the
shoulder and upper arm.
4

On March 29, 2016 appellant filed a schedule award claim (Form CA-7). In a May 3, 2016 development letter,
OWCP requested that she submit an impairment evaluation from her attending physician addressing whether she had
reached maximum medical improvement (MMI) and evaluating the extent of permanent impairment, if any, in
accordance with the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides) (2009).

2

In a March 2, 2016 medical note, Dr. Anthony Mimms, Board-certified in physical
medicine, provided that he had treated appellant for her fibromyalgia, sacroiliitis, back spasms,
facet syndrome, and right knee pain. He opined that she was no longer able to maintain gainful
employment as a result of her conditions and recommended that she file for disability.
In a March 17, 2016 medical report, Dr. Ritter noted that appellant was unable to be
approved for her right knee arthroplasty and that she utilized a cane in order to ambulate. He
diagnosed right knee arthritis and opined that she would be unable to return to work without
restrictions without surgical treatment.
In a November 11, 2016 prescription, Dr. Nilda Durany, Board-certified in family
medicine, indicated that appellant would undergo therapy in order to treat her right knee sprain.
In a December 14, 2017 medical report, Dr. Ritter diagnosed primary osteoarthritis of the
right knee and indicated that appellant was unable to return to her previous work duties due to the
increased pain and limitations directly related to her work injury. He opined that appellant’s
employment injury caused her arthritis symptoms to worsen and that it was unlikely she would
improve without surgical treatment.
On January 5, 2018 appellant filed a Form CA-7 for leave without pay (LWOP) for
disability from work for the period December 21, 2017 to January 5, 2018.5
In a January 22, 2018 development letter, OWCP advised appellant of the type of evidence
needed to establish her recurrence claim. It requested that she submit a detailed medical report
from her physician that clearly established how her claimed disability from work was causally
related to her accepted employment injury of a right knee sprain/strain in contrast to her nonworkrelated diagnosis of right knee osteoarthritis. OWCP provided appellant 30 days to submit the
necessary evidence.
In a February 16, 2018 letter, Dr. Ritter explained that appellant’s symptoms of knee
soreness, locking, catching, and worsening range of motion were all related to her February 5,
20146 employment injury. He noted that the injury appellant sustained was a sprain of the
ligaments surrounding the knee as well as a significant flare up and aggravation of her arthritis.
Dr. Ritter opined that, due to the severity of her arthritis and the significance of the injury she
sustained, she was unable to return to her baseline. He noted that appellant’s ability to ambulate
at work had significantly decreased since her injury and opined that a total knee arthroscopy was
necessary as nonsurgical treatment had failed to improve her condition.
By decision dated February 22, 2018, OWCP denied appellant’s claims for compensation
finding that she failed to submit sufficient medical evidence to establish causal relationship
between the claimed period of disability and her accepted employment conditions.

5

Appellant also submitted separate Form CA-7 claims for compensation dated January 20 and February 13, 2018
for LWOP for disability from work for the period beginning January 8, 2018 and continuing.
6

Dr. Ritter’s letter provides February 6, 2014 as the date of injury, however this appears to be a typographical error.

3

On March 19, 2018 appellant requested a review of the written record before a
representative of OWCP’s Branch of Hearings and Review.
Appellant submitted a December 14, 2017 diagnostic report in which Dr. Michael Flood,
a Board-certified podiatrist, performed an x-ray of appellant’s knees. Dr. Flood diagnosed
advanced medial and patellofemoral arthritis of both knees with mild lateral joint space arthritis of
both knees.
By decision dated August 17, 2018, OWCP’s hearing representative affirmed OWCP’s
February 22, 2018 decision, finding that the medical evidence of record was insufficient to
establish a material worsening of the accepted condition or to provide medical rationale explaining
why appellant was no longer able to perform her job duties due to an injury occurring four years
earlier.
On April 19, 2019 appellant, through counsel, requested reconsideration of OWCP’s
August 17, 2018 decision.
By decision dated April 22, 2019, OWCP denied appellant’s request for reconsideration
finding that she neither raised substantive legal questions nor included any new and relevant
evidence.
In an April 17, 2019 medical note, Dr. Ritter noted that appellant had reached MMI on
December 14, 2017.
On July 29, 2019 appellant, through counsel, again requested reconsideration of OWCP’s
August 17, 2018 decision.
In a July 24, 2019 letter, Dr. Ritter explained that, on evaluation of appellant’s right knee
injury due to the February 5, 2014 employment incident, her findings were consistent with
significant long-term severe arthritic changes aggravated directly by her employment injury. He
indicated that her symptoms prior to her injury were mild and manageable and opined that
appellant’s February 5, 2014 injury led to a direct aggravation of her arthritic condition. Dr. Ritter
reasoned that her underlying arthritis and cartilage loss made her joint more susceptible to direct
trauma and impact like the injury appellant sustained. He further reasoned that the resulting
damage could lead to destabilization of the remaining articular structural cartilage and
deterioration of the joint with persistent symptoms, as appellant has demonstrated. Dr. Ritter
concluded by opining that it was more likely than not and reasonably medically certain that
appellant’s injury aggravated her preexisting condition.
By decision dated October 24, 2019, OWCP denied modification of its August 17, 2018
decision.
LEGAL PRECEDENT
OWCP’s implementing regulations define a recurrence of disability as an inability to work
after an employee has returned to work, caused by a spontaneous change in a medical condition,

4

which resulted from a previous injury or illness without an intervening injury or new exposure to
the work environment.7
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
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.8 Where no such rationale is present,
the medical evidence is of diminished probative value.9
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.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a recurrence of
disability commencing December 21, 2017 causally related to her accepted February 5, 2014
employment injury.
In his July 24, 2019 letter, Dr. Ritter noted appellant’s history of significant long-term
severe arthritic changes and cartilage loss and opined that her February 5, 2014 employment injury
directly aggravated her existing conditions. He continued by explaining that the resulting damage
could lead to the destabilization of the remaining articular structural cartilage and deterioration of
the joint with persistent symptoms, as she has demonstrated. Dr. Ritter concluded by opining that
it was more likely than not and reasonably medically certain that appellant’s injury aggravated her
preexisting condition. He did not, however, address the period of claimed recurrence or indicate
that appellant was totally disabled for any specific period. The Board has held that medical
evidence that does not provide an opinion as to whether a period of disability is due to an accepted
employment-related condition is insufficient to meet a claimant’s burden of proof.11 The Board
will not require OWCP to pay compensation for disability in the absence of medical evidence
directly addressing the specific dates of disability for which compensation is claimed. To do so,
7

20 C.F.R. § 10.5(x).

8

See J.S., Docket No. 19-1035 (issued January 24, 2020).

9

Id.

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2 (June 2013); D.T., Docket
No. 19-1064 (issued February 20, 2020).
11

M.A., Docket No. 19-1119 (issued November 25, 2019); S.I., Docket No. 18-1582 (issued June 20, 2019).

5

would essentially allow an employee to self-certify their disability and entitlement to
compensation.12 Thus, Dr. Ritter’s July 24, 2019 letter is insufficient to meet appellant’s burden
of proof.
Similarly, in his February 16, 2018 letter, Dr. Ritter explained that appellant’s February 5,
2014 knee sprain and associated symptoms caused a significant flare up and aggravation of her
arthritis. He opined that, due to the severity of her arthritis and the injury she sustained, appellant
was unable to return to her baseline. Dr. Ritter recommended that she undergo a total knee
arthroscopy as her ability to ambulate at work had significantly decreased and nonsurgical
treatment had failed to improve her condition. The Board finds that he failed to provide a
rationalized medical opinion explaining why appellant’s employment injury prevented her from
working for the claimed period. Rather, Dr. Ritter’s mere conclusory opinion, without the
necessary rationale explaining how and why the employment injury caused disability from work,
is insufficient to establish appellant’s claim.13
In a December 14, 2017 medical report, Dr. Ritter diagnosed primary osteoarthritis of the
right knee and provided that appellant was unable to return to her previous work duties due to the
increased pain and limitations directly related to her work injury. He opined that her work injury
caused her arthritis symptoms to worsen and that it was unlikely she would improve without
surgical treatment. As stated above, a mere conclusory opinion, without the necessary rationale
explaining how and why the employment injury caused disability from work, is insufficient to
establish appellant’s claim.14 Further, as Dr. Ritter attributed appellant’s disability to a medical
diagnosis not accepted by OWCP, his opinion on recurrent disability is insufficient to establish the
claim.15
The remaining medical evidence of record predates the claimed period of disability. As it
does not provide an opinion concerning appellant’s recurrence of disability commencing
December 21, 2017, it is of no probative value and insufficient to establish the recurrence claim.16
As appellant has not submitted medical evidence establishing a recurrence of disability
commencing December 21, 2017 causally related to her accepted employment injury, the Board
finds that she has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

12

D.P., Docket No. 18-1439 (issued April 20, 2020); William A. Archer, 55 ECAB 674 (2004).

13

M.N., Docket No. 18-0741 (issued April 2, 2020).

14

Id.

15

See V.H., Docket No. 18-0456 (issued August 9, 2019); J.L., Docket No. 15-1951 (issued May 16, 2016).

16

M.L., Docket No. 18-1058 (issued November 21, 2019); D.J., Docket No. 18-0200 (issued August 12, 2019).

6

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a recurrence of
disability commencing December 21, 2017 causally related to her accepted February 5, 2014
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the October 24, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 6, 2020
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
BUTLER VETERANS MEDICAL CENTER,
Butler, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Eric D. Levin, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-485
Issued: October 7, 2009

Case Submitted on the Record

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

JURISDICTION
On December 9, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated September 5, 2008 affirming a January 10, 2008
decision terminating her compensation benefits and denying wage-loss compensation. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she was
totally disabled from July 17 through August 3, 2003; (2) whether the Office properly terminated
her compensation benefits effective September 26, 2003; and (3) whether appellant met her
burden of proof to establish that she had any disability after September 26, 2003 causally related
to her accepted injury.
FACTUAL HISTORY
On April 8, 2003 appellant, then a 51-year-old practical nurse, injured her neck and right
forearm when a patient she was repositioning placed catheter tubing around her neck and pulled
at the tubing. She stopped work on April 9, 2003. The Office accepted the claim for a cervical
strain and right shoulder strain.

In a letter dated April 25, 2003, the employing establishment terminated appellant’s
employment effective May 9, 2003 on the grounds that her conduct as a licensed practical nurse
was not satisfactory, particularly in leave usage.1 The Office paid temporary total disability
compensation from May 10 through July 16, 2003.
Appellant filed claims for compensation (Form CA-7) from July 17 through
August 3, 2003. In a July 16, 2003 report, Dr. Thomas Muzzonigro, a Board-certified orthopedic
surgeon, noted that she sustained a cervical strain at work on April 8, 2003 and had underlying
degenerative cervical spondylosis. Appellant reported paresthesias in the bilateral upper
extremities in a vague distribution. She was doing better and had increasing range of motion of
her neck and shoulders with decreasing pain. On examination, appellant had excellent range of
motion of the cervical spine, negative Spurling test bilaterally and equal and symmetric reflexes.
Dr. Muzzonigro diagnosed resolved cervical strain and underlying degenerative cervical
spondylosis with intermittent paresthesias. He advised that appellant could return to work at full
duty. Appellant could follow up with Dr. Muzzonigro as needed.
In an August 20, 2003 decision, the Office denied appellant’s claim for compensation
from July 17 to August 3, 2003. It found that the medical evidence did not establish her
disability for the claimed period.
On August 20, 2003 the Office also issued a proposed notice of termination of
compensation benefits. It found that the medical evidence established that appellant no longer
had any continuing residuals or total disability causally related to the April 8, 2003 injury.
Appellant was accorded 30 days to submit additional evidence or argument. No additional
information was received.
By decision dated September 26, 2003, the Office finalized the termination of appellant’s
compensation benefits effective that date.
Appellant disagreed with the Office’s August 20 and September 26, 2003 decisions and
requested an oral hearing, which was held on July 1, 2004. She submitted a September 3, 2003
treatment note from Butler Memorial Hospital for chronic neck, right shoulder and right arm
pain, a November 3, 2003 surgical report for a right carpal tunnel release; a September 15, 2003
electromyogram (EMG) report noting moderate right carpal tunnel syndrome and possible right
chronic C8 cervical nerve root irritation; an April 23, 2003 cervical spine x-ray report; and
physical therapy and chiropractic treatment notes.
In a July 15, 2004 report, Dr. Edward D. Reidy, a Board-certified physiatrist, reviewed
the history of appellant’s work injury and prior evaluations on February 13 and March 26, 2004.
Following the initial evaluation, appellant underwent diagnostic testing which showed a very
mild slowing of the median nerve of the right wrist which lead to surgery that resolved her
numbness. The diagnosis was of a C8 nerve root impingement, considered by Dr. Reidy to be
soft. Dr. Reidy opined that appellant’s current paracervical symptoms were directly related to
the work injury. He explained that appellant’s underlying degenerative cervical spondylosis with

1

Appellant was terminated during her probationary period.

2

intermittent paresthesia was asymptomatic prior to the work injury and became symptomatic
after the injury.
On January 12, 2005 an Office hearing representative set aside the August 20 and
September 26, 2003 decisions and directed the Office to refer appellant for a second opinion to
determine whether her preexisting condition was aggravated by the work injury and, if so, the
extent and duration of any aggravation.
The Office referred appellant to Dr. Alexander L. Bell, a Board-certified orthopedic
surgeon, for a second opinion evaluation. In a March 2, 2005 report, Dr. Bell stated that he did
not believe the injury as described was the primary cause of aggravation of appellant’s
significant and diffused preexisting conditions. He stated that appellant had significant cervical
spine pathology with no evidence of specific treatable lesions either on physical examination,
magnetic resonance imaging (MRI) scan or nerve conduction studies. Dr. Bell opined that, while
appellant sustained a cervical strain as a result of the work injury, this would not be a significant
contributing factor to her underlying conditions as it was doubtful that the cervical strain could
result in her inability to work for a period of three to four months after the injury, i.e., from
July 17 through August 3, 2003. He prescribed physical restrictions and recommended a
functional capacity evaluation (FCE) to assess work restrictions. Appellant underwent an FCE
on April 18, 2005. In a July 13, 2005 report, Dr. Bell advised that her ongoing work restrictions
were for the preexisting cervical disease. He opined that the work injury on April 8, 2003 did
not have a significant impact on appellant’s preexisting conditions and she did not have any
continuing aggravation of her preexisting cervical condition as the accepted cervical and right
shoulder strains had resolved.
On July 27, 2005 the Office denied disability compensation benefits for the period July 1
through August 3, 2003. It found that the weight of the medical evidence supported that the
accepted work injuries had resolved.
Appellant requested an oral hearing that was held on May 25, 2006. On August 9, 2006
an Office hearing representative vacated the July 27, 2005 decision and directed the Office to
obtain an impartial medical examination to resolve the conflict in medical opinion between
Dr. Reidy and Dr. Bell as to whether she sustained an aggravation of her underlying cervical
spondylosis causing disability and residuals of her work-related injury after July 16, 2003.
The Office referred appellant to Dr. Jon A. Levy, a Board-certified orthopedic surgeon,
for an impartial medical examination. In a November 1, 2006 report, Dr. Levy reviewed the
statement of accepted facts and the medical and factual evidence. He noted appellant’s
complaints of paracervical pain and paresthesias in the right hand and reported examination
findings relative to range of motion of the neck and shoulders and strength in the upper
extremities. Dr. Levy reviewed the diagnostic evidence, including MRI scans of the cervical
spine dated April 28, 2003 and October 15, 2004 and x-rays of the cervical spine dated
April 23, 2003. He addressed Dr. Reidy’s July 15, 2004 report and commented that he did not
follow the logic for concluding that because appellant had benefited from steroid injections her
cervical condition was considered work related. Dr. Levy stated that, although appellant had
clinical relief with cervical injections, this benefit could occur whether her cervical symptoms
were degenerative in nature or work related. He diagnosed cervical degenerative disc disease,

3

resolved cervical strain and right-sided carpal tunnel syndrome. Dr. Levy opined that appellant
sustained a cervical strain in the April 8, 2003 work incident but had not aggravated her
preexisting degenerative disc disease based on his findings and on Dr. Muzzonigro’s July 16,
2003 evaluation. Appellant had subjective complaints of neck pain and paresthesias in her right
hand but denied arm pain and had no radicular symptoms down her right arm. She exhibited a
normal neurologic examination and from an objective standpoint no clinical abnormalities were
manifested.
Dr. Levy noted a similar lack of objective clinical abnormalities in
Dr. Muzzonigro’s July 15, 2003 examination and report. He concluded that appellant did not
sustain an aggravation of her preexisting cervical degenerative disc disease but rather a cervical
strain that had resolved as of July 16, 2003, the date of Dr. Muzzonigro’s evaluation.
In a June 26, 2006 report, Dr. T.T. Channapati, a Board-certified family practitioner,
noted that appellant had been experiencing numbness and loss of control in both hands.
By decision dated November 27, 2006, the Office denied wage-loss compensation for the
period July 17 through August 3, 2003. It found that it had properly terminated appellant’s
compensation benefits on the basis that she had no ongoing residuals of the April 8, 2003 work
injury. Special weight was accorded to Dr. Levy’s impartial medical examination.
Appellant disagreed with the Office’s decision and requested an oral hearing. By
decision dated January 7, 2008, an Office hearing representative vacated the decision and
remanded the case for further development on whether Dr. Levy was properly selected under the
Physicians Directory System (PDS). On January 10, 2008 the Office subsequently confirmed
that its records established that Dr. Levy was properly selected.
Appellant requested an oral hearing, which was held telephonically on June 17, 2008.
After the hearing, the Office received an April 18, 2006 report from Dr. Nishita Knechtel, a
psychiatrist, who diagnosed recurrent major depressive disorder. Office treatment records from
Dr. Channapati and Dr. Sheila Balestrino, a Board-certified family practitioner, from July 11,
2005 and continuing and a September 27, 2007 decision from the Social Security Administration
(SSA) approving benefits.
In a June 11, 2007 report, Dr. Ronald L. Zimmerman, a Board-certified physiatrist, noted
the history of injury and set forth findings on examination. He listed findings of nerve
conduction studies and electromyogram. Dr. Zimmerman found that there were electrical
findings for a moderate left carpal tunnel syndrome but no electrical findings for a recurrent right
carpal tunnel syndrome or for an acute localized cervical radiculopathy. He noted diagnostic
findings for a chronic bilateral C6 and/or C7 cervical radiculopathy, which he opined were
residuals of old nerve root irritation versus chronic irritation.
By decision dated September 5, 2008, an Office hearing representative affirmed the
January 10, 2008 decision.

4

LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of proof to establish the essential elements of her claim by the weight of the evidence.3
For each period of disability claimed, the employee has the burden of establishing that she was
disabled for work as a result of the accepted employment injury.4 Whether a particular injury
causes an employee to become disabled for work, and the duration of that disability, are medical
issues that must be proved by a preponderance of probative and reliable medical opinion
evidence.5
Under the Act, the term disability means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.6 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.7 An employee who has a physical impairment causally related to her federal
employment, but who nonetheless has the capacity to earn the wages she was receiving at the
time of injury, has no disability and is not entitled to compensation for loss of wage-earning
capacity.8 When, however, the medical evidence establishes that the residuals or sequelae of an
employment injury are such that, from a medical standpoint, they prevent the employee from
continuing in her employment, she is entitled to compensation for any loss of wages.9
The Board will not require the Office to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed.10 To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation.11

2

5 U.S.C. §§ 8101-8193.

3

See J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Amelia S. Jefferson, 57 ECAB 183
(2005); see also Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968).
4

See Amelia S. Jefferson, supra note 3; see also David H. Goss, 32 ECAB 24 (1980).

5

See G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Edward H. Horton, 41 ECAB
301 (1989).
6

D.M., 59 ECAB ___ (Docket No. 07-1230, issued November 13, 2007); S.M., 58 ECAB ___ (Docket No. 06536, issued November 24, 2006); Bobbie F. Cowart, 55 ECAB 746 (2004); Conard Hightower, 54 ECAB 796
(2003); 20 C.F.R. § 10.5(f).
7
8
9

D.M., supra note 6; Roberta L. Kaaumoana, 54 ECAB 150 (2002).
Roberta L. Kaaumoana, supra note 7; Merle J. Marceau, 53 ECAB 197 (2001).
D.M., supra note 6.

10

Sandra D. Pruitt, 57 ECAB 126 (2005).

11

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

5

ANALYSIS -- ISSUE 1
Appellant filed a claim for wage-loss compensation alleging that she was disabled for
work during the period July 17 through August 3, 2003. She submitted no medical evidence
through demonstrating total or partial disability for this period of time due to her accepted
conditions of cervical strain and right shoulder strain.
The evidence relevant to appellant’s claim for disability included reports from
Dr. Muzzonigro. In his July 16, 2003 report, Dr. Muzzonigro opined that appellant’s cervical
spine had resolved and that she could return to work full duty. Appellant submitted no medical
evidence supporting her claim that she was unable to work from July 17 through August 3, 2003
due to residuals of her accepted conditions. Further, the medical examination clearly has
established no residuals of any accepted condition. Appellant has failed to establish that she was
disabled, and thus, is not entitled to wage-loss compensation for the period claimed. She has not
established her claim for wage-loss compensation from July 17 through August 3, 2003.
LEGAL PRECEDENT -- ISSUE 2
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.12 After it has determined that an
employee has disability causally related to her federal employment, the Office may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.13 The Office’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.14 The right to
medical benefits for an accepted condition is not limited to the period of entitlement to
compensation for disability.15 To terminate authorization for medical treatment, the Office must
establish that appellant no longer has residuals of an employment-related condition, which
require further medical treatment.16
ANALYSIS -- ISSUE 2
Appellant’s claim for an injury on April 8, 2003 was accepted for a cervical strain and
right shoulder strain. The Office accepted the claim and paid benefits. Following receipt of a
July 16, 2003 report from Dr. Muzzonigro, appellant’s treating physician, it terminated
compensation benefits.
In a July 16, 2003 report, Dr. Muzzonigro noted that appellant’s cervical strain had
resolved and he indicated that her degenerative cervical spondylosis was an underlying
12

Paul L. Stewart, 54 ECAB 824 (2003).

13

Elsie L. Price, 54 ECAB 734 (2003).

14

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

15

Jaja K. Asaramo, 55 ECAB 200 (2004); Furman G. Peake, 41 ECAB 361 (1990).

16

T.P., 58 ECAB __ (Docket No. 07-60, issued May 10, 2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

6

condition. He noted examination findings that included excellent range of motion of the cervical
spine. Dr. Muzzonigro opined that appellant could return to work full duty.
The Board notes that, at the time of Dr. Muzzonigro’s report, there was no current
medical evidence supporting that appellant had a continuing work-related condition.
Dr. Muzzonigro was appellant’s treating physician and found that her cervical strain had
resolved and that she could return to full-duty work. He indicated that appellant had some
symptoms due to her underlying degenerative cervical condition, but he found no basis on which
to attribute any continuing condition or disability to the accepted work injury. Consequently, the
Board finds that, at the time the Office terminated benefits effective September 26, 2003, the
weight of the medical evidence rested with Dr. Muzzonigro and established that appellant’s
work-related injury had resolved without residual.
LEGAL PRECEDENT -- ISSUE 3
After termination or modification of compensation benefits, clearly warranted on the
basis of the evidence, the burden for reinstating compensation shifts to appellant.17 In order to
prevail, appellant must establish by the weight of the reliable, probative and substantial evidence
that he had an employment-related disability, which continued after termination of compensation
benefits.
The medical evidence required to establish a causal relationship is rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence, which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between
appellant’s diagnosed condition and the implicated employment factors.18 The opinion of the
physician must be based on a complete factual and medical background of appellant, 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 appellant.19
Section 8123(a) of the Act provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee of the Secretary
shall appoint a third physician who shall make an examination.20 It is well established that, when
a case is referred to an impartial medical specialist for the purpose of resolving a conflict, the
opinion of such specialist, if sufficiently well rationalized and based on a proper factual and
medical background, must be given special weight.21
17

See Joseph A. Brown, Jr., 55 ECAB 542 (2004); Virginia Davis-Banks, 44 ECAB 389 (1993); Joseph M.
Campbell, 34 ECAB 1389 (1983).
18

Kathryn E. Demarsh, 56 ECAB 677 (2005).

19

Bobbie F. Cowart supra note 6; Victor J. Woodhams, 41 ECAB 345 (1989).

20

5 U.S.C. § 8123(a); F.R., 58 ECAB __ (Docket No. 05-15, issued July 10, 2007); Regina T. Pellecchia, 53
ECAB 155 (2001).
21

Darlene R. Kennedy, 57 ECAB 414 (2006).

7

ANALYSIS -- ISSUE 3
The Board finds that appellant has not established that she has any continuing residuals or
disability after September 26, 2003 causally related to her April 8, 2003 work injury. After the
Office properly terminated compensation benefits, appellant submitted medical evidence from
Dr. Reidy supporting that she continued to have a work-related condition. As noted, a hearing
representative found this evidence sufficient to require further medical development.
Dr. Bell, an Office referral physician, opined that in his March 2, 2005 report that
appellant’s cervical strain had resolved and it would not result in her inability to work on and
after July 17, 2003. He further opined that appellant did not sustain an aggravation of her
preexisting cervical condition as a result of the work injury. As there was a dispute between
appellant’s treating physician and the second opinion physician as to whether appellant had any
remaining condition or disability causally related to the April 8, 2003 employment injury, the
Office properly referred her case to Dr. Levy, for an impartial medical examination.22
The Board finds that Dr. Levy, the impartial medical specialist and Board-certified
orthopedic surgeon, based his opinion on a proper factual and medical background. Dr. Levy
was provided with a copy of the entire case file, a list of questions and a statement of accepted
facts. He set forth the results of his physical examination and opined that the cervical strain from
the April 8, 2003 employment incident had resolved as of July 16, 2003 and appellant did not
sustain an aggravation of her preexisting cervical degenerative disc disease. Dr. Levy indicated
that appellant had a normal neurologic examination and no objective clinical abnormalities were
manifested on her November 1, 2006 examination. He noted a similar lack of objective clinical
abnormalities from Dr. Muzzonigro’s July 16, 2003 examination and report. Based on
Dr. Muzzonigro’s July 16, 2003 evaluation findings and his own evaluation on November 1,
2006, Dr. Levy concluded that appellant did not sustain an aggravation of her preexisting
degenerative disc disease and the cervical strain had resolved as of July 16, 2003.
Dr. Levy offered a medical opinion that is sound, rational and logical. Because the
opinion of the impartial medical specialist is based on a proper history and is sufficiently
rationalized, the Board finds that it must be accorded special weight in resolving the conflict and
establishing that appellant had no work-related condition or disability after September 26, 2003.
Subsequent to Dr. Levy’s opinion, appellant submitted medical reports and treatment
notes from Drs. Balestrino, Channapati and Knechtel. The physicians, however, did not address
the relevant issue of whether any diagnosed medical conditions were causally related to the
April 8, 2003 work injury. Thus, their reports are insufficient to overcome the special weight
accorded to the impartial medical examiner or to create a new conflict.23
In a June 11, 2007 report, Dr. Zimmerman noted electrical findings for a chronic bilateral
C6 and/or C7 cervical radiculopathy. He opined that this was due to residuals of an old nerve
root irritation versus chronic irritation. However, Dr. Zimmerman did not directly address the
22

Id.

23

Barbara J. Warren, 51 ECAB 413 (2000).

8

pertinent issue of whether appellant’s current radiculopathy was due to the April 8, 2003 work
injury. Appellant contends on appeal, that Dr. Levy’s opinion cannot be considered complete as
he did not have the June 2007 EMG scan results reported by Dr. Zimmerman. While Dr. Levy
obviously did not have test results obtained subsequent to his examination, he gave no indication
in his report that there was a need for additional testing and he noted reviewing relevant testing
that was of record at the time of his examination. Thus, the evidence does not support that
Dr. Levy’s report was incomplete.
While appellant submitted a determination by the SSA to bolster her claim of disability,
the Board has long held that a determination made by another administrative agency regarding
disability is not determinative of the extent of physical disability or impairment for compensation
proposes under the Act. The relevant statutes have different standards of medical proof and the
question of disability found less than one statute does not prove disability under the other.24
Appellant generally contends on appeal, that Dr. Reidy’s opinion of July 15, 2004
unequivocally states, and proves, that she sustained an ongoing work-related injury and there
was never any need for further examination directed by the Office. This argument is without
merit. Dr. Reidy’s July 15, 2004 report was one side of a medical conflict that was resolved by
Dr. Levy. As noted, section 8123(a) provides a mechanism for resolving a medical conflict25 and
the Office properly followed the statute in this regard. Regarding counsel’s assertion that Office
directed medical examinations were unnecessary, it has the discretion to have a claimant submit
to an examination by a physician designated or approved by the Office as frequently and at the
times and places as may be reasonably required.26 There is no evidence establishing that the
Office acted unreasonably in developing the medical evidence in this claim.
CONCLUSION
The Board finds that appellant failed to establish that entitlement to wage-loss benefits
for the period of disability from July 17 through August 3, 2003. The Board further finds that
the Office met its burden of proof to terminate appellant’s compensation benefits effective
September 26, 2003 and she has not established that she had any disability or residuals after
September 26, 2003 causally related to her April 8, 2003 employment injury.

24

James E. Norris, 52 ECAB 93 (2000).

25

See supra notes 20 and 21.

26

William B. Webb, 56 ECAB 156 (2004).

9

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated September 5, 2008 is affirmed.
Issued: October 7, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Charlotte, NC, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 21-0352
Issued: February 25, 2021

Case Submitted on the Record

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

On January 4, 2021 appellant filed an appeal from a November 26, 2019 merit decision of
the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 21-0352.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act.1
For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s review
authority is limited to appeals which are filed within 180 days from the date of issuance of OWCP’s
decision.2
The 180th day following the November 26, 2019 decision was May 24, 2020. As appellant
did not file an appeal with the Board until January 4, 2021, more than 180 days after the
November 26, 2019 OWCP decision, the Board finds that the appeal docketed as No. 21-0352 is
untimely filed. The Board is without jurisdiction to review the appeal. Appellant has not offered

1

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

2

Id. at § 501.3(e).

a reason to explain the failure to timely file an appeal with supporting documentation sufficient to
establish compelling circumstances.
The Board’s decisions and orders are “final upon the expiration of 30 days from the date
of their issuance.”3
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-0352 is dismissed.
Issued: February 25, 2021
Washington, DC

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

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

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

3

Id. at § 501.6(d).

2