United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.H., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,
Dallas, TX, Employer
__________________________________________

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

Docket Nos. 06-1309 &
06-1153
Issued: June 14, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 31, 2006 appellant filed a timely appeal from a May 19, 2006 decision of the
Office of Workers’ Compensation Programs terminating her compensation. Under 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office met its burden of proof to terminate compensation
benefits as of May 19, 2006.

FACTUAL HISTORY
This claim has previously been on appeal before the Board. Appellant filed a claim for
bilateral carpal tunnel syndrome in September 2000, which the Office accepted.1 She
subsequently filed a claim for an employment-related emotional condition on March 14, 2002.
In an April 13, 2005 decision, the Board reversed an Office decision, finding that the medical
evidence established that her emotional condition was causally related to a compensable work
factor.2 The Office combined the two claims, File Nos. 110182040 and 112007176.
In a March 23, 2005 report, Dr. Olayinka Ogunro, a Board-certified orthopedic surgeon
and appellant’s treating physician, noted appellant’s complaints of continued tingling pain and
numbness in both hands. He stated that appellant was not capable of performing the duties and
physical requirements of her former job as a claims examiner.
In order to determine whether appellant still had residuals from her accepted carpal
tunnel condition, the Office referred her to Dr. Charles E. Graham, a Board-certified orthopedic
surgeon, for a second opinion examination. In a report dated May 26, 2005, Dr. Graham opined
that appellant was not capable of resuming her duties as a claims examiner. He stated:
“[Appellant] cannot return to those duties. The duties of claims examiner require
a lot of keyboarding and before she is able to do any of her duties she would need
to be retrained on something like the Dragon voice recognition equipment in order
to avoid the keyboarding problem”
Dr. Graham advised that appellant had permanent restrictions due to her carpal tunnel
condition which had not been addressed surgically and would recur rapidly if she used a
keyboard. He opined that if appellant did return to work she required retraining in a job which
did not require repetitive use of the upper extremities.
The Office determined that a conflict in the medical evidence existed between
Dr. Ogunro and Dr. Graham. Appellant was referred to Dr. David Willhoite, Board-certified in
orthopedic surgery. In a report dated September 26, 2005, Dr. Willhoite stated that he needed
appellant to undergo nerve conduction studies of both upper extremities and a functional
capacity examination in order to render an informed opinion on her condition.

1

In an August 2, 2002 decision, the Board reversed decisions of the Office which suspended her compensation
benefits for failure to participate in vocational rehabilitation. Docket No. 02-127 (issued August 2, 2002). In an
August 13, 2004 decision, the Board found that the Office did not meet its burden of proof to terminate
compensation benefits and reinstated her compensation. Docket No. 03-1592 (issued August 13, 2004).
2

In a December 4, 2003 decision, Docket No. 03-1447, the Board reversed the denial of appellant’s emotional
condition claim and found that appellant established a compensable work factor under Cutler. Following further
development of the medical evidence, the Office denied the claim, finding that the medical evidence did not
establish that her emotional condition was related to factors of her federal employment. In its April 13, 2005
decision, the Board reversed an Office decision and found that the medical evidence established that appellant
sustained depression which was contributed to by the work factor. Docket No. 04-1197 (issued April 13, 2005). See
also Docket No. 05-1722 (issued July 11, 2006).

2

The Office referred appellant to Dr. Hadi R. Tajani, a Board-certified psychatrist. In an
October 27, 2005 report, Dr. Tajani stated that appellant had a depressive disorder secondary to
her physical problems; i.e., her bilateral carpal tunnel syndrome. He related that appellant told
him that she was not working due to her physical problems. Dr. Tajani felt that she was
motivated to work if her doctors released her back to work. He concluded that her physical
condition seemed to be the problem keeping her from gainful employment and opined that
appellant was in fact able to return to work.
In a January 30, 2006 report, Dr. Willhoite stated:
“[Appellant] underwent electromyogram [EMG] and nerve conduction studies of
both upper extremities on November 18, 2005. The EMG and nerve conduction
studies were completely normal. [Appellant] underwent a functional capacity
evaluation on January 17, 2006. This evaluation indicated that she qualified for
the light category of work which would be well within her job description.
Therefore, in my opinion [appellant] can return to full duties at the position she
was in on her date of injury.”
On April 18, 2006 the Office issued a notice of proposed termination of compensation to
appellant. The Office found that the weight of the medical evidence, as represented by
Dr. Willhoite’s opinion, established that appellant was no longer disabled from a physical
standpoint due to the accepted carpal tunnel condition. The Office found that appellant was no
longer disabled due to her emotional condition based on Dr. Tajani’s referral opinion. The
Office allowed appellant 30 days to submit additional evidence or legal argument in opposition
to the proposed termination.
In a work capacity evaluation dated May 4, 2006, Dr. Ogunro reiterated that appellant
was unable to perform her usual job as claims examiner. He outlined permanent restrictions of
no sitting, walking or standing for more than 30 to 45 minutes at a time; no repetitive movements
of the wrists and elbows for more than 30 minutes at a time; no pushing, pulling or lifting more
than 5 pounds, for no more than 15 minutes at a time. Dr. Ogunro also indicated that appellant
must take a 30-minute break every hour.
By decision dated May 19, 2006, the Office terminated appellant’s entitlement to
compensation based on the opinions of Drs. Willhoite and Tajani.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of proving that the disability has
ceased or lessened in order to justify termination or modification of compensation benefits.3
After it has determined that an employee has disability causally related to his or 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.4
3

Mohamed Yunis, 42 ECAB 325, 334 (1991).

4

Id.

3

Section 8123(a) of the Federal Employees’ Compensation Act provides that, if there is
disagreement between the physician making the examination for the United States and the
physician of the employee, the Secretary shall appoint a third physician who shall make an
examination.5
ANALYSIS
The Board finds that the Office did not meet its burden to terminate appellant’s
compensation. The Office erred in finding that a conflict existed in the medical evidence
between Dr. Ogunro, appellant’s treating physician, and Dr. Graham, the Office’ second opinion
physician, whose referral report did not indicate that the residuals of appellant’s accepted
bilateral carpal tunnel syndrome had ceased. To the contrary, both Dr. Ogunro and Dr. Graham
opined that the accepted condition had not resolved.6 Dr. Graham opined that appellant had
permanent restrictions due to her carpal tunnel condition which had not been addressed
surgically and would recur rapidly if she returned to keyboarding. He also concurred with
Dr. Ogunro in stating that appellant was not capable of resuming her duties as a claims examiner
because the position required repetitive functions such as keyboarding for hours at a time.
Dr. Graham indicated that appellant could only return to work if she obtained retraining in a job
which did not require repetitive use of the upper extremities.
Accordingly, because the Office erroneously found a conflict in the medical evidence and
relied on the opinion of Dr. Willhoite to terminate appellant’s compensation, it failed to meet its
burden of proof in terminating appellant’s compensation for her accepted carpal tunnel
condition.
In addition, the Office failed to meet its burden of proof in terminating compensation for
appellant’s emotional condition. The Office based its decision to terminate appellant’s
compensation on the referral opinion of Dr. Tajani who stated that appellant had a depressive
disorder secondary to her physical problems; i.e., her bilateral carpal tunnel syndrome.
Dr. Tajani advised that appellant was currently not working due to her physical problems which
seemed to be the problem preventing her from returning to gainful employment. He felt that she
could be motivated to get back to work if her doctors released her back to work from a physical
standpoint.
The Board finds that Dr. Tajani’s report lacks probative value because it is insubstantial
and not well rationalized. In addition, Dr. Tajani has not clarified or elaborated the specific
background upon which he based his opinion. His opinion was not a sufficient basis on which to
terminate compensation for her emotional condition. The Board, therefore, finds that the Office
erred in relying on Dr. Tajani’s opinion in its May 19, 2006 termination decision.
5

5 U.S.C. § 8123(a).

6

See Federal (FECA) Procedural Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4(a)(1)
(March 1994), which states:
“A conflict exists only when there is a disagreement between the attending physician and the
physician designated by the United States….”

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CONCLUSION
The Board finds that the Office has failed to meet its burden to terminate appellant’s
compensation benefits.
ORDER
IT IS HEREBY ORDERED THAT the May 19, 2006 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: June 14, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.S., Appellant
and
DEPARTMENT OF THE ARMY, MILITARY
ENTRANCE PROCESSING STATION,
Doral, FL, Employer
__________________________________________

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Appearances:
Wayne Johnson, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0117
Issued: July 11, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 19, 2018 appellant, through counsel, filed a timely appeal from an April 23,
2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days elapsed from OWCP’s last merit decision, dated July 15, 2016, to the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c)
and 501.3, the Board lacks jurisdiction over the merits of this case.3
1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the April 23, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On February 21, 2014 appellant, then a 50-year-old medical technician, filed a traumatic
injury claim (Form CA-1) alleging that she sustained injury to her lower back, hip, and right knee
while in the performance of duty on February 14, 2014. She asserted that her chair rolled out from
under her while she was standing up, resulting in her falling to the floor. Appellant stopped work
on February 18, 2014.
In a February 15, 2014 emergency room report, Dr. Warren Dirk, a Board-certified
emergency medicine physician, noted that appellant reported that she fell to the floor onto her
buttocks when a chair rolled away from underneath her on February 14, 2014. He diagnosed low
back pain. On March 17, 2014 Dr. Christopher Brown, an attending Board-certified orthopedic
surgeon, provided a history of appellant’s February 14, 2014 fall at work and diagnosed lumbar
sprain, prolapsed cervical disc, and prolapsed thoracic disc (with radiculopathy). He noted that
“the injury she sustained on [February 14, 2014] in my opinion is work related.”
By decision dated April 7, 2014, OWCP accepted appellant’s claim for lumbar sprain due
to her February 14, 2014 employment injury.4 In the same decision, it determined that she did not
establish that the additional conditions of prolapsed cervical disc and prolapsed thoracic disc (with
radiculopathy) were causally related to her accepted February 14, 2014 employment injury.
On April 7, 2015 appellant, through counsel, requested reconsideration of OWCP’s
April 7, 2014 decision with respect to the finding that she had not established the additional
employment-related conditions of prolapsed cervical disc and prolapsed thoracic disc (with
radiculopathy) as causally related to the February 14, 2014 employment injury.
Appellant submitted an April 21, 2014 report from Dr. Brown, who diagnosed lumbar
sprain, thoracic disc prolapse with radiculopathy, and neck pain. On January 9, 2015 Dr. Brown
diagnosed thoracic disc prolapse with radiculopathy, displacement of lumbar intervertebral disc
without myelopathy, lumbar sprain, displacement of cervical intervertebral disc without
myelopathy, and prolapsed cervical intervertebral disc.
By decision dated April 28, 2015, OWCP denied appellant’s request for expansion of the
acceptance of her claim to include the additional conditions of prolapsed cervical disc and
prolapsed thoracic disc (with radiculopathy). It determined that she had not submitted medical
evidence sufficient to establish that these conditions were causally related to her February 14, 2014
employment injury.
On April 22, 2016 appellant, through counsel, requested reconsideration of OWCP’s
April 28, 2015 decision.

4

OWCP paid appellant wage-loss compensation on the daily rolls commencing April 4, 2014.

2

Appellant submitted an April 27, 2014 attending physician report (Form CA-20) from
Dr. Alan Gruskin, an attending Board-certified physical medicine and rehabilitation physician,
who listed a date of injury of February 14, 2014, diagnosed lumbar facet pain, and found that
appellant was partially disabled from work. In a May 5, 2015 report, Dr. Gruskin diagnosed
lumbar sprain, displacement of thoracic disc, displacement of cervical intervertebral disc without
myelopathy, and facet syndrome.
By decision dated July 15, 2016, OWCP denied modification of its April 28, 2015 decision,
finding that appellant had not established that the additional conditions of prolapsed cervical disc
and prolapsed thoracic disc (with radiculopathy) were causally related to her February 14, 2014
employment injury.
On July 12, 2017 appellant, through counsel, requested reconsideration of OWCP’s
July 15, 2016 decision. In a July 12, 2017 letter received on the same date, counsel asserted that
Dr. Robert R. Reppy, an attending Board-certified family practitioner, had greatly increased
appellant’s work restrictions based on objective findings regarding “the ongoing issues with her
cervical, thoracic, and lumbar medical condition.”
Appellant submitted a March 17, 2017 report from Dr. Reppy, who advised that appellant
reported a February 14, 2014 accident at work when she fell backwards to the floor onto her
coccyx/lumbar spine due to a chair rolling out from underneath her. Dr. Reppy reported the
findings of his March 17, 2017 physical examination, and diagnosed cervical disc disease, lumbar
disc disease, and coccydynia. He prescribed Flexeril pain medication and requested that appellant
return for follow-up evaluation in a month. On May 5, 2017 Dr. Reppy noted that appellant
complained of pain in her thoracic spine, neck, lumbar spine, and coccyx. He again diagnosed
cervical disc disease, lumbar disc disease, and coccydynia.
In a duty status report (Form CA-17) dated July 14, 2017, Dr. Reppy listed a date of injury
of February 14, 2014 and a diagnosis due to injury of “lumbar.” He listed various work restrictions
for full-time work, including lifting no more than five pounds, walking for no more than one hour
per day, standing for no more than one half hour per day, and no bending, stooping, or twisting.
In September 15 and November 10, 2017 reports, Dr. Reppy advised that appellant continued to
report pain in her coccyx and cervical, thoracic, and lumbar spines. In a September 15, 2017 duty
status report, he listed a date of injury of February 14, 2014 and a diagnosis due to injury of “pain
disc herniated.” Dr. Reppy provided the same work restrictions as he had on July 14, 2017.5
In a January 26, 2018 report, Dr. Reppy noted that appellant reported that neck pain had
become her chief complaint. He diagnosed cervical disc disease, lumbar disc disease, and
coccydynia, and prescribed Flexeril and ibuprofen pain medication. In a January 26, 2018 duty
status report, Dr. Reppy listed a date of injury of February 14, 2014 and a diagnosis due to injury
of “disc [disease],” and he provided the same work restrictions as he had on July 14 and
September 15, 2017.

5

Appellant also submitted the results of physical capacity evaluations which were obtained on July 17 and
November 14, 2017 by an attending physical therapist with an illegible signature.

3

In support of her reconsideration request, appellant also submitted a November 20, 2014
hospital treatment report and a January 19, 2015 medical authorization request form which had
previously been submitted and considered by OWCP.
By decision dated April 23, 2018, OWCP denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a). It found that the submitted
evidence/argument was repetitious or immaterial.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. OWCP may review an award for or against
payment of compensation at any time based on its own motion or on application.6
A claimant seeking reconsideration of a final decision must present arguments or provide
evidence that: (1) shows that OWCP erroneously applied or interpreted a specific point of law;
(2) advances a relevant legal argument not previously considered by OWCP; or (3) constitutes
relevant and pertinent new evidence not previously considered by OWCP.7 If OWCP determines
that at least one of these requirements is met, it reopens and reviews the case on its merits.8 If the
request is timely, but fails to meet at least one of the requirements for reconsideration, OWCP will
deny the request for reconsideration without reopening the case for review on the merits.9
For OWCP decisions issued on or after August 29, 2011, the date of the application for
reconsideration is the “received date” as recorded in the integrated Federal Employees’
Compensation System.10
The Board has held that the submission of evidence or argument which repeats or duplicates
evidence or argument already in the case record11 and the submission of evidence or argument which
does not address the particular issue involved does not constitute a basis for reopening a case.12
While a reopening of a case may be predicated solely on a legal premise not previously considered,
such reopening is not required where the legal contention does not have a reasonable color of
validity.13

6

5 U.S.C. § 8128(a).

7

20 C.F.R. § 10.606(b)(3); see also M.S., Docket No. 18-1041 (issued October 25, 2018); C.N., Docket No. 081569 (issued December 9, 2008).
8

Id. at § 10.608(a); see also C.K., Docket No. 18-1019 (issued October 24, 2018).

9

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010). To be timely, a request for reconsideration
must be received by OWCP within one year of the date of OWCP’s decision for which review is sought. 20 C.F.R.
§ 10.607(a).
10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016).

11

Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).

12

M.K., Docket No. 18-1623 (issued April 10, 2019); Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

13

John F. Critz, 44 ECAB 788, 794 (1993).

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ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
Appellant filed a timely request for reconsideration on July 12, 2017,14 but she did not
show that OWCP erroneously applied or interpreted a specific point of law, or advance a relevant
legal argument not previously considered by OWCP.15 Consequently, she is not entitled to review
of the merits of her claim based on the first and second above-noted requirements under 20 C.F.R.
§ 10.606(b)(3).
In support of her request for reconsideration, appellant submitted March 17, May 5,
September 15, November 10, 2017, and January 26, 2018 narrative reports in which Dr. Reppy
diagnosed cervical disc disease, lumbar disc disease, and coccydynia. In duty status reports dated
July 14, September 15, 2017, and January 26, 2018, Dr. Reppy recommended work restrictions
and provided diagnoses such as “lumbar,” “pain disc herniated,” and “disc [disease].”
As the underlying issue in this case is medical in nature, it must be addressed by relevant
and pertinent new medical evidence.16 The underlying medical issue in this case is whether
appellant has submitted sufficient medical evidence to establish that the acceptance of her claim
should be expanded to include the additional conditions of prolapsed cervical disc and prolapsed
thoracic disc (with radiculopathy) as causally related to her accepted February 14, 2014
employment injury. OWCP had only accepted appellant’s claim for lumbar sprain.
While the above-noted medical evidence submitted by appellant was new, it was not
relevant because it did not directly address the underlying issue of the present case. The evidence
was not relevant because it did not contain an opinion that appellant sustained the conditions of
prolapsed cervical disc and prolapsed thoracic disc (with radiculopathy) or any additional
conditions other than the accepted lumbar sprain due to the accepted February 14, 2014
employment injury. The Board has held that the submission of evidence or argument which does
not address the particular issue involved does not constitute a basis for reopening a case.17
In support of her reconsideration request, appellant submitted a November 20, 2014
hospital treatment report and a January 19, 2015 medical authorization request form which had
previously been submitted and considered by OWCP. However, the Board has held that the

14

See supra note 8.

15

Appellant presented the argument that Dr. Reppy had greatly increased her work restrictions based on objective
findings regarding “the ongoing issues with her cervical, thoracic, and lumbar medical condition.” However, she did
not provide a clear argument that she sustained an employment-related condition on February 14, 2014 other than the
low back condition which had been accepted.
16

See K.B., Docket No. 18-1392 (issued January 15, 2019); Bobbie F. Cowart, 55 ECAB 746 (2004).

17
See supra note 13. Appellant also submitted the results of physical capacity evaluations which were performed
on July 17 and November 14, 2017 by an attending physical therapist. These reports are not relevant to the underlying
issue of the present case because the report of a physical therapist does not constitute probative medical evidence as a
physical therapist is not a physician under FECA. S.T., Docket No. 17-0913 (issued June 23, 2017) (a physical
therapist is not a physician under FECA).

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submission of evidence which repeats or duplicates evidence already in the case record does not
constitute a basis for reopening a case.18
For these reasons, appellant is not entitled to review of the merits of her claim based on the
third above-noted requirement under 20 C.F.R. § 10.606(b)(3).
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Therefore, pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit
review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the April 23, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: July 11, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

18

See supra note 12.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Denver, CO, Employer
__________________________________________

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

Docket No. 18-1465
Issued: February 14, 2019

Case Submitted on the Record

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

JURISDICTION
On July 27, 2018 appellant filed a timely appeal from a June 5, 2018 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a left knee injury
causally related to the accepted January 7, 2018 employment incident.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 16, 2018 appellant, then a 23-year-old mail clerk, filed a traumatic injury claim
(Form CA-1) alleging that, on January 7, 2018, he twisted his left knee at work. He did not stop
work.
In a letter dated January 17, 2018, the employing establishment indicated that it was
controverting appellant’s claim because he did not report his claim until nine days after the alleged
incident.
In a development letter dated January 25, 2018, OWCP advised appellant that initially his
injury appeared to be a minor injury that resulted in minimal or no lost time from work. The letter
noted that because the employing establishment had not controverted continuation of pay or
challenged the merits of the case, payment of a limited amount of medical expenses was
administratively approved and the merits of the claim had not been formally considered. OWCP
reported that the claim was reopened for consideration because the employing establishment
submitted a late challenge to the claim. It advised appellant of the deficiencies of his claim.
Specifically it noted that the documentation received was insufficient to support his claim. OWCP
provided him a factual questionnaire to complete and return and requested medical evidence in
support of his claim. It afforded appellant 30 days to submit the requested evidence.
In multiple nurse’s reports dated January 19, 26, and 30, 2018, Kathy Okamatsu, a nurse
practitioner, noted that appellant complained of left knee pain. In the report dated January 19,
2018, countersigned by Dr. Lynne Yancey, Board-certified in emergency medicine, appellant’s
diagnoses were listed as acute pain in left knee and strain of left knee.
By decision dated February 26, 2018, OWCP denied appellant’s traumatic injury claim. It
found that the evidence of record was insufficient to establish that the incident occurred as alleged.
OWCP related that the reason for this finding was that appellant had not responded to the initial
development letter dated January 25, 2018.
On March 6, 2018 appellant requested a hearing before an OWCP hearing representative.
In the completed questionnaire dated March 6, 2018, appellant responded to OWCP’s
factual inquiries. He noted that on January 7, 2018 he was in the package sorting area handling
packages, and was bending and lifting a 30- to 40-pound package. Appellant indicated that as he
turned, the sole of his shoe caught the floor and he twisted his knee. He related that he was the
only one working that day and there were no witnesses to the event. Appellant noted that when
the event happened he heard a pop and his knee felt funny. He indicated that he did not report it
at the time because he had work that needed to be done and he did not think the injury was serious.
Appellant related that he reported his injury to management on January 11, 2018 after experiencing
a second painful knee-twisting event. He noted that his first medical examination was on
January 12, 2018 by Ms. Okamatsu.
By decision dated June 5, 2018, an OWCP hearing representative conducted a review of
the written record and affirmed the February 26, 2018 decision denying appellant’s claim for lack
of medical evidence to establish fact of injury. He noted that the employing establishment had not

2

disputed appellant’s account of the January 7, 2018 work incident as described in the March 13,
2018 response to the questionnaire. However, OWCP’s hearing representative indicated that
appellant had still not met his burden to establish the medical component of his claim because the
medical record contained only an assessment of pain prepared by a nurse practitioner and the
record did not contain a valid diagnosis by a qualified physician.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained in the performance of duty as alleged, and that any disability
or specific condition for which compensation is claimed is causally related to the employment
injury.3 These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.5 First,
the employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time, place, and in the manner alleged.6 Second, the employee must
submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.7
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence.8 Rationalized medical opinion
evidence is evidence which includes a physician’s opinion on the issue of whether there is a causal
relationship between the claimant’s diagnosed condition and the implicated employment factors.9
The opinion of the physician must be based on a complete factual and medical background, 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

2

Supra note 1.

3
T.M., Docket No. 18-0972 (issued December 13, 2018); C.S., Docket No. 08-1585 (issued March 3, 2009);
Bonnie A. Contreras, 57 ECAB 364 (2006).
4

T.M., id.; S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

5

B.F., Docket No. 09-0060 (issued March 17, 2009); Bonnie A. Contreras, supra note 3.

6

D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

7

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras,
supra note 3.
8

K.V., Docket No. 18-0306 (issued August 8, 2018); Elizabeth H. Kramm, 57 ECAB 117, 123 (2005).

9

I.J., 59 ECAB 408 (2008).

3

identified by the claimant.10 This medical opinion must include an accurate history of the
employee’s employment injury and must explain how the condition is related to the injury. The
weight of medical evidence is determined by its reliability, its probative value, its convincing
quality, the care of analysis manifested, and the medical rationale expressed in support of the
physician’s opinion.11
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that his left knee
condition was causally related to the accepted January 7, 2018 employment incident.
While initially OWCP found that appellant had not established that the January 7, 2018
incident occurred as alleged, OWCP’s hearing representative found that appellant had responded
to OWCP’s questionnaire and had established that the employment incident occurred as alleged.
The hearing representative, however, denied appellant’s claim because he had not submitted
medical evidence of a diagnosed left knee condition in connection with the accepted January 7,
2018 employment incident.
The record contains multiple nurse’s reports from Ms. Okamatsu dated January 19, 26,
and 30, 2018. The Board has held that medical reports signed solely by a nurse practitioner are of
no probative value as a nurse practitioner is not considered a physician as defined under FECA
and therefore is not competent to provide a medical opinion.12
The Board finds that the January 26, 2018 report from Ms. Okamatsu was countersigned
by Dr. Yancey. Therefore, the January 26, 2018 report is of probative value because it was
countersigned by a physician.13 In the January 26, 2018 report, Dr. Yancey reviewed appellant’s
history of injury. She diagnosed left knee strain, however, she did not offer a rationalized medical
opinion establishing causal relationship between the diagnosed left knee strain and the accepted
employment incident. The Board has held that medical evidence that does not offer an opinion
regarding the cause of an employee’s condition is of no probative value regarding the issue of
causal relationship.14

10

Id.

11

D.H., Docket No. 17-1913 (issued December 13, 2018); K.V., Docket No. 18-0723 (issued November 9, 2018);
James Mack, 43 ECAB 321 (1991).
12
See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and
physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection
defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by state law). S.J., Docket No. 17-0783, n.2
(issued April 9, 2018) (nurse practitioners are not considered physicians under FECA).
13

See D.W., Docket No. 17-1413 (issued December 18, 2018). A report from a nurse practitioner will be considered
medical evidence if countersigned by a qualified physician.
14
C.C., Docket No. 18-1099 (issued December 21, 2018); see L.B., Docket No. 18-0533 (issued August 27, 2018);
D.K., Docket No. 17-1549 (issued July 6, 2018).

4

The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference of causal relation.15 An award of compensation may not
be based on surmise, conjecture, speculation, or upon appellant’s own belief that there was a causal
relationship between his condition and his employment.16 Causal relationship must be based on
rationalized medical opinion evidence.17 As appellant has not submitted a rationalized medical
opinion supporting that his diagnosed left knee condition was causally related to the accepted
January 7, 2018 employment incident, he has not met his burden of proof to establish his claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that his left knee
condition was causally related to the accepted January 7, 2018 employment incident.

15

See A.W., Docket No. 17-0285 (issued May 25, 2018); L.D., Docket No. 09-1503 (issued April 15, 2010); D.I.,
59 ECAB 158 (2007); Daniel O. Vasquez, 57 ECAB 559 (2006).
16

Id.

17

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the June 5, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 14, 2019
Washington, DC

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

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

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

6


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

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

Docket No. 12-1010
Issued: September 18, 2012

Case Submitted on the Record

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

JURISDICTION
On April 12, 2012 appellant filed a timely appeal from a February 1, 2012 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying her traumatic injury claim.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
right shoulder injury in the performance of duty on November 13, 2011.
FACTUAL HISTORY
On December 6, 2011 appellant, then a 53-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on November 13, 2011 she sustained an injury when she was
lifting a heavy bag and felt right shoulder pain. She stopped work on November 14, 2011 and
1

5 U.S.C. § 8101 et seq.

notified her supervisor on December 6, 2011. Appellant’s supervisor checked the box marked
“yes” when asked if her knowledge of the facts about this injury agreed with appellant’s
statements.
In medical notes dated November 15 to December 5, 2011, Dr. Isaiah Pinckney, a
treating physician, reported that appellant was incapacitated from November 14, 2011 to
January 1, 2012 due to a rotator cuff syndrome. He advised that she could resume work on
January 2, 2012.
By letter dated December 28, 2011, OWCP informed appellant that the evidence of
record was insufficient to support her claim. Appellant was advised of the medical and factual
evidence needed and was asked to respond to the questions provided in the letter within 30 days.
In medical reports dated November 15 to December 19, 2011, Dr. Pinckney reported that
on November 13, 2011 appellant was lifting a bag of mail in excess of 50 pounds when she felt a
sharp pain on the right side of her neck towards her right wrist. He noted a history of arthritis of
the right shoulder and diagnosed cervicalgia and sprain of the rotator cuff. Dr. Pinckney
requested a magnetic resonance imaging (MRI) scan of the right shoulder and advised that
appellant could return to work on January 2, 2012 without limitations.
In a November 16, 2011 diagnostic report, Dr. Mark Shapiro, a Board-certified diagnostic
radiologist, reported that x-rays of appellant’s right shoulder demonstrated degenerative changes
of the acromioclavicular joint and greater tuberosity.
By decision dated February 1, 2012, OWCP denied appellant’s claim finding that the
evidence did not establish that the incident occurred as alleged.2
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or occupational disease.4

2

The Board notes that appellant submitted additional evidence after OWCP rendered its February 1, 2012
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision. Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 510.2(c)(1); Dennis E.
Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). Appellant may submit this evidence
to OWCP, together with a formal request for reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§ 10.606(b)(2).
3

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

4

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

2

In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.5 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
When an employee claims that she sustained an injury in the performance of duty she
must submit sufficient evidence to establish that she experienced a specific event, incident or
exposure occurring at the time, place and in the manner alleged. She must also establish that
such event, incident or exposure caused an injury.6 Once an employee establishes that she
sustained an injury in the performance of duty, she has the burden of proof to establish that any
subsequent medical condition or disability for work, for which she claims compensation is
causally related to the accepted injury.7
To establish that an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
circumstances and her subsequent course of action. In determining whether a case has been
established, such circumstances as late notification of injury, lack of confirmation of injury and
failure to obtain medical treatment may, if otherwise unexplained, cast substantial doubt on the
employee’s statements. The employee has not met her burden when there are such
inconsistencies in the evidence as to cast serious doubt on the validity of the claim.8
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.9 The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant. This medical opinion
must include an accurate history of the employee’s employment injury and must explain how the
condition is related to the injury. The weight of medical evidence is determined by its reliability,
its probative value, its convincing quality, the care of analysis manifested and the medical
rationale expressed in support of the physician’s opinion.10
5

Elaine Pendleton, 40 ECAB 1143 (1989).

6

See generally John J. Carlone, 41 ECAB 354 (1989); see also 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R.
§ 10.5(q) and (ee) (1999) (occupational disease or illness and traumatic injury defined). See Victor J. Woodhams, 41
ECAB 345 (1989) regarding a claimant’s burden of proof in an occupational disease claim.
7

Supra note 4.

8

Betty J. Smith, 54 ECAB 174 (2002).

9

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

10

James Mack, 43 ECAB 321 (1991).

3

ANALYSIS
The Board finds that appellant failed to establish that she sustained a right shoulder
rotator cuff sprain or cervicalgia in the performance of duty on November 13, 2011.
Appellant must establish all of the elements of her claim in order to prevail. She must
prove her employment, the time, place and manner of injury, a resulting personal injury and that
her injury arose in the performance of duty. In its February 1, 2012 decision, OWCP found that
appellant did not establish that the incident occurred at the time, place and in the manner alleged.
The Board finds, however, that the evidence of record is sufficient to establish that the
November 13, 2011 incident occurred, as alleged.
Appellant alleged that she sustained an injury at work on November 13, 2011 when she
was lifting a heavy bag and felt pain in her right shoulder. The medical reports from
Dr. Pinckney are consistent in noting that appellant experienced a sharp pain on the right side of
her neck towards her right wrist when she was lifting a bag of mail in excess of 50 pounds.
Further, appellant stopped work the following day and sought medical treatment on
November 15, 2011. Her supervisor agreed with the facts alleged by appellant and the
employing establishment did not controvert the claim. The Board finds that, given the above
referenced evidence, appellant has alleged with specificity that the incident occurred at the time,
place and in the manner alleged.11
The Board also finds that the medical evidence of record establishes diagnoses of rotator
cuff sprain and cervicalgia. In medical reports dated November 15 to December 19, 2011,
Dr. Pinckney reported appellant’s history of injury and symptoms, and thereafter diagnosed
cervicalgia and sprain of the rotator cuff.
Given that appellant has established diagnosed conditions, the question becomes whether
the November 13, 2011 incident caused these right shoulder conditions. To establish causal
relationship, appellant must submit rationalized medical evidence to establish that her diagnosed
conditions were causally related to the accepted November 13, 2011 employment incident.
Dr. Pinckney’s reports are not rationalized as to the issue of causal relation. In his
reports, he reiterated appellant’s history that she was lifting a bag of mail in excess of 50 pounds
on November 13, 2011 when she experienced a sharp pain on the right side of her neck towards
her right wrist. Dr. Pinckney failed to provide a medical explanation, with rationale, as to how
the incident accepted in this case caused or contributed to appellant’s right shoulder injury. He
did not describe how physiologically the accepted incident would have caused the diagnosed
conditions. The Board also notes that Dr. Pinckney did not fully address appellant’s medical
history or discuss her preexisting right shoulder conditions other than noting that she suffered
from arthritis of the right shoulder. Dr. Pinckney did not mention or comment on appellant’s
right shoulder degenerative changes of the acromioclavicular (AC) joint and greater tuberosity as
shown by x-ray and how these conditions affected her diagnosis.

11

See Willie J. Clements, 43 ECAB 244 (1991).

4

Dr. Pinckney merely recounted the incident as described by appellant, but he did not offer
a rationalized opinion on the issue of causal relationship.12 The opinion of a physician
supporting causal relationship must rest on a complete factual and medical background supported
by affirmative evidence, address the specific factual and medical evidence of record and provide
medical rationale explaining the relationship between the diagnosed condition and the
established incident or factor of employment.13 Dr. Pinckney’s reports do not meet that standard
and are insufficient to meet appellant’s burden of proof.
The remaining medical evidence of record is also insufficient to establish causal
relationship as Dr. Shapiro’s November 16, 2011 diagnostic report only provided a diagnosis of
degenerative changes of the AC joint and greater tuberosity and failed to provide any opinion on
the cause of appellant’s injury.14
In the instant case, the record is without rationalized medical evidence establishing a
causal relationship between the November 13, 2011 employment incident and appellant’s right
rotator cuff sprain. Thus, appellant has failed to establish her burden of proof.
Evidence submitted by appellant after the final decision cannot be considered by the
Board. As previously noted, the Board’s jurisdiction is limited to reviewing the evidence that
was before OWCP at the time of its decision.15 Appellant may submit additional evidence,
together with a written request for reconsideration, to OWCP within one year of the Board’s
merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that her right
rotator cuff sprain is causally related to the accepted November 13, 2011 employment incident.

12

Franklin D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52 ECAB 332 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
13

See Lee R. Haywood, 48 ECAB 145 (1996).

14

Supra note 9.

15

20 C.F.R. § 501.2(c)(1).

5

ORDER
IT IS HEREBY ORDERED THAT the February 1, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: September 18, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
SHIPYARD, Charleston, SC, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 10-1570
Issued: June 28, 2011

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On May 25, 2010 appellant filed a timely appeal from a December 9, 2009 decision of
the Office of Workers’ Compensation Programs (OWCP). The Board assigned Docket No.
10-1570.
In a June 25, 1999 decision, OWCP reduced appellant’s compensation effective July 18,
1999 based on its determination that he was capable of earning wages of $294.00 per week in the
constructed position of management trainee.1 Appellant requested modification of OWCP’s
June 25, 1999 wage-earning capacity determination and, in its December 9, 2009 decision,
OWCP found that appellant had not met his burden of proof to modify the June 25, 1999
decision.
In support of his request for modification of OWCP’s June 25, 1999 wage-earning
capacity determination, appellant submitted new medical evidence to support that he could not
perform management trainee duties. In a September 2, 2009 report, Dr. Wilson stated that
1

OWCP accepted that on March 30, 1990 appellant, then a 29-year-old painter, sustained a lumbosacral strain
and aggravation of preexisting spondylolisthesis at L4 through S1 due to picking up a tool box on two occasions on
that date. On April 23, 1997 Dr. William E. Wilson, an attending Board-certified orthopedic surgeon, performed
decompression and fusion surgery at L5-S1 which was authorized by OWCP.

appellant’s symptoms had been aggravated and that he had spondylolisthesis, degenerative disc
disease and lumbar radiculopathy due to his 1990 work injury. He noted that appellant continued
to have work-related chronic low back pain and radicular leg pain which had not resolved over
an approximately 12-year period in spite of surgery. Dr. Wilson found that, due to the fact that
appellant remained symptomatic and had not been able to work during this period, it is unlikely
that he would return to significant gainful employment. In a September 30, 2009 report,
Dr. Wilson stated that appellant continued to have work-related chronic low back pain and
radicular leg pain caused by abnormalities at L4-5 and L5-S1. Appellant had been unable to
work over the past 11 to 12 years in spite of surgery and, in fact, was currently more
symptomatic. Dr. Wilson attributed these problems to the 1990 work injury and posited that
appellant had more than an aggravation of degenerative disc disease in 1990. He found that
appellant was disabled from all work.
In an October 13, 2009 report, Dr. Castellone, an attending Board-certified family
practitioner, stated that appellant suffered a work injury in 1990 which resulted in degenerative
disc disease and a ruptured disc. He asserted that appellant’s work-related condition worsened
over the years and that he had chronic pain which interfered with his activities of daily living and
which caused him to be 100 percent permanently and totally disabled. Due to his work injury,
appellant used large doses of powerful narcotic analgesics on a daily basis.2
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated, or the original determination was, in fact, erroneous.3 The burden of proof is on
the party attempting to show a modification of the wage-earning capacity determination.4
In determining whether a claimant is entitled to compensation benefits, OWCP is
required by statute and regulation to make findings of fact.5 OWCP procedure further specifies
that a final decision of OWCP must include findings of fact and provide clear reasoning which
allows the claimant to “understand the precise defect of the claim and the kind of evidence which
would tend to overcome it.”6 These requirements are supported by Board precedent.7
In the December 9, 2009 decision, OWCP did not provide adequate findings of fact or
clear reasoning explaining to appellant the basis for its denial of his request to modify its
June 25, 1999 wage-earning capacity determination. It provided only brief discussions of the
2

Appellant also submitted a number of medical reports that had previously been submitted to OWCP.

3

Stanley B. Plotkin, 51 ECAB 700 (2000).

4

Id.

5

5 U.S.C. § 8124(a) provides: “The [Office] shall determine and make a finding of facts and make an award for
or against payment of compensation.” 20 C.F.R. § 10.126 provides in pertinent part that the final decision of OWCP
“shall contain findings of fact and a statement of reasons.”
6

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.4 (July 1997).

7

See James D. Boller, Jr., 12 ECAB 45, 46 (1960).

2

medical evidence submitted by appellant and did not explain why this medical evidence did not
meet one of the standards for modifying a wage-earning capacity determination, i.e., showing the
existence of a material change in the nature and extent of a claimant’s injury-related condition.8
Another way of showing that a wage-earning capacity determination should be modified is to
show that the original determination was erroneous. However, OWCP did not provide any
discussion of whether the evidence of record showed that the June 25, 1999 wage-earning
capacity determination was erroneous. Given the fact that OWCP provided limited findings of
fact and reasoning for its holding, appellant would not understand the precise defect of his claim
and would not be apprised of the kind of evidence which would tend to overcome it.
Therefore, the case shall be remanded to OWCP in order to meet its obligation to present
adequate findings of fact and reasoning in support of its decision regarding whether appellant
met his burden of proof to modify its June 25, 1999 wage-earning capacity determination. After
such development it deems necessary, OWCP shall issue an appropriate merit decision on this
matter.
IT IS HEREBY ORDERED THAT the December 9, 2009 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with this order of the Board.
Issued: June 28, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

8

Moreover, OWCP did not discuss the requirements of the management trainee position or adequately explain
how appellant’s medical condition would have allowed him to perform the specific duties of the position.

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.I., Appellant
and
DEPARTMENT OF THE NAVY, NORFOLK
NAVAL SHIPYARD, Portsmouth, VA, Employer
__________________________________________

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Docket No. 13-469
Issued: July 1, 2013

Oral Argument April 25, 2013

Appearances:
Appellant, pro se
No Appearance,for the Director

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On December 31, 2012 appellant timely appealed the December 5, 2012 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the case.
ISSUES
The issues are: (1) whether appellant received an overpayment of $7,157.77 for the
period of June 6 to August 27, 2011; and (2) whether OWCP properly declined to waive
recovery of the overpayment.
FACTUAL HISTORY
Appellant, a 48-year-old physical science technician, has an accepted claim for lumbar
sprain and left ankle sprain which arose on November 20, 2010. He stopped work on May 9,
2011 to undergo left ankle arthroscopic surgery. OWCP authorized the May 9, 2011 surgery and
1

5 U.S.C. §§ 8101-8193 (2006).

paid appellant appropriate wage-loss compensation for temporary total disability (TTD).
Effective June 5, 2011, it placed him on the periodic compensation rolls. On June 6, 2011
appellant returned to work in a full-time, limited-duty capacity. The employing establishment
informed OWCP of hisreturn to work as early as June 8, 2011, but OWCP continued to pay him
wage-loss compensation for an additional four months.
Beginning July 2, 2011, OWCP disbursed four 28-day periodic rollspayments,which
covered the following periods: June 5 to July 2, 2011; July 3 to 30, 2011; July 31 to August 27,
2011; and August 28 to September 24, 2011. Each 28-day payment was in the amount of
$2,418.37. Appellant returned the latest 28-day payment covering the period of August 28 to
September 24, 2011. For the period of June 5 to August 27, 2011, he received net wage-loss
compensation totaling $7,255.11.
On May 14, 2012 OWCP issued a preliminary finding of overpayment in the amount of
$7,157.77 for the period of June 6 to August 27, 2011.2 The preliminary determination also
indicated that appellant was at fault in creating the overpayment because he accepted payments
he knew or should have known to be incorrect.
Appellant requested a prerecoupment hearing. He challenged the preliminary finding of
fault and requested waiver of recovery of the overpayment. Appellant also submitted an
overpayment recovery questionnaire (Form OWCP-20). He reported total monthly income (net)
of $2,820.44 and monthly expenses/debts of $2,949.96. Appellant also reported various unpaid
medical expenses totaling $2,668.16. Some of the charges pertained to recent OWCP-approved
lumbar surgery.3 Additionally, appellant reported total liquid assets of $1,376.73.
At the October 2, 2012 prerecoupment hearing, OWCP’s hearing representative
acknowledged receipt of appellant’s Form OWCP-20 and advised him to submit financial
documentation to support the figures he provided regarding necessary expenses such as utilities.
The hearing representative initially afforded his 30 days to submit the requested financial
documentation. She subsequently extended the deadline until November 15, 2012.
By decision dated December 5, 2012, the hearing representative found that appellant
received an overpayment of $7,157.77 for the period of June 6 to August 27, 2011. She also
found that he was not at fault in creating the overpayment. As to the issue of waiver, the hearing
representative found thathe“did not submit any financial documentation to support [his] claimed
expenses.” And absent the required financial documentation, appellantwas not entitled to a
waiver of recovery of the overpayment.
Appellant subsequently filed the instant appeal and requested oral argument before the
Board. In his application for review (AB-1) and during oral argument, he adamantly disagreed
with the hearing representative’s finding that he had not submitted the requested financial

2

Appellant was entitled to compensation for June 5, 2011.

3

In April 18, 2012, appellant underwent a left-sided L5-S1 microdiskectomy. He returned to work on May 1,
2012 and within a few weeks he was released to resume his regular duties without restrictions.

2

documentation.4 He also challenged the amount of overpayment arguing that OWCP had
incorrectly paid him at the lower, basiccompensation rate (⅔) rather than the augmented rate (¾).
Appellant claimed his adult daughter, as a dependent.5
LEGAL PRECEDENT -- ISSUE 1
If an employee returns to work and has earnings, he or she is not entitled to receive TTD
benefits and actual earnings for the same time period.6 Where there are actual earnings and the
continued receipt of wage-loss compensation for TTD for the same period, an overpayment of
benefits exists.7
ANALYSIS -- ISSUE 1
Appellant returned to work in a full-time capacity on June 6, 2011. However, OWCP
continued to pay him wage-loss compensation for approximately four months while he also
earned wages from the employing establishment. Following his June 6, 2011 return to work,
appellant received four 28-day periodic rollsdisability payments covering the period of June 5 to
September 24, 2011.He returned one check which covered the period of August 28 to
September 24, 2011. With respect to the three remaining checks covering the period of June 5
toAugust 27, 2011, OWCP paid appellant total net compensation of $7,255.11,but appellant was
only entitled to disability compensation for one of those days; June 5, 2011.
OWCP calculated that appellant was entitled to receive $98.94 in net compensation for
June 5, 2011. Subtracting this amount from the previous payments resulted in an overpayment
of $7,156.17.8 OWCP calculated a slightly higher overpayment ($7,157.77) due to a minor
computation error ($1.60) regarding amounts previously withheld for health insurance premiums
(HBI).9
Wage-loss compensation for total disability is computed based on the employee’s
effective pay rate and whether he has any eligible dependents.10 Depending on whether the
employee has at least one eligible dependent, wage-loss compensation will be paid at either ⅔ or
¾ of the effective pay rate. As noted, appellant claimed his adult daughter, as a dependent.At
4

Appellant reportedly submitted a package containing 49 pages of information regarding his personal finances.

5

On a May 17, 2011 claim for compensation (Form CA-7), appellant listed his daughter’s date of birth as
April 27, 1991. He also noted that she lived with him at the time. On his June 12, 2012 Form OWCP-20, appellant
again listed his then 21-year-old daughter, as a dependent.
6

Daniel Renard, 51 ECAB 466, 469 (2000).

7

L.S., 59 ECAB 350, 352-53 (2008).

8

$7,255.11 - $98.94

$7,156.17.

9

The overpayment worksheet indicated that OWCP had withheld $1,592.00 for HBI premiums. However, the
actual payment reports indicated that OWCP withheld $1,593.60 in HBI premiums for the period of June 5 to
September 24, 2011.
10

See 5 U.S.C. §§ 8105(a), 8110, 8112 and 8114; 20 C.F.R. §§ 10.5(s) and 10.401(b) (2011).

3

oral argument, he offered a copy of his income tax return as proof that he was entitled to claim
his adult daughter as a dependent.11 The Board advised appellant that it was not at liberty to
accept new evidence on appeal.12
The record reflects that OWCP paid appellant at the basic compensation rate (⅔) for the
period of May 9 to June 4, 2011. Appellantessentially argued that, because OWCP underpaid
him for an earlier period, this should offset at least part of the subsequent overpayment. Perhaps
hewas entitled to additional compensation for the period of May 9 to June 4, 2011;however, that
particular period of compensation is not before the Board. The issue currently before the Board
is whether appellant received an overpayment of benefits for the period of June 6 to
August 27, 2011.13
Although the record is unclear as to whether appellant’s adult daughter qualifies as a
dependent under FECA, OWCP nonetheless gave him the benefit of the doubt when it
recalculated the amount of benefits hewas entitled to receive for June 5, 2011. Applying the ¾
compensation rate to his weekly pay rate of $1,056.29, OWCP determined that he was entitled to
gross compensation of $113.17 for June 5, 2011.14It then reduced that amount by the pro rata
share of appellant’s 28-day HBI premium ($14.23).15 Thus, OWCP determined that he was
entitled to net compensation of $98.94 for June 5, 2011. This figure was then subtracted from
the total net compensation paid during the period of June 5 to August 27, 2011. As noted,
OWCP made a slight miscalculation regarding previously withheld HBI premiums.
The record establishes that appellant received an overpayment of $7,156.17 for the period
of June 6 to August 27, 2011. He was not entitled to receive disability compensation following
his June 6, 2011 return to full-time work. The hearing representative’s December 5, 2012
decision shall be modified to reflect an overpayment of $7,156.17. The Board also finds that
appellant was without fault in either creating or accepting the overpayment.
LEGAL PRECEDENT -- ISSUE 2
An individual who is without fault in creating or accepting an overpayment is nonetheless
subject to recovery of the overpayment unless adjustment or recovery would defeat the purpose

11

Dependency status under FECA is not determined based on whether the claimed individual qualifies as a
dependent for Federal and/or State income tax purposes. Dependents under FECA include: a wife or husband; an
unmarried child under 18 years of age, an unmarried child over 18 who is incapable of self-support; a student, until
he or she reaches 23 years of age or completes four years of school beyond the high school level; or a wholly
dependent parent. 20 C.F.R. § 10.405(a).
12

See 20 C.F.R. § 501.2(c)(1).

13

Had OWCP applied the higher augmented rate (¾) for the period of June 6 to August 27, 2011, this would have
resulted in an even greater overpayment.
14

Based on the weekly pay rate in effect as of May 9, 2011, OWCP had previously paid compensation at the ⅔
rate which yielded a 28-day gross compensation of $2,816.77 or $100.60 per day.
15

$398.40 ÷ 28

$14.23

4

of FECA or would be against equity and good conscience.16 Recovery of an overpayment will
defeat the purpose of FECA if such recovery would cause hardship to a current or former
beneficiary because the beneficiary from whom OWCP seeks recovery needs substantially all of
his current income, including compensation benefits, to meet current ordinary and necessary
living expenses and the beneficiary’s assets do not exceed a specified amount as determined by
OWCP.17 Additionally, recovery of an overpayment is considered to be against equity and good
conscience when an individual who received an overpayment would experience severe financial
hardship in attempting to repay the debt or when an individual, in reliance on such payment or on
notice that such payments would be made, relinquished a valuable right or changed his position
for the worse.18
The individual who received the overpayment is responsible for providing information
about income, expenses and assets as specified by OWCP.19 This information is necessary for
determining whether a waiver of recovery of the overpayment is warranted.20 The information is
also used to determine an appropriate repayment schedule, if necessary.21 Failure to submit the
requested information within 30 days of the request shall result in denial of waiver.22
ANALYSIS - ISSUE 2
The hearing representative denied waiver of recovery of the overpayment because there
was insufficient evidence to support the income, expenses and assets appellant reported in his
June 12, 2012 overpayment recovery questionnaire. The hearing representative advised
appellant of the need for supporting financial documentation and provided him ample
opportunity post-hearing to submit the required information. Appellant claimed to have timely
submitted 49 pages of financial information. However, there is no indication from the record
that the previously requested documentation was timely received and properly associated with
the current claim file.
The requested financial documentation is not part of the record on appeal. Because this
information was unavailable at the time of the December 5, 2012 final overpayment decision, the
hearing representative properly denied appellant’s request for waiver of recovery.23 Section
16

5 U.S.C. § 8129(b); 20 C.F.R. §§ 10.433, 10.434, 10.436, 10.437.

17

20 C.F.R. § 10.436(a), (b). For an individual with no eligible dependents the asset base is $4,800.00. The base
increases to $8,000.00 for an individual with a spouse or one dependent, plus $960.00 for each additional dependent.
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6a(1)(b) (June 2009).
18

Id. at § 10.437(a), (b).

19

Id. at § 10.438(a).

20
21
22
23

Id.
Id.
20 C.F.R. § 10.438(b).
Id.

5

10.438, which describes the overpayment recipient’s responsibility to submit financial
information, does not preclude further consideration of wavier based on subsequently submitted
evidence.24 Accordingly, appellant is free to submit an updated Form OWCP-20 along with
current financial documentation and request further review from OWCP regarding the possibility
of waiver of recovery.
CONCLUSION
Appellant received an overpayment of $7,156.17 for the period of June 6 through
August 27, 2011. Although he was deemed without fault in creating or accepting the
overpayment, he is not entitled to waiver of recovery. The hearing representative’s decision
shall be modified to reflect the above-noted overpayment amount.
ORDER
IT IS HEREBY ORDERED THAT the December 5, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed as modified.
Issued: July 1, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

24

Id.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.F., Appellant
and
U.S. POSTAL SERVICE, EAST CLEVELAND
POST OFFICE, Cleveland, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 18-0447
Issued: February 5, 2020

Case Submitted on the Record

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

JURISDICTION
On December 29, 2017 appellant, through counsel, filed a timely appeal from an
October 18, 2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.3

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

5 U.S.C. § 8101 et seq.

The Board notes that, following the October 18, 2017 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to expand the acceptance of her
claim to include right knee osteoarthritis as causally related to her November 26, 2005 employment
injury.
FACTUAL HISTORY
On November 28, 2005 appellant, then a 54-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on November 26, 2005 her right knee popped when walking her
route while in the performance of duty. She stopped work on November 28, 2005. OWCP
accepted the claim for patellar tendinitis, right sprain of unspecified sites of the knee, and leg on
the right. It paid appellant intermittent wage-loss compensation on the supplemental rolls from
March 6 until November 5, 2007.
An x-ray of appellant’s right knee dated November 27, 2005 revealed mild degenerative
changes predominantly involving the patellofemoral compartment with subchondral sclerosis and
marginal osteophytes. A fractured ossicle or fracture enthesophyte could not be excluded. A large
suprapatellar effusion was also noted.
Appellant underwent a right knee arthroscopy with open incision of the patellar tendon and
ossicles of the patellar tendon on October 3, 2007 by Dr. John Wood, a Board-certified orthopedic
surgeon. Dr. Wood provided a postoperative diagnosis of patellar tendinosis with painful ossicles
in the patellar tendon. Appellant returned to full-time modified duty on November 6, 2007. She
retired from her federal employment effective January 2, 2010.
In a letter dated April 8, 2015, Dr. Wood requested acceptance of appellant’s claim be
expanded to include right knee osteoarthritis.
On June 11, 2015 OWCP requested that Dr. Wood explain how appellant’s right knee
osteoarthritis was causally related to her accepted employment injury.
Dr. Wood in a July 7, 2015 progress note, related appellant’s examination findings and
noted that she had a several-week history of new knee pain. He advised that, after a day of
prolonged standing, grilling, etc., appellant had a three-hour period of stabbing “A-I” pain.
Dr. Wood noted that she had a possible new tear of the anterior horn or lower medial and chronic
patellofemoral syndrome and osteoarthritis of the right knee. He recommended a magnetic
resonance imaging (MRI) scan.
A July 20, 2015 MRI scan interpreted by Dr. Mary Wall, a radiologist, revealed significant
spurring of the patella, chondral thinning, and irregularity of the medial articulating surface of the
dorsal talus, and slight irregularity of the medial attachment of the anterior horn of lateral meniscus
suggesting a small partial tear in this location, but no full-thickness meniscal tear.
By letter dated October 29, 2015, counsel requested that acceptance of appellant’s claim
be expanded to include additional conditions. In a report dated August 27, 2015, Dr. Wood noted
that he had treated her for several years for her right knee pain, which she aggravated while
working for the employing establishment. He explained that, although appellant suffered from

2

preexisting osteoarthritis of her patellofemoral joint, patellofemoral arthritis was aggravated by
work that involved squatting, stairs, heavy pushing/pulling, lifting, or walking on grades.
In a September 15, 2015 progress note, Dr. Wood discussed appellant’s MRI scan results
and noted that she was aware that surgery could worsen her osteoarthritis symptoms for a
prolonged period of time.
On November 23, 2015 Dr. Wood again requested that appellant’s claim be expanded to
include osteoarthritis and tear of the lateral cartilage of meniscus of the knee.
By decision dated December 10, 2015, OWCP denied the request to expand acceptance of
appellant’s claim to include right knee osteoarthritis.4
On December 15, 2015 counsel requested a telephonic hearing before an OWCP
representative, which was held on August 2, 2016. Regarding any incidents, accidents, or falls
after November 26, 2005, appellant testified that, on one occasion, she sought medical treatment
after she accidentally bumped her knee on a door. She also testified that her knee used to give
way, but that she had not fallen.
Counsel subsequently provided additional progress reports from Dr. Woods dated
October 7, 2014, January 27, November 23, and December 1, 2015. In the October 7, 2014 and
January 27, 2015 reports, Dr. Woods noted appellant’s diagnoses. In the November 23, 2015
report, he related that she had reached maximum medical improvement (MMI) for her
patellofemoral arthritis of the right knee. In the December 1, 2015 report, Dr. Wood related that
appellant had sustained aggravation of right knee osteoarthritis and that this condition had reached
MMI.
By decision dated September 23, 2016, an OWCP hearing representative affirmed the
December 12, 2015 decision. OWCP found that appellant had not submitted a report from a
physician explaining how the diagnosed condition of preexisting right knee osteoarthritis was
causally related to the accepted November 26, 2005 employment injury.
OWCP received a May 11, 2017 report from Dr. Laurel Beverly, a Board-certified
orthopedic surgeon. Dr. Beverly noted appellant’s history of injury and treatment and explained
that appellant had been seen for right knee pain for over 10 years. She noted the history as related
by appellant, which included that other physicians had diagnosed osteoarthritis. Dr. Beverly
diagnosed right knee patellofemoral arthritis, with weakness.
A May 11, 2017 x-ray of the right knee read by Dr. Christina Cavalier Clemow, a Boardcertified diagnostic radiologist, revealed moderate degenerative changes.
In a letter dated August 2, 2017, counsel requested reconsideration and submitted
additional evidence.

4
OWCP has not issued a formal decision as to whether acceptance of appellant’s claim should be expanded to
include tear of the lateral cartilage of the right knee.

3

In a July 18, 2017 report, Dr. Catherine Watkins Campbell, a family medicine specialist,
noted appellant’s history of injury and advised that appellant complained of unilateral right knee
pain since the date of injury. She noted that following appellant’s October 4, 2007 surgery, which
failed to alleviate her pain issues, appellant continued to work as a letter carrier, while wearing a
knee brace until she retired. Dr. Watkins Campbell examined appellant’s right knee, reviewed the
diagnostic reports of record and diagnosed chronic bilateral patellar tendinitis of the knees. She
found patellofemoral osteoarthritis in both knees, which existed prior to the injury. Dr. Watkins
Campbell explained that surgical treatment of the patellar tendinitis involved filing down the bony
protuberances of the patella into the superior and inferior tendons, which subsequently caused an
accelerated regrowth of the bony protuberances. She opined “[t]he surgical treatment of the
patellar tendinitis is felt to have directly aggravated the preexisting patellofemoral osteoarthritis in
the right knee in excess of the similar condition present in the left knee. The inciting traumatic
event that occurred on November 27, 2005 is directly, proximally and causally related to the
substantial aggravation of patellofemoral osteoarthritis in the right knee.” Dr. Watkins Campbell
opined “In my medical opinion, the effects of the injury are the direct and proximate cause of the
diagnoses that I cited above. This is based on a reasonable medical probability. There may be
other causes for this medical problem, but one of the causes is clearly the activities of the work
described as performed by the injured worker as described above.”
On September 28, 2017 OWCP requested that the district medical adviser (DMA) review
Dr. Watkins Campbell’s report.
In report dated October 6, 2017, the DMA, Dr. Todd Fellars, a Board-certified orthopedic
surgeon, noted that he had reviewed the statement of accepted facts and the medical evidence. He
explained that appellant’s right knee osteoarthritis preexisted the employment injury and there was
no objective evidence that her arthroscopic surgery worsened her osteoarthritis. Dr. Fellars
explained that the nature history of the osteoarthritis was that it worsened over time. He opined
that “[t]herefore, years later, one cannot return to the time of arthroscopy and state that was the
cause for [appellant’s] worsening given that this condition will often worsen with or without
surgery. Therefore, I respectfully disagree with his opinion that osteoarthritis is associated with
her work claim.” Dr. Fellars concluded his opinion noting that he disagreed with the request for
expansion of appellant’s claim.
By decision dated October 18, 2017, OWCP denied modification of its prior decision. It
found that appellant had not established that her right knee osteoarthritis was causally related to
the accepted employment injury.
LEGAL PRECEDENT
When an employee claims that a condition not accepted or approved by OWCP was due to
an employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury.5

5

R.J., Docket No. 17-1365 (issued May 8, 2019); Jaja K. Asaramo, 55 ECAB 200 (2004).

4

Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.6 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background. Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s).7
OWCP’s procedures provide:
“In any case where a preexisting condition involving the same part of the body is
present and the issue of causal relationship therefore involves aggravation,
acceleration, or precipitation, the physician must provide rationalized medical
opinion which differentiates between the effects of the work-related injury or
disease and the preexisting condition.”8
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that the
acceptance of her claim should be expanded to include right knee osteoarthritis as causally related
to her November 26, 2005 employment injury.
OWCP received several reports from Dr. Wood. In a July 7, 2015 progress note, Dr. Wood
noted a several-week history of new knee pain, which occurred after a day of prolonged standing
and grilling. He noted that appellant had a possible new tear of the anterior horn or lower medial
and chronic patellofemoral syndrome and osteoarthritis of the right knee. However, this report
offered no opinion causally relating her right knee osteoarthritis to the accepted employment
incident. Medical evidence that does not offer an opinion regarding the cause of an employee’s
condition is of no probative value on the issue of causal relationship.9
In a report dated August 27, 2015, Dr. Wood noted that he had treated appellant for several
years for her right knee condition, which she aggravated while working for the employing
establishment. He explained that, although she suffered from preexisting osteoarthritis of her
patellofemoral joint, he believed that her arthritic symptoms were aggravated by work that
involved squatting, stairs, heavy pushing/pulling, lifting, or walking on grades. The Board notes
that Dr. Wood did not explain pathophysiologically how the November 26, 2005 employment
incident caused or aggravated the diagnosed conditions.10

6

E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

7

M.V., Docket No. 18-0884 (issued December 28, 2018); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Casual Relationship, Chapter 2.805.3(e) (January 2013).

9

A.S., Docket No. 19-0915 (issued November 22, 2019); see L.B., Docket No. 18-0533 (issued August 27, 2018);
D.K., Docket No. 17-1549 (issued July 6, 2018).
10

See K.W., Docket No. 10-0098 (issued September 10, 2010).

5

OWCP also received a September 15, 2015 progress note in which Dr. Wood discussed
appellant’s MRI scan results and noted that she was aware that surgery could worsen her
osteoarthritis symptoms for a prolonged period of time. Dr. Wood did not address whether her
osteoarthritis was related to her work injury. Additionally, he provided treatment notes and reports
dated October 7, 2014 and January 27, July 7, September 15, November 23, and
December 1, 2015. Likewise in a treatment note, dated November 23, 2015, Dr. Wood advised
that appellant reached MMI for her right patellofemoral osteoarthritis. However, all of his reports
are of no probative value as he did not offer an opinion as to the cause of the condition.11
In a May 11, 2017 report, Dr. Beverly noted appellant’s history of injury and treatment and
explained that appellant was seen for right knee pain for over 10 years. Dr. Beverly noted the
history as related by appellant, which included that another physician had diagnosed arthritis. She
diagnosed right knee patellofemoral arthritis, with weakness. However, she did not provide her
own opinion regarding causal relationship. As previously noted, a medical opinion that lacks an
opinion regarding the cause of an employee’s condition is of no probative value on the issue of
causal relationship.12
In a July 18, 2017 report, Dr. Watkins-Campbell noted appellant’s history of injury, which
included complaints of unilateral right knee pain since the date of injury. She found that appellant
had preexisting patellofemoral osteoarthritis in both knees, which existed prior to the injury.
Dr. Watkins-Campbell opined that surgical treatment of the patellar tendinitis is felt to have
directly aggravated the preexisting patellofemoral osteoarthritis in the right knee in excess of the
similar condition present in the left knee. She opined that the inciting traumatic event that occurred
on November 27, 2005 is directly, proximally and causally related to the substantial aggravation
of patellofemoral osteoarthritis in the right knee. Dr. Watkins Campbell indicated that there may
be other causes for this medical problem, but one of the causes is clearly the activities of the work
described as performed by the injured worker as described above. The Board finds that she did
not explain the objective basis for her opinion. Dr. Watkins Campbell did not describe objective
findings documenting an aggravation of the preexisting right knee osteoarthritis following the
surgical procedure.13 A mere conclusion without the necessary rationale explaining how and why
the physician believes that a claimant’s accepted exposure could result in a diagnosed condition is
insufficient to meet a claimant’s burden of proof.
Dr. Fellars, the DMA, in his October 6, 2017 report explained that appellant’s right knee
osteoarthritis was not caused by the work injury of November 26, 2005. He provided an opinion
that her osteoarthritis preexisted the condition and there was no objective evidence that the
arthroscopic surgery performed worsened her osteoarthritis. Furthermore, Dr. Fellars explained
that the natural history of the osteoarthritis was that it worsened over time. He opined that
“[t]herefore, years later, one cannot return to the time of arthroscopy and state that was the cause
for [appellant’s] worsening given that this condition will often worsen with or without surgery.”
The Board finds that Dr. Fellars’ report is based upon a proper history of injury and provides a
well-rationalized opinion as to why the right knee osteoarthritis condition is not a work-related
11

Supra note 9.

12

Id.

13

See J.M., Docket No. 14-1311 (issued April 28, 2015).

6

condition. As there is no other medical evidence of record sufficient to establish that the claim
should be expanded to include this additional condition, the DMA’s report is therefore entitled to
the weight of the medical evidence.
OWCP also received diagnostic reports. However, the Board has explained that diagnostic
studies lack probative value as they do not address whether an employment incident caused the
diagnosed condition.14
Because the medical evidence of record is insufficient to establish causal relationship
between appellant’s right knee osteoarthritis and the accepted employment injury, the Board finds
that she has not met her burden of proof.
On appeal counsel argues that OWCP failed to adjudicate the claim in accordance with the
standard of causation and that OWCP failed to give deference to the findings of the attending
physician. As found above, the medical evidence of record contains no reasoned explanation of
how the November 26, 2005 employment injury aggravated appellant’s preexisting right knee
osteoarthritis.
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 and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that the
acceptance of her claim should be expanded to include right knee osteoarthritis as causally related
to her November 26, 2005 employment injury.

14

F.S., Docket No. 19-0205 (issued June 19, 2019).

7

ORDER
IT IS HEREBY ORDERED THAT the October 18, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 5, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8