United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.G., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, Fairton, NJ, Employer
__________________________________________

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Appearances:
Jason S. Lomax, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1866
Issued: March 5, 2018

Case Submitted on the Record

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

JURISDICTION
On August 29, 2017 appellant, through counsel, filed a timely appeal from a March 2,
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 the 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.

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from March 2, 2017, the date of OWCP’s last decision was
August 29, 2017. Since using September 1, 2017, the date the appeal was received by the Clerk of the Appellate
Boards would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of
the U.S. Postal Service postmark is August 29, 2017, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

ISSUE
The issue is whether appellant has met his burden of proof to establish a right knee injury
causally related to an accepted August 4, 2014 employment incident.
FACTUAL HISTORY
On August 7, 2014 appellant, then a 48-year-old unicor supervisor, filed a traumatic
injury claim (Form CA-1) alleging that, while responding to an emergency alarm on August 4,
2014, he made a sharp left turn and his lower right knee popped. He did not stop work.
On August 18, 2014 appellant was treated by Dr. Thomas A. Dwyer, a Board-certified
orthopedist, for right knee pain that occurred while working as a supervisor for the employing
establishment. He reported that he was responding to an emergency on August 4, 2014, when
his right knee “popped.” Appellant iced his knee overnight, but continued to experience stiffness
and a dull ache under the kneecap. His history was significant for a right knee arthroscopy in
2005. Right knee examination revealed healed arthroscopy portals, crepitation, medial joint line
tenderness, and restricted range of motion. Dr. Dwyer diagnosed pain in the joint, lower leg,
chondromalacia patella, and tear of the medial cartilage of the knee. He injected the right knee
with Xylocaine and provided a wraparound patellofemoral brace. Dr. Dwyer returned appellant
to work without restrictions. On September 22, 2014 he treated appellant for medial side pain of
his right knee. Examination revealed trace effusion, retropatellar crepitation, medial joint line
tenderness, and restricted motion. Dr. Dwyer diagnosed pain in the joint, lower leg,
chondromalacia of the patella, and tear of the medial cartilage or meniscus of knee. He noted the
magnetic resonance imaging (MRI) scan of the right knee confirmed the presence of a medial
meniscus tear and he recommended arthroscopic partial medial meniscectomy.4
On August 25, 2014 appellant was treated by Dr. Vincent Disabella, an osteopath, in
follow up for evaluation of his right knee. He reported the cortisone injection provided limited
relief, but he continued to have medial knee pain and cracking. Findings on examination of the
right knee revealed healed arthroscopy portals, crepitation, medial joint line tenderness, restricted
range of motion, and positive McMurray’s test. Dr. Disabella noted x-ray of the knees revealed
anterior and medical compartment degeneration. He diagnosed pain in the joint, lower leg,
chondromalacia of the patella, and tear of the medial cartilage or meniscus of the knee.
Dr. Disabella recommended a right knee MRI scan and continued full duty with a brace.
On February 2, 2015 Dr. Dwyer treated appellant for persistent right knee pain. He noted
the recommended surgery was not authorized by OWCP. Right knee findings included trace
effusion, slight genuvarum deformity, retropatellar crepitation, medial joint line tenderness, and
limited motion. Dr. Dwyer diagnosed pain in the joint, lower leg, chondromalacia of the patella,
and tear of the medial cartilage or meniscus of knee. He recommended surgery and continued
appellant’s work status without restriction. On April 23, 2015 Dr. Dwyer treated him in follow4
A September 17, 2014 right knee MRI scan revealed severe advanced degenerative changes involving the
medial joint compartment, minimal bone bruises, joint fluid, popliteal cyst, chondromalacia, and linear tear within
the anterior horn of the medial meniscus. An August 22, 2014 right knee x-ray revealed severe osteoarthritic
changes of the knee joint and minimal change of degenerative disease of the left knee joint.

2

up evaluation for the right knee. Appellant reported another episode at work where he twisted
his knee. Findings on examination revealed trace effusion and medial and lateral joint line
tenderness. Dr. Dwyer diagnosed pain in joint lower leg, chondromalacia of the patella, and tear
of the medial cartilage or meniscus. He injected the right knee with Xylocaine and continued his
work status, regular duty wearing the knee brace.
On July 25, 2015 appellant, through counsel, requested that OWCP reopen his case for
development. Counsel noted that appellant’s claim was opened as a short-form closure case, but
that appellant now required further medical care including surgery.
By letter dated August 24, 2015, OWCP advised appellant of the type of evidence needed
to establish his claim, including a physician’s reasoned opinion addressing the relationship of his
claimed condition to his specific employment factors. It also requested that appellant respond to
a development questionnaire to substantiate the factual elements of his claim.
Appellant submitted reports from Dr. Dwyer dated August 18, 2014 to April 23, 2015,
previously of record.
By decision dated September 29, 2015, OWCP denied appellant’s claim for
compensation because the evidence of record did not support that the injury or events occurred
as alleged.
On October 7, 2015 appellant requested a telephone hearing before an OWCP hearing
representative, which was held on June 7, 2016. During the hearing, appellant explained how his
claimed injury occurred.
By decision dated August 18, 2016, an OWCP hearing representative affirmed the
September 29, 2015 decision, as modified. He found that appellant had submitted sufficient
evidence to establish that the employment incident occurred as alleged, but denied the claim
because he failed to establish an injury causally related to factors of his federal employment.
On January 13, 2017 appellant, through counsel, requested reconsideration.
Appellant submitted reports from Dr. Dwyer dated August 19 and December 1, 2016 who
noted that appellant presented with right knee pain that occurred at work on August 4, 2014
when he was responding to an emergency and his right knee “popped.” His history was
significant for a twisting injury to his right knee in 2004. Appellant reported first seeing
Dr. John Bannon, a Board-certified orthopedist, on December 28, 2004. On May 4, 2005
Dr. Bannon performed a right arthroscopic partial medial meniscectomy and shaving of articular
cartilage of the medial femoral condyle. Appellant returned to regular duty and had no follow up
after discharge in July 2005. Dr. Dwyer noted that appellant currently worked as a supervisor
and was required to walk the compound daily and quickly respond to emergency alarms.
Appellant reported that on August 4, 2014, while responding to an emergency, his right knee
popped and he had pain. A Depo-Medrol injection was performed and a brace prescribed. An
MRI scan showed severe advanced degenerative changes in the right medial joint compartment
with associated minimal bone bruises and degenerative cystic change. Dr. Dwyer recommended
an arthroscopic partial medial meniscectomy. On May 18, 2015 appellant had another workrelated twisting injury. A right knee MRI arthrogram showed advanced osteoarthritis.
3

Dr. Dwyer opined that, based on review of all medical and treatments provided, appellant
sustained three work-related injuries to the right knee which contributed to his diagnoses of
osteoarthritis. He opined that the osteoarthritis was directly related to the work injuries and work
demands required to perform appellant’s job.
On March 2, 2017 OWCP denied modification of its August 18, 2016 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 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 of FECA, 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. These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time and place, and in the manner alleged. Second, the employee must submit
medical evidence to establish that the employment incident caused a personal injury.7
Rationalized medical opinion evidence is generally required to establish causal
relationship. 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 identified by the claimant.8
ANALYSIS
It is undisputed that on August 4, 2014 appellant was working as a supervisor and, while
responding to an emergency alarm, he made a sharp left turn and his lower right knee popped.
However, the Board finds that he failed to submit sufficient medical evidence to establish that his
diagnosed medical condition was causally related to the accepted August 4, 2014 employment
incident. On August 24, 2015 OWCP requested that appellant submit a comprehensive report
from his treating physician which included a reasoned explanation as to how the accepted work
incident caused his claimed injury.

5

Supra note 2.

6

Gary J. Watling, 52 ECAB 357 (2001).

7

T.H., 59 ECAB 388 (2008).

8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

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Appellant submitted reports from Dr. Dwyer dated August 19 and December 1, 2016 in
which he reported that his right knee popped on August 4, 2014 while responding to an
emergency. A right knee MRI scan documented severe advanced degenerative changes in the
medial joint compartment and an MRI scan arthrogram showed advanced osteoarthritis. On
May 18, 2015 appellant reported experiencing another work-related twisting injury. Dr. Dwyer
opined that appellant sustained three work-related injuries to the right knee which contributed to
his diagnoses of osteoarthritis. He opined that, within a reasonable degree of medical certainty,
the osteoarthritis was directly related to the work injuries and work demands required to perform
appellant’s job. The Board finds that, although Dr. Dwyer supported causal relationship, he did
not provide medical rationale explaining the basis of his conclusory opinion regarding causal
relationship between appellant’s right knee condition and the August 4, 2014 work incident.9
Rather, Dr. Dwyer attributed appellant’s right knee osteoarthritis to three separate work injuries.
He did not explain the process by which twisting would have aggravated the diagnosed
conditions and why the conditions were not nonwork-related, like age-related degenerative
changes. Medical rationale was particularly necessary given that appellant had preexisting
severe advanced degenerative changes involving the medial joint compartment in his right knee.
As the opinion of appellant’s physician regarding causal relationship was conclusory and
unexplained, it was insufficient to meet appellant’s burden of proof. This report is thus
insufficient to establish appellant’s claim.10
In an August 18, 2014 report, Dr. Dwyer treated appellant for right knee pain that
occurred while working as a supervisor for the employing establishment. Appellant related the
history of the August 4, 2014 work incident and Dr. Dwyer noted appellant’s right knee
arthroscopy in 2005. Dr. Dwyer provided diagnoses and indicated that, with a knee brace,
appellant could work without restriction. On September 22, 2014 and February 2, 2015 he again
treated appellant’s right knee, noting findings, diagnoses, and treatment recommendations.
While Dr. Dwyer repeated the history of injury as reported by appellant, he did not provide his
own opinion regarding whether his condition was work related. To the extent that he is
providing his own opinion, he failed to provide a rationalized opinion regarding causal
relationship between appellant’s right knee condition and the accepted work incident.11
Therefore, this report is insufficient to meet his burden of proof.
On April 23, 2015 Dr. Dwyer treated appellant for another episode at work where he
twisted his right knee. However, he did not provide a history of injury on August 4, 201412 or
9

See T.M., Docket No. 08-0975 (issued February 6, 2009) (a medical report is of limited probative value on the
issue of causal relationship if it contains a conclusion regarding causal relationship which is unsupported by medical
rationale). The Board notes that the present claim involves only the claim for an August 4, 2014 injury.
10

J.M., 58 ECAB 478 (2007) (where the Board found that appellant did not meet his burden of proof in
establishing a work-related right wrist condition where his physician provided only conclusory support for causal
relationship. Medical rationale was particularly necessary given that appellant injured his wrist while lifting luggage
in private employment. As the opinion of appellant’s physician regarding causal relationship was conclusory and
unexplained, it was insufficient to meet appellant’s burden of proof).
11

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).
12

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history or which
are speculative or equivocal in character have little probative value).

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specifically address whether the August 4, 2014 employment incident caused or aggravated a
diagnosed medical condition.13 Rather, Dr. Dwyer referenced another twisting injury at work
which is not before the Board on the present appeal.
The remainder of the medical evidence, including Dr. Disabella’s report and reports of
diagnostic testing, are of limited probative value as they fail to provide a physician’s opinion on
the causal relationship between appellant’s August 4, 2014 work incident and his diagnosed right
knee injury.14 Thus, this evidence is insufficient to meet his burden of proof.
Consequently, the Board finds that appellant failed to submit sufficient medical evidence
to establish that his accepted work incident on August 4, 2014 caused or aggravated a diagnosed
medical condition. He has failed to meet his burden of proof.
On appeal appellant asserts that he submitted sufficient evidence to establish that he was
injured on the job. However, as found, the medical evidence of record does not establish that
his diagnosed medical conditions are causally related to the accepted work incident on
August 4, 2014. Appellant has not submitted a physician’s report which adequately describes
how the incident on August 4, 2014 w a s s u f f i c i e n t t o h a v e caused or aggravated a right
knee injury.15
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a right knee
injury causally related to the accepted August 4, 2014 employment incident.

13
A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).
14

Id.

15

Franklin D. Haislah, supra note 11.

6

ORDER
IT IS HEREBY ORDERED THAT the March 2, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 5, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.V., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
EDWARD HINES, JR. VA HOSPITAL,
Hines, IL Employer
__________________________________________

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Appearances:
Stephanie N. Leet, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0383
Issued: October 4, 2021

Case Submitted on the Record

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

JURISDICTION
On January 19, 2021 appellant, through counsel, filed a timely appeal from a November 24,
2020 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 to consider the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a recurrence of total
disability commencing November 5, 2018 causally related to his accepted September 2, 2015
employment injury.
FACTUAL HISTORY
On September 10, 2015 appellant, then a 60-year-old housekeeping aid, filed a traumatic
injury claim (Form CA-1) alleging that on September 2, 2015 he sustained a knee strain when he
slipped and fell while in the performance of duty.
In a September 2, 2015 report, Dr. Stephen Kalmar, Board-certified in family medicine,
noted that earlier that day, appellant slipped and fell on a wet operating room floor, landing on his
right knee. Appellant had undergone total right knee arthroplasty on June 2, 2015. Dr. Kalmar
diagnosed a right knee contusion.
In a September 23, 2015 attending physician’s report (Form CA-20), Dr. Lukas Nystrom,
a Board-certified orthopedic surgeon, diagnosed a right quadriceps tendon rupture causally related
to the September 2, 2015 employment incident.
On September 29, 2015 Dr. Daniel R. Schmitt, an orthopedic surgeon, performed a
surgical repair of a full-thickness right distal quadriceps tendon tear with hematoma formation.
On October 14, 2015 OWCP accepted the claim for a right knee contusion. It paid
appellant wage-loss compensation on the supplemental rolls commencing October 18, 2015.
On November 17, 2015 OWCP expanded its acceptance of the claim to include
spontaneous rupture of other tendons.
On February 8, 2016 appellant returned to work in a full-time modified-duty position with
work restrictions. He remained under medical treatment.
On January 17, 2017 appellant filed a notice of recurrence (Form CA-2a) claiming a
recurrence of disability commencing January 10, 2017 causally related to the September 2, 2015
employment injury. By decision dated April 28, 2017, OWCP accepted a recurrence of total
disability commencing January 10, 2017.
On June 24, 2018 appellant commenced working in a permanent, full-time modified-duty
position as a time and leave clerk. The job required intermittent standing up to three hours a day,
intermittent walking up to three hours a day, lifting and carrying up to 10 pounds continuously for
up to two hours a day, no working on ladders, and no working on slippery or uneven walking
surfaces.
Appellant presented for treatment at a hospital emergency department on October 22, 2018
for a right knee effusion. Hospital staff ordered a right knee drop lock brace and a new walker.

2

In an October 30, 2018 duty status report (Form CA-17) and Form CA-20 of even date,
Dr. Elaine M. Peplow, a Board-certified internist, diagnosed right patellar and quadriceps tendon
rupture, and cardiomyopathy. She held appellant off work.
On December 11, 2018 appellant claimed compensation (Form CA-7) for disability from
work for the period October 28, 2018 and continuing.
In a December 11, 2018 development letter, OWCP requested that appellant submit
additional evidence in support of his disability claim, including a physician’s opinion supported
by a medical explanation as to the relationship between the claimed period of disability and the
accepted September 2, 2015 employment injury. It afforded him 30 days to respond.
In response, appellant provided a December 20, 2018 report by Dr. Jeffrey Liles, an
orthopedist, who provided a history of June 2, 2015 total right knee arthroplasty, the accepted
September 2, 2015 employment injury, and September 29, 2015 primary extensor mechanism
repair. Dr. Liles noted that appellant was unable to sit for longer than 10 minutes without standing
up or extending his right leg. OWCP also received January 15, 2019 nurse’s notes, medication
lists, and referral forms.
By decision dated February 7, 2019, OWCP denied appellant’s disability claim for the
period November 5, 2018 and continuing, finding that the medical evidence did not support causal
relationship and that Dr. Peplow implicated nonoccupational cardiomyopathy, which was not an
accepted work-related condition.
On February 27, 2019 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review. During the hearing, held on June 10, 2019, appellant
noted that he underwent implantation of a cardiac pacemaker on November 19, 2018 so he could
be cleared for right knee surgery performed on April 2, 2019.
OWCP received orthopedic surgery clinic notes and tracking forms dated from October 25,
2018 through February 22, 2019, signed by Dr. Peplow Dr. Michael W. Perry, an orthopedist
holding appellant off work pending right knee surgery with a preliminary cardiac procedure.
On April 2, 2019 Dr. Nicholas Brown, a Board-certified orthopedic surgeon, performed a
right quadriceps tendon reconstruction with mesh.
In a June 17, 2019 report, Dr. Peplow explained that the November 18, 2018 implantation
of a cardiac pacemaker was required to stabilize appellant’s condition prior to undergoing right
quadriceps tendon reconstruction on April 2, 2019.
In a June 20, 2019 report, Dr. Brown noted that appellant could not actively extend his
right lower extremity, making standing and walking difficult. He explained that while appellant
required cardiac clearance and treatment in order to undergo right extensor mechanism repair, the
right knee problem prevented him from performing full-duty work.
By decision dated July 11, 2019, OWCP’s hearing representative affirmed OWCP’s
February 7, 2019 decision, finding that the medical evidence of record did not support that
appellant stopped work on or about November 5, 2018 due to the accepted employment injury.
3

On April 8, 2020 appellant, through counsel, requested reconsideration. Counsel
contended that the reports of Drs. Peplow and Brown were sufficient to establish causal
relationship between the April 2, 2019 right quadriceps reconstruction and the accepted
employment injury. She submitted additional evidence.
In an August 22, 2019 report, Dr. Brown opined that the April 2, 2019 right extensor
tendon reconstruction was necessitated by the prior right extensor mechanism tear, which made
ambulation very difficult. He explained that appellant had been unable to work since the surgery
as the procedure had a prolonged recovery period.
In reports dated October 24, 2019, Dr. Brown noted that he had taken appellant off from
work effective November 8, 2018 as the accepted right knee conditions had worsened such that
appellant could not walk or stand for more than 10 minutes at a time or sit for more than 30 minutes
at a time without needing to lay down to elevate and extend his leg for 10 minutes. He explained
that appellant could not be medically cleared until he had a cardiac pacemaker impla nted.
Dr. Brown opined that the April 2, 2019 quadriceps tendon reconstruction was a direct
consequence of the accepted employment injury. He explained that, during the June 2, 2015 right
knee total arthroplasty, the quadriceps tendon was “relocated to the right side of the knee instead
of attaching it the recommended way across the knee because the tendon would not stretch far
enough.” After appellant returned to work, repetitive walking overstretched the tendon and caused
instability in the knee joint. The April 2, 2019 surgery was needed to remove the damaged tendon
and replace it with mesh.
By decision dated April 13, 2020, OWCP denied modification of the July 11, 2019
decision, finding that appellant had not established a recurrence of disability commencing
November 5, 2018.
On August 12, 2020 appellant, through counsel, requested reconsideration. Counsel
contended that new medical evidence established appellant’s claim for recurrence of disability and
wage-loss compensation. She submitted additional evidence.
In a June 11, 2020 report, Dr. Brown noted that appellant had “an extensor mechanism tear
(Quadriceps tendon) after a total knee arthroplasty which underwent primary repair.” The extensor
mechanism disruption was a severe complication requiring further surgical intervention.
Dr. Brown opined that “[t]herefore, further injury to the extensor mechanism and further surgery
[was] related to his original injury.”
In a July 13, 2020 report, Dr. Peplow opined that the accepted right knee conditions
worsened in November 2018 such that appellant was unable to perform his modified-duty position
effective November 5, 2018. She noted that it took appellant 20 minutes to walk from the parking
lot to his desk and he “could not walk long enough to get to his office, nor could [appellant] sit at
his desk for multiple hours since he could not properly elevate his knee as was necessary. ”
By decision dated November 24, 2020, OWCP denied modification of its April 13, 2020
decision.

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LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
compensable injury or illness and without an intervening injury or n ew exposure in the work
environment. 3 This term also means an inability to work because a light-duty assignment made
specifically to accommodate an employee’s physical limitations, and which is necessary because
of a work-related injury or illness, is withdrawn or altered so that the assignment exceeds the
employee’s physical limitations. A recurrence does not occur when such withdrawal occurs for
reasons of misconduct, nonperformance of job duties, or a reduction-in-force.4
OWCP’s procedures provide that a recurrence of disability includes a work stoppage
caused by a spontaneous material change in the medical condition demonstrated by objective
findings. That change must result from a previous injury or occupational illness rather than an
intervening injury or new exposure to factors causing the original illness. It does not include a
condition that results from a new injury, even if it involves the same part of the body previously
injured.5
An employee who claims a recurrence of disability due to an accepted work-related injury
has the burden of proof to establish by the weight of the substantial, reliable, and probative
evidence that the disability for which he or she claims compensation is causally related to the
accepted injury. This burden of proof requires that a claimant furnish medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes that,
for each period of disability claimed, the disabling condition is causally related to the employment
injury, and supports that conclusion with medical reasoning. 6 Where no such rationale is present,
the medical evidence is of diminished probative value.7
When an employee who is disabled from the job he or she held when injured on acc ount
of work-related residuals returns to a limited-duty position or the medical evidence of record
establishes that he or she can perform the limited-duty position, the employee has the burden of
proof to establish by the weight of the reliable, probative, and substantial evidence a recurrence of
total disability and to show that he or she cannot perform such limited -duty work.8 As part of this

3

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

4

Id.

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2b (June 2013); L.B., Docket
No. 18-0533 (issued August 27, 2018).
6

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

7

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

8

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

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burden, the employee must show a change in the nature and extent of the injury -related condition
or a change in the nature and extent of the limited-duty job requirements. 9
ANALYSIS
The Board finds that this case is not in posture for decision.
Appellant submitted reports dated from October 30, 2018 through July 13, 2020 by
Dr. Peplow holding appellant off work. Dr. Peplow explained that while appellant required a
cardiac pacemaker to stabilize his condition prior to April 2, 2019 right quadriceps reconstruction,
he was disabled for work effective November 5, 2018 due to the accepted right knee condition.
Appellant required the additional right knee surgery as he could not walk or sit as required.
Dr. Brown presented detailed medical rationale regarding causal relationsh ip. He
explained that the June 2, 2015 total right knee arthroplasty had relocated the quadriceps tendon
to the right side of the knee. Appellant developed right knee instability as the tendon stretched.
The accepted September 2, 2015 right knee contusion and quadriceps tendon rupture required the
April 2, 2019 surgery to remove the damaged tendon and replace it with surgical mesh. Appellant
had been disabled from work since the surgery as the procedure had a prolonged recovery period.
Dr. Brown clarified that, although appellant required a cardiac pacemaker prior to the April 2,
2019 quadriceps repair, he was disabled from work due to the accepted right knee injury as he
could not walk or stand for more than 10 minutes or sit for more than 30 minutes continuously.
The Board notes that proceedings under FECA are not adversarial in nature and OWCP is
not a disinterested arbiter. While the claimant has the burden of proof to establish entitlement to
compensation, OWCP shares responsibility to see that justice is done. 10 The nonadversarial policy
of proceedings under FECA is reflected in OWCP’s regulations at section 10.121. 11 The Board
finds that, while the reports of Drs. Peplow and Brown are insufficient to meet appellant’s burden
of proof, they raise an uncontroverted inference of causal relation ship between his claimed
recurrence of disability for the period November 5, 2018 and continuing and his accepted
September 2, 2015 employment injury. Further development of appellant’s claim is therefore
required.12
On remand, OWCP shall prepare a statement of accepted facts (SOAF) and refer it,
appellant, and the medical record to a specialist in the appropriate field of medicine for a second
opinion on whether appellant sustained a recurrence of disability commencing November 5, 2018
causally related to the accepted employment injury. 13 Following this and other such further

9

Terry R. Hedman, id.; R.R., Docket No. 20-1338 (issued April 16, 2021).

10

H.T., Docket No. 18-0979 (issued February 4, 2019); John J. Carlone, 41 ECAB 354, 358-60 (1989).

11

20 C.F.R. § 10.121.

12

See C.M., Docket No. 17-1977 (issued January 29, 2019); John J. Carlone, supra note 10.

13

R.R., supra note 9; see F.K., Docket No. 19-1804 (issued April 27, 2020).

6

development as deemed necessary, OWCP shall issue a de novo decision regarding appellant’s
claim for a work-related recurrence of disability.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the November 24, 2020 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: October 4, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.B., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
FACILITIES ENGINEERING COMMAND -STATIONS, San Diego, CA, Employer
__________________________________________

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

Docket No. 14-388
Issued: May 20, 2014

Case Submitted on the Record

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

JURISDICTION
On December 6, 2013 appellant filed a timely appeal from a November 25, 2013 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 established permanent impairment due to his workrelated injuries.
FACTUAL HISTORY
On May 31, 2012 appellant, then a 69-year-old retired boilermaker and boiler plant
operator, filed an occupational disease claim (Form CA-2) alleging that he developed pleural
1

5 U.S.C. § 8101 et seq.

plaques in his lungs as a result of work-related exposure to asbestos. He first became aware of
his condition and of its relationship to his employment on January 10, 2012.
In a November 16, 2012 statement of accepted facts, OWCP reported that appellant
worked as a boilermaker from 1968 to 1974 and worked as a boiler plant operator from 1974 to
1995 when he retired from employment. The employing establishment confirmed that he
participated in an asbestos medical surveillance program.
In a January 10, 2012 medical report, Dr. Herman Bruch, Board-certified in internal
medicine and subspecialty in pulmonary disease, reported that appellant underwent a pulmonary
function study on January 10, 2012. He noted that a computerized tomography (CT) scan of the
chest revealed asbestos-related pleural disease and interstitial fibrosis indicative of pulmonary
asbestosis. Dr. Bruch stated that appellant had no complaints of dyspnea and his lung function
showed mild airway obstruction which was probably related to his history of smoking. He found
no evidence of pulmonary emphysema. Upon review of the study and physical examination,
Dr. Bruch diagnosed asbestos-related pleural disease and interstitial fibrosis as a result of
appellant’s federal employment duties.
OWCP referred appellant together with a statement of accepted facts and a series of
questions, for a second opinion examination by Dr. Hsien Wen Hsu, Board-certified in internal
medicine and subspecialty in pulmonary disease.
On January 10, 2013 appellant underwent a spirometry and pulmonary function analysis
by Dr. Kristina Kramer, Board-certified in internal medicine and subspecialty in critical care
medicine and pulmonary disease. The test revealed a forced vital capacity (FVC) of 3.76 liters
(L) or 107 percent of predicted, a forced expiratory value in the first second (FEV1) of 2.55 L or
93 percent of predicted and a diffusing capacity of carbon monoxide (DLco) of 22 millimeters
(mm) per minute or 83 percent of predicted. The ratio of FEV1 to FVC was 68 percent with no
significant change with bronchodilators. Dr. Kramer found mild isolated obstruction with wellpreserved lung volumes and gas exchange.
In a January 30, 2013 report, Dr. Hsu examined appellant and reviewed the case record
and pulmonary function analysis. He opined that appellant had asbestos-related pleural disease
and interstitial fibrosis due to work-related exposure based on findings of pleural thickening and
mild interstitial infiltrate noted on both his chest CT and chest x-ray. Dr. Hsu diagnosed pleural
plaque with presence of asbestos and pulmonary asbestosis. He reported that appellant continued
to suffer from work-related exposure and his pleural disease and lung fibrotic changes would
likely continue to worsen throughout his lifetime. In accordance with the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides), Dr. Hsu opined that appellant’s degree of impairment was class 0. An FVC equal or
above 80 percent (107 percent predicted in his case), FEV1 equal or greater than 80 percent (93
percent predicted) and a DLco above 75 percent (83 percent predicted) resulted in no ratable
impairment despite appellant’s subjective complaints.2

2

A.M.A., Guides (2009).

2

In an October 18, 2013 report, Dr. Emeka Eziri, an OWCP consultant Board-certified in
pulmonary disease, reported that review of appellant’s medical reports revealed asbestos-related
pleural disease and interstitial fibrosis without pulmonary emphysema. Based on the sixth
edition of the A.M.A., Guides, he noted no symptoms of dyspnea, no objective physical findings
based on normal pulmonary function testing. Dr. Eziri agreed with Dr. Hsu’s determination that
appellant had a class 0 impairment rating for pulmonary dysfunction which did not represent a
permanent impairment.3
By decision dated November 25, 2013, OWCP denied appellant’s claim for a schedule
award. It found that the medical evidence was not sufficient to establish that he sustained any
permanent impairment to the lungs based on his asbestos exposure.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use of scheduled members or functions of the body.4 However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.5 For decisions after May 1, 2009, the sixth
edition of the A.M.A., Guides is used to calculate schedule awards.6
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).7 Chapter 5 of the A.M.A., Guides addresses the framework to be used for
addressing the pulmonary system.8 Table 5-4, Pulmonary Dysfunction, describes four classes of
pulmonary dysfunction based on an assessment of history, physical findings and objective tests,
including a comparison of observed values for certain ventilatory function measures and their
respective predicted values.9 The appropriate class of impairment is determined by the observed
values for either the FVC, FEV1 or DLco, measured by their respective predicted values. If one
of the three ventilatory function measures, FVC, FEV1 or DLco or the ratio of FEV1 to FVC,
3

Id. at 88, Table 5-4.

4

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

5

K.H., Docket No. 09-341 (issued December 30, 2011). For decisions issued after May 1, 2009, the sixth edition
will be applied. B.M., Docket No. 09-2231 (issued May 14, 2010).
6

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
7

Supra note 2 at 3, section 1.3, The ICF, Disability and Health: A Contemporary Model of Disablement.

8

Id. at 77-99.

9

Id. at 88.

3

stated in terms of the observed values, is abnormal to the degree described in classes 2 to 4, then
the individual is deemed to have an impairment which would fall into that particular class of
impairments, either class 2, 3 or 4, depending on the severity of the observed value.10
OWCP’s procedures provide that all claims involving impairment of the lungs will be
evaluated by first establishing the class of respiratory impairment, following the A.M.A., Guides
as far as possible. Awards are based on the loss of use of both lungs and the percentage for the
applicable class of whole person respiratory impairment will be multiplied by 312 weeks (twice
the award for loss of function of one lung) to obtain the number of weeks payable in the schedule
award.11 The procedures further provide that, after obtaining all necessary medical evidence, the
file should be routed to the medical adviser for an opinion concerning the nature and percentage
of impairment in accordance with the A.M.A., Guides, with the medical adviser providing
rationale for the percentage of impairment specified.12
ANALYSIS
OWCP accepted appellant’s claim for bilateral asbestosis.
By decision dated
November 25, 2013, it denied his claim for a schedule award as the medical evidence was not
sufficient to establish that he sustained any permanent impairment to his lungs. The Board finds
that appellant has not met his burden of proof to establish that he sustained a permanent
impairment due to his work-related bilateral asbestosis.13
In a January 30, 2013 report, Dr. Hsu reviewed the January 10, 2013 pulmonary function
analysis and opined that appellant had asbestos-related pleural disease and interstitial fibrosis due
to his work-related exposure. Based on the sixth edition of the A.M.A., Guides, he determined
that appellant’s degree of impairment was class 0. An FVC equal or above 80 percent (107
percent predicted), FEV1 equal or greater than 80 percent (93 percent predicted) and a DLco
above 75 percent (83 percent predicted) resulted in no impairment despite appellant’s subjective
complaints.14
Dr. Eziri reviewed Dr. Hsu’s report and the pulmonary function analysis. He agreed that
appellant’s asbestos-related pleural disease and interstitial fibrosis resulted in no permanent
impairment under class 0. Dr. Eziri found no symptoms of dyspnea and no physical findings of
current disease. Objective tests also established a class 0 impairment rating as appellant’s 107
percent FVC was above 80 percent, the 93 percent FEV1 was above 80 percent and the 83
percent DLco was above 75 percent resulting in objective findings of normal pulmonary function
testing.15 Dr. Eziri provided a well-reasoned report based on a proper factual and medical
10

Id.

11

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4(d)(1) (January 2010).

12

Supra note 6, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6(f)
(February 2013).
13

J.P., Docket No. 06-683 (issued October 23, 2006).

14

Supra note 9.

15

Id.

4

history and included detailed findings and rationale supporting his opinion. Based on Table 5-4,
he properly found that appellant had a class 0 impairment rating for pulmonary dysfunction
which did not demonstrate a permanent impairment.16 As the record does not provide any
medical opinion finding that appellant sustained permanent impairment of his lung as a result of
his employment injury, the Board finds that OWCP properly denied his claim for a schedule
award.17
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish entitlement to
a schedule award for permanent impairment.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated November 25, 2013 is affirmed.
Issued: May 20, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

16

Id.

17

James R. Bender, Docket No. 04-997 (issued August 2, 2004).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Milwaukee, WI, Employer
__________________________________________

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

Docket No. 09-2356
Issued: June 18, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 23, 2009 appellant filed a timely appeal from May 5 and August 24, 2009
merit decisions of the Office of Workers’ Compensation Programs denying his claim for
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the case.
ISSUE
The issue is whether appellant established that he sustained an injury causally related to
the factors of his federal employment.
On appeal, appellant contends that his injury is employment related and was caused by
on-the-job lifting.
FACTUAL HISTORY
On February 23, 2009 appellant, then a 39-year-old postal worker, filed an occupational
disease claim (Form CA-2) alleging that he sustained a hernia due to daily lifting of heavy
parcels and bundles of magazines at work. He also stated that he lifted several parcels weighing

approximately 50 pounds. Although appellant felt some strain, he did not realize he hurt himself
until February 8, 2009.
By letter dated March 11, 2009, the Office notified appellant of the deficiencies in his
claim and requested that he submit medical evidence.
On February 10, 2009 Dr. William F. DiGilio, a Board-certified surgeon, stated that
appellant presented with a bulge in the right groin area. Examination showed a slight bulge in
the suprapubic area by palpation. Dr. DiGilio diagnosed a primary right inguinal hernia. He
discussed surgical options and scheduled appellant for an open repair on February 25, 2009. In
an attending physician’s report dated March 16, 2009, Dr. DiGilio provided a diagnosis of right
inguinal hernia. Where asked whether the condition was caused or aggravated by an
employment activity, he stated that he was unsure and that appellant was seen at another office
prior to the referral.
By decision dated May 5, 2009, the Office denied appellant’s claim on the grounds that
the medical evidence did not establish that he experienced an injury causally related to the
factors of his federal employment.
On May 27, 2009 appellant filed a request for a review of the written record by an Office
hearing representative. In a May 18, 2009 letter, he stated that the daily lifting of heavy parcels
caused his injury. Appellant further stated that on February 8, 2009 he lifted a black military tote
weighing approximately 60 pounds and felt a strain in his groin. That evening, he noticed a
bulge in his right groin area and was subsequently advised by his physician that he had a hernia.
Appellant submitted a document stating that most hernias develop at weak spots in the
abdominal wall and may be caused by heavy lifting. He also provided an operative report for a
February 25, 2009 inguinal hernia repair.
By decision dated August 24, 2009, an Office hearing representative affirmed the May 5,
2009 decision finding that appellant did not submit sufficient medical evidence to show that his
hernia was causally related to the factors of his employment.
LEGAL PRECEDENT
An employee seeking compensation under the Federal Employees’ Compensation Act1
has the burden of establishing the essential elements of his claim by the weight of the reliable,
probative and substantial evidence,2 including that he is an “employee” within the meaning of
the Act3 and that he filed his claim within the applicable time limitation.4 The employee must
1

5 U.S.C. §§ 8101-8193.

2

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
57 (1968).
3

See M.H., 59 ECAB ___ (Docket No. 08-120, issued April 17, 2008); Emiliana de Guzman (Mother of Elpedio
Mercado), 4 ECAB 357, 359 (1951); see 5 U.S.C. § 8101(1).
4

R.C., 59 ECAB ___ (Docket No. 07-1731, issued April 7, 2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954);
see 5 U.S.C. § 8122.

2

also establish that he sustained an injury in the performance of duty as alleged and that his
disability for work, if any, was causally related to the employment injury.5
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, 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 employee.7
ANALYSIS
The issue is whether appellant established that he sustained a hernia causally related to
his employment duties, including heavy lifting. The Board finds he has not provided sufficient
medical evidence to support his claim and thus failed to meet his burden of proof.
Appellant submitted a February 25, 2009 operative report for an inguinal hernia repair.
This report does not address the cause of the hernia and is therefore of diminished probative
value.8 Appellant also provided a document stating that most hernias develop at weak spots in
the abdominal wall and may be caused by heavy lifting. The Board has held that textual
evidence has little probative value in resolving questions unless a physician shows the
applicability of the general medical principles discussed in the text to the specific factual
situation at issue in the case.9 Therefore, this document is also of diminished probative value as
it is not accompanied by a physician’s report addressing appellant’s medical situation and work
factors.10
On February 10, 2009 Dr. DiGilio diagnosed a primary right inguinal hernia and
scheduled surgery. In a March 16, 2009 report, he stated that he was unsure whether this
5

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

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

7

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
8

See Robert Broome, 55 ECAB 339 (2004); Conard Hightower, 54 ECAB 796 (2003).

9

Ruby I. Fish, 46 ECAB 276 (1994). See Edna C. Drinkwine, 10 ECAB 511, 514 (1959).

10

See Gloria J. McPherson, 51 ECAB 441 (2000).

3

condition was caused or aggravated by employment factors as appellant was initially seen at
another office. This evidence is not sufficient to establish appellant’s claim as Dr. DiGilio did
not provide an opinion, based on reasonable medical certainty, that the hernia was causally
related to appellant’s employment.11 Rather, Dr. DiGilio stated that he was unsure whether the
condition was employment related and noted that appellant was initially seen at another office
prior to his surgical referral. Appellant did not submit medical reports relating to his initial
medical appointment or any other evidence providing a rationalized opinion that he sustained the
hernia due to his employment factors.12 Therefore, the Board finds that he has not met his
burden of proof in establishing his claim.
CONCLUSION
The Board finds that appellant did not establish that he sustained an injury causally
related to the factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the August 24 and May 5, 2009 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: June 18, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

11

See Kathy A. Kelley, 55 ECAB 206 (2004).

12

See Victor J. Woodhams, supra note 7.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Newbury, OH, Employer
__________________________________________

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

Docket No. 07-879
Issued: September 5, 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 February 12, 2007 appellant filed a timely appeal from the January 16, 2007 merit
decision of the Office of Workers’ Compensation Programs’ hearing representative, who
affirmed the denial of her recurrence claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to review the merits of appellant’s claim.
ISSUE
The issue is whether appellant sustained a recurrence of disability beginning January 28,
2006 causally related to her accepted employment injuries.
FACTUAL HISTORY
On April 26, 2002 appellant, then a 36-year-old rural carrier associate, filed a claim
alleging that her left shoulder condition, with spurs, was a result of her federal employment: “I
have been receiving treatment for carpal tunnel, trigger thumb and de Quervain’s tenosynovitis

of the left arm and after having the surgeries for all three my arm still continued to hurt.”1 She
stopped work on April 23, 2002. The Office accepted appellant’s claim for impingement
syndrome of the left shoulder.2 On January 31, 2005 she underwent an arthroscopic subacromial
decompression and arthroscopic Mumford procedure on her left shoulder. Appellant returned to
full duty without restrictions on July 23, 2005.
On November 23, 2005 appellant filed a claim alleging a recurrence of disability due to
her left shoulder injury. She complained that performing the same duties that caused her original
injury was currently causing swelling, soreness, sharp pains, aching and limited mobility.
Appellant alleged that her current condition was related to the original injury because she was
performing the same duties with a shoulder that did not have enough time to heal or regain full
range of motion. On January 31, 2006 she filed a claim for compensation for wage loss
beginning January 28, 2006.
Dr. Gregory C. Sarkisian, appellant’s orthopedic surgeon, reported on January 31, 2006
that appellant presented with multiple complaints, mainly left wrist pain and swelling of the
hand. After describing his findings on physical and x-ray examination, he stated that appellant
was unable to work because of severe pain.
On February 14, 2006 Dr. Sarkisian reported that a magnetic resonance imaging scan
showed some persistent inflammation at the acromioclavicular (AC) joint. He reported that
appellant had some tendinitis present and that the AC joint appeared to still have some minimal
impingement of the rotator cuff. Dr. Sarkisian also noted some minimal arthritic changes at the
AC joint. He stated that appellant did not have a cuff tear, but if an injection did not offer her
great relief, he stated that he would consider repeat surgical intervention.
On February 28, 2006 Dr. Sarkisian reported as follows:
“[Appellant] admits that the injection in her shoulder did not help much at all.
She still has pain mainly at the AC joint level and decreased range of motion. I
do feel that [appellant] would benefit from a diagnostic and probable therapeutic
repeat [arthroscopic subacromial decompression] and Mumford to decrease the
impingement in her shoulder and to reevaluate the rotator cuff. She has failed
other options and I feel that this is something that may very well help her long
term. I also feel that this is certainly related to [appellant’s] initial problem of
impingement from her diagnosis in 2002. I feel that she has aggravated her
shoulder again by doing her activities at work and this should be part of her
workmen’s compensation claim.”
On March 21, 2006 Dr. Sheldon Kaffen, an orthopedic surgeon and Office referral
physician, offered a different opinion. He reported that, although appellant complained of severe
1

Appellant filed an occupational disease claim in 2001, which the Office accepted for bilateral carpal tunnel
syndrome, bilateral de Quervain’s synovitis and bilateral trigger thumbs. She underwent surgeries and returned to
restricted duty on February 1, 2002. OWCP File No. 092006370.
2

OWCP File No. 092022173.

2

pain, there were no objective findings to indicate that she continued to suffer residuals of the
accepted left shoulder condition. Dr. Kaffen stated:
“Based on the current examination and review of the medical documentation, it is
my opinion that there are no objective residuals to indicate that the claimant
continues to suffer residuals of carpal tunnel syndrome of the right wrist,
de Quervain’s tenosynovitis of the right wrist and right trigger thumb. In
addition, it is my opinion, the claimant no longer exhibits objective findings to
indicate she continues to experience residuals of the accepted condition of carpal
tunnel syndrome of the left wrist, left trigger thumb and impingement of the left
shoulder. She continues to experience objective findings and residuals of the
accepted condition of de Quervain’s tenosynovitis of the left wrist, i.e., limitation
of motion, positive Finkelstein sign and marked tenderness over the radial
extensor tendon. Therefore, it is my opinion to a reasonable degree of medical
certainty, based on the history, physical examination and review of medical
documentation that the only condition which has persisted in the de Quervain’s
tenosynovitis of the left wrist.”
Dr. Kaffen reported that appellant’s work-related de Quervain’s tenosynovitis continued
to disable her from performing the duties of a rural letter carrier, as she could not use her left
hand or wrist for holding objects or sorting mail. It was also his opinion that appellant was
capable of working full time with restrictions. He felt that appellant needed no treatment for her
left shoulder.
In a May 12, 2006 decision, the Office denied appellant’s recurrence of disability claim.
The Office found that the weight of the medical evidence rested with the opinion of Dr. Kaffen,
who found that appellant could work with restrictions. The Office noted that Dr. Sarkisian did
not reply to a request for comment on Dr. Kaffen’s examination.
Appellant requested an oral hearing before an Office hearing representative, which was
held on November 8, 2006. She submitted a May 30, 2006 report from Dr. Sarkisian:
“I reviewed the medical examiner’s report of Dr. Kaffen, dated March 21, 2006. I
do agree that [appellant] continues to suffer from symptoms in the left upper
extremity including that of what appears to be de Quervain’s stenosing
tenosynovitis of the left wrist and continued pain in the left shoulder which at
times seems more subjective [than] objective. We have attempted to return [her]
to restricted duties in the employing establishment without success due to her
continued pain and inability to perform even restricted duties.”
On October 16, 2006 Dr. Sarkisian again commented on Dr. Kaffen’s findings:
“I have recently read Dr. Kaffen’s report on [appellant] and do disagree with his
findings. I do agree with the statement regarding her left wrist that she does
continue to have problems and may benefit from further treatment including
injections or possibly even surgical release and revision of the de Quervain’s
release. I also, however, feel that [appellant] is suffering from pain which is quite

3

significant in the left shoulder. The left shoulder pain is clinically quite evident
over the AC joint, causing her discomfort and disability with the left shoulder. I
do feel strongly that [she] would benefit from surgical treatment of her AC joint
including arthroscopy and arthroscopy distal clavicle resection which should
indeed help the symptomatology in the left shoulder. If indeed there is any
additional pathology found in the shoulder at the time of arthroscopy that would
be cared for at the same sitting.
“I do feel with a reasonable degree of medical certainty that [appellant’s]
symptoms in the left shoulder are a direct result of a work injury and I do feel,
again, that she would benefit greatly from arthroscopic treatment of the left
shoulder as stated above with a reasonable degree of medical certainty.”
In a decision dated January 16, 2007, the Office hearing representative affirmed the
denial of appellant’s recurrence claim. The hearing representative modified the Office’s May 12,
2006 decision to find that the issue was whether the accepted work injuries caused a recurrence
of total disability from January 28 to October 26, 2006. The hearing representative found that
Dr. Sarkisian’s reports were insufficient to prove a spontaneous change in appellant’s workrelated medical condition.
LEGAL PRECEDENT
The United States shall pay compensation for the disability of an employee resulting
from personal injury sustained while in the performance of duty.3 “Disability” means the
incapacity, because of an employment injury, to earn the wages the employee was receiving at
the time of injury. It may be partial or total.4 A “recurrence of disability” means an inability to
work after an employee has returned to work, caused by a spontaneous change in a medical
condition which had resulted from a previous injury or illness without an intervening injury or
new exposure to the work environment that caused the illness.5
An individual who claims a recurrence of disability resulting from an accepted
employment injury has the burden of establishing that the disability is related to the accepted
injury. This burden requires furnishing medical evidence from a physician who, on the basis of a
complete and accurate factual and medical history, concludes that the disabling condition is
causally related to the employment injury and who supports that conclusion with sound medical
reasoning.6
A recurrence of disability does not include a condition which results from a new injury,
even if it involves the same part of the body previously injured, or by renewed exposure to the

3

5 U.S.C. § 8102(a).

4

20 C.F.R. § 10.5(f) (1999).

5

Id. at § 10.5(x).

6

Dennis E. Twardzik, 34 ECAB 536 (1983); Max Grossman, 8 ECAB 508 (1956).

4

causative agent of a previously suffered occupational disease. If a new work-related injury or
exposure occurs, Form CA-1 or CA-2 should be completed accordingly.7
ANALYSIS
Appellant’s November 23, 2005 claim does not fit the definition of a recurrence. She
does not allege that her inability to work beginning January 28, 2006 was caused by a
spontaneous change in a medical condition which had resulted from a previous injury or illness
without an intervening injury or new exposure to the work environment that caused the illness.
On the contrary, appellant attributed the swelling, soreness, sharp pains, aching and limited
mobility of her left upper extremity to performing the same duties that caused her original injury.
Her claim, therefore, is in the nature of a new work-related injury. Even though it involves the
same part of the body previously injured, and even though appellant attributes her condition to
new exposure to the causative agent of a previously suffered occupational disease, Office
procedures direct that she should file a Form CA-2, notice of occupational disease and claim for
compensation. The Office hearing representative correctly found that the evidence was
insufficient to prove a spontaneous change in appellant’s work-related medical condition. The
Board will therefore affirm the denial of appellant’s recurrence of disability claim.
CONCLUSION
The Board finds that appellant has not met her burden to establish that she sustained a
recurrence of disability beginning January 28, 2006 causally related to her accepted employment
injuries.

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3.b(2) (May 1997).

5

ORDER
IT IS HEREBY ORDERED THAT the January 16, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 5, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.J., Appellant
and
U.S. POSTAL SERVICE, FAR ROCKAWAY
POST OFFICE, Far Rockaway, NY, Employer
__________________________________________
Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-1044
Issued: March 16, 2022

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On June 30, 2021 appellant, through counsel, filed a timely appeal from an April 2, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards docketed the appeal as No. 21-1044.
On November 20, 2019 appellant, then a 41-year-old city carrier, filed a notice of
recurrence (Form CA-2a) alleging that on October 25, 2019 he sustained a recurrence of disability
and the need for medical treatment causally related to his accepted January 10, 2018 employment
injury,2 after his return to light-duty work. He related that his left hip degenerative joint disease
was caused by work-related activities including, sitting on a folding chair, walking, and loading
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

The record reflects that appellant has an accepted traumatic injury claim (Form CA-1) for left hip tear sustained
on January 10, 2018 following a slip and fall on ice. Appellant returned to work following this injury on
October 1, 2019. OWCP assigned this claim File No. xxxxxx514.

parcels into a postal container, however, that he had not sustained any injury between January 10,
2018 and October 7, 2019. Appellant stopped work on October 25, 2019. OWCP assigned this
claim No. xxxxxx572.
In an October 30, 2019 report, Dr. Donald Rose, a Board-certified orthopedic surgeon,
noted that appellant was approximately one year and six months status postoperative left hip
arthroscopy. He noted that appellant had returned to work and that he was working outside his
recommended restrictions. Dr. Rose explained appellant’s pain occurred when he increased
activities, which was consistent with arthritic changes.
In a November 12, 2019 report, Dr. Craig Capeci, a Board-certified orthopedic surgeon,
diagnosed left hip degenerative joint disease. He noted that appellant’s left hip pain related back
to a January 2018 work injury when he injured his left hip while slipping and falling on ice.
Dr. Capeci reported that appellant returned to work in September 2019 following the January 2018
work injury. Appellant stopped work after three weeks as his pain progressively worsened. He
explained that appellant had left hip arthritis in the setting of his 2018 left hip injury and labral
tear.
In a letter dated February 19, 2020, the employing establishment requested OWCP
adjudicate appellant’s recurrence claim as a new occupational disease claim based on his
identification of new work factors as the cause of his alleged condition. OWCP subsequently
converted the claim from a recurrence to an occupational disease claim.
By decision dated May 5, 2020, OWCP denied appellant’s occupational disease claim,
finding that the medical evidence did not demonstrate that the claimed condition was causally
related to the accepted employment factors.
On January 11, 2021 appellant, through counsel, requested reconsideration and submitted
an August 19, 2020 report from Dr. Capeci.
Dr. Capeci, in his August 19, 2020 report, summarized appellant’s treatment from June 4,
2018 through August 19, 2020. Diagnoses included status post left hip arthroscopy and left hip
degenerative joint disease. Dr. Capeci opined that it was reasonable to attribute appellant’s left
hip degenerative joint disease to the accepted January 10, 2018 employment injury.
By decision dated April 2, 2021, OWCP denied modification. It found that Dr. Capeci’s
report did not discuss the claimed work factors, but rather explained that appellant’s left hip
condition was caused by the traumatic event of January 10, 2018, which was already accepted for
left hip strain and was currently open for medical care.

2

The Board, having duly considered the matter, finds that the case is not in posture for
decision.3
The Board finds that OWCP’s procedures provide that cases should be administratively
combined when correct adjudication of the issues depends on frequent cross-referencing between
case files.4 For example, if a new injury case is reported for an employee who previously filed an
injury claim for a similar condition or the same part of the body, doubling is required.5
As OWCP File Nos. xxxxxx572 and xxxxxx514 both involve injuries to appellant’s left
hip, for a full and fair adjudication, the Board will remand the case to OWCP to administratively
combine the present claim with OWCP File No xxxxxx514.6 This will allow OWCP to consider
all relevant claim files and accompanying evidence in developing his current compensation claim.
Following this and other such further development as deemed necessary, OWCP sha ll issue a
de novo decision.

3

The Board notes that appellant filed his claim as one for a recurrence of his accepted condition under OWCP File
No. xxxxxx514. Dr. Capeci reported that appellant’s current condition was causally related to appellant’s accepted
January 10, 2018 employment injury under OWCP File No. xxxxxx514. However, OWCP converted appellant’s
recurrence claim, which was filed within 90 days of the first return to work, to a claim for occupational disease and
denied it as appellant had not established causal relationship. In cases where a recurrence is claimed within 90 days
of the first return to duty, the focus is on disability rather than causal relationship of the accepted condition(s) to the
work injury. Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5 (June 2013); see
also R.E., Docket No. 20-0421 (issued May 17, 2021); R.W., Docket No. 17-0720 (issued May 21, 2018).
4

R.R., Docket No. 19-0368 (issued November 26, 2019); Federal (FECA) Procedure Manual, Part 2 -- Claims, File
Maintenance & Management, Chapter 2.400.8c (February 2000).
5

L.B., Docket No. 21-0241 (issued October 28, 2021).

6

T.T., Docket No. 21-0049 (issued May 3, 2021); S.D., Docket No. 19-0590 (issued August 28, 2020).

3

IT IS HEREBY ORDERED THAT the April 2, 2021 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this order of the Board.
Issued: March 16, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
H.G. HEFNER VETERANS MEDICAL
CENTER, Salisbury, NC, Employer
__________________________________________

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

Docket No. 19-1441
Issued: January 28, 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 June 24, 2019 appellant, through counsel, filed a timely appeal from a May 24, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a left shoulder
condition causally related to the accepted September 5, 2018 employment incident.
FACTUAL HISTORY
On September 10, 2018 appellant, then a 54-year-old nursing assistant, filed a traumatic
injury claim (Form CA-1) alleging that on September 5, 2018 she sustained a left shoulder injury
while dressing a large patient who suffered from dementia. She stopped work on September 6,
2018 and then returned to full-time regular-duty work on September 12, 2018. On the reverse side
of the claim form, the employing establishment controverted appellant’s claim, asserting that she
had not provided medical evidence to support a work-related injury.
In support of her claim, appellant subsequently submitted a September 6, 2018 report from
Sylvia D. Dickerson, a family nurse practitioner, who indicated that appellant was seen in her
clinic that day and was released to work effective September 11, 2018.
In a September 18, 2018 development letter, OWCP requested that appellant provide
additional factual and medical information in support of her claim, including a detailed factual
statement and a report from her attending physician addressing causal relationship between any
diagnosed condition(s) and the claimed September 5, 2018 work incident. Appellant was afforded
30 days to submit the necessary evidence.
In response, appellant submitted a progress report dated September 6, 2018 from
Ms. Dickerson who related that appellant had acute pain of left shoulder.
OWCP also received a magnetic resonance imaging (MRI) scan of appellant’s left shoulder
dated September 28, 2018 which demonstrated high-grade (near complete) partial-thickness
tearing of the ventral supraspinatus tendon and prominent infraspinatus tendinopathy.
By decision dated October 23, 2018, OWCP found that the factual evidence was
insufficient to establish that the September 5, 2018 incident occurred at the time, place, and in the
manner alleged. It also determined that the medical evidence of record was insufficient to establish
that appellant sustained a diagnosed condition causally related to the alleged employment incident.
Appellant subsequently submitted a work status form dated October 23, 2018 from
Dr. Thomas A. Ginn, a Board-certified orthopedic hand surgeon, who released her to work with
restrictions of no use of the left hand/arm and recommended surgery.
In an October 23, 2018 narrative report, Dr. Ginn indicated that appellant was seen for left
shoulder pain due to an injury in September 2018. He reviewed appellant’s left shoulder MRI scan
and diagnosed left rotator cuff tear. Dr. Ginn noted that he had recommended appellant only
perform one-handed employment duties. He also summarized their discussion regarding the
option for surgical treatment.
On November 6, 2018 appellant requested an oral hearing before a hearing representative
of OWCP’s Branch of Hearings and Review.
2

A telephonic hearing was held before an OWCP hearing representative of the Branch of
Hearings and Review on March 11, 2019. Appellant provided testimony and the hearing
representative held the case record open for 30 days for the submission of additional evidence.
OWCP subsequently received a report dated February 12, 2019, wherein Dr. Ginn related
that appellant could return to light duty with restrictions of no lifting over 15 pounds with the left
arm, and no repetitive or excessive activity.
Appellant subsequently submitted a report dated March 18, 2019 from Dr. Ginn who
indicated that appellant developed shoulder pain while at work on September 5, 2018, was
eventually diagnosed with a rotator cuff tear, and had undergone surgery. Dr. Ginn opined that
her job placed her at a higher risk than the general population for shoulder pathology. He explained
that appellant’s repetitive pushing, pulling, and lifting placed her shoulder at a higher risk of
developing rotator cuff disease/tearing.
In a March 26, 2019 report, Dr. Ginn asserted that appellant was progressing from left
shoulder surgery and advised her to continue light duty with a 20-pound restriction on the left. He
also advised that she not perform overhead work on the left side. Dr. Ginn anticipated her full
release to work after two months.
By decision dated May 24, 2019, OWCP’s hearing representative affirmed, as modified,
the prior decision. He found that appellant had established that the September 5, 2018 incident
occurred as alleged, but that the medical evidence of record was insufficient to establish that her
diagnosed left shoulder condition(s) were causally related to the accepted September 5, 2018
employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence, including the fact that the individual is an employee of the United States within the
meaning of FECA, that the claim was timely filed within the applicable time limitation period of
FECA, that an 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.4 These are the essential elements of every compensation claim regardless of whether the
claim is predicated on a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
3

Id.

4

K.V., Docket No. 18-0947 (issued March 4, 2019); M.E., Docket No. 18-1135 (issued January 4, 2019); Kathryn
Haggerty, 45 ECAB 383, 388 (1994).
5

K.V. and M.E., id.; Elaine Pendleton, 40 ECAB 1143 (1989).

3

time, place, and in the manner alleged.6 Second, the employee must submit medical evidence to
establish that the employment incident caused a personal injury.7
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.8 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.9 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).10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a left shoulder
condition causally related to the accepted September 5, 2018 employment incident.
OWCP received a number of reports from Dr. Ginn in support of appellant’s claim. In
several work status reports dated October 23, 2018, February 12, and March 26, 2019, Dr. Ginn
noted appellant’s work restrictions, but offered no history of injury, diagnosis or opinion regarding
causal relationship.11 The Board has held that a medical opinion should reflect a correct history
and offer a medically sound explanation by the physician of how the specific employment incident
caused or aggravated the diagnosed conditions.12 Lacking these elements, these reports are
insufficient to establish appellant’s claim.
In a narrative report dated October 23, 2018, Dr. Ginn noted that appellant had experienced
left shoulder pain after an injury on September 15, 2018 and he diagnosed left rotator cuff tear.
The Board finds, however, that Dr. Ginn did not provide an opinion on causal relationship between
the specific alleged employment incident and the diagnosed left shoulder condition. The Board
has held that medical evidence that does not offer an opinion regarding the cause of an employee’s
condition is of no probative value on the issue of causal relationship.13
While, in his March 18, 2019 report, Dr. Ginn attempted to further explain causal
relationship, his opinion was still insufficient to establish appellant’s claim. He related that
appellant was diagnosed with left shoulder rotator cuff tear, that her job placed her at higher risk
6

G.C., Docket No. 18-0506 (issued August 15, 2018).

7

Id.

8

A.M., Docket No. 18-1748 (issued April 24, 2019); T.H., 59 ECAB 388, 393 (2008).

9

M.V., Docket No. 18-0884 (issued December 28, 2018).

10

Id.; Victor J. Woodhams, 41 ECAB 345, 352 (1989).

11

T.M., Docket No. 19-1283 (issued December 2, 2019).

12

Id., see also J.M., Docket No. 17-1002 (issued August 22, 2017).

13

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

4

than the general population for shoulder pathology, and that appellant’s repetitive pushing, pulling
and lifting place her at a higher risk for developing rotator cuff disease/tearing. Dr. Ginn did not,
however, identify the specific September 5, 2018 employment incident, and he did not provide a
pathophysiological explanation as to what accepted incident caused or contributed to the diagnosed
conditions therefore this opinion lacks the specificity and detail needed to establish appellant’s
claim. Thus, his reports are insufficient to meet appellant’s burden of proof.14
Appellant further submitted reports from a family nurse practitioner. The Board has held
that medical reports signed solely by a nurse practitioner are of no probative value as such health
care providers are not considered physicians as defined under FECA and are therefore not
competent to provide medical opinions.15 Consequently, this evidence is also insufficient to
establish appellant’s claim.
Appellant also submitted a September 28, 2018 MRI scan in support of her claim. The
Board has held that diagnostic studies lack probative value as they do not provide an opinion on
causal relationship between the employment incident and appellant’s diagnosed conditions.16 This
report is therefore also insufficient to establish appellant’s claim.
As appellant has not submitted rationalized medical evidence sufficient to establish that
her left shoulder condition was causally related to the accepted employment incident, she has not
met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a left shoulder
condition causally related to the accepted September 5, 2018 employment incident.

14

See T.R., Docket No. 18-1272 (issued February 15, 2019).

15
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); T.A., Docket No. 19-1030 (issued
November 22, 2019) (nurse practitioners are not considered physicians under FECA).
16

I.C., Docket No. 19-0804 (issued August 23, 2019).

5

ORDER
IT IS HEREBY ORDERED THAT the May 24, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 28, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, CHICAGO MIDWAY
AIRPORT, Chicago, IL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0660
Issued: October 15, 2021

Case Submitted on the Record

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

On March 13, 2021 appellant filed a timely appeal from a September 16, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). 1 The Clerk of the Appellate
Boards assigned Docket No. 21-0660.
On September 26, 2019 OWCP advised appellant of its preliminary overpayment
determination that he had received a $6,038.06 overpayment of compensation for the period
June 1, 2014 through August 17, 2019 because he received wage-loss compensation under the
Federal Employees’ Compensation Act2 (FECA) and age-related retirement benefits from the
Social Security Administration (SSA) without an appropriate offset for the portion of the SSA
1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days September 16, 2020, the date of OWCP’s last decision, was
March 15, 2021. Because using March 18, 2021, the date the appeal was received by the Clerk of the Appellate
Boards, would result in the loss of appeal rights, the date of the postmark is considered the date of filing. Th e date of
the U.S. Postal Service postmark is March 13, 2021, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

retirement benefits attributable to his federal service. It also found that he was without fault in the
creation of the overpayment.
On October 26, 2019 appellant requested a prerecoupment hearing before a representative
of OWCP’s Branch of Hearings and Review. He asserted that the information provided by SSA
regarding the amount of his benefits contained discrepancies. Appellant advised that he was not
seeking waiver due to financial hardship.
Following a preliminary review, by decision dated January 30, 2020, OWCP’s hearing
representative set aside the September 26, 2019 preliminary overpayment determination. The
hearing representative noted that, on August 18, 2014, SSA had provided a Federal Employees
Retirement System (FERS)/SSA dual benefits calculation form setting forth appellant’s SSA agerelated retirement benefits with and without a FERS offset effective June 2014. On July 31, 2019
SSA had provided another FERS/SSA dual benefits calculation form that contained different rates
for the period beginning June 2014. The hearing representative determined that OWCP had failed
to resolve the discrepancies between the figures provided by SSA on the two forms prior to
reaching its overpayment determination. Consequently, the hearing representative found that
OWCP had not met its burden of proof to establish the declared o verpayment. The hearing
representative instructed OWCP, on remand, to obtain clarifying information from SSA, and to
issue a de novo preliminary overpayment determination setting forth the period and amount of
overpayment.
By decision dated September 16, 2020, OWCP found that appellant had received an
overpayment of wage-loss compensation in the amount of $6,038.06 for the period June 1, 2014
through August 17, 2019 because it had failed to offset his compensation payments by the portion
of his SSA age-related retirement benefits that were attributable to his federal service. It
determined that he was without fault in the creation of the overpayment but denied waiver of
recovery, noting that he had not requested waiver of recovery of the overpayment. OWCP required
recovery of the overpayment by deducting $200.00 from appellant’s continuing compensation
benefits every 28 days.
The Board finds that the case is not in posture for decision as OWCP improperly issued the
September 16, 2020 final overpayment decision.
OWCP’s regulations provide that, before seeking to recover an overpayment or adjust
benefits, it will advise the individual in writing that the overpayment exists and the amount of
overpayment. 3 The written notification must include a preliminary finding regarding whether the
individual was at fault in the creation of the overpayment.4 The preliminary notice must also
inform the individual of his or her right to challenge the fact or amount of the overpayment, the
right to contest the preliminary finding of fault in the creation of the overpayment, if applicable,
and the right to request a waiver of recovery of the overpayment. 5 The recipient of the alleged
3

20 C.F.R. § 10.431(a). See also Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial
Overpayment Actions, Chapter 6.300.5 (September 2018).
4

Id. at § 10.431(b).

5

Id. at § 10.431(d).

2

overpayment may present evidence in response to OWCP’s preliminary notice, either in writing
or at a prerecoupment hearing requested within 30 days. 6
The preliminary notice of findings is essential in overpayment cases because OWCP
regulations limit further review of a final decision concerning overpayment to the Board. A
claimant is prohibited from requesting a hearing, or reconsideration, following a final overpayment
decision.7 The claimant is, therefore, precluded from introducing new evidence to rebut findings
made in a final overpayment decision.
The Board notes that OWCP routinely issues a new preliminary determination after an
OWCP hearing representative reviews a preliminary overpayment decision and remands the case
to OWCP for further findings. 8 In this case, OWCP’s hearing representative specifically instructed
OWCP to issue a new preliminary overpayment determination after obtaining clarifying
information from SSA. OWCP, however, failed to issue a new preliminary determination
notifying appellant of its new findings, informing him of his right to challenge the overpayment,
and providing him with the opportunity to submit new information regarding waiver of recovery
of the overpayment. 9
As OWCP has not afforded appellant the procedural rights provided under its regulations,
the Board finds that it improperly issued its final overpayment decision. 10 Consequently, the
September 16, 2020 decision is hereby reversed. Accordingly,

6

Id. at § 10.432.

7

See 20 C.F.R. § 10.440(b).

8

See K.G., Docket No. 17-0517 (issued September 8, 2017); L.V., Docket No. 15-1856 (issued July 19, 2016).

9

K.G., id.

10

L.V., supra note 8; K.G., Docket No. 08-2135 (issued April 16, 2009).

3

IT IS HEREBY ORDERED THAT the September 16, 2020 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: October 15, 2021
Washington, DC

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

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

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

4