United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Egg Harbor City, NJ, Employer
__________________________________________

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Appearances:
Aaron B. Aumiller, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-2006
Issued: June 4, 2010

Case Submitted on the Record

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

JURISDICTION
On August 3, 2009 appellant filed a timely appeal of decisions dated August 20, 2008
and April 20, 2009 of the Office of Workers’ Compensation Programs denying appellant’s
request for reconsideration without a merit review. As the most recent merit decision of the
Office was issued on November 14, 2007, the Board lacks jurisdiction to review the merits of
this case pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(e).1
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration
without a merit review.

1

For Office decisions dated November 19, 2008 or later, a claimant has 180 days to file an appeal with the Board.
20 C.F.R. § 501.3(e) (2009); 73 Fed. Reg. 62,190 (October 20, 2008). For Office decisions issued before
November 19, 2008, a claimant had one year in which to file an appeal. See 20 C.F.R. § 501.3(d)(2) (2008).

FACTUAL HISTORY
On March 6, 2007 appellant, then a 58-year-old rural delivery carrier, filed an
occupational disease claim alleging that she sustained a labral tear of her left shoulder due to
repetitive reaching for mail in the back of her vehicle. She first became aware of her condition
on December 7, 2006 and realized that such condition was caused or aggravated by employment
activities on March 5, 2007. Appellant did not stop work, but had been on light duty since
January 6, 2007 for left carpal tunnel syndrome, which was filed under a separate claim.2 In a
November 26, 2006 statement, she noted working for the employing establishment since
November 18, 1967 and sorting mail for over 40 years. In statements dated March 13, 2007,
appellant explained that her work duties consisted of casing mail and constant reaching for mail
with her left arm. She indicated that on December 7, 2006 she woke up with left arm and
shoulder pain but continued working. Appellant also indicated that she filed an occupational
disease claim in November 1992 for left elbow tendinitis and in November 2006 for bilateral
carpal tunnel syndrome.
In a March 8, 2007 report, Dr. John Baker, a Board-certified orthopedic surgeon, noted
first treating appellant on March 5, 2007 for left shoulder pain. He indicated that appellant
noticed left shoulder pain since December 2006 after dancing but that she was also a mail carrier
who often reached into the backseat of her truck to lift mail using her left arm. Dr. Baker
diagnosed possible anterior labral tear and recommended an arthrogram magnetic resonance
imaging (MRI) scan. He also submitted duty status reports listing work restrictions.
In a May 7, 2007 decision, the Office denied appellant’s claim finding that she did not
submit sufficient evidence to establish that she sustained an occupational disease as alleged.
Appellant subsequently submitted an April 20, 2007 report from Dr. Ernesto Go, a
Board-certified radiologist, who noted that a left shoulder MRI scan revealed no evidence of
labral tear or rotator cuff tear. Dr. Go found degenerative cystic change in the posterolateral
aspect of the humeral head and thickening of the bursa of the subacromial subdeltoid consistent
with bursitis.
On May 3, 2007 Dr. Baker indicated that appellant’s MRI scan revealed no evidence of a
labral tear of the left shoulder but that, based on his own review of the MRI scan, there appeared
to be a labral tear. He stated that the mechanism of injury was repetitive reaching into the back
of a mail truck to pull out mail and the onset of pain was December 2006. Dr. Baker indicated
that, although appellant initially noted this condition after dancing, she also noted that her work
duties aggravated her left shoulder. He opined that her condition was a hyperextension-type
injury and could be caused by the type of activity over a repetitive process that she described as
her daily work. Dr. Baker recommended surgery.
On May 19, 2007 appellant requested reconsideration and described the difficulties she
encountered obtaining a medical report from Dr. Baker. She also submitted a May 1, 2007 letter
to Dr. Baker requesting that he submit a medical report to the Office.
2

The claim for left carpal tunnel syndrome was assigned case file number xxxxxx197 and is not presently before
the Board.

2

In a July 27, 2007 decision, the Office denied appellant’s reconsideration request finding
that the evidence submitted was insufficient to warrant a reopening of the case.
On August 28, 2007 appellant requested reconsideration. She submitted an August 7,
2006 report of Dr. Bradford Tucker, a Board-certified orthopedic surgeon, who noted her
complaint of left shoulder pain for one year. Dr. Tucker also noted that appellant delivered mail
in a rural setting where she was in a car constantly reaching behind her to grab mail. He
indicated that she had developed severe bilateral shoulder pain and hand numbness in
August 2006 after delivering mail without particular incident and she subsequently underwent
bilateral carpal tunnel release. Dr. Tucker noted that a left shoulder x-ray showed superior labral
tear evidenced by gadolinium tracking completely under the superior labrum. He diagnosed left
shoulder superior labral tear from anterior to posterior (SLAP) tear. Dr. Tucker opined that
appellant’s history, diagnostic testing were all consistent with a SLAP tear and that this tear was
related to her work and was caused by repeatedly reaching behind her which stressed the
superior labrum. He further opined that this tear occurred over time.
On September 19, 2007 the Office referred appellant, with a statement of accepted facts,
to Dr. Zohar Stark, a Board-certified orthopedic surgeon, for a second opinion evaluation. In an
October 16, 2007 report, Dr. Stark noted appellant’s history and indicated that she reported
developing pain in her left hand on August 29, 2006 that radiated down to her left shoulder. He
noted findings on examination of the upper extremities, noting full range of motion of the left
shoulder although extreme motion produced pain. Dr. Stark opined that, based on a review of
the statement of accepted facts and appellant’s medical record, she had a labral tear in her left
shoulder which was not a condition related to reaching in the course of her employment. He
explained that appellant reported having a left shoulder problem since August 2006 but that there
were no medical documents of record until March 2007 regarding this condition.
In a November 14, 2007 decision, the Office denied modification of its May 7, 2007
decision finding that the medical evidence was insufficient to establish that the alleged condition
was causally related to the identified employment duties.
In a May 22, 2008 letter, appellant’s attorney requested reconsideration and indicated that
the request was supported by an enclosed May 8, 2008 report from Dr. Tucker. He asserted that
Dr. Tucker carried the weight of the medical evidence or created a medical conflict as he
performed several comprehensive examinations of appellant, had knowledge of her medical and
work history and provided a reasoned opinion on causal relationship. No report from Dr. Tucker
was submitted with appellant’s request.
In an August 20, 2008 decision, the Office denied appellant’s reconsideration request
without a merit review finding that she did not raise any substantive legal questions or provide
any new relevant evidence.
In a September 9, 2008 letter, appellant requested reconsideration and noted that she was
reiterating all arguments outlined in her May 22, 2008 reconsideration request letter. She also
noted that she was enclosing Dr. Tucker’s May 8, 2008 report.

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In a May 8, 2008 addendum report, Dr. Tucker noted reviewing Dr. Stark’s report and
disagreed with his factual understanding of appellant’s case. He indicated that Dr. Stark was not
informed that appellant’s work duties required her to repeatedly reach behind her to grab mail
out of bins and deliver them to mailboxes. Dr. Tucker opined that repetitive extension, external
rotation and abduction of the arm are the exact mechanism of how a superior labral tear occurs.
He further opined that appellant sustained a left shoulder superior labral tear from repetitive
reaching behind her while at work delivering mail.
In an April 20, 2009 decision, the Office denied appellant’s reconsideration request
finding that the evidence submitted was not sufficient to warrant a merit review of the claim.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a), the
Office’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.3 Section 10.608(b) of Office
regulations provide that when an application for reconsideration does not meet at least one of the
three requirements enumerated under section 10.606(b)(2), the Office will deny the application
for reconsideration without reopening the case for a review on the merits.4
ANALYSIS
Appellant’s May 22, 2008 reconsideration request consisted of a letter indicating that she
was attaching a May 8, 2008 report from Dr. Tucker asserting that he represented the weight of
medical evidence or was sufficient to create a medical conflict. However, the report from
Dr. Tucker did not accompany the reconsideration request. Consequently, appellant did not
show that a specific point of law that was erroneously applied or interpreted and did not advance
a relevant legal argument not previously considered.
The Board notes that appellant also did not submit any new and relevant evidence with
her reconsideration request. As the issue of whether appellant sustained an occupational disease
involving her left shoulder is medical in nature, it should be addressed by the submission of
pertinent new medical evidence. However, no new medical evidence was submitted with this
reconsideration request. The Office properly denied this request for reconsideration.
Appellant’s September 9, 2008 reconsideration request consisted of a statement noting
that she reiterated all of the arguments outlined in her May 22, 2008 reconsideration request
letter. Also submitted was Dr. Tucker’s May 8, 2008 report. Appellant’s assertions were
premised on Dr. Tucker’s report representing the weight of the medical evidence or being
sufficient to create a medical conflict. However, these assertions go to the merits of the
3

20 C.F.R. § 10.606(b)(2); D.K., 59 ECAB ___ (Docket No. 07-1441, issued October 22, 2007). See 5 U.S.C.
§ 8128(a).
4

20 C.F.R. § 10.608(b); K.H., 59 ECAB ___ (Docket No. 07-2265, issued April 28, 2008).

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underlying issue in the claim which, as noted, is medical in nature. As noted, the Board does not
have jurisdiction over the merits of claim. Dr. Tucker’s May 8, 2008 report can only be
considered with regard to whether it meets one of the three regulatory criteria for reopening a
claim for a merit review. These assertions on reconsideration about the report do not establish
that a specific point of law that was erroneously applied or interpreted and do not advance a
relevant legal argument not previously considered by the Office.
As Dr. Tucker’s May 8, 2008 report is new evidence, the Board must consider whether it
is relevant evidence. The Board finds that this new report is not relevant because it is cumulative
or repetitive in nature. Dr. Tucker’s May 8, 2008 report provides a similar opinion on causal
relationship as that provided in his August 7, 2007 report, which was previously considered by
the Office.5 Both reports essentially opine that repetitive reaching behind to grab mail caused
appellant’s left shoulder condition. As noted, repetitive or duplicative evidence is insufficient to
reopen a case for merit review. Appellant did not submit any other medical evidence with her
reconsideration request.
On appeal, appellant asserts that the Board should direct that the claim be accepted noting
that the second opinion physician, Dr. Stark, was not provided with an accurate description of
her duties, specifically regarding her repeatedly reaching behind her to deliver mail. She further
asserts that this specific duty is the basis for establishing causal relationship. Appellant also
asserts that the medical evidence from Dr. Tucker provides a rationalized medical opinion
supporting causal relationship between her work duties and her left shoulder condition. The
Board’s jurisdiction is limited to a determination as to whether the Office properly denied her
reconsideration request without conducting a merit review of the record. As appellant’s
arguments on appeal relate to the underlying merits of the claim, the Board has no jurisdiction to
consider the merits of the matter. As noted, she did not, on reconsideration, submit sufficient
evidence or argument to require the Office to reopen the claim for a merit review.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration
without a merit review.

5

See C.N., 60 ECAB ___ (Docket No. 08-1569, issued December 9, 2008) (evidence or argument that repeats or
duplicates evidence previously of record has no evidentiary value and does not constitute a basis for reopening a
case).

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated April 20, 2009 and August 20, 2008 are affirmed.
Issued: June 4, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
City of Industry, CA, Employer
__________________________________________

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

Docket No. 18-1624
Issued: April 3, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 24, 2018 appellant filed a timely appeal from a March 1, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish bilateral wrist
tendinitis and aggravation of rheumatoid arthritis causally related to the accepted factors of his
federal employment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts and circumstances as set forth
in the prior order of the Board are incorporated herein by reference. The relevant facts are as
follows.
On February 21, 2008 appellant, then a 45-year-old mail carrier, filed an occupational
disease claim (Form CA-2) alleging that he developed tendinitis in both wrists due to repetitive
motions casing and delivering mail while in the performance of duty. He indicated that he first
became aware of his condition and attributed it to his federal employment on January 23, 2008.
Appellant returned to work on January 28, 2008. On March 4, 2008 OWCP accepted appellant’s
claim for bilateral wrist tendinitis.
On November 18, 2013 appellant filed a notice of recurrence (Form CA-2) alleging that on
September 19, 2013 he required further medical treatment due to an increase in pain in his bilateral
wrists and hands. In support of his claim, he provided a September 24, 2013 note signed by
Dr. Calvin Hicks, a family practitioner, diagnosing tendinitis and rheumatoid arthritis. Dr. Hicks
opined that appellant was totally disabled for the period September 19 through 25, 2013.
In a January 15, 2014 development letter, OWCP requested additional factual and medical
evidence in support of appellant’s September 19, 2013 recurrence claim. It afforded 30 days for a
response.
On January 31, 2014 Dr. Hicks diagnosed bilateral wrist and hand tendinitis from workrelated repetitive movements. He provided physical findings and work restrictions. Dr. Hicks
opined that appellant’s original tenosynovitis and enthesopathy of the wrists and hands was caused
by continuous repetitive activities in the performance of his job duties. He noted that exacerbation
of his condition could occur due to his continued work duties. Dr. Hicks found that appellant
sustained an exacerbation requiring him to stop work in September 2013.
By decision dated May 7, 2014, OWCP denied appellant’s claim for recurrence of
disability commencing September 19, 2013. On September 19, 2014 appellant requested a review
of the written record from an OWCP hearing representative. He resubmitted Dr. Hicks’
January 31, 2014 note and a February 22, 2008 note from Dr. Alan C. Compton, a Board-certified
family practitioner, who examined appellant in 2008 related to his bilateral wrist pain as a result
of work-related repetitive movements. Dr. Compton diagnosed bilateral wrist tendinitis.
By decision dated December 10, 2014, OWCP’s hearing representative reviewed the
written record and affirmed OWCP’s May 7, 2014 decision denying appellant’s claim for
recurrence of disability commencing September 19, 2013. She found no rationalized medical
opinion evidence supporting his claim for a recurrence of disability, commencing September 19,
2013, causally related to his accepted January 23, 2008 employment injury.
On September 30, 2015 appellant, then a 52-year-old mail carrier, filed a second
occupational disease claim (Form CA-2) and attributed his bilateral wrist tendinitis and
2

Docket No. 17-0743 (issued January 23, 2018).

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aggravation of rheumatoid arthritis to his employment activities while in the performance of duty.
He noted that he first became aware of his condition and first attributed his condition to his federal
employment on November 1, 2013. Appellant noted that he was initially instructed to file a
recurrence claim, but later was instructed to file a new occupational disease claim. His supervisor
noted that he had stopped work on November 15, 2013 and was in leave status from November 15,
2013 until he retired on disability retirement in February 2015.
Appellant reported that his bilateral wrist and hand pain began in January 2008 and became
worse after working for five more years performing repetitive motion. He listed his duties as
repetitive work of casing mail, opening vehicle door, and delivery of a large volume of mail on his
route. Appellant noted that the pain in his wrists and hands was the same condition he had in 2008
which was approved by OWCP in File No. xxxxxx396.
Appellant provided medical records addressing his 2008 occupational disease claim and
ongoing medical treatments. Dr. Compton provided notes dated August 30 and October 16, 2012
and January 4, 2013 diagnosing left hand pain and possible rheumatoid arthritis. Dr. Hicks
examined appellant on September 24, November 1, 12, 13, and 20, 2013 as well as December 23,
2013 due to his history of rheumatoid arthritis and also tendinitis. In January 31, February 26,
April 11, July 1 and 9, August 18, and October 13, 14, and 21, 2014 notes, he diagnosed
rheumatoid arthritis, chronic tendinitis and tenosynovitis, and chronic hand pain. Dr. Hicks opined
that appellant’s rheumatoid arthritis was stable and that his ongoing symptoms were due to his
tendinitis/tenosynovitis. He recommended that appellant change occupations to one that did not
require continuous repetitive hand and arm movements. On June 16, 2014 Dr. Kimberly
Minesinger, an osteopath, diagnosed rheumatoid arthritis, tenosynovitis, rotator cuff syndrome,
arthropathy, and chronic pain. On July 12 and November 3, 2014 Dr. David Pham, an osteopath,
diagnosed rheumatoid disease.
By development letter dated October 30, 2015, OWCP requested additional factual and
medical evidence in support of the September 30, 2015 occupational disease claim. It afforded 30
days for response.
On November 5, 2015 appellant attributed his current condition to casing mail, sorting
mail, as well as opening and closing his vehicle door for the past five years.
In a November 5, 2015 note, Dr. Hicks listed appellant’s dates of treatment from 2013
through 2015 and diagnosed tenosynovitis of the hand, radial styloid tenosynovitis, and
rheumatoid arthritis. He opined that the repetitive nature of appellant’s job caused and exacerbated
his condition. Dr. Hicks noted that appellant’s recent diagnosis of rheumatoid arthritis was also
exacerbated by his job duties.
By decision dated December 4, 2015, OWCP denied appellant’s occupational disease
claim, finding that appellant had not submitted medical evidence of a medical diagnosis in
connection with his employment duties. On December 28, 2015 appellant requested an oral
hearing from an OWCP hearing representative. He resubmitted Dr. Hick’s November 5, 2015
note.

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Appellant testified at the oral hearing held on August 16, 2016. He asserted that he had
submitted sufficient medical opinion evidence to establish his occupational disease claim.
By decision dated September 29, 2016, OWCP’s hearing representative affirmed and
modified OWCP’s December 4, 2015 decision.3 She found that appellant had established an
occupational injury, but denied the claim as he had not established causal relationship between his
injury and the specific condition for which compensation was claimed.
Appellant appealed the September 29, 2016 decision to the Board. In its January 23, 2018
order,4 the Board directed OWCP to combine File Nos. xxxxxx952 and xxxxxx396 and issue a de
novo decision.
By decision dated March 1, 2018, OWCP denied appellant’s September 30, 2015
occupational disease claim finding that, even after the claims had been administratively combined,
the medical evidence of record was insufficient to establish causal relationship between his
diagnosed condition and his accepted employment duties.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,5 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.6 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.7
To establish that an injury was sustained in the performance of duty in an occupational disease
claim, a claimant must submit the following: (1) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; (2) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or occurrence

3
Appellant filed a claim for right shoulder injury in 2011, which OWCP accepted for disorders of the bursa and
tendons of the right shoulder, File No. xxxxxx935. He also filed a claim for recurrence of this condition, which OWCP
denied. OWCP suspended his compensation benefits under this file number on June 2, 2016.
4

Supra note 2.

5

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
6

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).

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of the disease or condition; and (3) medical evidence establishing that the diagnosed condition is
causally related to the identified employment factors.8
Causal relationship is a medical question, which generally requires rationalized medical
opinion evidence to resolve the issue.9 A physician’s opinion on whether there is a causal
relationship between the diagnosed condition and the implicated employment factors must be
based on a complete factual and medical background.10 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 factors.11
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.12
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish bilateral wrist
tendinitis and aggravation of rheumatoid arthritis causally related to the accepted factors of his
federal employment.
In support of his September 30, 2015 occupational disease claim, appellant provided a
series of notes dated from August 30, 2012 through November 3, 2014 from Drs. Compton,
Minesinger, Pham, and Hicks diagnosing rheumatoid arthritis, chronic tendinitis, and
tenosynovitis, as well as chronic hand pain. These notes did not offer an opinion on the causal
relationship between appellant’s diagnosed conditions and his federal employment duties.
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
In his November 5, 2015 note, Dr. Hicks diagnosed tenosynovitis of the hand, radial styloid
tenosynovitis, and rheumatoid arthritis. He opined that the repetitive nature of appellant’s job had
caused and exacerbated his condition. Dr. Hicks noted that appellant’s recent diagnosis of
rheumatoid arthritis was also exacerbated by his job duties. While he attributed appellant’s

8

C.D., Docket No. 17-2011 (issued November 6, 2018); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

9

See C.D., id.; Robert G. Morris, 48 ECAB 238 (1996).

10

B.H., Docket No. 18-1219 (issued January 25, 2019).

11

Id.

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
C.D., supra note 8.
13

S.B., Docket No. 18-1296 (issued January 24, 2019).

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diagnosed conditions to his employment duties, his opinion was merely conclusory.14 The Board
has held that a medical opinion is of limited probative value if it is speculative and conclusory in
nature.15 A medical opinion must provide an explanation of how the specific employment factors
physiologically caused or aggravated the diagnosed conditions.16 Without medical reasoning
explaining how the accepted employment activities caused or contributed to the diagnosed
condition(s), Dr. Hicks’ report is insufficient to establish the claim.17
As appellant has not submitted rationalized medical evidence to establish a medical
condition causally related to the accepted employment factors, the Board finds that he has not met
his burden of proof to establish his claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that bilateral
wrist tendinitis and aggravation of rheumatoid arthritis are causally related to the accepted factors
of his federal employment.

14

B.H., Docket No. 18-1219 (issued January 25, 2019).

15

Id.; M.W., Docket No. 17-0186 (issued March 13, 2018).

16

Supra note 10; V.T., Docket No. 18-0881 (issued November 19, 2018).

17

Supra note 10; R.T., Docket No. 17-2019 (issued August 24, 2018).

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ORDER
IT IS HEREBY ORDERED THAT the March 1, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 3, 2019
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Dumont, NJ, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1040
Issued: November 4, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On March 12, 2009 appellant filed a timely appeal from a January 2, 2009 merit decision
of the Office of Workers’ Compensation Programs’ Branch of Hearings and Review affirming a
May 20, 2009 merit decision. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
injury in the performance of duty on March 18, 2008 causally related to her federal employment.
FACTUAL HISTORY
On March 31, 2008 appellant, a 60-year-old sales and service associate clerk, filed a
traumatic injury claim (Form CA-1) for neck sprain and musculoskeletal inflammation of the
neck and left shoulder. She attributed her condition to a March 18, 2008 incident, while working
the nightshift, when she was required to lift numerous heavy packages. The employing
establishment controverted appellant’s claim.

On April 18, 2008 Dr. Allen S. Glushakow, a Board-certified internist, excused appellant
from work beginning April 18, 2008. In reports dated April 4 and 18, 2008, he reported findings
on examination and diagnosed appellant with internal derangement of the left shoulder, torn
rotator cuff, myositis, capsulitis of the left shoulder and metatarsalgia. Dr. Glushakow excused
appellant from work until May 16, 2008. On April 29, 2008 he reported that appellant was
“totally disabled at this time.”
On March 19, 2008 Dr. Stephen Law, Board-certified in emergency medicine, reported
findings on examination, a review of appellant’s history of illness and diagnosed her with neck
pain and cervical radiculopathy.
By decision dated May 20, 2008, the Office denied appellant’s claim because the
evidence of record was insufficient to establish she sustained an injury as defined by the Federal
Employees’ Compensation Act.
On June 16, 2008 appellant, through her attorney, requested a hearing.
On May16, 2008 Dr. Glushakow diagnosed appellant with left shoulder internal
derangement and lumbosacral radiculitis.
A hearing was conducted on October 28, 2008. Appellant’s attorney argued that the
evidence of record established that appellant actually sustained an injury on the date alleged.
By decision dated January 2, 2009, the hearing representative accepted that appellant was
working on March 18, 2008, during which she lifted packages as alleged, but denied appellant’s
claim because the evidence of record was insufficient to establish that her injury was causally
related to the identified employment incident.
LEGAL PRECEDENT
An employee seeking benefits under the Act1 has the burden of establishing the essential
elements of the claim, including the fact that the individual is an employee of the United States
within the meaning of the Act, that the claim was filed within the applicable time limitation, that
an injury was sustained while in the performance of duty as alleged and that any disability and/or
specific condition for which compensation is claimed are causally related to the employment
injury.2 These are essential elements of each and every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
1

5 U.S.C. §§ 8101-8193.

2

C.S., 60 ECAB ___ (Docket No. 08-1585, issued March 3, 2009).

3

S.P., 59 ECAB __ (Docket No. 07-1584, issued November 15, 2007); Joe D. Cameron, 41 ECAB 153 (1989).

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incident at the time, place and in the manner alleged.4 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.5
ANALYSIS
The Office accepted that appellant was working on March 18, 2008 during which time
she lifted packages and buckets on March 18, 2008 as alleged. Appellant’s burden is to establish
that her injury is causally related to the identified March 18, 2008 employment incident. Causal
relationship is a medical issue that can only be proved by rationalized medical opinion evidence.
On appeal appellant’s attorney argues that the evidence of record, consisting of
appellant’s statements and Dr. Glushakow’s notes and reports, is sufficient to satisfy appellant’s
burden of proof. The medical evidence of record also contained a report signed by Dr. Law.
While Dr. Glushakow reported findings on examination, a review of appellant’s history
of injury and proffered a diagnosis, he provided no opinion concerning how the accepted
employment incident caused appellant’s injury. He did not describe the physical or anatomic
change in her shoulder or neck caused by the March 18, 2008 incident and how it resulted in
appellant becoming symptomatic. Lacking a thorough medical rationale on the issue of causal
relationship, Dr. Glushakow’s notes and reports are of little probative value and, thus,
insufficient to satisfy appellant’s burden of proof.6
Dr. Law’s report is also of limited probative value on the issue of causal relationship.
First, he diagnosed appellant with pain, which is a symptom not a compensable diagnosis for
purposes of the Act.7 Secondly, while Dr. Law also diagnosed her with cervical radiculopathy,
because he provided no opinion concerning if and how the accepted March 18, 2008 incident
caused cervical radiculopathy, his opinion is of limited probative value on the issue of causal
relationship and, therefore, appellant has not satisfied her burden of proof.8
The Board finds appellant has not met her burden of proof to establish that she sustained
an injury in the performance of duty on March 18, 2008 causally related to her federal
employment.

4

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

5

T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354, 35657 (1989).
6

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

7

C.F., 60 ECAB __ (Docket No. 08-1102, issued October 10, 2008).

8

Supra note 6.

3

CONCLUSION
The Board finds appellant has not met her burden of proof to establish that she sustained
an injury in the performance of duty on March 18, 2008 causally related to her federal
employment.
ORDER
IT IS HEREBY ORDERED THAT the January 2, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 4, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.T., Appellant
and
DEPARTMENT OF THE ARMY, ANNISTON
ARMY DEPOT, Anniston, AL, Employer
__________________________________________

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

Docket No. 10-1404
Issued: January 24, 2011

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 April 27, 2010 appellant filed a timely appeal from a January 15, 2010 nonmerit
decision of the Office of Workers’ Compensation Programs denying her untimely request for
reconsideration and finding that it failed to establish clear evidence of error. As over 180 days
have passed between the last merit decision in this case, dated January 6, 2009, and the filing of
this appeal, dated April 27, 2010, the Board lacks jurisdiction over the merits of this case.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the nonmerits of
this case.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error.
FACTUAL HISTORY
On January 23, 2008 appellant, then a term 44-year-old painter, filed an occupational
disease claim alleging that on April 21, 2007 she first realized that her depression was due to

sexual harassment and reprisal. She related that on November 26, 2006 she filed a sexual
harassment claim with the Equal Employment Opportunity (EEO) Commission and experienced
reprisal from the employing establishment as a result of filing her claim.
In support of her claim, appellant submitted progress reports for the period May 22 to
October 15, 2007.
In a letter dated August 8, 2008, the Office informed appellant that the evidence was
insufficient to support her claim. It advised her as to the type of medical and factual evidence
required to support her claim.
In response to the Office’s request, appellant submitted evidence from her EEO claim
including statements, portions of deposition testimony, her formal complaint alleging sexual
harassment and discrimination; a June 11, 2008 attending physician’s report from Dr. Elena A.
Herndon, a treating Board-certified psychiatrist; a March 13, 2008 settlement agreement and
evidence pertaining to withdrawing acceptance of the settlement agreement due to alleged duress
and improper conduct.
By decision dated January 6, 2009, the Office denied appellant’s emotional condition
claim. It found she had failed to establish any compensable factor of employment.
On January 7, 2010 the Office received appellant’s undated request for reconsideration
and evidence submitted with her request. An attached envelope contained the postmark of
January 4, 2010.
In a decision dated January 15, 2010, the Office found that appellant’s undated request
for reconsideration, which was received on January 7, 2009, was dated more than one year after
the January 6, 2008 decision and was untimely. It further found that she did not submit any
evidence establishing clear evidence of error in the Office’s denial of her emotional condition
claim.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act1 provides that the Office may review an
award for or against compensation upon application by an employee (or his or her representative)
who receives an adverse decision. The employee may obtain this relief through a request to the
district Office. The request, along with the supporting statements and evidence, is called the
application for reconsideration.2 To be entitled to a merit review of an Office decision denying
or terminating a benefit, a claimant must file his or her application for review within one year of
the date of that decision.3 The Board has found that the imposition of the one-year limitation

1

5 U.S.C. § 8101 et seq.

2

20 C.F.R. § 10.605.

3

Id. at § 10.607(a).

2

does not constitute an abuse of the discretionary authority granted the Office under section
8128(a) of the Act.4
Title 20 of the Code of Federal Regulations, section 10.607(b) provides that the Office
will consider an untimely application only if it demonstrates clear evidence of error by the Office
in its most recent merit decision. To establish clear evidence of error, a claimant must submit
evidence relevant to the issue which was decided by the Office. The evidence must be positive,
precise and explicit and must manifest on its face that the Office committed an error.5 The term
“clear evidence of error” is intended to represent a difficult standard. The claimant must present
evidence which on its face shows that the Office made an error (for example, proof of a
miscalculation in a schedule award). Evidence such as a detailed, well-rationalized medical
report which, if submitted prior to the Office’s denial, would have created a conflict in medical
opinion requiring further development, is not clear evidence of error and would not require a
review of the case on the Director’s own motion.6 The Board makes an independent
determination of whether a claimant has submitted clear evidence of error on the part of the
Office such that the Office abused its discretion in denying merit review in the face of such
evidence.7
ANALYSIS
The Office issued a decision on January 15, 2010 which denied appellant’s request for
reconsideration of its January 6, 2009 decision on the grounds that the request was untimely filed
and failed to establish clear evidence of error. The Board finds that the Office improperly
refused to reopen appellant’s claim for further consideration of the merits under section 8128 of
the Act on the grounds that her request for reconsideration was not timely filed within the oneyear time limitation period set forth in 20 C.F.R. § 10.607.
Appellant’s request for reconsideration was undated, but the postmark on the attached
envelope contained a date of January 4, 2010. The one-year time limitation begins to toll the day
the Office issued its January 6, 2009 decision, as this was the last merit decision in the case.8
Therefore, the Board finds that appellant had until January 6, 2009 to file her request for
reconsideration. A right to reconsideration within one year accompanies any merit decision on

4

5 U.S.C. § 8128(a); E.R., 60 ECAB ___ (Docket No. 09-599, issued June 3, 2009); Leon D. Faidley, Jr., 41
ECAB 104 (1989).
5

D.O., 60 ECAB ___ (Docket No. 08-1057, issued June 23, 2009); Robert F. Stone, 57 ECAB 292 (2005);
Leon D. Modrowski, 55 ECAB 196 (2004); Darletha Coleman, 55 ECAB 143 (2003).
6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b) (April 1991). See
E.R., 60 ECAB ___ (Docket No. 09-599, issued June 3, 2009); James R. Mirra, 56 ECAB 738 (2005).
7

See W.G., 60 ECAB ___ (Docket No. 08-2340, issued June 22, 2009); S.D., 58 ECAB 713 (2007); Alberta
Dukes, 56 ECAB 247 (2005).
8

Federal (FECA) Procedure Manual, supra note 6 at Chapter 2.1602.3(a) (January 2004). See A.F., 59 ECAB
714 (2008); V.B., 58 ECAB 725 (2007); Veletta C. Coleman, 48 ECAB 367, 369 (1997).

3

the issues.9 The Board notes that the Office’s procedure manual, Chapter 2.1602.3(b)(1),
provides that timeliness for a reconsideration request is determined not by the date the Office
receives the request, but by the postmark on the envelope.10 The procedure manual provides that
timeliness is determined by the postmark on the envelope, if available.
The Board notes that while the undated reconsideration request was received by the
Office on January 7, 2010, the envelope containing the reconsideration request was postmarked
January 4, 2010. For this reason, the Board finds that the reconsideration request was timely.
Appellant timely filed her request for reconsideration within one year of the January 6, 2009
merit decision. The Board finds that the Office improperly denied her reconsideration request by
applying the legal standard reserved for cases where reconsideration is requested after more than
one year. Since it erroneously reviewed the evidence submitted in support of appellant’s
reconsideration request under the clear evidence of error standard, the Board will remand the
case for review of this evidence under the proper standard of review for a timely reconsideration
request.11
CONCLUSION
The Board finds that appellant’s request for reconsideration was timely filed.

9

Federal (FECA) Procedure Manual, supra note 6 at Chapter 2.1602.3(b) (January 2004).
ECAB ___ (Docket No. 09-1655, issued March 18, 2010); Larry J. Lilton, 44 ECAB 243 (1992).

See

E.R., 61

10

Federal (FECA) Procedure Manual, supra note 6 at Chapter 2.1602.3(b)(1) (January 2004). See 20 C.F.R.
§ 10.607(a).
11

See Jack D. Johnson, 57 ECAB 593 (2006); Donna M. Campbell, 55 ECAB 241 (2004) (Office procedures
provide that timeliness for a reconsideration request is determined not by the date the Office receives the request, but
by the postmark on the envelope).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 15, 2010 is set aside and the case remanded for further
consideration consistent with this decision of the Board.
Issued: January 24, 2011
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL AIR
WARFARE CENTER AIRCRAFT DIVISION,
Lakehurst, NJ, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1134
Issued: November 22, 2019

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 April 25, 2019 appellant, through counsel, filed a timely appeal from a November 20,
2018 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 his burden of proof to establish left knee conditions
causally related to the accepted August 22, 2017 employment incident.
FACTUAL HISTORY
On August 24, 2017 appellant, then a 54-year-old aircraft engine mechanic, filed a
traumatic injury claim (Form CA-1) alleging that on August 22, 2017, he ran into a metal pusher
and sustained a left knee contusion while in the performance of duty. On the reverse side of the
claim form, the employing establishment indicated that appellant stopped work on
August 23, 2017.
On August 24, 2017 an employing establishment nurse practitioner indicated that appellant
called in the previous day and stated that “he bumped his leg and had a bump.” She advised him
to come in to get checked out, but he preferred to remain at home and ice his leg. When appellant
reported to work on August 24, 2017, the nurse practitioner indicated that he required immediate
care, and therefore, referred him for further medical treatment. She further advised that he was to
return only with a physician clearance letter. On August 24, 2017 an employing establishment
representative executed an authorization for examination and/or treatment (Form CA-16) for
appellant’s left knee contusion.
In a report dated August 28, 2017, Dr. W. Francis Kennard, a Board-certified orthopedic
surgeon, reported that appellant presented with complaints of severe left knee pain. Appellant
reported to Dr. Kennard that he struck his knee against a metal upright on a sewing ring that he
walked into by accident. He related that he had immediate pain, swelling, and redness around the
anterior aspect of the knee. Dr. Kennard noted swelling over the tibial tubercle area and swelling
over the prepatellar tendon area, and indicated that appellant reported that he was unable to walk
without crutches. His examination revealed that appellant had less than full extension by
approximately 10 degrees, and flexion was only to 80 degrees. There was tenderness over the
tibial tubercle and over the infrapatellar tendon, as well as over the patella. There was no redness
observed, but Dr. Kennard noted mild synovitis and mild effusion. He indicated that x-rays
revealed early left knee degenerative joint disease, and some prominence at the tibial tubercle.
Dr. Kennard diagnosed left knee contusion, left knee medial meniscus tear, knee synovitis, and
juvenile osteochondrosis/Osgood-Schlatter disease. He referred appellant for physical therapy and
a left knee magnetic resonance imaging (MRI) scan.
In an August 28, 2018 attending physician’s report (Part B of a Form CA-16 Authorization
for Examination and/or Treatment), Dr. Kennard diagnosed contusion, traumatic arthropathy, and
synovitis. He excused appellant from work through September 10, 2017.
OWCP also received August 31, 2017 physical therapy treatment records.
In a September 7, 2017 follow-up report, Dr. Kennard indicated that appellant reported
improvement in his knee from therapy, that range of motion had essentially returned to normal,
and that appellant had residual swelling. The examination of appellant’s left knee showed minimal
varus alignment, a large prominence at the patellar tendon insertion into the proximal tibia, full

2

range of motion, and minimal synovitis. Dr. Kennard also noted appellant’s left knee MRI scan
revealed a torn medial meniscus, mild patellar tendinitis, and quadriceps tendinitis. He diagnosed
left knee contusion, left medial meniscus tear, synovitis and tenosynovitis. Dr. Kennard indicated
that appellant should complete his physical therapy regimen, and that he could return to work the
following week. He further indicated that if appellant’s knee became symptomatic he should
return for knee arthroscopy.
Appellant resumed work on September 11, 2017.
In a development letter dated October 17, 2017, OWCP advised appellant of the need for
additional factual information and medical evidence in support of his claim for FECA benefits. It
specifically inquired about the circumstances of the alleged causative employment incident,
including witnesses and the immediate effect of the injury. The attached factual questionnaire also
included queries as to the existence of any related preexisting conditions. OWCP also requested
that appellant provide a narrative report from his attending physician, which was required to
include a diagnosis and a medical explanation as to how the reported work incident either caused
or aggravated a medical condition. It afforded him 30 days to submit the requested information.
No additional evidence was received.
By decision dated November 24, 2017, OWCP denied appellant’s claim. It accepted that
the August 22, 2017 incident occurred as alleged, but denied the claim as causal relationship had
not been established between his diagnosed condition(s) and the accepted August 22, 2017
employment incident.
Subsequent to the decision, OWCP received additional physical therapy treatment records.
In a December 28, 2017 subsequent follow-up report, Dr. Kennard indicated that appellant
stated his symptoms occurred after he struck a metal object at work with his knee, and that
appellant “denied any problems with his knee prior to that time … indicating that [there is] a direct
causal relationship between the injury to his [left] knee … and his present symptoms.” His
examination revealed acute findings of synovitis, effusion, and tenderness.
In a February 21, 2018 follow-up report, Dr. Kennard noted that appellant presented with
a new episode of pain, swelling, and “giving way” of his left knee.3 He reported that appellant
stated that he was walking when his knee “gave way.” Dr. Kennard related that appellant had a
known tear of the medial meniscus, as documented by the MRI scan, and stated, “[t]he medical
evidence establishes that the diagnosis condition-torn left medial meniscus is causally related to
this injury resulting in the symptoms.” The objective examination revealed mild synovitis in the
knee and palpable ballotable effusion of the left knee. Dr. Kennard ordered that appellant receive
a repeat MRI scan of his left knee due to the new injury.

3

On February 22, 2018 appellant filed a traumatic injury claim for a February 15, 2018 injury to his left knee when
he stepped down after hooking up a fuel fitting and he felt his knee pop and give way. OWCP assigned that claim
File No. xxxxxx622 and accepted a tear of the left medial meniscus. Appellant’s claims have not been administratively
combined and File No. xxxxxx622 is not presently before the Board.

3

In a March 13, 2018 follow-up report, Dr. Kennard noted that appellant indicated that he
was having less pain, but continued to have difficulty with stairs and walking on flat surfaces. The
examination revealed moderate effusion of the left knee, with tenderness over the medial and
lateral joint line of the knee. Dr. Kennard noted that appellant lacked full extension by about five
degrees. An MRI scan of the left knee showed a large tear of the medial meniscus, which extended
from the mid-portion of the meniscus posteriorly to the posterior rim. It also showed large effusion
of the knee joint. Dr. Kennard further noted, “establishment of injury is that the patient was
stepping off a brake apron when his left knee gave out and he twisted the knee resulting in severe
swelling and pain. To evaluate this injury MRI [scan] was obtained and has confirmed the
presence of the tear of the medial meniscus of the left knee. [T]his injury is consistent with the
mechanism of giving way that the claimant espouses.” He continued, “[t]he causal relationship is
direct in that [appellant] twisted his knee had pain and swelling and inability to function and MRI
[scan] was obtained to investigate those symptoms and findings and confirmed the presence of a
tear of the left knee medial meniscus. These mechanical symptoms are well-known symptoms
from medial meniscal injury and are well documented in his chart. [T]he MRI [scan] findings are
likewise well-known MRI [scan] findings related to this mechanical type of injury to the
knee/meniscus complex.”
In an April 18, 2018 follow-up report, Dr. Kennard added, “The original injury occurred
while working and this is a reactivation of that same injury ... the medical evidence support with
Level One clarity that this injury is related to the claimant’s underlying torn left medial meniscus.
[T]here can be no other cause.”
In a June 29, 2018 letter, Dr. Kennard recounted that on August 22, 2017 appellant was
arising from his position of checking the equipment, when he turned to his left to check the
equipment at the rear of the test mechanism and impacted a metal pusher with his left knee and
leg. Appellant was approximately two feet off the ground at that time, and fell those two feet,
twisting his knee, but catching himself with his right hand and arm on the front of the test
mechanism, which was described as a dead-load vehicle used to replicate the weight of aircraft.
Dr. Kennard noted that appellant had immediate pain, swelling and discomfort in his left knee, but
finished his workday. The examination at the initial office visit of August 28, 2017 revealed that
appellant had 10 degree loss of extension, flexion was to 80 degrees, and rotation was localized to
medial joint line. Dr. Kennard related that he observed tenderness over the tibial tubercle, and
above the infrapatellar tendon as well as over the patella. He observed synovitis and effusion in
the knee. Dr. Kennard related that his diagnostic impression at the time was: (1) contusion left
knee; (2) tear of the left medial meniscus, and (3) synovitis left knee. A left knee MRI scan
revealed a tear of the medial meniscus. Appellant finished out his physical therapy and was
asymptomatic and subsequently resumed his regular employment duties. Dr. Kennard next
described a second injury occurring on February 15, 2018, when appellant stepped down from a
break train apron and felt his left knee “pop,” and experienced severe pain in his left knee. He
stated, “[the] etiology of this torn left medial meniscus is clear-cut. [Appellant] has suffered two
twisting injuries to his affected left knee. This is a typical type of mechanism for tearing a medial
or lateral meniscus in the knee. In these particular instances with the left foot planted[,] a twisting
force was applied resulting in damage to the medial meniscus. The subsequent synovitis and
effusion are typical of the pathology local that develops.” He added, “[t]he causal relationship is
a direct one.... Tearing of the meniscus is a direct result of twisting moments with a loaded knee
joint as is the case in both knee occurrences with [appellant]. This is a straightforward injury
4

related to twisting with a loaded knee joint[,] i.e. weight-bearing joint[,] resulting in tearing of the
meniscus in the left knee.” Dr. Kennard concluded his letter by advising that arthroscopic surgery
would be necessary, and that the prognosis was guarded as a prolonged wait for definitive
treatment would result in the aggravation of the synovitis and effusion in the knee, resulting in
direct articular surface damage and the development of significant post-traumatic arthritis.
On June 29, 2018 appellant, through counsel, requested reconsideration.
By decision dated November 20, 2018, OWCP denied modification of its November 24,
2017 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,5 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.6 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.7
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established.8 Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.9 The second component is whether the employment incident caused a personal injury.10
An employee may establish that an injury occurred in the performance of duty as alleged, but fail
to establish that the disability or specific condition for which compensation is being claimed is
causally related to the injury.11

4

Id.

5

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
6

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

R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

E.M., Docket No. 18-1599 (issued March 7, 2019); T.H., 59 ECAB 388, 393-94 (2008).

9

L.T., Docket No. 18-1603 (issued February 21, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

10

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

11
J.P., Docket No. 19-0129 (issued April 26, 2019); L.T., Docket No. 18-1603 (issued February 21, 2019);
Shirley A. Temple, 48 ECAB 404, 407 (1997).

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Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.12 A physician’s opinion on whether there is a causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.13 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).14
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish left knee
conditions causally related to the accepted August 22, 2017 employment incident.
In his August 28, 2017 report, Dr. Kennard indicated that appellant reported that he struck
his knee against a metal upright on a sewing ring that he walked into by accident. He indicated
that x-rays taken revealed early degenerative joint disease, and some prominence at the tibial
tubercle. Dr. Kennard diagnosed a contusion of the left knee, a medial meniscus tear of the left
knee, synovitis of the knee, and Osgood Schlatter disease. While he reported appellant’s account
of the incident, Dr. Kennard offered no opinion on the issue of causal relationship between the
reported incident and the diagnosed conditions. 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.15 This report, therefore, is insufficient to establish appellant’s
claim.
In his September 7, 2017 report, Dr. Kennard indicated that appellant reported
improvement in his knee condition. The examination of his left knee showed minimal varus
alignment, a large prominence at the patellar tendon insertion into the proximal tibia, full range of
motion, and minimal synovitis. However, Dr. Kennard did not offer an opinion on causal
relationship, and therefore, this report is of no probative value on the issue.16
In his December 28, 2017 follow-up report, Dr. Kennard indicated that appellant’s
symptoms occurred after he struck a metal object at work with his knee, and that appellant “denied
any problems with his knee prior to that time [thus] indicating … a direct causal relationship
between the injury to his knee left and his present symptoms.” While Dr. Kennard addressed the
cause of appellant’s left knee condition, temporal relationship alone will not suffice for purposes

12

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

13

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

14

Id.

15

A.C., Docket No. 19-0266 (issued May 28, 2019).

16

Id.

6

of establishing causal relationship.17 Therefore, this report is insufficient to establish causal
relationship.
Dr. Kennard related, in the February 21, 2018 report, that appellant stated that he was
walking when his knee gave way on February 15, 2018. He indicated that appellant had a known
tear of the medial meniscus, as documented by the MRI scan, and stated, “[t]he medical evidence
establishes that the diagnosis condition -- torn left medial meniscus -- is causally related to this
injury resulting in the symptoms.” While Dr. Kennard’s February 21, 2018 report offers an
opinion on causal relationship, it is unclear whether he is referring to the original August 22, 2017
incident or the subsequent February 15, 2018 incident in this report. As Dr. Kennard did not
provide a rationalized opinion explaining how the August 22, 2017 employment incident caused
appellant’s left knee conditions, this report is of diminished probative value.18
In a March 13, 2018 follow-up report, Dr. Kennard noted, “establishment of injury is that
the patient was stepping off a brake apron when his left knee gave out and he twisted the knee
resulting in severe swelling and pain. To evaluate this injury [an] MRI [scan] was obtained and
has confirmed the presence of the tear of the medial meniscus of the left knee. [T]his injury is
consistent with the mechanism of giving way that the claimant espouses.” He continued, “[t]he
causal relationship is direct in that [appellant] twisted his knee had pain and swelling and inability
to function and [an] MRI [scan] was obtained to investigate those symptoms and findings and
confirmed the presence of a tear of the left knee medial meniscus. These mechanical symptoms
are well known symptoms from medial meniscal injury and are well documented in his chart.
[T]he MRI [scan] findings are likewise well-known MRI [scan] findings related to this mechanical
type of injury to the knee/meniscus complex.” In an April 18, 2018 follow-up report, Dr. Kennard
added, “The original injury occurred while working and this is a reactivation of that same injury
... the medical evidence support with Level One clarity that this injury is related to the claimant’s
underlying torn left medial meniscus. [T]here can be no other cause.” While Dr. Kennard offered
an opinion on causal relationship, these reports are of reduced probative value because they do not
contain a physiological explanation as to how running into a metal pusher on August 22, 2017
caused his diagnosed knee conditions.19
In his June 29, 2018 report, Dr. Kennard recounted that on August 22, 2017 appellant
turned to his left to check the equipment at the rear of the test mechanism and ran into a metal
pusher. He stated that appellant fell two feet, twisting his knee. Appellant had immediate pain,
swelling and discomfort in his left knee, but finished his workday. Dr. Kennard initially diagnosed
left knee contusion, left knee synovitis, and acute medial meniscus tear, which latter diagnosis was
confirmed by an MRI scan. He then described a second injury occurring on February 15, 2018,
when appellant stepped down from a break train apron and felt his left knee “pop,” and experienced
severe pain. Dr. Kennard stated, “[the] etiology of this torn left medial meniscus is clear-cut.
[Appellant] has suffered two twisting injuries to his affected left knee. This is a typical type of
mechanism for tearing a medial or lateral meniscus in the knee. In these particular instances with
17

Daniel O. Vasquez, 57 ECAB 559 (2006).

18

M.S., Docket No. 19-0189 (issued May 14, 2019).

19

See S.H., Docket No. 19-0631 (issued September 5, 2019).

7

the left foot planted[,] a twisting force was applied resulting in damage to the medial meniscus.
The subsequent synovitis and effusion are typical of the pathology local that develops.” He added,
“[t]he causal relationship is a direct one.... Tearing of the meniscus is a direct result of twisting
moments with a loaded knee joint as is the case in both knee occurrences with [appellant]. This is
a straightforward injury related to twisting with a loaded knee joint[,] i.e., weight-bearing joint[,]
resulting in tearing of the meniscus in the left knee.” The Board finds the June 29, 2018 report of
Dr. Kennard to be of reduced probative value because Dr. Kennard’s June 29, 2018 description of
the incident is inconsistent with the report of appellant to OWCP on his Form CA-1, with the
employing establishment nurse practitioner’s contemporaneous account of the August 22, 2017
incident, and with Dr. Kennard’s description from August 28, 2017. Neither the Form CA-1 nor
the employing establishment nurse practitioner’s report mention the accepted August 22, 2017
employment incident. Dr. Kennard’s report of August 28, 2017 stated that appellant walked into
a metal upright on a sewing ring, but did not mention a fall or twisting motion. Medical evidence
submitted to support a claim for compensation should reflect a correct history, and the physician
should offer a medically sound explanation of how the claimed work event caused or aggravated
the claimed condition.20 A medical report with key factual inconsistencies as to what actually
happened cannot form the basis of a rationalized opinion on causal relationship.21
Finally, the Board notes that in addition to the reports from Dr. Kennard, OWCP received
various treatment records authored by physical therapists. However, these providers are not
considered “physician[s]” as defined by FECA, and their respective reports are insufficient for
purposes of establishing entitlement to FECA benefits.22
As appellant has not submitted rationalized medical evidence on the issue of causal
relationship, the Board finds that he has not met his burden of proof to establish his claim.
Appellant may submit new evidence and/or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that his
diagnosed left knee conditions are causally related to the accepted August 22, 2017 employment
incident.

20

D.V., Docket No. 17-0195 (issued August 7, 2018).

21

Id.

22

5 U.S.C. § 8101(2) provides that a physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law.
See 5 U.S.C. § 8102(2); M.M., Docket No. 16-1617 (issued January 24, 2017); David P. Sawchuk, 57 ECAB 316, 320
n.11 (2006) (lay individuals such as nurses, physician assistants, and physical therapists are not competent to render
a medical opinion under FECA). See also Gloria J. McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 2 ECAB
208, 211 (1949) (a medical issue such as causal relationship can only be resolved through the submission of probative
medical evidence from a physician).

8

ORDER
IT IS HEREBY ORDERED THAT the November 20, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 22, 2019
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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.O., Appellant
and
DEPARTMENT OF THE ARMY, BLUE GRASS
ARMY DEPOT, Richmond, KY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 20-1243
Issued: May 28, 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 June 4, 2020 appellant filed a timely appeal from an April 23, 2020 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met his burden of proof to establish a cervical condition
causally related to the accepted August 21, 2019 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the April 23, 2020 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal. 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

FACTUAL HISTORY
On August 21, 2019 appellant, then a 52-year-old security guard, filed a traumatic injury
claim (Form CA-1) alleging that on that date he developed neck pain when he struck his head on
a ladder that was protruding from a truck he was inspecting while in the performance of duty. He
did not stop work.
An August 28, 2019 magnetic resonance imaging (MRI) scan of appellant’s cervical spine
revealed C4-7 broad-based disc bulges, and degenerative change in the mid and lower cervical
spine producing mild bilateral neural foraminal narrowing at the C5-6 level.
In progress notes dated September 10, 2019, Dr. James R. Bean, a Board-certified
neurosurgeon, diagnosed cervical sprain and chronic moderate C5-6, mild C4-5, and mild C6-7
degenerative disc disease. He reported that on August 21, 2019, while at work, appellant hit his
head on a ladder protruding from a vehicle. Dr. Bean also noted that appellant had a history of
intermittent neck pain since 1994, and that he had sustained a neck injury at work the prior month
when he hit his head on a vehicle ceiling. Diagnostic testing was reviewed and examination
findings were detailed.
In a duty status report (Form CA-17) of even date, Dr. Bean noted clinical findings of neck
pain and diagnosed neck sprain. He released appellant to return to work full time with restrictions.
Appellant attended physical therapy from September 13 through November 12, 2019.
Appellant was seen by Dr. Bean on October 8, 2019 for a follow-up of neck pain
complaints. Dr. Bean reiterated appellant’s history of injury. A neurological examination of
appellant’s neck revealed limited mild cervical range of motion to the right and intact neurological
examination. Dr. Bean diagnosed cervical sprain injury. Appellant was released to return to
regular work.
In a development letter dated March 11, 2020, OWCP informed appellant that the evidence
of record was insufficient to establish his claim. It advised him of the type of factual and medical
evidence needed and provided a questionnaire for his completion. OWCP afforded appellant 30
days to submit the necessary evidence. Appellant did not respond.
By decision dated April 23, 2020, OWCP accepted that the August 21, 2019 employment
incident occurred as alleged. However, it denied appellant’s traumatic injury claim, finding that
he had not submitted medical evidence containing a diagnosis in connection with the accepted
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, including 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
3

Supra note 1.

2

limitation of FECA,4 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.5 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. 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 sufficient evidence to establish that the employment incident caused a personal injury.7
The medical evidence required to establish causal relationship is rationalized medical
opinion evidence.8 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
specific employment incidents identified by the employee.9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a cervical
condition causally related to the accepted August 21, 2019 employment incident.
The record contains reports dated September 10 and October 8, 2019 from Dr. Bean
diagnosing cervical sprain and chronic moderate C5-6, mild C4-5, and mild C6-7 degenerative
disc disease. However, Dr. Bean offered no opinion on causal relationship. The Board has held
that medical evidence that does not offer an opinion regarding the cause of an employee’s
condition or disability is of no probative value on the issue of causal relationship.10 Therefore,
these reports are insufficient to establish appellant’s claim.

4

V.L., Docket No. 20-0884 (issued February 12, 2021); F.H., Docket No. 18-0869 (issued January 29, 2020); J.P.,
Docket No. 19-0129 (issued April 26, 2019); Joe D. Cameron, 41 ECAB 153 (1989).
5

C.H., Docket No. 20-1212 (issued February 12, 2021); L.C., Docket No. 19-1301 (issued January 29, 2020); R.C.,
59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988).
6
V.L., supra note 4; P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued
September 16, 2016); Delores C. Ellyett, 41 ECAB 992 (1990).
7

T.J., Docket No. 19-0461 (issued August 11, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8

C.H., supra note 5; S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued
April 24, 2019); Robert G. Morris, 48 ECAB 238 (1996).
9

V.L., supra note 4; T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued
January 22, 2020); Victor J. Woodhams, 41 ECAB 345, 352 (1989).
10
See V.L., supra note 4; L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued
July 6, 2018).

3

Appellant submitted physical therapy reports dated September 13 through
November 12, 2019. However, certain healthcare providers such as physician assistants, nurses,
nurse practitioners, physical therapists, and social workers are not considered “physician[s]” as
defined under FECA.11 Consequently, their medical findings and/or opinions will not suffice for
purposes of establishing entitlement to FECA benefits.12
Appellant also submitted an MRI scan of his cervical spine. However, the Board has
explained that diagnostic studies, standing alone, lack probative value as they do not address
whether the employment incident caused any of the diagnosed conditions.13
As the medical evidence of record does not contain rationalized medical evidence
establishing that appellant’s cervical condition was causally related to the accepted August 21,
2019 employment incident, the Board finds that appellant has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a cervical
condition causally related to the accepted August 21, 2019 employment incident.

11

Section 8102(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See also Procedure Manual, id at Chapter 2.805.3a(1)
(January 2013); 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); J.R., Docket No. 20-0496
(issued August 13, 2020) (physical therapists are not considered physicians under FECA).
12

Id.

13

V.L., supra note 4; R.C., Docket No. 19-0376 (issued July 15, 2019).

4

ORDER
IT IS HEREBY ORDERED THAT the April 23, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 28, 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

5