United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
DEPARTMENT OF THE NAVY,
COMMANDER OF THE U.S. ATLANTIC
FLEET -- SHIPYARDS, NORFOLK NAVAL
SHIPYARD, Portsmouth, VA, Employer
__________________________________________

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

Docket No. 09-1318
Issued: December 9, 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 April 22, 2009 appellant filed a timely appeal from September 3, 2008 and April 13,
2009 merit decisions of the Office of Workers’ Compensation Programs denying his
occupational disease claim. 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 satisfied his burden of proof to establish he sustained an
injury in the performance of duty causally related to his employment.
FACTUAL HISTORY
On July 24, 2008 appellant, a 50-year-old painter, filed an occupational disease claim
(Form CA-2) alleging he sustained Grade 4 chondromalacia in his left patella while pressurewashing an aircraft carrier’s secondary shield tank. He alleged that his employment duties
involve repetitive body movements and working in tight, confined spaces for long periods of

time. Appellant first realized his condition was caused by his federal employment on
April 11, 2008.
In an April 22, 2008 report, Dr. Wilford K. Gibson, a Board-certified orthopedic surgeon,
reported findings on examination, reviewed appellant’s history of injury and diagnosed possible
left-knee medial meniscus tear and chondromalacia in appellant’s left patella. He noted that
appellant continued to work and was working without restriction, but restricted him from
kneeling, squatting and working heights for a three-week period.
On April 29, 2008 Dr. Daryl R. Fanney, a Board-certified diagnostic radiologist, reported
a magnetic resonance imaging (MRI) scan of appellant’s left knee revealed no meniscal or
ligament tear. He diagnosed patellar Grade 4 chondromalacia, lateral patellar and trochlear
Grade 2 chondromalacia and proximal tibiofibular joint osteoarthritis.
On May 15, 2008 Dr. Gibson diagnosed Grade 4 chondromalacia in his left patella. He
noted that x-rays of appellant’s knee were unremarkable, but that MRI scan examination showed
Grade 4 chondromalacia of the patella and lateral patellar and trochlea Grade 2 chondromalacia.
Dr. Gibson noted that appellant attributed his condition to pressure washing tanks in April 2008.
By decision dated September 3, 2008, the Office denied the claim because the evidence
of record did not demonstrate that the employment factors caused a diagnosed medical condition.
On September 22, 2008 appellant requested an oral hearing.
A hearing was conducted on January 14, 2009. Appellant testified that he lost no time
due to his injury and just wanted reimbursement for his medical bills. He described his
employment duties. Appellant related that from approximately May through July 2008 he was
required to crunch his body into small spaces and pressure wash a 3-foot by 40-foot tank. This
task required holding onto a handrail, climbing and carrying a pressure washer.
By decision dated April 13, 2009, the hearing representative affirmed the Office’s
September 3, 2008 decision. The hearing representative accepted that appellant had identified
employment factors but denied the claim because the medical evidence did not establish that the
identified employment factors caused a medically-diagnosed condition.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation 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

1

5 U.S.C. §§ 8101-8193.

2

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

2

compensation claim regardless of whether the claim is predicated on a traumatic injury or an
occupational disease.3 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.4
ANALYSIS
In addition to pressure-washing, appellant identified climbing while holding onto a
handrail and carrying a pressure washer as employment factors responsible for his condition.
Appellant’s burden is to establish that these employment factors caused a medically-diagnosed
condition. Causal relationship is a medical issue that can only be proven through submission of
probative, rationalized medical opinion evidence. Rationalized medical opinion evidence is
medical evidence, which includes a physician’s rationalized opinion on the issue of whether
there is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.5 The Board finds that
appellant has not satisfied his burden of proof and, consequently, he has not established he
sustained an injury in the performance of duty causally related to his employment factors.
Although they diagnosed several conditions, including left knee chondromalacia,
proximal tibiofibular joint osteoarthritis and possible left knee medial meniscus tear,
Drs. Fanney’s and Gibson’s reports have no probative value on the issue of causal relationship
because they lack an opinion explaining how the identified employment factors caused the
conditions diagnosed.6 This deficiency reduces the probative value of their opinions and reports
such that they are insufficient to establish appellant’s claim.
While appellant’s physicians expressed an awareness of appellant’s job duties and an
awareness of appellant’s contention that his job duties caused his left knee conditions, the
medical reports of record offered no medical explanation as to how appellant’s work caused his
knee conditions.

3

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

4

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

5

Solomon Polen, 51 ECAB 341 (2000).

6

See Mary E. Marshall, 56 ECAB 420 (2005) (medical reports that do not contain rationale on causal relationship
have little probative value). See also Franklin D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52 ECAB 332
(2001).

3

The Board has held the fact that a condition manifests itself or worsens during a period of
employment7 or that work activities produce symptoms revelatory of an underlying condition8
does not raise an inference of causal relationship between a claimed condition and employment
factors. Because appellant did not submit any probative medical evidence establishing that he
sustained an injury from the accepted employment factors, the Office properly denied appellant’s
claim.
CONCLUSION
The Board finds that appellant has not satisfied his burden of proof to establish he
sustained an injury in the performance of duty causally related to his employment.
ORDER
IT IS HEREBY ORDERED THAT the April 13, 2009 and September 3, 2008
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued:
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

7

E.A., 58 ECAB ___ (Docket No. 07-1145, issued September 7, 2007); Albert C. Haygard, 11 ECAB 393,
395 (1960).
8

D.E., 58 ECAB ___ (Docket No. 07-27, issued April 6, 2007); Fabian Nelson, 12 ECAB 155, 157 (1960).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.L., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF
WORKER SAFETY, HEALTH &
ENVIRONMENT, OFFICE OF AUDIT,
Dallas, TX, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0718
Issued: March 1, 2022

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

On April 12, 2021 appellant filed a timely appeal from a March 26, 2021 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). 1 The Clerk of the Appellate Boards
docketed the appeal as No. 21-0718.
On October 25, 2016 appellant, then a 60-year-old auditor, filed an occupational disease
claim (Form CA-2) alleging that he sustained a bilateral hand injury due to factors of his federal
employment which required repetitive movements. He stopped work on December 19, 2016 .
OWCP accepted appellant’s claim for carpal tunnel syndrome of the right and left upper limbs. It
paid him wage-loss compensation on the supplemental rolls beginning March 19, 2017.
In a February 28, 2018 letter, appellant claimed that he sustained bilateral ring and middle
trigger fingers as a consequence of his accepted employment injury.

1

The Board notes that appellant’s Application for Review (Form AB-1) notes that she is also requesting an appeal
from a December 17, 2019 decision. However, as that decision was issued more than 180 days before the filing of this
appeal, the Board lacks jurisdiction over that decision. 20 C.F.R. § 501.3(e).

By decision dated January 24, 2019, OWCP denied expansion of appellant’s claim to
include consequential conditions.
On September 19, 2019 appellant requested reconsideration and submitted additional
medical evidence in support of his claim.
By decision dated December 17, 2019, OWCP denied modification of its January 24, 2019
decision, finding that the medical evidence of record was insufficient to establish that appellant’s
claimed consequential bilateral ring and middle trigger finger conditions were causally related to
his accepted employment injury.2
On November 2, 2020 appellant requested reconsideration. Along with appellant’s letter,
OWCP received additional medical evidence.
In a letter dated February 19, 2021, OWCP informed appellant that “[o]n November 2,
2020 we received your letter requesting reconsideration.” It advised that it was not clear from his
letter which decision or issues for which he was seeking reconsideration. OWCP then advised
appellant that no further action would be taken on his letter. It related that if he wished to request
reconsideration, then he should make such request in writing within one year of the decision for
which review was sought together with relevant evidence not previously submitted or legal
argument not previously considered.
On February 19, 2021 appellant again requested reconsideration of the December 17, 2019
decision.
By decision dated March 26, 2021, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error. It noted that
his reconsideration request was not received until February 19, 2021.
The Board has duly considered this matter and finds that OWCP improperly determined
that appellant’s request for reconsideration was untimely filed. 3 In the instant case, the case record
contains a request for reconsideration received by OWCP on November 2, 2020. As the
November 2, 2020 request for reconsideration was received within one year of OWCP’s
December 17, 2019 merit decision, 4 it was timely filed. 5 Therefore, OWCP should have applied
the standard applicable to timely reconsideration requests as set forth in 20 C.F.R. § 10.606(b)(3),
rather than the more stringent clear evidence of error standard for untimely reconsideration
2

In a July 13, 2020 decision, OWCP granted appellant a schedule award for five percent permanent impairment of
the right arm. It found that he had zero percent permanent impairment of the left arm.
3

Order Remanding Case, J.C., Docket No. 20-1360 (issued March 12, 2021); I.A., Docket No. 19-1910 (issued
September 29, 2020); Order Remanding Case, D.F., Docket No. 20-0267 (issued June 29, 2020); E.S., Docket
No. 17-0698 (issued July 14, 2017).
4

J.C., id.; R.T., Docket No. 20-0298 (issued August 6, 2020); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4(a) (February 2016).
5

J.C., id.; J.H., Docket No. 18-1367 (issued July 17, 2019); R.M., Docket No. 17-0473 (issued June 6, 2017); C.B.,
Docket No. 13-1732 (issued January 28, 2014).

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requests set forth in 20 C.F.R. § 10.607(a). Because it erroneously reviewed the evidence
submitted in support of appellant’s reconsideration request under the incorrect standard, the Board
will remand the case for review of this evidence under the proper standard of review for timely
reconsideration requests. 6
Thus, the Board finds that this case must be remanded for proper adjudication and
application of the appropriate standard of review, to be followed by an appropriate decision.
Accordingly,
IT IS HEREBY ORDERED THAT the March 26, 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 1, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6

J.C., id.; Order Remanding Case, L.N., Docket No. 19-0170 (issued August 21, 2019).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
O.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Phoenix, AZ, Employer
__________________________________________

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

Docket No. 09-483
Issued: October 8, 2009

Case Submitted on the Record

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

JURISDICTION
On December 9, 2008 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ October 22, 2008 decision denying waiver of recovery of an
overpayment of compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has
jurisdiction over the merits of the claim.
ISSUE
The issue is whether the Office properly denied waiver of recovery of a $20,221.97
overpayment of compensation.
FACTUAL HISTORY
This case is before the Board for the third time. In an August 4, 2004 decision, the Board
reversed an Office decision that terminated appellant’s compensation for wage loss, effective
January 31, 2003, based on his refusal to accept suitable employment.1 Following the Board’s
1

Docket No. 04-766 (issued August 4, 2006).

decision, the Office found that retroactive compensation was due appellant from
February 1, 2003.2 In a September 4, 2007 decision, the Board affirmed the Office’s
November 8, 2006 decision with respect to the finding that appellant received overpayments of
compensation in the amounts of $9,870.26 and $20,221.07 and in the finding of fault and
recovery of the under-deduction of health premiums in the amount of $9,870.26. The Board set
aside the finding of fault for the overpayment and recovery of a schedule award in the amount of
$20,221.07.3 The record indicated that appellant had received two schedule awards for the right
upper extremity several years apart and for different claims. The Board determined that the
Office did not adequately explain how appellant should have known he was not entitled to the
second schedule award payment and, thus, the evidence was not sufficient to determine he was at
fault in the creation of the overpayment.4 The Office had already recovered the total amount of
the overpayments, $30,092.23 ($9,870.26 plus 20,221.97) by reducing the amount of retroactive
benefits. The findings of fact and conclusions of law from the prior decisions are incorporated
herein by reference.
A hearing was held on March 20, 2008, regarding appellant’s eligibility for waiver
pursuant to the Board’s September 4, 2007 decision. He argued that he was not at fault in
creating the overpayment and that he did not receive disability compensation during the period
April 30, 1992 to June 18, 1993, when the schedule award was received and believed he was
underpaid as he should have received schedule award and disability compensation concurrently.
Appellant further stated that him and his family was behind in their house payment and was in
the process of foreclosure. The Office hearing representative advised him of the Office’s
standards for considering waiver and allowed him 30 days to submit additional financial
evidence.
On April 21, 2008 the Office received an April 15, 2008 letter from appellant, reiterated
his argument that the overpayment did not occur as he was entitled to schedule award and
disability compensation concurrently. Appellant also provided information on his current
income and expenses. He submitted a December 1, 2007 mortgage loan statement, which
showed his account was past due and a March 25, 2008 letter from the bank, which indicated
foreclosure proceedings had been initiated. In an undated loan application, appellant reported
monthly income as $4,875.00.5 His assets totaled $155,093.00 with liabilities of $118,430.70.6
2

On December 10, 2004 appellant changed his election so that he would receive Office benefits retroactive to
February 1, 2003. The Office placed him on the periodic rolls effective January 23, 2005 and paid appropriate
compensation to his dependent spouse through electronic fund transfer.
3

Docket No. 07-833 (issued September 4, 2007).

4

When the Office issued the second schedule award, it failed to take into account an earlier award paid for the
right upper extremity and thus overpaid appellant in the amount of $20,221.97.
5

Appellant’s monthly income was comprised of $977.00 in social security, $617.00 in retirement/pension,
$400.00 in rental property, $275.00 from “other” and $2,606.00 in unemployment/disability compensation.
6

The assets included appellant’s primary residence valued at $45,000, rental real estate valued at $110,000, three
automobiles with no value listed, a checking account with $84.00, land valued at $3,000 and a VAC license worth
$6,000. Liabilities comprised the amount owed on his primary residence ($33,000) and rental property ($84,000)
and on the VAC license ($1430.70).

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Appellant’s reported monthly expenses were $1,223.10 for mortgages on his two homes, $800.00
for credit cards, $579.00 for utilities,7 $400.00 for food, $375.00 for automobile insurance,
gasoline and maintenance, $350.00 for medical expenses and $472.20 in other expenses.8
Appellant had previously submitted an overpayment recovery questionnaire dated
September 13, 2005 in which he listed his monthly income as $4,946.00, total monthly expenses
of $4,694.009 and funds of $3,851.03. With regard to the overpayment resulting from the
schedule award, he stated that because the schedule awards were for two different conditions, his
carpal tunnel and his shoulder condition, he was not reasonably aware that he was not entitled to
the full amount of the second schedule award. Appellant argued that taking the awards away and
long delay in paying back the compensation caused a huge financial hardship as the interest rates
on his credit cards were raised. He advised that his wife had used the credit cards to remodel
their home, which she would not have done had they known compensation would be stopped.
By decision dated October 22, 2008, an Office hearing representative denied waiver of
recovery of the overpayment. She found that the overpayment of $20,221.97 remained correct as
previously established. The hearing representative additionally found that appellant has
sufficient income and assets to repay the overpayment and there was no indication that the
overpayment led to detrimental reliance.
On appeal, appellant argues that the Office hearing representative did not take into
account that his wife lost her job in December 2007 and their condominium went into
foreclosure. He stated they were unsuccessful in selling the condominium but were able to rent
it for $400.00 a month in March 2008, but they pay the remainder of the $780.00 monthly
mortgage. Appellant noted the value of his three vehicles. He reiterated that his credit card debt
arose from his wife using the credit cards to remodel the condominium in December 2002, as
they thought compensation was forthcoming. Appellant indicated that they could not pay off the
debt once the compensation stopped and they accrued high interest rates on their credit cards.
LEGAL PRECEDENT
The Office may consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment.10 If the Office finds that the
recipient of an overpayment was not at fault, repayment will still be required unless
(1) adjustment or recovery of the overpayment would defeat the purpose of the Federal

7

This included electricity/heating/gas, telephone/cell phone/beeper, water/sewage and internet and cable/satellite

TV.
8

This included $40.00 in professional/union/association dues, $266.20 in church/charitable contributions, $50.00
for clothes/shoes and $116.00 for a VAC license.
9

This included: $1,402.00 for mortgage and association fees, $300.00 for food, $100.00 for clothing; $920.00 for
utilities, $200.00 for other expenses and $1,672.00 for payments to creditors. The Board notes that this adds to
$4,594.00 as opposed to the $4,694.00 stated.
10

20 C.F.R § 10.433(a).

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Employees’ Compensation Act or (2) adjustment or recovery of the overpayment would be
against equity and good conscience.11
Recovery will defeat the purpose of the Act if both: (a) The individual from whom
recovery is sought needs substantially all of his current income (including periodic benefits
under the Act) to meet current ordinary and necessary living expenses; and (b) The individual’s
assets do not exceed the resource base (including but not limited to cash, the value of stocks,
bonds, savings accounts, mutual funds) of $4,800.00 for an individual or $8,000.00 for an
individual with a spouse or one dependent, plus $960.00 for each additional dependent. The first
$4,800.00 or more, depending on the number of claimant’s dependents, is also exempted from
recoupment as a necessary emergency resource. If an individual has current income or assets in
excess of the allowable amount, a reasonable repayment schedule can be established over a
reasonable, specified period of time. It is the individual’s burden to submit evidence to show
that recovery of the overpayment would cause the degree of financial hardship sufficient to
justify waiver.12 An individual is deemed to need substantially all of his or her income to meet
current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00.13
Recovery of an overpayment is considered to be against equity and good conscience
when any individual who received an overpayment would experience severe financial hardship
in attempting to repay the debt.14 Recovery of an overpayment is also considered to be against
equity and good conscience when any individual, in reliance on such payments or on notice that
such payments would be made, gives up a valuable right or changes her position for the worse.15
Section 10.438 of the regulations provide that the individual who received the
overpayment is responsible for providing information about income, expenses and assets as
specified by the Office. This information is needed to determine whether or not recovery of an
overpayment would defeat the purpose of the Act or be against equity and good conscience.
Failure to submit the requested information within 30 days of the request shall result in the denial
of waiver.16
ANALYSIS
The Office denied waiver of recovery of the $20,221.97 overpayment as recovery of the
overpayment would not defeat the purpose of the Act or be against equity and good conscience.
11

20 C.F.R § 10.434.

12

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6.a(1) (October 2004).
13

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6(a)(1)(b) (October 2004). See Sherry A. Hunt, 49 ECAB 467, 473 (1998).
14

20 C.F.R. § 10.437(a).

15

Id. at § 10.437(b).

16

Id. at § 10.438.

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While appellant took issue with the fact that the overpayment occurred, the Board, in its
September 4, 2007 decision affirmed the fact and amount of the $20,221.97 overpayment he
received. The Office hearing representative did not reopen this matter in her October 22, 2008
decision. The Board’s finding and decision in this matter became final upon the expiration of 30
days from the date of the issuance of the Board’s March 4, 2003 decision and order.17 The
matter is res judicata and is not subject to further consideration by the Board on this appeal.18
Although appellant was found without fault in the matter of the overpayment repayment
is still required unless adjustment or recovery of the overpayment would defeat the purpose of
the Act or be against equity and good conscience.
For waiver under the “defeat the purpose of the Act” standard, appellant must show both
that he needs substantially all of his current income to meet current ordinary and necessary living
expenses and his assets do not exceed the resource base of $4,800.00 for an individual or
$8,000.00 for an individual with a spouse or one dependent, plus $960.00 for each additional
dependent.
The Office accepted all the financial disclosures appellant provided on April 21, 2008 in
a loan application, which he indicated stated his income and expenses. Appellant listed his
monthly income as $4,875.00 and monthly expenses as $4,199.30.19 As his monthly income
exceeds his monthly expenses by more than $50.00, he does not need substantially all of his
current income to meet current ordinary and necessary living expenses.20 Since appellant’s
monthly income exceeds his monthly expenses by more than $50.00, it is not necessary to
consider his asset base under the “defeat the purpose of the Act” standard. Consequently, he is
not eligible for waiver under the “defeat the purpose of the Act” standard.
The record also does not support a finding that recovery would be against equity and
good conscience. Appellant has alleged recovery of the overpayment led to detrimental reliance.
He argued his wife relied on the overpayment to remodel their home and they incurred credit
card debt due to increased interest rates as they could not pay off such expenses. While appellant
may have incurred credit card debt due to remodeling expenses, he has not met his burden in
showing that he changed his position for the worse as he has not shown that he suffered any loss.
His wife simply converted the money into a different form. Conversion of a liquid asset into real
or personal property does not constitute a loss. Additionally, appellant did not lose a valuable
right as he retained ownership interest in the home where the improvements were made.21 Thus,
17

20 C.F.R. § 501.6(d).

18

Hugo A. Mentink, 9 ECAB 628 (1958). In the absence of further review by the Office on the issue addressed
by a Board decision, the subject matter reviewed is res judicata and is not subject to further consideration by the
Board. Clinton E. Anthony, Jr., 49 ECAB 476 (1998).
19

This included mortgages for two homes and expenses for credit cards, utilities, food, automobile insurance,
gasoline and maintenance, medical expenses and drug copays, VAC license and other miscellaneous expenses,
which included professional/association dues, church/charitable contributions and new clothes/shoes.
20

See supra note 13.

21

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6(b)(3) (October 2004).

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the Office properly found that he did not establish that recovery would be against equity and
good conscience.
As the evidence fails to support that recovery of the overpayment would defeat the
purpose of the Act or be against equity and good conscience, the Board finds that the Office did
not abuse its discretion in denying a waiver of recovery of the overpayment of $20,221.97.
While appellant argued on appeal, that his wife lost her job in December 2007, he bears
the responsibility to provide information about income, expenses and assets.22 The Office based
its decision on the financial evidence provided by, his additional contentions reiterate arguments
previously made before the Office and are discussed above.
CONCLUSION
The Board finds that the Office properly denied waiver of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the October 22, 2008 decision of the Office of
Workers Compensation Programs is affirmed.
Issued: October 8, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

22

20 C.F.R. § 10.438.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.P., Appellant
and
DEPARTMENT OF THE ARMY, ANNISTON
ARMY DEPOT, Anniston, AL, Employer
__________________________________________

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

Docket No. 09-610
Issued: October 5, 2009

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 January 2, 2009 appellant filed a timely appeal from a September 25, 2008 decision
of the Office of Workers’ Compensation Programs denying his schedule award claim. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has established that he sustained a ratable hearing loss in
the performance of duty.
FACTUAL HISTORY
On November 7, 2007 appellant, then a 58-year-old optometry clerk, filed an
occupational disease claim for binaural high frequency hearing loss due to exposure to hazardous
noise at work from 1984 to August 16, 2006. The employing establishment submitted industrial
hygiene surveys showing that while working as a mechanic from 1984 to 1986, he was exposed
to noise above 85 decibels (dBA) from pneumatic tools and engines. From 1986 to 1990,
appellant was exposed to noise above 85 dBA from pneumatic tools in a plumbing shop. He was

off work due to an unspecified disability from 1990 to 1996. Appellant returned to work in
February 1996 as an optometry clerk in an office setting, with ambient noise at 50 to 80 dBA.
A nonhearing conservation hearing test audiogram performed at the employing
establishment on June 8, 2007 for the right ear at the frequency levels of 500, 1,000, 2,000 and
3,000 cycles per second (cps) revealed decibel losses of 10, 5, 30 and 25 respectively.1 Testing
for the left ear at the frequency levels of 500, 1,000, 2,000 and 3,000 cps revealed decibel losses
of 10, 5, 35 and 65 decibels. It is unclear from the record whether this audiogram was signed or
reviewed by a physician.
Dr. Kim E. Schmitt, an attending Board-certified otolaryngologist, obtained audiometric
test results on June 8, 2007. Testing for the right ear at the frequency levels of 500, 1,000, 2,000
and 3,000 cps revealed decibel losses of 25, 20, 30 and 40 respectively. Testing for the left ear at
the frequency levels of 500, 1,000, 2,000 and 3,000 cps revealed decibel losses of 5, 5, 25 and 35
decibels. Dr. Schmitt did not state whether appellant had avoided exposure to hazardous noise
for any period prior to audiometric testing.
In a November 5, 2007 report, Dr. Ting J. Tai, an employing establishment physician,
opined that appellant’s occupational exposure was insufficient to cause a ratable hearing loss.
Also a prior 2006 audiogram did not show a ratable hearing loss.2
In a November 27, 2007 letter, the Office advised appellant of the additional evidence
needed to establish his claim. It instructed appellant to submit audiometric findings and other
test results from his attending physician. Appellant submitted a statement summarizing his
occupational noise exposure.
The Office obtained a second opinion from Dr. Jeffrey Scott Robertson, a Board-certified
otolaryngologist. In a January 14, 2008 report, Dr. Robertson provided a history of occupational
noise exposure and performed a clinical examination. Audiometric testing performed that day
for the right ear at the frequency levels of 500, 1,000, 2,000 and 3,000 cps revealed decibel
losses of 5, 5, 25 and 30 respectively. Testing for the left ear at the frequency levels of 500,
1,000, 2,000 and 3,000 cps revealed decibel losses of 0, 10, 35 and 55 decibels. Dr. Robertson
diagnosed a mild to severe bilateral sensorineural hearing loss, in excess of normal presbycusis.
He opined that this hearing loss was due, in part, to hazardous noise exposure at the employing
establishment. Dr. Robertson recommended hearing aids.
On April 2, 2008 the Office accepted that appellant sustained a bilateral sensorineural
hearing loss in the performance of duty. Appellant claimed a schedule award on May 15, 2008.

1

There is no evidence of record that appellant participated in an employing establishment hearing conservation
program.
2

An August 16, 2006 audiogram performed by Dear Health Clinic showed results for the right ear at the
frequency levels of 500, 1,000, 2,000 and 3,000 cps revealed decibel losses of 10, 5, 30 and 25 respectively. Testing
for the left ear at the frequency levels of 500, 1,000, 2,000 and 3,000 cps revealed decibel losses of 10, 5, 35 and 55
decibels. This audiogram was not signed or reviewed by a physician.

2

On May 19, 2008 the Office referred Dr. Robertson’s report and audiometric findings to
an Office medical adviser for consideration of a schedule award rating according to the fifth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides). In a May 20, 2008 report, the Office medical adviser totaled the
decibel losses for the right ear at the frequency levels of 500, 1,000, 2,000 and 3,000 cps of 5, 5,
25 and 30 to equal 65. He then divided this scan by 4 to obtain the average hearing loss at those
cycles of 16.25 decibels. The average of 16.25 decibels was then reduced by the 25 decibel
“fence” to equal zero, resulting in no (zero percent) loss of hearing for the right ear. The Office
medical adviser then totaled the 0, 10, 35 and 55 decibel losses in the left ear at the frequency
levels of 500, 1,000, 2,000 and 3,000 cps to equal 100. He then divided this sum by 4 to obtain
the average hearing loss at those cycles of 25 decibels. The average of 25 decibels was then
reduced by 25 decibels to equal zero, resulting in no (zero percent) loss of hearing for the left
ear. The Office medical adviser found that appellant had a nonratable bilateral sensorineural
hearing loss.
By decision dated September 25, 2008, the Office denied appellant’s schedule award
claim on the grounds that his accepted bilateral hearing loss was not ratable. It found that the
Office medical adviser properly applied the A.M.A., Guides to Dr. Robertson’s findings and
determined that appellant’s hearing loss was not ratable.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act3 provides
for compensation to employees sustaining permanent loss, or loss of use, of specified members
of the body. The Act, however, does not specify the manner in which the percentage loss of a
member shall be determined. The method used in making such determination is a matter which
rests in the sound discretion of the Office. For consistent results and to ensure equal justice, the
Board has authorized 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 Office for evaluating
schedule losses and the Board has concurred in such adoption.4
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides.5 Using the frequencies of 500, 1,000, 2,000 and 3,000 cps the losses at each
frequency are added up and averaged.6 The remaining amount is multiplied by a factor of 1.5 to
arrive at the percentage of monaural hearing loss.7 The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss, the lesser loss is multiplied
by five, then added to the greater loss and the total is divided by six to arrive at the amount of the

3

5 U.S.C. §§ 8101-8193.

4

See 20 C.F.R. § 10.404; Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

5

A.M.A., Guides, 250.

6

Id.

7

Id.

3

binaural hearing loss.8 The Board has concurred in the Office’s adoption of this standard for
evaluating hearing loss.9
ANALYSIS
The Office accepted that appellant sustained a binaural hearing loss due to hazardous
noise exposure at work. To determine appellant’s entitlement to a schedule award, it obtained a
second opinion report and audiometric test results from Dr. Robertson, a Board-certified
otolaryngologist. The Office then referred Dr. Robertson’s findings to an Office medical adviser
for calculation of a schedule award according to the A.M.A., Guides.
The Office medical adviser properly applied the Office’s standardized procedures to the
May 28, 2008 audiogram obtained by Dr. Robertson.10 Testing for the left ear at the frequencies
of 500, 1,000, 2,000 and 3,000 cps revealed decibel losses of 0, 10, 35 and 55 decibels,
respectively. These decibel losses totaled 100 and divided by 4 to obtain the average hearing
loss per cycle of 25. The average of 25 was then reduced by the 25 decibel fence to equal zero
decibels for the left ear.11 Following the same mathematical procedure, the Office medical
adviser added the 5, 5, 25 and 30 decibel losses in the right ear at the frequency levels of 500,
1,000, 2,000 and 3,000 cps to equal 65. He divided the sum by 4 to obtain the average hearing
loss at those cycles of 16.25 decibels, reduced by 25 decibels to equal zero. The Office medical
adviser then computed that appellant had a zero percent binaural hearing loss. Based on his
interpretation of Dr. Robertson’s findings, the Office denied appellant’s schedule award claim.
The Board finds that the Office medical adviser applied the proper standards to the
findings in Dr. Robertson’s January 14, 2008 report and accompanying audiogram performed on
his behalf. The result is a zero percent binaural hearing loss. The Board further finds that the
Office medical adviser properly relied upon the January 14, 2008 audiogram as it was part of
Dr. Robertson’s evaluation and met all the Office’s standards.12 Therefore, the Office properly
found that appellant had a zero percent binaural hearing loss due to hazardous noise exposures at
work.

8

Id.

9

Reynaldo R. Lichtenberger, 52 ECAB 462 (2001).

10

While the record contains prior audiograms, there is insufficient information accompanying these audiograms
to demonstrate that they met the Office’s standards for audiograms used in the evaluation of permanent hearing
impairments. M.E., 58 ECAB ___ (Docket No. 07-1189, issued September 20, 2007); Federal (FECA) Procedure
Manual, Part 3 -- Medical, Requirement for Medical Reports, Chapter 3.600.8(a) (September 1994).
11

The decibel fence is subtracted as it has been shown that the ability to hear everyday sounds under everyday
listening conditions is not impaired when the average of the designated hearing levels is 25 decibels or less. See
A.M.A., Guides 250.
12

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirement for Medical Reports, Chapter
3.600.8(a) (September 1994).

4

CONCLUSION
The Board finds that appellant has not established that he sustained a ratable hearing loss
in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 25, 2008 is affirmed.
Issued: October 5, 2009
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
__________________________________________
L.J., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,
DIVISION OF FEDERAL EMPLOYEES’
COMPENSATION, Kansas City, MO, Employer
__________________________________________

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

Docket No. 20-1379
Issued: February 9, 2021

Case Submitted on the Record

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

JURISDICTION
On July 10, 2020 appellant filed a timely appeal from a June 5, 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.
ISSUE
The issue is whether appellant has met her burden of proof to establish a medical condition
causally related to the accepted factors of her federal employment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 7, 2019 appellant, then a 55-year-old claims examiner, filed an occupational
disease claim (Form CA-2) alleging that she developed pain in her wrists due to factors of her
federal employment, including repetitive typing and keyboarding. She indicated that she first
became aware of her condition on May 1, 2018 and first realized that it was caused or aggravated
by her federal employment on July 11, 2018. Appellant did not stop work.
In a June 12, 2019 development letter, OWCP informed appellant that it had received no
evidence in support of her occupational disease claim. It asked her to complete a questionnaire to
provide further details regarding the circumstances of her claimed injury and requested a narrative
medical report from her treating physician, which contained a detailed description of findings and
diagnoses, explaining how her work activities caused, contributed to, or aggravated her medical
conditions. In a separate development letter of even date, OWCP requested additional information
from the employing establishment, including comments from a knowledgeable supervisor on the
accuracy of appellant’s statements. It provided 30 days for both parties to respond.
In a July 11, 2018 medical report, Dr. Jacob Brubacher, a Board-certified orthopedic
surgeon, evaluated appellant for bilateral pain in her dorsal wrists. Appellant informed him that
she typed all day for her job and that her pain was always worse with working. She utilized soft
splints on her wrists in the beginning of her day, but would eventually encounter recurrent pain.
Dr. Brubacher noted her past diagnoses of arthritis and osteoarthritis and also indicated that she
underwent right shoulder arthroscopic surgery previously. He noted that an x-ray scan of her
bilateral wrists returned normal and opined that appellant likely had tendinitis of her extensor
tendons associated with the repetitive nature of her job.
In a September 26, 2018 medical report, Dr. Brubacher diagnosed bilateral wrist pain and
opined that it was likely due to tenosynovitis and tendinitis. He observed that appellant performed
a lot of repetitive typing at work for up to three hours at a time and that this caused her discomfort
in the dorsum of her hands.
In an April 10, 2019 medical report, Dr. Brubacher observed that appellant continued to
experience fatigue while working at her desk that seemed to be in the setting of a significant
amount of typing. He opined that she seemed to have extensor tenosynovitis. Dr. Brubacher again
noted that appellant’s symptoms were mainly related to her typing and workload at work.
By decision dated September 4, 2019 OWCP denied appellant’s occupational disease
claim, finding that the evidence of record was insufficient to establish that the employment events
occurred as described. It concluded that the requirements had not been met to establish an injury
as defined by FECA.
OWCP continued to receive evidence. In a September 4, 2019 response to OWCP’s
development questionnaire, appellant explained that she worked for 8 to 10 hours a day for five
days a week and that she engaged in no activities outside of work that involved repetitive use of
her hands and wrists. She asserted that her condition developed from everyday work activities of
typing and using her computer mouse. Appellant’s symptoms of aches in her hands, wrists, and
fingers were more prominent when she was typing, writing, and using her mouse and less

2

prominent when she was not performing these activities. She indicated that, after a February 2019
ergonomic assessment, she was provided a wrist pad, but it failed to control the pain. Appellant
also made note of a previous claim she filed for an October 1, 2013 injury under OWCP File No.
xxxxxx250, which was accepted for a ganglion cyst and enthesopathy of wrist and carpus right
wrist, disorder of bursae and tendons, rotator cuff syndrome, localized osteoarthritis right shoulder,
other syndromes affecting cervical region and brachial/neuritis/radiculitis.2
On November 14, 2019 appellant requested reconsideration of OWCP’s September 4,
2019 decision and submitted additional evidence.
In an October 16, 2019 medical report, appellant informed Dr. Brubacher that she
continued to experience significant fatigue and soreness in her hands with prolonged periods of
work. He further noted that her symptoms had been relatively consistent for years and opined that
they seemed to be aggravated by prolonged periods of working.
By decision dated January 9, 2020, OWCP denied modification of its September 4, 2019
decision.
In a January 29, 2020 statement, appellant requested reconsideration of OWCP’s
January 9, 2020 decision. She argued that her statements were sufficient to establish fact of injury
and that the medical evidence of record was sufficient to establish the medical component of fact
of injury.
In a June 7, 2019 statement, appellant explained that, in 2010, under OWCP File No.
xxxxxx250, she was diagnosed with right wrist enthesopathy and a ganglion cyst. She continued
by asserting that over time and due to the repetitive work factors she has been diagnosed with
bilateral wrist tendinitis. Appellant also detailed the medical treatment she received and indicated
that she also received braces, anti-inflammatory medication as well as ergonomic modifications to
her work station.
By decision dated February 6, 2020, OWCP denied modification of its January 9, 2020
decision.
On May 22, 2020 appellant requested reconsideration of OWCP’s February 6, 2020
decision. She attached a May 21, 2020 statement in which she asserted that Dr. Brubacher’s
opinion that her pain was “due to tenosynovitis/tendinitis ‘likely’ due [to] repetitive work factors
of typing and using computer mouse to complete work tasks” was sufficient to establish the

2

Appellant previously filed an occupational disease claim on March 7, 2005 for multiple injuries to her right upper
extremity under OWCP File No. xxxxxx250. On June 14, 2005 OWCP accepted her claim for cervical and
parascapular syndrome. On December 5, 2008 it expanded acceptance of appellant’s claim to include disorder of
bursae and tendons shoulder, right. On January 14, 2010 OWCP again expanded acceptance of her claim to include
tendinitis, right wrist. OWCP has not administratively combined File No. xxxxxx250 with the current claim.

3

medical component of fact of injury in accordance with Federal (FECA) Procedural Manual
Chapter 2.810.3
By decision dated June 5, 2020, OWCP modified its February 6, 2020 decision, finding
that the new evidence submitted by appellant was sufficient to establish the implicated factors of
her federal employment and a medical diagnosis. The claim remained denied, however, because
she failed to submit a rationalized opinion from her treating physician explaining how her
diagnosed conditions were causally related to the accepted factors of her federal employment.
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,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 establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (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 identified employment factors.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
3

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence,
Chapter 2.810(5)(c)(5) (September 2010).
4

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6
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).
7

R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
8

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

9

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

4

rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s).10
In a case in which 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.11
ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP previously accepted on June 14, 2005, December 5, 2008, and January 14, 2020
that appellant sustained cervical and parascapular syndrome, disorder of bursae and tendons
shoulder, right and tendinitis, respectively under OWCP File No. xxxxxx250. On June 7, 2019
appellant filed the current claim for bilateral tenosynovitis and tendinitis caused by her repetitive
duties as a claims examiner. In support of her claim, she submitted an October 16, 2019 medical
report from Dr. Brubacher wherein he noted that her symptoms had been relatively consistent for
years and opined that they seemed to be aggravated by spending long periods of time working.
OWCP’s procedures provide that cases should be administratively combined when correct
adjudication of the issues depends on frequent cross-referencing between files.12 For example, if
a new injury case is reported for an employee who previously filed an injury claim for a similar
condition of the same part of the body, doubling is required.13 OWCP had previously accepted
that appellant had sustained wrist conditions under OWCP File No. xxxxxx250; however, this case
has not been administratively combined with the present file.
For a full and fair adjudication, the case must be remanded to OWCP to administratively
combine OWCP File No. xxxxxx250 and the present case file.14 Following this and other such
further development as deemed necessary, OWCP shall issue a de novo decision.15
CONCLUSION
The Board finds that the case is not in posture for decision.

10

Id.; Victor J. Woodhams, supra note 7.

11

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

12
Id. at File Maintenance and Management, Chapter 2.400.8(c) (February 2000). D.M., Docket No. 19-0340
(issued October 22, 2019).
13

Id.; D.T., Docket No. 19-1375 (issued March 24, 2020); D.L., Docket No. 17-1588 (issued January 28, 2019).

14

K.T., Docket No. 17-0432 (issued August 17, 2018).

15

See T.M., Docket No. 18-0887 (issued February 21, 2019).

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ORDER
IT IS HEREBY ORDERED THAT the June 5, 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: February 9, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.W., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
MATERIAL COMMAND, ROCK ISLAND
ARSENAL, Rock Island, IL, Employer
__________________________________________

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

Docket No. 08-477
Issued: May 22, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 28, 2007 appellant filed a timely appeal from a September 21, 2007
decision of the Office of Workers’ Compensation Programs denying his claim for continuation
of pay. 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 is entitled to continuation of pay for his October 31, 2006
employment injury.
FACTUAL HISTORY
On December 26, 2006 appellant, then a 56-year-old forklift operator working in Iraq,
filed a traumatic injury claim alleging that he sustained a fractured left leg on October 31, 2006
while supervising the loading of supplies onto trucks. On January 24, 2007 the Office accepted
his claim for a closed fracture of the left fibula shaft.

In a January 3, 2007 letter, the employing establishment controverted appellant’s claim
for continuation of pay on the grounds that he failed to submit a CA-1 claim form (Report of
Traumatic Injury) within 30 days as required.
By decision dated January 24, 2007, the Office denied appellant’s claim for continuation
of pay on the grounds that he failed to submit a written claim within 30 days of his October 31,
2006 employment injury.
Appellant requested a hearing which was held on July 11, 2007.
By letter dated July 16, 2007, appellant stated that he received treatment for his left leg
fracture first in Iraq and then in Germany. He was flown home on November 17, 2006. On
November 20, 2006 he telephoned his home station supervisor, Mike Miller, at the Rock Island
Arsenal in Illinois and asked what he needed to do to file a compensation claim. Mr. Miller
indicated that he follow appellant’s suggestion to send a compensation package to his daughter,
Kylee Thompson, who worked for a private company at the arsenal. However, she did not
receive the compensation information from Mr. Miller because he sent it to the wrong individual.
Appellant provided copies of e-mails showing that Mr. Miller mistakenly sent a CA-1 form and
other compensation claim information to a Jillian Bernier on November 21, 2006. In an e-mail
to Ms. Bernier dated December 13, 2006, Mr. Miller stated that she should have appellant, “her
father,” complete the CA-1 form and return it by the following day so that continuation of pay
could be approved. Ms. Bernier sent an e-mail to Ms. Thompson on December 13, 2006 stating
that she sent the compensation package to Iraq but then realized that it was meant for
Ms. Thompson.
On August 1, 2007 the employing establishment stated that appellant was informed prior
to going to Iraq that, if he was injured while deployed, he should contact his home station
supervisor immediately and also secure copies of all medical records. His home station
supervisor would assist in completing the forms. Appellant was informed that claims needed to
be timely filed in order to protect certain rights. He was advised that, if his supervisor was not
available, he should contact the home station employee benefits office. The employing
establishment attempted to contact appellant in mid-November upon his return to the United
States, but had no response to its telephone messages, nor did he contact the employing
establishment until mid-December.
On August 11, 2007 appellant contended that he was never advised before he left for Iraq
of the procedures to follow if he was injured. He stated that, while in Germany, he and a
caseworker, Ms. Daniels, tried to contact the employing establishment home station between
November 13 and 17, 2006 to report his injury. Appellant reached only recorded messages. He
left telephone messages which were not returned. On Friday, November 17, 2006 appellant flew
home, having been unable to reach his supervisor while in Germany. On Monday,
November 20, 2006 he telephoned Mr. Miller, who forwarded a compensation claim package to
the wrong individual. Appellant stated that he never received any telephone calls from the
employing establishment at his home and was unaware that the compensation claim information
from Mr. Miller was not sent to his daughter until after the 30-day continuation of pay deadline
had passed.

2

By decision dated September 21, 2007, an Office hearing representative upheld the denial
of continuation of pay for appellant’s October 31, 2006 employment injury.1
LEGAL PRECEDENT
Office regulations provide, in pertinent part, that to be eligible for continuation of pay, an
employee must: “(1) Have a `traumatic injury’ … which is job related and the cause of the
disability, and/or the cause of lost time due to the need for medical examination and treatment;
(2) File Form CA-1 within 30 days of the date of the injury …; and (3) Begin losing time from
work due to the traumatic injury within 45 days of the injury.”2 The Federal Employees’
Compensation Act authorizes continuation of pay for an employee who has filed a valid claim
for a traumatic injury.3
ANALYSIS
On December 26, 2006 appellant filed a claim for an October 31, 2006 traumatic injury.
Because he did not file a claim within 30 days, the time specified in sections 8118(a) and
8122(a)(2) of the Act,4 he is not entitled to continuation of pay.
Section 8122 of the Act provides that original claims for compensation for disability or
death must be filed within 3 years after the injury or death unless the immediate supervisor had
actual knowledge of the injury or death within 30 days or written notice of death or injury, as
specified in section 8119, was given within 30 days. Actual knowledge and written notice of
injury under section 8119 thereby serve to satisfy the statutory period for filing an original claim
for compensation. The Office accepted the claim as timely and paid compensation.
Claims that are timely under section 8122 are not necessarily timely under section
8118(a). Section 8118(a) makes continuation of pay contingent on the filing of a written claim
within 30 days of the injury. When an injured employee makes no written claim for a period of
wage loss within 30 days, he is not entitled to continuation of pay, notwithstanding prompt
notice of injury. The record shows that appellant provided notice of injury to his supervisor by
telephone on November 20, 2006 but this oral notice is irrelevant to whether appellant is entitled
to continuation of pay under section 8118(a).
Appellant argues that he did not receive information on the process for filing a claim until
the end of December 2006, more than 30 days after the October 31, 2006 date of injury. In the
case of William E. Ostertag,5 the Board explained that the “exceptional circumstances” provision
1

Subsequent to the September 21, 2007 Office decision, appellant submitted additional evidence. The Board’s
jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See 20 C.F.R.
§ 501.2(c). The Board may not consider this evidence for the first time on appeal.
2

20 C.F.R. § 10.205(a)(1-3).

3

5 U.S.C. § 8118(a).

4

5 U.S.C. §§ 8101-8193.

5

33 ECAB 1925 (1982).

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of section 8122(d)(3), which may excuse the untimely filing of an original claim for
compensation under section 8122(a) and (b), is not applicable to section 8118(a) which concerns
a claim for continuation of pay. Because the Act makes no provision for an exception to the time
limitation in section 8118(a), no exceptional or mitigating circumstance, including error by the
employing establishment, can entitle a claimant to continuation of pay who has not filed a
written claim within 30 days of the date of injury.6
CONCLUSION
The Board finds that appellant is not entitled to continuation of pay for his October 31,
2006 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 21, 2007 is affirmed.
Issued: May 22, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6

Laura L. Harrison, 52 ECAB 515 (2002).

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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

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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.

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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).

5

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