United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bronxville, NY, Employer
__________________________________________

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Appearances:
Martin Kaplan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-153
Issued: July 2, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 28, 2013 appellant, through his attorney, filed a timely appeal from a July 31,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether OWCP properly terminated appellant’s compensation
effective June 24, 2009 on the grounds that he had no further disability due to a November 8,
2007 employment injury; and (2) whether appellant established that he sustained an
employment-related cervical condition.
1
2

5 U.S.C. § 8101 et seq.

The record also contains an August 26, 2013 decision granting appellant a schedule award for an additional two
percent impairment of each upper extremity. Appellant has not appealed this decision and thus it is not before the
Board at this time. See 20 C.F.R. § 501.3(a).

FACTUAL HISTORY
On November 16, 2007 appellant, then a 43-year-old mail carrier, filed a traumatic injury
claim alleging that on November 8, 2007 he was walking with a mailbag on his shoulder when
he heard something snap and felt back and neck pain. He stopped work on November 9, 2007.
On September 12, 2008 OWCP accepted the claim for thoracolumbar strain and bilateral
shoulder impingement. It stated:
“While you claimed your injury occurred as the result of a single incident the
medical evidence clearly establishes that you have an injury due to your
employment activities. It is certainly reasonable that carrying a [mailbag]
result[ed] in your injuries over a period of time.”
In a report dated November 7, 2008, Dr. Julio V. Westerband, a Board-certified
orthopedic surgeon and OWCP referral physician, found that appellant did not have any “clinical
findings that correlate with a serious health condition as it relates to the back and right and left
shoulders.” He determined that appellant could return to his usual employment with no
limitations.
In a work restriction evaluation dated November 24, 2008, Dr. Michael Cushner, an
attending Board-certified orthopedic surgeon, diagnosed back and bilateral shoulder sprain and
found that appellant could perform modified employment.
OWCP determined that a conflict in medical opinion arose between Dr. Westerband and
Dr. Cushner regarding the extent of appellant’s disability. It referred appellant to Dr. George
Burak, a Board-certified orthopedic surgeon, for an impartial medical examination to determine
if appellant had any continuing disability due to his accepted thoracolumbar strain and bilateral
shoulder impingement. In the statement of accepted facts, OWCP noted that appellant had filed
a claim alleging that on November 8, 2007 he felt a pull in his back and that it had accepted the
claim for thoracic lumbar strain and bilateral impingement syndrome.
On April 23, 2009 Dr. Burak reviewed the history of injury and the medical reports of
record, including the results of diagnostic studies. On examination of the shoulders, he
determined that appellant had no evidence of impingement, instability, pain, reduced motion or
loss of strength with range of motion. Dr. Burak found full straight leg raise on examination of
the lumbar spine with no evidence of spams and normal range of motion. He further found a
negative Spurlings test on examination of the thoracic spine, normal reflexes of the lower
extremities and no sensory deficits or atrophy. Dr. Burak diagnosed a cervical and thoracic
sprain and right shoulder sprain and stated that there was “no evidence whatsoever on today’s
examination that there is any evidence of active mechanical derangements, either in his neck,
[appellant’s] dorsal spine or shoulders causing objective symptoms.” He stated:
“My impression and decisions in reference to [appellant’s] full recovery from his
injuries are solely based on the clinical examination, which demonstrates that [he]
had regained a full range of motion of his neck and back, as well as both
shoulders and there is no evidence of any type of clinical findings which would

2

suggest any residual mechanical deficiencies as a result of the accident of
November 8, 2007.”
On May 20, 2009 OWCP notified appellant of its proposal to terminate his compensation
and authorization for medical benefits on the grounds that the medical evidence established that
he had no further disability or residuals of his November 8, 2007 work injury.
In a report dated May 18, 2009, Dr. Cushner related that a March 16, 2009 magnetic
resonance imaging (MRI) scan study revealed disc herniations at C4-5 and C5-6 causing
significant compression on the cord and a disc herniation at C6-7 with mild cord compression.
He found that appellant was unable to work and required chiropractic care.
By decision dated June 24, 2009, OWCP terminated appellant’s compensation and
authorization for medical treatment effective June 24, 2009. It determined that Dr. Burak’s
opinion represented the weight of the evidence and established that appellant had no further
employment-related disability or need for medical treatment.
On July 1, 2009 appellant, through his attorney, requested a telephone hearing before an
OWCP hearing representative.
In a report dated July 21, 2009, Dr. Cushner related that appellant had pain in his neck
and back from repetitive work duties due to lifting at work and an injury at work.3 He attributed
the pain to repetitive motion rather than a particular injury. Dr. Cushner diagnosed cervical
strain, thoracolumbar strain and bilateral shoulder impingement syndrome. He listed findings on
examination and indicated that the work incident described caused the conditions and that
appellant was unable to work.
On August 10, 2009 appellant requested reconsideration in lieu of a telephone hearing.
In a report dated August 11, 2009, Dr. Stephen Andrus, a Board-certified physiatrist,
evaluated appellant for pain in his neck, middle and lower back and bilateral shoulders. He
noted that appellant felt “something snap in his back” after lifting a heavy mailbag on
November 8, 2007. Dr. Andrus diagnosed cervical herniated discs at C4 through 7, chronic
lumbar strain and bilateral shoulder pain and impingement syndrome with a partial left rotator
cuff tear. He found that appellant could not perform his work duties.
On August 31, 2009 Dr. Richard G. Harvey, a chiropractor, diagnosed subluxations at
L3-S1 and back pain and chronic lumbar strain. He disagreed with Dr. Burak’s opinion that
appellant could return to his usual employment.
Electrodiagnostic studies obtained on September 25, 2009 showed bilateral cervical
radiculopathy at C5 through C7, bilateral carpal tunnel syndrome and mild bilateral elbow ulnar
neuropathy.

3

Dr. Cushner submitted periodic reports diagnosing cervical strain, thoracolumbar strain and bilateral shoulder
impingement syndrome and finding that appellant was unable to work due to his employment injury.

3

By decision dated October 16, 2009, OWCP denied modification of its June 24, 2009
decision. On October 19, 2009 it received appellant’s request for reconsideration. In a decision
dated November 5, 2009, OWCP denied his request for reconsideration after finding that he had
not submitted evidence or raised an argument sufficient to warrant reopening his case for further
merit review.
On November 10, 2009 appellant, through his attorney, requested a telephone hearing.4
In a report dated November 12, 2009, Dr. Andrus noted that appellant described an injury
at work on November 8, 2007 and that an MRI scan study showed disc herniation at C4-5, C5-6
and C6-7 compressing the cord. He discussed the medical treatment received and provided
findings on examination. Dr. Andrus diagnosed left cervical radiculopathy with herniated
extruded discs at C4-5, C5-6 and C6-7 resulting in cord compression and bilateral impingement
syndrome with a partial tear of the left rotator cuff. He attributed the diagnosed conditions to the
November 8, 2007 employment injury and found that appellant was disabled from work.
By decision dated November 27, 2009, OWCP denied appellant’s request for a hearing
under 5 U.S.C. § 8124 as he had previously requested reconsideration and the issue could be
equally well addressed through the reconsideration process.
Appellant submitted additional periodic medical reports from Dr. Cushner.
By decision dated February 22, 2010, OWCP denied modification of its June 24, 2009
decision.5 It noted that reports from physicians who were part of the conflict were generally
insufficient to outweigh the report of the impartial medical examiner.
On March 22, 2010 appellant requested reconsideration.6
By decision dated
September 9, 2010, OWCP denied modification of its February 22, 2010 decision.
On October 7, 2010 appellant again requested reconsideration. By decision dated
January 13, 2011, OWCP denied modification of its September 9, 2010 decision. On January 20,
2011 appellant requested reconsideration, which OWCP denied in a merit decision dated
March 29, 2011. In an April 22, 2011 reconsideration request, he questioned why Dr. Burak
found that appellant had recovered even though his 2009 electromyogram (EMG) study revealed
bilateral cervical radiculitis.

4

On November 5, 2009 appellant, through his attorney, appealed to the Board. On December 17, 2009 he
requested that the Board dismiss his appeal. In an order dated January 6, 2010, the Board dismissed appellant’s
appeal at his request. Order Dismissing Appeal, Docket No. 10-368 (issued January 6, 2010).
5

On March 19, 2010 appellant appealed to the Board. In an order dated July 9, 2010, the Board dismissed the
appeal at his request. Order Dismissing Appeal, Docket No. 10-1192 (issued July 9, 2010).
6

An MRI scan study of the cervical spine dated August 18, 2010 showed spondylosis, muscle spasms and
herniated discs on at C4-5 and C6-7 and on the left at C5-6.

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By letter dated April 27, 2011, OWCP requested that Dr. Burak review the March 7,
2009 MRI scan study showing a disc herniation at C6-7 with cord compression and discuss
whether it altered his opinion that appellant was able to perform his usual employment.
On May 9, 2011 Dr. Burak related that he did not find any underlying cervical pathology
at the time of his April 23, 2009 examination. He asserted that, while a cervical MRI scan study
showed compression of the cord at C6-7, it was not correlated with clinical findings and thus his
conclusions in his April 23, 2009 report were unchanged.
In a decision dated June 14, 2011, OWCP denied modification of its March 29, 2011
decision. On June 18, 2011 appellant requested reconsideration. In a nonmerit decision dated
July 20, 2011, OWCP denied his request to reopen his case for further review of the merits under
section 8128.7
Electrodiagnostic testing dated February 24, 2012 revealed cervical radiculopathy at C5,
C6 and C6, moderate right carpal tunnel syndrome, mild left carpal tunnel syndrome bilateral
elbow ulnar neuropathy.
In a report dated March 12, 2013, Dr. Lata Bhansali, a Board-certified physiatrist,
diagnosed radicular neck pain, bilateral carpal tunnel syndrome and chronic lumbar
intervertebral disc disease due to repetitive stress.
On April 7, 2012 appellant requested reconsideration.8 In a report dated May 10, 2012,
Dr. Andrus disagreed with Dr. Burak’s opinion that appellant did not have cervical pathology.
He related that the MRI scan study of the cervical spine showed a large disc herniation at C5-6
impinging on the spinal cord, a disc herniation at C6-7 causing mild cord compression and
myelopathic changes which were permanent in nature. Dr. Andrus noted that on November 8,
2007 appellant heard a snap while carrying a mailbag and that an EMG confirmed findings of
cervical radiculopathy. He stated, “[Appellant] has not been able to work since the work injury
on November 8, 2007 and the objective tests outlined above substantiate that [he] does indeed
have a serious injury and as such, he has been unable to work since the date of injury.”
Dr. Andrus attributed the herniated cervical discs causing cord compression to the November 8,
2007 work injury. He questioned Dr. Burak’s objectivity and stated:
“The medical evidence in this case is overwhelming. Again, it is inconceivable
how a physician reviewing the medical data in this case, could conclude that a
patient with multiple large herniated discs, compressing on the spinal cord and
causing injury to the spinal cord, with EMG evidence of cervical radiculopathy
could conclude that the patient does not have any underlying cervical pathology.”

7

By decision dated December 21, 2011, OWCP granted appellant a schedule award for a nine percent permanent
impairment of each upper extremity. In a decision dated September 27, 2012, it denied his request for further merit
review of the December 21, 2011 decision under section 8128.
8

On April 24, 2012 appellant appealed to the Board. In an order dated June 19, 2012, the Board dismissed his
appeal of a July 20, 2011 decision as untimely. Order Dismissing Appeal, Docket No. 12-1097 (issued
June 19, 2012).

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On May 29, 2012 Dr. Bhansali diagnosed cervical intervertebral disc degeneration with
myositis due to herniated discs at C4-5 and C6-7 and an extruded disc at C5-6, lumbar
intervertebral disc degeneration with myositis and bilateral carpal tunnel syndrome. He related
that he had reviewed Dr. Andrus’ May 10, 2012 report and concurred with his findings.
On June 5, 2012 appellant again requested reconsideration. In a form report dated
August 16, 2012, Dr. Andrus diagnosed cervical radiculopathy and cervical herniated discs due
to “lifting and carrying [a] heavy mailbag.” He advised that appellant was totally disabled from
November 8, 2007 onward.
By decision dated August 22, 2012, OWCP denied modification of its June 14, 2011
decision. It found that Dr. Andrus and Dr. Bhansali did not rely on a correct history of injury,
that of appellant experiencing a work injury on November 8, 2007 while carrying a mailbag.
In a report dated September 26, 2012, Dr. Lehman diagnosed lumbar sprain/strain,
shoulder impingement and cervical radiculopathy. He attributed the back strain, left shoulder
tear and acromioclavicular joint hypertrophy of the right shoulder to repetitive lifting and
carrying in the course of his federal employment.
On October 1, 2012 appellant requested reconsideration.
Electrodiagnostic testing on November 7, 2012 performed by Dr. David J. Dickoff, a
Board-certified neurologist, showed chronic, bilateral radiculopathy at C5 and C6 and mild ulnar
neuropathy of the elbow.
On December 6, 2012 OWCP requested that Dr. Dickoff review Dr. Burak’s April 23,
2009 and May 9, 2011 reports and discuss whether appellant was impaired due to the herniated
disc seen on the March 7, 2009 MRI scan study. It further requested that he address whether
appellant had mechanical derangement of the neck and, if so, whether it was employment
related.
In a decision dated January 4, 2013, OWCP denied modification of its June 14, 2011
decision.
In a report dated January 7, 2013, Dr. Dickoff related that he treated appellant beginning
November 6, 2012 “for injuries suffered in a work-related accident on November 8, 2007.” He
indicated that a March 7, 2009 cervical MRI scan study showed disc herniations resulting in cord
compression at C4-5 and C5-6 and moderate degenerative changes. Electrodiagnostic studies
dated November 7, 2012 revealed chronic C5-6 radiculopathy bilaterally. Dr. Dickoff asserted
that it was “impossible to say that the C4-5 and C5-6 disc herniations, which result in cervical
cord compression, occurred precisely November 8, 2007.” He further found that Dr. Burak
relied only on a clinical examination in reaching his conclusions. Dr. Dickoff found that, in his
May 9, 2011 report, Dr. Burak “clearly underestimated the importance and significan[ce] of the
MRI scan findings. Spinal cord compression is never an insignificant finding, even if clinical
signs are not elicited on examination.” He opined that appellant was totally disabled from
employment and required an anterior cervical discectomy at C4-5 and C5-6.

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On January 13, 2013 appellant requested reconsideration. By decision dated February 1,
2013, OWCP denied modification of its January 4, 2013 decision.9
On March 6, 2013 appellant requested reconsideration.
In a report dated April 18, 2013, Dr. Jeffrey Cohen, a Board-certified neurologist,
discussed appellant’s history of hearing “a snap in his neck with pain radiating to the right and
left upper extremities and pain in the back” on November 8, 2007 while carrying a mailbag. He
reviewed the result of the March 7, 2009 MRI scan study and elctrodiagnostic tests. Dr. Cohen
stated:
“It is my opinion with a fair degree of medical certainty as a practicing orthopedic
surgeon for over 30 years that carrying a 50-pound bag of mail on a regular basis
for the many years that [appellant] was employed by the [employing
establishment] and on the date of accident in question hearing a snap in his neck,
would be the competent cause of [his] two disc herniations, which are in fact
extruded.”
Dr. Cohen related that the positive findings on examination correlated with the diagnostic
studies. He stated:
“There could be no question that the weight from the mailbag was the competent
cause of [appellant’s] herniated cervical disc, which came to a plateau in 2007 on
this date of accident and furthermore the impingement syndrome of the left and
right shoulders with a capsulitis is clearly a result of this event. This is a
repetitive stress disorder and there is no reason to disclaim the multitude of
positive physical findings at this point, the positive history provided by
[appellant], the positive EMG and MRI [scan] findings in this matter and the fact
that [he] has not made a full recovery.”
Dr. Cohan opined that appellant was disabled from his usual employment and required
cervical surgery. He stated, “There is a clear causal relationship between the date of accident,
the injury in question and the positive physical findings complemented by the positive testing in
this matter.”
In a report dated June 24, 2013, Dr. Cohen diagnosed bilateral carpal tunnel syndrome
due to the November 8, 2007 employment injury and advised that appellant was disabled.
In a report dated July 7, 2013, Dr. Cy Blanco, a Board-certified anesthesiologist, noted
that appellant experienced a snap and pain in his neck and back on November 8, 2007 after
lifting a heavy mailbag. He related that a cervical MRI scan study showed extruded herniated
discs at C4-5 and C5-6 with cord compression and a herniated disc at C6-7 with mild cord
compression and that the abnormal EMG studies were consistent with the findings on MRI scan
study. Dr. Blanco attributed the findings to the employment injury, diagnosed cervical
9

In a decision dated March 5, 2013, OWCP denied appellant’s request for reconsideration of its schedule award
determination as untimely and insufficient to establish clear evidence of error.

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radiculopathy and found that appellant was disabled from employment. On July 30, 2013 he
related that appellant’s “injuries are related to the November 8, 2007 accident. [Appellant] is not
able to work at this time.”
By decision dated July 31, 2013, OWCP denied modification of its January 4, 2013
decision. It found that Dr. Cohen’s April 18, 2013 report attributed appellant’s condition both to
carrying mail regularly, which it found was relevant to an occupational disease claim, assigned
file number xxxxxx546 and to the November 8, 2007 work injury.
On appeal, appellant’s attorney argues that Dr. Burak’s opinion is not rationalized and
thus not entitled to the weight of the evidence. He contends that Dr. Burak did not review the
most recent MRI scan study at the time of his examination and thus the termination was not
procedurally correct. Counsel also argues that appellant’s claim was accepted as an occupational
disease rather than a traumatic injury and thus the statement of accepted facts was inaccurate.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.10 It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the
employment.11 OWCP’s burden of proof in terminating compensation includes the necessity of
furnishing rationalized medical opinion evidence based on a proper factual and medical
background.12 Further, the right to medical benefits for an accepted condition is not limited to
the period of entitlement for disability compensation.13 To terminate authorization for medical
treatment, OWCP must establish that appellant no longer has residuals of an employment-related
condition which require further medical treatment.14
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.15 The implementing regulations state that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third
physician to make an examination. This is called a referee examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
case.16 In situations where there exist opposing medical reports of virtually equal weight and
10

Elaine Sneed, 56 ECAB 373 (2005).

11

Fred Reese, 56 ECAB 568 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001).

12

Gewin C. Hawkins, 52 ECAB 242 (2001).

13

T.P., 58 ECAB 524 (2007); Pamela K. Guesford, 53 ECAB 727 (2002).

14

Id.

15

5 U.S.C. § 8123(a).

16

20 C.F.R. § 10.321.

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rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a
proper factual background, must be given special weight.17
OWCP’s procedures provide as follows:
“When the DMA [district medical adviser], second opinion specialist or referee
physician renders a medical opinion based on a SOAF [statement of accepted
facts] which is incomplete or inaccurate or does not use the SOAF as the
framework in forming his or her opinion, the probative value of the opinion is
seriously diminished or negated altogether.”18
ANALYSIS -- ISSUES 1
Appellant filed a traumatic injury claim alleging that on November 8, 2007 he injured his
back, neck and shoulder in the performance of duty. On September 12, 2008 OWCP accepted
that he sustained thoracolumbar strain and bilateral shoulder impingement. It indicated that
while appellant alleged an injury due to a single event, the medical evidence established that his
condition was due to his work activities and that it was “certainly reasonable that carrying a
[mailbag] result[ed] in your injuries over a period of time.” It appears that OWCP accepted that
he sustained an occupational disease rather than a traumatic injury. It determined that a conflict
arose between Dr. Westerband, an OWCP referral physician who found that appellant could
resume work without limitations and Dr. Cushner, his attending physician who found that
appellant could perform modified employment. In 2009, OWCP referred appellant to Dr. Burak
for an impartial medical examination. In the statement of accepted facts provided to Dr. Burak,
it noted that appellant had filed a claim alleging that he sustained a November 8, 2007 work
injury and indicated that it had accepted thoracic lumbar strain and bilateral shoulder
impingement. OWCP did not clearly set forth whether it had accepted a traumatic injury or
occupational disease claim in the statement of accepted facts.
When there exists a conflict in medical opinion and the case is referred to an impartial
medical specialist for the purpose of resolving the conflict, the opinion of such specialist, if
sufficiently well rationalized and based upon a proper factual background, must be given special
weight.19 The Board finds, however, that Dr. Burak’s opinion is insufficient to establish that
appellant has no further disability due to his accepted bilateral shoulder impingement and
thoracolumbar strain. To assure that, the report of a medical specialist is based upon a proper
factual background, OWCP provides information to the physician through the preparation of a

17

R.C., 58 ECAB 238 (2006); Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002).

18

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600(3)
(October 1990).
19

See R.H., 59 ECAB 382 (2008); R.C., supra note 17.

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statement of accepted facts.20 If the statement of accepted facts is inaccurate or incomplete, the
probative value of the physician’s opinion is greatly diminished.21
The Board finds that the opinion of Dr. Burak is not entitled to special weight as the
statement of accept facts does not clearly indicate that appellant sustained an occupational
disease rather than a traumatic injury occurring on November 8, 2007. Further, Dr. Burak
diagnosed cervical sprain, thoracic sprain and right shoulder sprain due to the November 8, 2007
work injury. He found that appellant had no further findings of any active condition of the neck,
thoracic spine or shoulders. OWCP, however, accepted thoracic lumbar sprain. Dr. Burak did
not specifically address whether appellant had any further disability or residuals due to thoracic
lumbar strain. Consequently, his opinion is insufficient to meet OWCP’s burden of proof to
terminate appellant’s compensation and authorization for medical benefits for the accepted
thoracic lumbar strain and bilateral shoulder impingement.
LEGAL PRECEDENT -- ISSUE 2
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.22 The opinion of the
physician must be based on a complete factual and medical background of the claimant,23 must
be one of reasonable medical certainty24 explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.25
ANALYSIS -- ISSUE 2
Following OWCP’s termination of compensation, appellant submitted numerous medical
reports attributing a cervical condition to factors of his federal employment. OWCP requested
that Dr. Burak review and a March 7, 2009 MRI scan study that revealed a disc herniation at
C6-7 with cord compression and indicated whether he believed that appellant could return to his
usual employment. At the time it sought Dr. Burak’s opinion regarding appellant’s cervical
condition, there was no conflict in medical opinion regarding the cervical condition and thus
Dr. Burak acted as a second opinion examiner rather than an impartial medical examiner on this
issue.
In a report dated May 9, 2011, Dr. Burak advised that he had not found evidence of a
cervical condition during his April 23, 2009 physical examination. He opined that the results of
the MRI scan study were unsupported by findings on examination.
20

See Helen Casillas, 46 ECAB 1044, 1052 n. 15 (1995).

21

See supra note 18.

22

John J. Montoya, 54 ECAB 306 (2003).

23

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

24

John W. Montoya, supra note 22.

25

Judy C. Rogers, 54 ECAB 693 (2003).

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In a report dated May 10, 2010, Dr. Andrus disagreed with Dr. Burak’s opinion. He
discussed appellant’s history of hearing a snap on November 8, 2007 and related that diagnostic
studies confirmed the presence of cervical radiculopathy. Dr. Andrus diagnosed herniated
cervical discs and cord compression due to a November 8, 2007 work injury. On May 29, 2012
Dr. Bhansali reviewed Dr. Andrus’ May 10, 2012 report and agreed with his findings.
At the request of OWCP, Dr. Dickoff reviewed Dr. Burak’s reports. He diagnosed disc
herniations and cord compression at C4-5 and C5-6 by MRI scan study and C5-6 radiculopathy
bilaterally by diagnostic studies. Dr. Dickoff advised that it was not possible to find that the disc
herniations “occurred precisely November 8, 2007.” He disagreed with Dr. Burak’s opinion that
spinal cord compression was not a significant finding.
In a report dated April 18, 2013, Dr. Cohen diagnosed extruded disc herniations due to
appellant carrying a mailbag on November 8, 2007. He asserted that regularly carrying mail and
hearing a snap in November 2007 caused his cervical disc herniations. Dr. Cohen related that
“the weight from the mailbag was the competent cause of [appellant’s] herniated cervical disc,
which came to a plateau in 2007 on the date of accident….” He determined that appellant was
disabled due to his work injury.
On July 7, 2013 Dr. Blanco diagnosed cervical radiculopathy and extruded cervical disc
herniations as a result of appellant’s injury on November 8, 2007.
The Board finds that a conflict exists between Dr. Burak, an OWCP referral physician
who found that appellant had no active cervical condition and Drs. Andrus, Cohen and Blanco,
attending physicians who diagnosed cervical herniated discs with radiculopathy due to
employment factors. In its July 31, 2013 decision, OWCP noted that medical evidence related
appellant’s symptoms to carrying a heavy bag of mail in the course of his usual employment. It
found that this evidence related to his occupational disease claim, assigned file number
xxxxxx546. On remand, OWCP should combine the current file number with file number
xxxxxx546 and determine whether appellant sustained cervical disc herniations due to factors of
his federal employment.26 It should further prepare a statement of accepted facts clearly
indicating whether it accepted that he sustained an occupational disease or traumatic injury under
the current file number. OWCP should then refer appellant to an impartial medical examiner to
resolve whether he sustained a cervical condition as a result of employment factors. After such
further development as deemed necessary, it should issue a de novo decision.
CONCLUSION
The Board finds that OWCP improperly terminated appellant’s compensation effective
June 24, 2009 on the grounds that he had no further disability due to a November 8, 2007
employment injury. The Board further finds that the case is not in posture for decision regarding
whether he sustained an employment-related cervical condition.

26

In a report dated June 24, 2013, Dr. Cohen diagnosed carpal tunnel syndrome due to a November 8, 2007 work
injury. His report, however, contains no rationale and thus is of little probative value.

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ORDER
IT IS HEREBY ORDERED THAT the July 31, 2013 decision of the Office of
Workers’ Compensation Programs is reversed and set aside and the case is remanded for further
proceedings consistent with this decision of the Board.
Issued: July 2, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

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

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

12


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Miami, FL, Employer
)
___________________________________________ )
S.F., Appellant

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

Docket No. 07-1591
Issued: December 3, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On May 31, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated September 15, 2006 denying her claim and
nonmerit decisions dated November 17, 2006 and March 30, 2007, denying her requests for
further merit review. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issues are: (1) whether appellant sustained an injury in the performance of duty
causally related to factors of her federal employment; and (2) whether the Office properly
refused to reopen her case for further review of the merits under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On July 27, 2006 appellant, then a 52-year-old letter carrier, filed a traumatic injury claim
alleging that she bruised her knee and lost her glasses while fleeing an armed robbery that day.
She stopped work on July 28, 2006 and returned on July 29, 2006. Appellant submitted a
July 27, 2006 treatment note from a nurse.

By letter dated August 15, 2006, the Office advised appellant that additional factual and
medical evidence was needed. Appellant was requested to provide a physician’s opinion as to
how the reported work incident caused the claimed injury. The Office explained that the
physician’s opinion was crucial to her claim and allotted her 30 days to submit the requested
information.
In an August 30, 2006 statement, appellant alleged that the robbery was an armed robbery
and that it was “very disturbing.” She alleged that, while she and coworkers were trying to
escape, they could not escape safely and people were run over, tumbling, screaming, crying and
panicking. Appellant alleged that she sustained an anxiety attack and lost her glasses during the
robbery.
By decision dated September 15, 2006, the Office denied appellant’s claim. It found that
the evidence supported that the claimed incident occurred; however, appellant failed to submit
the sufficient medical evidence in support of her claim. It found that her medical evidence did
not demonstrate that her claimed medical condition was related to the accepted incident of
July 27, 2006.
Appellant requested reconsideration on October 19, 2006. By letter dated November 6,
2006, she advised the Office that she was submitting additional evidence. Appellant submitted
an August 5, 2006 receipt for an eye examination by Dr. Michael D. Riesen, an optometrist, and
a July 27, 2006 admission form and treatment notes from a nurse for anxiety. On September 28,
2006 she stated that she was filing a grievance. The Office also received July 27, 2006 treatment
notes from a physician whose signature was illegible. The physician noted that appellant had a
previous medical history of fibromyalgia and she was robbed at “gun point.”
In a November 17, 2006 decision, the Office denied appellant’s request for
reconsideration without a review of the merits on the grounds that her request neither raised
substantive legal questions nor included new and relevant evidence.
By letter dated February 26, 2007, appellant informed the Office that her fibromyalgia
condition did not have anything to do with her claim.” She noted that her physician indicated
that her blood pressure was up and that was the cause of her going to the emergency room. The
Office received a copy of a July 27, 2006 treatment note signed by a nurse and a billing policy
statement. By letter dated March 7, 2007, the Office advised appellant that, if she wished to
receive reconsideration, she must file a new request. In a March 12, 2007 telephone
memorandum, the Office noted that appellant wished to have her February 26, 2007 letter
adjudicated as a request for reconsideration.
In a March 30, 2007 decision, the Office denied appellant’s request for reconsideration
without a review of the merits on the grounds that it neither raised substantive legal questions nor
included new and relevant evidence.

2

LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act2 and that an injury was
sustained in the performance of duty.3 These are the essential elements of each compensation
claim, regardless of whether the claim is predicated upon a traumatic injury or an occupational
disease.4
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred. An employee
has the burden of establishing the occurrence of an injury at the time, place, and in the manner
alleged by a preponderance of the reliable, probative and substantial evidence.5 An injury does
not have to be confirmed by eyewitnesses in order to establish the fact that an employee
sustained an injury in the performance of duty, as alleged, but the employee’s statements must be
consistent with surrounding facts and circumstances and his or her subsequent course of action.
Such circumstances as late notification of injury, lack of confirmation of injury, continuing to
work without apparent difficulty following the alleged injury and failure to obtain medical
treatment may cast doubt on an employee’s statements in determining whether he or she has
established a prima facie case.6 However, an employee’s statement alleging that an injury
occurred at a given time and in a given manner is of great probative value and will stand unless
refuted by strong or persuasive evidence.7
The second component is whether the employment incident caused a personal injury and
generally this can be established only by medical evidence.8 The employee must also submit
sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.9 The medical evidence required to establish
1

5 U.S.C. §§ 8101-8193.

2

Joe D. Cameron, 41 ECAB 153 (1989).

3

James E. Chadden Sr., 40 ECAB 312 (1988).

4

Delores C. Ellyet, 41 ECAB 992 (1990).

5

Charles B. Ward, 38 ECAB 667 (1987).

6

Merton J. Sills, 39 ECAB 572, 575 (1988).

7

Thelma S. Buffington, 34 ECAB 104 (1982).

8

See John J. Carlone, 41 ECAB 354, 357 (1989).

9

Id. For a definition of the term “traumatic injury,” see 20 C.F.R. § 10.5(ee).

3

causal relationship is usually rationalized medical 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.10
ANALYSIS -- ISSUE 1
Appellant alleged that on July 27, 2006 she was fleeing a robbery at the employing
establishment when her blood pressure became elevated, she bruised her knee and lost her
glasses. The Board finds that there is no evidence refuting that the incident occurred as alleged,
by appellant. However, the medical evidence is insufficient to establish that the July 27, 2006
employment incident caused an injury. The medical reports of record do not establish that the
fleeing from a robbery at work caused a personal injury on that date. Appellant did not submit
any medical evidence which contained a reasoned explanation of how the employment incident
on July 27, 2006 caused or aggravated an injury.11
The only evidence from a healthcare provider submitted by appellant, prior to the
Office’s September 15, 2006 decision was a July 27, 2006 note from a nurse. Section 8101(2) of
the Act12 provides that the term physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their
practice as defined by the applicable state law. Registered nurses, licensed practical nurses and
physicians’ assistants are not physicians as defined under the Act. Thus, their opinions are of no
probative value.13
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.14
Neither the fact that the condition became apparent during a period of employment nor the belief
that the condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.15 Causal relationship must be substantiated by reasoned medical
opinion evidence which is appellant’s responsibility to submit.

10

Id.

11

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
12

See 5 U.S.C. § 8101(2). See also Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board has held
that a medical opinion, in general, can only be given by a qualified physician).
13

Roy L. Humphrey, 57 ECAB ___ (Docket No. 05-1928, issued November 23, 2005).

14

See Joe T. Williams, 44 ECAB 518, 521 (1993).

15

Id.

4

The Office advised appellant of the evidence required to establish her claim; however,
she failed to submit such evidence. Appellant did not provide a medical opinion which describes
or explains the medical process through which the July 27, 2006 work incident would have
caused the claimed injury. Accordingly, she did not establish that she sustained an anxiety
condition in the performance of duty. Inasmuch as appellant has not established that she
sustained an employment-related injury requiring medical services, she is not entitled to have her
eyeglasses replaced or repaired by the Office.16 The Office properly denied her claim for
compensation.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case under section 8128(a) of the Act,17 section
10.608(a) of the implementing regulations provide that a timely request for reconsideration may
be granted if the Office determines that the employee has presented evidence and/or argument
that meets at least one of the standards described in section 10.606(b)(2).18 This section provides
that the application for reconsideration must be submitted in writing and set forth arguments and
contain evidence that either: (i) shows that the Office erroneously applied or interpreted a
specific point of law; or (ii) advances a relevant legal argument not previously considered by the
Office; or (iii) constitutes relevant and pertinent new evidence not previously considered by the
Office.19 Section 10.608(b) provides that, when a request for reconsideration is timely but fails
to meet at least one of these three requirements, the Office will deny the application for
reconsideration without reopening the case for a review on the merits.20
When reviewing an Office decision denying a merit review, the function of the Board is
to determine whether the Office properly applied the standards set forth at section
10.606(b)(2) to the claimant’s application for reconsideration and any evidence submitted in
support thereof.21
ANALYSIS -- ISSUE 2
With her October 19, 2006 and February 26, 2007 reconsideration requests, appellant
repeated her previous arguments that her high blood pressure was related to the employment
incident. She also alleged that she was filing a grievance. Additionally, appellant submitted an
August 5, 2006 receipt for an eye examination from Dr. Riesen, a July 27, 2006 admission form
16

See 5 U.S.C. § 8101(5) (in defining the term “injury,” notes that eyeglasses are not to be “replaced, repaired or
otherwise compensated for, unless the damages or destruction is incident to a personal injury requiring medical
services”).
17

5 U.S.C. § 8128(a).

18

20 C.F.R. § 10.608(a).

19

20 C.F.R. § 10.608(b)(1) and (2).

20

20 C.F.R. § 10.608(b).

21

Annette Louise, 54 ECAB 783 (2003).

5

and a billing policy statement. However, these arguments and documents are not relevant and
pertinent, as the issue in the present case is medical in nature. Appellant’s arguments that her
blood pressure was related to the incident are irrelevant as the issue can only be resolved by
competent medical evidence.
The Office also received July 27, 2006 treatment notes. However, these notes are not
relevant, as they do not address the issue of causal relationship. The submission of evidence that
does not address the particular issue involved does not constitute a basis for reopening a case.22
Appellant also submitted several nurses’ notes. These reports are not relevant. As noted
above, nurses are not physicians under the Act. Thus, a nurse is not competent to give a medical
opinion.23 Thus, these reports are not relevant. The Board also finds that the July 27, 2006
treatment note signed by a nurse was duplicative. It has held that the submission of evidence or
argument which repeats or duplicates that already in the case record does not constitute a basis
for reopening a case.24
Appellant, therefore, did not show that the Office erroneously applied or interpreted a
specific point of law; or advance a relevant legal argument not previously considered by the
Office. Further, she failed to submit relevant new and pertinent evidence not previously
considered by the Office. As appellant did not meet any of the necessary regulatory
requirements, she was not entitled to a merit review.25
As appellant is not entitled to a review of the merits of her claim pursuant to section
10.606(b)(2), the Board finds that the Office properly refused to reopen her case for further
review of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
sustained an injury in the performance of duty on July 27, 2006. It further finds that the Office
properly refused to reopen her claim for merit review under 5 U.S.C. § 8128(a).

22

Robert P. Mitchell, 52 ECAB 116 (2000); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000); Alan G.
Williams, 52 ECAB 180 (2000).
23

See supra note 13.

24

Edward W. Malaniak, 51 ECAB 279 (2000).

25

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

6

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 30, 2007, November 17 and September 15, 2006 are
affirmed.
Issued: December 3, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Houston, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 16-1242
Issued: November 28, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 25, 2016 appellant filed a timely appeal from a February 25, 2016 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 sustained a recurrence of her medical condition beginning
March 24, 2015 causally related to her June 24, 2002 employment injury.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after OWCP rendered its February 25, 2016
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision. Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances from the
Board’s prior decision are hereby incorporated by reference. The facts relevant to this appeal
will be set forth.
On June 26, 2002 appellant, then a 42-year-old letter carrier, filed a claim for a traumatic
injury (Form CA-1) alleging that on June 24, 2002 she injured her left knee in the performance
of duty. OWCP accepted the claim for bilateral internal derangement of the knees, bilateral
medial meniscus tears, and localized post-traumatic osteoarthritis of the right knee.4
Appellant filed claims for recurrence and by decisions dated March 20 and October 3,
2006, OWCP found that appellant had not established a recurrence of disability from July 5
to 7, 2005. She filed additional claims for disability and in decisions dated May 10 and
December 18, 2006, OWCP denied the claims for disability for the period December 7, 2005 to
January 12, 2006 casually related to her June 24, 2002 employment injury.5
On April 26, 2007 appellant underwent a right total knee replacement.
Appellant filed an appeal with the Board for the decisions denying her disability claims.
In a decision dated December 13, 2007, the Board found that she had established entitlement to
wage-loss compensation for time lost for medical appointments on December 28, 2005 and
January 3, 6, 9, and 11, 2006. The Board further found that OWCP should address whether
appellant was disabled for the remaining intermittent dates from December 27, 2005 through
January 12, 2006. The Board affirmed OWCP’s finding that she was not entitled to wage-loss
compensation from July 5 to 7, 2005.6
On December 20, 2010 OWCP accepted that appellant sustained a recurrence of a
medical condition beginning August 12, 2010. Appellant received medical treatment for
bilateral knee pain and low back pain on May 10, 2010. She also received treatment for back
pain radiating into the left lower extremity and right knee pain on July 27, 2010.
On June 5, 2015 appellant filed another claim for recurrence (Form CA-2a) alleging that
on March 24, 2015 she experienced a recurrence of the need for medical treatment for her left
3

Docket No. 07-0751 (issued December 13, 2007).

4

Appellant underwent a partial medial and lateral meniscectomy, synovectomy, and patellar chondroplasty of the
left knee on August 6, 2002, and a lateral meniscectomy, synovectomy, abrasion arthroplasty of the medial femoral
condyle, and patellar chondroplasty of the right knee on March 11, 2003. On February 10, 2004 she underwent a
partial medial and lateral meniscectomy, synovectomy, and patellar chondroplasty on the right knee. OWCP, in a
decision dated September 24, 2004, granted appellant a schedule award for 10 percent permanent impairment of
each lower extremity. By decision dated September 10, 2008, OWCP granted her a schedule award for an additional
40 percent permanent impairment of the right lower extremity.
5

On April 13, 2007 OWCP accepted that appellant sustained a recurrence of a medical condition. In a decision
dated May 1, 2007, it found that she had not established a recurrence of disability from April 14 to 27, 2006.
6

Docket No. 07-0751 (issued December 13, 2007).

2

knee condition. She related that her left knee pain and symptoms were similar to what she
experienced from her work injury. The employing establishment indicated that appellant
performed limited duty after her original injury but was no longer working for the employing
establishment.
OWCP, in a letter dated June 10, 2015, advised appellant of the definition of a recurrence
of a medical condition and requested that she submit additional factual and medical evidence,
including bridging evidence showing her treatment for a knee condition from 2010 to the
present.
By decision dated July 15, 2015, OWCP found that appellant had not established a
recurrence of a medical condition in March 2015. It noted that she last received medical
treatment for her work injury on July 27, 2010.
In a report dated July 6, 2015, Dr. Adam Freedhand, a Board-certified orthopedic
surgeon, evaluated appellant for left knee pain which had worsened in March 2015. He obtained
a history of a June 24, 2002 work injury with left knee surgery in 2002. Dr. Freedhand
interpreted x-rays as showing “large osteophytes and subchondral sclerosis consistent with
advanced degenerative changes.” He diagnosed acute left knee pain and localized primary
osteoarthritis of the lower leg. Dr. Freedhand recommended a total knee replacement.
Appellant, in a letter dated July 17, 2015, advised that her prior physician, now deceased,
told her that she would experience difficulty with her left knee until she had a total knee
replacement. She indicated that she had originally filed an earlier notice of recurrence in
March 2015 which was lost. Appellant advised that she occasionally used a cane.
On October 6, 2015 Dr. Pradeep Kodall, a Board-certified orthopedic surgeon, discussed
appellant’s history of a left knee arthroscopy and partial meniscectomy on August 6, 2002. He
related, “Loss of meniscal tissue that occurs with a partial meniscectomy procedure increases
stress on articular cartilage and can lead to progressive arthritis with time. As a result the initial
injury could have increased [appellant’s] risk of developing advanced arthritis earlier leading to
her present state and potentially leading to a knee replacement.”
On October 19, 2015 appellant requested reconsideration of the July 15, 2015 decision.
She submitted reports from her 2002 left knee surgery.
In a report dated January 4, 2016, Dr. Michael D. Kent, a Board-certified orthopedic
surgeon, related that appellant had injured the left knee at work on June 24, 2002. Appellant
complained of pain in her left knee for the past six months. Dr. Kent diagnosed degenerative
joint disease of the left knee and recommended a total knee arthroplasty.
By decision dated February 25, 2016, OWCP denied modification of its July 15, 2015
decision. It found that the medical evidence was insufficient to show that appellant required
additional medical treatment due to her June 24, 2002 work injury. OWCP explained that she
had not submitted any bridging evidence.
On appeal appellant asserts that she had initially filed a notice of recurrence in
March 2015 but it was lost. She notes that it was difficult finding a physician who accepted
3

workers’ compensation after her physician died. Appellant did not know that she had to continue
to seek medical treatment for her condition. She asserts that the medical evidence demonstrates
that she experienced knee problems due to her work injury.
LEGAL PRECEDENT
Recurrence of medical condition means a documented need for further medical treatment
after release from treatment for the accepted condition or injury when there is no accompanying
work stoppage. Continuous treatment for the original condition or injury is not considered a
need for further medical treatment after release from treatment, nor is an examination without
treatment.7
If a claim for recurrence of medical condition is made more than 90 days after release
from medical care, a claimant is responsible for submitting a medical report supporting a causal
relationship between the employee’s current condition and the original injury in order to meet
her burden.8
Appellant has the burden of proof to establish that she sustained a recurrence of a medical
condition that is causally related to her accepted employment injury. She must submit medical
evidence from a physician who, on the basis of a complete and accurate factual and medical
history, supports that the condition is causally related and supports the conclusion with sound
medical rationale.9
In order to establish that an alleged recurrence of a medical condition was caused by the
accepted injury, medical evidence of bridging symptoms between the present condition and the
accepted injury must support the physician’s conclusion of a causal relationship.10
ANALYSIS
OWCP accepted that appellant sustained bilateral internal derangement of the knees,
bilateral medial meniscus tears, and localized post-traumatic osteoarthritis of the right knee as
the result of a June 24, 2002 employment injury. Subsequently on April 26, 2007 appellant
underwent left knee surgery on August 6, 2002 and right knee surgery on March 11, 2003 and
February 10, 2004. On April 26, 2007 appellant underwent a right total knee replacement.
On June 5, 2015 appellant alleged that she experienced a recurrence of the need for
medical treatment beginning March 24, 2015 due to her accepted left knee condition. She last
received medical treatment on May 10, 2010 for complaints of bilateral knee and low back pain
and on July 27, 2010 for complaints of low back pain radiating into the lower extremity on the
7

20 C.F.R. § 10.5(y).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.4(b) (June 2013); see also
J.M., Docket No. 09-2041 (issued May 6, 2010).
9

See K.T., Docket No. 15-1758 (issued May 24, 2016); O.H., Docket No. 15-0778 (issued June 25, 2015).

10

See J.S., Docket No. 16-0457 (issued June 6, 2016); Mary A. Ceglia, 55 ECAB 626 (2004).

4

left side. Appellant has the burden to submit medical evidence sufficient to establish a causal
relationship between her current condition and her work injury.11
In a report dated July 6, 2015, Dr. Freedhand noted that appellant complained of pain in
her left knee that had worsened in March 2015. He discussed her history of a left knee injury on
June 24, 2002 with subsequent knee surgery. Dr. Freedhand advised that x-rays showed
significant degenerative changes. He diagnosed acute knee pain and localized primary
osteoarthritis of the lower leg and recommended a total knee replacement. Dr. Freedhand,
however, did not address the cause of appellant’s knee arthritis. Medical evidence that does not
offer any opinion regarding the cause of an employee’s condition is of diminished probative
value on the issue of causal relationship.12
Dr. Kodall, on October 6, 2015, reviewed appellant’s history of left knee surgery and
opined that the tissue loss that accompanied a partial meniscectomy could stress the articular
cartilage and arthritis over time. He related that because of her left knee surgery “could have
increased her risk of developing advanced arthritis earlier leading to her present state and
potentially leading to a knee replacement.” Dr. Kodall’s opinion, however, that appellant’s left
knee surgery could have led to the development of arthritis and the need for a total knee
replacement is couched in speculative terms. The Board has held that medical opinions which
are speculative or equivocal in character have little probative value.13
In a report dated January 4, 2016, Dr. Kent obtained a history of appellant experiencing a
June 24, 2002 left knee injury at work with increased left knee pain over the last six months. He
diagnosed degenerative joint disease of the left knee and recommended a total knee arthroplasty.
Dr. Kent did not address the cause of the diagnosed condition or the need for surgery and thus
his opinion is of diminished probative value.14
On appeal appellant contends that her notice of recurrence of a medical condition in
March 2015 was lost and she had difficulty finding a physician who treated workers’
compensation patients. She was not aware that she needed to continue to seek treatment for her
condition and maintains that the medical evidence attributes her current condition to her work
injury. As found, however, appellant failed to submit any medical reports from a physician who,
on the basis of a complete and accurate factual and medical history, concluded that she continued
to require medical treatment due to the accepted work injury. As she has not submitted sufficient
medical evidence showing that she sustained a recurrence of medical condition due to her
accepted employment injury, the Board finds that she has not met her burden of proof.15

11

See O.H., supra note 9.

12

See S.E., Docket No. 08-2214 (issued May 6, 2009); Conard Hightower, 54 ECAB 796 (2003).

13

See L.R. (E.R.), 58 ECAB 369 (2007); Kathy A. Kelley, 55 ECAB 206 (2004).

14

See supra note 12.

15

See E.C., Docket No. 16-0413 (issued June 20, 2016).

5

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that she sustained a recurrence of her
medical condition beginning March 24, 2015 causally related to her June 24, 2002 employment
injury.
ORDER
IT IS HEREBY ORDERED THAT the February 25, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 28, 2016
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6