United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.R., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Cincinnati, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-1055
Issued: August 17, 2017

Case Submitted on the Record

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

JURISDICTION
On April 21, 2017 appellant filed a timely appeal from a March 28, 2017 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days
elapsed from OWCP’s last merit decision dated June 1, 2016, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s requests for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).

1

Appellant’s Application for Review (Form AB-1) filed on April 21, 2017 requests review of a March 23, 2017
OWCP decision. The Board finds that there is no March 23, 2017 decision in her claim and the proper decision date
for review is March 28, 2017. The Board further finds that appellant’s request is limited to the decision dated
March 28, 2017.
2

5 U.S.C. § 8101 et seq.

On appeal appellant contends that an electromyogram and nerve conduction velocity
(EMG/NCV) study she submitted in support of her request for reconsideration was sufficient to
warrant a merit review of her claim.
FACTUAL HISTORY
On January 6, 2004 appellant, then a 34-year-old mail processing clerk, filed an
occupational disease claim (Form CA-2) alleging that she had carpal tunnel syndrome in both
hands as a result of her repetitive work duties. She first became aware of her condition on
December 8, 2003 and realized that it was causally related to factors of her federal employment
on December 15, 2003. On the reverse side of the claim form, the employing establishment
indicated that appellant performed light-duty work following her claimed injury.
On January 20, 2004 OWCP accepted the claim for bilateral carpal tunnel syndrome.
Appellant underwent an authorized right carpal tunnel release and a right flexor
tenosynovectomy on March 5, 2004 and left carpal tunnel release on April 23, 2004 performed
by Dr. Thomas E. Shockley, Jr., an attending Board-certified orthopedic surgeon. OWCP paid
wage-loss compensation benefits. Appellant returned to work on July 6, 2004.
In a November 15, 2004 decision, OWCP terminated appellant’s entitlement to future
wage-loss compensation and medical benefits, effective that same date. It determined that the
weight of the medical evidence rested with the July 6, 2004 medical opinion of Dr. Richard T.
Sheridan, a Board-certified orthopedic surgeon and second opinion specialist, who found that
appellant no longer had any residuals or disability from work causally related to her accepted
employment-related injury.
After 2004, the claim lay dormant until January 20, 2016 when appellant filed a claim for
a schedule award (Form CA-7).
By letter dated April 19, 2016, OWCP referred appellant, together with a statement of
accepted facts (SOAF) and the medical record, to Dr. Edward G. Fisher, a Board-certified
orthopedic surgeon, to determine the nature and extent of her permanent impairment. In a
May 9, 2016 report, Dr. Fisher noted that he examined appellant on May 5, 2016. He reviewed
her history, the SOAF, and the medical record. Dr. Fisher provided findings on examination and
determined that appellant had reached maximum medical improvement (MMI) on August 2,
2004, the date of Dr. Shockley’s examination. He found that, under Table 15-23, page 449, of
the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment3 (hereinafter A.M.A., Guides), appellant had one percent permanent impairment of
each arm due to her work-related bilateral carpal tunnel syndrome and authorized surgeries.
On May 18, 2016 OWCP routed Dr. Fisher’s May 9, 2016 report, the SOAF, and the
medical record, to Dr. Morley Slutsky, an OWCP district medical adviser (DMA) Boardcertified in occupational medicine, for review and a determination on whether appellant
sustained a permanent impairment of her bilateral upper extremities.

3

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

2

In a May 28, 2016 report, Dr. Slutsky reviewed Dr. Fisher’s May 9, 2016 findings and
disagreed with his impairment ratings as he used Table 15-23, page 449 (compression
neuropathy table), without determining whether his report met the criteria of the A.M.A., Guides
(Appendix 15-B, pages 487-90) for the use of this table. He opined that appellant had no
permanent impairment of either arm. Dr. Slutsky noted her diagnosis of bilateral carpal tunnel
syndrome and that he did not have a copy of her EMG/NCV study. He related that, under these
circumstances, the A.M.A., Guides, pages 445 and 446 required the wrists to be rated as
nonspecific wrist pain.4 Using Table 15-3, page 395, the diagnosis of bilateral wrist nonspecific
pain was adjusted to zero percent bilateral upper extremity impairment. Dr. Slutsky determined
that appellant reached MMI on May 5, 2016, the date of Dr. Fisher’s examination.
By decision dated June 1, 2016, OWCP denied appellant’s claim for a schedule award,
finding that she had not established permanent impairment to a scheduled member due to her
accepted work injury. It discussed the evidence of record, including Dr. Slutsky’s May 28, 2016
assessment and found that the evidence of record did not establish that appellant had permanent
impairment of a scheduled member.
In a letter and on an undated appeal request form, received by OWCP on July 6, 2016,
appellant requested reconsideration. She indicated that an EMG/NCV study accompanied her
reconsideration request.
By decision dated November 30, 2016, OWCP denied further merit review of appellant’s
claim finding that she had not raised substantive legal questions, nor had she submitted new and
relevant evidence. It noted that no additional medical evidence had been received as part of the
reconsideration request.
In a letter and an appeal request form, received by OWCP on December 20, 2016,
appellant again requested reconsideration. She again indicated that an EMG/NCV study
accompanied her reconsideration request.
By decision dated March 8, 2017, OWCP denied further merit review of appellant’s
claim. It again found that she neither raised substantive legal questions nor submitted new and
relevant evidence. OWCP noted that no additional medical evidence was received as part of the
reconsideration request.
In a letter received by OWCP on March 23, 2017, appellant again requested
reconsideration. She submitted a June 27, 2016 EMG/NCV study performed by Dr. Ayse L.
Lee-Robinson, a Board-certified physiatrist. Dr. Lee-Robinson provided an impression of
abnormal findings related to the upper extremity studies. Studies testing median nerve function
across the wrist segment were abnormal and consistent with bilateral median mononeuropathy or
carpal tunnel syndromes of moderate/mild degree. Median/radial and median/ulnar sensory
latency comparisons continued to reveal significant prolongation of median sensory latency.
Median/ulnar motor latency comparisons continued to reveal significant prolongation of the
median motor latency. EMG testing of the median innervated abductor pollicis brevis muscles
revealed abnormal motor unit recruitment. A comparison with left 2010 findings revealed
4

Id. at 445-46.

3

minimal improvement of the left carpal tunnel syndrome from a moderate to moderate/mild
degree. Studies testing ulnar nerve function across the elbow segment were also abnormal and
consistent with additional ulnar mononeuropathy at the elbow of moderate degree, left greater
than right. Ulnar motor conduction velocity across the elbow segment was significantly reduced
below the normal greater than 52 meter per second (m/s) to 45 m/s for both left and right side.
Ulnar sensory amplitudes were significantly reduced, left greater than right. EMG testing of left
ulnar hand muscles revealed abnormal motor unit recruitment. A comparison with the 2010
study revealed improvement of the left ulnar motor conduction across the elbow segment from
34.7 and 35.1 m/s to 45 m/s (with normal being greater than 52 m/s). Dr. Lee-Robinson advised
that the current findings were without electrodiagnostic evidence of overlying cervical
radiculopathy, brachial plexopathy, and peripheral polyneuropathy or myopathy.
In a March 28, 2017 decision, OWCP denied appellant’s request for reconsideration
without conducting a merit review of her claim. It found that the evidence submitted was
irrelevant or immaterial.
LEGAL PRECEDENT
Section 8128 of FECA vests OWCP with a discretionary authority to determine whether
it will review an award for or against compensation, either under its own authority or on
application by a claimant.5 Section 10.608(b) of OWCP’s regulations provide that a timely
request for reconsideration may be granted if OWCP determines that the claimant has presented
evidence and/or argument that meet at least one of the standards described in section
10.606(b)(3).6 This section provides that the application for reconsideration must be submitted
in writing and set forth arguments and contain evidence that either: (1) shows that OWCP
erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument
not previously considered by OWCP; or (3) constitutes relevant and pertinent new evidence not
previously considered by OWCP.7 Section 10.608(b) provides that when a request for
reconsideration is timely, but fails to meet at least one of these three requirements, OWCP will
deny the application for reconsideration without reopening the case for a review on the merits.8
ANALYSIS
OWCP issued a June 1, 2016 decision denying appellant’s claim for a schedule award. It
found that the weight of the medical evidence rested with the May 28, 2016 report of
Dr. Slutsky, OWCP’s DMA, who determined that appellant had no permanent impairment of
either upper extremity based upon his diagnosis-based impairment evaluation based upon the
diagnosis of nonspecific wrist pain.

5

5 U.S.C. § 8128(a).

6

20 C.F.R. § 10.608(a).

7

Id. at § 10.606(b)(3).

8

Id. at § 10.608(b).

4

The Board does not have jurisdiction over the June 1, 2016 merit decision and can
consider only whether appellant met any of the requirements of 20 C.F.R. § 10.606(b)(3), which
would prompt OWCP to reopen the case for merit review. The underlying issue in this case is
whether the medical evidence of record demonstrated permanent impairment of a scheduled
member due to the accepted work injury, warranting schedule award compensation under FECA.
That is a medical issue which must be addressed by relevant medical evidence.9
The Board finds that appellant has not shown that OWCP erroneously applied or
interpreted a specific point of law, nor did she advance a relevant legal argument not previously
considered in her March 23, 2017 request for reconsideration. Thus, appellant is not entitled to a
review of the merits of her claim based on the first and second above-noted requirements under
section 10.606(b)(3).
The Board finds, however, that appellant did submit relevant and pertinent new evidence
with her final request for reconsideration made before OWCP. Along with her March 23, 2017
request for reconsideration appellant submitted an EMG/NCV study. She had previously stated
that she had submitted these diagnostic-testing reports along with her July 6 and December 20,
2016 requests for reconsideration. However, OWCP determined that it had not received any
medical evidence with her first two reconsideration requests. Therefore, the EMG/NCV test
results accompanying appellant’s March 23, 2017 request for reconsideration constitute the
submission of new medical records into evidence. Moreover, these new records are found to be
relevant and pertinent as OWCP’s DMA specifically performed a rating examination based upon
the diagnosis of nonspecific wrist pain because the EMG/NCV reports were not of record. As
the DMA’s rating was expressly premised upon the lack of EMG/NCV tests results, their
submission is clearly relevant.
The Board accordingly finds that appellant met the third above-noted requirement of 20
C.F.R. § 10.606(b)(3) in her reconsideration request of March 23, 2017. Appellant submitted
relevant and pertinent evidence not previously considered in her claim for a schedule award.
Thus, pursuant to 20 C.F.R. § 10.608, it is concluded that OWCP improperly denied merit
review.10
On appeal appellant contends that the report of the EMG/NCV study she had submitted in
support of her request for reconsideration was sufficient to warrant a merit review of her claim.
As indicated above, the Board agrees.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s requests for reconsideration
of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

9

See Bobbie F. Cowart, 55 ECAB 746 (2004).

10

See L.H., 59 ECAB 253 (2007); K.M., Docket No. 15-1290 (issued September 23, 2015).

5

ORDER
IT IS HEREBY ORDERED THAT the March 28, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further proceedings consistent
with this opinion, to be followed by an appropriate decision.
Issued: August 17, 2017
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Little Rock, AK, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-475
Issued: May 17, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 26, 2012 appellant, through her attorney, filed a timely appeal of an
August 10, 2012 decision of the Office of Workers’ Compensation Programs (OWCP) denying
her request for merit review of her claim. As more than 180 days elapsed from the most recent
merit decision of June 7, 2011 to the filing of this appeal, pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board does not have
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review on the merits pursuant to 5 U.S.C. § 8128(a).
On appeal appellant, through counsel, contends that the decision of OWCP was contrary
to fact and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 18, 1991 appellant, a 32-year-old postal distribution clerk, filed an
occupational disease claim alleging that work factors caused neck and bilateral arm pain. OWCP
accepted her claim for a cervical strain, bilateral carpal tunnel syndrome, bilateral ulnar nerve
compression and left ulnar nerve transposition. On July 7, 1994 appellant was reemployed as a
full-time modified clerk. By decision dated October 20, 1994, OWCP determined that her actual
earnings in the position represented her wage-earning capacity. It reduced her wage-loss
compensation benefits to zero as the actual earnings in the modified position were equal to the
current pay rate of the job held at the date of the injury.
On September 14, 2010 appellant filed a claim for compensation for the period
September 2 through 10, 2010. Pursuant to the National Reassessment Plan (NRP), there was no
work available within her restrictions. Appellant filed claims for wage-loss compensation for
subsequent periods.
On December 14, 2010 OWCP denied modification of the October 20, 1994 loss of
wage-earning capacity (LWEC). In a decision dated June 7, 2011, the hearing representative
affirmed the December 14, 2010 decision.
In a letter dated June 7, 2012, appellant requested reconsideration of the June 7, 2011
decision, arguing that the original LWEC determination was in error because it was based on an
odd-lot or make-shift job. She noted that the light-duty job to which she was assigned was
designed for her particular needs and was not a regular position readily available to other
employees.
By decision dated August 10, 2012, OWCP denied appellant’s request for
reconsideration. It found that she had not provided new and relevant medical evidence sufficient
to warrant further merit review of the prior decision.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.2 Compensation for loss of wage-earning capacity is based upon loss of the capacity to
earn and not on actual wages lost.3 Compensation payments are based on the wage-earning
capacity determination, which remains undisturbed until properly modified.4

2

5 U.S.C. § 8115(a); K.R., Docket No. 09-415 (issued February 24, 2010); Lee R. Sires, 23 ECAB 12, 14 (1971)
(the Board held that the actual wages earned must be accepted as the measure of a wage-earning capacity in the
absence of evidence showing that they do not fairly and reasonably represent the employee’s wage-earning
capacity).
3

K.R., id.; Ernest Donelson, Sr., 35 ECAB 503, 505 (1984); Roy Matthew Lyon, 27 ECAB 186, 190 (1975).

4

See Sharon C. Clement, 55 ECAB 552, 557 (2004).

2

Modification of a standing loss of wage-earning capacity determination is not warranted
unless there is a material change in the nature and extent of the injury-related condition, the
employee has been trained or otherwise vocationally rehabilitated or the original determination
was erroneous.5 The burden of proof is on the party attempting to show a modification of the
wage-earning capacity determination.6 There is no time limit for appellant to submit a request
for modification of wage-earning capacity determination.7
ANALYSIS
OWCP considered appellant’s letter of June 7, 2012 as a request for reconsideration.
Appellant, however, asserted that the original LWEC decision was erroneous because the
modified position on which it was based was tailored to conform to her unique physical
restrictions and did not constitute a bona fide job for the purposes of determining wage-earning
capacity. The Board finds her letter constituted a request for modification of OWCP’s
October 20, 1994 LWEC determination. Appellant’s request for modification of the LWEC is
not a request for reconsideration of the August 10, 2012 decision under 5 U.S.C. § 8128(a).
Rather, she has requested modification of the October 20, 1994 LWEC determination based on
her argument that it was in error.
On remand, OWCP shall adjudicate appellant’s request for modification of the LWEC
determination and issue a de novo decision, taking into consideration the provisions of FECA
Bulletin No. 09-05.8
CONCLUSION
The Board finds that appellant requested modification of the October 20, 1994 LWEC
determination.

5

Sue A. Sedgwick, 45 ECAB 211, 215-16 (1993); Elmer Strong, 17 ECAB 226, 228 (1965).

6

Selden H. Swartz, 55 ECAB 272, 278 (2004).

7

See D.O., Docket No. 11-1607 (issued April 23, 2012); Daryl Peoples, Docket No. 05-462 (issued July 19,
2005); Emmit Taylor, Docket No. 03-1780 (issued July 21, 2004); Gary L. Moreland, 54 ECAB 638 (2003).
8

FECA Bulletin No. 09-05 (issued August 18, 2009) outlines OWCP’s procedures when limited-duty positions
are withdrawn pursuant to NRP. If, as in the present case, a formal LWEC decision has been issued, OWCP must
develop the evidence to determine whether a modification of that decision is appropriate.

3

ORDER
IT IS HEREBY ORDERED THAT the August 10, 2012 decision of the Office of
Workers’ Compensation Programs is set aside, and the case remanded for further proceedings
consistent with this decision of the Board.
Issued: May 17, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
U.S. POSTAL SERVICE, NORTHERN
ILLINOIS PERFORMANCE CLUSTER,
Carol Stream, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 11-2111
Issued: September 7, 2012

Case Submitted on the Record

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

JURISDICTION
On September 21, 2011 appellant, through his attorney, filed a timely appeal from the
August 16, 2011 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 met his burden of proof to establish that he sustained an
injury on November 15, 2008 as a consequence of his accepted June 23, 2008 work injury.
FACTUAL HISTORY
On June 23, 2008 appellant, then a 51-year-old mail handler driver, filed a traumatic
injury claim alleging that on June 23, 2008 he injured his knees, hands, ankles, back and neck
1

5 U.S.C. §§ 8101-8193.

when he slipped and fell over some forklift blades and landed on his knee and hands. He
stopped work on June 24, 2008.
In a July 16, 2008 report, Dr. Eugene P. Lopez, an attending Board-certified orthopedic
surgeon, diagnosed possible injury to the menisci and patellofemoral cartilage and indicated that
appellant could not work.
On July 25, 2008 OWCP accepted appellant’s claim for bilateral knee sprains and
bilateral ankle sprains. Appellant received continuation of pay through August 7, 2008 and then
received total disability compensation.
In an August 25, 2008 report, Dr. Lopez indicated that appellant continued to have
recurrent effusions, pain and catching in both knees, much greater on the right than the left.
In a November 15, 2008 report, Dr. Rick Stephani, an attending Board-certified
emergency medicine physician, stated that appellant claimed that on that date his knees gave out
and he fell down nine wooden steps at home. Appellant did not report loss of consciousness and
he denied hitting his head or back. Dr. Stephani noted that x-rays showed left knee small joint
effusion, slightly inferior patella and right knee small joint effusion.
A November 17, 2008 magnetic resonance imaging (MRI) scan of appellant’s left knee
showed a rupture of quadriceps tendon and no menisci tears. A November 17, 2008 MRI scan of
his right knee showed an acute rupture of the quadriceps tendon but no menisci tears.
In a November 18, 2008 report, Dr. Lopez indicated that he performed surgical bilateral
quadriceps tendon reattachments for appellant’s quadriceps tendon ruptures. He opined that the
June 23, 2008 injury caused a right knee medial meniscus tear, which in turn caused appellant to
fall down stairs and sustain tears of his bilateral quadriceps tendons.
In a March 23, 2009 report, Dr. David Garelick, a Board-certified orthopedic surgeon,
serving as an OWCP medical adviser, noted Dr. Lopez’ opinion that the June 23, 2008 injury
caused a right knee medial meniscus tear, but indicated that the MRI scan reports in file, dated
November 17, 2008, did not mention any menisci tears. Dr. Garelick opined that it was more
probably true than not that appellant’s fall and consequent quadriceps ruptures were due to his
morbid obesity.2
OWCP determined that there was a conflict in the medical opinion evidence regarding
the cause of appellant’s November 15, 2008 fall and referred him for an impartial medical
examination. Based on the impartial medical examiner’s opinion, it issued a June 9, 2009
decision denying his claim that the November 15, 2008 fall was a consequence of his June 23,
2008 work injury.
After appellant submitted August 4, 2008 reports, which showed possible bilateral tears
of his menisci, OWCP vacated its denial of his claim in a January 11, 2010 decision. An
August 4, 2008 MRI scan test of his right knee showed post-traumatic bruising, a probable small
2

Records from this period reveal that appellant weighed 365 pounds and a body mass index of 42.2.

2

medial meniscus tear and a benign lesion (probably an enchondroma). An August 4, 2008 MRI
scan of appellant’s left knee showed probable small tear of the medial and lateral menisci.
In a January 7, 2010 report, Dr. Lopez wrote that appellant “sustained work[-]related
meniscal tears while waiting for approval for surgical intervention resulting in bilateral
quadriceps tendon ruptures.” He opined that due to appellant’s multiple conditions he was
totally disabled from any occupation.
In a February 3, 2010 report, Dr. Neil Ghodadra, a Board-certified orthopedic surgeon
serving as an OWCP medical adviser, indicated that the August 4, 2008 MRI scan test of
appellant’s right knee was indicative of a medial meniscal tear attributable to the June 23, 2008
work accident. However, the tear was not the bucket handle tear which could lead to a “locked
knee” sensation, which appellant described as the root cause of the fall at home on
November 15, 2008. Dr. Ghodadra concluded that appellant’s November 15, 2008 fall was not
related to his June 23, 2008 work injury.
Based on Dr. Ghodadra’s report, OWCP accepted that appellant sustained a right medial
meniscal tear attributable to the June 23, 2008 work accident. It determined that there was a
conflict in the medical opinion evidence between Dr. Lopez and Dr. Ghodadra regarding the
cause of appellant’s November 15, 2008 fall and referred him to Dr. Paul Belich, a Boardcertified orthopedic surgeon, for an impartial medical examination and opinion on this matter.
In a March 25, 2010 report, Dr. Belich stated that the June 23, 2008 injury was a fall
directly on the front of both knees. MRI scan that were done after this injury did not show a
medial meniscal tear. Dr. Belich indicated that the reading of a very subtle truncation of the
medial meniscus was not consistent with or equal to the reading of a grade 2 signal within the
body of the meniscus which would be a finding consistent with meniscal tear. The radiologist’s
contention that this finding of subtle truncation of the meniscus probably represented a small tear
was speculative and was not compatible with a meniscal tear. Dr. Belich stated that the finding
of a very subtle truncation of the medial meniscus was usually associated with chronic
degenerative wear of the meniscus and was not associated with symptomatic meniscal tears.
Therefore, the assertion that appellant’s meniscal tears caused him to fall down the stairs was not
correct since the MRI scan tests did not show meniscal tears. Dr. Belich stated, “Certainly,
patients who are morbidly obese and who have had problems with multiple joints of their body
necessitating surgeries can have difficulty descending stairs and I believe that this was simply an
accident at home and not related to any speculative meniscal injuries.”
In an April 9, 2010 decision, OWCP denied appellant’s claim for consequential injury
due to the November 15, 2008 fall. It based its decision on the opinion of Dr. Belich.
OWCP authorized right knee surgery and, in an August 20, 2010 surgery report,
Dr. Lopez indicated that he observed a 5 to 10 percent radial lateral meniscus tear and a complex
flap posterior medial meniscus tear. Dr. Lopez performed a partial medial and lateral
meniscectomy, resection of loose body and chondroplasty of lateral patellar facet and lateral and
medial femoral condyles.

3

In a December 6, 2010 decision, OWCP set aside its April 9, 2010 decision and requested
Dr. Belich to clarify his opinion, particularly with regard to whether any accepted work condition
could have caused knee catching on November 15, 2008.
In a January 21, 2011 report, Dr. Belich stated that a meniscal tear is not the only reason
appellant’s knee buckled at the top of the stairs. Degenerative arthritis of the knee and
particularly degenerative arthritis of the patellofemoral joint can cause difficulty with descending
stairs and can cause buckling. Dr. Belich indicated that medical evidence from the period prior
to November 15, 2008 showed that appellant had eburnated bone of the right medial femoral
condyle, lateral femoral condyle and lateral patellar facet. This was the type of advanced
osteoarthritis of the knee that could cause buckling and could cause him to fall down the stairs.
Dr. Belich indicated that any meniscal abnormalities that are seen at the time of the recent
arthroscopy conducted by Dr. Lopez were most likely due to chronic attritional wear of the
menisci secondary to eburnated bone in their respective compartments. He stated, “It is obvious,
therefore, that I believe that degenerative wear in [appellant’s] knee particularly with eburnated
bone in all three compartments of the knee is a sufficient reason for catching and locking in this
morbidly obese patient’s knee.” Dr. Belich concluded that appellant’s November 15, 2008 fall
was not a consequence of his June 23, 2008 work injury.
In a January 27, 2011 decision, OWCP found that the November 15, 2008 fall and related
injuries were not a consequence of his June 23, 2008 work injury. It based its decision on the
opinion of Dr. Belich.
Appellant requested a telephone hearing with an OWCP hearing representative. A
hearing was held on June 8, 2011 and he submitted a February 16, 2011 report, in which
Dr. Lopez asserted that work-related meniscal tears caused appellant’s knee to buckle on
November 15, 2008.
In an August 16, 2001 decision, the hearing representative affirmed OWCP’s January 27,
2011 decision. He indicated that the weight of the medical evidence continued to rest with the
opinion of Dr. Belich.
LEGAL PRECEDENT
The general rule respecting consequential injuries is that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause, which is attributable to the employees own intentional conduct.3
A claimant bears the burden of proof to establish a claim for a consequential injury. As part of
this burden, he must present rationalized medical opinion evidence.4
Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
3

S.S., 59 ECAB 315 (2008).

4

Charles W. Downey, 54 ECAB 421 (2003).

4

the Secretary shall appoint a third physician who shall make an examination.”5 In situations
where there exist opposing medical reports of virtually equal weight and 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.6
ANALYSIS
OWCP accepted that, due to a June 23, 2008 fall, appellant sustained bilateral knee
sprains, bilateral ankle sprains and a right medial meniscal tear. Appellant fell at home on
November 15, 2008 and claimed that this fall and related injuries were a consequence of the
June 23, 2008 work injuries. OWCP denied his claim based on the opinion of Dr. Belich, a
Board-certified orthopedic surgeon who served as an impartial medical specialist.
OWCP properly determined that there was a conflict in the medical opinion between
Dr. Lopez, an attending Board-certified orthopedic surgeon, and Dr. Ghodadra, a Board-certified
orthopedic surgeon acting as an OWCP referral physician, on the issue of whether appellant
sustained a consequential injury.7 In order to resolve the conflict, it properly referred appellant,
pursuant to section 8123(a) of FECA, to Dr. Belich for an impartial medical examination and an
opinion on the matter.8
The Board finds that the weight of the medical evidence is represented by the thorough,
well-rationalized opinion of Dr. Belich, the impartial medical specialist selected to resolve the
conflict in the medical opinion.9 The reports of Dr. Belich establish that appellant did not sustain
a consequential injury when he fell at home on November 15, 2008.
In a March 25, 2010 report, Dr. Belich discussed the MRI scan tests of record and noted
that they did not clearly show that meniscal tears existed after appellant’s June 23, 2008 work
injury. He provided an opinion that appellant’s November 15, 2008 fall at home was not due to a
work-related condition and stated, “Certainly, patients who are morbidly obese and who have
had problems with multiple joints of their body necessitating surgeries can have difficulty
descending stairs and I believe that this was simply an accident at home and not related to any
speculative meniscal injuries.”
In a January 21, 2011 report, Dr. Belich indicated that, even if one accepts that
appellant’s MRI scan test showed a meniscal tear, such a condition was not the only reason that
his knees might have buckled on November 15, 2008. Degenerative arthritis of the knee and
5

5 U.S.C. § 8123(a).

6

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

7

In a January 7, 2010 report, Dr. Lopez indicated that appellant sustained work-related meniscal tears, which
caused the November 15, 2008 fall resulting in bilateral quadriceps tendon ruptures. In contrast, Dr. Ghodadra
indicated on February 3, 2010 that appellant’s November 15, 2008 fall was not work related.
8

See supra note 5.

9

See supra note 6.

5

particularly degenerative arthritis of the patellofemoral joint can cause difficulty with descending
stairs and can cause buckling. Dr. Belich indicated that medical evidence from the period prior
to November 15, 2008 showed that appellant had eburnated bone of the right medial femoral
condyle, lateral femoral condyle and lateral patellar facet. He stated, “It is obvious, therefore,
that I believe that degenerative wear in [appellant’s] knee particularly with eburnated bone in all
three compartments of the knee is a sufficient reason for catching and locking in this morbidly
obese patient’s knee.” Dr. Belich concluded that appellant’s November 15, 2008 fall was not a
consequence of his June 23, 2008 work injury but rather was due to his nonwork-related
degenerative condition and morbid obesity.
The Board has carefully reviewed the opinion of Dr. Belich and notes that it has
reliability, probative value and convincing quality with respect to its conclusions regarding the
relevant issue of the present case. Dr. Belich provided a thorough factual and medical history
and accurately summarized the relevant medical evidence.10 He provided medical rationale for
his opinion by explaining that appellant’s fall at home on November 15, 2008 was not related to
his June 23, 2008 work injuries but rather was related to nonwork factors such as preexisting
osteoarthritis of the knee and morbid obesity.11
For these reasons, appellant did not show that the November 15, 2008 fall and related
injuries were a consequence of his accepted June 23, 2008 work injury.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an injury on November 15, 2008 as a consequence of his accepted June 23, 2008 work
injury.

10

See Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1957).

11

Appellant submitted a February 16, 2011 report in which Dr. Lopez continued to assert that work-related
meniscal tears caused appellant’s knee to buckle on November 15, 2008. However, as Dr. Lopez was on one side of
the conflict, his additional report is essentially duplicative of his stated opinion and is insufficient to give rise to a
new conflict. See Richard O’Brien, 53 ECAB 234 (2001).

6

ORDER
IT IS HEREBY ORDERED THAT the August 16, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 7, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
O.H., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
CORPS OF ENGINEERS, New Orleans, LA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 15-0778
Issued: June 25, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 19, 2015 appellant filed a timely appeal from an October 8, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a recurrence of his
accepted January 13, 2003 injury requiring medical treatment as of March 12, 2011.
FACTUAL HISTORY
This is the second appeal before the Board. Appellant, a 53-year-old civil engineering
technician, injured his lower back on January 13, 2003. He filed a claim for benefits on
1

5 U.S.C. § 8101 et seq.

January 13, 2003 which OWCP accepted for displacement of lumbar intervertebral disc. By
decision dated August 22, 2003, OWCP reduced appellant’s compensation benefits to zero,
finding that he failed to cooperate with rehabilitation efforts based on his refusal to cooperate
with a nurse intervention program. By decision dated December 10, 2003, it denied
reconsideration. In a decision dated September 2, 2004,2 the Board reversed the August 22, 2003
decision and reinstated appellant’s compensation benefits, finding that his refusal to cooperate
with the nurse intervention program did not constitute a refusal to undergo vocational
rehabilitation under section 8113(b) of FECA and section 10.519(c) of OWCP regulations. The
complete facts of this case are set forth in the Board’s September 2, 2004 decision and are
incorporated herein by reference.
By decision dated July 18, 2005, OWCP terminated appellant’s compensation for wageloss benefits, finding that he no longer had any disability due to his accepted displaced lumbar
intervertebral disc condition. Appellant’s medical benefits were not terminated. He retired from
the employing establishment on August 3, 2005.
On March 26, 2014 appellant filed a Form CA-2 claim for a recurrence of medical
condition, alleging that he required medical treatment as of March 12, 2011 causally related to his
accepted January 13, 2003 employment injury.
By letter dated April 11, 2014, OWCP advised appellant that it required additional factual
and medical evidence, including a comprehensive medical report, to support his claim that his
alleged condition as of March 12, 2011 was causally related to his accepted condition of
displacement of his lumbar intervertebral disc. It noted that, according to records on file, he had
not received medical treatment for his work-related condition since May 25, 2005.
On May 19, 2014 appellant submitted 379 pages of brief progress notes and hospital
reports from the North Texas Veterans Administration Health Care System dating from 2006
to 2011. These reports discussed and made findings regarding various medical conditions; most
of these conditions, however, were not accepted by OWCP and were not related to appellant’s
accepted injury.
From appellant’s submission the relevant medical evidence included a clinical note dated
March 24, 2011 from Dr. Madhavi Rajulapalli, a specialist in internal medicine, who noted that
appellant was treated for lumbago. Dr. Rajulapalli also submitted an April 18, 2011 progress
note in which he reported that the results of a magnetic resonance imaging (MRI) scan of the
lumbar spine showed a prominent bulge at L2-3 and a mild disc bulge at L4-5 which slightly
indents the canal without causing severe stenosis. The record also contains progress notes from
January, August, and November 2012 which document that appellant was experiencing low back
pain.
By decision dated October 8, 2014, OWCP denied the claim for a recurrence of his
medical condition.

2

Docket No. 04-584 (issued September 2, 2004).

2

LEGAL PRECEDENT
A recurrence of a medical condition is defined under OWCP’s implementing federal
regulations as a documented need for further medical treatment after release from treatment for
the accepted condition or injury when there is no accompanying work stoppage.3 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.4
An employee has the burden of establishing that he or she sustained a recurrence of a
medical condition that is causally related to his or her accepted employment injury. To meet this
burden, the employee 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 his or her conclusion with sound medical rationale.5
ANALYSIS
In the instant case, appellant has not provided a medical report with a rationalized,
probative opinion which relates his claimed recurrence as of March 12, 2011 to his January 13,
2003 work injury. For this reason, he has not met his burden to establish his claim that he
sustained a recurrence of his medical condition causally connected to his accepted employment
condition. OWCP, therefore, properly denied the claim for a recurrence.
In support of his claim, appellant submitted the March 24, 2011 clinical note and
April 18, 2011 progress report from Dr. Rajulapalli. In his March 24, 2011 note, Dr. Rajulapalli
reported that he was treating appellant for lumbago and advised in his April 18, 2011 progress
report that the results of a lumbar MRI scan showed a prominent bulge at L2-3 and a mild disc
bulge at L4-5. These brief reports, however, did not contain an opinion describing how
appellant’s accepted displacement of lumbar intervertebral disc injury condition would have
been competent to cause the claimed recurrence of medical condition and necessitated medical
treatment in 2011. This is especially critical given the paucity of medical evidence relating to
appellant’s accepted back condition from 2005 to 2011. As noted, appellant has the burden of
proof to submit rationalized medical evidence establishing the relationship of the claimed
recurrence to the original injury. The weight of the medical opinion is determined by the
opportunity for and thoroughness of examination, the accuracy and completeness of physician’s
knowledge of the facts of the case, the medical history provided, the care of analysis manifested,
and the medical rationale expressed in support of stated conclusions.6
Appellant has not submitted a physician’s reasoned opinion in which the physician
explains the reasons why appellant’s current condition as of March 12, 2011 was causally related
3

20 C.F.R. § 10.5(y). See also R.B., Docket No. 13-1663 (issued July 29, 2014).

4

Id. See also S.C., Docket No. 15-146 (issued March 9, 2015).

5

See Ronald A. Eldridge, 53 ECAB 218 (2001).

6

See Ann C. Leanza, 48 ECAB 115 (1996).

3

to the January 13, 2003 work injury and only now required medical treatment. For these reasons,
the medical evidence is insufficient to establish a recurrence of a medical condition causally
related to the accepted displacement of lumbar intervertebral disc injury. The Board therefore
affirms OWCP’s October 8, 2014 decision.
CONCLUSION
The Board finds that appellant has not met his burden to establish a recurrence of his
January 13, 2003 injury requiring medical treatment as of March 12, 2011.
ORDER
IT IS HEREBY ORDERED THAT the October 8, 2014 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: June 25, 2015
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
PHILADELPHIA INTERNATIONAL
AIRPORT, Philadelphia, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 07-2059
Issued: May 21, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 2, 2007 appellant filed a timely appeal from the August 25, 2006 and
February 23, 2007 decisions of the Office of Workers’ Compensation Programs denying a
schedule award. 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 appellant has more than five percent impairment of the right knee,
for which she received a schedule award. On appeal, her attorney asserts there is a conflict of
medical opinion between an Office medical adviser and her attending physician. Counsel
contends that the Office improperly relied on the Office medical adviser to resolve a conflict of
medical opinion.

FACTUAL HISTORY
On June 5, 1992 appellant, then a 52-year-old customs inspector, sustained a right knee
sprain and chondromalacia of the right patella when she slipped and fell on a wet curb. She
underwent right knee arthroscopy on April 23, 1996 to repair a torn lateral meniscus and
chondromalacia. The claim was assigned File No. 03-01716541. The Office subsequently
accepted a December 10, 1998 right knee contusion sustained when appellant was struck by a jet
engine blast.1 The claim was assigned File No. 03-240081.2
Appellant requested a schedule award. She submitted reports from Dr. Roy T. Lefkoe, an
attending Board-certified orthopedic surgeon, dated July 30, 2003 to June 27, 2006. Dr. Lefkoe
noted limited flexion, synovitis, effusion, chondrocalcinosis, crepitus and chondromalacia of the
right knee. He diagnosed degenerative arthritis of the right knee. In a November 17, 2003
report, Dr. Lefkoe stated that he reviewed October 29, 2003 x-rays showing moderate
degenerative arthritis of the right knee with joint space narrowing. He did not provide any
impairment rating or identify the extent of the joint space cartilage narrowing observed.
In a February 4, 2002 report, Dr. David Weiss, an attending osteopathic physician,
reviewed a history of injury and medical treatment. He opined that appellant had reached
maximum medical improvement. On examination of the right knee, Dr. Weiss found effusion,
crepitation and limited flexion and extension. He rated impairment of the right lower extremity
at eight percent. Referring to the fifth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (A.M.A. Guides), Dr. Weiss found that appellant had
five percent impairment due to patellofemoral pain and crepitance under Table 17-31, page 544,3
and three percent for pain under Figure 18-1, page 574.4 He repeated his impairment estimate in
a February 24, 2004 report.
By decision dated February 3, 2006, the Office granted appellant a schedule award for a
five percent impairment of the right lower extremity. Following additional development, the
Office vacated the decision on May 11, 2006 and remanded the case for further development.
On August 7, 2006 the Office referred the medical evidence to an Office medical adviser
to assess the percentage of permanent impairment to appellant’s right lower extremity. In an
August 17, 2006 report, Dr. Arnold T. Berman, the medical adviser, advised that appellant had
five percent impairment under Table 17-31, page 544, of the A.M.A., Guides. He noted that five
1

The Office also accepted neck, back and left knee injuries. On October 1, 2002 and December 24, 2003,
appellant received scheduled awards for 13 percent impairment of the left lower extremity. The only issue on the
present appeal is the percentage of permanent impairment to the right lower extremity.
2

The claims were combined under No. 03-0176541 as the master file.

3

A.M.A., Guides 544, (fifth edition), Table 17-31 is entitled “Arthritis Impairments Based on Radiographically
Determined Cartilage Intervals.” A footnote to the table provides that in an individual with a history of direct
trauma, a complaint of patellofemoral pain and crepitation may receive a five percent impairment rating without
joint space narrowing on x-rays.
4

Id. at 574, (fifth edition), Table 18-1 is entitled “Algorithm for Pain-Related Impairment In Conditions
Associated with Conventionally Ratable Impairment.”

2

percent impairment of the right lower extremity was appropriate for patellofemoral pain and
crepitation without joint space narrowing on x-rays. The medical adviser explained that it was
not appropriate for Dr. Weiss to make an additional rating for pain under Figure 18-1 as Table
17-31 provided a rating for pain.
By decision dated August 25, 2006, the Office found that appellant had not established
that she had more than five percent impairment of the right lower extremity. The Office found
that Dr. Weiss improperly assessed an additional three percent impairment for pain.
Appellant requested a hearing, held December 11, 2006. Her attorney contended that
Dr. Weiss’ assessment was proper. Alternatively, the attorney asserted a conflict of medical
opinion arose between Dr. Weiss and the Office medical adviser. After the hearing, appellant
submitted a statement describing her symptoms. She also submitted progress notes from
Dr. Lefkoe dated October 2006 to July 2007, reiterating previous findings.
By decision dated February 23, 2007, an Office hearing representative affirmed the
August 25, 2006 decision finding that appellant did not have more than five percent impairment
of the right lower extremity. The hearing representative found that the weight of the medical
evidence rested with the Office medical adviser. The hearing representative found that there was
no conflict of opinion as Dr. Weiss’ opinion was diminished by his incorrect application of the
A.M.A., Guides.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act5 provides for
compensation to employees sustaining impairment from 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 as a standard for
evaluation of schedule losses and the Board has concurred in such adoption.6 As of February 1,
2001, schedule awards are calculated according to the fifth edition of the A.M.A., Guides,
published in 2000.7
The standards for evaluation the permanent impairment of an extremity under the
A.M.A., Guides are based on loss of range of motion, together with all factors that prevent a limb
from functioning normally, such as pain, sensory deficit and loss of strength. All of the factors

5

5 U.S.C. §§ 8101-8193.

6

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

7

See FECA Bulletin No. 01-05 (issued January 29, 2001) (schedule awards calculated as of February 21, 2001
should be evaluated according to the fifth edition of the A.M.A., Guides. Any recalculations of previous awards
which result from hearings, reconsideration or appeals should, however, are based on the fifth edition of the A.M.A.
Guides effective February 1, 2001).

3

should be considered together in evaluating the degree of permanent impairment.8 Chapter 17 of
the A.M.A., Guides sets forth the grading schemes and procedures for evaluating impairments of
the lower extremities.9
The fifth edition of the A.M.A., Guides allows for an impairment percentage to be
increased by up to three percent for pain by using Chapter 18, which provides a qualitative
method for evaluating impairment due to chronic pain. If an individual appears to have a painrelated impairment that has increased the burden on his or her condition slightly, the examiner
may increase the percentage up to three percent. However, examiners should not use Chapter 18
to rate pain-related impairments for any condition that can be adequately rated on the basis of the
body and organ impairment systems given in other chapters of the A.M.A., Guides.10
ANALYSIS
The Office accepted that appellant sustained right knee injuries on June 5, 1992 and
December 10, 1998. It granted her a schedule award for a five percent permanent impairment of
the right lower extremity, based on the opinion of Dr. Berman, an Office medical adviser. He
agreed with the rating of five percent impairment to the knee for patellofemoral pain and
crepitation made by Dr. Weiss under Table 17-31. The Board notes that Table 17-31 provides
that direct knee trauma with patellofemoral pain and crepitation is rated as a five percent
impairment of the lower extremity, if there is no joint space narrowing. This rating is in
conformance with the A.M.A., Guides.
Dr. Weiss also allowed an additional three percent for pain, citing to Figure 18-1, page
574. However, as noted by Dr. Berman, this rating does not conform to the procedures of the
Office in making schedule award ratings. The examining physician is cautioned under Chapter
18 of the A.M.A., Guides, not to “use this chapter to rate pain-related impairment for any
condition that can be adequately rated on the basis of the body and oral impairment rating
systems given in other chapters of the A.M.A., Guides.”11 Chapter 18 was formulated to assess
impairment due to “excess pain” in the context of verifiable medical conditions that cause pain.12
In this case, Dr. Weiss properly utilized Table 17-31 to provide a rating for appellant’s right knee
pain. Having done so, he did not provide any rationale for providing any additional impairment
rating for pain conforming to the procedures outlined in Chapter 18. There was no discussion by
the physician as to why Table 17-31 did not adequately rate the patellofemoral pain found on
examination or how there was any “excess” pain due to the accepted right knee condition. The
A.M.A., Guides note that an explanation by the examining physician should be provided in
writing to support a rating made under Chapter 18. In the absence of such rationale, the three
8

See Paul A. Toms, 28 ECAB 403 (1987).

9

A.M.A. Guides 523-61, (5th ed. 2001) Chapter 17, “The Lower Extremities.”

10

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(June 2003); A.M.A., Guides 18.3(b); see also P.C., 58 ECAB ___ (Docket No. 07-410, issued May 31, 2007).
11

A.M.A., Guides 571, 18.3b.

12

Id. at 570.

4

percent rating provided by Dr. Weiss artificially inflated the rating for pain already provided
under Table 17-31. It is well established that, when an impairment rating by the examining
physician does not conform to the protocols of the A.M.A., Guides, the Office may rely on the
rating provided by the Office medical adviser.13 As the impairment rating of Dr. Weiss does not
fully comply with the applicable protocols for determining permanent impairment, his opinion is
of diminished probative value.
Appellant has not submitted any other medical evidence to establish more than five
percent impairment to her right lower extremity. The reports of Dr. Lefkoe, although noting
severe joint space narrowing of the right knee, do not provide any description of impairment
which may be utilized in this case. He did not describe the nature of any x-ray obtained of the
right knee or the extent of any specific cartilage interval loss related to the accepted injury.14
CONCLUSION
The Board finds that appellant has no more than five percent impairment to her right
lower extremity.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 23, 2007 and August 25, 2006 be affirmed.
Issued: May 21, 2008
Washington, DC

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

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

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
13

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3 (October 1990).
See also Tommy R. Martin, 56 ECAB 273 (2005).
14

Chapter 17.2h which rates arthritis noted that any impairment rating of the knee for cartilage interval loss must
be based on a “sunrise view” taken at 40 degrees flexion or on a true lateral view. In turn, the physician must
specify the extent of loss in millimeters. A.M.A., Guides 544.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.A., Appellant
and
DEPARTMENT OF JUSTICE, DRUG
ENFORCEMENT ADMINISTRATION,
New York, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 07-2080
Issued: February 4, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 10, 2007 appellant filed a timely appeal of a May 29, 2007 merit decision of
the Office of Workers’ Compensation Programs, which denied modification of decisions dated
August 16 and December 22, 2006 denying his recurrence of disability 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 sustained a recurrence of disability on July 20, 2004
causally related to his accepted May 6, 1982 employment-related injury.
FACTUAL HISTORY
On May 7, 1982 appellant, then a 48-year-old special agent, filed a traumatic injury claim
alleging that on May 6, 1982 he hurt his right knee, leg, elbow and shoulder while subduing a
defendant who resisted arrest. The Office accepted the claim for internal derangement and torn
cartilage of the right knee and authorized surgery.

On September 9, 2004 appellant filed a claim (Form CA-2a) alleging that he sustained a
recurrence of disability on July 20, 2004. He stated that, following the May 6, 1982 employment
injury, he had limited mobility that varied in duration. Appellant stated that he experienced pain
in his right leg, arm and hands.
By letter dated May 30, 2006, the Office notified appellant that the evidence submitted
was insufficient to establish the claimed recurrence of disability. It advised him about the
additional factual and medical evidence he needed to submit to establish his claim. The Office
requested that the employing establishment submit factual evidence regarding the claim.
The Office received unsigned progress notes covering intermittent dates from April 9,
1984 through July 26, 2005 that addressed appellant’s right knee problem.
A September 30, 2004 medical report of Dr. Nancy E. McHugh, a Board-certified
orthopedic surgeon, reviewed a history of the May 6, 1982 employment injury. She stated that,
since this injury, appellant was not curtailed from repelling out of a helicopter into the jungle and
performing investigations in various locations in South America. Dr. McHugh further stated
that, after appellant retired from the employing establishment, he worked as a state agent. She
reported normal findings on physical examination. On x-ray examination Dr. McHugh reported
a loose body at the medial and lateral joint line, a large retropatellar cyst and an area of obvious
defect around the prostate secondary to radiation therapy. She recommended a magnetic
resonance imaging (MRI) scan to rule out medial and lateral meniscus tears and chondromalacia
patella of the right knee. A September 30, 2004 MRI scan performed by Dr. Elliott H. Sumers, a
Board-certified radiologist, demonstrated a chronic tear of the anterior cruciate ligament (ACL),
a 13 millimeter (mm) cyst beneath the tibial spines that was probably related to an old ACL tear
and thinning of the patellar cartilage. He did not find any evidence of a meniscal tear. On
October 7, 2004 Dr. McHugh prescribed heat and ice for appellant’s right knee.
Reports covering intermittent dates from May 30 to August 1, 2005 appellant’s physical
therapists addressed his right cervical radiculopathy at C7.
Reports and test results of Dr. Kenneth A. Schwartz, a Board-certified radiologist, found
that appellant had bilateral carpal tunnel syndrome, right cervical radiculopathy and degenerative
disc disease at C4-5 to C6-7 with midline disc protrusions at C4-5, C5-6, C6-7 and C7-T1, and
maybe right ulnar neuropathy of the right wrist and a trigger finger in his left middle finger.
A May 31, 2005 report of Dr. Barry I. Krosser, a Board-certified orthopedic surgeon,
stated that appellant’s right knee had a fair amount of crepitus in the patellofemoral joint on
physical examination. He found no acute swelling of the knee. Dr. Krosser recommended a
short course of therapy. In a July 26, 2005 report, he provided normal findings on physical
examination of appellant’s right knee and provided a treatment plan for pain.
In a June 28, 2006 letter, appellant explained that he delayed in filing a CA-2a form
because he believed that his pain would resolve itself with minor home treatments. He filed the
claim when the pain did not resolve. Appellant retired from the employing establishment, noting
that prior to July 20, 2004 he had not experienced any incident that affected his arm and knee.
He related that, while attempting to go up the stairs at home, he experienced pain which

2

continued and significantly limited his mobility. Appellant submitted a June 22, 2006
prescription from Dr. Arthur J. Pidoriano, a Board-certified orthopedic surgeon, which ordered
physical therapy.
In treatment notes dated November 30, 2005 and January 25, 2006, Dr. Krosser
addressed appellant’s right knee complaints. He found a little crepitus behind the right knee but
stated that the knee was neurologically intact. Dr. Krosser also found mostly bad patellofemoral
disease.
In a July 7, 2006 report, Dr. Martin K. Melman, a Board-certified internist, stated that
appellant had sustained traumatic injuries in the line of duty. He opined that appellant recently
experienced a recurrence of right arm, elbow and knee pain which required a work up.
In treatment notes dated July 20, 2006, Dr. Pidoriano opined that appellant sustained
patellofemoral pain following an ACL deficient knee for 20 years.
By decision dated August 16, 2006, the Office denied appellant’s claim. It found that he
failed to establish a recurrence of disability on July 20, 2004 due to his May 6, 1982 employment
injury. The Office found that appellant sustained an intervening injury related to his work in the
security field over the prior 10 years after retiring from the employing establishment.
In a September 7, 2006 letter, appellant requested a review of the written record by an
Office hearing representative.
By decision dated December 22, 2006, a hearing representative affirmed the August 16,
2006 decision. He found that appellant failed to submit rationalized medical evidence
establishing that he sustained a recurrence of disability on July 20, 2004 due to his accepted
employment injury.
In a February 13, 2007 letter, appellant requested reconsideration. In a January 5, 2007
treatment note, Dr. Pidoriano found that appellant suffered from a chronic ACL deficient knee
with secondary chondromalacia of the patella and patellar tendinitis. He opined that these
conditions were directly related to the May 6, 1982 employment injury.
By decision dated May 29, 2007, the Office denied modification of it prior decisions. It
found that appellant failed to establish that he sustained a recurrence of disability on July 20,
2004 due to his accepted May 6, 1982 employment injury.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.1

1

20 C.F.R. § 10.5(x).

3

A person who claims a recurrence of disability has the burden of establishing by the
weight of the substantial, reliable and probative evidence that the disability, for which he claims
compensation is causally related to the accepted employment injury.2 Appellant has the burden
of establishing by the weight of the substantial, reliable and probative evidence a causal
relationship between his recurrence of disability and his employment injury.3 This burden
includes the necessity of furnishing evidence from a qualified physician who, on the basis of a
complete and accurate factual and medical history, concludes that the condition is causally
related to the employment injury.4 Moreover, the physician’s conclusion must be supported by
sound medical reasoning.5
ANALYSIS
The Office accepted that appellant sustained internal derangement of the right knee while
in the performance of duty on May 6, 1982. On September 9, 2004 he sought compensation for
his right knee, arm and hand conditions. The Board finds that appellant has failed to submit
rationalized medical evidence establishing that his claimed recurrent knee, arm and hand
conditions were caused or aggravated by his accepted employment-related internal derangement
of the right knee.
The progress notes covering intermittent dates from April 9, 1984 through July 26, 2005
addressed appellant’s right knee condition. However, the treatment notes do not address the
causal relationship of his current knee problems to his May 6, 1982 employment-related injury.
The Board finds that these treatment notes are insufficient to establish appellant’s claim.
Dr. McHugh’s September 30, 2004 report reviewed a history of the May 6, 1982
employment injury. She stated that, following this injury, appellant did not refrain from jumping
out of a helicopter into the jungle and performing investigations in various locations in South
America. Dr. McHugh indicated that after appellant retired from the employing establishment he
worked as a state agent. She reported normal findings on physical examination. On x-ray
examination Dr. McHugh reported a loose body at the medial and lateral joint line, a large
retropatellar cyst and an area of obvious defect around the prostate secondary to radiation
therapy. Her October 7, 2004 prescription ordered heat and ice for appellant’s right knee.
Dr. McHugh did not state that appellant had any recurrent disability due to his right knee
condition causally related to the accepted May 6, 1982 employment injury. The Board finds that
her reports are insufficient to establish his claim. Although Dr. Sumers found a chronic tear of
the ACL, a 13 mm cyst beneath the tibial spines that was probably related to an old ACL tear and
thinning of the patellar cartilage, he did not relate these findings to appellant’s accepted
employment injury. Similarly, Dr. McHugh did not address whether the MRI scan findings
related to the 1982 employment injury.
2

Kenneth R. Love, 50 ECAB 193, 199 (1998).

3

Carmen Gould, 50 ECAB 504 (1999); Lourdes Davila, 45 ECAB 139 (1993).

4

Ricky S. Storms, 52 ECAB 349 (2001); see also 20 C.F.R. § 10.104(a)-(b).

5

Alfredo Rodriquez, 47 ECAB 437 (1996); Louise G. Malloy, 45 ECAB 613 (1994).

4

Dr. Schwartz stated that appellant had bilateral carpal tunnel syndrome, right cervical
radiculopathy and degenerative disc disease at C4-5 to C6-7 with midline disc protrusions at
C4-5, C5-6, C6-7 and C7-T1 and possible right ulnar neuropathy of the right wrist and a trigger
finger in the left middle finger. The Board notes that the Office has not accepted appellant’s
claim for any right hand, wrist or cervical conditions. Dr. Schwartz failed to address how the
bilateral carpal tunnel syndrome, right cervical radiculopathy and degenerative disc disease with
midline disc protrusions were caused by the May 6, 1982 employment injury. As these
conditions have not been accepted as employment related, appellant has not established disability
caused or contributed to by the 1982 injury to his right knee.
Dr. Krosser found that appellant’s right knee had a fair amount of crepitus in the
patellofemoral joint and there was no acute swelling of the knee. In treatment notes dated
November 30, 2005 and January 25, 2006, he found a little crepitus behind the right knee but
stated that the knee was neurologically intact. Dr. Krosser also noted patellofemoral disease.
However, he did not address whether the crepitus and patellofemoral conditions were caused by
the accepted employment-related injury. The Board finds that Dr. Krosser’s report and treatment
notes are insufficient to establish appellant’s claim. His July 26, 2005 report provided normal
findings on examination of appellant’s right knee. Dr. Pidoriano’s June 22, 2006 prescription
ordered physical therapy. This medical evidence is similarly deficient as the physicians did not
address whether appellant’s current knee condition was causally related to his May 6, 1982
employment-related injury.
On July 20, 2006 Dr. Pidoriano opined that appellant sustained patellofemoral pain
following an ACL deficient knee for 20 years. A January 5, 2007 treatment note stated that
appellant’s chronic ACL deficient knee with secondary chondromalacia of the patella and
patellar tendinitis were directly related to the May 6, 1982 employment injury. While generally
concluding that appellant’s patellar condition was related to the 1982 injury, Dr. Pidoriano did
not provided adequate medical rationale explaining how or why his condition was caused by the
accepted employment injury.6 Such rationale is important given the 24 years between the
accepted injury to the physician’s brief statement on causal relation. The Board finds that his
treatment notes are insufficient to establish appellant’s claim.
Dr. Melman’s July 7, 2006 report stated that appellant had sustained traumatic injuries in
the line of duty. He opined that appellant recently experienced a recurrence of right arm, elbow
and knee pain which required a work up. Dr. Melman did not address how appellant’s recurrent
symptoms were caused by the May 6, 1982 employment-related injury. The Board finds that his
report is insufficient to establish appellant’s claim.
The reports of appellant’s physical therapists do not constitute probative medical
evidence. A physical therapist is not “a physician” as defined under the Federal Employees’
Compensation Act.7

6

See Frederick H. Coward, Jr., 41 ECAB 843 (1990); Lillian M. Jones, 34 ECAB 379 (1982).

7

5 U.S.C. §§ 8101-8193; 8101(2); Vickey C. Randall, 51 ECAB 357, 360 (2000) (a physical therapist is not a
physician under the Act).

5

Appellant failed to submit rationalized medical evidence establishing that his disability
on July 20, 2004 resulted from the effects of his employment-related internal derangement of the
right knee. The Board finds that he has not met his burden of proof.
CONCLUSION
The Board finds that appellant has failed to establish that he sustained a recurrence of
disability on July 20, 2004 causally related to his accepted employment-related injury.
ORDER
IT IS HEREBY ORDERED THAT the May 29, 2007 and December 22 and August 16
2006 decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: February 4, 2008
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Detroit, MI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 15-1912
Issued: January 6, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On September 22, 2015 appellant filed a timely appeal from a September 2, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant has met her burden to proof to establish a bilateral foot
injury causally related to factors of her federal employment.
On appeal, appellant contends that she sustained a foot injury caused by daily walking at
work for 17 years.
1

On appeal, appellant has submitted new evidence. The Board, however, is precluded from reviewing evidence
which was not before OWCP at the time it issued its final decision. 20 C.F.R. § 501.2(c).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 2, 2015 appellant, then a 47-year-old city carrier, filed an occupational disease
claim (Form CA-2) alleging that on May 6, 2015 she first realized that pain in both of her feet
worsened as she walked on her route. She further alleged that on June 2, 2015 she first became
aware of her Achilles tendinitis.
In a June 1, 2015 letter, Dr. Robert M. Koivunen, a podiatrist, diagnosed Achilles
tendinitis. He advised that appellant’s condition occurred due to continuous walking.
Dr. Koivunen further advised that commencing on June 2, 2015 she must wear a controlled ankle
movement (CAM) boot for two months while walking.
By letter dated July 10, 2015, OWCP informed appellant of the deficiencies of her claim
and requested additional medical and factual evidence.
In a statement dated July 27, 2015, appellant described her work duties. She walked on
concrete and made 720 stops on her mail route, 8 to 10 hours a day, 6 days a week. Appellant
experienced daily horrible, sharp, and unbearable pain in her heel and ankles.
In a June 1, 2015 progress note, Dr. Koivunen obtained a history of appellant
experiencing pain behind and above her heels for two months. Appellant did not recall any kind
of injury or trauma. As a postal carrier she advised that she walked long distances and the more
she was on her feet, the more she experienced pain. Appellant had a history of right heel spurs.
Dr. Koivunen obtained a history of her medical and social background. He reported examination
findings and diagnosed Achilles tendinitis of both lower extremities, pain and pes planus of both
feet, equinus deformity of the foot, and a heel spur of unspecified laterality. Dr. Koivunen
advised that appellant could return to work if she were allowed to wear a CAM boot.
In a June 17, 2015 progress note, Dr. Brian J. McManus, a Board-certified internist,
obtained a history that appellant had bilateral heel pain, left greater than right. He also reviewed
her medical and social background and noted that appellant was off work. Dr. McManus
reported findings on examination and diagnosed bilateral foot pain and pes planus, Achilles
tendinitis of both lower extremities, and equinus deformity of the foot. He concluded that
appellant should continue to be off work.
A duty status report (Form CA-17) dated July 6, 2015 contained an illegible signature.
The report provided a history that appellant had Achilles tendinitis and plantar spurs in both feet
and noted that the diagnosis was not due to an injury. It also noted that she was not able to
perform her regular work.
In a July 6, 2015 progress note, Dr. Marc Delara, a podiatry resident, provided a history
that appellant presented with painful Achilles tendinitis, left worse than right. She had sharp
shooting pain that she rated as eight out of 10 when taking her first steps after long periods of
rest. Appellant could not walk barefoot due to pain. Dr. Delara provided a history of her
medical treatment and social background. He reported examination findings and provided an
assessment of Achilles tendinitis of the lower extremities, bilateral foot pain and pes planus,
equinus deformity of the foot, and a heel spur of unspecified laterality.

2

In a July 14, 2015 diagnostic report, Dr. Naomi R. Vandermissen, a Board-certified
radiologist, advised that an ultrasound of the bilateral ankles revealed bilateral Achilles
tendinosis without a well-delineated tear.
By decision dated September 2, 2015, OWCP denied appellant’s occupational disease
claim. It found that she failed to submit a rationalized medical opinion to establish that the
claimed medical condition was causally related to the accepted employment factors.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish a causal relationship is rationalized medical opinion
evidence. The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable certainty, and must be supported by
medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the employee.6 Neither the fact that appellant’s
condition became apparent during a period of employment, nor her belief that the condition was
caused by her employment is sufficient to establish a causal relationship.7
ANALYSIS
OWCP accepted that appellant walked an outdoor route while working as a city carrier at
the employing establishment. The Board finds that the medical evidence of record is insufficient
3

5 U.S.C. §§ 8101-8193.

4

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

5

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB 153 (1989).

6

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, id. at 351-52.

7

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

3

to establish that she sustained a bilateral foot injury caused or aggravated by the accepted work
factors.
Dr. Koivunen’s June 1, 2015 report found that appellant had Achilles tendinitis that was
caused by continuous walking. However, he did not provide an opinion explaining how the
accepted employment factors caused or aggravated the diagnosed condition.8 In a June 1, 2015
progress note, Dr. Koivunen provided a history of appellant’s bilateral heel pain and treatment,
reported that she walked long distances as a postal carrier, and listed findings on examination.
He diagnosed Achilles tendinitis of both lower extremities, bilateral foot pain, pes planus of both
feet, equinus deformity of the foot, and a heel spur of unspecified laterality, but failed to provide
an opinion regarding the causal relationship of his diagnosed conditions. Medical evidence that
does not offer any opinion regarding the cause of an employee’s condition is of limited probative
value.9
Similarly, the progress notes of Drs. McManus and Delara, and the diagnostic test results
of Dr. Vandermissen are of diminished probative value regarding causal relationship. Although
the physicians diagnosed bilateral foot pain and pes planus, bilateral lower extremity Achilles
tendinitis, equinus deformity of the foot, and a heel spur of unspecified laterality, none of the
physicians provided any opinion on the cause of appellant’s diagnosed conditions.10
The July 6, 2015 duty status report, which contained an illegible signature, is insufficient
to establish appellant’s claim. A report that is unsigned or bears an illegible signature lacks
proper identification and cannot be considered probative medical evidence.11
On appeal, appellant contends that she sustained a foot injury caused by daily walking at
work for 17 years. As discussed, she did not submit sufficiently rationalized medical evidence to
establish her claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to meet her burden to proof to establish a
bilateral foot injury causally related to factors of her federal employment.

8

See S.S., 59 ECAB 315 (2008) (medical reports not containing rationale on causal relation are entitled to little
probative value and are generally insufficient to meet an employee’s burden of proof).
9

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

10

Id.

11

Thomas L. Agee, 56 ECAB 465 (2005); Richard F. Williams, 55 ECAB 343 (2004).

4

ORDER
IT IS HEREBY ORDERED THAT the September 2, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 6, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
________________________________________
J.G., Appellant
and
NATIONAL ENDOWMENT FOR THE
ARTS, THE NANCY HANKS CENTER,
Washington, DC, Employer
________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)
)

Docket No. 11-1437
Issued: February 13, 2012

Oral Argument November 15, 2011

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

JURISDICTION
On May 23, 2010 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) merit decision dated November 29, 2010 which found that
appellant did not sustain an injury in the performance of duty. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
injury in the performance of duty on April 15, 2010.
FACTUAL HISTORY
On July 27, 2010 appellant, then a 50-year-old computer specialist, filed a traumatic
injury claim alleging that, on April 15, 2010, he pulled a muscle in the right shoulder and arm
1

5 U.S.C. § 8101 et seq.

when he moved a printer at work. He indicated that his condition never healed and suspected
that he had nerve damage. Appellant did not stop work.
In a September 10, 2010 report, Dr. Cecily Havert, a family practitioner, advised that
appellant related that he had a right shoulder injury at work on April 15, 2010 and he was now
having pain. Appellant was lifting a heavy printer and immediately felt pain in his right
shoulder, which was persisting and even getting worse. Dr. Havert advised that his range of
motion was severely diminished and he felt that his strength was also diminished. There was no
numbness or tingling in his arm and no neck pain. Dr. Havert diagnosed rotator cuff syndrome
of shoulder and allied disorders.
In a September 11, 2010 report, Dr. Havert noted that on April 15, 2010 appellant moved
a printer to fourth floor storage and pulled a muscle in his right arm and shoulder. She
determined that he had decreased range of motion in pain and rotator cuff musculature in the
right shoulder. Dr. Havert diagnosed rotator cuff tendons tear and adhesive capsulitis. She
indicated that appellant had disability and checked “yes” in response to whether the diagnosed
condition was due to the work incident.
By letter dated October 27, 2010, OWCP advised appellant that when his claim was
initially received, it appeared to be a minor injury that resulted in minimal or no lost time from
work. Appellant was informed that because the employing establishment did not controvert
continuation of pay, or challenge the merits of the case, a payment of a limited amount of
medical expenses was administratively approved. However, the merits of the claim were not
formally considered. OWCP advised appellant that additional factual and medical evidence was
needed. It explained that a physician’s opinion was crucial to his claim and allotted appellant 30
days within which to submit the requested information.
A September 10, 2010 x-ray read by Dr. John De Grazia, a Board-certified diagnostic
radiologist, revealed a normal right shoulder.
In an undated statement, received by OWCP on November 23, 2010, appellant described
his injury at work on April 15, 2010. On April 15, 2010 he had to replace an old printer, which
weighed approximately 98 pounds, with a new one, and moved it to a storage room. While
moving the printer, appellant felt a mild shock, which was followed by loss of strength and
thought he pulled a muscle or pinched a nerve in his right arm or shoulder. He explained that he
did not seek medical treatment right away as he thought he could nurse his arm back to health.
However, when appellant extended and twisted or stretched his right arm, he felt severe pain. He
provided OWCP with a copy of the specifications for the printer and a CD. Appellant also
indicated that he was submitting a CD with digital records and an x-ray from his physician
addressing the medical evidence. However, the CD did not contain any medical evidence.
By decision dated November 29, 2010, OWCP denied appellant’s claim on the grounds
that he did not establish an injury as alleged. It found that the medical evidence was insufficient
to establish that appellant’s condition was caused by employment duties.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA2 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
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged.5 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.6
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.7
ANALYSIS
Appellant alleged that on April 15, 2010 he pulled a muscle when he moved a printer in
the right shoulder and arm. There is no dispute that appellant moved a printer on April 15, 2010.
OWCP found that the claimed incident occurred as alleged.
The Board finds that the medical evidence is insufficient to establish that the employment
incident caused an injury. The medical reports of record do not establish that moving a printer
on April 15, 2010 caused a personal injury. It provides no rationale on causal relations or
explanation of the mechanism of injury.

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

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

6

Id.

7

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

3

In a September 10, 2010 report, Dr. Havert advised that appellant related that he
sustained a right shoulder injury at work on April 15, 2010 and he was experiencing pain. She
noted the history of injury that appellant was lifting a heavy printer and immediately felt pain in
his right shoulder. Dr. Havert diagnosed rotator cuff syndrome of shoulder and allied disorders.
However, she did not address how lifting a printer would cause or contribute to a diagnosed
condition. Medical reports not containing rationale on causal relation are entitled to little
probative value and are generally insufficient to meet an employee’s burden of proof.8
In a September 11, 2010 attending physician’s report, Dr. Havert noted a history that on
April 15, 2010 appellant moved a printer to storage and pulled a muscle in his right arm and
shoulder. She diagnosed rotator cuff tendons tear, and adhesive capsulitis and indicated that
there was a disability for work. Dr. Havert indicated that appellant was disabled from work and
checked a box “yes” on the form report to indicate that his condition was due to the work
incident. The Board notes that the checking of a box “yes” in a form report, without additional
explanation or rationale, is not sufficient to establish causal relationship.9 Consequently, the
Board finds that the evidence from Dr. Havert is insufficient to establish appellant’s claim.
Other medical evidence submitted by appellant, for example the September 1, 2010 x-ray
report, did not address causal relationship and is insufficient to establish a work-related
condition.
There is insufficient medical evidence from a physician addressing how the employment
activities on April 15, 2010 caused or aggravated appellant’s right shoulder condition.
Consequently, he has not established that the April 15, 2010 employment incident caused or
aggravated a specific injury.
On appeal, appellant contends that he established his claim. As noted, the medical
evidence is not sufficient on the issue of causal relation. The Board notes that subsequent to
OWCP’s November 29, 2010 decision, appellant submitted additional medical evidence. The
Board has no jurisdiction to review this evidence for the first time on appeal.10 Appellant may
submit new evidence or argument with a written request for reconsideration to OWCP within one
year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through
10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
sustained an injury in the performance of duty.

8

S.S., 59 ECAB 315 (2008).

9

Linda Thompson, 51 ECAB 694 (2000); Calvin E. King, 51 ECAB 394 (2000).

10

20 C.F.R. § 501.2(c); James C. Campbell, 5 ECAB 35 (1952).

4

ORDER
IT IS HEREBY ORDERED THAT the November 29, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 13, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5