United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, Brooklyn, NY, Employer
__________________________________________

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

Docket No. 08-924
Issued: September 16, 2008

Case Submitted on the Record

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

JURISDICTION
On February 11, 2008 appellant, through his attorney, filed a timely appeal of the Office
of Workers’ Compensation Programs’ merit decisions dated April 3 and December 26, 2007
denying appellant’s claim for a recurrence. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the
Board has jurisdiction over the merits of this claim.
ISSUE
The issue is whether appellant has established that he sustained a recurrence of disability
on January 4, 2007 causally related to his June 19, 2004 accepted work injury.
FACTUAL HISTORY
On July 9, 2004 appellant, then a 35-year-old mark-up clerk, filed a traumatic injury
claim alleging that, on June 19, 2004, “due to requirement of clean-up/shut down of operational
duties performed by myself,” he sustained major stiffness and soreness in his lower back. By
letter dated August 31, 2004, the Office accepted appellant’s claim for lumbar strain.
Appropriate medical and compensation benefits were paid. Appellant had a magnetic resonance

imaging (MRI) scan on December 7, 2004 which was interpreted as showing degenerative discs
with bulging annular fibrosis at L4-5 and L5-S1 and slight to mild bilateral facet arthropathy at
L4-5 and L5-S1. In a note dated January 23, 2006, Dr. Suresh Patel, a Board-certified internist,
indicated that appellant could return to work full duty on January 30, 2006. Appellant returned
to work full duty for the employing establishment on January 30, 2006.
In a duty status report dated November 17, 2006, Dr. Patel listed appellant’s diagnosis as
herniated nucleus pulposus L4-5 and L5-S1. He limited appellant to intermittent lifting/carrying
of less than 10 pounds and intermittent sitting, standing, bending, stooping, twisting, pulling,
pushing, grasping, fine manipulation and reaching above his shoulder.
On January 5, 2007 appellant filed a claim alleging a recurrence of the June 19, 2004
employment injury on January 4, 2007. In a statement accompanying the claim, he alleged that
he returned to work full-time full duty on January 30, 2006, but that this position was abolished
in mid-February due to the operational needs of the employing establishment. Appellant noted
that he was reassigned to a position with a full-duty accommodation based on his job injury to
his lower back. He indicated that he worked in this position but that in May 2006 he was placed
on an off-duty status for one week in order to update his limitations. Appellant noted that he did
so and accepted an offer performing the same duties on May 30, 2006. He noted that he was
now filing a recurrence of disability claim based on the employing establishment’s unforeseen
withdrawal of his modified-duty assignment. The employing establishment controverted the
claim for recurrence. It contended that it offered appellant a limited-duty assignment on May 6,
2006 after he had worked full duty for several months. The employing establishment noted that
he was instructed to file a Form CA-2a back then, but refused to do so. It contended that
appellant decided to file the recurrence claim because he was dissatisfied that his job offer had
been changed.
By letter dated January 25, 2007, the Office requested that appellant submit further
information. By letter dated February 9, 2007, appellant submitted further information including
limited-duty offers by the employing establishment. On May 15, 2006 the employing
establishment offered appellant a position boxing mail with a work restriction of no
lifting/pulling/pushing more than 10 pounds, no walking tasks and a chair with back support.
Appellant accepted this position. On January 4, 2007 the employing establishment made an offer
for appellant to work as a modified clerk. The physical requirements of this position involved no
lifting over 10 pounds. Appellant accepted the offer, but stated, “I am accepting this job offer
under mental duress. I have not been afforded an ample opportunity to review it.” Appellant
asked the Office to reopen his original case and return him to his original accommodations.
By decision dated April 3, 2007, the Office denied appellant’s claim for recurrence of
disability.
On April 30, 2007 appellant requested an oral hearing before an Office hearing
representative, which was held on October 22, 2007. He testified that when he was released to
work on January 30, 2006 he was under no restrictions, that he returned to work as a mark-up
clerk but that the unit was disbanded and he was placed in a position that involved “continuous
standing and laboring.” Appellant testified that he noted that, after he said something, he was
“immediately moved to a nonlaborious position.” He noted that he worked in that assignment

2

for 11 months, but that he was reassigned in January 2007 to a different facility, and that after a
week in the new assignment he was given a job that involved standing. Other temporary
assignments followed and on February 14, 2007 he was placed on a nonduty status. The record
was kept open for 30 days to allow appellant the opportunity to submit medical evidence in
support of his claim. No new medical evidence was received.
The employing establishment filed comments in response to the hearing. The employing
establishment contended that appellant returned to full unrestricted duty in January 2006 and that
there was no medical documentation that substantiated his claim of a recurrence of disability.
By decision dated December 26, 2007 the hearing representative affirmed the Office’s
April 3, 2007 decision denying appellant’s claim for a recurrence of disability.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.1 An individual who claims a recurrence of disability resulting from an
accepted employment injury has the burden of establishing that the disability is related to the
accepted injury. This burden requires furnishing medical evidence from a physician who, on the
basis of a complete and accurate factual and medical history, concludes that the disabling
condition is causally related to the employment injury and who supports that conclusion with
sound medical reasoning.2
ANALYSIS
In the instant case, the Office accepted that appellant sustained a lumbar strain as a result
of his work duties on June 19, 2004. Although there is evidence in the record that appellant had
a herniated nucleus pulposus, the Office never accepted that this condition was the result of his
June 19, 2004 injuries. Appellant’s claim was accepted solely for lumbar strain. He returned to
full-duty work on January 30, 2006. Dr. Patel noted no restrictions at that time. Subsequently,
he indicated that appellant had work restrictions, and there is evidence that the employing
establishment accommodated these restrictions for some time. However, there was no evidence
that these new restrictions were necessitated because of a recurrence in his lumbar strain; nor is
there any evidence of a spontaneous change in appellant’s medical condition which resulted from
the previous injury without an intervening injury or new exposure to the work environment that
caused the injury. In fact, appellant had successfully returned to full-duty work and has not
presented any medical evidence showing that he was unable to perform his assigned duties or
that the employing establishment withdrew his job as he contends. He has submitted no
physician reports that state he is disabled due to a recurrence of his accepted injury. Accordingly
appellant has not established a recurrence of disability.

1

20 C.F.R. § 10.5(x).

2

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

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CONCLUSION
The Board finds that appellant has not established that he sustained a recurrence of
disability on January 4, 2007 causally related to his June 19, 2004 accepted work injury.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 26 and April 3, 2007 are affirmed.
Issued: September 16, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 12-748
Issued: January 11, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 15, 2012 appellant filed a timely appeal from a February 2, 2012 decision of
the Office of Workers’ Compensation Programs (OWCP) denying his claim for a schedule
award. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has established that he sustained permanent impairment of
his left leg.
On appeal, appellant argues that he is entitled to a schedule award. He contends that, due
to his injury, he had to retire early. Appellant walks with a limp and has not recovered 100
percent from his employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 24, 2010 appellant, then a 60-year-old mail handler, filed a traumatic injury
claim alleging that he strained his left knee that day while moving a wooden skid. On June 22,
2010 OWCP accepted his claim for left knee medial meniscus tear. On July 23, 2010 appellant
underwent an arthroscopic partial medial meniscectomy of his left knee.
On July 30, 2011 appellant filed a claim for a schedule award. In a July 26, 2011 report,
Dr. Frank Pupparo, a Board-certified orthopedic surgeon, stated that appellant had considerable
discomfort, particularly in the medial side of the left knee, one year following arthroscopic
surgery. He opined that appellant had reached maximum medical improvement and that his
schedule loss was 15 percent due to status post medial meniscectomy of the left knee
approximately one year ago.
On August 11, 2011 OWCP accepted appellant’s claim for other and unspecified
derangement of left medial meniscus. It informed him of the necessity of submitting a report in
support of his claim for a schedule award that included an impairment rating based on the criteria
of the American Medical Association, Guides to the Evaluation of Permanent Impairment (6th
ed. 2009) (A.M.A., Guides).
By letter dated August 17, 2010, OWCP accepted appellant’s claim for a recurrence on
July 23, 2010. With regard to his schedule award, it again informed him to submit a rationalized
impairment rating applying the A.M.A., Guides.
By letter dated September 6, 2011, appellant informed OWCP that his doctor’s office
misplaced OWCP’s letter that he had delivered a new one; he was not sure whether his doctor
would respond in time.
By decision dated September 15, 2011, OWCP denied appellant’s claim for a schedule
award.
By letter dated October 31, 2011, appellant requested reconsideration. In a September 9,
2011 report, Dr. Pupparo stated that appellant had a 10 percent loss of use of his left knee. He
noted that appellant underwent an arthroscopic partial medial meniscectomy of his left knee on
July 23, 2010 for a work-related injury which occurred on February 24, 2010. Dr. Pupparo noted
that it had been over a year since appellant had surgery and he had reached maximum medical
improvement. He rated the scheduled loss under the medical guidelines of the New York
Workers’ Compensation Board dated June 1996.
By decision dated February 2, 2012, OWCP denied appellant’s claim for a schedule
award. It found that Dr. Pupparo did not list the date that maximum medical improvement had
been reached or use the sixth edition of the A.M.A., Guides in rating of permanent impairment.

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LEGAL PRECEDENT
The schedule award provision of FECA2 and its implementing regulations,3 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law for all claimants, OWCP has adopted the A.M.A.,
Guides as the uniform standard applicable to all claimants.4 For decisions after February 1,
2001, the fifth edition of the A.M.A., Guides is used to calculate schedule awards.5 For
decisions issued beginning May 1, 2009, the sixth edition of the A.M.A., Guides, will be used.6
ANALYSIS
Appellant’s claim was accepted for a left knee injury. OWCP advised him of the
necessity of submitting an impairment rating in accordance with the A.M.A., Guides. The
requested medical evidence was not received.7 The Board notes that Dr. Pupparo’s report is of
limited probative value. Dr. Pupparo determined that appellant had a 10 percent impairment to
his left knee pursuant to the New York Workers’ Compensation Board’s medical guidelines. He
did not rate appellant under the A.M.A., Guides, the standard adopted by OWCP and approved
by the Board as appropriate for evaluating schedule losses.8 Dr. Pupparo did not provide a
sufficiently well-rationalized opinion or include clinical findings that would assist an OWCP
medical adviser or the Board in visualizing the impairment. As appellant did not submit
sufficient medical evidence to support his claim of a schedule award, OWCP properly denied his
claim.
Appellant may request a schedule award or an increased schedule award based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established that he is entitled to a schedule award.

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

Id. at § 10.404(a).

5

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

6

FECA Bulletin 09-03 (issued March 15, 2009).

7

Id.

8

See N.T., Docket No. 09-814 (issued November 2, 2009).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 2, 2012 is affirmed.
Issued: January 11, 2013
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Kingston, PA, Employer
__________________________________________

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Appearances:
John G. Swatkoski, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-2094
Issued: July 2, 2012

Case Submitted on the Record

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

JURISDICTION
On September 23, 2011 appellant, through her attorney, filed a timely appeal from an
April 27, 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 the case.
ISSUE
The issue is whether OWCP properly terminated appellant’s wage-loss compensation and
medical benefits effective December 20, 2009.
FACTUAL HISTORY
On August 27, 2003 appellant, then a 51-year-old letter carrier, injured her back in the
performance of duty. A September 2, 2003 electromyogram (EMG) obtained by Dr. Leroy J.
Pelicci, a Board-certified neurologist, revealed bilateral L4, L5 and S1 nerve root involvement
and spasms from T10 through T12. A September 15, 2003 magnetic resonance imaging (MRI)
1

5 U.S.C. § 8101 et seq.

scan report from Dr. Juan D. Gaia, a Board-certified diagnostic radiologist, indicated that
appellant sustained L2-3, L3-4, L4-5 and L5-S1 disc herniations. By decision dated
November 5, 2003, OWCP accepted her traumatic injury claim for acute exacerbation of lumbar
strain.2 After appellant was discharged to restricted duty, she sustained recurrence of disability
on September 13, 2004.3 She did not return to work and received disability compensation
accordingly.4
An August 14, 2006 MRI scan report from Dr. Michael Yuz, a Board-certified diagnostic
radiologist, diagnosed L2-3, L3-4, L4-5 and L5-S1 disc protrusions, L4-5 disc extrusion and
canal stenosis and hypertrophic facet disease while a November 10, 2006 EMG conducted by
Dr. John A. Kline, Jr., a Board-certified physiatrist, showed electrodiagnostic evidence of left S1
radiculopathy.
Progress notes for the period May 21, 2007 to August 12, 2008 from Dr. Toni Jo H.
Parmelee, an osteopath and Board-certified family practitioner, diagnosed lumbar intervertebral
disc degeneration, lumbago sciatica due to disc displacement and radiculopathy. She related that
appellant had limited lumbar range of motion (ROM), decreased lordotic curve, paraspinal
muscle spasms and tenderness, sacroiliac joint tenderness, right extensor hallucis longus
weakness and positive bilateral straight leg raise maneuver on multiple examinations.5
In an April 17, 2007 report, Dr. William R. Prebola, Jr., a Board-certified physiatrist,
examined appellant and observed limited lumbar ROM, paraspinal spasms, left lumbar trigger
point, sacroiliac tenderness, slightly-antalgic left gait and positive Gaenslen’s and Lasegue’s
maneuvers. He also noted Dr. Kline’s November 10, 2006 EMG findings. Dr. Prebola
diagnosed lower back pain and left-sided lumbar radiculopathy. In a follow-up report dated
September 4, 2007, he added a diagnosis of disc herniation and opined that appellant “remains
on total disability status.”6
OWCP referred appellant to Dr. Robert F. Draper, Jr., a Board-certified orthopedic
surgeon, for a second opinion examination. In an October 27, 2008 report, Dr. Draper disagreed
with Dr. Gaia’s interpretation of the September 15, 2003 MRI scan, stating that the scan actually
exhibited normal L2-3, L3-4 and L5-S1 discs and a bulging L4-5 disc. He also remarked that the
August 14, 2006 MRI scan demonstrated bulging L2-3, L3-4 and L5-S1 discs and L4-5 disc
2

In addition, OWCP accepted three prior claims for lumbar and lumbosacral sprains arising on November 26,
1994; October 8, 1996; and August 11, 1998. See it File Nos. xxxxxx944, xxxxxx628 and xxxxxx966. OWCP
subsequently combined these claims with the present one.
3

The foregoing information was incorporated into the September 11, 2008 statement of accepted facts.

4

OWCP originally terminated appellant’s wage-loss compensation and medical benefits on September 14, 2006.
OWCP’s hearing representative later reversed the decision on June 7, 2007. Appellant was referred for vocational
rehabilitation services in early 2009. Following issuance of OWCP’s November 4, 2009 notice of proposed
termination of wage-loss compensation and medical benefits, infra, the vocational rehabilitation counselor closed
services effective November 11, 2009.
5

The case record contains additional progress notes from Dr. Parmelee for the period September 23, 2008 to
November 18, 2010, which essentially reiterated content found in earlier notes.
6

Dr. Prebola presented objective findings akin to those contained in his preceding report.

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herniation. On examination, Dr. Draper observed limited lumbar ROM and positive Waddell’s
signs. He diagnosed resolved lumbar strain and preexisting degenerative disc disease at L2-3,
L3-4, L4-5 and L5-S1. Dr. Draper opined that appellant’s symptoms resulted from her disc
protrusions and explained:
“I believe that the worsening of the disc protrusion[s] is not associated with the
[August 27, 2003] accident as it occurred between the two dates of the MRI
[scan] studies, indicating progression of the degenerative lumbar disc disease.
This progression is not causally related to the accepted lumbar strain.”
He concluded that appellant was totally disabled for the two-month period following the
August 27, 2003 traumatic incident, but was thereafter capable of performing modified work on
a full-time schedule. Dr. Draper restricted pushing, pulling and lifting to items weighing less
than 20 pounds.
OWCP asked Dr. Prebola in a November 12, 2008 letter to submit a detailed response to
Dr. Draper’s October 27, 2008 report. In a November 17, 2008 letter, Dr. Prebola commented,
“I have read Dr. Draper’s [second opinion] report and I disagree with his findings....” OWCP
determined that a conflict in medical opinion existed between Drs. Prebola and Draper regarding
the extent of work-related residuals and whether appellant remained disabled as a result of her
accepted condition and referred the case to Dr. Barry I. Berger, a Board-certified orthopedic
surgeon, for a referee examination.
In a January 12, 2009 report, Dr. Berger reviewed the September 11, 2008 statement of
accepted facts and the medical file. On examination, he observed limited lumbar ROM and
diminished left L5 sensation that was “subjective” in the absence of lower extremity atrophy.
Dr. Berger pointed out that the diagnostic records, notably the September 15, 2003 and
August 14, 2006 MRI scans, documented L4-5 central disc protrusion and canal stenosis,
multilevel degenerative disc disease and hypertrophic facet disease, but did not definitively
establish L4-5 disc herniation. He opined that, while appellant was temporarily disabled for up
to six months due to her work-related lumbar strain on August 27, 2003, she was thereafter able
to return to full-time employment with permanent restrictions, which included limiting walking
and standing to two hours each, bending, stooping, squatting and kneeling to less than an hour
each and lifting less than 20 pounds on occasion. Dr. Berger specified that her symptoms were
not residuals of the accepted condition, but instead resulted from an underlying degenerative
condition.
OWCP received additional medical evidence. In a November 21, 2008 report,
Dr. Prebola reiterated that he disagreed with Dr. Draper’s October 27, 2008 second opinion
report and opined that appellant was totally disabled. On examination, he observed limited
lumbar ROM, paraspinal spasms, left lower extremity numbness, antalgic left gait and a positive
Lasegue’s maneuver. Dr. Prebola diagnosed work-related lumbar disc herniation and myofascial
spasm. He added in a March 20, 2009 report that appellant sustained lumbago.7
A December 10, 2008 EMG conducted by Dr. Christopher Castro, an osteopath Boardcertified in physical medicine and rehabilitation, showed electrodiagnostic evidence of left L5
7

Dr. Prebola presented objective findings akin to those contained in his preceding report.

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and right S1 radiculopathy while Dr. Parmelee’s March 13, 2009 report stated that the
medication Cymbalta was medically necessary to treat appellant’s herniated lumbar disc and
radiculopathy.
In June 29 and August 4, 2009 letters to Dr. Berger, OWCP requested a supplemental
opinion. It noted appellant’s previous claims, provided medical records regarding those claims8
and asked if his review of those records caused any change in his previous opinion. OWCP also
sent a June 29, 2009 letter to Dr. Draper providing the same information and asking the same
question.
In an August 14, 2009 report, Dr. Berger noted reviewing the additional records and
advised that appellant’s restrictions were due to a nonwork-related degenerative condition and
that she did not have any particular residuals of her work-related conditions. He advised that the
additional records did not change his opinion.
In a September 9, 2009 report, Dr. Draper noted reviewing the additional material
provided by OWCP, including Dr. Berger’s January 12, 2009 report. He advised that the
additional information confirmed his original opinion and that his conclusions were consistent
with those of Dr. Berger.
On November 4, 2009 OWCP issued a notice of proposed termination of wage-loss
compensation and medical benefits. It advised that both Dr. Draper and Dr. Berger found that
the review of additional medical records confirmed their original conclusion.
Counsel argued in a December 4, 2009 letter that Dr. Berger’s January 12, 2009 report
was suspect and that appellant experienced ongoing back pain that rendered her permanently and
totally disabled.9
By decision dated December 10, 2009, OWCP terminated appellant’s medical and wageloss benefits effective December 20, 2009, finding that the weight of the medical evidence
established that her accepted employment condition resolved.
In a March 11, 2010 report, Dr. Prebola examined appellant and observed limited lumbar
ROM, paraspinal spasms, diminished sensory function in the left lower extremity, antalgic left
gait and a positive Lasegue’s maneuver. He diagnosed lumbar disc herniation, myofascial pain
and radiculopathy and restricted lifting to items weighting less than 10 pounds and driving to less
than one hour.
Counsel requested a telephonic hearing, which was held on February 23, 2011. Appellant
testified that she did not have a back condition prior to working for the employing establishment.
She remained symptomatic and on pain medication since she was taken off duty in 2004.
Following the hearing, OWCP received additional evidence. In a February 17, 2011
work capacity evaluation form, Dr. Parmelee checked the “no” box indicating that appellant was
8

See supra note 2.

9

Appellant also submitted an October 20, 2009 report from Dr. Prebola, which essentially reiterated content
found in the November 21, 2008 and March 20, 2009 reports.

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unable to return to her previous federal employment in any capacity. She permanently
proscribed lifting, squatting, kneeling and climbing and limited other activities of daily living.
Dr. Prebola noted in a March 10, 2011 report that the August 14, 2006 MRI scan exhibited L4-5
and L5-S1 disc herniations.10 In a March 21, 2011 letter, counsel reargued that Dr. Berger’s
January 12, 2009 report was based on “surmise, speculation and unwarranted presumption.”
On April 27, 2011 OWCP’s hearing representative affirmed the December 10, 2009
decision.
LEGAL PRECEDENT
Once OWCP has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits,11 which includes furnishing rationalized medical opinion
evidence based on a proper factual and medical background.12 Having determined that an
employee has a disability causally related to his or her federal employment, OWCP may not
terminate compensation without establishing that the disability ceased or was no longer related to
the employment.13 The right to medical benefits for an accepted condition, on the other hand, is
not limited to the period of entitlement to disability compensation. To terminate authorization
for medical treatment, OWCP must establish that an employee no longer has residuals of an
employment-related condition, which would require further medical treatment.14
If there is a conflict in medical opinion between the employee’s physician and the
physician making the examination for the United States, OWCP shall appoint a third physician,
known as a referee physician or impartial medical specialist, to make what is called a referee
examination.15 Where OWCP has referred appellant to a referee physician to resolve a conflict,
the referee’s opinion, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.16
ANALYSIS
OWCP accepted that appellant sustained work-related exacerbation of lumbar strain on
August 27, 2003 as well as recurrence of disability on September 13, 2004, after which she did
not return to her federal employment. Dr. Prebola, her attending physician, opined in April 17
and September 4, 2007 reports that she was totally disabled. On the other hand, Dr. Draper,
OWCP’s second opinion examiner, concluded in an October 27, 2008 report that, while appellant
10

Dr. Prebola presented objective findings, diagnoses and work restrictions similar to those contained in earlier
reports.
11

I.J., 59 ECAB 408 (2008); Fermin G. Olascoaga, 13 ECAB 102, 104 (1961).

12

D.C., Docket No. 09-1070 (issued November 12, 2009); Larry Warner, 43 ECAB 1027 (1992).

13

I.J., supra note 11.

14

L.G., Docket No. 09-1692 (issued August 11, 2010); Furman G. Peake, 41 ECAB 361, 364 (1990).

15

See 5 U.S.C. § 8123(a); 20 C.F.R. § 10.321.

16

L.W., 59 ECAB 471 (2007); James P. Roberts, 31 ECAB 1010 (1980).

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was totally disabled for a two-month period due to her accepted condition, her present symptoms
were nonindustrial as they stemmed from preexisting degenerative lumbar disc disease. OWCP
determined that a conflict in medical opinion existed and appointed Dr. Berger as an impartial
medical specialist.
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits. In a January 12, 2009 report, following a
physical examination and a review of the September 11, 2008 statement of accepted facts and the
medical file, Dr. Berger opined that appellant was temporarily disabled for up to six months due
to her accepted lumbar condition, but was nonetheless capable of full-time employment with
permanent restrictions after this period. He also explained that her present symptoms resulted
from preexisting degenerative disc disease rather than her accepted condition. As noted, the
report of an impartial medical specialist will be accorded special weight upon review by the
Board provided that the report obtained from such specialist is sufficiently rationalized and based
upon a proper factual background.17 Here, Dr. Berger suggested that appellant’s exacerbated
lumbar strain resolved after six months elapsed from the August 27, 2003 employment incident,
which would be February or March 2004. He then ruled out that any ensuing symptoms were
work related and attributed them to preexisting degenerative disc disease. However, Dr. Berger
failed to take into account appellant’s September 13, 2004 recurrence of disability, which was
accepted by OWCP. Medical opinions based on an incomplete or inaccurate factual history are
of diminished probative value.18 This inconsistency in Dr. Berger’s opinion was not specifically
clarified in his August 14, 2009 supplemental report. Accordingly, the Board finds that his
opinion was insufficient to meet OWCP’s burden of proof to terminate benefits.
Furthermore, the Board finds that it was improper to seek additional opinion from
Dr. Draper, the second opinion physician who created the conflict with Dr. Prebola, after
Dr. Berger was selected to resolve the conflict and had provided an opinion. OWCP’s
procedures contemplate that, once a referee specialist submits an opinion, if the opinion is
insufficient, OWCP must seek clarification from the impartial specialist.19 It is the impartial
specialist who must resolve the medical conflict.20 OWCP did not explain why it was necessary
to seek a supplemental opinion from a second opinion physician who created the conflict which
necessitated appellant’s referral to Dr. Berger under 5 U.S.C. § 8123(a). This gives the

17

See James T. Johnson, 39 ECAB 1252, 1256 (1988) (“[t]he Board reviews the medical evidence to determine
whether the medical report was based on incomplete information and looks at such factors as the opportunity for and
thoroughness of examination performed by the physician; the accuracy and completeness of the physician’s
knowledge of the facts and medical history; the care of analysis manifested; and the medical rationale expressed by
the physician on the medical issues addressed to him by [OWCP]”).
18

P.B., Docket No. 10-1127 (issued March 28, 2011).

19

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence,
Chapter 2.810.11(e) (September 2010). See also V.G., 59 ECAB 635 (2008).
20

See Thomas J. Fragale, 55 ECAB 619 (2004). See also Charles H. Miller, Docket No. 93-2000 (issued
March 22, 1995) (in a situation where there exists a medical conflict, if the weight of the medical evidence lies
anywhere, it must be with the opinion of the specialist chosen to resolve the outstanding conflict).

6

appearance that OWCP sought opinion outside of the impartial specialist’s report upon which to
resolve the conflict.21
CONCLUSION
The Board finds that OWCP improperly terminated appellant’s wage-loss compensation
and medical benefits effective December 20, 2009.
ORDER
IT IS HEREBY ORDERED THAT the April 27, 2011 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: July 2, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

21

Cf. Frederick Justiniano, 45 ECAB 491 (1994) (OWCP not allowed to rely on a referral physician’s report,
without further explanation, when there was a conflict for which an impartial specialist had been selected).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.J., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Grand Prairie, TX, Employer
__________________________________________

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

Docket No. 15-1103
Issued: October 14, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 20, 2015 appellant filed a timely appeal from an April 6, 2015 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 more than 25 percent
permanent impairment of the left leg for which he previously received schedule awards.
On appeal appellant asserts that he has an additional 20 percent impairment, based on the
opinion of an OWCP medical adviser who opined that he had 25 percent permanent impairment.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On April 12, 2006 appellant, then a 42-year-old prison lieutenant, filed a traumatic injury
claim alleging that on the previous day he fractured his left leg subduing an inmate who was
assaulting a staff member.2 He stopped work that day, and the claim was accepted for closed
fracture of the left tibia/fibula and left leg contusion. Appellant received continuation of pay and
compensation, and returned to temporary duty in May 2006 and to full duty on August 3, 2006.
On October 24, 2006 appellant was granted a schedule award for 20 percent permanent
impairment of the left leg.
Appellant transferred to another employing establishment facility as a contracting officer.
On May 24, 2011 he filed a traumatic injury claim alleging that he injured his left lower leg on
May 20, 2011 when he tripped on a curb.3 On July 14, 2011 OWCP accepted contusion of the
left lower leg and expanded the claim to include reflex sympathetic dystrophy (RSD) of the left
lower leg,4 unspecified left knee and leg sprain, and traumatic compartment syndrome of the left
lower leg. Appellant thereafter received intermittent compensation for medical appointments
and therapy.
Dr. Christopher Wong, a Board-certified orthopedic surgeon, performed a decompression
procedure of appellant’s left lower leg on January 24, 2013. He returned to modified duty on
April 25, 2013.
On November 5, 2013 appellant filed a new schedule award claim. He submitted an
October 30, 2013 report in which Dr. Christine Huynh, a Board-certified physiatrist, identified
four criteria to be used in assessing impairment due to CRPS. Dr. Huynh advised that under
Table 16-15 of the sixth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment (A.M.A., Guides hereinafter)5 appellant had a diagnosis of CRPS, a
class 1 impairment. She found modifiers of grade 1 for functional history, physical examination,
and clinical studies and, after applying the net adjustment formula, advised that appellant had a
zero adjustment. Dr. Huynh concluded that appellant had seven percent whole person
impairment under Table 16-15.
In a November 14, 2013 report, Dr. Ronald Blum, an OWCP medical adviser,
Board-certified in orthopedic surgery, noted his review of the record, including Dr. Huynh’s
report. He agreed with her conclusions and further noted that, under file number xxxxxx132,
appellant had previously received a schedule award for 20 percent permanent impairment of the
left leg. Dr. Blum combined the 7 percent current permanent impairment with the 20 percent
previously awarded, using the Combined Values Chart, page 604 A.M.A., Guides, and
2

At this time appellant was employed at a federal prison in Seagoville, TX. The April 11, 2006 injury was
adjudicated by OWCP under file number xxxxxx132.
3

The May 20, 2011 injury was adjudicated by OWCP under file number xxxxxx940.

4

RSD is now known as complex regional pain syndrome (CRPS).

5

A.M.A., Guides (6th ed. 2009).

2

concluded that appellant had a total left leg of 25 percent. The medical adviser then subtracted
the 20 percent previously awarded and concluded that appellant should be compensated for an
additional 5 percent permanent impairment.
On November 22, 2013 appellant was granted a schedule award for an additional five
percent permanent left lower extremity impairment, for a total of 14.4 weeks, to run from June 3
to September 11, 2013.
Appellant timely requested a hearing before an OWCP hearing representative. He
submitted additional medical evidence including a number of treatment notes from Dr. Wong
and physical therapy reports. At the hearing, held on June 9, 2014, appellant maintained that he
was entitled to a greater schedule award because he had daily pain and swelling and was no
longer eligible for promotion because he was physically incapable of working at a prison. The
hearing representative explained the procedures followed by OWCP in making schedule award
determinations, and left the record open 30 days.
On June 12, 2014 Dr. Huynh revised her October 30, 2013 impairment evaluation to
reflect that appellant had a total seven percent permanent left leg rather than whole person
impairment.
By decision dated August 5, 2014 an OWCP hearing representative affirmed the
November 22, 2013 schedule award. He found that the medical adviser had provided clear
medical reasoning for his conclusion that appellant was entitled to an additional five percent
impairment.
Appellant filed an appeal with the Board on August 19, 2014. In a March 2, 2015 order,
the Board remanded the case to OWCP to combine files xxxxxx940 and xxxxxx132, to be
followed by an appropriate decision.6
On April 6, 2015 OWCP combined files xxxxxx132 and xxxxxx940, with the former
becoming the master file. On April 6, 2015 it reissued the November 22, 2013 schedule award
decision.
LEGAL PRECEDENT
A claimant has the burden of proof to establish a permanent impairment to a scheduled
member.7 The schedule award provision of FECA8 and its implementing federal regulations9 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
6

Docket No. 14-1894 (issued March 2, 2015).

7

A.L., Docket No. 08-1730 (issued March 16, 2009).

8

5 U.S.C. § 8107.

9

20 C.F.R. § 10.404.

3

consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.10 For decisions after
May 1, 2009, the sixth edition of the A.M.A., Guides will be used.11
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).12 Under the sixth edition, for lower extremity impairments the evaluator
identifies the impairment Class of Diagnosis (CDX), which is then adjusted by grade modifiers
based on Functional History (GMFH), Physical Examination (GMPE), and Clinical Studies
(GMCS).13 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS CDX).14 Under Chapter 2.3, evaluators are directed to provide reasons for their impairment
rating choices, including choices of diagnoses from regional grids and calculations of modifier
scores.15
The A.M.A., Guides notes that RSD is also known as CRPS, and that this diagnosis is “a
challenging and controversial concept” that “has been a troublesome area for impairment
rating.”16 The A.M.A., Guides provides specific guidelines for an impairment rating to the upper
and lower extremities from CRPS. The diagnosis of CRPS must be confirmed based on the
diagnostic criteria provided in Table 15-24 (upper extremity) and Table 16-13 (lower
extremity).17 If the diagnosis is confirmed, the number of objective diagnostic criteria points is
determined under Table 15-25 (upper extremity) and Table 16-14 (lower extremity).18 The
impairment is then calculated using Table 15-26 for the arms and Table 16-15 for the legs.19 The
default value is adjusted in accord with grade modifiers for functional history, physical
examination, and clinical studies.20 Under the A.M.A., Guides, a rating for CRPS is a “stand
alone” approach and cannot be combined with any other approach for the same extremity.21
10

Id. at §10.404(a).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (February 2013).
12

A.M.A., Guides supra note 2 at 4, section 1.3, “ICF: A Contemporary Model of Disablement.”

13

Id. at 494-531.

14

Id. at 521.

15

Id. at 23-28.

16

Id. at 341, 450, 538.

17

Id. at 453 (Table 15-24) and 539 (Table 16-13).

18

Id. at 453 (Table 15-25) and 540 (Table 16-14).

19

Id. at 454 (Table 15-26) and 541 (Table 16-15).

20

Id. at 406-11 for the upper extremities (Table 15-7 to Table 15-10). Id. at 515-21 for the lower extremities
(Table 16-6 to Table 16-9.
21

Id. at 452, 540.

4

In applying such a diagnosis-based impairment, the sixth edition of the A.M.A., Guides
indicates that in most cases only one diagnosis in a region will be appropriate, and if a patient
has two significant diagnoses, the examiner should use the diagnosis with the highest impairment
in that region that is causally related for the impairment evaluation.22 FECA and its regulations
provide for the reduction of compensation for subsequent injury to the same scheduled
member.23
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.24
ANALYSIS
Under file number xxxxxx132, OWCP accepted that on April 11, 2006 appellant
fractured his left tibia/fibula and granted him a schedule award for 20 percent permanent left leg.
Under file number xxxxxx940, it accepted that on May 24, 2011 he sustained a left leg contusion
and subsequently accepted left leg sprain, RSD, CRPS, and compartment syndrome. Under that
claim, appellant received a schedule award for an additional 5 percent permanent impairment, for
a total 25 percent permanent left lower extremity impairment.
Dr. Huynh, an attending physiatrist, and Dr. Blum, an OWCP medical adviser, agreed
that for the diagnosis of CRPS, under Table 16-15 appellant had a class 1 impairment with a
default value of seven percent. The medical adviser then combined the 7 percent permanent
impairment for CRPS with the 20 percent appellant had previously received for his left leg
fracture, concluding that he had 25 percent left leg impairment.
As noted above, FECA regulations provide for the reduction of compensation for
subsequent injury to the same scheduled member.25 A rating for CRPS is a “stand alone”
approach and cannot be combined with any other approach for the same extremity.26 The
A.M.A., Guides provides that if a claimant has two significant diagnoses, OWCP should use the
diagnosis with the greatest impairment.27 As appellant’s left lower extremity fracture, under file
number xxxxxx132, yielded an impairment of 20 percent, and the “stand alone” CRPS diagnosis,
under file number xxxxxx940, only yielded 7 percent impairment, appellant established that he is
entitled to a 20 percent permanent left leg. Thus, he is not entitled to a schedule award greater
than the 25 percent previously awarded.
22

Id. at 497; see E.V., Docket No. 11-2117 (May 15, 2012).

23

5 U.S.C. § 8108; 20 C.F.R. § 10.404(d); see R.B., Docket No. 09-1786 (issued July 1, 2010).

24

See supra note 11 at Chapter 2.808.6(f) (February 2013).

25

Supra note 23.

26

Id. at 452, 540.

27

Supra note 22.

5

Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he has a
permanent impairment of the left leg greater than the 25 percent previously awarded.
ORDER
IT IS HEREBY ORDERED THAT the April 6, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 14, 2015
Washington, DC

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

Colleen Duffy Kiko, 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
__________________________________________
C.C., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTICS AGENCY, Fort Belvoir, VA,
Employer
__________________________________________

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Appearances:
1
Paula Steadley, for the appellant
Office of Solicitor, for the Director

Docket No. 16-0812
Issued: August 26, 2016

Case Submitted on the Record

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

JURISDICTION
On March 13, 2016 appellant, through her representative, filed a timely appeal of a
December 2, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA), 20 C.F.R. §§ 501.2(c), and
501.3, the Board has jurisdiction to consider the merits of the case.3

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for
legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An
attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject
to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after OWCP rendered its December 2, 2015
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision. Therefore the Board lacks jurisdiction to review this additional evidence on appeal. 20 C.F.R.
§ 501.2(c)(1). Appellant may submit this or any new evidence to OWCP, together with a formal request for
reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b)(2).

ISSUE
The issue is whether appellant met her burden of proof to establish a low back injury on
July 1, 2015 in the performance of duty.
FACTUAL HISTORY
On August 20, 2015 appellant, then a 39-year-old distribution process worker, filed a
traumatic injury claim (Form CA-1) alleging that she was “stowing in [building] 365 on
overtime” on July 1, 2015 at 9:50 p.m. She indicated that she hurt her lower back and
aggravated her sciatic nerve. On the reverse of the form, appellant’s supervisor indicated that
appellant’s regular tour of duty was from 9:00 p.m. until 5:30 a.m.
Appellant submitted an emergency room note dated July 1 and 2, 2015 from
Dr. Kenneth O. Ofoha, a physician Board-certified in emergency medicine. Dr. Ofoha indicated
that appellant presented with back and lumbar pain which occurred when she was lifting heavy
boxes at work resulting in reinjury of her back. He diagnosed lumbar strain and sciatica.
Dr. Ofoha noted that appellant reported issues with bulging discs and prior back pain.
Appellant also submitted work release notes dated July 2, August 6, September 4, and 28,
2015 from Dr. Iyad Al-Husein, a Board-certified family practitioner, indicating that she could
perform light duty only. Dr. Al-Husein diagnosed low back pain and lumbar radiculitis on
July 2, 2015. He described the injury as “stowing at work; injured lower back.”
The employing establishment provided appellant with a light-duty position on
September 28, 2015. Appellant accepted this position on October 5, 2015.
In a letter dated October 23, 2015, OWCP requested that appellant provide additional
factual and medical evidence in support of her claim. It particularly requested that appellant
answer an attached questionnaire describing the details of how the claimed injury occurred.
OWCP allowed appellant 30 days to respond.
Appellant submitted an additional work release note dated October 19, 2015 from
Dr. Al Husein.
By decision dated December 2, 2015, OWCP denied appellant’s traumatic injury claim as
she failed to submit sufficient factual evidence to establish that the employment event occurred
as alleged.
LEGAL PRECEDENT
OWCP defines a traumatic injury as, “[A] condition of the body caused by a specific
event or incident, or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain which is identifiable as to
time and place of occurrence and member or function of the body affected.”4 In order to
determine whether an employee actually sustained an injury in the performance of duty, OWCP
begins with an analysis of whether fact of injury has been established. Generally, fact of injury
4

20 C.F.R. § 10.5(ee).

2

consists of two components which must be considered in conjunction with one another. The first
component to be established is that the employee actually experienced the employment incident
which is alleged to have occurred.5 The second component is whether the employment incident
caused a personal injury and generally can be established only by medical evidence.
With respect to the first component of fact of injury, the employee has the burden of
establishing the occurrence of an injury at the time, place, and in the manner alleged, by a
preponderance of the reliable, probative, and substantial evidence. An injury does not have to be
confirmed by eyewitnesses in order to establish the fact that an employee sustained an injury in
the performance of duty, but the employee’s statements must be consistent with the surrounding
facts and circumstances and his subsequent course of action. An employee has not met his
burden of proof of establishing the occurrence of an injury when there are such inconsistencies in
the evidence as to cast serious doubt upon the validity of the claim. Such circumstances as late
notification of injury, lack of confirmation of injury, continuing to work without apparent
difficulty following the alleged injury and failure to obtain medical treatment may, if otherwise
unexplained, cast sufficient doubt on an employee’s statements in determining whether a prima
facie case has been established. However, an employee’s statement alleging that an injury
occurred at a given time and in a given manner is of great probative value and will stand unless
refuted by strong or persuasive evidence.6
ANALYSIS
The Board finds that appellant has not submitted sufficient factual evidence to establish
her traumatic injury claim.
As noted above, appellant must establish that her injury occurred at the time, place, and
in the manner alleged. She attributed her diagnosed back strain and sciatica to “stowing” in the
performance of duty. Appellant did not further describe this activity although OWCP, on
October 23, 2015, asked her to provide details regarding how the claimed injury occurred. The
Board is unable to determine from the evidence of record the manner of her alleged traumatic
injury. Appellant has not described the mechanism of injury. She referenced “stowing,”
however she did not explain the mechanism of such an action with any specificity such as the
number of items, their size, or weights etc. It is also unclear from the record how long she had
performed “stowing.” Appellant reported on her claim form that her injury occurred while she
was performing overtime work at 9:50 p.m., but her supervisor indicated that appellant’s regular
work schedule was from 9:00 p.m. until 5:30 a.m. Given these facts the Board is unable to
determine how this constituted overtime work or the exact period of time that appellant
performed “stowing.” Due to these deficiencies in the description of appellant’s employment
activities on July 1, 2015, the Board finds that she has not met her burden of proof to establish
the initial component of the traumatic injury claim, fact of incident, and that she has not
established her traumatic injury claim.

5

Elaine Pendleton, 40 ECAB 1143 (1989).

6

D.B., 58 ECAB 464, 466-67 (2007).

3

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a low back
injury in the performance of duty on July 1, 2015.
ORDER
IT IS HEREBY ORDERED THAT the December 2, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 26, 2016
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.S., Appellant
and
DEPARTMENT OF THE NAVY, PICATINNY
ARSENAL, NJ, Employer
__________________________________________

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Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1006
Issued: November 14, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 8, 2019 appellant, through counsel, filed a timely appeal from an October 30,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a traumatic injury
causally related to his accepted March 30, 2017 employment incident.
FACTUAL HISTORY
On April 4, 2017 appellant, then a 68-year-old engineer, filed a traumatic injury claim
(Form CA-1) alleging that on March 30, 2017 he slipped and fell in the restroom during a power
outage as there was no emergency lighting at the employing establishment while in the
performance of duty. He alleged that he injured his back, leg, and hernia implants.
In April 3 and 5, 2017 notes, Dr. Anthony DePaola, an osteopath, reported appellant’s slip
and fall at work while in the restroom during a power outage and diagnosed pain and swelling of
the right lower leg, acute midline low back pain, and lower abdominal pain.
On April 6, 2017 appellant underwent a right lower extremity Venous Doppler which
demonstrated an abnormality in the popliteal vein, possibly a deep vein thrombosis (DVT).
In an April 18, 2017 development letter, OWCP advised appellant of the deficiencies of
his claim. It requested additional factual and medical evidence from him and provided a
questionnaire for his completion. OWCP afforded appellant 30 days to respond.
On April 19, 2017 appellant e-mailed the employing establishment and explained his health
status and the events of March 30, 2017. He noted that he had undergone back surgery, and had
experienced shingles from his left ear into his brain cavity such that his physician found him to be
a fall risk and, therefore, he was generally working from home with one or two days a week in the
office at the employing establishment. On March 30, 2017 around 2:30 or 3:00 p.m., there was a
power outage at the employing establishment while appellant was in the restroom. He alleged that
the restroom became a “black room” with no emergency lighting. Appellant rose from the toilet,
began to feel light-headed, slipped, landed back on the toilet, and used the handicap bars to pull
himself up. He then used his walking cane to feel his way out of the bathroom and saw light when
he reached the hall. Appellant then made his way to his desk and left for the day. He indicated
that he was experiencing pain in his stomach, legs, and back.
On April 19, 2017 Dr. DePaola diagnosed DVT and acute midline low back pain without
sciatica. He examined appellant on May 8, 2017 and diagnosed lumbar degenerative disc disease.
Dr. DePaola reported that, since appellant’s fall at work, his disc disease had been exacerbated
causing persistent back and right buttock pain. He noted that following appellant’s back surgery
he was pain free until the fall. Dr. DePaola diagnosed greater trochanteric bursitis and right wrist
sprain after falling at work.
In a May 10, 2017 attending physician report (Form CA-20) Dr. DePaola noted that
appellant slipped and fell while in the restroom during a power outage and diagnosed lumbar disc
disease exacerbation, severe trochanteric bursitis, and wrist pain. He indicated by checking a box
marked “yes” that appellant’s conditions were caused or aggravated by his employment activity
and noted that appellant fell off of a toilet and injured himself.

2

On May 10, 2017 appellant responded to OWCP’s development questionnaire. He
reiterated the history of the claimed March 30, 2017 employment incident noting that he was in a
restroom stall when the power failed. Appellant attempted to rise and dress in the dark, but slipped
on a slippery floor, fell back, and landed back on the toilet. He forced himself up by pulling on a
handicap bar and used his cane to feel his way from the restroom to his desk. Appellant alleged
reinjury to his back at his previous surgical site, right hip bursitis from landing on the toilet, as
well as right wrist and thumb pain from breaking his fall.
By decision dated May 19, 2017, OWCP accepted that the March 30, 2017 employment
incident occurred as alleged and that there was a diagnosed hernia condition. However, it denied
appellant’s claim finding that the medical evidence of record was insufficient to establish causal
relationship between his diagnosed conditions and the accepted March 30, 2017 employment
incident.
On June 15, 2017 appellant requested a review of the written record from an OWCP
hearing representative. He provided additional medical evidence including May 30, June 29, and
August 2, 2017 notes from Dr. DePaola repeating his previous diagnoses and conclusions.
In a May 31, 2017 note, Dr. Yevgeniy I. Khesin, a Board-certified neurologist, examined
appellant due to low back pain. He noted appellant’s history of injury on March 30, 2017 reporting
that appellant was sitting on the toilet when the lights went out. Appellant got up and lost his
balance falling backwards. He hurt his right hand trying to break his fall and injured his back by
hitting the edge of the toilet. Appellant was initially unable to get up from the floor. Dr. Khesin
reviewed appellant’s June 22, 2015 and April 29, 2017 lumbar magnetic resonance imaging scans
and found hardware from his 2015 lumbar surgery as well as herniated discs at L4-5 and L5-S1.
He diagnosed post-traumatic lumbar radiculopathy following the March 30, 2017 fall. Dr. Khesin
opined that appellant’s fall caused microtrauma in the area of the 2015 lumbar surgery and resulted
in exacerbation of pain.
On November 18, 2011 appellant underwent surgical repair of an incarcerated right
inguinal and scrotal hernia. On August 21, 2012 he underwent emergency repair of an incarcerated
left inguinal hernia. On July 14, 2015 appellant underwent an electromyogram (EMG) which
demonstrated bilateral L4-5 radiculopathy. On November 10, 2015 he underwent L3-4 and L4-5
interlaminar decompression and insertion of interspinous fixation device.
Appellant also provided additional factual statements addressing his accepted March 30,
2017 employment incident. He asserted that his injuries were reasonably and logistically related
to his employment incident.
By decision dated September 21, 2017, an OWCP hearing representative affirmed
OWCP’s May 19, 2017 decision finding that the medical evidence of record was insufficient to
establish appellant’s claim as it did not contain a rationalized physician’s opinion explaining how
his hernia was caused or aggravated by the accepted March 30, 2017 employment incident.
On February 21, 2018 appellant, through counsel, requested reconsideration of the
September 21, 2017 OWCP decision. In a note dated October 23, 2017, Dr. DePaola diagnosed
anxiety, low back pain, and hip pain.

3

On February 16, 2018 Dr. Richard N. Siegfried, Board-certified in anesthesiology and pain
management, reviewed appellant’s lumbar spine x-rays. He noted appellant’s history and
treatment of back pain since 2014. Dr. Siegfried reported that appellant was pain free for one year
following his 2015 spine surgery until his workplace fall. He concluded that appellant’s current
symptoms were causally related to his workplace accident. Dr. Siegfried noted that the fall from
standing height onto a hard surface could produce radicular pain from foraminal stenosis or facet
mediated pain in the lumbar levels. He found that appellant’s fall caused aggravation of his spinal
stenosis resulting in nerve root trauma or trauma to the lumbosacral facet joints. Dr. Siegfried
concluded that this was not the only potential cause for his pain, but was the “most likely.”
By decision dated May 21, 2018, OWCP denied modification of the September 21, 2017
decision, finding that appellant had not provided rationalized medical opinion evidence sufficient
to establish causal relationship between his diagnosed conditions and the accepted March 30, 2017
employment incident. It did not address Dr. Siegfried’s February 16, 2018 report.
On June 4, 2018 appellant, through counsel, requested reconsideration of the May 21, 2018
decision. In support counsel resubmitted Dr. Siegfried’s February 16, 2018 report.
By decision dated October 30, 2018, OWCP denied modification of the May 21, 2018
decision, finding that appellant had not provided rationalized medical opinion evidence sufficient
to establish causal relationship between his conditions and the accepted March 30, 2017
employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the

3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).

4

time, place, and in the manner alleged. The second component is whether the employment incident
caused a personal injury and can be established only by medical evidence.6
The evidence required to establish causal relationship is rationalized medical opinion
evidence, based upon complete factual and medical background, showing a causal relationship
between the claimed condition and the identified factors.7 The belief of the claimant that a
condition was caused or aggravated by the employment is insufficient to establish a causal
relationship.8
Rationalized medical opinion evidence is required to establish causal relationship. The
opinion of the physician must be based on a complete factual and medical background, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a traumatic
injury causally related to his accepted March 30, 2017 employment incident.
In support of his claim, appellant submitted a February 16, 2018 report from Dr. Siegfried,
in which he concluded that appellant’s current symptoms are causally related to his workplace
accident. Dr. Siegfried opined that the fall from standing height onto a hard surface could produce
radicular pain from foraminal stenosis or facet mediated pain in the lumbar levels. He determined
that appellant’s fall caused aggravation of his spinal stenosis resulting in nerve root trauma or
trauma to the lumbosacral facet joints. Dr. Siegfried concluded that this was not the only potential
cause for his pain, but was the “most likely.” The Board finds that this opinion is speculative in
nature and that he did insufficiently explain how the accepted incident caused or aggravated the
diagnosed condition.10 Without explaining how, physiologically, the movements involved in the
employment incident caused or contributed to a diagnosed condition, Dr. Siegfried’s opinion is of
limited probative value and insufficient to establish causal relationship.11
Dr. Khesin noted appellant’s history of injury on March 30, 2017 and diagnosed posttraumatic lumbar radiculopathy following the March 30, 2017 fall. He opined that appellant’s fall
6

Id.

7

R.R., Docket No. 18-1093 (issued December 18, 2018); Lourdes Harris, 45 ECAB 545 (1994); see Walter D.
Morehead, 31 ECAB 188 (1979).
8
M.J., Docket No. 17-0725 (issued May 17, 2018); see also Lee R. Haywood, 48 ECAB 145 (1996); Kathryn
Haggerty, 45 ECAB 383, 389 (1994).
9

A.W., Docket No. 19-0327 (issued July 19, 2019); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 45 ECAB
345 (1989).
10

S.R., Docket No. 18-1295 (issued March 20, 2019); G.M., Docket No. 18-0989 (issued January 3, 2019).

11

S.J., Docket No. 19-0696 (issued August 23, 2019); M.C., Docket No. 18-0951 (issued January 7, 2019).

5

caused microtrauma in the area of the 2015 lumbar surgery and resulted in exacerbation of pain.
Medical evidence that states a conclusion, but does not offer a rationalized medical explanation
regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship.12 The need for rationalized medical opinion based on medical rationale is especially
important in this case as the evidence suggests that appellant had preexisting lumbar and hernia
conditions.13 As Dr. Khesin did not provide a rationalized medical opinion regarding causal
relationship, his report is of limited probative value.14
In a series of notes, Dr. DePaola diagnosed DVT, acute midline low back pain without
sciatica, lumbar degenerative disc disease, greater trochanteric bursitis and right wrist sprain. He
reported that, since appellant’s fall at work, appellant’s disc disease had been exacerbated causing
persistent back and right buttock pain. Dr. DePaola noted that following appellant’s back surgery
he was pain free until the fall. The fact that a condition manifests itself during a period of
employment is insufficient to establish causal relationship. Temporal relationship alone will not
suffice.15 Thus, the Board finds that this report is insufficient to meet appellant’s burden of proof.16
In a May 10, 2017 form report, Dr. DePaola noted that appellant slipped and fell while in
the restroom during a power outage and diagnosed lumbar disc disease exacerbation, severe
trochanteric bursitis, and wrist pain. He indicated by checking a box marked “yes” that appellant’s
conditions were caused or aggravated by his employment activity and noted that appellant fell off
of a toilet and injured himself. Appellant’s burden of proof includes the necessity of furnishing an
affirmative opinion from a physician who supports his or her conclusion with sound medical
reasoning.17 Dr. DePaola provided no rationale for his opinion on causal relationship. The Board
has held that when a physician’s opinion on causal relationship consists only of checking “yes” to
a form question, without more by the way of medical rationale, that opinion is of limited probative
value and is insufficient to establish causal relationship.18 As such, Dr. DePaola’s May 10, 2017
report is also insufficient to discharge appellant’s burden of proof.19
Dr. DePaola completed notes on April 3 and 5, 2017 reporting that appellant’s slip and fall
at work while in the restroom during a power outage and diagnosing pain. The Board has held
that the assessment of pain is not considered a diagnosis as it merely refers to symptoms of the
12

M.E., Docket No. 18-0940 (issued June 11, 2019).

13

M.E., id.; S.H., Docket No. 17-1447 (issued January 11, 2018).

14

M.E., id.; A.M., Docket No. 10-0205 (issued October 5, 2010) (a physician’s opinion must be independent from
a claimant’s belief regarding causal relationship).
15

S.S., Docket No. 19-0675 (issued August 22, 2019); M.H., Docket No. 18-1737 (issued March 13, 2019);
Daniel O. Vasquez, 57 ECAB 559 (2006).
16

S.S., id.

17

J.P., Docket No. 19-0702 (issued August 23, 2019); J.A., Docket No. 18-1586 (issued April 9, 2019); Lillian M.
Jones, 34 ECAB 379, 381 (1982).
18

Id.

19

Id.

6

underlying condition.20 As such, the Board finds that these notes are insufficient to establish
appellant’s claim.
OWCP also received a number of diagnostic studies. However, the Board has explained
that diagnostic studies lack probative value as they do not address whether the accepted
employment incident caused any of the diagnosed conditions.21
Causal relationship is a medical question that must be established by probative rationalized
medical opinion evidence from a physician.22 As appellant has not submitted such medical
evidence, the Board finds that he has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a traumatic
injury causally related to his accepted March 30, 2017 employment incident.

20

T.A., Docket No. 19-0289 (issued June 21, 2019); T.J., Docket No. 18-1500 (issued May 1, 2019); M.V., Docket
No. 18-0884 (issued December 28, 2018). The Board has consistently held that pain is a symptom, rather than a
compensable medical diagnosis. P.S., Docket No. 12-1601 (issued January 2, 2013); C.F., Docket No. 08-1102
(issued October 10, 2008).
21

F.H., Docket No. 18-0160 (issued August 23, 2019); K.S., Docket No. 18-1781 (issued April 8, 2019); G.S.,
Docket No. 18-1696 (issued March 26, 2019).
22

S.S., supra note 15; T.K., Docket No. 18-1239 (issued May 29, 2019).

7

ORDER
IT IS HEREBY ORDERED THAT the October 30, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 14, 2019
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Boston, MA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 15-1834
Issued: December 23, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 8, 2015 appellant filed a timely appeal of an August 19, 2015 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 bilateral knee
conditions causally related to factors of his federal employment.
FACTUAL HISTORY
On March 15, 2015 appellant, a 44-year-old letter carrier, filed a Form CA-2 claim for
benefits based on an occupational disease, alleging that he developed bilateral knee conditions
causally related to employment factors. Appellant noted that he first because aware of his
1

5 U.S.C. § 8101 et seq.

condition on September 14, 2013. He explained that as a mail carrier he had walked five miles a
day since 1973. Appellant’s supervisor noted on the claim form that appellant had stopped work
on September 14, 2013, had returned to work on June 2, 2014, and was currently working.
On May 20, 2015 OWCP informed appellant that it required factual and medical evidence
to determine whether he was eligible for compensation benefits. It requested that he submit a
comprehensive report from a treating physician describing his symptoms and the medical reasons
for his condition, with an opinion as to whether his claimed condition was causally related to his
federal employment. OWCP allotted appellant 30 days to submit this evidence.
In Form CA-17 duty status reports dated April 30, 2013 and September 30, 2013,
Dr. Glen Seidman, a Board-certified orthopedic surgeon and appellant’s treating physician,
related that appellant had sustained injury to the meniscus of both knees and was experiencing
bilateral knee pain causally related to employment factors. He outlined work restrictions
stemming from appellant’s bilateral knee condition. Dr. Seidman also completed a Form CA-20,
attending physician’s report, on September 30, 2013 in which he indicated by checking a box
marked “yes” that appellant’s diagnosed conditions of bilateral knee osteoarthritis and meniscal
tears were caused or aggravated by his employment.
By decision dated June 26, 2015, OWCP denied the claim, finding that he failed to
submit medical evidence establishing that a diagnosed condition was causally related to the
accepted employment factors.
In a letter dated November 14, 2013, received by OWCP on June 30, 2015, appellant
advised that he had worked as a letter carrier for the employing establishment for 20 years,
during which he had carried mail for six to eight hours per day, climbing hundreds of stairs and
walking up and down hills. He related that, at the top of each staircase, he needed to twist his
knees to the left or right to access mail slots. Appellant noted that he underwent left meniscus
surgery in 2009 and 2012; he returned to work in October 2012 and was pain-free until the
summer of 2013. He continued to work through the pain until September 2013, at which time
the pain and swelling in both knees made it impossible for him to continue working. At this time
appellant underwent a magnetic resonance imaging (MRI) scan, the results of which showed a
torn meniscus in both knees. He was examined by Dr. Seidman, his treating physician, who
prescribed physical therapy. Appellant noted that he was waiting approval for a claim for
recurrence of disability.
In an August 18, 2014 report, Dr. Seidman provided an impairment rating and advised
that appellant had a 10 percent permanent impairment in his left knee and a two percent
permanent impairment in his right knee. He reported that appellant had recently sustained a new
injury to his right and left knees which significantly interfered with his activities of daily living
and his work-related activities as a letter carrier. This necessitated additional knee surgery on
January 10, 2014, a procedure which involved a right knee arthroscopy, partial medial
meniscectomy, chondroplasty or articular shaving; left knee medial and lateral partial
meniscectomies and medial and lateral compartment chondroplasty or articular shaving.
Dr. Seidman related findings of right knee partial medial meniscus tear, patellofemoral and
medial compartment; grade three chondromalacia, left knee; partial medial and lateral meniscal
tears, patellofemoral chondromalacia, and medial and lateral compartment chondromalacia in the

2

left knee. He examined appellant on April 30, 2014, at which time he showed left and right knee
small effusion; he also had a popliteal cyst and decreased range of motion in his left knee.
Dr. Seidman concluded that, based on a reasonable degree of medical certainty, appellant’s
bilateral findings and symptomatology constituted a new work-related injury.
On July 14, 2015, appellant requested reconsideration.
By decision dated August 19, 2015, OWCP denied modification of the June 26, 2015
decision. It noted that he currently had a claim for bilateral knee injury under OWCP File No.
xxxxxx564, which was accepted for tear of lateral and medial menisci of right knee, tear of
anterior horn of lateral meniscus and posterior horn of medial meniscus of the left knee. OWCP
further noted that appellant had filed a recurrence claim on September 16, 2013 after stopping
work and had returned to full-duty work on June 16, 2014. It advised that he was currently
receiving medical benefits for continued treatment due to the original injury. OWCP found that
while Dr. Seidman opined in his August 18, 2014 report that appellant sustained a new injury to
both knees, the record indicated that he developed recurrent symptoms of the original, accepted
conditions, not a new injury. OWCP therefore denied the claim, finding that because he was
already receiving benefits for his recurrence claim for the same bilateral knee condition, he was
not entitled to benefits for the instant, new occupational disease claim he filed on
March 15, 2015.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing that the
essential elements of his or her claim including the fact that the individual is an “employee of the
United States” within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained 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.3 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.4
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 causal relationship is usually rationalized medical
2

5 U.S.C. §§ 8101-8193.

3

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

4

Victor J. Woodhams, 41 ECAB 345 (1989).

3

evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.5
Appellant has the burden of establishing by the weight of the substantial, reliable and
probative evidence, a causal relationship between his bilateral knee conditions and his federal
employment. This burden includes providing medical evidence from a physician who concludes
that the disabling condition is causally related to employment factors and supports that
conclusion with sound medical reasoning.6
ANALYSIS
The Board finds that appellant was not entitled to compensation for a claimed bilateral
knee condition because he was already receiving compensation for a recurrence claim filed under
case number xxxxxx564, which pertained to the same bilateral knee condition.7 In addition,
appellant has failed to submit any medical opinion containing a rationalized, probative report
which relates any new claimed bilateral knee condition to factors of his employment. For these
reasons, he has not discharged his burden of proof to establish his claim that he sustained a
bilateral knee condition in the performance of duty.
Appellant submitted the August 18, 2014 report from Dr. Seidman. He related
appellant’s complaints of bilateral knee pain and presented diagnoses of meniscal tears in both
knees and left-sided patellofemoral chondromalacia, but did not provide a rationalized medical
opinion that these findings were causally related to factors of his employment and that they
constituted a new injury. Dr. Seidman advised that appellant underwent surgery on both knees,
most recently in January 2014, and continued to experience pain in his knees. He examined
appellant on April 30, 2014, at which time he showed left and right knee small effusion; he also
had a popliteal cyst and decreased range of motion in his left knee. Dr. Seidman concluded that,
based on a reasonable degree of medical certainty, appellant’s bilateral findings and
symptomatology constituted a new work-related injury. Dr. Seidman’s report, however, did not
provide a probative, rationalized medical opinion that appellant had a new claimed condition or
disability causally related to employment factors. His opinion on causal relationship is of limited
probative value as it does not contain any medical rationale of how or why appellant’s claimed
bilateral knee condition was currently affected by or related to factors of employment.8

5

Id.

6

See Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

7

The Board notes that, for reasons of judicial economy and clarity, it would be in OWCP’s interest and to
appellant’s benefit to consolidate the records for case numbers xxxxxx600 and xxxxxx564.
8

William C. Thomas, 45 ECAB 591 (1994).

4

The weight of 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.9 Dr. Seidman did not sufficiently describe appellant’s job
duties, following the accepted claim, and he did not explain the medical process through which
such duties would have been competent to cause the claimed new bilateral knee condition. His
opinion is of limited probative value as it does not contain any medical rationale explaining how
appellant’s job duties, after he returned to work, physiologically caused the diagnosed bilateral
knee condition. Furthermore, the form reports which support causal relationship only with a
check mark in a box are insufficient to establish the claim, as the Board has held that without
further explanation or rationale, a box checked “yes” is not sufficient to establish causation.10
Dr. Seidman’s reports thus did not constitute adequate medical evidence to establish that
appellant’s claimed new bilateral knee condition was causally related to his employment.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that his condition was caused, precipitated, or aggravated by his employment is
sufficient to establish causal relationship.11 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
OWCP advised appellant of the evidence required to establish his claim; however,
appellant failed to submit such evidence. Consequently, appellant has not met his burden of
proof in establishing that his claimed bilateral knee condition was causally related to his
employment.
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 his burden of proof to establish that his
bilateral knee conditions were causally related to the alleged employment factors.

9

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

10

Debra S. King, 44 ECAB 203 (1992); Salvatore Dante Roscello, 31 ECAB 247 (1979).

11

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the August 19, 2015 decision of the Office of
Workers’ Compensation Programs’ be affirmed.
Issued: December 23, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6