United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
DEPARMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Hauppauge, NY, Employer
__________________________________________

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

Docket No. 13-722
Issued: July 10, 2013

Case Submitted on the Record

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

JURISDICTION
On February 6, 2013 appellant filed a timely appeal from an October 3, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant established that he has more than seven percent
impairment of the left leg for which he received a schedule award.
FACTUAL HISTORY
On June 6, 2008 appellant, then a 54-year-old special agent, injured his left knee while
performing a physical fitness assessment in the performance of his duty. OWCP accepted the
1

5 U.S.C. § 8101 et seq.

claim for an internal derangement of the left knee. Appellant previously injured his left knee in
1997 and underwent an arthroscopy with a medial and lateral partial meniscectomy in 2004. He
retired from the employing establishment on July 31, 2010.
On July 14, 2010 appellant filed a claim for schedule award compensation for his left leg.
In a June 21, 2010 report, Dr. Jeffrey N. Guttman, a Board-certified orthopedic surgeon, noted
findings on examination and opined that appellant reached maximum medical improvement.
Under the State of New York Workers’ Compensation Board Medical Guidelines, he opined that
appellant had 22.5 percent impairment of the left lower extremity.
In an August 6, 2010 letter, OWCP advised appellant and Dr. Guttman that medical
evidence needed to rate permanent partial impairment was to be under the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides). No additional medical evidence was received.
By decision dated September 13, 2010, OWCP denied appellant’s schedule award claim
on the basis that there was insufficient medical evidence to support permanent impairment.
On May 30, 2011 appellant requested reconsideration. In a May 24, 2011 report,
Dr. Guttman noted the history of injury, provided examination findings and opined that appellant
reached maximum medical improvement. He reviewed appellant’s previous work-related left
knee injuries in 1997 and 2002 and surgical history of radial medial meniscus tear resection in
1997 and resection of the posterior horn medial meniscus and posterior lateral meniscus tear in
2004. Dr. Guttman opined that appellant had 10 percent final combined impairment under the
sixth edition of the A.M.A., Guides. He listed various sections under Chapter 16 of the A.M.A.,
Guides and indicated that a permanent impairment worksheet was attached. A permanent
impairment worksheet, however, is not of record.
On September 17, 2011 Dr. Andrew A. Morcola, an OWCP medical adviser, reviewed
the statement of accepted facts and medical documentation from Dr. Guttman. While
Dr. Guttman indicated that appellant had 10 percent left lower extremity impairment secondary
to the left knee injury, he did not address how the impairment rating was made. Dr. Morcola
noted that there was no impairment worksheet from Dr. Guttman.
In a January 10, 2012 letter, OWCP requested that Dr. Guttman provide clarification as to
how he made his impairment rating under the sixth edition of the A.M.A., Guides.
In a January 19, 2012 report, Dr. Guttman noted the history of injury and examination
findings. He opined that appellant had post-traumatic arthritis in the left knee and reached
maximum medical improvement. Based on the State of New York Workers’ Compensation
Board Medical Guidelines, Dr. Guttman opined that appellant had 30 percent lower extremity
impairment of his left leg, 10 percent mild defect of flexion and extension, 10 percent
chondromalacia patella and 10 percent medial and lateral meniscal excision.
OWCP referred appellant, along with a statement of accepted facts and the medical
record, to Dr. Leon Sultan, a Board-certified orthopedic surgeon, for a second opinion evaluation
to determine the extent of permanent impairment under the A.M.A., Guides, if any. In a
March 22, 2012 report, Dr. Sultan opined that appellant reached maximum medical improvement
2

and had five percent impairment of the left lower extremity. This was based on a combination of
the fifth edition of the A.M.A., Guides, New York State Guidelines and McBride’s Guide to
Permanent Disability.
In a June 4, 2012 report, OWCP’s medical adviser found that Dr. Sultan erroneously
referred to the fifth edition of the A.M.A., Guides, the New York State Guidelines and the
McBrides Guide to Permanent Disability. He could not replicate how Dr. Sultan rated five
percent impairment. The medical adviser opined that Dr. Sultan’s March 22, 2010 report was of
no value and recommended a second opinion examination by a physician familiar with the sixth
edition of the A.M.A., Guides.
On July 10, 2012 appellant was referred for a second opinion examination by
Dr. David A. Benatar, a Board-certified orthopedic surgeon. In an August 14, 2012 report,
Dr. Benatar noted the history of injury, reviewed the statement of accepted facts and the medical
record and presented findings on examination. In terms of range of motion, he used a
goniometer and found 116 to 118 degrees of flexion and full extension. Dr. Benatar noted
tenderness to the patella consistent with arthritis as well as some joint line tenderness consistent
with arthritis. No atrophy, decrease in strength or sensory changes were noted. Subjective
complaints of pain and discomfort were noted and that appellant avoids running secondary to
pain. Dr. Benatar diagnosed status post multiple injuries to the left knee with resultant arthritis.
He opined that appellant reached maximum medical improvement. Under the sixth edition of the
A.M.A., Guides, Dr. Benatar opined that appellant had seven percent impairment. Under Table
16-3, page 511, he used primary knee joint arthritis and assigned it class 1 with a default value of
seven percent. Dr. Benatar assigned grade modifier Functional History (GMFH) of 1 based on
mild antalgic gait and grade modifier Physical Examination (GMPE) of 1 based on mild
decreased range of motion. Dr. Benatar found a grade modifier Clinical Studies (GMCS) were
not applicable as the x-rays were used in the diagnosis class. He applied the net adjustment
formula, (GMFH-CDX) (1-1)+ (GMPE-CDX) (1-1) + (GMCS-CDX) (N/A) and found a net
adjustment of zero. Thus, with a net adjustment of zero, appellant had a final grade of C or six
percent final impairment.
On September 11, 2012 Dr. Henry J. Malieto, an OWCP medical adviser, reviewed the
medical evidence of record, including Dr. Benatar’s August 14, 2012 report. He opined that
appellant reached maximum medical improvement on August 14, 2012, the date of Dr. Benatar’s
report. The medical adviser concurred with Dr. Benatar’s rating of seven percent impairment
calculation under the sixth edition of the A.M.A., Guides.
In a decision dated October 3, 2012, OWCP granted appellant a schedule award for seven
percent impairment of the left leg. The period of the award ran for 20.16 weeks for the period
August 14, 2012 to January 2, 2013.

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LEGAL PRECEDENT
The schedule award provision of FECA2 and its implementing federal regulations3 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members, functions and organs of the body.
FECA, however, does not specify the manner by which the percentage loss of a member,
function or organ shall be determined. To ensure consistent results and equal justice for all
claimants under the law, good administrative practice requires the use of uniform standards
applicable to all claimants.4 The A.M.A., Guides has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.5 For decisions issued after
February 1, 2001, the fifth edition of the A.M.A., Guides is used to calculate schedule awards.6
For decisions issued after May 1, 2009, the sixth edition will be used.7 It is well established that
in determining the amount of a schedule award for a member of the body that sustained an
employment-related permanent impairment, preexisting impairments of the body are to be
included.8
The sixth edition requires identifying the impairment class for the diagnosed condition
(CDX), which is then adjusted by grade modifiers based on GMFH, GMPE and GMCS.9 The
net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s 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.10
ANALYSIS
Appellant’s claim was accepted by OWCP for an internal derangement of the left knee.
He previously injured his left knee in 1997 and had arthroscopic procedures, including medial
2

Id. at § 8107.

3

20 C.F.R. § 10.404.

4

Ausbon N. Johnson, 50 ECAB 304 (1999).

5

Supra note 4.

6

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

7

FECA Bulletin No. 09-03 (issued March 15, 2009).

8

See Dale B. Larson, 41 ECAB 481, 490 (1990); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.3.b. (June 1993). This portion of OWCP’s procedure provides that the impairment rating of
a given scheduled member should include any preexisting permanent impairment of the same member or function.
9

A.M.A., Guides 494-531.

10

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).

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and lateral partial meniscectomy in 2004. Appellant claimed a schedule award. OWCP granted
him a schedule award for seven percent impairment to the left lower extremity on the basis of
primary knee joint arthritis.
Appellant provided several reports from Dr. Guttman, who offered impairment ratings
under the State of New York Workers’ Compensation Board Medical Guidelines. The medical
evidence necessary to support a schedule award includes a physician’s report that provides a
detailed description of the impairment.11 Dr. Guttman did not provide an adequate description of
the impairment. Moreover, the Board has held that a medical report that does not describe the
basis for the impairment rating or refer to specific tables in the A.M.A., Guides is of diminished
probative value.12 Dr. Guttman referenced a state workers’ compensation statute without
discussing the A.M.A., Guides or otherwise describing the basis for an impairment. In a May 24,
2011 report, he opined that appellant had 10 percent left lower extremity impairment under the
sixth edition of the A.M.A., Guides. While he cited to several sections, Dr. Guttman did not
explain how he rated impairment. The medical adviser reviewed Dr. Guttman’s report and could
not determine how he made his impairment calculation. While Dr. Guttman indicated that an
impairment worksheet was provided, it is not of record. His impairment rating are of diminished
probative value.
In a March 22, 2012 report, Dr. Sultan, a second opinion examiner, determined that
appellant had five percent impairment of the left lower extremity. However, he provided his
impairment rating in accordance with the fifth edition of the A.M.A., Guides. As noted above,
this report is of limited probative value as it is not based on the proper sixth edition of the
A.M.A., Guides.
On August 14, 2012 Dr. Benatar found that appellant had seven percent impairment to
the left leg under the sixth edition of the A.M.A., Guides. He rated class 1 impairment due to
primary knee joint arthritis.13 Dr. Benatar found that appellant’s functional history was grade 1
due to mild antalgic gait.14 He further determined that the physical examination was grade 1 due
to mild decrease range of motion.15 Dr. Benatar also determined that clinical studies grade
modifier was not applicable as the joint space narrowing on x-rays was used in the diagnosis
class.16 Under the net adjustment formula, (GMFH-CDX) (1-1) + (GMPE-CDX) (1-1) +
(GMCS-CDX) (N/A) results in a net adjustment of 0. This represents grade C or seven percent
left lower extremity impairment for primary knee joint arthritis. OWCP’s medical adviser
reviewed Dr. Benatar’s report and found it consistent with the A.M.A., Guides. It establishes
that appellant has no more than seven percent impairment to the left lower extremity for which
he received a schedule award.
11

See James E. Jenkins, 39 ECAB 860 (1988); id. at Chapter 2.808.6(c) (August 2002).

12

See Mary L. Henninger, 52 ECAB 408 (2001).

13

A.M.A., Guides 511 Table 16-3.

14

Id. at 516 Table 16-6.

15

Id. at 517 Table 16-7.

16

Section 16.3, pages 515-16.

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On appeal, appellant argues that Dr. Guttman’s May 24, 2011 impairment rating found
greater impairment. As noted, Dr. Guttman failed to make an impairment rating referring to the
sixth edition of A.M.A., Guides. Appellant also argues that he is entitled to a schedule award
based on his previous meniscal injury and surgery.
The A.M.A., Guides explain that, on the basis of diagnosis, the condition is assigned to a
specific class in the regional grid. Reliability of the diagnosis is essential and should be
consistent with clinical history and findings at the time of the impairment assessment. The
A.M.A., Guides also caution that surgery does not necessarily result in an impairment rating
unless it is a factor that contributes to placing a diagnosis within a class. Surgical intervention is
only relevant if it alters the functional status of the condition evaluated at maximum medical
improvement (MMI).17 Dr. Benatar chose to rate appellant’s left knee impairment for the
primary diagnosis of arthritis, the Board concludes that Dr. Benatar’s evaluation, based upon the
primary diagnosis of arthritis, at the time of MMI, constitutes the weight of the medical
evidence.
Appellant also submitted new evidence on appeal. However, the Board lacks jurisdiction
to review such evidence for the first time on appeal.18
Appellant may request a schedule award or an increased schedule award based on
evidence of a new exposure or medical evidence showing a progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established that he has more than seven percent
impairment of the left lower extremity for which he received a schedule award.

17

Section 16.2a 499.

18

See 20 C.F.R. § 501.2(c)(1); Sandra D. Pruitt, 57 ECAB 126 (2005).

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ORDER
IT IS HEREBY ORDERED THAT the October 3, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 10, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate 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
__________________________________________
V.G., Appellant
and
U.S. POSTAL SERVICE, SEMINOLE
PROCESSING & DISTRIBUTION CENTER,
Orlando, FL, Employer
__________________________________________

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Appearances:
Wayne Johnson, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0982
Issued: June 17, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 4, 2020 appellant, through counsel, filed a timely appeal from an October 7, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the

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
The Board notes that appellant has another appeal pending before the Board under Docket No. 20-0455,
concerning July 1, 2019 OWCP decisions. That appeal is not addressed in this decision and will proceed under its
own docket number.

Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.4
ISSUE
The issue is whether appellant has met her burden of proof to establish that the acceptance
of her claim should be expanded to include right shoulder rotator cuff tear, right carpal tunnel
syndrome, and right stenosis tenosynovitis sustained as a consequence of her accepted January 23,
2011 employment injury.
FACTUAL HISTORY
On January 23, 2011 appellant, then a 46-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on that date she injured her left hand when she helped a coworker
clear up a jam in the dolley maker while in the performance of duty. She did not stop work. OWCP
accepted her claim for left hand sprain and subsequently expanded acceptance of her claim to
include left carpal tunnel syndrome, left cubital tunnel syndrome, left trigger finger (long and little
fingers), and other joint derangement of left shoulder and left arm. Appellant subsequently
underwent various OWCP-authorized surgeries for her left upper extremity conditions.5 OWCP
paid her wage-loss compensation, effective January 13, 2013.6
In a May 29, 2014 report, Dr. Richard M. Blecha, a Board-certified orthopedic surgeon,
discussed appellant’s history of her January 23, 2011 employment injury and also noted that
appellant underwent surgery for her right rotator cuff in 2008. He recounted that appellant always
believed that this condition was due to repetitive use of her shoulder on the job, but noticed that
this past year she had used her right shoulder more as she received treatment for her left shoulder.
Dr. Blecha indicated that appellant also complained of worsening right shoulder pain, numbness
in the thumb, index, and long finger on the right hand identical to her previous left-sided carpal
tunnel syndrome symptoms, and ongoing back and neck pain. Upon physical examination, he
observed positive Tinel’s testing over the median nerve of the right wrist and right ulnar nerve.
Sensory testing of the right upper extremity was unremarkable except for decreased light touch in
the right long and index fingers. Dr. Blecha diagnosed left shoulder internal derangement and
rotator cuff syndrome, left shoulder impingement, post arthroscopic surgery, left wrist post
neurolysis median nerve of the left wrist, post neurolysis ulnar nerve and anterior transposition of
the left elbow, status post tenolysis trigger fingers of the left little, ring, and long fingers, right
3

5 U.S.C. § 8101 et seq.

4

The Board notes that, following the October 7, 2019 decision, appellant submitted additional evidence to OWCP.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id
5

On July 1, 2011 appellant underwent OWCP-approved left carpal tunnel, left cubital tunnel, and left trigger finger
release surgery. She stopped work, but returned to full-time limited duty on August 10, 2011. On January 10, 2013
appellant underwent OWCP-authorized left shoulder arthroscopic surgery and stopped work again.
6
Appellant retired from federal employment, effective May 1, 2014.
Retirement Benefits.

2

She elected to receive Civil Service

ulnar dysfunction, C8-T1 entrapment of the right upper extremity, internal derangement and partial
thickness tear of the right shoulder, right wrist carpal tunnel syndrome, and cervical and lumbar
disc syndrome.
In a July 28, 2014 narrative report and a diagnosis update form report, Dr. Blecha requested
to upgrade appellant’s accepted conditions to include right shoulder partial thickness rotator cuff
tear, right wrist carpal tunnel syndrome, and right index finger stenosing tenosynovitis. He
recounted that appellant was doing fairly well after her 2008 right shoulder surgery, but as she
developed left shoulder problems her right shoulder became symptomatic again. Dr. Blecha
reported: “it is felt that her current level of symptomatology is due to increased use of the right
shoulder secondary to limited use of the left.” He also noted that over the last few years appellant
had developed symptoms of right-sided carpal tunnel syndrome “felt to be compensatory because
she was using the right hand more than the left when the left was symptomatic.” Dr. Blecha further
indicated that appellant had developed triggering of the right index finger, which she stated was
probably due to the fact that she was using the finger more because of some residual pain and
soreness at the left hand. He provided examination findings and noted that previous diagnostic
testing supported appellant’s conditions of right shoulder partial thickness tear of the rotator cuff,
right wrist carpal tunnel syndrome, and right index finger stenosing tenosynovitis.7 Dr. Blecha
opined that all three of the problems were “felt to be compensatory resulting from overuse of the
right upper extremity as she was troubled by symptoms of the accepted conditions present in the
left upper extremity.”
Appellant also received medical treatment from Dr. Robert R. Reppy, an osteopath who
specializes in family medicine. In reports dated September 29 and October 22, 2014, Dr. Reppy
reviewed appellant’s medical records and recounted her current complaints of neck pain and
trigger finger deformity of her right index finger. He provided examination findings and diagnosed
right shoulder partial thickness tear of the supraspinatus and infraspinatus tendon, bilateral rotator
cuff syndrome, left wrist status postsurgical carpal tunnel and cubital tunnel syndrome release,
status post-surgical release of the trigger fingers of the left 3rd, 4th, and 5th fingers, left shoulder
impingement syndrome, right ulnar neuropathy, entrapment of the C8-T1 nerve roots, left shoulder
status postoperative arthroscopic surgery on the left shoulder and right shoulder internal
derangement and impingement syndrome. In an October 22, 2014 report, Dr. Reppy opined that
appellant’s right shoulder pain was consequential to the left-sided injury, due to the extra work
stress put on that shoulder to compensate.
In a November 26, 2014 follow-up evaluation report, Dr. Reppy recounted appellant’s
complaints of right upper extremity pain in the hand, wrist, and elbow. He described the
January 23, 2011 injury and noted that appellant had left hand surgery in July 2011. Dr. Reppy
reported that, by August, appellant began to have symptoms on the right arm because she was
forced to utilize the right arm to compensate for the loss of use of the left arm from surgery.
Regarding the right upper extremity symptoms that developed, he explained that, “first was the
right trigger finger deformity after that appellant developed the right wrist pain from the carpal
tunnel and then lastly she developed the nerve entrapment syndrome of the elbow.” Dr. Reppy
7
A May 28, 2013 right shoulder magnetic resonance imaging (MRI) scan report revealed acromiohumeral
impingement and partial thickness tears of the supraspinatus and infraspinatus tendons. An April 14, 2014 bilateral
upper extremity nerve conduction velocity (NCV) study demonstrated findings suggestive of mild carpal tunnel
syndrome on the right and early or mild carpal tunnel syndrome on the left.

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conducted an examination and diagnosed right upper extremity conditions of right shoulder rotator
cuff tear, right wrist carpal tunnel syndrome, stenosing tenosynovitis, and right cubital tunnel
syndrome involving the ulnar nerve. He continued to treat appellant for her right upper extremity
symptoms and provided reports dated December 19, 2014 through March 20, 2015.
In a February 13, 2015 letter, Dr. Reppy explained that, while the original injury focused
on the left shoulder, appellant had to rely more upon the right upper extremity after the left shoulder
surgery. He opined that “based on physical exam[ination], objective evidence, and my medical
experience, her upper extremity diagnosis are, in fact, consequential injury to her original date of
injury of 1/23/11 and should be compensable.” Dr. Reppy continued to treat appellant for her
complaints of right upper extremity, cervical, and low back pain and provided reports dated
April 24 through July 10, 2015. He requested that OWCP include appellant’s right shoulder and
right upper extremity conditions to her list of accepted diagnoses.
In reports dated April 14 and May 13, 2015, Dr. Samy Bishai, an orthopedic surgeon,
recounted appellant’s complaints of problems with her right shoulder, elbow, wrist, and hand in
very similar conditions to the ones on the left. Upon examination of her right shoulder, he observed
tenderness overlying the anterior, lateral, and posterior aspects. Dr. Bishai diagnosed right upper
extremity conditions of right shoulder joint internal derangement, right shoulder impingement
syndrome, and partial thickness tear of the supraspinatus and infraspinatus tendons. He reported
that appellant had a consequential injury to her right shoulder and right upper extremity as a result
of the injuries to her left shoulder, elbow, and wrist. Dr. Bishai indicated that appellant “had to
overuse the right upper extremity in order to be able to continue working.”
On June 3, 2015 appellant underwent a NCV study, which revealed an abnormal study of
the upper extremities. The report noted evidence to suggest the presence of right C8-T1
entrapment and the possibility of right median mononeuritis.
A June 27, 2015 right upper extremity MRI scan report revealed a full-thickness tear
involving the supraspinatus tendon, partial tearing of the long head of the biceps tendon, and mild
degenerative arthritis involving the acromioclavicular (AC) joint.
In a July 13, 2015 letter, Dr. Reppy noted that office notes from 2013 reported that
appellant had developed right shoulder and arm symptoms due to all the lifting and maneuvers that
she performed with her upper extremities. He also pointed out that physicians, including
Drs. Bishai and Blecha, had requested that appellant’s right shoulder and wrist conditions be added
to her list of accepted conditions.
In an August 24, 2015 letter, OWCP informed appellant that it had received the request for
expansion of her claim to include consequential right upper extremity conditions. It requested
additional evidence in support of her claim for a consequential injury, including a physician’s
rationalized medical opinion fully explaining how the current diagnosed conditions were related
to the accepted January 23, 2011 employment injury. OWCP afforded appellant 30 days to submit
additional evidence.
Appellant continued to submit medical reports from Dr. Reppy dated August 21 through
October 23, 2015 regarding his medical treatment for her complaints of low back, bilateral
shoulder, and neck pain.

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OWCP also received a September 20, 2015 letter by Dr. Reppy, who cited to Arnold
Gustafson8 and alleged that it was not necessary to prove a sufficient contribution of employment
factors to a condition for the purpose of establishing causal relationship. Dr. Reppy noted
diagnoses of status post right shoulder rotator cuff repair in 2008, right wrist carpal tunnel
syndrome, stenosing tenosynovitis, right cubital tunnel syndrome with ulnar involvement, and
bilateral supraspinatus and infraspinatus tears. He opined that appellant’s symptoms were directly
related to her employment and that the conditions had not resolved. Dr. Reppy described the
January 23, 2011 employment injury to her left upper extremity and explained that, because
appellant had to rely more on her right arm during the postsurgical recovery period, she began to
experience right arm symptoms by August of that year. He reported that appellant’s right shoulder
preexisting injury was aggravated and became a consequential injury after appellant’s left arm
became severely compromised by the hand surgery and subsequent recovery, which necessitated
over-reliance on the other arm.
By decision dated November 23, 2015, OWCP denied expansion of the acceptance of
appellant’s claim to include a consequential injury. It found that the medical evidence of record
did not demonstrate that weakness or impairment caused by her work-related injury or illness led
to an aggravation of the original injury or to a new injury.
On November 22, 2016 appellant, through counsel, requested reconsideration of the
November 23, 2015 decision.
Appellant continued to receive medical treatment from Dr. Reppy and submitted reports
dated January 22, 2016 through January 13, 2017 regarding his treatment for her low back, neck,
and bilateral shoulder pain. Dr. Reppy provided examination findings and noted right upper
extremity diagnoses of supraspinatus and infraspinatus tears of both shoulders, right cubital tunnel
syndrome, right wrist carpal tunnel syndrome, stenosing tenosynovitis, and status post right rotator
cuff and clavicle surgery and repair in 2008.
OWCP also received additional diagnostic reports, including a May 14, 2016 right shoulder
MRI scan report and an August 10, 2016 bilateral upper extremity NCV study report.
Appellant submitted a February 1, 2017 report by Dr. Gary K. Arthur, a Board-certified
psychiatrist and neurologist, who opined that appellant’s depression and anxiety were directly
related to and caused by her physical disabilities and pain resulting from her January 23, 2011
work injury.
By decision dated February 16, 2017, OWCP denied modification of the November 23,
2015 decision. It found that the medical evidence of record was insufficient to establish that
appellant’s diagnosed right shoulder and arm conditions were causally related or consequential to
appellant’s accepted January 23, 2011 employment injury.
On February 16, 2018 appellant, through counsel, requested reconsideration.
Appellant continued to receive medical treatment from Dr. Reppy and submitted reports
dated April 7 through September 15, 2017, regarding his treatment for her low back, neck, and
8

41 ECAB 438 (1989).

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bilateral shoulder pain. Dr. Reppy provided examination findings and diagnosed right upper
extremity conditions of bilateral shoulder supraspinatus and infraspinatus tears, right carpal tunnel
syndrome, right cubital tunnel syndrome, stenosing tenosynovitis, and right trigger finger.
In reports dated October 3 and December 12, 2017, Dr. Mark A. Seldes, a Board-certified
family medicine specialist, recounted appellant’s complaints of continued pain in her left shoulder,
elbow, and wrist despite prior surgeries. He indicated that appellant also had prior right shoulder,
elbow, and wrist surgeries for carpal tunnel symptoms and requested that OWCP add the diagnoses
of right carpal tunnel syndrome, right lesion of the ulnar nerve, and right shoulder rotator cuff tear
as “consequential injuries.” Upon examination of appellant’s right shoulder, Dr. Seldes observed
tenderness overlying the anterior, lateral, and posterior aspects of the right shoulder. Examination
of appellant’s right elbow revealed slight tenderness over the medial aspect of the medial
epicondyle as well as mild tenderness along the ulnar aspect of the forearm. Dr. Seldes also
reported positive Tinel’s and Phalen’s testing on the right side. He diagnosed right upper extremity
conditions of right ulnar nerve dysfunction, internal derangement of the right shoulder joint, right
shoulder impingement syndrome, partial thickness tear of the supraspinatus and infraspinatus
tendons of the right shoulder joint, and status postoperative release of carpal tunnel and cubital
tunnel release. Dr. Seldes reported that appellant suffered from “consequential injuries to her right
shoulder, elbow, wrist, and forearm secondary to the original injuries of her left shoulder, elbow,
wrist, and forearm since the patient had overused and abuse her right upper extremity in doing
most of the activities at work.” He continued to treat appellant for her bilateral upper extremity
symptoms and submitted reports dated February 1 through May 1, 2018.
In a February 7, 2018 report, Dr. Arthur again opined that appellant’s depression and
anxiety were directly related to, and caused by, her physical disabilities and pain resulting from
the January 23, 2011 employment injury.
Appellant also began receiving medical treatment from Dr. Scott Gordon, a Board-certified
orthopedic surgeon, for conditions of left elbow osteoarthritis and left thumb and index trigger
finger conditions. He submitted reports and attending physician report forms (Form CA-20) dated
January 9 through May 3, 2018.
By decision dated July 9, 2018, OWCP denied modification of the February 16, 2017
decision.
On July 9, 2019 appellant, through counsel, requested reconsideration.
Appellant submitted reports dated August 1, 2018 through June 19, 2019 by Dr. Seldes.
Dr. Seldes indicated that appellant’s left elbow continued to worsen and requested that OWCP add
the conditions of left elbow osteoarthritis and left elbow lateral epicondylitis to her claim.
A November 21, 2018 left elbow MRI scan revealed chronic osteoarthritis of the olecranon
trochlea joint, lateral epicondylitis, and moderate osteoarthritis with prominent osteophytes.
OWCP also received reports and state workers’ compensation forms dated January 10
through March 7, 2019 by Dr. Anup Patel, a Board-certified internist, who described the
January 2011 left elbow and shoulder injury. Dr. Patel provided examination findings and
diagnosed left elbow osteoarthritis and left elbow lateral epicondylitis. He recommended left
elbow total replacement surgery.
6

In an April 17, 2019 report and state workers’ compensation form, Dr. George White, a
Board-certified orthopedic surgeon, indicated that he treated appellant for severe degenerative
arthritis of the left elbow. He reported examination findings of limited mobility and pain in the
left elbow. Dr. White diagnosed left elbow primary osteoarthritis and left neuritis lesion of the
ulnar nerve. He noted that appellant could work with restrictions.
By decision dated October 7, 2019, OWCP denied modification of the July 9, 2018
decision.
LEGAL PRECEDENT
When an employee claims that a condition not accepted or approved by OWCP was due to
an employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury.9
The claimant bears the burden of proof to establish a claim for a consequential injury.10 As
part of this burden, he or she must present rationalized medical opinion evidence, based on a
complete factual and medical background, establishing causal relationship.11 Additionally, the
opinion of the physician must be expressed in terms of a reasonable degree of medical certainty,
and must be supported by medical rationale, explaining the nature of the relationship between the
diagnosed condition and the specific employment factor(s) or employment injury.12
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical evidence.13 Neither the mere fact that a disease or condition
manifests itself during a period of employment, nor the belief that the disease or condition was
caused or aggravated by employment factors or incidents, is sufficient to establish causal
relationship.14
In discussing the range of compensable consequences, once the primary injury is causally
connected with the employment, the question is whether compensability should be extended to a
subsequent injury or aggravation related in some way to the primary injury.15 The basic rule is
that, a subsequent injury, whether an aggravation of the original injury or a new and distinct injury,
is compensable if it is the direct and natural result of a compensable primary injury.16 When an
9

J.R., Docket No. 20-0292 (issued June 26, 2020); W.L., Docket No. 17-1965 (issued September 12, 2018); V.B.,
Docket No. 12-0599 (issued October 2, 2012); Jaja K. Asaramo, 55 ECAB 200, 204 (2004).
10

V.K., Docket No. 19-0422 (issued June 10, 2020); A.H., Docket No. 18-1632 (issued June 1, 2020); I.S., Docket
No. 19-1461 (issued April 30, 2020).
11

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

12

M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41
ECAB 345 (1989).
13

G.R., Docket No. 18-0735 (issued November 15, 2018).

14

Id.

15

K.S., Docket No. 17-1583 (issued May 10, 2018).

16

Id.

7

injury arises in the course of employment, every natural consequence that flows from that injury
likewise arises out of the employment, unless it is the result of an independent intervening cause
attributable to the claimant’s own conduct.17
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that the
acceptance of her claim should be expanded to include right shoulder rotator cuff tear, right carpal
tunnel syndrome, and right stenosis tenosynovitis sustained as a consequence of her accepted
January 23, 2011 employment injury.
In support of her request for a consequential injury, appellant submitted reports by
Dr. Blecha dated May 29 and July 28, 2014. In his initial May 29, 2014 report, he accurately
described the January 23, 2011 employment injury and noted that appellant complained of
worsening right shoulder pain, numbness in the thumb, index, and long finger on the right hand
identical to her previous left-sided carpal tunnel syndrome symptoms. Dr. Blecha indicated
appellant’s right shoulder symptoms increased this past year due to “increased use of the right
shoulder secondary to limited use of the left.” He reported that appellant’s right-sided elbow,
wrist, and trigger finger conditions had developed because she was using the right hand more than
the left while the left was symptomatic. Dr. Blecha requested that appellant’s claim be upgraded
to include right shoulder partial thickness tear of the rotator cuff, right wrist carpal tunnel
syndrome, and right index finger stenosing tenosynovitis. He opined that all three of the problems
were “felt to be compensatory resulting from overuse of the right upper extremity as she was
troubled by symptoms of the accepted conditions present in the left upper extremity.”
The Board finds that, although Dr. Blecha opined that appellant’s right shoulder, right
wrist, right hand, and right trigger finger conditions were a consequence of her accepted
January 23, 2011 employment injury, his opinion is of limited probative value in establishing a
consequential employment injury because he did not provide adequate medical rationale in support
of his opinion. Dr. Blecha did not describe the medical process through which appellant’s right
upper extremity symptoms were related to the accepted January 23, 2011 employment injury.18
He did not provide specific detail as to how appellant actually compensated for her left arm injury
at work or describe the medical process of how increased use of her right upper extremity resulted
in her diagnosed right shoulder, wrist, and hand conditions.19 These reports, therefore, are
insufficient to establish appellant’s claim.
Likewise, in reports dated April 14 and May 13, 2015, Dr. Bishai also opined that appellant
had consequential right shoulder and hand injuries due to overuse of the right upper extremity in
order to continue working. In reports dated October 3 and December 12, 2017, Dr. Seldes further
17

A.M., Docket No. 18-0685 (issued October 26, 2018); Mary Poller, 55 ECAB 483, 487 (2004).

18

See L.D., Docket No. 20-0894 (issued January 26, 2021); see also L.B., Docket No. 19-1907 (issued
August 14, 2020).
19
Medical evidence that states a condition but does not offer any rationalized medical explanation regarding the
cause of an employee’s condition is of limited probative value on the issue of causal relationship. D.H., Docket No.
17-1913 (issued December 13, 2018); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D., 58 ECAB 149
(2006)

8

reported that appellant suffered from “consequential injuries to her right shoulder, elbow, wrist,
and forearm secondary to the original injuries of her left shoulder, elbow, wrist, and forearm.”
While Drs. Bishai and Seldes provide an affirmative opinion that supported causal relationship,
neither physician offered a rationalized medical explanation to support his opinion.20
Similarly, in reports and letters dated October 22, 2014 through September 20, 2015,
Dr. Reppy provided examination findings and diagnosed right upper extremity conditions of right
shoulder partial thickness tear of the supraspinatus and infraspinatus tendon, right ulnar
neuropathy, and right shoulder internal derangement and impingement syndrome. He indicated
that appellant had right shoulder surgery in 2008, but her current right shoulder pain worsened due
to the extra work stress put on that shoulder to compensate for her left hand injury. Dr. Reppy
explained that, after appellant’s July 2011 left hand surgery, she had to use her right arm to
compensate for the loss of use of her left arm. He reported that appellant’s right shoulder
preexisting injury was aggravated and became a consequential injury after appellant’s left arm
became severely compromised by the hand surgery and subsequent recovery.
The Board finds that Dr. Reppy’s opinion regarding a consequential injury is of little
probative value because he did not provide adequate medical rationale in support of his opinion.
Dr. Reppy did not explain how physiologically appellant’s use of her right arm at work caused her
right shoulder, wrist, and hand conditions.21 Such rationale is particularly necessary as appellant
had a preexisting right shoulder condition.22 In any case where a preexisting condition involving
the same part of the body is present and the issue of causal relationship, therefore, involves
aggravation, acceleration, or precipitation, the physician must provide a rationalized medical
opinion that differentiates between the effects of the work-related injury or disease and the
preexisting condition.23 Thus, Dr. Reppy’s reports are insufficient to establish appellant’s claim.
The additional medical reports, including diagnostic reports and Drs. Arthur, Patel, and
White’s reports, are also of no probative value in establishing appellant’s right upper extremity
conditions as a consequence of the accepted January 23, 2011 employment injury since none of
these reports provide an opinion that appellant sustained consequential right shoulder, wrist, or
hand conditions.24 The Board has held that medical evidence that does not offer an opinion
regarding the cause of an employee’s condition or disability is of no probative value on the issue

20

T.T., Docket No. 19-0319 (issued October 26, 2020); C.W., Docket No. 19-1747 (issued September 2, 2020).

21
See C.H., Docket No. 20-0228 (issued October 7, 2020); see also D.J., Docket No 16-0663 (issued
October 20, 2016).
22

V.G., Docket No. 19-0908 (issued October 25, 2019).

23

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
K.G., Docket No. 18-1598 (issued January 7, 2020); M.S., Docket No. 19-0913 (issued November 25, 2019).
24
See T.T., Docket No. 20-0687 (issued December 11, 2020); see also L.B., Docket No. 18-0533 (issued
August 27, 2018).

9

of causal relationship.25 These reports, therefore, are insufficient to establish appellant’s
consequential injury claim.
On appeal counsel argues that all the medical evidence demonstrated that appellant
suffered an injury due to having to compensate for her accepted conditions. As explained above,
appellant submitted insufficient medical evidence to establish causal relationship between her right
shoulder rotator cuff tear, right carpal tunnel syndrome, and right stenosis tenosynovitis conditions
and the accepted January 23, 2011 employment injury.
The Board finds that appellant has not met her burden of proof to establish that the
acceptance of her claim should be expanded to include right shoulder rotator cuff tear, right carpal
tunnel syndrome, and right stenosis tenosynovitis sustained as a consequence of the January 23,
2011 employment 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 has not met her burden of proof to establish that the
acceptance of her claim should be expanded to include right shoulder rotator cuff tear, right carpal
tunnel syndrome, and right stenosis tenosynovitis sustained as a consequence of her accepted
January 23, 2011 employment injury.26

25

See E.R., Docket No. 20-0880 (issued December 2, 2020); L.B., id.; D.K., Docket No. 17-1549 (issued
July 6, 2018).
26

Should appellant wish to expand her claim to include emotional conditions, she may submit a request to OWCP.

10

ORDER
IT IS HEREBY ORDERED THAT the October 7, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 17, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Camden, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-295
Issued: April 25, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 20, 2013 appellant, through his attorney, filed a timely appeal from a
September 25, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
injury to the left knee causally related to factors of his federal employment.
FACTUAL HISTORY
On January 22, 2013 appellant, then a 46-year-old city carrier/transitional employee, filed
a traumatic injury claim (Form CA-1) alleging that he injured his left knee on that date after
stepping down with his left foot onto a step and buckling his knee. He stated that his kneecap
1

5 U.S.C. § 8101 et seq.

“popped” in and out, and that he could not fully extend his left knee.2 The employing
establishment controverted the claim and continuation of pay, checking a box confirming that
appellant had been injured in the performance of duty, but also checking a box stating that the
injury had been caused by appellant’s willful misconduct, intoxication, or intent to injure himself
or another, and that the employing establishment’s knowledge of the facts of the injury agreed
with the statements of appellant.3 It explained that he must have had a preexisting condition of
the knee, because otherwise he would not have known what had “popped.” The employing
establishment asserted that appellant did not trip, slip, or fall, and that as he was overweight, this
condition could have caused his injury. It noted that he wore a brace on his right knee, but that
he claimed it was for support, and that he had worked at the employing establishment for three
days at the time of his injury. Comparing appellant’s knees, the employing establishment stated
that they appeared the same and that it did not believe that the injury came from the incident
described. It stated that it believed he wore the right knee brace to help with weight bearing on
that leg because he had a preexisting injury of the left knee, and that he had asked to be taken to
a specific hospital by ambulance because they knew him well there. Appellant’s supervisor
noted that he had stopped work on January 22, 2013.
On January 30, 2013 OWCP notified appellant of the deficiencies of his claim.
afforded him 30 days for the submission of additional medical and factual evidence.

It

In discharge instructions dated January 22, 2013, Dr. Rick Hong, Board-certified in
emergency medicine, diagnosed appellant with knee pain and prescribed crutches.
In an emergency department visit summary dated January 22, 2013, Dr. Hong
recommended differential diagnoses of patellar dislocation versus sprain versus a ligamentous
tear. He noted that appellant’s injury occurred at work as a mail carrier. Dr. Hong
recommended an x-ray, pain management, an immobilizer, occupational health for a workrelated injury and an orthotic referral.
On January 22, 2013 Dr. Thomas J. Presenza, a Board-certified radiologist, examined the
results of four views of appellant’s left knee taken on that day. He noted no acute osseous
abnormality and mild tricompartmental arthritis. Dr. Presenza further noted a narrowing of the
lateral facet of the patellofemoral joint, with very mild lateral translation of the patella relative to
the trochlear groove. He noted enthesopathic changes at the superior patella, an osseous
protuberance from the dorsal aspect of the distal femoral metaphysis, ossific densities within the
soft tissues anterior to the distal femur and superior to the patella and no joint effusion.

2

The record contains two CA-1 forms with conflicting information regarding the time of appellant’s injury. A
handwritten form states that the injury occurred at 11:58 a.m., while a typed form states that it occurred at 12:50
p.m. The forms also contain conflicting information regarding appellant’s regular work hours, with the typed form
stating that he worked 9:00 a.m. through 4:00 a.m., and the handwritten form stating that he worked from 8:00 a.m.
through 4:30 p.m.
3

On the handwritten form, the supervisor did not check a box indicating whether appellant was injured within the
performance of duty, but noted that it was unknown and that the employing establishment did not believe he was. It
also stated that it was unknown whether appellant’s injury had been caused by willful misconduct, intoxication, or
intent to injure himself or others.

2

In a statement dated January 22, 2013, appellant noted that on that date at 11:58 a.m., he
delivered mail and proceeded to leave the residence. As he started to descend the stairs to the
residence, he stepped with his left foot and his left knee buckled. Appellant’s knee “popped” out
and back in and he was not able to straighten his left leg. Immediately afterward, he contacted
his supervisor.
In a record of an investigative interview dated January 24, 2013, the employing
establishment questioned appellant about the traumatic incident, his prior safety training and his
claimed injury. Appellant stated that his injury occurred on his fourth delivery route, and that he
had received information about using railings when walking up steps. He stated that the stairs on
which the injury occurred had no railings, but that he went up carefully and used only the clear
area of the steps. Appellant noted that there was snow and leaves on the outside of the steps, but
that he avoided them and that he injured himself on the first step downward. He acknowledged
that he asked to be taken to Cooper Hospital by the ambulance driver, and he explained his
preference to his supervisor as resulting from his wife’s familiarity with the hospital due to her
disability. Appellant stated that he placed his left leg on the step to proceed downward, felt a
“pop,” and saw his kneecap “pop” out and back in, but that he did not trip, slip or fall. The
supervisor asked how he knew it was his kneecap, to which appellant replied that he “just did,”
and that it had not occurred before. She also asked why he had a brace on his right knee, to
which he replied “just for support,” and upon being asked what the support was for, he stated “I
just wanted to be sure I would not get hurt so I wore it for support.” On being asked why he did
not wear a brace on his left knee for support as well, appellant stated “I don’t know.” He noted
that he wore other braces on his back and ankle, and that he had previously worked at United
Parcel Service of North America, Inc. (UPS) in the 1990s. On being asked whether he claimed
an on-the-job injury at UPS, appellant stated that he had claimed an injury of a torn rotator cuff.
The supervisor noted that appellant had called from the hospital to report a torn patella, and
asked why he reported this injury when the medical paperwork stated only that he had knee
swelling. Appellant stated that he had asked the physicians more than once to write that down as
the diagnosis, and explained that some of the physicians had reported that diagnosis to him. He
further asked the physicians to perform a magnetic resonance imaging (MRI) scan, but stated
that they refused. The supervisor noted that appellant had told her at the hospital that he got
advice from another letter carrier, and asked what type of help he had provided. Appellant
replied that he told him how to be safe and “a lot of ins and outs of the Post Office.” She asked
him whether he thought his weight could have been a factor in this injury, and appellant replied
that he did not know. On being asked whether he would have to put one leg down first in
descending stairs and thus put all of his weight on that leg, he replied “I guess.” Appellant stated
that he had not had problems or been treated for knee problems before this incident, and that he
bought and wore the brace on his right knee not because the knee hurt or bothered him, but for
support.
On January 25, 2013 an investigative supervisor further explained the employing
establishment’s reasons for controversion of appellant’s claim. She stated that, on January 22,
2013, she instructed appellant, a new transitional employee, to deliver a three and one-half hour
route. Appellant had been given instruction on how to get to the route and he acknowledged that
he had been given driving and safety training. The supervisor stated that this delivery route was
his third time on the street for delivery. At approximately 12:30 p.m., she received a telephone
call from appellant stating that he had been injured and an ambulance was called. Appellant
3

stated that he wanted to go to Cooper Hospital, as they knew him well there. The supervisor
went to the hospital to see him. The physician at the hospital asked appellant to pull up the pant
leg of his right uninjured leg for comparison with the left leg, which revealed a right knee brace.
The physician asked whether he had any problems with his knees prior to this date, to which
appellant replied that he had not.
In a patient referral slip dated January 28, 2013, Dr. Terry O’Neal-Cox, an internist,
referred appellant for an MRI scan to rule out internal derangement and diagnosed him with a
left knee/leg sprain.
On January 28, 2013 Dr. O’Neal-Cox stated that appellant was injured on January 22,
2013 by descending a step when his left knee slid in and out of place. He assessed appellant with
a knee derangement of the lateral cartilage and knee/leg sprain, and ordered an MRI scan of
appellant’s knee. In a duty status report of the same date, Dr. O’Neal-Cox diagnosed appellant
with a left knee sprain with internal derangement and recommended that he not work.
Dr. O’Neal-Cox stated that his diagnosis was due to an injury on this form report, but did not list
a date of injury or how the injury occurred.
On January 31, 2013 the employing establishment sent an addendum to its controversion
letter regarding appellant’s request for authorization of an MRI scan. It noted that it had not yet
received any medical reports recommending that appellant have an MRI scan performed on his
knee or diagnosing him with a condition other than knee sprain.
On February 4, 2013 Dr. Neil Roach, a Board-certified radiologist, reviewed an MRI
scan of appellant’s knee. He noted that he had no previous imaging of the knee for comparison.
Dr. Roach diagnosed appellant with a complete tear of the quadriceps tendon from the superior
pole of the patella, with a partial tear of the medial retinaculum in the vicinity of the superior
pole of the patella, as well as extensive subcutaneous edema and prepatella bursitis.
In progress notes dated February 5, 2013, Dr. O’Neal-Cox stated that appellant had told
him that he used a flight of steps on January 22, 2013 when his kneecap “popped” out. He
diagnosed appellant with a knee/leg sprain and a complete quadriceps tendon tear.
Dr. O’Neal-Cox noted pain on palpation of the superior patellar ligament and reduced range of
motion.
In a work status report dated February 5, 2013, Dr. Todd M. Lipschultz, a Board-certified
orthopedist, recommended that appellant be off work. He reported a diagnosis of a complete left
quadriceps tendon tear.
In a letter to Dr. O’Neal-Cox dated February 5, 2013, Dr. Lipschultz diagnosed appellant
with a complete tear of the quadriceps tendon and stated that he needed surgery to correct it. He
noted that the injury occurred when appellant walked down steps and his left knee gave way. In
a letter dated February 14, 2013, Dr. Lipschultz expressed that appellant had a left distal
quadriceps tendon rupture that required urgent surgical repair.
On February 18, 2013 appellant responded to OWCP’s inquiries. He stated that on
January 22, 2013 he had finished delivering mail to a residence and turned to descend the steps.
When appellant placed his left foot down on the first step, he saw his kneecap “pop” out and
4

back in, and began to have intense pain and swelling above his left knee. He was able to
maneuver to the bottom of the steps to sit and immediately called the employing establishment to
report the injury. An ambulance was contacted and he was taken to Cooper Hospital 20 minutes
later. Appellant clarified that he was on his regular shift delivering mail to residences when the
injury occurred, and stated that he had not had any similar conditions of the knee before
January 22, 2013. He noted that January 22, 2013 was his fourth day working by himself, and
that his first day of work was January 2, 2013 for 20 hours of training. Appellant stated that he
had previously worked inside contacting vendors and corporate employees, and that in that
position he wore a brace only at work to prevent issues due to walking. He noted that he had lost
weight after being diagnosed with diabetes in 2010 and that it was imperative that he manage his
health. Appellant stated that Cooper Hospital was both the closest hospital to the scene of the
injury and it contained his medical records, which was why he requested to be taken to that
specific hospital. As to how he claimed to recognize that his kneecap “popped” out, he stated
that he had seen it occur. Appellant explained that after his supervisor left him at the hospital, a
physician told him there was a possible tendon tear and recommended that he see an orthopedist.
He noted that he could not get an appointment with an orthopedist at first because he did not
know his claim number. Appellant went to an orthopedist on January 28, 2013. He received an
information packet on January 29, 2013 and his claim number on February 1, 2013 via
voicemail. On February 11, 2013 he stated that Dr. Lipschultz contacted him to tell him that his
surgery was on hold while his claim was under review.
By decision dated March 4, 2013, OWCP denied appellant’s claim. It found that the
medical evidence was insufficient to establish a causal relationship between his left knee
condition and the January 22, 2013 employment incident. OWCP accepted that he was a federal
civilian employee who filed a timely claim; that the traumatic incident occurred; that a medical
condition was diagnosed; and that he was within the performance of duty at the time of the
incident.
On March 11, 2013 appellant, through his attorney, requested a telephonic hearing before
an OWCP hearing representative.
In a report dated March 28, 2013, Dr. Andrew Beaver, an orthopedic surgeon, stated that
appellant stumbled at work two months prior to his visit. On physical examination, he noted a
palpable defect of the superior pole of the patella. Dr. Beaver stated that an MRI scan revealed a
full thickness quadriceps tendon tear of the left knee and recommended surgery.
In an operative report dated April 5, 2013, Dr. Beaver described the procedure of
repairing appellant’s left knee quadriceps tendon. He noted that appellant fell on his flexed left
lower extremity four or five weeks before the procedure.
A hearing was held before an OWCP hearing representative on July 12, 2013. Appellant
stated that he did not have a history of injury to either his left or right knee, and that he wore a
right knee brace because he was not used to the walking required by his position. He explained
that his right knee had been getting sore from kneeling and that he used the brace as a cushion.
Appellant noted that he had not been physically examined by the employing establishment prior
to his hiring. He described the traumatic event of January 22, 2013, noting that he had not fallen
to the ground at the time of the incident, but was able to sit down on the side of the steps.

5

Appellant stated that his physicians had told him that by placing the left foot down on the first
step when descending, there was pressure that caused his tendon to rupture. He noted that he had
not yet been released to return to work. Appellant stated that he had been released from his
position as a city carrier/transitional employee on February 5, 2013 because he had not
completed the 90-day probationary period. The hearing representative informed appellant that
he would hold the record open for 30 days for the submission of new evidence.
In discharge notes dated April 6, 2013, Dr. Beaver stated that appellant sustained a
chronic left quadriceps tear in January 2013. He noted that appellant was medically and
orthopedically stable for discharge.
On April 11, 2013 Dr. Beaver stated that appellant was doing well after his surgery and
was wearing a locked knee brace along with crutches. On May 23, 2013 Dr. Beaver noted that
appellant was doing well and had spent six weeks in a hinged knee brace locked in extension.
He recommended that appellant start physical therapy for six weeks and that he would be out of
work for that period of time, and stated that appellant could not perform a straight leg raise. On
July 22, 2013 Dr. Beaver stated that appellant could return to work. On examination of the left
knee, he found full range of motion, good quadriceps strength and tone and noted that appellant
could perform a straight leg raise. He recommended that appellant stay in physical therapy.
By decision dated September 25, 2013, OWCP’s hearing representative affirmed the
March 4, 2013 decision. He found that appellant had not submitted rationalized medical opinion
evidence supporting a causal relationship between his diagnosis and the traumatic event of
January 22, 2013.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 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.5 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.6
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.7
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.8 Second, the
4

5 U.S.C. § 8101 et seq.

5

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364, 366 (2006).

6

S.P., 59 ECAB 184, 188 (2007); Joe D. Cameron, 41 ECAB 153, 157 (1989).

7

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 5.

8

D.B., 58 ECAB 464, 466 (2007); David Apgar, 57 ECAB 137, 140 (2005).

6

employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.9
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.10 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.11
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.12 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and
compensable employment factors.13 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.14
ANALYSIS
OWCP accepted that the employment incident of January 22, 2013 occurred, that a
medical condition had been diagnosed and that he was within the performance of duty at the time
of the incident. The issue is whether appellant’s left knee condition resulted from the
January 22, 2013 employment incident. The Board finds that he did not meet his burden of proof
to establish a causal relationship between the knee condition for which compensation is claimed
and the employment incident.
The medical evidence submitted contains a number of reports in which appellant’s
physicians gave diagnoses, examination findings and affirmative statements regarding
appellant’s description of the mechanism of injury. On January 22, 2013 Dr. Hong noted that
appellant’s injury occurred at work as a mail carrier. On January 28, 2013 Dr. O’Neal-Cox
stated that appellant was injured on January 22, 2013 by descending a step when his left knee
slid in and out of place. In progress notes dated February 5, 2013, he stated that appellant had
9

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734, 737 (2008); Bonnie A. Contreras,
supra note 5.
10

Roma A. Mortenson-Kindschi, 57 ECAB 418, 428 n.37 (2006); Katherine J. Friday, 47 ECAB 591, 594 (1996).

11

P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

12

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149, 155-56 (2006); D’Wayne Avila, 57
ECAB 642, 649 (2006).
13

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379, 384 (2006).

14

I.J., 59 ECAB 408, 415 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

7

told him that he used a flight of steps on January 22, 2013 when his kneecap “popped” out. In a
letter dated February 5, 2013, Dr. Lipschultz noted that the injury occurred when appellant
walked down steps and his left knee gave way. In a report dated March 28, 2013, Dr. Beaver
stated that appellant stumbled at work two months prior to his visit. In an operative report dated
April 5, 2013, Dr. Beaver noted that appellant fell on his flexed left lower extremity four or five
weeks before the procedure. In discharge notes dated April 5, 2013, he stated that appellant
sustained a chronic left quadriceps tear in January 2013. While these reports contain affirmative
statements of causation and history of injury from appellant’s physicians, they do not contain a
sufficient explanation of the process through which the January 22, 2013 incident
physiologically caused or aggravated appellant’s claimed left knee condition. Medical
conclusions unsupported by rationale are of little probative value.15 Furthermore, Dr. Beaver’s
March 28, 2013 report and April 5, 2013 operative report contain incorrect dates and
mechanisms of injury. Medical conclusions based on inaccurate or incomplete factual or
medical histories are of limited probative value.16 Thus, these reports are not sufficient to meet
appellant’s burden of proof to establish causal relationship.
Appellant also submitted reports from his physicians containing diagnoses and findings
on examination, but lacking any opinions on causal relationship. Dr. Beaver’s postoperative
progress reports from April 11 through July 22, 2013 are of this variety, as are the reports of
January 22, 2013 from Drs. Hong and Presenza, and the February 4, 2013 report of Dr. Roach.
Medical evidence that does not offer any opinion regarding the cause of an employee’s condition
is of limited probative value on the issue of causal relationship.17 For this reason, these reports
are insufficient to establish appellant’s claim.
Appellant expressed his belief that his left knee condition resulted from the January 22,
2013 employment incident. The Board has held that the fact that a condition manifests itself or
worsens during a period of employment18 or that work activities produce symptoms revelatory of
an underlying condition does not raise an inference of causal relationship between a claimed
condition and employment factors.19 Neither the fact that the condition became apparent during
a period of employment, nor the belief that the condition was caused or aggravated by
employment factors or incidents, is sufficient to establish causal relationship.20 Causal
relationship must be substantiated by rationalized medical opinion evidence, which it is
appellant’s responsibility to submit. Therefore, his belief that his condition was caused by the
work-related incident is not determinative.
The hearing representative advised appellant that it was his responsibility to provide a
physician’s well-reasoned medical opinion on the cause of his condition. Appellant failed to
15

Willa M. Frazier, 55 ECAB 379, 384 (2004).

16

See M.W., 57 ECAB 710 (2006).

17

Michael E. Smith, 50 ECAB 313, 316 n.8 (1999).

18

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

19

B.B., Docket No. 13-256 (issued August 13, 2013); Richard B. Cissel, 32 ECAB 1910, 1917 (1981).

20

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

8

submit appropriate medical documentation in response. As there is no probative, rationalized
medical evidence addressing how his claimed left knee condition was caused or aggravated by
his employment, he has not met his burden of proof to establish that he sustained an injury in the
performance of duty causally related to factors of his federal 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. To establish causation, the evidence of record should
reflect a correct history and offer a medically sound explanation by the physician of how the
traumatic event of January 22, 2013, in particular, physiologically caused or aggravated his left
knee condition.
CONCLUSION
The Board finds that appellant has failed to meet his burden of proof to establish a
traumatic injury in the performance of duty on January 22, 2013.
ORDER
IT IS HEREBY ORDERED THAT the September 25, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 25, 2014
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.E., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Santa Clarita, CA,
Employer
__________________________________________

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Appearances:
Manuel B. Madrid, for the appellant
Office of Solicitor, for the Director

Docket No. 14-1485
Issued: April 7, 2015

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 June 19, 2014 appellant filed a timely application for review from a January 9, 2014
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) finding that she
had abandoned her request for an oral hearing. Because more than 180 days elapsed from
June 14, 2013, the date of the most recent merit decision, to the filing of this appeal, and
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction to review the merits of appellant’s claim.
ISSUE
The issue is whether appellant abandoned her request for an oral hearing before an
OWCP hearing representative.
On appeal, appellant contends that she was unable to attend her hearing due to a family
emergency and medical problems.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 19, 2003 appellant, then a 46-year-old mail processing clerk, filed a traumatic
injury claim alleging that on April 10, 2003 she sustained injuries to her left upper back, left arm,
and neck due to repetitive reaching and bending over the course of 30 to 40 minutes. By
decision dated August 5, 2003, OWCP accepted the claim for cervical strain.
On October 21, 2004 appellant accepted a limited-duty assignment as a modified
distribution clerk. She noted that she accepted the position under duress and that she disagreed
with the change in job title and changes in her hours. The employing establishment continued to
offer appellant modified assignments through December 28, 2007 within appellant’s medical
restrictions, which she continued to sign under protest.
On April 13, 2009 the employing establishment informed appellant that it was unable to
identify any available operationally necessary tasks within her medical restrictions. In a record
of a telephone conversation dated May 8, 2009, an OWCP representative confirmed that
appellant was still off work. On February 26, 2013 appellant accepted a job offer as a customer
care agent, but noted that she also accepted this job offer under duress because her benefits were
being threatened.
By decision dated June 14, 2013, OWCP found that appellant’s wages as a customer care
agent fairly and reasonably represented her wage-earning capacity, and her actual earnings met
or exceeded the current wages of the position held when injured. It terminated her wage-loss
compensation payments and noted that the decision did not affect coverage of her medical
benefits.
On July 9, 2013 appellant requested an oral hearing before the Branch of Hearings and
Review on the issue of her wage-earning capacity.
By letter dated October 25, 2013, OWCP notified appellant that her hearing would be
held on December 9, 2013 at noon, Eastern Time. It provided her with a toll-free number to call
at that time to be connected to the hearing representative and court reporter, along with a pass
code. Appellant responded by letter dated December 4, 2013, noting that Roy Dumas would be
her representative at the hearing on December 9, 2013 at noon, Eastern Time. Neither appellant
nor her representative participated in the scheduled hearing.
By decision dated January 9, 2014, an OWCP hearing representative found that appellant
had abandoned her request for an oral hearing. She noted that appellant received written notice
30 days in advance of the hearing but failed to appear. The hearing representative also found no
evidence that appellant contacted OWCP either prior to or subsequent to the scheduled hearing to
explain her failure to appear.

2

LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides the right to a hearing before an OWCP hearing
representative, stating:
“Before review under section 8128(a) of this title, a claimant for compensation
not satisfied with a decision of the Secretary under subsection (a) of this section is
entitled, on request made within 30 days after the date of the issuance of the
decision, to a hearing on [her] claim before a representative of the Secretary.”2
A claimant who has received a final adverse decision by OWCP may obtain a hearing by
writing the address specified in the decision within 30 days of the date of the decision for which
a hearing is sought.3 Unless otherwise directed in writing by the claimant, OWCP’s hearing
representative will mail a notice of the time and place of the hearing to the claimant and any
representative at least 30 days before the scheduled date.4 OWCP has the burden of proving that
it mailed to appellant and her representative a notice of a scheduled hearing.5
OWCP’s regulations which govern abandonment of hearing provide as follows:
“A claimant who fails to appear at a scheduled hearing may request in writing
within 10 days after the date set for the hearing that another hearing be scheduled.
Where good cause for failure to appear is shown, another hearing will be
scheduled and conducted by teleconference….
“The failure of the claimant to request another hearing within 10 days, or the
failure of the claimant to appear at the second scheduled hearing without good
cause shown, shall constitute abandonment of the request for a hearing.”6
ANALYSIS
Following OWCP’s June 14, 2013 decision concerning appellant’s wage-earning
capacity, appellant requested an oral hearing before an OWCP hearing representative. On
October 25, 2013 OWCP notified appellant that her telephonic hearing was scheduled for
December 9, 2013 at noon, Eastern Time. It provided her with a toll-free number and a pass
code to use at the time of the scheduled hearing. Appellant did not request a postponement,
failed to call in at the scheduled hearing, and failed to provide any notification for such failure to
OWCP within 10 days of the scheduled date of the hearing.
2

Id. at § 8124(b)(1).

3

20 C.F.R. § 10.616(a).

4

Id. at 10.617(b).

5

See Michelle R. Littlejohn, 42 ECAB 463 (1991); see also K.D., Docket No. 11-77 (issued August 18, 2011).

6

20 C.F.R. § 10.622(f); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Review of the
Written Record, Chapter 2.1601.6(g) (October 2011). See also M.F., Docket No. 14-128 (issued March 18, 2014).

3

On appeal, appellant explained that her absence from the hearing was due to family
emergency and medical problems. However, she did not provide such notification to OWCP
within 10 days of the scheduled date of the hearing. All three conditions for abandonment are
met and the Board finds that appellant abandoned her request for an oral hearing.7
CONCLUSION
The Board finds that appellant abandoned her request for an oral hearing before an
OWCP hearing representative on December 9, 2013.
ORDER
IT IS HEREBY ORDERED THAT the January 9, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 7, 2015
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

7

C.H., Docket No. 14-620 (issued June 25, 2014).

4


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
D.L., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, West Palm Beach, FL,
Employer
___________________________________________
Appearances:
Christina Berrios, for the appellant1
Office of Solicitor, for the Director

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Docket No. 20-0512
Issued: November 30, 2020

Case Submitted on the Record

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

JURISDICTION
On January 6, 2020 appellant, through his representative, filed a timely appeal from an
October 2, 2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
As more than 180 days has elapsed from OWCP’s last merit decision, dated June 27, 2018, to the

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.

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.3
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On June 30, 2013 appellant, then a 61-year-old automation clerk, filed a traumatic injury
claim (Form CA-1) alleging that, on June 19, 2013, he noticed a sharp pain in his right knee when
pushing a general postal container (GPC) of mail while in the performance of duty. He stopped
work on June 21, 2013 and returned to work on June 29, 2013.4 Appellant stopped work on
September 5, 2013 and underwent a right knee arthroscopy. OWCP accepted the claim for right
knee medial meniscus tear. Appellant returned to work on November 9, 2013. OWCP paid him
intermittent wage-loss compensation on the supplemental rolls as of August 3, 2013.
On June 2, 2017 appellant filed a claim for a schedule award (Form CA-7).
In a May 29, 2017 report, Dr. Graham F. Whitfield, an orthopedic surgeon, provided a
permanent impairment rating based on a compilation of appellant’s subjective complaints and
examination findings from August 16, September 20, and November 10, 2016, and February 23,
and April 4, 2017. Multiple measurements of range of motion (ROM) findings of the right knee
were recorded and averaged from the different dates of service. Dr. Whitfield opined that appellant
reached maximum medical improvement (MMI) on February 23, 2017. Utilizing the sixth edition
of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides),5 he opined that appellant had 12 percent permanent impairment of the right
lower extremity for Class 1 partial tear of the medial and lateral menisci after the assignment of
grade modifiers and application of the net adjustment formula.
In a report dated July 29, 2017, Dr. Eric M. Orenstein, a Board-certified orthopedic
surgeon serving as a district medical adviser (DMA), noted deficiencies in Dr. Whitfield’s report
and indicated that there was not enough information to perform a permanent impairment rating.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that following the October 2, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.
4
A July 19, 2013 magnetic resonance imaging (MRI) scan of appellant’s right knee revealed tear of posterior horn
medial meniscus, bone bruise in medial femoral condyle, small joint effusion and soft tissue edema anteriorly. The
lateral meniscus, anterior and posterior cruciate ligaments, collateral ligaments, quadriceps and patellar tendons were
intact.
5

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

2

He recommended that appellant be sent to a second opinion examiner to perform an impairment
evaluation and rating.
OWCP forwarded the case record, including Dr. Whitfield’s report and an August 9, 2017
statement of accepted facts (SOAF), to Dr. Jon D. Donshik, a Board-certified orthopedic surgeon,
for a second opinion impairment evaluation. In a September 1, 2017 report, Dr. Donshik related
appellant’s history of injury and medical history. He noted that appellant was involved in a
nonwork-related motor vehicle accident on September 26, 2016 and sustained, in relevant part, a
nondisplaced fracture of the right patella and had been placed in a brace. He also discussed
compared magnetic resonance imaging (MRI) scans of the right knee dated June 22, 2015 and
May 19, 2016. Dr. Donshik reported the findings of his physical examination, noting that
appellant had an antalgic gait, ROM of the right knee was 0 to 120 degrees of knee flexion with
no instability. Appellant had medial and lateral joint line tenderness as well as patellar tenderness
and crepitus. He noted that Dr. Whitfield rated appellant for tears and meniscectomies of the
medial and lateral meniscus; however, the case was accepted only for medial meniscal tear.
Dr. Donshik opined that using the lateral meniscus for rating purposes was incorrect. He
determined that appellant’s date of MMI was August 31, 2017, the date of appellant’s examination.
Dr. Donshik opined that appellant’s final right lower extremity impairment was Class 1, grade C
or two percent impairment of the right lower extremity for partial medial menisectomy under
Table 16-3, page 509 of the A.M.A., Guides.
In an October 28, 2017 report, the DMA opined that appellant reached MMI on
September 1, 2017, the date of Dr. Donshik’s examination. He concurred with Dr. Donshik’s
rating and method of calculation for permanent impairment of appellant’s right lower extremity.
He noted that, although appellant underwent a partial medial and lateral meniscectomy, the lateral
meniscal tear was not an accepted condition and was not included in the calculation. The DMA
also noted that Dr. Donshik correctly utilized the diagnosis-based impairment (DBI) rating
method. Under Table 16-3, page 509 of the A.M.A., Guides, Knee Regional Grid -- Lower
Extremity Impairment, he found a class of diagnosis (CDX) of 1, grade C default impairment
rating for a partial medial meniscal injury was two percent impairment. He indicated that appellant
had a grade modifier for functional history (GMFH) of 1, a grade modifier for physical
examination (GMPE) of 1, and that a grade modifier for clinical studies (GMCS) was not
applicable. Application of the net adjustment formula resulted in a net adjustment of 0, equaling
two percent permanent impairment of the right lower extremity.
By decision dated November 14, 2017, OWCP granted appellant a schedule award for two
percent permanent impairment of the right lower extremity. The period of the award, equivalent
to 5.76 weeks of compensation, ran for the period September 1 through October 11, 2017.
On December 1, 2017 appellant, through his representative, requested a telephonic hearing
before a representative of OWCP’s Branch of Hearings and Review. The hearing was held on
May 16, 2018. Appellant’s representative alleged that appellant had sustained both medial and
lateral meniscus right knee tears due to the accepted employment injury. Evidence received
included an April 25, 2018 statement from appellant regarding the sufficiency of Dr. Donshik’s
examination.

3

In a January 30, 2018 report, Dr. Whitfield acknowledged that appellant’s post-injury MRI
scan did not show lateral meniscal tear, but it was present during the September 5, 2013
arthroscopic procedure. He opined that it was appropriate to include both the lateral meniscal tear
and the medial meniscal tear in the impairment rating as it was within reasonable medical
probability that both tears were sustained at the time of appellant’s June 19, 2013 employment
injury. Dr. Whitfield explained that findings made during an arthroscopic procedure were a more
accurate way to precisely delineate the nature and extent of a patient’s injuries/pathology in the
knee as compared to a preoperative MRI scan.
By decision dated June 27, 2018, OWCP’s hearing representative affirmed the
November 14, 2017 schedule award decision. The hearing representative found that “while
Dr. Whitfield argues that [the impairment rating] was incorrect because a lateral meniscal tear
should be included, this inclusion was not supported by reports from appellant’s initial treating
surgeon, Dr. Reno Amro, a Board-certified orthopedic surgeon.
On June 27, 2019 appellant’s representative requested reconsideration, arguing that the
schedule award should include the lateral meniscal tear as it was present during the September 5,
2013 right knee arthroscopy. She also argued that OWCP’s procedures emphasized that a schedule
award should include permanent impairment resulting from conditions accepted by OWCP as jobrelated as well as any nonindustrial permanent impairment present in the same schedule member
at the time of the rating examination. Appellant’s representative further contended that OWCP
failed to request clarification from Dr. Whitfield regarding his methodology in obtaining the date
of MMI and his reasoning for using different examination dates for an impairment rating and that
it had therefore improperly declined to determine whether a conflict existed between Dr. Whitfield
and OWCP’ s second opinion physician.
By decision dated October 2, 2019, OWCP denied appellant’s request for reconsideration
of the merits of the claim.
LEGAL PRECEDENT
The Board has held that a claimant may request a schedule award or increased schedule
award at any time based on evidence of a new exposure or medical evidence showing progression
of an employment-related condition resulting in permanent impairment or increased impairment.6
When a claimant has requested reconsideration, and has submitted new and relevant evidence with
respect to a permanent impairment or an increased permanent impairment, then he or she will be
entitled to a merit decision on the issue.7 Alternatively, the reconsideration request will be
determined under Section 8128(a) of FECA, which vests OWCP with discretionary authority to

6

R.D., Docket No. 18-0579 (issued September 14, 2018); D.S., Docket No. 17-0407 (issued May 24, 2017).

7

See C.W., Docket No. 18-1110 (issued December 28, 2018); Linda T. Brown, 51 ECAB 115 (1999); Paul R.
Reedy, 45 ECAB 488 (1994); see also B.K., 59 ECAB 228 (2007) (where it was evident that the claimant was seeking
a schedule award based on new and current medical evidence, OWCP should have issued a merit decision on the
schedule award claim rather than adjudicate an application for reconsideration).

4

determine whether to review an award for or against compensation. The Secretary of Labor may
review an award for or against compensation at any time on his own motion or on application.8
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (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.9
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.10 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.11 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.12
ANALYSIS
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).
Initially, the Board finds that OWCP properly considered appellant’s representative’s
correspondence as a request for reconsideration and not as a claim for an increased schedule
award.13 The underlying issue on reconsideration is whether the medical evidence demonstrates a
greater permanent impairment. Thus, the Board must determine whether appellant presented
sufficient evidence or argument regarding the extent of permanent impairment to warrant a merit
review pursuant to 5 U.S.C. § 8128(a).14

8

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
9
20 C.F.R. § 10.606(b)(3); J.K., Docket No. 19-1420 & 19-1422 (issued August 12, 2020); see L.D., id.; see also
L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569 (issued December 9, 2008).
10

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
11
Id. at § 10.608(a); M.S., Docket No. 19-1090 & 20-0408 (issued April 20, 2020); see also M.S., 59 ECAB
231 (2007).
12

Id. at § 10.608(b); J.D., Docket No. 19-1757 (issued April 15, 2020); E.R., Docket No. 09-1655 (issued
March 18, 2010).
13

See K.W., Docket No. 19-0553 (issued November 8, 2019); B.W., Docket No. 18-1415 (issued March 8, 2019).

14

S.W., Docket No. 18-1261 (issued February 22, 2019).

5

The Board finds that appellant’s representative raised a relevant legal argument in her
request for reconsideration, which was not previously considered.
Under Table 16-3 of the A.M.A., Guides, a permanent impairment rating for both partial
and medial meniscectomy would result in greater impairment than that previously awarded for
impairment based solely on a partial medial meniscectomy. Counsel correctly noted that OWCP’s
procedures provide in relevant part that: “Rated impairment should reflect the total loss as
evaluated for the scheduled member (i.e., arm, leg, etc.) at the time of the rating examination.15
There are no provisions for apportionment under FECA. As such, schedule awards include
permanent impairment resulting from conditions accepted by OWCP as job related as well as and
any nonindustrial permanent impairment present in the same scheduled member at the time of the
rating examination.”16 The Board finds that appellant’s request for reconsideration therefore raised
a relevant legal argument not previously considered or addressed by OWCP sufficient to warrant
reopening the claim for further merit review.
Pursuant to 20 C.F.R. § 10.606(b)(3), appellant is entitled to a merit review of the claim.
The case will be remanded to OWCP for an appropriate merit decision.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).

15

See Raymond E. Gwynn, 35 ECAB 247, 253 (1983).

16
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(d) (March 2017).

6

ORDER
IT IS HEREBY ORDERED THAT the October 2, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision.
Issued: November 30, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7