United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Racine, WI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 18-0228
Issued: August 8, 2019

Case Submitted on the Record

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

JURISDICTION
On November 13, 2017 appellant filed a timely appeal from an August 1, 2017 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 merit decision of this case.2
ISSUE
The issue is whether OWCP abused its discretion by denying authorization for left lower
extremity surgery.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the August 1, 2017 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.

FACTUAL HISTORY
On June 9, 2002 appellant, then a 41-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that he developed bone spurs in the joint of his left foot as a result of
prolonged walking while delivering mail. OWCP accepted his claim for capsulitis of the first and
second metatarsal cuneiform joint of the left foot secondary to dorsal exostosis. Appellant did not
stop work.
Appellant was treated by Dr. John L. Bostanche, a podiatrist, on May 29 and
September 24, 2002 for left foot pain. He reported walking on uneven hard surfaces throughout
the day as a mail carrier when his foot became painful. Dr. Bostanche diagnosed resolving
capsulitis of the first and second metatarsal cuneiform joint of the left foot secondary to dorsal
exostosis and inflammation. He noted conservative treatment including orthotics, shoe changes,
and anti-inflammatories provided some improvement. Dr. Bostanche opined that the significant
number of years on the job and required walking accelerated the deterioration of appellant’s foot
structure producing deformities at the joint. He treated appellant from February 7, 2003 to
October 12, 2005 for capsulitis of the first and second metatarsal cuneiform area of left foot.
Dr. Bostanche advised that recent x-rays revealed further degenerative changes in the joint relative
to prior x-rays. He diagnosed dorsal exostosis/capsulitis of the left foot and neuritis, dorsal nerve,
secondary to dorsal exostosis of the left foot. Reports dated April 19, 2011 to October 28, 2014
noted follow up for capsulitis of the left first and second metatarsal joints and dorsal exostosis first
metatarsocuneiform joint. Dr. Bostanche noted appellant’s condition remained stable.
In reports dated January 6 and 20, March 3 and April 28, 2015, Dr. Bostanche treated
appellant for increased left foot pain. He noted that he had long-standing chronic pain in the left
foot due to changes in the mid tarsal joints and a dorsal bone spur. Appellant reported having
problems walking on ice and uneven ground and continued to reaggravate the left foot.
Dr. Bostanche noted conservative treatment including anti-inflammatory medications, cortisone
injections, and long-standing orthotics failed and that appellant’s condition was progressing.
Findings on physical examination revealed pain on palpation of the first metatarsocuneiform
navicular joint on the left, bony enlargements throughout the joint, pain on palpation of the plantar
grade joint, and stiffness on range of motion. Dr. Bostanche noted that appellant had a plantar
grade arch due to worsening joint destruction and he experienced increasing pain in the medial
aspect of the foot, ankle, into the posterior tibial tendon, and sinus tarsi. He noted that x-rays
revealed degenerative changes with plantar grade collapse into the mid arch joints of the first
metatarsocuneiform navicular joints with significant bony changes and arthritis. Dr. Bostanche
diagnosed dorsal exostosis of the first metatarsocuneiform joint on the left, arthrosis of the first
metatarsocuneiform navicular joint left, posterior tibial tendinitis left, capsulitis of the left subtalar
joint, and pain in the limb. He recommended fusing the arthritic joints in the mid foot to stabilize
the left foot and foot structure for long-term pain control. In medical authorization records dated
April 28 and December 14, 2015, Dr. Bostanche requested authorization to perform incision of the
heel bone, revision of foot bones, and revision of calf tendon. On May 1, 2015 he submitted
supporting documentation for the pending authorization and noted surgery was tentatively
scheduled for May 13, 2015. Dr. Bostanche requested that authorization be expedited.
On December 29, 2015 OWCP notified appellant that his request for authorization of the
incision of the heel bone, revision of foot bones, and revision of calf tendon could not be approved.
2

It indicated that the evidence was insufficient to authorize the proposed surgery because the
requested treatment did not appear to be medically necessary for and causally related to the
accepted conditions. OWCP requested that he submit a detailed narrative medical report from his
treating physician, which provided an accurate history of injury, a firm diagnosis resulting from
the injury, findings, description of treatment provided, extent of disability, and if the condition was
caused or aggravated by the claimed injury.
In a January 14, 2016 report, Dr. Bostanche noted treating appellant conservatively after
the May 7, 2002 work injury to his left foot; however, appellant’s condition deteriorated over the
years due to walking and weight-bearing activities at work. He opined that appellant’s symptoms
were in direct causation to the injury of May 7, 2002 and were causing significant changes to other
joints in the left foot. Examination revealed a significantly collapsed arch and swelling and pain
throughout the medial lateral aspect of the left ankle joint and outer aspect of the foot.
Dr. Bostanche noted his foot joints were severely arthritic and collapsed since the time of the injury
causing an overall change in his foot structure and positioning causing changes to the hind foot
joints and ankle. He opined that appellant’s original injury and job duties accelerated his condition
over the years. Dr. Bostanche diagnosed capsulitis of the first and second metatarsocuneiform
joint with a dorsal exostosis on the left foot, severe arthrosis, first and second metatarsocuneiform
joint left foot, subtalar joint capsulitis/arthrosis, left foot secondary to arthrosis of the first and
second metatarsocuneiform joint and ankle joint capsulitis, secondary to arthrosis of the first and
second metatarsocuneiform joint on the left. He opined that conservative therapy was no longer
effective and he recommended surgical intervention to include fusion of the first and second
metatarsocuneiform joint on the left with removal of the bone spur, correction of the subtalar joint
capsulitis on the left to include a bone cut into the heel to correct the position of the joint,
lengthening the Achilles’ tendon in the calf since the foot collapsed and the heel bone raised,
tightening the Achilles’ tendon due to the changes in the foot structure.
OWCP requested that an OWCP medical adviser address whether the requested incision of
the heel bone, revision of foot bones, and revision of calf tendon was warranted and necessitated
by the accepted conditions. In an April 26, 2016 report, the medical adviser noted reviewing the
medical record and statement of accepted facts (SOAF). He noted that Dr. Bostanche
recommended a fusion for the first and second metatarsocuneiform joint on the left, correction of
subtalar joint capsulitis, lengthening the Achilles tendon, and osteotomy of the calcaneus. The
medical adviser indicated that there was insufficient evidence of a temporal relationship between
the employment injury on May 7, 2002 and the requested osteotomy of the calcaneus with fusion
in 2015. He opined that the incision of the heel bone, revision of foot bones, and revision of calf
tendon was not medically necessary. The medical adviser noted an absence of imaging in the
records of capsulitis or severe arthritis to support the requested osteotomy and first and second ray
fusion. He diagnosed metatarsalgia and opined that the diagnosed condition did not warrant
surgical intervention as there was a lack of evidence of severe arthritis or deformity to warrant a
first and second ray fusion. The medical adviser advised that an adequate trial of conservative
treatment was demonstrated.
Appellant continued to treat with Dr. Bostanche on April 21, 2016 for left foot pain
secondary to dorsal exostosis and arch collapse. Dr. Bostanche noted findings and diagnosed
dorsal exostosis left foot, subtalar joint impingement, and pain in the left foot. He opined that
appellant’s left foot was collapsing and he was experiencing impingement laterally.

3

On August 2, 2016 OWCP referred appellant to Dr. Mysore S. Shivaram, a Board-certified
orthopedic surgeon, for a second opinion evaluation to determine if the proposed surgery was
medically necessary and causally related to the accepted medical conditions. In an August 22,
2016 report, Dr. Shivaram discussed appellant’s work history and stated that he had current
complaints of pain along the left dorsal aspect of the foot, burning sensation around the top of the
foot and along the left second toe, and pain along the inner aspect of the ankle. He noted
appellant’s medical history was significant for bunion surgery of the left foot in 2001 and bilateral
flat foot deformity. Dr. Shivaram noted findings on examination of the feet revealed evidence of
bilateral severe pes planus deformity (flatfoot), healed scar on the left foot, good capillary
circulation, intact sensation, limited range of motion of the left big toe, degenerative arthritis of
the tarsometatarsal joint of the left big toe, small bony exostosis at the metatarsocuneiform joint
along the first and second metatarsocuneiform joints, no contracture of the Achilles tendon, and
no pain with range of motion of the ankle. He noted x-rays of the left ankle revealed mild
degenerative changes of the ankle. X-ray of the left foot revealed pes planus deformity and
minimal degenerative changes at the tarsometatarsal joint. Dr. Shivaram diagnosed degenerative
arthritis of the metatarsophalangeal joint of the left big toes, status post bunionectomy of the left
big toes, mild degenerative arthritis of the tarsometatarsal joint of the left first and second
tarsometatarsal joint, and severe pes planovalgus. He noted that appellant had preexisting pes
planovalgus deformity, which resulted in more stress being placed along the inner column of the
foot causing stress along the tarsometatarsal joint and degenerative changes. Dr. Shivaram advised
that in long-standing pes planovalgus deformity the calcaneus may sublux laterally resulting in
degenerative changes in the subtalar joint, deficiency of the tibialis posterior tendon, and
contracture of the Achilles tendon. He opined that the changes in appellant’s foot were not the
result of his occupation, rather, they were caused by long-standing stresses placed on the foot in
the condition of pes planovalgus. Dr. Shivaram advised that appellant’s foot condition and
proposed surgery were not work related, but was secondary to long-standing preexisting severe
flatfoot deformity unrelated to his employment as a letter carrier.
On October 26, 2016 Dr. Bostanche noted that appellant developed degenerative changes
to the first metatarsocuneiform joint on the left foot, which caused a collapse of the arch and
changes to the surrounding joints of the left foot. He noted that these changes were beyond the
normal progression of preexisting condition and opined that appellant’s employment injury
accelerated his condition beyond the normal course. Dr. Bostanche diagnosed degenerative
arthritis of the tarsometatarsal joints, left first and second metatarsals and severe pes planovalgus
deformity of the left foot. He advised that the changes to the left foot were not from a preexisting
condition; rather, he indicated that appellant’s work injury and job duties significantly accelerated
the condition. Dr. Bostanche recommended surgical intervention to correct the degenerative
arthritis changes to the left foot.
OWCP determined that there was a conflict in medical opinion between the treating
podiatrist, Dr. Bostanche, who indicated that the proposed surgery was medically necessary and
causally related to the accepted medical conditions, and OWCP’s second opinion physician,
Dr. Shivaram and OWCP’s medical adviser, who opined that appellant’s foot condition and
proposed surgery was secondary to preexisting severe flatfoot deformity and not related to the
employment injury of May 7, 2002.

4

In a medical authorization record dated April 18, 2017, Dr. Bostanche requested
authorization to perform incision of the heel bone, revision of foot bones, and revision of calf
tendon.
On April 19, 2017 OWCP scheduled an impartial medical examination with
Dr. Bradley M. Fideler, a Board-certified orthopedic surgeon. It provided Dr. Fideler with a
SOAF, which noted appellant’s claim was accepted for capsulitis of the first and second metatarsal
cuneiform joint of the left foot secondary to dorsal exostosis.
In a May 22, 2017 report, Dr. Fideler detailed the history of the injury and appellant’s
treatment. He reviewed the SOAF. Dr. Fideler noted findings on examination of normal heel-totoe gait, significant flatfoot deformity of both feet, loss of normal arch in left foot, pain within the
metatarsal cuneiform joint with an osteophyte, pain laterally due to significant collapse of his arch
and flatfoot deformity, and hind foot valgus impinging laterally. He diagnosed severe pes planus
flatfoot deformity of the left foot with the development of degenerative arthritis of the first and
second metatarsal cuneiform joints and significant hind foot valgus due to the collapsing midfoot.
Dr. Fideler opined that appellant’s condition was preexisting and the development of the
degenerative changes within the midfoot was related to the deformity within his midfoot. He noted
that appellant’s standing and walking for extended distances carrying a mailbag aggravated the
condition, but he found no evidence that his work activity was directly related to the development
of the degenerative condition. Dr. Fideler opined that appellant’s condition, due to significant pes
planus and hind foot valgus, may have developed regardless of his occupation as a postal carrier.
He noted that appellant had no residuals of the accepted capsulitis of the first and second metatarsal
cuneiform joint, left foot secondary to dorsal exostosis. Dr. Fideler opined that the proposed
surgical fusion of the metatarsocuneiform joint, calcaneal osteotomy, and Achilles tendon
lengthening were not related to any specific work activities rather they were related to his
preexisting planovalgus condition. He opined that appellant’s condition was preexisting due to
preexisting pes planovalgus deformity and hind foot valgus and the proposed surgery was not
directly related to the accepted work injury.
On April 20, 2017 Dr. Bostanche noted findings on examination and diagnosed subtalar
joint impingement, degenerative arthritis of the left first and second tarsometatarsal joints, severe
pes planovalgus deformity on the left, left dorsal exostosis first metatarsocuneiform joint, pain in
left limb, and left posterior tibial tendinitis. He noted appellant’s condition was worsening and
recommended surgical intervention.
In a decision dated August 1, 2017, OWCP denied authorization for incision of the heel
bone, revision of foot bones, and revision of calf tendon. It based its decision on the report of
Dr. Fideler, the referee physician, who opined that the proposed surgery was not medically
necessary or causally related to the accepted employment-related conditions. Consequently,
OWCP accorded Dr. Fideler’s report special weight.
LEGAL PRECEDENT
Section 8103(a) of FECA provides for the furnishing of services, appliances, and supplies
prescribed or recommended by a qualified physician which OWCP, under authority delegated by
the Secretary, considers likely to cure, give relief, reduce the degree or the period of disability, or
5

aid in lessening the amount of monthly compensation.3 In interpreting section 8103(a), the Board
has recognized that OWCP has broad discretion in approving services provided under FECA to
ensure that an employee recovers from his or her injury to the fullest extent possible in the shortest
amount of time.4 OWCP has administrative discretion in choosing the means to achieve this goal
and the only limitation on OWCP’s authority is that of reasonableness.5
While OWCP is obligated to pay for treatment of employment-related conditions, appellant
has the burden of establishing that the expenditure is incurred for treatment of the effects of an
employment-related injury or condition.6 Proof of causal relationship in a case such as this must
include supporting rationalized medical evidence.7 Therefore, in order to prove that the procedure
is warranted, appellant must establish that the procedure was for a condition causally related to the
employment injury and that the procedure was medically warranted. Both of these criteria must
be met in order for OWCP to authorize payment.8
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.9
ANALYSIS
The Board finds that OWCP did not abuse its discretion in denying authorization for left
lower extremity surgery.
OWCP properly declared a conflict in medical opinion between appellant’s physician,
Dr. Bostanche, who recommended surgery, and the DMA and second opinion examiner,
Dr. Shivaram, who opined that appellant’s foot condition and proposed surgery was secondary to
preexisting severe flatfoot deformity and not related to the work injury of May 7, 2002.
Consequently, it referred appellant to Dr. Fideler to resolve the conflict, pursuant to 5 U.S.C.
§ 8123(a). The Board finds that the opinion of Dr. Fideler is sufficiently well rationalized and
based upon a proper factual background such that it is entitled to special weight to establish

3

5 U.S.C. § 8103(a).

4

G.M., Docket No. 18-1710 (issued June 3, 2019); Dale E. Jones, 48 ECAB 648, 649 (1997).

5

G.M., id.; Daniel J. Perea, 42 ECAB 214, 221 (1990) (abuse of discretion by OWCP is generally shown through
proof of manifest error, clearly unreasonable exercise of judgment, or administrative actions, which are contrary to
both logic, and probable deductions from established facts).
6

G.M., supra note 4; Debra S. King, 44 ECAB 203, 209 (1992).

7

Id.; see also Bertha L. Arnold, 38 ECAB 282 (1986).

8

See Cathy B. Millin, 51 ECAB 331, 333 (2000).

9

5 U.S.C. § 8123(a); see Guiseppe Aversa, 55 ECAB 164 (2003).

6

that the proposed surgery was not medically necessary and causally related to the accepted
employment-related conditions.10
In a May 22, 2017 report, Dr. Fideler reviewed appellant’s history and noted findings on
examination. He diagnosed severe pes planus flatfoot deformity of the left foot with the
development of degenerative arthritis of the first and second metatarsal cuneiform joints and
significant hind foot valgus due to the collapsing midfoot. Dr. Fideler opined that appellant’s
condition was preexisting and the development of the degenerative changes within the midfoot
was related to the deformity within his midfoot. He noted that prolonged standing and walking
carrying a mailbag aggravated appellant’s condition, but he found no evidence that his work
activity was directly related to the development of the degenerative condition. Dr. Fideler believed
that appellant’s condition may have developed regardless of his occupation as a postal carrier due
to significant pes planus and hind foot valgus. He further advised that the aggravation of
appellant’s condition was not beyond normal progression. Dr. Fideler noted that appellant had no
residuals of the accepted capsulitis of the first and second metatarsal cuneiform joint of the left
foot secondary to dorsal exostosis. He opined that the proposed surgical procedure fusion of the
metatarsocuneiform joint, calcaneal osteotomy and Achilles tendon lengthening was not related to
any specific work activities; rather, they were related to his preexisting planovalgus condition.
Dr. Fideler opined that appellant’s condition was preexisting and due to preexisting pes
planovalgus deformity and hind foot valgus. He further opined that the proposed surgery was to
treat the degenerative condition and flatfoot deformity and was not directly related to the accepted
employment injury.
The Board finds that Dr. Fideler had full knowledge of the relevant facts and evaluated
the course of appellant’s condition. Dr. Fideler is a specialist in the appropriate field. He indicated
that the proposed surgery was not related to any specific work activities; rather, it was related to
his preexisting planovalgus condition and hind foot valgus. The Board finds that Dr . Fideler’s
opinion constitutes the special weight of the medical evidence and establishes that the proposed
surgery was not medically necessary and causally related to the accepted employment-related
conditions.
Subsequent to Dr. Fideler’s report, appellant submitted an April 20, 2017 report from
Dr. Bostanche who noted positive findings on examination and diagnosed subtalar joint
impingement, degenerative arthritis of the left first and second tarsometatarsal joints, severe pes
planovalgus deformity, left dorsal exostosis first metatarsocuneiform joint, pain in left limb, and
left posterior tibial tendinitis. Dr. Bostanche noted appellant’s condition was progressively
worsening and he recommended surgical intervention. However, his report failed to provide a
rationalized opinion regarding the causal relationship of the proposed surgery to the employment
injury and also address why it was medically warranted.11 Dr. Bostanche did not provide the
necessary medical explanation as to how the proposed surgery would cure, reduce the period of
10
See 5 U.S.C. § 8123(a); Solomon Polen, 51 ECAB 341 (2000) (where there exists a conflict of medical opinion
and the case is referred to an impartial specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based upon a proper factual background, is entitled to special weight).
11
Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).

7

disability, or aid in lessening the amount of monthly compensation.12 The Board notes that
Dr. Bostanche had been on one side of the conflict resolved by Dr. Fideler and his report is
similar to his prior reports and are therefore insufficient to overcome the special weight of
Dr. Fideler’s report or to create a new medical conflict.13 The Board notes that Dr. Bostanche’s
reports do not contain new findings or rationale upon which a new conflict might be based.
As noted, the only limitation on OWCP’s authority in approving or disapproving service
under FECA is one of reasonableness.14 Because appellant did not submit a reasoned medical
opinion explaining how the May 7, 2002 work injury caused or contributed to his need for the
requested surgery, OWCP properly acted within its discretionary authority to deny authorization
for the requested equipment. Therefore, the Board finds that OWCP did not abuse its discretion
under section 8103 in denying approval of the proposed surgery.
On appeal appellant argues that he needed the proposed surgery to aid in his recovery from
the accepted medical conditions. As discussed, appellant did not show that the surgery was
medically necessary or reasonable to treat his ongoing employment-related problems with his left
foot. The medical evidence of record is insufficient to establish causal relationship and OWCP
did not abuse its discretion in denying authorization for the proposed surgery.
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 OWCP did not abuse its discretion by denying authorization for left
lower extremity surgery.

12

See E.J., Docket No. 10-0743 (issued November 2, 2010).

13

See Michael Hughes, 52 ECAB 387 (2001); Howard Y. Miyashiro, 43 ECAB 1101, 1115 (1992); Dorothy
Sidwell, 41 ECAB 857 (1990).
14

Supra note 5.

8

ORDER
IT IS HEREBY ORDERED THAT the August 1, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 8, 2019
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

9


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

)
)
)
)
)
)
)
)

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

Docket No. 14-1930
Issued: January 14, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 3, 2014 appellant filed a timely appeal from the July 29, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish more than an eight
percent permanent impairment of her left arm, for which she received schedule awards.
FACTUAL HISTORY
In May 2011 OWCP accepted that appellant, then a 53-year-old mail clerk, sustained left
cubital tunnel syndrome and left de Quervains’s tenosynovitis due to performing her repetitive
work duties. It later expanded the accepted conditions to include left radial styloid tenosynovitis,
1

5 U.S.C. §§ 8101-8193.

left ulnar nerve lesion, left-sided rheumatism, nontraumatic compartment syndrome of the left
arm, and rupture of extensor tendons of the left hand and wrist. On September 2, 2011 appellant
underwent OWCP-authorized left ulnar nerve transposition surgery.
OWCP had previously accepted, under a separate claim file, that appellant sustained
injuries due to a lifting incident on September 24, 2001 including neck, shoulder, and upper arm
sprains, displacement of cervical intervertebral disc and cervical spondylosis without
myelopathy, and brachial neuritis/radiculitis. In connection with these injuries, it granted her a
schedule award on March 14, 2006 for a five percent permanent impairment in each arm.
In a December 20, 2011 report, Dr. Howard Freedberg, an attending Board-certified
orthopedic surgeon, indicated that appellant had reached maximum medical improvement with
respect to her left arm condition. Appellant reported that her left elbow was fine, that the range
of motion for her left arm was good, and that she had no pain or issues with her left arm.
Dr. Freedberg reported his physical examination findings, noting full and painless range of
motion in her left arm at the shoulder, elbow, and wrist. He noted that appellant had 5/5 grip
strength in her left hand.
On March 22, 2012 appellant filed a claim for an additional schedule award due to her
accepted work injuries.
In a September 17, 2012 decision, OWCP denied appellant’s claim as she had not
submitted medical evidence establishing additional impairment.
In an October 22, 2012 report, Dr. Neil Allen, an attending Board-certified internist and
neurologist, described appellant’s work-related conditions and history of medical treatment. He
reported appellant’s current symptoms and his physical examination findings. Dr. Allen applied
a range of motion rating method for appellant’s left arm by applying Table 15-30 (thumb
motion), Table 15-31 (digit motion), Table 15-32 (wrist motion), and Table 15-33 (elbow
motion) of the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (6th ed. 2009). He indicated that, under Table 15-2 through Table 15-5
pertaining to the upper extremities, certain diagnosis-based conditions contain an asterisk (*)
which indicate that the range of motion method may be used as an alternative stand-alone rating
method. Dr. Allen concluded that appellant had 46 percent permanent impairment of her left
arm based on the range of motion rating method.
On February 4, 2013 an OWCP hearing representative set aside OWCP’s September 17,
2012 decision and remanded the case for further development and a new decision after proper
consideration of the October 22, 2012 impairment evaluation by Dr. Allen.
On remand, OWCP further developed the evidence of record. In a June 3, 2013 report,
Dr. David Garelick, a Board-certified orthopedic surgeon serving as an OWCP medical adviser,
discussed Dr. Freedberg’s physical examination findings and Dr. Allen’s impairment rating. He
posited that Dr. Allen’s evaluation was improperly based on the range of motion rating method.
Dr. Garelick concluded that, under the sixth edition of the A.M.A., Guides, appellant had three

2

percent left arm impairment rating based on a diagnosis-based rating method for cubital tunnel
syndrome. He stated:
“According to Dr. Freedberg’s note dated December 20, 2011, [appellant] has
done well following her left elbow and wrist surgery. In fact, as of that date, she
denied numbness, tingling, or pain and had “no issues” in the elbow. However,
she did have some residual numbness in the ulnar innervated digits. Physical
examination demonstrated full LUE [left upper extremity] ROM [range of
motion]. The elbow flexion test no longer reproduced her symptoms. Sensation
was intact to light touch. There was no mention of any residual symptoms related
to the left wrist.
“According to [T]able 15-23, p. 449 of the A.M.A., Guides, a [g]rade 1 modifier
is awarded for the test findings which demonstrated a mild ulnar neuropathy at the
level of the elbow. The mild intermittent symptoms and the normal physical
examination would also qualify for a [g]rade 1 modifier. Given these average a
[g]rade 1 modifier, 2 percent LUE PPI [permanent partial impairment] is awarded
for the residual cubital tunnel syndrome. As it relates to the radial styloid
tenosynovitis, 1 percent LUE PPI is awarded for a history of painful injury
without consistent objective symptoms as noted in Table 15-3, p. 395 of the
A.M.A., Guides. Use of the combined values table on p. 604 of the A.M.A.,
Guides, 3 percent LUE PPI is awarded. The date of MMI [maximum medical
improvement] occurred on December 20, 2011 per Dr. Freedberg’s
recommendation.”
On August 25, 2013 Dr. Christopher Gross, a Board-certified orthopedic surgeon serving
as an OWCP medical adviser, concurred with Dr. Garelick’s impairment rating and explained
that Dr. Garelick’s three percent impairment rating was in addition to the five percent left arm
impairment previously awarded. He stated that Dr. Garelick’s impairment rating “is additional
to the five percent already assigned since that impairment rating accounted for cervical
pathology and not pathology at the wrist and elbow.”
By decision dated December 13, 2013, OWCP granted appellant a schedule award for
eight percent permanent impairment of her left arm less the five percent impairment previously
awarded. The award ran for 9.36 weeks from December 20, 2011 to February 23, 2012.
Appellant requested a telephonic hearing with an OWCP hearing representative. During
the June 10, 2014 hearing, counsel argued that appellant’s schedule award should have been
based on the range of motion rating method.
In a July 29, 2014 decision, OWCP hearing representative affirmed OWCP’s
December 13, 2013 decision. She found that Dr. Garelick’s report properly evaluated appellant’s
left arm impairment under the sixth edition of the A.M.A., Guides.

3

LEGAL PRECEDENT
The schedule award provision of FECA2 and its implementing regulations3 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.4 The effective date of the sixth edition of
the A.M.A., Guides is May 1, 2009.5
Peripheral nerve impairment is evaluated under the scheme found in Table 15-23
(Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.6 In Table
15-23, grade modifier levels (ranging from 0 to 4) are described for the categories test findings,
history, and physical findings. The grade modifier levels are averaged to arrive at the
appropriate overall grade modifier level and to identify a default rating value. The default rating
value may be modified up or down by one percent based on functional scale, an assessment of
impact on daily living activities.7
While Section 15.2 of the sixth edition of the A.M.A., Guides provides that “[d]iagnosisbased impairment is the primary method of evaluation for the upper limb,” Table 15-2 through
Table 15-5 also provide that, if motion loss is present for a claimant who has certain upper
extremity conditions, impairment may alternatively be assessed using section 15.7 (range of
motion impairment). Such a range of motion impairment stands alone and is not combined with
a diagnosis-based impairment.8
Section 15.7 of the sixth edition of the A.M.A., Guides provides:
“Range of motion should be measured after a “warm up,” in which the individual
moves the joint through its maximum range of motion at least [three] times. The
range of motion examination is then performed by recording the active
measurements from [three] separate range of motion efforts. Measurements
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404 (1999).

4

Id.

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Disability, Chapter 2.808.5(a)
(February 2013).
6

See A.M.A., Guides 449, Table 15-23.

7

A survey completed by a given claimant, known by the name QuickDASH, may be used to determine the
functional scale score. Id. at 448-49.
8

Id. at 387, 391-405, 475-78.

4

should be rounded up or down to the nearest number ending in 0…. All
measurements should fall within 10 [degrees] of the mean of these three
measurements. The maximum observed measurement is used to determine the
range of motion impairment.”9
ANALYSIS
OWCP granted appellant schedule awards for eight percent permanent impairment of her
left arm. A portion of the award was based on the June 3, 2013 report of Dr. Garelick, a Boardcertified orthopedic surgeon serving as an OWCP medical adviser. In this report, he found that
appellant had three percent permanent impairment of her left arm based on entrapment
neuropathy caused by cubital tunnel syndrome and radial styloid tenosynovitis.10 Dr. Gross, a
Board-certified orthopedic surgeon serving as an OWCP medical adviser, indicated that
appellant had previously been granted a five percent rating for left arm impairment which was
based on peripheral nerve impairment stemming from her neck and noted that combining this
five percent impairment with the three percent impairment based on appellant’s entrapment
neuropathy, as calculated by Dr. Garelick, meant that appellant had a total left arm impairment of
eight percent.
In his June 3, 2013 report, Dr. Garelick discussed his review of the medical records and
provided an opinion that appellant had three percent impairment for cubital tunnel syndrome and
radial styloid tenosynovitis under the standards of the sixth edition of the A.M.A., Guides.11 He
properly applied these standards to reach his conclusion about appellant’s permanent left arm
impairment.
Dr. Garelick properly made reference to Table 15-23 (Entrapment/Compression
Neuropathy Impairment) on page 449 of the sixth edition of the A.M.A., Guides.12 He correctly
chose grade modifiers from the table for the various categories, including test findings, history,
physical findings and functional scale, based on Dr. Freedberg’s findings. Dr. Garelick
concluded that appellant had three percent impairment, comprised of two percent impairment
due to cubital tunnel syndrome combined with one percent impairment due to radial styloid
tenosynovitis.13 This three percent impairment rating was properly added to the previously
awarded five percent impairment rating to equal a total left arm impairment of eight percent.
The Board notes that there is no medical evidence of record showing that appellant has
more than eight percent permanent impairment of her left arm, for which she already received
9

Id. at 464.

10

Dr. Garelick derived his impairment rating after reviewing the medical evidence of record, including the
December 20, 2011 examination findings of Dr. Freedberg, an attending Board-certified orthopedic surgeon.
11

OWCP’s decision regarding impairment was not issued until after May 1, 2009 and therefore evaluation of
appellant’s impairment under the sixth edition of the A.M.A., Guides was appropriate. See supra note 5.
12

A.M.A., Guides 449, Table 15-23 (6th ed. 2009).

13

Id.

5

schedule awards. In an October 22, 2012 report, Dr. Allen, attending Board-certified internist
and neurologist, determined that appellant had 46 percent permanent impairment of her left arm.
However, this impairment rating was not carried out in accordance with the standards of the sixth
edition of the A.M.A., Guides. Although the sixth edition of the A.M.A., Guides specifies that the
range of motion rating method may be used as an alternative to rating some diagnosis-based
conditions of the upper extremities, Dr. Allen did not specify for which diagnosis-based condition
he was using the range of motion method as an alternative nor provide a rationalized basis for
departing from the preferred diagnosis-based impairment method of evaluation.14 In addition,
Dr. Allen did not indicate that his range of motion measurements were obtained after a warm up,
provide active measurements from three separate range of motion efforts, or provide passive range
of motion measurements as required when evaluating motion under the sixth edition of the
A.M.A., Guides.15
For these reasons, OWCP properly declined to award appellant additional schedule award
compensation. Appellant may request a schedule award or increased schedule award based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish more than an
eight percent permanent impairment of her left arm, for which she received schedule awards.

14

In Table 15-2 through Table 15-5 pertaining to the upper extremities, certain diagnosis-based conditions
contain an asterisk (*) which indicate that the range of motion method may be used as an alternative stand-alone
rating method. See A.M.A., Guides 391-405, Table 15-2 through Table 15-5.
15

See supra note 9.

6

ORDER
IT IS HEREBY ORDERED THAT the July 29, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 14, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.H., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
ALCOHOL, TOBACCO, FIREARMS &
EXPLOSIVES, Washington, DC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 15-592
Issued: May 26, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 22, 2015 appellant filed a timely appeal from a December 19, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish an injury in the
performance of duty on July 25, 2013, as alleged.
On appeal, appellant contends that she was injured at work and is unaware of what
further information is needed to support her claim.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 31, 2013 appellant, then a 36-year-old criminal investigator, filed a traumatic
injury claim alleging that on July 25, 2013, while getting tactical tools and a medical kit together
to take to her car, she moved the wheelbarrow to a vertical position and felt a sharp pain and
pinch in her lower back and right leg. She listed the nature of her injury as a sharp pain and
pinch in the middle lower back area that shot down the back and outer area of the right thigh and
leg. Appellant also noted strained/sprained lower back muscles and feeling a sensation of
pinched nerve in spine.
In an August 5, 2013 report, Dr. Behnam Myers, an osteopath, noted that appellant
complained of lower back pain with right leg pain, which started after lifting a wheelbarrow at
work on July 25, 2013. He assessed appellant with arthralgia of the lumbar spine. An x-ray of
appellant’s lumbar spine taken on August 5, 2013 was interpreted by Dr. Myers as evincing no
plain radiographic evidence of fractures, dislocations, or retrolisthesis. In an August 19, 2013
report, Dr. Myers noted that she was no longer in pain. He again listed the assessment as
arthralgia of lumbar spine, and recommended that appellant continue physical therapy and antiinflammatories as needed. Dr. Myers completed a Form CA-16 wherein he diagnosed arthralgia
and checked the “yes” box when asked whether this condition was caused or aggravated by her
employment.2 He noted that he first treated appellant on August 5, 2013 and that he discharged
her on August 19, 2013. Dr. Myers indicated that she was able to resume work. As ordered by
Dr. Myers, appellant received physical therapy treatment in August 2013 and the physical
therapy notes are part of the record.
In a March 13, 2014 letter, OWCP informed appellant that benefits had initially been paid
as the employing establishment had not controverted the claim and payment of a limited amount
of medical bills had been authorized. As bills had exceeded $1,500.00, OWCP advised that the
claim was being reopened for consideration and that the current documentation was insufficient
to support her claim. Appellant was provided guidance as to the necessary evidence needed to
establish her claim.
In response, on March 20, 2014 appellant provided further details with regard to the work
incident of July 25, 2013. She noted that, following this incident, she iced her back and
performed her work duties for the remainder of the day, but was practically immobile later that
night and was in extreme pain. Appellant noted that she saw her physician on July 26, 2013, the
day following the injury. She stated that, by the time she saw Dr. Myers on August 5, 2013, all
the initial intensive and sharp pain symptoms were gone.

2

The Board has held that where an employing establishment properly executes a Form CA-16, which authorizes
medical treatment as a result of an employee’s claim for an employment-related injury, it creates a contractual
obligation, which does not involve the employee directly, to pay the cost of the examination or treatment regardless
of the action taken on the claim. See D.M., Docket No. 13-535 (issued June 6, 2013). See also 20 C.F.R. §§ 10.300,
10.304. Although OWCP denied appellant’s claim for an injury, it did not address whether he is entitled to
reimbursement of medical expenses pursuant to the Form CA-16. Upon return of the case record, OWCP should
further address this issue.

2

By decision dated April 18, 2014, OWCP denied appellant’s claim as she had not
established a medical diagnosis nor had she established a causal relationship between her
accepted employment incident and a medical condition.
In a form signed May 14, 2014, appellant requested an oral hearing before and review of
the written record by an OWCP hearing representative. She later changed this request to a
request for review of the written record.
Appellant submitted comments by Dr. Myers indicating that, along with lumbar
arthralgia, she also has lumbar disc disorder without myelopathy. In an amended August 19,
2013 report, Dr. Myers assessed appellant with arthralgia of lumbar spine, foraminal
encroachment (compression) of lumbar nerve root, lumbar disc disorder without myelopathy,
and sprains and strains of the lumbar region. He opined that, within a reasonable degree of
medical certainty, the reported symptoms of back and leg pain were causally related to the
employment-related accident. Dr. Myers noted that appellant was now orthopedically stable and
able to return to work.
By decision dated December 19, 2014, the hearing representative modified the April 18,
2014 decision to reflect that appellant had established a medical condition, but affirmed the
decision as she failed to establish a causal relationship between the accepted work incident and
the accepted medical diagnoses.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as
alleged and that any disability and/or specific condition for which compensation is claimed are
causally related to the employment injury. These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.3
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components, which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident or exposure, which is alleged to have occurred.4
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.5 The medical evidence required to
3

Jussara L. Arcanjo, 55 ECAB 281, 283 (2004).

4

See Elaine Pendleton, 40 ECAB 1143 (1989); Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of
Injury, Chapter 2.0803.2(a) (August 2012).
5

John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

3

establish causal relationship is usually rationalized medical evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on the
issue of whether there is a causal relationship between the claimant’s diagnosed condition and
the implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.6
ANALYSIS
Appellant has established that on July 25, 2013 she moved a wheelbarrow in the course
of her federal duties as a criminal investigator. She also established medical conditions,
including foraminal encroachment of the lumbar nerve root, lumbar disc disorder without
myelopathy, and sprains and strains of her lumbar region. However, OWCP denied her claim for
failure to establish a causal relationship between the diagnosed medical conditions and the
accepted employment incident.
In support of her claim, appellant submitted reports by Dr. Myers wherein he opined that
her symptoms of back and leg pain were causally related to her employment-related accident.
However, the Board has consistently held that pain is a description of a symptom rather than a
compensable medical diagnosis.7
The Board also finds that physical therapist notes have no probative value as a physical
therapist is not a physician as defined by FECA.8
Causal relationship must be established by rationalized medical opinion evidence from a
physician.9 In order to receive compensation, appellant must submit medical evidence that the
diagnosed conditions were caused or aggravated by the accepted July 25, 2013 employment
incident. Dr. Myers only indicated that the symptoms of back and leg pain were causally related
to the employment incident. As appellant has failed to establish a causal relationship between
the accepted employment incident and the accepted medical diagnoses, OWCP properly denied
her claim for a traumatic 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.
6

Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994).

7

See D.H., Docket No. 14-1852 (issued January 27, 2015).

8

The term physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors,
and osteopathic practitioners within the scope of their practice as defined by State law. 5 U.S.C. § 8102(2); J.G.,
Docket No. 15-251 (issued April 13, 2015); A.C., Docket No. 08-1453 (issued November 18, 2008) (records from a
physical therapist do not constitute competent medical opinion in support of causal relation, as physical therapists
are not physicians as defined under FECA).
9

C.K., Docket No. 14-1235 (issued September 11, 2014).

4

CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that she
sustained an injury in the performance of duty on July 25, 2013.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 19, 2014 is affirmed.
Issued: May 26, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, Rouses Point, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 13-2177
Issued: April 2, 2014

Case Submitted on the Record

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

JURISDICTION
On September 30, 2013 appellant, through his attorney, filed a timely appeal from a
June 20, 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 in the performance of duty on February 14, 2012.
FACTUAL HISTORY
On December 3, 2012 appellant, then a 49-year-old special agent/criminal investigator,
filed a traumatic injury claim (Form CA-1) alleging that, on February 14, 2012, he sustained an
1

5 U.S.C. § 8101 et seq.

injury to the right shoulder while exercising at 8:00 a.m. He notified his supervisor on
December 3, 2012, who checked a box indicating that the injury had occurred in the performance
of duty. The supervisor indicated that appellant’s regular work hours were from 8:30 a.m. to
5:00 p.m.
In a surgical report dated March 16, 2012, Dr. Luke S. Oh, a Board-certified orthopedic
surgeon, diagnosed a right shoulder chronic subcapularis tear with medial retraction and fatty
infiltration, a full-thickness supraspinatus tear with retraction and tear of the anterior one-third of
the infraspinatus, bicep tendinopathy with medial subluxation and impingement syndrome. He
described the repair of appellant’s conditions. Dr. Oh stated that appellant slipped and fell onto
his right shoulder in March 2010, which resulted in a partial rotator cuff tear and that appellant
underwent nonoperative treatments. He noted that in September 2011, appellant injured his right
shoulder in an altercation, which resulted in a full-thickness supraspinatus tear as well as a new
acute subscapularis tear. Appellant did not see an orthopedic surgeon and performed exercises
on his own for the conditions. Dr. Oh stated that in January 2012 appellant was weight lifting
and performing dips at his home gym when he began to feel worsening pain as well as weakness.
On visiting his office, appellant was noted to have significant pain, weakness and limited range
of motion. Dr. Oh noted insufficiency of the supraspinatus and subscapularis.
In a report dated September 12, 2012, Dr. Oh observed that appellant’s right shoulder
was progressing well six months after surgery. He advised appellant to continue with physical
therapy and exercise, but not to engage in lifting away from his body or push-ups.
Appellant submitted a voluntary physical fitness program (PFP) waiver of liability form
from his employer dated September 1, 2011. The form read, in relevant part, “I understand that
my participation in this program is strictly voluntary and I freely choose to participate.” It also
read, “This is a complete and irrevocable release and waiver of liability. This waiver will not
affect any rights an employee may have under the Federal Employees’ Compensation Act, 5
U.S.C. §§ 8101 et seq.” This form was partly illegible and was not signed by appellant’s
supervisor.
By letter dated December 21, 2012, OWCP informed appellant that the evidence of
record was insufficient to support his claim. It afforded him 30 days to submit additional
evidence and respond to its inquiries.
By letter of the same date, OWCP requested that the employing establishment respond to
its inquiries as to appellant’s duties. It asked whether appellant was required to participate in a
PFP at home prior to his regular starting time, whether the agency derived any benefit from his
participation in the activity, whether his participation violated any rules or regulations, whether
the agency provided leadership, equipment, or facilities and requested a copy of the Physical
Fitness Plan. The employing establishment did not reply.
Appellant responded by letter on January 8, 2013. He stated that his claimed injury
occurred on February 14, 2012 while performing exercises during an approved PFP, noting
intense pain in his right shoulder while he was performing dips. Appellant experienced sharp
pain in his right shoulder and treated the area with ice. He informed his supervisor and agency
about the injury on the following day. Appellant explained that he had not filed a claim for

2

traumatic injury until November 2012 because his supervisor did not instruct him to do so, and
that he only became informed that he could file a claim in November. He delayed seeking
medical treatment for two weeks, noting that his condition might resolve on its own and he
contacted a physician when the pain became too intense. Appellant asserted that he did not
sustain any other injury between February 14, 2012 and the dates of notice to his supervisor or a
physician. He was unable to sleep or move his arm in a normal rotation, and attempted massage
treatments, rest, ice and over-the-counter pain medication on a daily basis to treat his right
shoulder. Appellant had previously injured his right shoulder, but had been able to perform
normal fitness activities without issue. As to his regular start time of 8:30 a.m. and the fact that
he had claimed his injury occurred at 8:00 a.m., appellant stated that his regular workout period
was from 7:30 a.m. to 9:00 a.m., and that he had begun working out at 8:00 a.m. on
February 14, 2012. Appellant was not required to participate in the PFP, but that he had been
performing the same routine since October 2000 and had written approval from the employing
establishment. In response to a query requesting copies of appellant’s Physical Fitness Plan
agreement and a medical examination providing him clearance to participate in such activity,
appellant stated that he was a certified fitness instructor and that there was no medical
examination that provided clearance. He stated that his employer derived the benefit of a high
level of employee fitness in order to aid in arrests and any other activities requiring strength,
cardiovascular health and stamina from his exercise. Appellant noted that he did not know how
other employees conducted their PFPs, if at all, and that he did not violate any rules or
regulations of the employing establishment by exercising at home prior to his regular starting
time. He stated that the employing establishment had not provided leadership, equipment, or
facilities to him for the activity.
By decision dated January 24, 2013, OWCP denied appellant’s claim. It found that he
had not established that the alleged traumatic event had occurred as described. OWCP further
found that appellant had not established a medical diagnosis in connection with the incident or
that he was in the performance of duty at the time of the traumatic event.
In a letter dated February 1, 2013, Dr. Oh stated that he had seen appellant on March 15,
2012 for an injury that had occurred in January of that year. He noted that appellant had been
weightlifting and performed several sets of dips, and that the next morning appellant awoke with
right shoulder pain and restricted movement. Dr. Oh stated that appellant underwent right
shoulder surgery on March 16, 2012.
On February 14, 2013 appellant, through his attorney, requested a telephonic hearing
before an OWCP hearing representative.
The hearing was held on May 13, 2013. Appellant testified that his position as a special
agent/criminal investigator required that he remain in a certain physical condition, and that the
employing establishment allowed three hours per week of on-duty time to exercise. On the date
of injury, he was exercising during his paid time on duty. Appellant noted that he was exercising
between 8:00 a.m. and 9:00 a.m. on that day, and estimated that the time of injury was closer to
9:00 a.m. than to 8:00 a.m. He stated that the employing establishment did not require him to
participate in the PFP, but that his physical condition directly related to his duties and that he was
being paid for the time spent exercising.

3

In a letter dated May 14, 2013, Dr. Oh reiterated the statements made in his letter of
February 1, 2013. He also stated that appellant’s right shoulder surgery of March 16, 2012 was
directly caused by the incident of February 14, 2012.
By decision dated June 20, 2013, OWCP’s hearing representative affirmed the decision
of January 24, 2013. She found that although appellant testified that he was injured during his
work shift, the CA-1 claim form listed a time of injury of 8:00 a.m.; that he was not injured on
the employer’s premises, but in his own home; and that the PFP was voluntary, not required by
the employing establishment. The hearing representative found that due to these factors, he was
not injured within the performance of duty. She also noted that the medical evidence did not
sufficiently explain the causal relationship between the traumatic incident and appellant’s injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury3 was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.4
FECA provides for the payment of compensation for the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.5 The phrase
sustained while in the performance of duty has been interpreted by the Board to be the equivalent
of the commonly found prerequisite in workers compensation law of arising out of and in the
course of employment.6 The phrase in the course of employment is recognized as relating to the
work situation, and more particularly, relating to elements of time, place and circumstance. To
arise in the course of employment, an injury must occur at a time when the employee may
reasonably be said to be engaged in the employer’s business, at a place where he may reasonably
be expected to be in connection with the employment and while he was reasonably fulfilling the
duties of his employment or engaged in doing something incidental thereto.7

2

5 U.S.C. §§ 8101-8193.

3

OWCP’s regulations define a traumatic injury as a condition of the body caused by a specific event or incident,
or series of events of incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
4

T.H., 59 ECAB 388, 393 (2008); see Steven S. Saleh, 55 ECAB 169, 171-72 (2003); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
5

5 U.S.C. § 8102(a).

6

Charles Crawford, 40 ECAB 474, 476-77 (1989).

7

Mary Keszler, 38 ECAB 735, 739 (1987).

4

With regard to recreational or social activities, the Board has held that such activities
arise in the course of employment when: (1) they occur on the premises during a lunch or
recreational period as a regular incident of the employment; or (2) the employing establishment,
by expressly or impliedly requiring participation, or by making the activity part of the service of
the employee, brings the activity within the orbit of employment; or (3) the employing
establishment derives substantial direct benefit from the activity beyond the intangible value of
improvement in employee health and morale that is common to all kinds of recreation and social
life.8
OWCP’s procedures address employing establishment PFPs and provide that employees
enrolled in a PFP are in the performance of duty for FECA purposes while doing authorized PFP
exercise, including off-duty exercises. Under Part 2.804.18(c), Forms CA-1 that attribute an
injury to PFP activity must be accompanied by a statement from the employee’s supervisor
indicating that the employee was enrolled in the PFP and that the injury was sustained while the
employee was performing authorized exercises under the PFP.9
ANALYSIS
Appellant alleged that on February 14, 2012 he sustained a work-related right shoulder
injury while exercising by performing dips at his home during paid, on-duty time. OWCP’s
hearing representative denied his claim on the grounds that his injury was not sustained in the
performance of duty. The Board finds that he has not established that he sustained an injury in
the performance of duty on February 14, 2012.
Applying the time, place and work activity criteria to this case, there is no evidence to
establish that appellant was in the performance of duty on February 14, 2012. His alleged injury
did not occur during his regular work hours, as he reported his injury at 8:00 a.m., while his
regular shift did not start until 8:30 a.m. Appellant’s injury did not occur on the premises of the
employing establishment, but at his own home. Thus, two important criteria of course of
employment, time and place of the alleged injury, have not been met.
While appellant alleged that he was enrolled in a voluntary PFP, he did not provide a
statement from the employing establishment that he was enrolled in an employing establishment
PFP or that he was injured while participating in a PFP. In J.L.10 the Board found that the
employee had established that a right knee injury, sustained in the course of participation in an
employing establishment PFP and during official time, was within the performance of duty. The
Board noted that the record established that he had completed necessary paperwork requesting
approval for participation in the PFP and that his supervisor had approved his participation. In
this case, appellant did not submitted a statement from the employing establishment to establish
that he was enrolled in a PFP and that the injury was sustained while he was performing
8

See Lawrence J. Kolodzi, 44 ECAB 818, 822 (1993); A. Larson, The Law of Workers’ Compensation
§ 22.00 (2012).
9

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.18 (March 1994).

10

Docket No. 12-947 (issued March 11, 2013).

5

authorized exercises under the PFP. The waiver of liability form dated September 1, 2011 does
not suffice to establish either that appellant was actually enrolled in a PFP or that his right
shoulder injury occurred in the course of participation in a PFP. Without the required
documentation from the employing establishment, the evidence does not support his claim for a
work-related injury.11
With respect to an express or implied requirement to participate in home exercise, the
evidence reveals that appellant’s physical fitness routine was voluntary. It was not an express or
implied requirement of his employment, but instead, it was part of a general encouragement by
the employing establishment to maintain good health. The Board has noted that when the degree
of employing establishment involvement descends from compulsion to mere sponsorship or
encouragement, the questions become closer, and the test includes whether the employing
establishment sponsored or financed the activity and whether attendance was voluntary.12
With regard to the characterization of appellant’s home exercise as a recreational or
social activity of his employer, the alleged injury does not fall within the performance of duty.
The activity of performing dips occurred outside of appellant’s regular shift hours and outside
the premises of the employing establishment. Furthermore, the employing establishment did not
expressly or impliedly require him to engage in home exercise. The employing establishment
did not derive any substantial direct benefit from his home exercise except for the intangible
value of improvement in employee health and morale that is common to all kinds of recreation
and social life.13
The Board notes that the facts of appellant’s case are similar to those of Z.C.14 In that
case, a police officer filed a traumatic injury claim alleging that he sustained an injury to the
right Achilles tendon on his day off during a self-defense tactics class at a private fitness club.
The claimant asserted that maintaining physical fitness and defense skills by taking this class
were related to his employment, because he was being taught skills similar to those required by
the employing establishment for his position. The Board found in Z.C. that the employee did not
sustain an injury within the performance of duty because his participation in the self-defense
class was voluntary and was not an express or implied requirement of employment. The Board
noted that the intangible value of improved health or morale, in and of itself, does not bring a
recreational activity within the orbit of employment.
For these reasons, appellant did not establish that he sustained an injury in the
performance of duty on February 14, 2012.
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.
11

See supra note 9.

12

Kenneth B. Wright, 44 ECAB 176, 183 (1992).

13

See supra note 8.

14

Docket No. 12-330 (issued June 19, 2012).

6

CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an injury in the performance of duty on February 14, 2012.
ORDER
IT IS HEREBY ORDERED THAT the June 20, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 2, 2014
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, FCI MEMPHIS,
Memphis, TN, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Daniel DeCiccio, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 21-0301
Issued: March 3, 2022

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 December 24, 2020 appellant, through counsel, filed a timely appeal from a
December 3, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case. 2
ISSUES
The issues are: (1) whether appellant has met his burden of proof to expand the acceptance
of the claim to include additional conditions of left knee primary osteoarthritis and a right medial
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the December 3, 2020 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.

meniscus tear causally related to the accepted August 23, 2019 employment injury; and
(2) whether OWCP abused its discretion by denying appellant’s requests for authorization of a left
knee injection and right knee surgery.
FACTUAL HISTORY
On August 23, 2019 appellant, then a 49-year-old corrections officer, filed a traumatic
injury claim (Form CA-1) alleging that on that date he sustained injuries to his knees as a result of
a partial floor cave-in while in the performance of duty. OWCP accepted the claim for bilateral
knee contusions.
In a report dated September 5, 2019, Dr. Robert H. Miller, a Board-certified orthopedic
surgeon, diagnosed bilateral knee contusions. He noted that on August 23, 2019 appellant was
walking on an elevated floor when his right leg fell through the floor. Appellant landed on his
kneecaps. Since that time, he had significant pain in both knees, left worse than right. Appellant
told Dr. Miller that he had previous intermittent pain and swelling in the left knee requiring him
to use a cane and that he had been given a cane several years prior “for preexisting knee arthritis.”
A magnetic resonance imaging (MRI) scan of the left knee obtained on September 26, 2019
demonstrated a small free edge tear in the body of the lateral meniscus and mild and moderate
patellofemoral compartment osteoarthritis.
In a follow-up report dated January 30, 2020, Dr. Miller noted that an MRI scan of the left
knee demonstrated a small free edge tear in the body of the lateral meniscus and low -grade
chondral loss in the lateral compartment. He advised that appellant should treat his arthritis with
continued therapy, anti-inflammatories, a cortisone injection, and he would attempt to obtain
approval for a hyaluronic acid injection.
An MRI scan of appellant’s right knee obtained on February 13, 2020 demonstrated a
horizontal tear of the posterior horn and body of the medial meniscus and mild tricompartmental
osteoarthritis. It was also noted that the medial collateral ligament was thickened proximally
consistent with a remote injury.
In a follow-up report dated March 5, 2020, Dr. Miller noted that the MRI scan of
appellant’s right knee demonstrated a horizontal tear of the posterior horn body of the medial
meniscus and mild tricompartmental osteoarthritis. He recommended right knee surgery and a
hyaluronic acid injection to the left knee, to which appellant agreed.
On March 9, 2020 appellant requested authorization for right knee surgery.
In a development letter dated March 11, 2020, OWCP advised appellant that, at that time,
the proposed right knee surgery could not be approved. It found that the request for surgery did
not match his approved condition of right knee contusion. OWCP requested that appellant submit
a narrative report from his physician explaining how the new diagnosis of right knee meniscus tear
was causally related to the accepted traumatic injury. It afforded him 30 days to submit the
requested evidence.
On April 2, 2020 appellant requested authorization for a left knee injection.
2

In a development letter dated April 8, 2020, OWCP advised appellant that, at that time the
proposed left knee injections could not be approved. It found that the request for a left knee
injection did not match his approved condition of left knee contusion. OWCP requested that
appellant submit a narrative report from his physician explaining how the new diagnosis of left
knee osteoarthritis was causally related to the accepted traumatic injury. It afforded him 30 days
to submit the requested evidence. No response was received within the time allotted.
By decision dated May 18, 2020, OWCP denied appellant’s request to expand the
acceptance of his claim to include left knee primary osteoarthritis as causally related to the
accepted August 23, 2019 employment injury and denied his request for authorization for a left
knee injection.
By separate decision also dated May 18, 2020, OWCP denied appellant’s request to expand
the acceptance of his claim to include a right knee medial meniscus tear as causally related to the
accepted employment injury and denied his request for authorization for right knee surgery.
On June 2, 2020 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review.
On October 5, 2020, counsel submitted the results of a May 12, 2015 MRI scan, which
demonstrated minimal lateral compartment chondromalacia and minimal chondromalacia of the
patella and minimal signal in the posterior horn of the medial meniscus, likely reflecting
intrasubstance degeneration. He also enclosed a note dated September 30, 2020 from Dr. Miller
in which he described the results of the May 12, 2015 MRI scan.
A hearing was held on October 8, 2020. The hearing representative afforded appellant 30
days to submit additional medical evidence.
In a narrative report dated November 5, 2020, Dr. Miller noted that appellant’s claim was
currently accepted for bilateral knee contusions. He opined that the acceptance of the claim should
be expanded to include an aggravation of left knee primary osteoarthritis and a left la teral meniscus
tear, as well as a right horizontal tear of the posterior horn and body of the medial meniscus, which
was “possibly caused by the accident” and right knee osteoarthritis “possibly aggravated by the
accident.” Dr. Miller noted that, when appellant fell on August 23, 2019, he twisted his knees and
slammed into the floor, which due to appellant’s height and weight could have created sufficient
torque and force to tear the menisci in his knees and possibly aggravate his preexisting
degenerative arthritis. He noted that an MRI scan from 2015 did not show any tears in the menisci,
though there was a minimal signal in the posterior horn of the right medial meniscus. Dr. Miller
noted that there were no injuries between the 2015 MRI scan and the August 23, 2019 incident,
and no injuries after that incident. He stated that medical literature supported that trauma like the
type appellant experienced could make preexisting arthritis worse. Dr. Miller opined that the left
knee injections were necessary to avoid surgery.
By decision dated December 3, 2020, the hearing representative affirmed the May 18, 2020
decisions.

3

LEGAL PRECEDENT -- ISSUE 1
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.3
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 4 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and an accepted injury must be based on a complete factual and
medical background. 5 Additionally, the physician’s opinion must be expressed in terms of a
reasonable degree of medical certainty and must be supported by medical rationale which, explains
the nature of the relationship between the diagnosed condition and the accepted employment
injury.6
Section 8103 of FECA provides that the United States shall furnish to an employee who is
injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree, or the period of disability, or aid in lessening the amount of the monthly compensation. 7
In interpreting this section of FECA, the Board has recognized that OWCP has broad discretion in
approving services provided under FECA. 8 OWCP has the general objective of ensuring that an
employee recovers from his or her injury to the fullest extent possible in the shortest amount of
time. It, therefore, has broad administrative discretion in choosing means to achieve this goal.
The only limitation on OWCP’s authority is that of reasonableness.9 Abuse of discretion is
generally shown through proof of manifest error, clearly unreasonable exercise of judgment, or
actions taken which are contrary to both logic and probable deductions from established facts. It
is not enough to merely show that the evidence could be construed so as to produce a contrary
factual conclusion.10

3

A.A., Docket No. 19-1165 (issued December 16, 2019); M.B., Docket No. 19-0485 (issued August 22, 2019); R.J.,
Docket No. 17-1365 (issued May 8, 2019); Jaja K. Asaramo, 55 ECAB 200 (2004).
4

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

5

M.V., Docket No. 18-0884 (issued December 28, 2018); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

6

Id.

7

5 U.S.C. § 8103.

8

M.C., Docket No. 17-1615 (issued August 23, 2018).

9

Id.

10

Id.

4

ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to expand the acceptance of
the claim to include additional conditions of left knee primary osteoarthritis and a right medial
meniscus tear as causally related to the accepted August 23, 2019 employment injury.
In his September 5, 2019 report, Dr. Miller diagnosed bilateral knee contusions, and noted
that appellant had related he had been given a cane some years prior for preexisting left knee
arthritis. This report merely diagnosed the accepted bilateral knee contusions, but did not offer
Dr. Miller’s diagnosis of any other bilateral knee conditions. The Board has held that a medical
report lacking a firm diagnosis and a rationalized medical opinion that the medical condition is
causally related to the employment incident is of no probative value. 11 Therefore, Dr. Miller’s
report is insufficient to establish appellant’s request for expansion of the claim.
In a narrative report dated November 5, 2020, Dr. Miller noted that appellant’s claim was
currently approved for bilateral knee contusions. He opined that the acceptance of the case should
be expanded to include an aggravation of left knee primary osteoarthritis and a left lateral meniscus
tear, as well as a right horizontal tear of the posterior horn and body of the medial meniscus, which
was “possibly caused by the accident” and right knee osteoarthritis “possibly aggravated by the
accident.” Dr. Miller noted that, when appellant fell on August 23, 2019, he twisted his knees and
slammed into the floor, which due to appellant’s height and weight could have created sufficient
torque and force to tear the menisci in his knees and possibly aggravate his preexisting
degenerative arthritis. He noted that an MRI scan from 2015 did not show any tears in the menisci,
though there was a minimal signal in the posterior horn of the right medial meniscus. Dr. Miller
noted that there were no injuries between the 2015 MRI scan and the August 23, 2019 incident,
and no injuries after that incident. He stated that medical literature supported that trauma like the
type appellant experienced could make preexisting arthritis worse. Dr. Miller opined that the left
knee injections were necessary and could avoid surgery. The Board finds that Dr. Miller’s
November 5, 2020 report is insufficient to establish appellant’s request for expansion of the claim.
Dr. Miller’s explanation that appellant’s left knee osteoarthritis and right knee meniscal tear were
“possibly” secondary to the August 23, 2019 incident is speculative in nature. The Board has held
that medical opinions that are speculative or equivocal are of diminished probative value. 12 While
Dr. Miller provided a possible explanation as to how the incident of August 23, 2019 caused or
aggravated appellant’s left knee primary osteoarthritis and a right medial meniscus tear, his
opinion was couched in speculative terms, and did not fully address appellant’s history and
preexisting bilateral knee conditions. 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

11

J.P., Docket No. 20-0381 (issued July 28, 2020); R.L., Docket No. 20-0284 (issued June 30, 2020).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.5(c)(3); D.S., Docket No. 20-0384 (issued October 8, 2020); H.A., Docket No. 18-1455 (issued
August 23, 2019).

5

condition.13 In addition, while Dr. Miller noted that medical literature supported a finding that
appellant’s diagnosed conditions could have been caused by the type of trauma he experienced,
the Board has held that reliance on medical literature has little probative value in resolving medical
questions unless a physician shows the applicability of the general medical principles discussed in
the articles to the specific factual situation at issue in the case. 14 Therefore, Dr. Miller’s
November 5, 2020 report is insufficient to meet appellant’s burden of proof. 15
OWCP also received MRI scan reports. The Board, however, has held that diagnostic tests,
standing alone, lack probative value as they do not provide a physician’s opinion on whether there
is a causal relationship between appellant’s accepted employment incident/exposure and a
diagnosed condition.16 This evidence is, therefore, insufficient to establish expansion of his claim.
As the evidence of record is insufficient to establish causal relationship between his
additional diagnosed medical conditions and the accepted employment injury, appellant has not
met his burden of proof to expand the acceptance of his claim.
LEGAL PRECEDENT -- ISSUE 2
Section 8103(a) of FECA 17 provides that the United States shall furnish to an employee
who is injured while in the performance of duty, the services, appliances, and supplies prescribed
by or recommended by a qualified physician, which OWCP considers likely to cure, give relief,
reduce the degree or the period of disability, or aid in lessening the amount of the monthly
compensation. 18 While OWCP is obligated to pay for treatment of employment-related conditions,
the employee has the burden of proof to establish that the expenditure is incurred for treatment of
the effects of an employment-related injury or condition. 19
Section 10.310(a) of OWCP’s implementing regulations provide that an employee is
entitled to receive all medical services, appliances, or supplies which a qualified physician
prescribes or recommends and which OWCP considers necessary to treat the work-related injury.20
13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
M.B., Docket No. 20-1275 (issued January 29, 2021); see R.D., Docket No. 18-1551 (issued March 1, 2019).
14

S.J., Docket No. 20-0896 (issued January 11, 2021); R.G., Docket No. 18-0917 (issued March 9, 2020); T.S.,
Docket No. 18-1518 (issued April 17, 2019); K.U., Docket No. 15-1771 (issued August 26, 2016); Roger D. Payne,
55 ECAB 535 (2004).
15

See C.B., Docket No. 20-0464 (issued July 21, 2020).

16

See P.A., Docket No. 18-0559 (issued January 29, 2020); A.P., Docket No. 18-1690 (issued December 12, 2019);
R.M., Docket No. 18-0976 (issued January 3, 2019).
17

Supra note 1 at § 8103(a).

18

Id.; see D.S., Docket No. 18-0353 (issued May 18, 2020); L.D., 59 ECAB 648 (2008); Thomas W. Stevens, 50
ECAB 288 (1999).
19

M.P., Docket No. 19-1557 (issued February 24, 2020); M.B., 58 ECAB 588 (2007).

20

20 C.F.R. § 10.310(a); see D.W., Docket No. 19-0402 (issued November 13, 2019).

6

In interpreting section 8103 of FECA, the Board has recognized that OWCP has broad
discretion in approving services provided, with the only limitation on OWCP’s authority being
that of reasonableness.21 OWCP has the general objective of ensuring that an employee recovers
from his or her injury to the fullest extent possible, in the shortest amount of time. It therefore has
broad administrative discretion in choosing means to achieve this goal. 22
Abuse of discretion is shown through proof of manifest error, clearly unreasonable exercise
of judgment, or actions taken which are contrary to both logic and probable deductions from
established facts. It is not enough to merely show that the evidence could be construed so as to
produce a contrary factual conclusion.23
ANALYSIS -- ISSUE 2
The Board finds that OWCP did not abuse its discretion by denying appellant’s request
for authorization for a left knee injection and right knee surgery.
On March 9, 2020 appellant requested authorization for right knee surgery. On April 2,
2020 appellant requested authorization for a left knee injection.
In a January 30, 2020 report, Dr. Miller noted that an MRI scan of the left knee
demonstrated a small free edge tear in the body of the lateral meniscus and low-grade chondral
loss in the lateral compartment. He advised that appellant should treat his arthritis with continued
therapy, anti-inflammatories, a cortisone injection, and he would attempt to obtain approval for a
hyaluronic acid injection.
In a follow-up report dated March 5, 2020, Dr. Miller noted that the MRI scan of
appellant’s right knee demonstrated a horizontal tear of the posterior horn body of the medial
meniscus and mild tricompartmental osteoarthritis. He recommended right knee surgery and a
hyaluronic acid injection to the left knee, to which appellant agreed.
In a narrative report dated November 5, 2020, Dr. Miller opined that the left knee
injections were necessary to avoid surgery.
As noted, the only restriction on OWCP’s authority to authorize medical treatment is one
of reasonableness. 24 In the instant case, appellant did not submit evidence to support that the
requested left knee injection and right knee surgery were medically necessary to treat his accepted
conditions. The Board thus finds that OWCP did not abuse its discretion by denying her request
21

B.I., Docket No. 18-0988 (issued March 13, 2020); see also Daniel J. Perea, 42 ECAB 214, 221 (1990) (holding
that abuse of discretion by OWCP is generally shown through proof of manifest error, clearly unreasonable exercise
of judgment, or administrative actions which are contrary to both logic, and probable deductions from established
facts).
22

D.S., Docket No. 18-0353 (issued May 18, 2020).

23

Id.; P.L., Docket No. 18-0260 (issued April 14, 2020); L.W., 59 ECAB 471 (2008).

24

Supra note 22; see also A.W., Docket No. 14-0708 (issued January 2, 2015).

7

for authorization for physical therapy. 25 Appellant may submit new evidence or argument with a
written request for reconsideration to OWCP within one year of this merit decision, pursuant to 5
U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to expand the acceptance of
the claim to include additional conditions of left knee primary osteoarthritis a nd a right medial
meniscus tear as causally related to the accepted August 23, 2019 employment injury. The Board
further finds that OWCP did not abuse its discretion by denying appellant’s requests for
authorization of a left knee injection and right knee surgery.
ORDER
IT IS HEREBY ORDERED THAT the December 3, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 3, 2022
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

25

D.C., Docket No. 18-0080 (issued May 22, 2018); B.J., Docket No. 17-1825 (issued February 23, 2018).

8