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

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

Docket No. 18-0764
Issued: April 6, 2020

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 February 26, 2018 appellant filed a timely appeal from a December 8, 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 merits of this case. 2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the December 8, 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.

ISSUE
The issue is whether appellant has met her burden of proof to establish disability from work
for the period May 30, 2015 through August 28, 2016 causally related to her accepted April 8,
2015 employment injury.
FACTUAL HISTORY
On April 27, 2015 appellant, a 52-year-old mail handler, filed a traumatic injury claim
(Form CA-1) alleging that she sustained an injury on April 8, 2015 when lifting mail while in the
performance of duty. She reported that she suffered a strain of her right groin area with pain
radiating into her right thigh. Appellant stopped work on April 20, 2017 and received continuation
of pay beginning that date.3
In a duty status report (Form CA-17) dated May 21, 2015, Dr. Mool P. Nigam, Boardcertified in neurology, listed the date of injury as April 8, 2015 and indicated that appellant was
totally disabled from work. He listed “diagnoses due to injury” as lumbar sprain, lumbosacral
neuritis, and muscle spasm.
By decision dated June 16, 2015, OWCP denied appellant’s claim.
Appellant subsequently requested reconsideration of the June 16, 2015 decision and
submitted May 21 and August 13, 2015 reports from Dr. Nigam who diagnosed lumbosacral
sprain, lumbar radiculopathy, and myalgia/myospasms, and indicated that appellant was
incapacitated from work for an indefinite period. 4 She also submitted the results of grip strength
testing, muscle strength testing of the cervical/trunk areas, and range of motion testing of the
cervical, thoracic, and lumbar areas of the spine dated June 10 and 25, July 16 and 22, August 13
and 26, September 24, October 7, 14, and 21, and December 30, 2015 from Dr. James A. Cain, III,
Board-certified in family medicine, and Dr. Charles E. Reinhardt, an osteopath Board-certified in
family medicine.
By decision dated May 9, 2016, OWCP denied modification of its June 16, 2015 denial
decision.

3

On May 25, 2016 appellant also filed an occupational disease claim (Form CA -2) alleging injury due to her
repetitive work duties. She claimed that she first became aware of her alleged injury on January 12, 2015 and, on
July 5, 2016, OWCP accepted that claim assigned OWCP File No. xxxxxx535 for intervertebral disc displacement of
the lumbar region, radiculopathy of the thoracic region, and sprain of an unspecified collateral ligament of the right
knee. OWCP later administratively combined OWCP File Nos. xxxxxx535 and xxxxxx908, with the latter designated
as the master file. The present claim only involves appellant’s April 8, 2015 injury to her right hip and alleged resultant
disability for the period May 30, 2015 through August 28, 2016.
4

On September 24, 2015 Dr. Nigam asserted that appellant’s September 16, 2015 magnetic resonance imaging
(MRI) scan indicated an L5-S1 disc bulge/annular tear which warranted an upgrade of her condition to include
intervertebral disc disease herniation without myelopathy. In a January 19, 2016 report, Dr. Nigam noted that
appellant had two torn lumbar spine discs which were causally related to “her injury affects [sic] and the mechanism
of twisting and lifting very heavy items ” at work.

2

In a Form CA-17 report dated May 26, 2016, Dr. Nigam released appellant to work that
day with restrictions of lifting no more than 15 pounds continuously and 20 pounds intermittently.
In a Form CA-17 report dated June 23, 2016, he released her to work that day with the same lifting
restrictions.5 In a June 2, 2016 report, Dr. Nigam opined that appellant sustained an acute strain
injury of her right hip at the groin and upper thigh due to the excessive force she used in attempting
to lift heavy boxes of mail at work on April 8, 2015. He advised that, at the time of her initial
examination in April 2015,6 she had also complained of prior back pain, but noted “that was added
into conditions when clearly they should not have been.”
On September 14, 2016 OWCP vacated its prior decisions and accepted that appellant
sustained an iliofemoral ligament sprain of the right hip on April 8, 2015.
On September 26, 2016 appellant filed a claim for wage-loss compensation (Form CA-7)
for the period May 30, 2015 to August 28, 2016.
In a February 14, 2017 development letter, OWCP requested that appellant submit medical
evidence in support of her disability claim. It provided her 30 days to submit such evidence.
In response, appellant submitted a report dated July 16, 2015 from Dr. Nigam who
diagnosed lumbosacral sprain, lumbar radiculopathy, and myalgia/myospasms, and indicated that
she was incapacitated from work for an indefinite period.
By decision dated May 2, 2017, OWCP denied appellant’s claim for wage-loss
compensation, finding that the medical evidence of record was insufficient to establish disability
from work for the period May 30, 2015 through August 28, 2016 causally related to her accepted
April 8, 2015 employment injury.
On May 23, 2017 appellant requested reconsideration of the May 2, 2017 decision and
submitted Form CA-17 reports dated July 16 and August 17, 2015 from Dr. Nigam who advised
that she was incapable of returning to work.7 In a May 18, 2017 verification of disability report,
Dr. Nigam listed the date of injury as April 8, 2015 and opined that appellant was incapacitated
from May 30 through August 28, 2015 due to a “work-related injury.”
By decision dated August 17, 2017, OWCP denied modification of its May 2, 2017
decision.
On September 12, 2017 appellant requested reconsideration of the August 17, 2017
decision. She submitted administrative documents regarding her receipt of benefits from the
5

In both these form reports, Dr. Nigam listed the date of injury as April 8, 2015. Appellant also submitted additional
reports of Dr. Charles E. Reinhardt, an osteopath and pain medicine specialist, dated between August 2015 and
August 2016, detailing the results of grip strength, muscle strength, and range of motion testing. In a May 26, 2016
work tolerance limitations report, Dr. Nigam noted that appellant could work for six hours per day with restrictions of
lifting no more than 15 pounds continuously and 20 pounds intermittently.
6
Dr. Nigam inadvertently listed the date of the initial examination as April 23, 2016, rather than the actual date of
April 23, 2015.
7

In these form reports, Dr. Nigam listed the date of injury as April 8, 2015.

3

Department of Veterans Affairs and an August 14, 2017 report from Dr. Oluchi Immanuel, Boardcertified in internal medicine, regarding a service-related back condition.
By decision dated December 8, 2017, OWCP denied modification of its August 17, 2017
decision.
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 any disability or specific condition for
which compensation is claimed is causally related to the employment injury. 8
Under FECA the term “disability” means the incapacity, because of an employment injury,
to earn the wages that the employee was receiving at the time of injury. 9 Disability is thus not
synonymous with physical impairment, which may or may not result in an incapacity to earn
wages.10 An employee who has a physical impairment causally related to a federal employment
injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the time
of injury, has no disability as that term is used in FECA. 11 When, however, the medical evidence
establishes that the residuals or sequelae of an employment injury are such that, from a medical
standpoint, they prevent the employee from continuing in his or her employment, he or she is
entitled to compensation for loss of wages. 12
The medical evidence required to establish causal relationship between a claimed period
of disability and an employment injury is rationalized medical opinion evidence. 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 claimed disability and the accepted employment injury.13
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish disability from
work for the period May 30, 2015 through August 28, 2016 causally related to her accepted April 8,
2015 employment injury.
Appellant submitted reports dated May 21, July 16 and August 13, 2015 from Dr. Nigam
who diagnosed several lumbar conditions and advised that she was incapacitated from work
indefinitely. In a May 18, 2017 verification of disability report, Dr. Nigam listed the date of injury
8

S.W., Docket No. 18-1529 (issued April 19, 2019); J.F., Docket No. 09-1061 (issued November 17, 2009).

9

20 C.F.R. § 10.5(f); S.T., Docket No. 18-0412 (issued October 22, 2018).

10

See L.W., Docket No. 17-1685 (issued October 9, 2018).

11

See D.G., Docket No. 18-0597 (issued October 3, 2018).

12

See D.R., Docket No. 18-0323 (issued October 2, 2018).

13

See V.A., Docket No. 19-1123 (issued October 29, 2019).

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as April 8, 2015 and opined that appellant was incapacitated from May 30, 2015 through
August 28, 2016 due to a “work-related injury.” The Board finds that, although these reports
reference periods of disability, they are of no probative value on the underlying issue of this case
because Dr. Nigam did not provide a clear opinion that appellant had disability from work during
the period May 30, 2015 to August 28, 2016 causally related to the accepted April 8, 2015
employment injury, an iliofemoral ligament sprain of the right hip. The Board has held that medical
evidence that does not offer an opinion regarding the cause of an employee’s condition or disability
is of no probative value on the issue of causal relationship. 14 Therefore, these reports are insufficient
to establish appellant’s claim.
Appellant also submitted a Form CA-17 report dated May 21, 2015 from Dr. Nigam who
indicated that she was totally disabled from work. In Form CA-17 reports dated July 16 and
August 17, 2015, Dr. Nigam again advised that she was not capable of returning to work. In a
Form CA-17 report dated May 26, 2016, he released appellant to work that day with restrictions
of lifting no more than 15 pounds continuously and 20 pounds intermittently. In a Form CA-17
report dated June 23, 2016, he released her to work that day with the same lifting restrictions. 15
However, these Form CA-17 reports are mere form reports and do not contain an opinion on
whether the accepted April 8, 2015 employment injury caused disability from work during the
claimed period; consequently, they are of no probative value on the issue of causal relationship
and are insufficient to establish appellant’s claim.16
Appellant also submitted medical evidence which addressed her medical problems during
the claimed period of disability, but did not address her ability to work. For example, in a
September 24, 2015 report, Dr. Nigam advised that she had intervertebral disc disease/herniation
at L5-S1 without myelopathy. On January 19, 2016 he diagnosed two torn lumbar spine discs and,
on June 2, 2016, he indicated that appellant sustained an acute strain injury of her right hip at the
groin/upper thigh on April 8, 2015. In reports dated between June 2015 and August 2016, Dr. Cain
and Dr. Reinhardt detailed the results of grip strength testing, muscle strength testing of the
cervical/trunk areas, and range of motion testing of the cervical, thoracic, and lumbar spines.
However, these reports also are of no probative value on the underlying issue of this case because
they do not contain an opinion that appellant was disabled from work during the period May 30,
2015 through August 28, 2016 causally related to the accepted April 8, 2015 employment injury. 17
The Board finds that appellant has not submitted sufficient medical opinion evidence to
establish disability during the period May 30, 2015 through August 28, 2016 causally related to

14

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

15

In these Form CA-17 reports, Dr. Nigam listed the date of injury as April 8, 2015.

16

A.A., Docket No. 19-0957 (issued October 22, 2019); L.D., Docket No. 19-0263 (issued June 19, 2019). In a
May 26, 2016 work tolerance limitations form report, Dr. Nigam noted that appellant could work for six hours per day
with restrictions of lifting no more than 15 pounds continuously and 20 pounds intermitten tly. However, he did not
provide an opinion on the cause of this limited disability.
17

Id. Appellant also submitted an August 14, 2017 report from Dr. Immanuel, but this report concerns a condition
related to her military service rather than her work for the employing establishment.

5

her accepted April 8, 2015 employment injury. Thus, she has not met her burden of proof to
establish entitlement to compensation for such claimed disability.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish disability for
the period May 30, 2015 through August 28, 2016 causally related to her accepted April 8, 2015
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the December 8, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 6, 2020
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.K., Appellant
and
U.S. POSTAL SERVICE, DOMINIC V.
DANIELS PROCESSING & DISTRIBUTION
CENTER, Kearny, NJ, Employer
__________________________________________

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

Docket No. 13-1234
Issued: December 13, 2013

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On April 18, 2013 appellant, through counsel, filed a timely appeal from a March 5, 2013
decision of the Office of Workers’ Compensation Programs (OWCP) that denied her recurrence
claim and a March 29, 2013 decision that denied merit review. The claim was adjudicated by
OWCP under OWCP file number xxxxxx283 and the appeal to the Board was docketed as
No. 13-1234.1
The record indicates that on July 18, 2011 appellant filed a claim for a recurrence of
disability that day when she hurt her knee at work. OWCP adjudicated the July 18, 2011
incident as a new traumatic injury claim, under file number xxxxxx302.2 Appellant accepted a
modified mail processing clerk position under protest, effective August 9, 2011. On October 17,
2011 she filed a recurrence claim alleging that she sustained a recurrence of disability on
1

This case was previously before the Board. In a May 10, 2013 decision, the Board set aside OWCP decisions
dated April 10 and 25, 2012 and remanded the case to OWCP to obtain clarification from Dr. J. Lee Berger
regarding appellant’s claimed disability beginning July 18, 2011. Docket No. 12-1926 (issued May 10, 2013).
OWCP had previously accepted that appellant sustained a right knee sprain on April 27, 2011 while clearing a
machine jam.
2

Claim number xxxxxx302 has not been transmitted to the Board.

August 8, 2011 when she attempted to return to modified duty but no work was available.
Appellant returned to full duty on November 6, 2011. In an August 31, 2012 decision, OWCP
denied her claim that she sustained a recurrence of disability on August 8, 2011. In a March 5,
2013 decision, an OWCP hearing representative affirmed the August 31, 2012 decision. In a
nonmerit decision dated March 29, 2013, OWCP denied appellant’s reconsideration request.
The Board has duly considered the matter and concludes that this case is not in posture
for decision. As noted above, the record forwarded to the Board includes evidence that appellant
has two claims for a right knee injury, an accepted claim that occurred on April 27, 2011 and a
second claim for a July 18, 2011 injury. These claims were adjudicated by OWCP under file
numbers xxxxxx283 and xxxxxx302 respectively. The merit issue in the instant appeal is
whether appellant established that she sustained a recurrence of disability on August 8, 2011,
which was adjudicated by OWCP under file number xxxxxx283 claim.
As the two claims referenced above are for right knee injuries and appellant is now
claiming that she sustained a recurrence of disability on August 8, 2011 due to her right knee
condition, it is unclear whether the record before the Board, OWCP file number xxxxxx283,
contains all evidence that would be relevant as to whether she sustained a recurrence of disability
due to her right knee condition.
Hence, the Board finds that this case is not in posture for a decision as the record before
the Board is incomplete and would not permit an informed adjudication of the case by the Board.
OWCP procedures provide for the doubling of a claim when a new injury case is reported for an
employee who previously filed an injury claim for a similar condition or the same part of the
body.3 The case must be remanded to OWCP to combine OWCP file number xxxxxx302 with
file number xxxxxx283 pursuant to OWCP procedures. This will allow OWCP to consider all
relevant claim files in developing appellant’s claim. Moreover, to consider appellant’s appeal at
this stage would involve a piecemeal adjudication of the issues in this case and raise the
possibility of inconsistent results. It is the Board’s policy to avoid such an outcome.4 Following
this and such other development deemed necessary, OWCP shall issue an appropriate merit
decision on appellant’s claim.

3

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance & Management, Chapter 2.400.8(c)
(February 2000).
4

See William T. McCracken, 33 ECAB 1197 (1982).

2

IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 29 and 5, 2013 are set aside and the case is remanded to
OWCP for proceedings consistent with this opinion of the Board.
Issued: December 13, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Montgomery, AL, Employer
__________________________________________

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Appearances:
John S. Bennett, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-885
Issued: November 2, 2012

Case Submitted on the Record

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

JURISDICTION
On March 13, 2012 appellant, through his attorney, filed a timely appeal of a February 8,
2012 merit decision of the Office of Workers’ Compensation Programs (OWCP) denying his
recurrence claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant sustained a recurrence of disability commencing
October 26, 2006 causally related to the accepted emotional condition.
FACTUAL HISTORY
On February 15, 2000 appellant, then a 48-year-old pharmacist, claimed that his anxiety
and depression arose out of work-related stress. On September 28, 2000 OWCP accepted a
1

5 U.S.C. §§ 8101-8193.

depressive reaction condition.2 Appellant elected workers’ compensation benefits effective
February 1, 2001 and was placed on the periodic compensation rolls beginning June 16, 2002.
In February 19 and March 26, 2004 letters, OWCP requested that Dr. William C.
Freeman, a Board-certified psychiatrist, provide an opinion as to whether appellant was capable
of returning to full-time work as a pharmacist eight hours a day, five days a week. In the
March 26, 2004 letter, it provided him with the job description of a pharmacist. On February 26
and March 30, 2004 Dr. Freeman advised that appellant was capable of returning to work as a
pharmacist full time. In the March 30, 2004 letter, he also indicated that appellant should work
at the Montgomery campus. Dr. Freeman noted that appellant had been away from his job as a
pharmacist with temporary disability due to a back injury, recurrent back pain and a major
depressive episode that arose primarily out of his back pain and inability to work.
On April 12, 2004 appellant returned to work in a modified-duty capacity, as a telephone
health-line assistant or patient services assistant.
By decision dated June 10, 2004, OWCP terminated appellant’s wage-loss benefits
effective June 13, 2004 on the grounds that the medical evidence of record established that he no
longer had any disability from the October 1, 1999 work injury. Appellant remained entitled to
medical benefits. On March 6, 2005 he was selected for a pharmacist position.
On February 2, 2007 appellant filed a Form CA-2a notice of recurrence claiming that he
experienced a recurrence of disability on October 26, 2006 and that he stopped work on
February 2, 2007.3 He stated that his major depressive episodes continued. Appellant stated that
work was stressful and he felt he was in a hostile work environment, which made coping difficult
despite mediation and bimonthly doctor visits. He mentioned several incidents from October 26,
2006 to which he attributed his depressive episodes.4
Effective September 15, 2007, appellant received disability retirement.
In a February 1, 2008 report, Dr. Freeman, appellant’s attending psychiatrist, indicated
that appellant’s current diagnoses were major depressive episode, recurrent, moderate to severe
and attention deficit disorder. He noted the history of injury and indicated that appellant initially
returned to work in a clerical position in June 2004 and was returned to the pharmacy when there
2

This was based on the following factor of employment: In the summer of 1999, appellant was assigned to the
outpatient pharmacy window where he had to work alone with no assistance. In October 1999, he injured his back
but continued to work the outpatient window alone which required a great deal of standing. Sometime later, an
assistant registered pharmacist was assigned to the outpatient window, but she was not instructed to remain at the
window and help with patient requests.
3

On a June 4, 2011 Form-CA-7, appellant also claimed wage-loss compensation from March 28, 2007 to the
present.
4

As appellant had accepted a different work position than the position held when the claim was accepted, OWCP
adjudicated a new claim under File No. xxxxxx975. It found that the claimed employment factors arising on and
after October 26, 2006 were not compensable, which the Board affirmed in May 8, 2009 and August 11, 2010
decisions. Docket No. 08-2015 (issued May 8, 2009) and Docket No. 10-109 (issued August 11, 2010). Claim File
No. xxxxxx975 is not before the Board on the present appeal.

2

was an available opening in March 2005. Dr. Freeman noted that since that time appellant had
gradual but recently escalating return of depressive symptoms. He described several incidents of
concern to appellant since his return to work in the pharmacy. Dr. Freeman opined that the
recurrent depressive episodes appeared to have been as much a cause of appellant’s prior
workers’ compensation absence as his back injury. Old concerns from his previous episodes
reemerged and intensified in the last several months prior to appellant again leaving his job and
filing for worker’s compensation. Dr. Freeman opined that the second workers’ compensation
claim was directly and unequivocally connected to the first claim and represented one continuous
episode of mental illness that remitted sufficiently to allow appellant to return to work briefly
before the events in the fall 2006. Therapist progress notes from March 2008 and continuing
were submitted.
In a September 12, 2010 report, Dr. Freeman opined that since the original injury of
October 1999, appellant had not returned to his normal baseline and continued to have moderate
depression and anxiety symptoms. At the time of the second series of events in October 2006,
appellant had a significant exacerbation of those symptoms again related to work stress. Also, he
had a significantly lowered stress tolerance that contributed to the exacerbation of the original
injury and exacerbation of his existing medical and emotional illness. Appellant opined that his
depression and anxiety rendered him unable to work as a pharmacist.5
Appellant refilled his recurrence claim on January 30, 2011. In an April 29, 2011 letter,
OWCP advised that the recurrence claim filed on January 30, 2011 represented a duplicative
claim alleging the same date and work factors of the recurrence claim filed on February 2, 2007
from which a new case was created under claim File No. xxxxx975.6 Following numerous
correspondence between appellant’s attorney and OWCP, it advised appellant on December 12,
2011 of the evidence needed to support his claim for recurrence/consequential injury due to his
employment-related condition.
OWCP received evidence that included a March 15, 2007 report from Dr. Freeman, who
stated that appellant would not be returning to work due to his medical condition. In a March 26,
2007 report, Dr. Freeman mentioned numerous incidents that allegedly occurred since appellant
returned to the pharmacist position. He stated that while he could not comment on the veracity
of appellant’s beliefs and suspected there was some misinterpretation, he was convinced that
there have been intended actions to harass, embarrass, demean and single him out for
disciplinary action. Dr. Freeman stated that those events and beliefs have contributed strongly to
a relapse of appellant’s depression and anxiety symptoms and his inability to work. He noted
that while appellant was able to return to the pharmacy, he began to reexperience symptoms
within a year of his return and those symptoms persisted and increased despite medication
5

In September 24, 2010 and March 27, 2011 letters, counsel requested that OWCP adjudicate appellant’s
recurrence claim. He noted that while the events surrounding appellant’s reported recurrence may not have
constituted a new injury, appellant’s reaction and increased symptomatology were either made possible by or greatly
exacerbated by the prior work injury which had not resolved. He argued that appellant’s disability from his
worsening symptoms was consequential to the accepted injury and compensable. OWCP responded to the
arguments and explained why appellant did not qualify for a consequential injury decision.
6

See supra note 4.

3

changes and increased frequency of visits. Also submitted was a March 2, 2007 treatment note
from Dr. B.J. Dunn, a social worker, who opined “his symptoms are the result of current work[-]
related stressors.”
By decision dated February 8, 2012, OWCP denied appellant’s recurrence claim. It
found there was new exposure to the work environment that allegedly caused the illness, as well
as intervening factors that broke the chain of causation from the original injury and the alleged
recurrence.
LEGAL PRECEDENT
OWCP’s regulations define the term recurrence of disability as an inability to work after
an employee has returned to work, caused by a spontaneous change in a medical condition,
which had resulted from a previous injury or illness without an intervening injury or new
exposure to the work environment that caused the illness.7 When an employee, who is disabled
from the job he or she held when injured on account of employment-related residuals, returns to
a light-duty position or the medical evidence establishes that the employee can perform the
light-duty position, the employee has the burden to establish by the weight of the reliable,
probative and substantial evidence, a recurrence of total disability and to show that he or she
cannot perform such light duty. As part of this burden, the employee must show a change in the
nature and extent of the injury-related condition or a change in the nature and extent of the
light-duty job requirements.8 To establish a change in the nature and extent of the injury-related
condition, there must be probative medical evidence of record. The evidence must include a
medical opinion, based on a complete and accurate factual and medical history and supported by
sound medical reasoning, that the disabling condition is causally related to employment factors.9
An award of compensation may not be based on surmise, conjecture or speculation or on
appellant’s unsupported belief of causal relation.10 OWCP’s procedure manual provides that a
recurrence of disability also includes worsening of disability due to an accepted consequential
injury.11
ANALYSIS
OWCP accepted that appellant sustained a depressive reaction due to an October 1999
back injury and his continued work at the outpatient pharmacy window with no assistance. On
April 12, 2004 appellant returned to work in a modified-duty capacity as a telephone health-line
assistant or patient services assistant. By decision dated June 10, 2004, OWCP terminated his
wage-loss compensation benefits as Dr. Freeman’s opinion established that appellant could
7

20 C.F.R. § 10.5(x); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter
2.1500.3.b(a)(1) (May 1997). See also Phillip L. Barnes, 55 ECAB 426 (2004).
8

Carl C. Graci, 50 ECAB 557 (1999); see also Terry R. Hedman, 38 ECAB 222 (1986).

9

Maurissa Mack, 50 ECAB 498 (1999).

10

Alfredo Rodriguez, 47 ECAB 437 (1996).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(b) (May 1997).

4

return to work full time as a pharmacist at the Montgomery campus and there was no continuing
disability from the work injury. Effective March 6, 2006 appellant began working full time as a
pharmacist. He stopped work February 2, 2007 and received disability retirement effective
September 15, 2007.
Appellant claimed a recurrence of disability commencing
October 26, 2006. As noted, the claim was initially adjudicated as a new claim under case File
No. xxxxxx975 as new or intervening work factors were involved.12
Appellant has not alleged a change in the nature and extent of his light-duty job
requirements and the record indicates that he returned to regular duties before the onset of the
claimed recurrence of disability. Instead, he attributed his recurrence of disability to a change in
the nature and extent of his employment-related conditions. Appellant must provide medical
evidence to establish that he was disabled due to a worsening of his accepted work-related
conditions. The Board finds that he has not met his burden of proof in establishing his claim.
Appellant submitted medical reports from Dr. Freeman attributing his psychiatric
symptoms to workplace incidents arising on or after October 26, 2006 when he was working as a
pharmacist. In his February 1, 2008 report, Dr. Freeman described several incidents of concern
to appellant since his return to work in the pharmacy. He noted that old concerns from
appellant’s previous episodes reemerged and intensified prior to appellant’s stopping work and
claiming disability. Dr. Freeman opined that the second workers’ compensation claim was
directly and unequivocally connected to the first claim and represented one continuous episode
of mental illness that remitted sufficiently to allow appellant to return to work briefly before the
events in the fall 2006. However he did not provide medical rationale supporting a spontaneous
change in the accepted emotional condition.13 Rather Dr. Freeman opined that the subsequent
occupational incidents caused the return of psychiatric symptoms, breaking the chain of
causation from the October 1999 incident. He did not explain how there was a spontaneous
change in his accepted condition. Thus, Dr. Freeman’s opinion is insufficient to meet appellant’s
burden of proof.
In his March 26, 2007 note, Dr. Freeman mentioned incidents that allegedly occurred
since appellant returned to the pharmacist position and from which appellant was convinced that
he was targeted for harassment and discipline. He opined that those events and beliefs
contributed strongly to a relapse of appellant’s depression and anxiety and his disability.
Dr. Freeman did not provide rationale relating appellant’s disability to the events of 1999; rather
he relates his emotional condition to the alleged intervening events since his return to the
pharmacist position. Thus, his opinion is insufficient to meet appellant’s burden of proof.14 In
his September 12, 2010 report, Dr. Freeman opined that since the original injury of October 1999
appellant had not returned to his normal baseline and continued having depression and anxiety.
While Dr. Freeman opined that appellant’s depression and anxiety symptoms rendered him
unable to work as a pharmacist, he did not provide reasoning to explain how the disability was
12

See supra note 4.

13

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
14

Bryant F. Blackmon, 56 ECAB 752 (2005).

5

the result of a spontaneous change in his accepted condition. In his March 15, 2007 note,
Dr. Freeman stated that appellant would not be returning to work due to his medical condition.
However, he did not specifically address how appellant’s disability was due to a spontaneous
change in the accepted emotional condition. Thus, Dr. Freeman’s opinion is insufficient to meet
appellant’s burden of proof.
Appellant also provided as March 2, 2007 treatment note from Dr. Dunn, a social worker.
However, this report is not competent medical evidence as a social worker is not a “physician” as
defined by FECA.15 Appellant presented no other medical evidence from a physician explaining
the reasons why his claimed recurrence of disability was causally related to his accepted injury
that started in 1999.
Appellant did not submit sufficient rationalized medical evidence to establish the claimed
recurrence of disability. Therefore, OWCP properly denied his claim.
On appeal, counsel contends the medical record establishes that the accepted emotional
condition caused by the October 1, 1999 accepted incident was not affected by subsequent
intervening work factors. As set forth above, appellant’s physician did not support a
spontaneous change in the accepted emotional conditions as of October 26, 2006. Rather,
Dr. Freeman generally indicated that subsequent occupational incidents caused the return of
psychiatric symptoms, breaking the chain of causation stemming from the October 1999
incident.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish a recurrence
of disability commencing October 26, 2006 causally related to his accepted emotional condition.

15

K.W., 59 ECAB 271 (2007). See 5 U.S.C. § 8101(2). This subsection defines the term “physician.” See also
Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board held that medical opinion, in general, can only be
given by a qualified physician).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 8, 2012 is affirmed.
Issued: November 2, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.C., Appellant
and
DEPARTMENT OF THE NAVY,
UNITED STATES NAVAL SHIP COMET,
FPO, San Francisco, CA, Employer
__________________________________________

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

Docket No. 20-0566
Issued: March 8, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 13, 2020 appellant filed a timely appeal from a November 22, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case. 2
ISSUE
The issue is whether OWCP properly denied appellant’s request for authorization of home
equipment and modifications.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the November 22, 2019 decision, OWCP received additional
evidence. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence
in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be
considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from
reviewing this additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
On January 6, 1968 appellant, then a 27-year-old seaman, filed a notice of injury or
occupational disease claim (Form CA-1) alleging that on January 5, 1968 he sustained a broken
left arm and a fractured left patella as a result of a motorcycle accident in Vietnam while in the
performance of duty. OWCP accepted the claim for skull fracture with convulsive disorder, left
wrist fracture, left patella open fracture, left bicep laceration, right hip fracture, and traumatic right
hip osteoarthritis. 3 The record reflects that OWCP paid appellant wage-loss compensation on the
periodic rolls as of June 16, 2002. On August 8, 2013 appellant underwent OWCP-authorized
total right hip replacement surgery.
In an August 8, 2019 letter, appellant requested that OWCP grant authorization for a
handicap bathroom extension, a new chair lift with a table, a ramp to access the rear of his property,
widen internal doors, and level and resurface areas around his house to facilitate his use of a
wheelchair, as recommended by his occupational therapist in an accompanyin g June 6, 2019
medical report.
Appellant also submitted an undated quote and quotes dated January 13, 18, June 16, and
August 8, 2019 for the recommended home modifications.
In an August 14, 2019 development letter, OWCP advised appellant that it required
periodic medical reports in cases in which compensation was being paid for prolonged disability.
It requested that he submit an opinion from his physician regarding the status of his accepted
condition, his ability to return to work, and his current medical treatment plan. OWCP afforded
appellant 30 days to respond.
A memorandum of telephone call (Form CA-110) dated September 4, 2019 reflects that
OWCP requested that appellant submit a report from his treating physician explaining the necessity
of an outdoor wheelchair ramp since he was not currently using a wheelchair.
OWCP received medical evidence from Dr. Aidan F. Lynch, an attending orthopedic
surgeon. In an August 27, 2019 attending physician’s report (Form CA-20), Dr. Lynch noted
appellant’s accepted conditions. He advised that appellant sustained multiple injuries and stiff
lower limbs that were caused or aggravated by the January 5, 1968 employment injury. Dr. Lynch
indicated that appellant was totally disabled from work as of May 1, 1986 and that he was
becoming increasingly disabled.
In a September 4, 2019 narrative report, Dr. Lynch noted appellant’s history of injury on
January 5, 1968. He also noted his current complaints of persistent shoulder discomfort.
Dr. Lynch observed that appellant’s ability to remain active was gradually deteriorating, he walked
with a shufﬂing gait and used a stick to mobilize, and his ability to walk was becoming more
restricted especially on rough ground or when attempting to climb steps or stairs. He further
observed that appellant was physically unable to work and he had to drive an automatic car.
Dr. Lynch reported findings on physical examination. He indicated that in 2013 appellant
3

By decision dated January 14, 1972, OWCP granted appellant a schedule award for 10 percent permanent
impairment of the left arm, 55 percent permanent impairment of the left leg, a nd 12 percent permanent impairment of
the right leg.

2

underwent total right hip replacement surgery to convert a fused hip to a hip arthroplasty.
Dr. Lynch indicated that the operation provided him with improved hip mobility, but he still had
a signiﬁcant degree of stiffness in his hip in view of his previous arthrodesis. He advised that no
further improvement was anticipated regarding appellant’s hip function. Additionally, Dr. Lynch
advised that appellant had arthrodesis to his left knee, which was in a ﬁxed position, discomfort in
his back, which appeared to be associated with stiffness in both his right hip and left knee, and
restricted movement of both shoulders. He related that, in light of appellant’s injury, he was
becoming increasingly disabled in his ability to remain active. Dr. Lynch was also no longer able
to climb steps or stairs. He determined that appellant was 100 percent permanently disabled from
work. Dr. Lynch related that appellant was also becoming increasingly disabled from performing
activities of daily living (ADLs). He advised that his house required indoor modifications to
provide access to his bedroom and toilet. Dr. Lynch further advised that outdoor modifications,
which included a ramp to gain entrance into his house were required as appellant had to avoid
using steps or stairs and likely required a wheelchair in the future.
Dr. Lynch, in an October 1, 2019 addendum letter, advised that appellant had restricted
mobility as a result of his multiple injuries, which required indoor and outdoor modifications to
his house. He requested that OWCP grant authorization for such modifications. Dr. Lynch noted
that the ground at appellant’s house was quite rough and he was unable to walk on uneven surfaces.
As such, he maintained that a solid surface, either concrete or tarmac, was required. Dr. Lynch
also maintained that ramps instead of steps would be required at the entrance to appellant’s house.
He indicated that the front door and indoors of the house needed to be widened to allow wheelchair
access in the future. Dr. Lynch again opined that appellant remained permanently totally disabled
from work.
OWCP received additional estimates for a handicap bathroom and other home
modifications, including a wheelchair ramp with a platform and widened front and rear doorways.
By decision dated October 11, 2019, OWCP granted authorization for modification of
appellant’s existing bathroom and other indoor home modifications.
In an October 25, 2019 decision, OWCP denied authorization for a wheelchair ramp and
other outdoor home modifications, finding that the medical evidence of record was insufficient to
establish that the requested equipment and modifications were medically necessary to address the
effects of the January 5, 1968 employment injury.
By decision dated November 22, 2019, OWCP reissued the October 25, 2019 decision.
LEGAL PRECEDENT
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 monthly compensation. 4
While OWCP is obligated to pay for treatment of employment-related conditions, the employee
4

5 U.S.C. § 8103; see R.P., Docket No. 17-0428 (issued April 19, 2018); Thomas W. Stevens, 50 ECAB
288 (1999).

3

has the burden of proof to establish that the expenditure is incurred for treatment of the effects of
an employment-related injury or condition. 5
In interpreting section 8103, the Board has recognized that OWCP has broad discretion in
approving services, with the only limitation on OWCP’s authority being that of reasonableness.6
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 evid ence could be construed so as to
produce a contrary factual conclusion.7
The Board has previously noted that OWCP’s procedures provide for housing
modifications under limited circumstances. 8 To be eligible for housing modifications, the claimant
must be severely restricted in terms of mobility, functionality, and independence in normal living
functions, on a permanent basis, due to the work-related injury. Examples are impairments that
require the use of a prosthesis, wheelchair, motorized scooter, leg braces, crutches, ca ne, or other
self-help devices. Such medical conditions include quadriplegia, paraplegia, amputation, total loss
of use of limbs, blindness, and profound deafness bilaterally.9
Before considering the technicalities of housing modification proposals, a determination
must be made on the medical necessity of the requested modification. There are several aspects
to consider when reviewing the evidence of record:
“(1) Does the level of impairment rise to the level delineated in the eligibility
section above?
“(2) Does the medical evidence support that the claimant has restrictions or
physical limitations which necessitate the modification?
“(3) Are these restrictions caused by the accepted work-related condition?
“(4) Does the physician provide detailed findings and rationale for the opinion that
the claimant’s work injury has caused restrictions which necessitate the requested

5

See R.P., id.; Kennett O. Collins, Jr., 55 ECAB 648 (2004); Zane H. Cassell, 32 ECAB 1537 (1981).

6
See B.I., Docket No. 18-0988 (issued March 13, 2020); see also 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).
7

D.S., Docket No. 18-0353 (issued May 18, 2020); P.L., Docket No. 18-0260 (issued April 14, 2020); L.W., 59
ECAB 471 (2008).
8

R.K., Docket No. 14-1238 (issued September 23, 2014).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Housing and Vehicle Modifications, Chapter 2.1800.3
(October 2009).

4

modification? This should come from a physician who is a recognized authority in
the appropriate medical specialty.”10
ANALYSIS
The Board finds that OWCP properly appellant’s request for authorization of home
equipment and modifications.
OWCP accepted that on January 5, 1968 appellant sustained a work-related skull fracture
with convulsive disorder, left wrist fracture, left patella open fracture, left bicep laceration, right
hip fracture, and traumatic right hip osteoarthritis. Consequently, it granted authorization for
appellant’s handicap bathroom and other indoor home modifications, but denied authorization for
a wheelchair ramp and other outdoor home modifications.
In a September 4, 2019 report and October 1, 2019 addendum letter, Dr. Lynch requested
that OWCP authorize modification to the outside of appellant’s existing home, noting that he
would benefit from handicap accessible equipment. He noted that appellant’s current and
worsening ability to walk was restricted especially when he walked on rough or uneven ground
and attempted to climb steps or stairs. Dr. Lynch also noted that he had increasing difficulty
performing ADLs. He maintained that appellant would “likely” needed a wheelchair ramp to enter
his house because he should avoid using steps or stairs. As such, Dr. Lynch also related that the
front door and indoors of appellant’s house required widening to allow for the use of a wheelchair
in the future. Additionally, he indicated that a solid surface, such as concrete or tarmac, was
required outside appellant’s house due to his inability to walk on uneven surfaces. Dr. Lynch
found that appellant’s permanent total disability from work resulted from the January 5, 1968
employment injury, which required total right hip replacement surgery in 2013.
To establish the medical necessity of the requested modification, Dr. Lynch was required
to explain how appellant’s present inability to negotiate steps, requiring a wheelchair ramp, and to
walk on uneven ground, requiring a solid surface, were caused by the accepted employment injury
that occurred 51 years prior. The Board finds that Dr. Lynch failed to provide a rationalized
medical opinion explaining why the requested the wheelchair ramp and other home modifications
were medically necessary.11 Dr. Lynch did not provide the necessary medical explanation as to
how the wheelchair ramp and other outdoor home modifications would cure, reduce the period of
disability, or aid in lessening the amount of monthly compensation. 12
As noted, the only limitation on OWCP’s authority is approving or disapproving services
under FECA is one of reasonableness. 13 As the medical evidence submitted provided insufficient
10

Id. at Chapter 2.1800.4.

11

Supra note 4; see also O.M., Docket No. 20-0640 (issued April 19, 2021); D.K., Docket No. 20-0002 (issued
August 25, 2020); G.B., Docket No. 18-1444 (issued March 25, 2019); M.B., Docket No. 17-1679 (issued February 8,
2018); R.K., Docket No. 14-1238 (issued September 23, 2014) (medical conclusions unsupported by rationale are of
diminished probative value).
12

Supra note 3.

13

Supra note 5.

5

explanation of medical necessity, the Board finds that OWCP properly denied appellant’s requests
under section 8103 of FECA.14
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 properly denied appellant’s request for authorization of home
equipment and modifications.
ORDER
IT IS HEREBY ORDERED THAT the November 22, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 8, 2022
Washington, DC

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

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

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

14

Supra note 10.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.W., Appellant
and
DEPARTMENT OF JUSTICE, U.S.
PENITENTIARY, Florence, CO, Employer
__________________________________________

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

Docket No. 19-0963
Issued: January 2, 2020

Case Submitted on the Record

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

JURISDICTION
On April 1, 2019 appellant filed a timely appeal from a November 2, 2018 merit decision
of the Office of Workers’ Compensation Programs. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review the merits of this case.
ISSUE
The issue is whether OWCP has met its burden of proof to reduce appellant’s
compensation, effective November 2, 2018, pursuant to 5 U.S.C. § 8113(b) and 20 C.F.R. § 10.519
for failure to cooperate with vocational rehabilitation without good cause.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts and circumstances of the case
as presented in the prior Board orders and decision are incorporated herein by reference. The
relevant facts are as follows.
On April 6, 2002 appellant, then a 44-year-old case manager, filed a traumatic injury claim
(Form CA-1) alleging that, on that day, he sustained a deep cut on his right leg when a wall locker
fell on his right leg while in the performance of duty. He stopped work on the date of injury and
returned on April 17, 2002. OWCP accepted the claim for right ankle sprain and right leg
laceration. Appellant filed a second Form CA-1 on May 9, 2002 alleging that he injured his left
shoulder, back, and right leg as a result of the accepted April 6, 2002 employment-related injuries.
OWCP further accepted the claim for left shoulder, lumbar, and thoracic strains.3 It authorized
repair of the chronic rotator cuff tear acromioplasty of the left shoulder, which was performed on
July 2, 2003 and left shoulder irrigation and debridement, which were performed on August 14
and 16, 2003.
OWCP subsequently expanded the acceptance of appellant’s claims to include right rotator
cuff sprain/strain, bilateral knee medial meniscus tear and localized secondary osteoarthritis,
venous embolism and thrombosis of deep vessels of the lower extremity, not otherwise specified,
pulmonary embolism and infarction, and lumbar spinal stenosis. It paid him wage-loss
compensation for intermittent periods of disability dating back to August 14, 2003.
In an attending physician’s report (Form CA-20) dated January 5, 2018, Dr. Anjumun
Sharma, an attending family practitioner, diagnosed left knee osteoarthritis, right knee total knee
arthroplasty, and left and right shoulder rotator cuff repair due to the accepted April 6, 2002
employment injuries. He released appellant to return to light-duty work with permanent
restrictions as of the date of his examination.
On February 21, 2018 OWCP referred appellant to a certified vocational rehabilitation
counselor based on Dr. Sharma’s work restrictions. In letters dated February 27 and March 12,
2018, the vocational rehabilitation counselor requested that he complete a work and education
form. The vocational rehabilitation counselor further requested that appellant contact her upon his
receipt of this correspondence to schedule an appointment at her office. In an e-mail dated
March 21, 2018 and preliminary reports dated March 26 to September 24, 2018, she noted
contacting appellant to develop a rehabilitation plan; however, he did not respond. On March 26,
2018 the vocational rehabilitation counselor noted in a rehabilitation action report (Form OWCP44) that he had obstructed the rehabilitation process by failing to appear at scheduled meetings.
She indicated that appellant had not responded to her two written requests for contact so that an
initial interview could be scheduled. The vocational rehabilitation counselor related that neither
letter had been returned as nondeliverable. She further related that when she followed-up by

2

Order Remanding Case, Docket No. 05-0519 (issued June 10, 2005); Order Remanding Case, Docket No. 051261 (issued February 1, 2006); Docket No. 07-1662 (issued January 15, 2009).
3

OWCP assigned the April 6, 2002 traumatic injury claim OWCP File No. xxxxxx652. It assigned the May 9,
2002 traumatic injury claim OWCP File No. xxxxxx814. OWCP has administratively combined these claims, with
OWCP File No. xxxxxx652 serving as the master file.

2

telephone, appellant’s telephone system informed her that the memory was full and, thus, she could
not leave a message.
OWCP, in a letter dated October 2, 2018, notified appellant of the penalties under 5 U.S.C.
§ 8113(b) and 20 C.F.R. § 10.519 for failing to cooperate with vocational rehabilitation without
good cause. It noted that he had not responded to his vocational rehabilitation counselor’s letters
and telephone calls. OWCP advised appellant that the initial stages of vocational rehabilitation
included interviews, testing, counseling, guidance, and work evaluations. It further advised him
that, if he failed or refused to participate in vocational rehabilitation without good cause, his
compensation benefits would be reduced to zero and that this reduction would continue until he
complied with OWCP’s directions concerning rehabilitation. OWCP afforded appellant 30 days
to contact OWCP and his rehabilitation counselor to make a good faith effort to participate in the
rehabilitation effort designed to return him to gainful employment. It informed him that, if he
believed he had a good reason for not participating in the rehabilitation effort, he should respond
within 30 days, with reasons for noncompliance, and submit evidence in support of his position.
OWCP noted that, if appellant did not comply with the instructions contained in the letter within
30 days, the rehabilitation effort would be terminated and action would be taken to reduce his
compensation under 5 U.S.C. § 8113(b) and 20 C.F.R. § 10.519.
OWCP thereafter received a medical report dated October 19, 2018 from Dr. David S.
Matthews, a Board-certified orthopedic surgeon. Dr. Matthews noted that appellant was retired
and related his history of a 2002 left knee injury sustained while working as correctional officer,
right knee conditions, and medical treatment. He reported examination findings, and provided
assessments of left knee pain and unilateral primary osteoarthritis, and the presence of right
artificial knee joint, right. Dr. Matthews also recommended a knee replacement.
By decision dated November 2, 2018, OWCP reduced appellant’s compensation to zero,
effective that date, pursuant to 5 U.S.C. § 8113(b) and 20 C.F.R. § 10.519, for his failure to
cooperate with vocational rehabilitation without good cause.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened before it may terminate or modify compensation benefits.4 Section 8104(a) of FECA
provides that OWCP may direct a permanently disabled employee to undergo vocational
rehabilitation.5 Section 8113(b) of FECA provides that if an individual, without good cause, fails
to apply for and undergo vocational rehabilitation when so directed under section 8104 of FECA,
OWCP, “after finding that in the absence of the failure the wage-earning capacity of the individual
would probably have substantially increased, may reduce prospectively the monetary
compensation of the individual in accordance with what would probably have been his [or her]
wage-earning capacity in the absence of the failure,” until the individual in good faith complies
with the direction of OWCP.6

4

Betty F. Wade, 37 ECAB 556, 565 (1986).

5

5 U.S.C. § 8104(a).

6

Id. at § 8113(b).

3

OWCP’s regulations, at 20 C.F.R. § 10.519, provide in pertinent part:
“If an employee without good cause fails or refuses to apply for, undergo,
participate in, or continue to participate in a vocational rehabilitation effort when
so directed, OWCP will act as follows -(b) Where a suitable job has not been identified, because the failure or
refusal occurred in the early but necessary stages of a vocational
rehabilitation effort (that is, meetings with OWCP nurse, interviews,
testing, counseling, functional capacity evaluations [(FCE)], and work
evaluations) OWCP cannot determine what would have been the
employee’s wage-earning capacity.
(c) Under the circumstances identified in paragraph (b) of this section, in
the absence of evidence to the contrary, OWCP will assume that the
vocational rehabilitation effort would have resulted in a return to work with
no loss of wage-earning capacity, and OWCP will reduce the employee’s
monetary compensation accordingly (that is, to zero). This reduction will
remain in effect until such time as the employee acts in good faith to comply
with the direction of OWCP.”7
OWCP’s procedures state that specific instances of noncooperation include a failure to
appear for the initial interview, counseling sessions, a functional capacity evaluation, other
interviews conducted by the rehabilitation counselor, vocational testing sessions, and work
evaluations, as well as lack of response or inappropriate response to directions in a testing session
after several attempts at instruction.8
ANALYSIS
The Board finds that OWCP has met its burden of proof to reduce appellant’s
compensation, effective November 2, 2018, pursuant to 5 U.S.C. § 8113(b) and 20 C.F.R. § 10.519
for his failure to cooperate with vocational rehabilitation without good cause.
Upon receiving medical evidence that appellant was not totally disabled for all work, but
was capable of performing light-duty work with permanent restrictions, OWCP properly referred
him to vocational rehabilitation services on February 21, 2018. The rehabilitation counselor
reported that appellant had twice failed to respond to her February 27 and March 12, 2018 letters
requesting that he contact her to schedule an initial interview. She also reported that her attempt
to follow-up with him by telephone was unsuccessful because his telephone memory was full and
she was unable to leave a message. Further, in an October 2, 2018 letter, OWCP advised appellant
of the need to participate in vocational rehabilitation and the consequences of not participating
under section 8113(b) of FECA and section 10.519 of its regulations. OWCP afforded him 30
days to participate in vocational rehabilitation services or provide good cause for his
noncompliance. However, appellant did not contact OWCP or his rehabilitation counselor prior
7

20 C.F.R. § 10.519.

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Vocational Rehabilitation Services, Chapter 2.813.17(b)
(February 2011).

4

to the November 2, 2018 reduction of his compensation to clearly express his intent to participate
in the vocational rehabilitation effort, nor did he provide good cause for such noncooperation.
Appellant’s failure without good cause to participate in preliminary communications with
his rehabilitation counselor regarding his work capacity constitutes a failure to participate in the
early but necessary stages of a vocational rehabilitation effort.9 OWCP’s regulations provide that,
in such a case, it cannot be determined what would have been the employee’s wage-earning
capacity had there been no failure to participate and it is assumed, in the absence of evidence to
the contrary, that the vocational rehabilitation effort would have resulted in a return to work with
no loss of wage-earning capacity.10 Appellant did not submit evidence to refute such an
assumption and OWCP had a proper basis upon which to reduce his disability compensation to
zero.
The only evidence submitted was an October 19, 2018 report from Dr. Matthews.
Dr. Matthews noted appellant’s history of a 2002 work-related left knee injury, right knee
conditions and medical treatment, discussed examination findings, opined that he had significant
arthritis of the left knee, and recommended knee replacement. He did not, however, offer an
opinion finding that appellant was able to return to work or was unable to participate in vocational
rehabilitation.
Appellant was given appropriate notification of the sanctions for continuing to refuse to
cooperate with the rehabilitation program in the early stages, but failed, without good cause, to
comply with these rehabilitation efforts. The Board finds, therefore, that OWCP properly reduced
his compensation benefits to zero for his failure to cooperate with vocational rehabilitation without
good cause. Accordingly, the reduction will remain in effect until such time as appellant acts in
good faith to comply with the direction of OWCP.11
On appeal appellant contends that he was unable to attend vocational rehabilitation in
Parker, Colorado because it was located 100 miles one way from his home in Pueblo, Colorado,
and he did not have a working motor vehicle. However, he did not inform OWCP or his vocational
rehabilitation counselor of these reasons why he could not attend the early stages of vocational
rehabilitation prior to the reduction of his compensation on November 2, 2018.
Appellant further contends on appeal that his willingness to undergo vocational testing on
November 10, 2018 showed his good faith participation in vocational rehabilitation efforts.
However, regardless of whether appellant was willing to participate in vocational testing, he failed
to participate in vocational rehabilitation efforts prior to the reduction of his compensation on
November 2, 2018, as discussed above.12
Additionally, appellant contends that he was totally disabled from work due to his left
shoulder and knee which required replacement, lumbar degenerative disc disease and herniated
9

20 C.F.R. § 10.519(b). See also R.M., Docket No. 16-0011 (issued February 11, 2016); Conard Hightower, 54
ECAB 796 (2003).
10

Id. at § 10.519(c).

11

See supra note 6.

12

S.M., Docket No. 15-1236 (issued February 18, 2016).

5

disc, bilateral carpal tunnel syndrome, and right knee condition. For the reasons stated above,
however, the Board finds that OWCP properly reduced appellant’s compensation to zero.
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 has met its burden of proof to reduce appellant’s
compensation, effective November 2, 2018, pursuant to 5 U.S.C. § 8113(b) and 20 C.F.R. § 10.519
for his failure to cooperate with vocational rehabilitation without good cause.
ORDER
IT IS HEREBY ORDERED THAT the November 2, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 2, 2020
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
DEPARTMENT OF THE INTERIOR
NATIONAL PARK SERVICE, Washington, DC,
Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1042
Issued: November 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 April 11, 2019 appellant, through counsel, filed a timely appeal from a November 9,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a right knee
condition causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances of the case
as set forth in the prior Board decision are incorporated herein by reference. The relevant facts are
as follows.
On June 3, 2015 appellant, then a 58-year-old pipefitter, filed an occupational disease claim
(Form CA-2) alleging that he developed knee osteoarthritis as a result of his federal employment
duties. He reported that his injury was a result of the repetitious stress to his bilateral knees from
23 years of work servicing 430 plumbing fixtures. Appellant first became aware of his condition
on March 1, 2010 and of its relationship to his federal employment on February 1, 2015. He did
not stop work. OWCP initially denied the claim by decision dated September 8, 2015 as appellant
had not established that his diagnosed medical condition was causally related to the accepted
employment factors.
In a March 29, 2016 narrative report, Dr. Evan Crain, a Board-certified orthopedic surgeon,
reported that he initially evaluated appellant on December 16, 2015 for bilateral knee pain. He
reported that appellant had worked for over 23 years, initially as a plumber and later as a pipefitter.
Dr. Crain noted that appellant’s work required frequent squatting, kneeling, bending, and working
on his knees. He reported that appellant personally serviced 430 plumbing fixtures over the course
of 23 years, including toilets, sinks, and water fountains, which required that appellant be on his
knees to perform the work. Dr. Crain discussed appellant’s x-rays which revealed progressive
deterioration of the medial compartment in both knees as a result of his employment activities over
the years. He opined that, as a result of appellant’s employment duties, appellant developed a
meniscus tear of the right knee, which required arthroscopy, and which had caused deterioration
of the medial joint space that had collapsed to bone-on-bone contact. Based on these findings,
Dr. Crain concluded that there was a direct causal relationship between appellant’s
symptomatology and his work activities.
Following further development of the record, by decisions dated July 28, and
November 17, 2016, OWCP affirmed the denial of the claim.
On January 19, 2017 appellant, through counsel, again requested reconsideration and
submitted a January 9, 2017 report from Dr. Crain. In the January 9, 2017 report, Dr. Crain noted
submission of his prior March 29, 2016 report which summarized his findings and reviewed
appellant’s work activities. He opined that appellant experienced bilateral, right greater than left,
knee pain aggravated by his work activities, which he had performed over a 23-year time frame.
Dr. Crain also opined that those specific work activities caused further deterioration of his knees
and an increase in his symptomatology. He reported that appellant had undergone a previous right
knee arthroscopy for a tear of his medial meniscus. Dr. Crain explained that the tearing of the
3

Docket No. 17-1870 (issued April 11, 2018).

2

meniscus caused further deterioration of the knee joint to the extent that appellant had loss of shock
absorber on the medial side. He noted an exacerbation and worsening of appellant’s symptoms.
Dr. Crain reviewed appellant’s prior medical reports which documented prior knee pain.
Appellant was evaluated by Dr. Ricardo O. Pyfrom, a Board-certified orthopedic surgeon, on
November 27, 2012 due to complaints of right knee pain for several years. He had also related a
history that his right knee had been struck by a car 30 years ago. Appellant had previously been
diagnosed with arthritis and had worn knee braces. A prior magnetic resonance imaging (MRI)
scan was suggestive of a medial meniscus tear and arthroscopic surgery was recommended. On
April 3, 2013 appellant underwent surgery which revealed a large complex tear of the medial
meniscus. Surgery further revealed degenerative changes of the medial femoral condyle grade 3
and medial tibial plateau grade 4, as well as a chronically torn anterior cruciate ligament and
chondromalacia grade 3 of the patella. A partial medial meniscectomy and chondroplasty were
performed. Dr. Crain reported that appellant returned to work approximately four weeks
postsurgery. In 2014, appellant began treatment with a Dr. Joly who administered multiple
injections and provided him with a knee brace. Dr. Crain reported that he initially evaluated
appellant in December 2015.
Dr. Crain noted that, after review of subsequently provided medical records, there was no
change in his opinion with regard to appellant’s condition. Appellant’s medical history reflected
that, following his April 3, 2013 surgery, he did not experience a distinct injury, but rather had a
progressive increase in knee pain which he attributed to his work activities. After having reviewed
the nature of appellant’s employment, job description, and self-reported work activities, Dr. Crain
opined that appellant’s employment duties aggravated an underlying degenerative condition. He
reported that, if appellant were in a different job that did not require the employment activities
required of him, appellant would not have experienced the symptoms necessitating his current
treatment. Dr. Crain concluded that appellant developed further deterioration of his knees and an
increase in symptomatology. He opined that the need for treatment was, therefore, related to
appellant’s work activities.
By decision dated April 25, 2017, OWCP denied modification of its November 17, 2016
decision, finding that the medical evidence of record failed to establish that appellant’s diagnosed
conditions were causally related to his accepted factors of his federal employment.
On September 5, 2017 appellant, through counsel, requested an appeal before the Board.
By decision dated April 11, 2018, the Board affirmed OWCP’s April 25, 2017 decision, finding
that appellant had not met his burden of proof to establish a bilateral knee condition causally related
to the accepted factors of his federal employment.4
On August 14, 2018 appellant, through counsel, requested reconsideration and submitted
a July 25, 2018 medical report from Dr. Crain.
In his July 25, 2018 report, Dr. Crain reported that he last evaluated appellant on May 29,
2018 for a follow-up due to continued severe right medial knee pain. He reported that appellant
experienced a lot of pain with prolonged standing, getting up from a seated position, and going up
4

Id.

3

and down stairs, noting that the pain was localized to the medial aspect of the knee. Physical
examination revealed varus alignment because appellant was bone-on-bone, pain with varus
compression of the medial compartment, and trace swelling. Dr. Crain noted review of x-rays
which showed that appellant’s right knee was completely bone-on-bone. He further noted that
there was cupping and spur formation on the patella and the left knee showed minor narrowing.
Dr. Crain recommended right total knee replacement. He opined that, based on appellant’s
employment duties, he sustained a tear of the medial meniscus that led to the deterioration of the
medial compartment. Dr. Crain explained that the medial meniscus was an important shock
absorber to the medial aspect of the knee. He opined that, due to this repetitive positional
requirement, appellant sustained a medial meniscus tear during the scope of his employment in
which he performed this specific mechanism of activity for many years. Dr. Crain noted that, once
the medial meniscus tore, appellant lost the shock absorber in the medial compartment of the knee
and this caused deterioration and further deterioration of the medial compartment of the knee to
the extent that appellant was now bone-on-bone. Dr. Crain reported that this mechanism was
clearly supported in orthopedic practice as a common mechanism of developing post-traumatic
arthritis of the knee. He explained that kneeling, squatting, bending, stooping, and twisting
increase pressure on the meniscus and when done repetitively or with one single event, a tear can
occur. Based on the tear and the lack of shock absorption, Dr. Crain opined that appellant’s knee
progressed to bone-on-bone contact. He concluded that, as a result of appellant’s job activities,
the progression of appellant’s knee condition occurred, causing him to become symptomatic, and
require treatment including knee replacement surgery.
By decision dated November 9, 2018, OWCP denied modification of its prior decision,
finding that the evidence of record was insufficient to establish causal relationship between the
accepted employment factors and the diagnosed right knee conditions.
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,5 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.6 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.7
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, appellant’s burden of proof requires submission of the following: (1) a
factual statement identifying employment factors alleged to have caused or contributed to the
5

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
6

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

4

presence or occurrence of the disease or condition; (2) medical evidence establishing the presence
or existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.8
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.9 The opinion of the physician must be based on a
complete factual and medical background, must be one of reasonable medical certainty, and must
be supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by appellant.10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a right knee
condition causally related to the accepted factors of his federal employment.
Preliminarily, the Board notes that it is unnecessary for it to consider the evidence appellant
submitted prior to the issuance of OWCP’s April 25, 2017 decision because the Board considered
that evidence in its April 11, 2018 decision and found it insufficient to establish causal relationship.
Findings made in prior Board decisions are res judicata absent any further review by OWCP under
section 8128 of FECA.11
In further support of his claim, appellant submitted a July 25, 2018 medical report from
Dr. Crain discussing his right knee condition. The Board finds that the opinion of Dr. Crain is not
well rationalized and fails to establish appellant’s occupational disease claim.12 In his July 25,
2018 report, Dr. Crain opined that, based on appellant’s employment duties, he sustained a tear of
the medial meniscus that led to the deterioration of the medial compartment. He noted that, once
the medial meniscus tore, appellant lost the shock absorber in the medial compartment of the knee
and this caused deterioration and further deterioration of the medial compartment of the knee to
the extent that he was now bone-on-bone. The Board notes that Dr. Crain’s July 25, 2018 medical
report is largely duplicative of the opinions expressed in his prior reports.13 While Dr. Crain
provided some additional discussion pertaining to mechanism of injury, he failed to clearly
describe the specific physiological mechanism through which specific work activities could have
caused or aggravated appellant’s diagnosed medical condition. He explained that kneeling,
squatting, bending, stooping, and twisting increased pressure on the meniscus and when done
repetitively or with one single event, a tear could occur. Dr. Crain opined that, due to this repetitive
8

See M.W., Docket No. 18-1555 (issued March 20, 2019); Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994).
9

B.K., Docket No. 19-0829 (issued September 25, 2019).

10

S.S., Docket No. 18-1488 (issued March 11, 2019).

11

See L.E., Docket No. 18-1138 (issued February 1, 2019); B.R., Docket No. 17-0294 (issued May 11, 2018).

12

S.F., Docket No. 18-1030 (issued April 5, 2019).

13

S.S., Docket No. 17-1106 (issued June 5, 2018).

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positional requirement, appellant sustained a medial meniscus tear during the scope of his
employment as he performed this specific mechanism of activity for many years. The Board finds
his explanation to be generalized and of limited probative value on the issue of causal
relationship.14 Dr. Crain failed to adequately describe appellant’s employment duties, during any
specific time period, but instead referred to appellant’s employment as a whole. His generalized
explanation pertaining to the mechanism of injury addresses a meniscus tear occurring from one
single event, as well as from repetitive movements. Therefore, it is unclear whether appellant’s
right meniscus tear was the result of his repetitive employment duties, rather then caused by a
single traumatic occurrence.
Moreover, the record reflects that appellant had a preexisting right knee condition from a
motor vehicle accident, as well as a degenerative osteoarthritic condition. However, Dr. Crain
failed to discuss whether appellant’s preexisting conditions had progressed beyond what might be
expected from the natural progression of that condition.15 A well-rationalized opinion is
particularly warranted when there is a history of a preexisting condition.16 The Board finds that
Dr. Crain’s July 25, 2018 report is insufficient to establish appellant’s claim.17
The Board finds that the record lacks rationalized medical evidence establishing causal
relationship between the accepted employment factors and appellant’s diagnosed right knee
condition.18 Thus, appellant has not met his burden of proof.19
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C. § 8128(a) and 20
C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a right knee
condition causally related to the accepted factors of his federal employment.

14

D.M., Docket No. 19-0389 (issued July 16, 2019).

15

C.E., Docket No. 19-0192 (issued July 16, 2019); R.E., Docket No. 14-0868 (issued September 24, 2014).

16

E.B., Docket No. 17-1497 (issued March 19, 2019).

17

See C.D., Docket No. 19-0611 (issued August 9, 2019).

18

K.L., Docket No. 18-1029 (issued January 9, 2019).

19

T.O., Docket No. 18-0139 (issued May 24, 2018).

6

ORDER
IT IS HEREBY ORDERED THAT the November 9, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.A., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
REGIONAL OFFICE, Baltimore, MD, Employer
__________________________________________

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Appearances:
Phillip R. Kete, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1452
Issued: October 19, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 7, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ April 3, 2007 merit decision denying her request for authorization of
right shoulder surgery. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether the Office abused its discretion in denying appellant’s request for
authorization of right shoulder surgery.
FACTUAL HISTORY
On January 4, 2006 appellant, then a 44-year-old claims examiner, filed traumatic injury
claim alleging that she sustained a right shoulder injury on December 19, 2005 when she tried to
hold a bathroom door open while maneuvering her wheelchair over a hump on the floor when
exiting a bathroom at work. The Office accepted that appellant sustained a sprain/strain of her
right rotator cuff and paid compensation for periods of disability.

The findings of the May 6, 2006 magnetic resonance imaging (MRI) scan testing of
appellant’s right shoulder showed avascular necrosis involving a large portion of the humeral
head, extensive bone marrow edema proximal metadiaphysis, rotator cuff tendinitis, anterior
labral tear, partial biceps tendon tear, glenohumeral joint effusion and axillary lymphadenopathy.
On July 18, 2006 Dr. Bruce S. Wolock, an attending Board-certified orthopedic surgeon,
performed a surgical subacromial decompression of the right humeral head with synovectomy.
The procedure was authorized by the Office. Dr. Wolock provided a preoperative diagnosis of
right shoulder impingement syndrome and avascular necrosis of the humeral head and a
postoperative diagnosis of right shoulder impingement syndrome, avascular necrosis of the
humeral head and synovitis.
On September 17, 2006 Dr. Wolock indicated that appellant reported that she was doing
well with her therapy and noted that her surgical wounds were well healed. Appellant had some
right shoulder pain and limitation of motion. On October 16, 2006 she returned to limited-duty
work at the employing establishment on a full-time basis. Appellant had a 20-pound lifting
restriction. On January 8, 2007 Dr. Wolock indicated that recent MRI scan testing showed
increased fracture and articular incongruity of her right humeral head and diagnosed probable
progression of avascular necrosis of her right humeral head.1 He advised appellant that she most
likely would require a hemiarthroplasty at some point.
On March 7, 2007 Dr. Wolock indicated that x-rays he obtained on that date showed a
progressing collapse in appellant’s right humeral head. He stated, “At this point, I would
recommend right shoulder hemiarthroplasty. I have told her this most likely will be a resurfacing
type of arthroplasty.” The record contains a surgery authorization form in which Dr. Wolock
requested authorization from the Office for surgical reconstruction of the right shoulder joint,
repair of the right rotator cuff, removal of the right shoulder joint lining and exploratory
treatment of the right shoulder. The document indicated that one of appellant’s diagnoses was
primary localized osteoarthritis of the right shoulder region.
In an April 3, 2007 decision, the Office denied appellant’s request for authorization for
right shoulder surgery. The Office reviewed the procedures proposed by Dr. Wolock and stated:
“However, he has not provided any rationale as to the need for the additional
surgery. Additionally in the surgery he stated … primary localized osteoarthritis,
shoulder region which is not accepted condition to this claim. Please have your
attending physician address this new condition and how it relates to the accepted
condition and provide his comments.”
LEGAL PRECEDENT
Section 8103(a) of the Federal Employees’ Compensation Act states in pertinent part:
“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
1

The record contains December 23, 2006 MRI scan findings which show an increase in fracture and articular
incongruity of the right humeral head since May 2006.

2

the Secretary of Labor considers likely to cure, give relief, reduce the degree or the period of
disability, or aid in lessening the amount of the monthly compensation.”2 The Board has found
that the Office has great discretion in determining whether a particular type of treatment is likely
to cure or give relief.3 The only limitation on the Office’s authority is that of reasonableness.4 In
order to be entitled to reimbursement of medical expenses, it must be shown that the
expenditures were incurred for treatment of the effects of an employment-related injury or
condition.5 Proof of causal relationship in a case such as this must include supporting
rationalized medical evidence.6
ANALYSIS
The Office accepted that appellant sustained a sprain/strain of her right rotator cuff on
December 19, 2005. On July 18, 2006 Dr. Wolock, an attending Board-certified orthopedic
surgeon, performed a surgical subacromial decompression of the right humeral head with
synovectomy which was authorized by the Office. In March 2007 appellant requested
authorization from the Office for surgical reconstruction of the right shoulder joint, repair of the
right rotator cuff, removal of the right shoulder joint lining and exploratory treatment of the right
shoulder based on the recommendation of Dr. Wolock. The Board finds that the Office did not
abuse its discretion in denying authorization for this surgery.
In its April 3, 2007 decision denying appellant’s request for authorization for right
shoulder surgery, the Office noted that Dr. Wolock had not provided any rationale as to the need
for the additional surgery. The Board notes that the record does not contain any notable
explanation of the need for the surgery.7 The Office further noted that Dr. Wolock’s diagnosis of
primary localized osteoarthritis of the right shoulder region, contained on his surgery
authorization request form, is not an accepted employment condition. The Office indicated that
the record did not contain an opinion relating this condition to appellant’s employment. The
Board finds that Dr. Wolock did not explain how appellant had employment-related
osteoarthritis of the right shoulder region such that the requested surgery would be related to the
accepted employment-related condition.8 Given these circumstances, the Board finds that the
Office provided a reasonable explanation for its refusal to authorize appellant’s March 2007

2

5 U.S.C. § 8103.

3

Vicky C. Randall, 51 ECAB 357 (2000).

4

Lecil E. Stevens, 49 ECAB 673, 675 (1998)

5

Bertha L. Arnold, 38 ECAB 282, 284 (1986).

6

Zane H. Cassell, 32 ECAB 1537, 1540-41 (1981); John E. Benton, 15 ECAB 48, 49 (1963).

7

On March 7, 2007 Dr. Wolock indicated that x-rays he obtained on that date appear to show a progressing
collapse in appellant’s right humeral head and stated that he would recommend right shoulder hemiarthroplasty. He
did not provide any explanation of why the surgery would be required for an accepted right shoulder condition.
8

See supra notes 5 and 6 and accompanying text.

3

request for right shoulder surgery.9 The Office has great discretion in determining whether a
particular type of treatment is likely to cure or give relief. It did not abuse its discretion in this
case in denying appellant’s surgery request.10
CONCLUSION
The Board finds that the Office did not abuse it discretion in denying appellant’s request
for authorization of right shoulder surgery.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
April 3, 2007 decision is affirmed.
Issued: October 19, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

9

The Board notes that the mere fact that the Office approved the July 18, 2006 right shoulder surgery would not
in itself constitute authorization for the surgery requested in March 2007.
10

See supra notes 3 and 4 and accompanying text.

4