United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Richmond, VA, Employer
__________________________________________

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

Docket No. 09-2245
Issued: June 21, 2010

Case Submitted on the Record

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

JURISDICTION
On September 8, 2009 appellant filed a timely appeal from August 10, 2009 nonmerit
decision of the Office of Workers’ Compensation Programs denying merit review of her claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this nonmerit
decision.1
ISSUE
The issue is whether the Office properly denied appellant’s request for further review of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).

1

The record contains a November 17, 2008 Office merit decision terminating appellant’s compensation effective
November 22, 2008 on the grounds that she refused an offer of suitable work. Appellant did not appeal this decision
to the Board and the subject matter of the decision is not currently before the Board.

FACTUAL HISTORY
On February 10, 2006 the Office accepted that appellant, then a 43-year-old rural mail
carrier, sustained bilateral medial epicondylitis due to performing her repetitive work duties. She
stopped work and received compensation from the Office for periods of disability. In
August 2008, Dr. Robert Draper, a Board-certified orthopedic surgeon serving as an Office
referral physician, indicated that appellant could work on a full-time basis within specific
restrictions. On September 8, 2008 the employing establishment offered appellant a position as a
modified rural mail carrier. Appellant refused the position indicating on September 15, 2008 that
the work restrictions provided by her physician prevented her from performing the duties of the
position.
In a September 23, 2008 letter, the Office advised appellant of its determination that the
position offered by the employing establishment was suitable. It informed appellant that
compensation would be terminated if she did not accept the modified rural mail carrier position
or provide good cause for not doing so within 30 days of the date of the letter. Appellant
submitted a September 16, 2008 work restriction form in which Dr. John P. Byrne, an attending
Board-certified orthopedic surgeon, indicated that she could not perform any work.
In an October 30, 2008 letter, the Office advised appellant that her reasons for not
accepting the position offered by the employing establishment were unjustified. It informed
appellant that her compensation would be terminated if she did not accept the position within 15
days of the date of the letter.2 On November 17, 2008 the employing establishment verified that
the modified rural mail carrier position was still available to appellant.
In a November 17, 2008 decision, the Office terminated appellant’s compensation
effective November 22, 2008 on the grounds that she refused an offer of suitable work. It
indicated that appellant did not accept the modified rural carrier position within the time allotted
by its October 30, 2008 letter.
On November 25, 2008 the Office received a document that appellant signed on
November 20, 2008 indicating that she accepted the modified rural mail carrier position.3 In a
November 22, 2008 status report received on December 2, 2008, Mr. Terry indicated that on
November 22, 2008 appellant had returned to work for the employing establishment as a
modified rural mail carrier. Appellant also submitted a November 25, 2008 report of Dr. Byrne
who stated that she reported increased back symptoms after returning to work for the employing
establishment. Dr. Byrne recommended that she stop work and participate in physical
rehabilitation activities. On December 2, 2008 he stated that appellant’s return to work
2

A November 14, 2008 telephone record revealed that a personnel official from the employing establishment
called the Office on that date and advised that appellant had not responded to the Office’s October 30, 2008 letter.
In a November 18, 2008 memorandum, Charles Terry, an Office rehabilitation specialist, indicated that appellant
had not responded to the October 30, 2008 letter.
3

In a November 26, 2008 e-mail, Richard Gallanti, appellant’s vocational rehabilitation counselor, advised
Mr. Terry that appellant sent him an e-mail on November 25, 2008 informing him that she had returned to work on
November 22, 2008. In a January 14, 2009 report, Mr. Gallanti stated that appellant sent him an e-mail on
November 25, 2008 advising him that she had accepted the position offered by the employing establishment.

2

aggravated her back condition. Appellant submitted additional medical and physical therapy
reports detailing the treatment of her back condition from mid November 2008 onwards.4
In an April 8, 2009 letter, appellant stated that she was filing a reconsideration request
because she was not sure what was happening in her case. She indicated that she was told that
the Office canceled her benefits because she did not return to work, but asserted that she did in
fact return to work. Appellant claimed that Mr. Gallanti told her that the Office had reversed its
decision and that paperwork had been crossed in the mail with the Office. She stated:
“If needed he said you can call him for verification at his office. I have tried on
several occasions to find out what was going with this but no one will return my
calls or letters. I sent an appeal form in December but never got anything back on
it either. Please advise because I no longer know what to do and no one is helping
me.”
In an August 10, 2009 decision, the Office denied appellant’s request for further review
of the merits of her claim pursuant to 5 U.S.C. § 8128(a). It found that appellant’s
reconsideration request did not raise substantive legal questions or include new and relevant
evidence.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,5 the Office regulations provide that the evidence or
argument submitted by a claimant must: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
considered by the Office.6 To be entitled to a merit review of an Office decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.7 When a claimant fails to meet one of the above standards, the
Office will deny the application for reconsideration without reopening the case for review on the
merits.8 The Board has held that the submission of evidence or argument which repeats or
duplicates evidence or argument already in the case record9 and the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for

4

A number of the reports indicated that appellant was disabled for periods which began after her return to work
on November 22, 2008.
5

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
6

20 C.F.R. § 10.606(b)(2).

7

Id. at § 10.607(a).

8

Id. at § 10.608(b).

9

Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).

3

reopening a case.10 While a reopening of a case may be predicated solely on a legal premise not
previously considered, such reopening is not required where the legal contention does not have a
reasonable color of validity.11
Section 8106(c)(2) of the Act provides in pertinent part, “A partially disabled employee
who--. (2) refuses or neglects to work after suitable work is offered ... is not entitled to
compensation.”12
ANALYSIS
The Office accepted that appellant sustained bilateral medial epicondylitis due to
performing her repetitive work duties and paid her compensation for periods of disability. In a
November 17, 2008 decision, it terminated appellant’s compensation effective November 22,
2008 on the grounds that she refused an offer of suitable work.
In her April 8, 2009 reconsideration request, appellant asserted that the Office improperly
terminated her compensation in its November 17, 2008 decision because she did in fact return to
work for the employing establishment. She claimed that Mr. Gallanti, her vocational
rehabilitation counselor, told her that the Office had reversed its decision and that paperwork had
been crossed in the mail with the Office. The Board finds that the presentation of this argument
would not require reopening of appellant’s case for review of her claim on the merits as she did
not present a legal contention with a reasonable color of validity.
Appellant submitted evidence showing that she accepted the modified rural mail carrier
position on November 20, 2008 and returned to work in the position on November 22, 2008. By
the time of this acceptance, however, the Office had justifiably terminated appellant’s
compensation. In an October 30, 2008 letter, it advised appellant that her reasons for not
accepting the modified rural mail carrier position were unjustified and that her compensation
would be terminated if she did not accept the position within 15 days of the date of the letter.
The evidence of record clearly indicates that appellant did not accept the offered position within
the allotted period and the Office properly terminated her compensation in its November 17,
2008 decision.13
Appellant also submitted reports of Dr. Byrne, an attending Board-certified orthopedic
surgeon, who indicated that she was disabled for periods which began after her return to work on
November 22, 2008. The submission of these reports would not require reopening of appellant’s
claim because they are not relevant to the main issue of the present case. The reports address
appellant’s disability after the Office issued its November 17, 2008 decision and do not have any
bearing on whether she was justified in refusing the position offered by the employing
establishment prior to the Office’s issuance of that decision.
10

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

11

John F. Critz, 44 ECAB 788, 794 (1993).

12

5 U.S.C. § 8106(c)(2).

13

There is no indication in the record that the Office reversed its November 17, 2008 decision.

4

Appellant has not established that the Office improperly denied her request for further
review of the merits of its November 17, 2008 decision under section 8128(a) of the Act, because
the evidence and argument she submitted did not show that the Office erroneously applied or
interpreted a specific point of law, advance a relevant legal argument not previously considered
by the Office, or constitute relevant and pertinent new evidence not previously considered by the
Office.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for further review of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the August 10, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 21, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 07-1822
Issued: October 24, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 28, 2007 appellant filed a timely appeal from a June 19, 2007 Office of
Workers’ Compensation Programs’ decision, denying his claim for a recurrence of total
disability. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant sustained a recurrence of total disability on April 18, 2007
causally related to his February 3, 2007 employment injury.
FACTUAL HISTORY
On February 3, 2007 appellant, then a 56-year-old letter carrier, filed a claim for a
traumatic injury alleging that he caught his right foot on steps and lost his balance, injuring his
left leg. The Office accepted his claim for a left calf sprain and contusion of the lower left leg.
On May 2, 2007 appellant filed a claim for a recurrence of total disability as of April 18, 2007.
He indicated that he worked for four hours a day from February 3 to April 17, 2007. The job

was sedentary with no lifting over five pounds and no standing, walking, climbing or bending.
Appellant indicated that he stopped work on April 19, 2007. He stated:
“Moved from general practitioner to specialist. Visit to specialist on [April 19,
2007]. MRI [magnetic resonance imaging] [scan] on [April 20, 2007]. Original
injury was never resolved….”
On May 22, 2007 the employing establishment stated that appellant used sick leave on April 16,
2007 and worked four hours on April 17, 2007. Appellant was not scheduled to work on
April 18, 2007 and used sick leave from April 19 to 30, 2007.
In an April 17, 2007 report, a physician at Immediate Medical Care, a clinic, indicated
that appellant could perform regular work for eight hours a day.
On April 30, 2007 Dr. Apostolos P. Tambakis, appellant’s attending Board-certified
orthopedic surgeon, diagnosed a ruptured gastrocnemius muscle of his left leg.1 He indicated
that appellant was performing limited-duty work and could continue doing so. However, in an
April 30, 2007 disability certificate, Dr. Tambakis indicated that appellant was unable to work
for the next four weeks due to a ruptured gastrocnemius muscle. In a May 21, 2007 report and
clinical notes, he indicated that appellant was totally disabled from April 30, 2007 to “unknown.”
On May 14, 2007 the Office asked appellant to provide evidence establishing that he was
unable to perform his light-duty job due to a change in the nature and extent of his accepted
medical conditions or a change in the nature and extent of his light-duty physical requirements.
By decision dated June 19, 2007, the Office denied appellant’s claim on the grounds that
the evidence did not establish that he sustained a recurrence of total disability on April 18, 2007
was causally related to his February 3, 2007 employment injury.2
LEGAL PRECEDENT
When an employee, who is disabled from the job he held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence of record
establishes that he 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 that he cannot perform the light-duty position. As part of this burden of proof, the employee
must show either 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.3

1

Dr. Tambakis first examined appellant on April 19, 2007.

2

Subsequent to the June 19, 2007 Office decision, appellant submitted additional evidence. The Board’s
jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See 20 C.F.R.
§ 501.2(c). The Board may not consider this evidence for the first time on appeal.
3

Bryant F. Blackmon, 57 ECAB ___ (Docket No. 04-564, issued September 23, 2005); Terry R. Hedman,
38 ECAB 222 (1986).

2

ANALYSIS
Appellant has the burden to provide medical evidence establishing that he was totally
disabled on April 18, 2007 due to a worsening of his accepted work-related conditions, a left calf
sprain and a contusion of the lower left leg or a change in his job duties such that he was unable
to perform his light-duty work.
Appellant stated that he performed light duty for four hours a day from February 3 to
April 17, 2007. The job was sedentary with no lifting over five pounds and no standing,
walking, climbing or bending. The record shows that appellant was not scheduled to work on
April 18, 2007 and used sick leave from April 19 to 30, 2007.
In an April 30, 2007 attending physician’s report, Dr. Tambakis diagnosed a ruptured
gastrocnemius muscle. However, this condition is not an accepted condition in this case. He did
not explain how the condition was causally related to appellant’s accepted left calf sprain and left
lower leg contusion. Dr. Tambakis indicated that appellant was performing limited-duty work
and could continue doing so. However, as noted, appellant stopped work on April 19, 2007.
Therefore, his report is not based on an accurate factual background regarding the circumstances
of appellant’s claimed recurrence of disability. In an April 30, 2007 disability certificate,
Dr. Tambakis contradicted his attending physician’s report of that date by stating that appellant
was unable to work for the next four weeks. Additionally, the disability certificate further
demonstrates that he is unaware that appellant stopped work on April 19, 2007. Although
Dr. Tambakis first examined appellant on April 19, 2007, the day following appellant’s claimed
recurrence of disability, he did not provide a report of this evaluation. A physician at a clinic
examined appellant on April 17, 2007, the day before the claimed recurrence of disability and
indicated that appellant could perform regular work for eight hours a day. In a May 21, 2007
report and clinical notes, Dr. Tambakis indicated that appellant was totally disabled beginning
April 30, 2007. He did not explain the discrepancy between this report and his April 30, 2007
attending physician’s report in which he stated that appellant could perform his limited-duty
work. Dr. Tambakis did not indicate in his medical reports that appellant had a change in the
nature and extent of his accepted left calf sprain and a contusion of the lower left leg or a change
in the nature or extent of his light-duty job requirements, such that he was totally disabled
beginning April 18, 2007.
The Board finds that appellant failed to establish that he was totally disabled on April 18,
2007 due to a change in the nature and extent of his employment related left calf sprain and
contusion of the lower left leg or a change in the nature and extent of his light-duty job
requirements. Therefore, the Office properly denied his claim for a recurrence of total disability.
CONCLUSION
The Board finds that appellant failed to establish that he sustained a recurrence of total
disability on April 18, 2007 causally related to his February 3, 2007 employment injury.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 19, 2007 is affirmed.
Issued: October 24, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
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and
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SOCIAL SECURITY ADMINISTRATION,
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Suisan City, CA, Employer
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___________________________________________ )
B.R., Appellant

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

Docket No. 16-0456
Issued: April 25, 2016

Case Submitted on the Record

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

JURISDICTION
On January 11, 2016 appellant, through counsel, filed a timely appeal of a September 4,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish a traumatic injury
causally related to an October 27, 2014 employment incident.
FACTUAL HISTORY
On October 27, 2014 appellant, then a 30-year-old service representative, filed a
traumatic injury claim (Form CA-1) alleging that on October 27, 2014 at 7:45 a.m. she injured

1

5 U.S.C. § 8101 et seq.

her left wrist and arm while moving her desk.2 She stated that at that time she was wearing a left
wrist brace and, as she tried to pull the name tag off her desk, some plastic snapped and her wrist
was pulled and twisted. Appellant advised that her wrist was severely hurting. She stopped
work on October 28, 2014. The employing establishment noted that the doctor placed her off
work for 45 days.
In a November 13, 2014 letter, OWCP advised appellant that additional factual and
medical evidence was needed. It informed appellant of the type of evidence needed to support
her claim and requested that she submit such evidence within 30 days.
Appellant provided several reports from Dr. Robert A. Gomez, a Board-certified
orthopedic surgeon. In a November 12, 2014 report, Dr. Gomez noted that appellant presented
with left shoulder, elbow, and wrist injuries that occurred on May 7, 2013 when she was moving
office material from her old desk to a new desk and injured her left wrist trying to remove the
name plate from her cubicle. He advised that she felt a pop and had immediate pain but was able
to finish the workday. Appellant related that the next morning she awoke to find the left wrist
and hand swollen. She saw an orthopedist the next day, was put in a thumb splint, and received
follow-up care. He noted that she had a previous left wrist injection without benefit and was off
work since her injury. The physician noted that she was complaining of left wrist, elbow, and
shoulder pain and presented wearing a short-arm thumb brace with a forearm band for her lateral
epicondylitis. Appellant denied any other history of previous injury or similar symptoms of the
left wrist. She did have a prior history of right wrist first dorsal compartment release. The
physician explained that her left wrist pain awakened her on a nightly basis and advised that she
had difficulty with activities of daily living. Dr. Gomez indicated she took medication, and had a
left wrist and shoulder injection, which did not help, although her current wrist brace helped.
Left wrist findings included tenderness over the dorsal compartment, the lateral epicondyle, and
the radial tunnel. She had mild pain with wrist extension against resistance and no pain with
wrist flexion against resistance. The physician also determined that the left shoulder was tender
over the anterior aspect of the acromion and the biceps tendon. Dr. Gomez diagnosed left wrist
de Quervain’s tenosynovitis, left elbow lateral epicondylitis, radial tunnel syndrome, and left
shoulder impingement syndrome with associated biceps tendinitis. He advised that a previous
physician performed a left wrist first dorsal compartment injection without benefit. The
physician recommended a first dorsal compartment release at the wrist. He also indicated that
appellant was advised to stop wearing the forearm band as it typically exacerbated radial tunnel
syndrome. Regarding the elbow, he recommended extensor carpi radialis brevis (ECRB)
debridement and radial tunnel release. Dr. Gomez also diagnosed left shoulder impingement
syndrome with associated biceps tendinitis and explained that she would eventually require an
arthroscopic subacromial decompression and biceps tendon release versus resection. He advised
that authorization for these procedures would be requested.
In a November 24, 2014 report, Dr. Gomez noted that appellant was totally disabled for
the period from October 28 to December 16, 2014.
He indicated he would be requesting
authorization for first dorsal compartment release at the wrist, ECRB debridement, and radial
2

The original claim form indicated a September 27, 2014 date of injury. However, this was amended to
October 27, 2014.

2

tunnel release of the left elbow. The physician opined that her left shoulder and wrist injuries
occurred on May 7, 2013 when she was moving office material from her old desk to a new desk.
Dr. Gomez explained that she injured her left wrist trying to remove the name plate from her
cubicle, felt a pop and had immediate pain. He diagnosed left wrist de Quervain’s tenosynovitis,
left elbow lateral epicondylitis, radial tunnel syndrome, biceps tendinitis, and coracoids
impingement.
By decision dated December 12, 2014, OWCP denied appellant’s claim because she did
not establish an injury as alleged as the factual component had not been met. It noted that
appellant did not respond to the request for factual information. OWCP also noted that she had
indicated that she was wearing a left wrist brace and was claiming a left wrist injury and that she
did not explain why she was working prior to her start time. OWCP further found that the
medical evidence was insufficient as the date of injury was referred to as May 7, 2013 and not
October 27, 2014 as indicated in her claim. Appellant was advised that if she was pursuing an
injury due to an incident of May 7, 2013,3 she should pursue the matter under that claim No.
xxxxxx664.4
On December 30, 2014 OWCP received appellant’s request for a telephonic hearing
before an OWCP hearing representative, which was held on July 14, 2015. She reiterated that
the date of injury was October 27, 2014.
In a December 15, 2014 treatment note, Dr. Gomez advised that appellant returned for
reevaluation of her left upper extremity. He indicated that they were awaiting authorization and
she continued to have severe left upper extremity pain with daily use and was unable to tolerate
any anti-inflammatory medications. The physician advised that she took Tylenol for pain and
used ice and wrist braces. He noted that the current magnetic resonance imaging (MRI) scans of
the left wrist were unremarkable as there was a small subchondral cyst on the lunate. Dr. Gomez
found tendinosis of the common extensor region on the left elbow and advised that she remain
off work. OWCP also received copies of prior reports.
In a January 7, 2015 treatment note, Dr. Gomez indicated that appellant returned for reevaluation. He repeated his previous diagnoses and noted that her claim was denied. The
physician indicated that he would try to proceed with surgery through her regular insurance.
On January 8, 2015 OWCP received appellant’s questionnaire, which was dated
December 29, 2014. She noted that she was told by management that she had a new injury. She
also indicated that her work start time was flexible from 7:00 a.m. to 9:00 a.m. and she was
working at the time of her injury.
In a February 13, 2015 duty status report (Form CA-17), Dr. Gomez release appellant to
work with restrictions to include no use of the left hand.

3

The Board notes that, although OWCP actually included a second date of May 7, 2014, this appears to be a
typographical error as it initially referred to May 7, 2013.
4

Claim number xxxxxx664 is not before the Board on the present appeal.

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By decision dated September 4, 2015, an OWCP hearing representative affirmed the
December 12, 2014 decision. She found that the factual component of appellant’s claim was
accepted. However, the hearing representative further found that the medical evidence was
insufficient as there was no rationale to support causal relationship.
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 and that an injury was sustained in the performance
of duty.6 These are the essential elements of each compensation claim, regardless of whether the
claim is predicated upon a traumatic injury or an occupational disease.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place, and in the manner alleged.8 Second, the employee must submit
sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.9
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.10
ANALYSIS
In this case, OWCP has accepted that on October 27, 2014 the claimed incident occurred
as alleged. Therefore, the Board finds that the first component of fact of injury, the claimed
incident, is established.
However, with regard to the medical evidence, the Board finds that it is insufficiently
rationalized to establish the second component of fact of injury, that the employment incident
caused an injury. The medical evidence contains no reasoned explanation of how the specific
5

Joe D. Cameron, 41 ECAB 153 (1989).

6

James E. Chadden, Sr., 40 ECAB 312 (1988).

7

Delores C. Ellyett, 41 ECAB 992 (1990).

8

Julie B. Hawkins, 38 ECAB 393, 396 (1987).

9

Id. For a definition of the term “traumatic injury,” see 20 C.F.R. § 10.5(ee).

10

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

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employment incident on October 27, 2014 caused or aggravated an injury.11 The Board notes
that this is particularly important in light of the reference to pre-existing conditions to include the
fact that she was already wearing a left wrist brace at the time of the incident.
Appellant submitted several reports from Dr. Gomez. However, these reports are of
limited value as they contain an inaccurate history of injury. The Board notes that appellant
clearly indicated that the date of injury was October 27, 2014. However, Dr. Gomez referred to
the injury date as May 7, 2013 in both his November 12 and 24, 2014 reports. He also
referenced preexisting conditions and her prior treatment. It is well established that medical
reports must be based on a complete and accurate factual and medical background, and medical
opinions based on an incomplete or inaccurate history are of little probative value.12 His
subsequent reports contained diagnoses and requests for surgeries, but there was no accurate
history of injury provided. He did not offer any opinion with regard to a work injury occurring
on October 27, 2014 involving the movement of her desk.
Other reports are also of limited probative value on the relevant issue as they do not
contain an accurate history of injury or an opinion on causal relationship.
Because the medical reports submitted by appellant do not address how the October 27,
2014 activities at work caused or aggravated a left wrist or arm condition, these reports are of
limited probative value13 and are insufficient to establish that the October 27, 2014 employment
incident caused or aggravated a specific injury. Therefore, appellant has not met her burden of
proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish a traumatic
injury causally to an October 27, 2014 employment incident.

11

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).
12

Douglas M. McQuaid, 52 ECAB 382 (2001).

13

See Linda I. Sprague, 48 ECAB 386, 389-90 (1997).

5

ORDER
IT IS HEREBY ORDERED THAT the September 4, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 25, 2016
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Flushing, NY, Employer
__________________________________________

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Appearances:
Paul Kalker, Esq., for appellant
Office of Solicitor, for the Director

Docket No. 14-698
Issued: June 23, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 7, 2014 appellant, through counsel, filed a timely appeal from a January 6,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant was disabled for work on and after May 23, 2013 due to an
accepted aggravation of cervical and lumbar radiculitis.
On appeal, counsel contends that OWCP should rely on the opinion of appellant’s
attending Board-certified orthopedic surgeon. Further the report of the second opinion Boardcertified neurologist was inaccurate and predicated on an inadequate physical examination.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on January 4, 2011 appellant, then a 51-year-old mail handler and
tow motor driver sustained an aggravation of preexisting cervical and lumbar radiculopathy
when he slipped and fell on a wet floor.2 Appellant stopped work at the time of injury and did
not return.3 He received wage-loss compensation on the daily compensation rolls beginning
February 6, 2011 and on the periodic rolls beginning August 28, 2011.
Dr. Kenneth E. McCulloch, an attending Board-certified orthopedic surgeon, diagnosed
back, right hand and right shoulder injuries. He submitted reports from January 6 to
September 28, 2011 holding appellant off work. Dr. Ali Guy, an attending Board-certified
physiatrist, held appellant off work through March 2012 due to herniated cervical discs from C2
to C7, disc bulges from L3 to L5, bilateral L4-S1 radiculopathy, left ulnar sensory neuropathy,
diabetic peripheral neuropathy, right shoulder impingement and myofascial pain syndrome.4
On March 10, 2013 OWCP obtained a second opinion from Dr. Michael Carciente, a
Board-certified neurologist, who reviewed the medical record and a statement of accepted facts.
On examination, Dr. Carciente found no atrophy in the extremities, absent ankle reflexes
bilaterally, motor strength at 5/5 throughout both arms and legs, blunted sensation in both lower
extremities in a stocking distribution, no tenderness or spasms throughout the paraspinals and
bilaterally negative straight leg raising tests. He opined that appellant had no objective signs of
radiculitis or lumbar radiculopathy. Dr. Carciente opined that appellant’s objective findings
were due to diabetic neuropathy, without influence from the January 4, 2011 injuries. He opined
that appellant had no disability related to the accepted injuries.
By notice dated April 16, 2013, OWCP advised appellant that it proposed to terminate his
wage loss and medical compensation benefits because the accepted injuries had ceased without
residuals. It based the proposal on Dr. Carciente’s opinion as the weight of the medical
evidence.
In response, appellant submitted reports from a physician’s assistant that were not signed
or reviewed by a physician.

2

Appellant noted that he had a history of a 1990 back injury sustained while in the armed forces. He received
disability payments from the Department of Veterans Affairs for this injury.
3

On July 28, 2011 OWCP obtained a second opinion from Dr. Richard Gilbert, a Board-certified orthopedic
surgeon, who found appellant totally disabled for work due to the accepted injuries.
4

March 16, 2011 magnetic resonance imaging (MRI) scans showed disc herniations from C3 to C7, with cord
compression, disc bulges at L3-4 and L4-5 with facet hypertrophy and a Grade I spondylolisthesis. A July 17, 2011
MRI scan showed supraspinatus and subscapularis tendinopthy in the right shoulder with bony hypertrophy of the
acromioclavicular joint. September 16, 2011 electromyography (EMG) and nerve conduction velocity (NCV)
studies showed bilateral carpal tunnel syndrome, right worse than left and left ulnar sensory neuropathjy. Appellant
related a history of diabetes mellitus with diabetic neuropathy and a left carpal tunnel release February 17, 2012
lumbar x-rays showed osteoarthritic facet spurs and endplate spurs, osteoarthritic changes throughout the lumbar
spine from L2 to L5.

2

By decision dated May 23, 2013, OWCP terminated appellant’s wage-loss and medical
benefits effective that day. It found that Dr. Carciente’s opinion was the weight of the medical
evidence. OWCP noted that physician’s assistants did not qualify as physicians under FECA and
that their opinions were of no probative medical value.
In an October 4, 2013 letter, counsel requested reconsideration. He contended that the
medical record established that appellant had active residuals of the accepted injuries. Counsel
also asserted that a new report from Dr. Gabriel L. Dassa, an attending Board-certified
orthopedic surgeon, was sufficient to shift the weight of the evidence in appellant’s favor.
In the August 19, 2013 report, Dr. Dassa provided a history of injury and treatment. On
examination, he found limited cervical and lumbar motion, lumbar paraspinal spasm, mild
swelling of the right shoulder, tenderness to palpation of the right subacromial and subdeltoid
bursae and a positive impingement sign in the right shoulder. Dr. Dassa diagnosed disc
herniations from C2 to C7 with disc extrusion, worsened by the January 4, 2011 injury, lumbar
disc bulges from L2 to S1 with radiculopathy and a right shoulder sprain/strain with
impingement and a partial rotator cuff tear. He opined that all findings were “directly caused by
the accident.” Dr. Dassa explained that appellant’s symptoms were genuine as he had positive
straight leg raising and Spurling’s tests, which someone without medical knowledge could not
subvert. He found that appellant remained totally disabled for work.
Counsel also submitted additional notes from a physician’s assistant, not signed or
reviewed by a physician.
By decision dated January 6, 2014, OWCP denied modification of the May 23, 2013
decision on the grounds that the additional medical evidence was insufficient to establish that
appellant continued to have residuals of the accepted injuries on or after May 23, 2013. It found
that Dr. Dassa’s report did not explain how and why the accepted injuries continued to disable
appellant for work on and after May 23, 2013. OWCP further found that the additional reports
from the physician’s assistant were of no probative medical value.
LEGAL PRECEDENT
Once OWCP has accepted a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.5 Having determined that an employee has a disability
causally related to his or her federal employment, it may not terminate compensation without
establishing either that the disability has ceased or that it is no longer related to the employment.6
After termination or modification of benefits, clearly warranted on the basis of the
evidence, the burden for reinstating compensation benefits shifts to the claimant. In order to
prevail, the claimant must establish by the weight of reliable, probative and substantial evidence
that he or she had an employment-related disability that continued after termination of

5

Bernadine P. Taylor, 54 ECAB 342 (2003).

6

Id.

3

compensation benefits.7 For conditions not accepted by OWCP as being employment related, it
is the employee’s burden to provide rationalized medical evidence sufficient to establish causal
relation.8 The fact that a condition’s etiology is unknown or obscure neither relieves appellant of
the burden of establishing a causal relationship by the weight of the medical evidence, nor shifts
the burden of proof of OWCP to disprove an employment relationship.9
ANALYSIS
OWCP accepted that appellant sustained an aggravation of preexisting cervical and
lumbar radiculopathy. Dr. McCulloch, an attending Board-certified orthopedic surgeon, and
Dr. Guy, an attending Board-certified physiatrist, held appellant off work through March 2012
due to herniated cervical and lumbar discs with radiculopathy. Dr. Carciente, a Board-certified
neurologist and second opinion physician, opined on March 10, 2013 that the accepted injuries
had ceased and that appellant’s symptoms were due to diabetic neuropathy. On May 23, 2013
OWCP terminated appellant’s wage-loss and medical compensation benefits based on
Dr. Carciente’s opinion that the accepted injuries ceased without residuals or work limitations.
Dr. Carciente based his opinion on a statement of accepted facts, the complete medical record
and a thorough clinical examination. The burden shifted to appellant to demonstrate that he
continued to be disabled for work on and after May 23, 2013 due to the accepted injuries.10
In support of his request for reconsideration, appellant submitted the report of Dr. Dassa,
an attending Board-certified orthopedic surgeon, who diagnosed multiple cervical and lumbar
disc herniations. Dr. Dassa explained that appellant’s radicular symptoms were genuine because,
as a layperson, appellant did not have the medical knowledge to falsify his physiologic
responses. However, appellant’s veracity is not at issue. Dr. Dassa did not explain how or why
the accepted January 4, 2011 traumatic injuries continued to cause appellant’s symptoms or
disable him from work on and after May 23, 2013. As he did not provide medical reasoning
supporting causal relationship, his opinion is insufficient to shift the weight of the medical
evidence in appellant’s favor or create a conflict with Dr. Carciente’s opinion.
On reconsideration, counsel also provided additional notes from a physician’s assistant.
However, these documents are of no probative medical value as a physician’s assistant is not
considered a physician under FECA.11 Therefore, OWCP’s January 6, 2014 decision finding that
appellant did not establish that he continued to have residuals of the accepted injuries on and
after May 23, 2013 is appropriate under the law and facts of the case.
On appeal, counsel contends that OWCP should rely on the opinion of Dr. Dassa. He
argues that Dr. Carciente’s report is inaccurate and predicated on an inadequate physical
7

See Virginia Davis-Banks, 44 ECAB 389 (1993); see also Howard Y. Miyashiro, 43 ECAB 1101, 1115 (1992).

8

Alice J. Tysinger, 51 ECAB 638 (2000).

9

Judith J. Montage, 48 ECAB 292, 294-95 (1997).

10

Virginia Davis-Banks, supra note 7.

11

5 U.S.C. § 8101(2); Richard E. Simpson, 57 ECAB 668 (2006) Vickey C. Randall, 51 ECAB 357 (2000).

4

examination. As stated, OWCP properly denied modification as Dr. Dassa’s opinion was
insufficient to shift the weight of the medical evidence in appellant’s favor or to require further
development by OWCP.
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 establish continuing work-related disability on and
after May 23, 2013.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 6, 2014 is affirmed.
Issued: June 23, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.D., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
East Orange, NJ, Employer
__________________________________________

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

Docket No. 16-1596
Issued: December 12, 2016

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 August 1, 2016 appellant filed a timely appeal from February 16 and July 13, 2016
merit decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established a left knee condition causally related to the
accepted April 30, 2015 employment incident.
FACTUAL HISTORY
On May 21, 2015 appellant, then a 58-year-old housekeeping aide, filed a traumatic
injury claim (Form CA-1) alleging that on April 30, 2015 he injured his left knee. He indicated
1

5 U.S.C. § 8101 et seq.

that he was cleaning baseboards on his knees with no kneepads. The claim form does not
indicate whether appellant stopped working. The supervisor’s portion of the Form CA-1
reported that appellant did not mention an injury until he filed the claim. Appellant submitted a
note indicating that he received emergency treatment on May 1, 2015 at the employing
establishment’s health facility. In an employing establishment form report dated May 5, 2015, a
nurse practitioner described physical findings as tenderness over medial aspect of left knee, with
reduced range of motion. The nurse practitioner indicated that appellant should not kneel, stoop,
or climb.
In an x-ray report dated May 5, 2015, Dr. Jory Philip, a radiologist, provided a history
that on April 30, 2015 appellant injured his left knee while kneeling on a floor. Dr. Philip
diagnosed mild tricompartmental degenerative changes of the left knee, generalized osteopenia,
enthesophyte off the anterosuperior and anterior inferior patella, and bony protuberance off the
lateral tibial metaphysis.
By letter dated June 1, 2015, OWCP requested appellant submit additional evidence. By
letter dated June 6, 2015, appellant explained that he did not immediately notify his supervisor of
an injury because “other than normal joint sounds when getting up off my knees from cleaning
corners and edges and scrubbing the red brick tile with a wire scrub brush, there was no
indication of an injury.” Appellant reported that the next morning his left knee was painful and
he did inform his supervisor of an injury. He further asserted, “My left knee was injured being
on my knees cleaning corners and edges and scrubbing the red brick tile in the kitchen with a
wire brush cleaning corners and edges in the bathrooms, under sinks and halls without knee
pads” or other protection for his knees.
By decision dated July 2, 2015, OWCP denied appellant’s claim for compensation,
finding that the medical evidence of record was insufficient to establish a diagnosed injury
causally related to the accepted work incident on April 30, 2015.
On November 18, 2015 appellant requested reconsideration of the claim. He had
submitted additional evidence on September 8, 2015. In a report dated August 12, 2015,
Dr. Robin Gehrmann, a Board-certified orthopedic surgeon, indicated that a July 30, 2015
magnetic resonance imaging (MRI) scan of the left knee showed a medial meniscus tear, as well
as arthritic changes. Dr. Gehrmann provided results on examination and diagnosed degenerative
joint disease and medial meniscus tear. The record contains a July 30, 2015 MRI scan report
from Dr. Kenneth Blatt, a radiologist, diagnosing a medial meniscus tear and arthritic changes of
the left knee.
With his request for reconsideration, appellant submitted an August 28, 2015 report from
Dr. Bin Yang, an employing establishment specialist in occupational medicine, who indicated
that appellant reported left knee pain on April 30, 2015 while kneeling on cement floors to clean
baseboards. Dr. Yang indicated that appellant was treated from May 1 to June 19, 2015 for left
knee pain. He opined, “The tear of meniscus, sprain of left knee and worsening knee pain could
be caused and aggravated by his work-related incident on [April 30, 2015].”
In a brief report dated September 4, 2015, Dr. Gehrmann wrote that appellant “sustained
an injury at work” on April 30, 2015 to his left knee. Dr. Gehrmann noted that the July 30, 2015

2

MRI scan showed a meniscal tear and “[b]ased on patient history, physical exam[ination] and the
MRI [scan], which I viewed personally, this injury is consistent with the injury he sustained at
work.”
By decision dated February 16, 2016, OWCP reviewed the case on its merits, but denied
modification of its prior decision. It found the medical evidence of record was insufficient to
establish a diagnosed left knee condition casually related to April 30, 2015 work incident.
On April 29, 2016 appellant again requested reconsideration. Appellant submitted an
April 25, 2016 report from Dr. Gehrmann who opined that appellant “suffered a medial meniscal
tear and aggravation of his arthritis. The injury occurred when he was kneeling cleaning the
floors at the VA and he twisted his knee and it buckled as he stood up.” Dr. Gehrmann indicated
that appellant stated that he did not have prior left knee pain or problems. He noted the results
on MRI scan, opining that appellant “obviously aggravated his underlying arthritis and both the
exacerbation of his arthritis and his meniscal tear appears causally related to his injury at work.”
Dr. Gehrmann indicated that appellant was a candidate for knee surgery if symptoms persisted.
By decision dated July 13, 2016, OWCP reviewed the merits, but denied modification of
its prior decision as the medical evidence of record was insufficient to establish appellant’s claim
for compensation.
LEGAL PRECEDENT
FECA provides for the payment of compensation for “the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.”2 The
phrase “sustained while in the performance of duty” in FECA is regarded as the equivalent of the
commonly found requisite in workers’ compensation law of “arising out of and in the course of
employment.”3 An employee seeking benefits under FECA has the burden of establishing that
he or she sustained an injury while in the performance of duty.4 In order to determine whether
an employee actually sustained an injury in the performance of duty, OWCP begins with an
analysis of whether “fact of injury” has been established. Generally “fact of injury” consists of
two components which must be considered in conjunction with one another. The first
component to be established is that the employee actually experienced the employment incident
which is alleged to have occurred. The second component is whether the employment incident
caused a personal injury, and generally this can be established only by rationalized medical
evidence.5
Rationalized medical opinion evidence is medical evidence that is based on a complete
factual and medical background, of reasonable medical certainty and supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
2

5 U.S.C. § 8102(a).

3

Valerie C. Boward, 50 ECAB 126 (1998).

4

Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115.

5

See John J. Carlone, 41 ECAB 354, 357 (1989).

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specific employment factors identified by the claimant. The weight of medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of the analysis
manifested and the medical rationale expressed in support of the physician’s opinion.6
ANALYSIS
In the present case, appellant has alleged his left knee injury occurred as a result of his
work activity on April 30, 2015. He indicated that he was kneeling on the floor, without knee
pads while cleaning. Appellant also reported that when he stood up, there was no initial
indication of any injury. It was the following day that he felt left knee pain.
OWCP accepted that the employment incident occurred as alleged on April 30, 2015.
The issue is whether the medical evidence submitted established a diagnosed condition causally
related to the accepted work incident.
The Board finds that the medical evidence of record is insufficient to meet appellant’s
burden of proof. Dr. Yang reported in an August 28, 2015 report that the “tear of meniscus,
sprain of left knee and worsening knee pain could be caused and aggravated by his work-related
incident on [April 30, 2015].” This opinion is of diminished probative value on the issue of
causal relationship. Dr. Yang refers to conditions that “could” be casually related, which is
speculative and must be accompanied by additional medical rationale. Medical opinions that are
speculative and not supported by medical rationale are generally entitled to little probative value
and are insufficient to meet appellant’s burden of proof.7 Furthermore, Dr. Yang refers to
“caused and aggravated” without further explanation. Direct causation and aggravation are
different concepts and a medical opinion must clearly explain the relationship between a
diagnosed condition and the employment activity.8
Dr. Gehrmann provided a brief September 4, 2015 report that noted a meniscal tear on a
July 30, 2015 MRI scan and opined that this condition was “consistent with the injury he
sustained at work.” He did not provide any additional explanation. Dr. Gehrmann did submit an
additional report dated April 25, 2016. In this report, he provides a history that on April 30,
2015 appellant “twisted his knee and it buckled as he stood up.” As noted above, this history is
not confirmed by the evidence of record. Appellant himself indicated that when he stood up
there was nothing except normal joint sounds and no indication of an injury at that time. He did
not report that he twisted his knee or that it buckled.9
Moreover, Dr. Gehrmann does provide medical rational to support his opinion on causal
relationship. The conditions he diagnosed were a medical meniscus tear and arthritic changes in
the left knee, as documented by a July 30, 2015 MRI scan. Dr. Gehrmann asserts there was
“obviously” an aggravation of underlying arthritis, but the medical record is not obvious in this
6

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

7

Carolyn F. Allen, 47 ECAB 240 (1995).

8

See C.W., Docket No. 15-0881 (issued August 21, 2015).

9

Supra note 6.

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regard. That appellant reported he was asymptomatic before the injury but symptomatic after is
insufficient, without supporting rationale, to establish causal relationship.10 An opinion with
respect to aggravation must differentiate between the effects of the work-related injury or disease
and the preexisting condition.11 The Board has held that the physician must clearly explain the
nature and extent of any aggravation, including whether temporary or permanent.12
Dr. Gehrmann provides no detail and explanation regarding the nature and extent of an
aggravation of underlying arthritis.
In addition, Dr. Gehrmann opined that the medial meniscus tear was caused by
appellant’s work activity. However, he does not provide any medical rationale explaining how
the work activity on April 30, 2015 affected the left knee and caused a meniscus tear. To
establish causal relationship, the physician must describe appellant’s work activity and medically
explain the pathophysiological process by which this activity would have caused the condition.13
The Board finds that the record does not contain a medical report with a complete and
accurate background, and a rationalized medical opinion on causal relationship between
appellant’s diagnosed left knee condition and his April 30, 2015 employment activity.14
Appellant failed to meet his burden of proof in this case.
On appeal, appellant argues that Dr. Gehrmann had paraphrased his notes rather than
writing verbatim what appellant had told him. He noted that Dr. Gehrmann reported that the
knee twisted and buckled but “did not clarify it was the next day or indicate a date and time at
all.” However, the deficiency in the April 25, 2016 report is not a matter of paraphrasing the
factual history. Dr. Gehrmann clearly wrote that appellant twisted his knee as he stood up on
April 30, 2015. This is not consistent with the history provided in the case and as found above,
Dr. Gehrmann did not provide a rationalized medical opinion regarding causal relationship.
Appellant also asserts that Dr. Yang should have been contacted by OWCP to correct any
deficiencies in his report. However, it is appellant’s burden to submit the evidence necessary to
establish the claim for compensation. For the reasons discussed, appellant has not met his
burden of proof.15
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.

10

T.M., Docket No. 08-0975 (issued February 6, 2009); Cleopatra McDougal-Saddler, 47 ECAB 480 (1996).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(e) (January 2013).

12

See R.H., Docket No. 15-1785 (issued January 29, 2016).

13

See J.P., Docket No. 14-1966 (issued January 23, 2015); M.D., Docket No. 14-1498 (issued January 8, 2015);
C.T., Docket No. 11-625 (issued October 17, 2011).
14

Supra note 6.

15

Id.

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CONCLUSION
The Board finds that appellant has not established a left knee condition causally related to
the accepted April 30, 2015 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated July 13 and February 16, 2016 are affirmed.
Issued: December 12, 2016
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
_________________________________________
T.E., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. COAST GUARD, Coos Bay, OR, Employer
__________________________________________
Appearances:
Lonnie Lynn Boylan, for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-0843
Issued: December 6, 2021

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On May 13, 2021 appellant, through his representative, filed a timely appeal from a
January 26, 2021 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
The Clerk of the Appellate Boards docketed the appeal as No. 21-0843.
On September 23, 2015 appellant, then a 54-year-old information technologist, filed a
traumatic injury claim (Form CA-1), alleging that on June 16, 2014 he injured his neck when he
was involved in a motor vehicle while in the performance of duty. He did not stop work. OWCP
accepted the claim for cervical sprain.
On March 25, 2016 appellant filed a claim for compensation (Form CA-7) requesting
wage-loss compensation for intermittent disability from September 24, 2015 through
January 25, 2016. By decision dated March 29, 2017, OWCP denied this claim.
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.

On March 15, 2017 appellant filed a Form CA-7 claiming disability for the period
September 24, 2015 through February 3, 2017. By decision dated June 13, 2018, OWCP denied
his claimed period of disability from January 26, 2016 through February 3, 2017.
On June 13, 2019 appellant requested reconsideration. 2 By decision dated July 2, 2019,
OWCP denied modification of its prior decision.
On June 16, 2020 appellant, through his representative, requested reconsideration and
submitted additional medical evidence. By decision dated August 24, 2020, OWCP denied
modification of its prior decisions.
On November 19, 2020 appellant, through his representative, requested reconsideration.
He provided additional medical evidence dated November 3, 2020 from Dr. Gregory Phillips,
Board-certified in sports medicine, physical medicine and rehabilitation, and interventional pain
management, addressing appellant’s claimed disability from work.
By decision dated January 26, 2021, OWCP denied appellant’s reconsideration request,
finding that: “[b]ecause your letter neither raised substantive legal questions nor included new
and relevant evidence, it is insufficient to warrant a review of our prior decision at this time. ”
The Board, having duly considered this matter, finds that this case is not in posture for
decision.
OWCP did not make findings regarding the additional medical evidence submitted in
support of the reconsideration request. 3 It summarily denied appellant’s request for
reconsideration without complying with the review requirements of FECA and its implementing
regulations.4 Section 8124(a) of FECA provides that OWCP shall determine and make a finding
of fact and make an award for or against payment of compensation.5 Its regulations at 20 C.F.R.
§ 10.126 provide that the decision of the Director of OWCP shall contain findings of fact and a
statement of reasons. 6 As well, OWCP’s procedures provide that the reasoning behind OWCP’s
evaluation should be clear enough for the reader to understand the precise defect of the claim and
the kind of evidence which would overcome it. 7

2

By the July 2, 2019 decision, OWCP rescinded a June 21, 2019 decision, which denied appellant’s request for
reconsideration as untimely filed and failing to demonstrate clear evidence of error.
3

See R.C., Order Remanding Case, Docket No. 20-1671 (issued May 6, 2021); J.K., Order Remanding Case,
Docket No. 20-0556 (issued August 13, 2020); C.D., Order Remanding Case, Docket No. 20-0450 (issued August 13,
2020); T.B., Order Remanding Case, Docket No. 20-0426 (issued July 27, 2020).
4

See C.G., Docket No. 20-0051 (issued June 29, 2020); T.P., Docket No. 19-1533 (issued April 30, 2020); see also
20 C.F.R. § 10.607(b).
5

5 U.S.C. § 8124(a).

6

20 C.F.R. § 10.126.

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013).

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In denying appellant’s November 19, 2020 reconsideration request, OWCP failed to
reference or analyze the additional medical evidence submitted from Dr. Phillips. The January 26,
2021 decision simply noted: “[b]ecause your letter neither raised substantive legal questions nor
included new and relevant evidence, it is insufficient to warrant a review of our prior decision at
this time.”
The Board will therefore set aside OWCP’s January 26, 2021 decision and remand the case
for an appropriate decision on appellant’s reconsideration request, which describes the evidence
submitted on reconsideration and provides detailed reasons for accepting or rejecting the
reconsideration request. 8 Accordingly,
ORDER
IT IS HEREBY ORDERED THAT the January 26, 2021 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: December 6, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8

5 U.S.C. § 8124(a). All evidence submitted should be reviewed and discussed in the decision. Evidence received
following development that lacks probative value should also be acknowledged. Whenever possible, the evidence
should be referenced by author and date. Id. at Chapter 2.1401.5(b)(2) (November 2012).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Carol Stream, IL,
Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1059
Issued: February 6, 2019

Case Submitted on the Record

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

JURISDICTION
On May 1, 2018 appellant, through counsel, filed a timely appeal from an April 6, 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.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that following the April 6, 2018 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 evidence for
the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly denied waiver of recovery of the overpayment of
compensation in the amount of $31,473.32.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances as set forth
in the prior Board decisions are incorporated herein by reference. The relevant facts are as follows.
On September 9, 2003 appellant, then a 46-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that, on September 8, 2003, he sustained a cervical strain and head
injury in the performance of duty. In a supplemental statement he explained that his injuries
occurred when he drove his fork lift into a parked truck. OWCP accepted the claim for concussion,
cervical strain, and cervical spinal stenosis.
On March 30, 2007 appellant filed a claim for a schedule award (Form CA-7). By decision
dated October 15, 2007, OWCP granted him a schedule award for two percent permanent
impairment of the right upper extremity and two percent permanent impairment of the left upper
extremity. By decision dated June 25, 2009, it awarded appellant an additional 11 percent
permanent impairment of the right upper extremity and an additional 12 percent permanent
impairment of the left upper extremity, resulting in a total of 13 percent permanent impairment of
the right upper extremity and 14 percent permanent impairment of the left upper extremity. By
decision dated April 16, 2012, OWCP granted him an additional 6 percent permanent impairment
of the right upper extremity and 6 percent permanent impairment of the left upper extremity for a
total of 19 percent permanent impairment of the right upper extremity and 20 percent permanent
impairment of the left upper extremity.
By notice dated February 1, 2013, OWCP advised appellant of its preliminary
determination that he had received an overpayment of compensation in the amount of $31,473.32
as the additional impairment he was granted in the April 16, 2012 decision had already been
incorporated into his prior schedule awards for a total of 13 percent right upper extremity
permanent impairment and 14 percent left upper extremity permanent impairment. It made the
preliminary finding that he was not at fault in the creation of the overpayment and provided an
overpayment recovery questionnaire (Form OWCP-20) for his completion. OWCP afforded
appellant 30 days to respond and submit supporting financial documentation.
On February 26, 2013 appellant requested a telephonic prerecoupment hearing with an
OWCP hearing representative.
Appellant subsequently submitted a completed Form OWCP-20 reporting monthly income
of $918.72 and monthly expenses of $3,700.00. Under other funds, he reported $50.00 cash on
hand and $573.57 in a checking account. Appellant also listed his claimed expenses.
By decision dated September 9, 2013, OWCP’s hearing representative finalized the
overpayment of compensation in the amount of $31,473.32, finding that appellant was erroneously
4

Docket No.17-0276 (issued August 8, 2017); Docket No, 14-0195 (issued October 10, 2014).

2

paid a schedule award for an additional six percent permanent impairment of each upper extremity.
The hearing representative denied waiver of recovery of the overpayment of compensation as
appellant’s income exceeded his expenses and ordered recovery by deducting $400.00 from
appellant’s continuing compensation payments every 28 days.
On November 5, 2013 appellant, through counsel, appealed to the Board. By decision
dated October 10, 2014, the Board affirmed in part and set aside in part OWCP’s September 9,
2013 decision. The Board found that OWCP properly determined that an overpayment of
compensation was created in the amount of $31,473.32 based on the receipt of an additional six
percent permanent impairment of each upper extremity, to which he was not entitled. The Board
further determined, however, that OWCP had not properly considered whether denial of waiver of
recovery of the overpayment would be against equity and good conscience or would defeat the
purpose of FECA. The Board remanded the case to OWCP for further findings as to whether
recovery of the overpayment should be waived.
On August 29, 2016 OWCP provided appellant a Form OWCP-20 and requested
supporting documentation so that it could evaluate whether the overpayment should be waived. It
noted that the 2013 Form OWCP-20 was outdated and requested that he provide updated financial
information. OWCP afforded appellant 30 days to respond and provide supporting financial
documentation.
By letter dated October 3, 2016, OWCP sent appellant a second request for an updated
Form OWCP-20 and supporting financial information. It afforded him another week to respond.
On October 14, 2016 OWCP received a completed Form OWCP-20 which reported
monthly income of $1,952.00 and monthly expenses of $1,883.00. Appellant also reported that he
had $60.00 cash on hand and a negative balance of $791.91 in a checking account. He also listed
his claimed expenses. No corrobrating financial documentation was received.
By decision dated October 17, 2016, OWCP denied waiver of recovery of the overpayment
of compensation in the amount of $31,473.32. It found that appellant had failed to respond to its
letters dated August 29 and October 3, 2016. OWCP further determined that it would recover the
overpayment by deducting $400.00 from his continuing compensation payments every 28 days.
On November 17, 2016 appellant, through counsel, appealed to the Board. By decision
dated August 8, 2017, the Board set aside the October 17, 2016 decision denying waiver of
recovery of the overpayment. The Board determined that OWCP had failed to properly consider
a completed Form OWCP-20 overpayment recovery questionnaire that was received into the
record prior to the issuance of the October 17, 2016 decision. The Board remanded the case for
OWCP to fully consider the evidence followed by a de novo decision.
A telephone conference on the issue of waiver of recovery of the overpayment was held on
March 7, 2018. Appellant stated that his monthly income was $2,846.00 based on $1,949.00 in
social security benefits and $897.00 in Federal Employees Retirement System (FERS) benefits.
Monthly expenses were listed as $850.00 for rent/mortgage, $250.00 for food, $100.00 for
clothes/cleaners, $140.00 for electricity, $75.00 for water, $95.00 for gas, $180.00 for
telephone/internet, $330.00 for a car loan, $300.00 for car insurance, $150.00 gas for the car,
$200.00 for medication, $230.00 for credit card payment, and $150.00 for a paypal loan, resulting
in total monthly expenses of $3,025.00. OWCP noted a negative $179.00 monthly amount after
3

deducting expenses from income. It requested that appellant provide documentation supporting
his expenses on the issue of waiver. OWCP afforded he was 15 days to provide the requested
supporting financial documentation.
On March 27, 2018 OWCP received an updated Form OWCP-20. Appellant reported
monthly income of $2,846.00 from social security disability and Office of Personnel Management
benefits, and monthly expenses of $3,155.00. He indicated that he had a balance of -$800.00 in a
checking account. Under expenses, appellant listed $900.00 for rent or mortgage, $400.00 for
food, $200.00 for clothing, $605.00 for utilities, $400.00 for other expenses, $350.00 for car loan,
and $300.00 for insurance. He noted that he needed to file for bankruptcy. Appellant also
submitted a handwritten statement in which he listed monthly expenses which included $330.00
to Gateway one Lending and Finance, $180.00 to paypal credit, $159.51 to AT&T DirectTV and
internet, $83.00 for Sprint, $240.00 for vehicle gas, $200.00 for medicine, $100.00 for cleaners,
$38.00 to Capitol One, $49.00 to First Premier, $55.00 to Merrick Bank, $63.00 to Credit One
Bank, $120.00 to Commonwealth Edison Electric, $260.00 for food, and $247.41 for vehicle
insurance. He also listed a bimonthly expense of $135.00 for garbage and waste and a checking
account balance of negative $800.00. The only financial documenation appellant submitted was
an automobile insurance bill and a copy of a rental agreement. The automobile insurance bill listed
installment options and showing a current balance of $2,379.10 and minimum payment due
of $242.41. The rental agreement noted a monthly rental fee of $900.00. No further documenation
regarding income or expenses was received.
By decision dated April 6, 2018, OWCP denied waiver of recovery of the $31,473.32
overpayment of compensation. It found that appellant had not provided financial information
establishing his income or expenses. OWCP concluded that he had not estabished that recovery
of the overpayment would defeat the purpose of FECA or be against equity and good conscience.
It did, however, waive the interest on the overpayment and determined that appellant had sufficient
income to repay the overpayment in the amount of $200.00 every 28 days commencing
May 6, 2018.
LEGAL PRECEDENT
Section 8129 of FECA provides that an individual who is without fault in the creation of
or acceptance of an overpayment is still subject to recovery of the overpayment unless adjustment
or recovery would defeat the purpose of FECA or would be against equity and good conscience.5
Thus, a finding that appellant was without fault does not automatically result in waiver of the
overpayment. OWCP must exercise its discretion to determine whether recovery of the
overpayment would defeat the purpose of FECA or would be against equity and good conscience.6
According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose of
FECA if recovery would cause hardship because the beneficiary needs substantially all of his or
her income (including compensation benefits) to meet current ordinary and necessary living

5

5 U.S.C. § 8129(b); 20 C.F.R. §§ 10.433, 10.434, 10.436 and 10.437.

6

See Wade Baker, 54 ECAB 198 (2002).

4

expenses, and also, if the beneficiary’s assets do not exceed a specified amount as determined by
OWCP from data provided by the Bureau of Labor Statistics.7
Section 10.437 provides that recovery of an overpayment is considered to be against equity
and good conscience when an individual who received an overpayment would experience severe
financial hardship attempting to repay the debt and when an individual, in reliance on such
payments or on notice that such payments would be made, gives up a valuable right or changes his
or her position for the worse.8
Section 10.438(a) provides that the individual who received the overpayment is responsible
for providing information about income, expenses, and assets as specified by OWCP, as this
information is needed to determine whether or not recovery of an overpayment would defeat the
purpose of FECA or be against equity and good conscience.9 Section 10.438(b) provides that
failure to submit the requested information within 30 days of the request shall result in denial of
waiver.10
ANALYSIS
The Board finds that OWCP properly denied waiver of recovery of the overpayment of
compensation in the amount of $31,473.32.
In a March 7, 2018 telephone conference, OWCP noted that appellant had forwarded a
completed overpayment recovery questionnaire, Form OWCP-20, but had not submitted
supporting financial documentation. During the telephone conference, appellant detailed total
income of $2,846.00 and total monthly expenses of $3,025.00. OWCP informed him that
documentation supporting the information provided was required prior to consider the issue of
waiver. It afforded appellant 15 days to provide the requested financial evidence. OWCP
informed him that if there was no response, a final decision would be made on the issues of waiver
and repayment. The only financial evidence appellant submitted was a completed Form OWCP20, with a handwritten supplement, in which he noted total expenses of $3,155.00, a copy of an
automobile insurance bill, and a rental agreement. No other documentation supporting his noted
income or expenses was submitted.
In requesting waiver, the overpaid individual has the responsibility for submitting financial
information.11 Although appellant had been advised that he must submit documentation
substantiating his income and expenses, he merely provided lists and failed to provide actual

7

20 C.F.R. § 10.436. OWCP’s procedures provide that assets must not exceed a resource base of $4,800.00 for an
individual or $8,000.00 for an individual with a spouse or dependent plus $960.00 for each additional dependent.
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6(a)(1)(b) (June 2009).
8

Id. at § 10.437.

9

Id. at 10.438(a).

10

Id. at 10.438(b).

11

Id.; see also R.O., Docket No. 18-0076 (issued August 3, 2018).

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documentation of his income and expenses as required by section 10.438 of its regulations. Thus,
he has not established that recovery of the overpayment would defeat the purpose of FECA.12
Appellant also has not shown that he gave up a valuable right or changed his position for
the worse in reliance on anticipated compensation payments. Thus, he has not shown that, if
required to repay the overpayment, he would be in a worse position after repayment than if he had
never received the overpayment at all. Appellant, therefore, has not established that recovery of
the overpayment would be against equity and good conscience.13
As appellant failed to establish that recovery of the overpayment in compensation would
defeat the purpose of FECA or be against equity and good conscience, the Board finds that OWCP
did not abuse its discretion in denying waiver of recovery.14
CONCLUSION
The Board finds that OWCP properly denied waiver of recovery of the overpayment of
compensation in the amount of $31,473.32.

12

See L.W., Docket No. 16-1179 (issued December 20, 2016).

13

See V.T., Docket No. 18-0628 (issued October 25, 2018).

14
With respect to recovery of the overpayment of compensation, the Board’s jurisdiction is limited to reviewing
those cases where OWCP seeks recovery from continuing compensation benefits under FECA. As appellant is no
longer receiving wage-loss compensation, the Board does not have jurisdiction with respect to the recovery of the
overpayment under the Debt Collection Act. Cheryl Thomas, 55 ECAB 610 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the April 6, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 6, 2019
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
DEPARTMENT OF THE INTERIOR, BUREAU
OF RECLAMATION, Sacramento, CA,
Employer
__________________________________________

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

Docket No. 13-652
Issued: May 23, 2013

Case Submitted on the Record

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

JURISDICTION
On January 28, 2013 appellant, through her attorney, filed a timely appeal of an Office of
Workers’ Compensation Programs’ (OWCP) decision dated December 21, 2012. Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained a recurrence of disability on February 1, 2012
causally related to his accepted May 13, 1982 employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
Appellant, a 29-year-old maintenance worker, was injured on May 13, 1982 while
digging a hole with a shovel. He filed a claim for benefits, which OWCP accepted for right knee
sprain, right knee dislocation and meniscus tear of the right knee.
Appellant underwent two surgeries on his right knee: a lateral meniscectomy on
September 9, 1982; and an arthroscopic procedure on April 12, 1982.
In a May 23, 1991 report, Dr. Michael A. Florio, Board-certified in orthopedic surgery,
stated that appellant did not have any symptoms of pain or discomfort in his right knee.
Appellant related that, when he engaged in strenuous activities like playing football or putting a
roof on the house, his right knee ached slightly. Dr. Florio stated that there was no catching,
locking, swelling or giving way of the right knee. He stated that on physical examination he had
an essentially normal gait. Dr. Florio noted mild arthritic changes in the right knee in addition to
an old osteophyte/spur which was probably a residual congenital deformity. He noted that
appellant had undergone resection/excision of the medial and lateral meniscus of the right knee
and advised that x-rays were normal. Dr. Florio concluded that, at the present time, appellant’s
only work restrictions would be extended periods of standing or working in a kneeling or
squatting position.
On March 5, 2012 appellant filed a Form CA-2a claim for benefits, alleging that he
sustained a recurrence of disability on February 1, 2012 which was causally related to his
accepted May 13, 1982 employment injury. He sought reimbursement for medical care he
received on February 16, 2012.2
By letters dated May 15 and 23, 2012, OWCP advised appellant to provide additional
medical and factual evidence in support of his claim for a recurrence of disability as of
February 1, 2012. It advised him to provide a comprehensive medical report which included
objective findings relative to the right knee, the diagnosis or diagnoses of the right knee
condition(s), results of any diagnostics tests and the physician’s well-rationalized opinion as to
how his present knee condition was causally related to the May 13, 1982 employment injury.
In a report dated June 21, 2012, Dr. Marshall S. Lewis, a specialist in orthopedic surgery,
stated findings on examination and reviewed appellant’s medical history. He noted a blocked
tibiofemoral rotation with exquisite tenderness to the lateral compartment of the right knee, with
crepitation to the lateral compartment with tibiofemoral rotation. Appellant also had gross
tenderness over the medial joint line and lateral joint line; he was unable to execute perform
pivot shifting due to crepitation in the lateral compartment of the right knee. Dr. Lewis advised
that he had a grossly antalgic gait and a varus deformity.
Appellant underwent x-rays of the right knee which showed degenerative
changes/osteoarthritis, bone on bone in the lateral compartment with bone shedding, while the
medial compartment was reasonably well preserved. Dr. Lewis diagnosed recurrent internal
derangement of the knee with gross degenerative changes to the lateral compartment which are
2

Appellant also indicated that he was not working as he had been laid off from work on January 31, 2011.

2

now bone on bone. With regards to causation, he stated that appellant had a prior injury and
prior surgery to the right knee, with residual symptoms; he opined that without any other history
of trauma to the knee these appeared to be the long-term sequelae of the original injury and
subsequent cumulative trauma over time to the point where his right knee had worn out.
Dr. Lewis therefore concluded that, without any other known cause for the knee to degenerate,
his condition stemmed from the May 13, 1982 employment injury.
By decision dated July 24, 2012, OWCP denied appellant’s claim, finding that the
medical evidence was insufficient to establish that he sustained a recurrence of his May 13, 1982
work injury as of February 1, 2012.
By letter dated July 30, 2012, appellant, through his attorney, requested an oral hearing,
which was held on October 17, 2012. He stated at the hearing that his right knee was essentially
asymptomatic until four or five years previously, at which time he began having difficulty with
the knee. Appellant stated that he began having problems with swelling and popping in the knee,
with tenderness and looseness. He related that his deteriorating right knee condition caused him
to seek medical treatment.
By decision dated December 21, 2012, OWCP’s hearing representative affirmed the
July 24, 2012 OWCP decision.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which has resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.3 A person who claims a recurrence of disability due to an accepted
employment-related injury has the burden of establishing by the weight of the substantial,
reliable and probative evidence that the disability for which she claims compensation is causally
related to the accepted injury. This burden of proof requires that an employee furnish medical
evidence from a physician who, on the basis of a complete and accurate factual and medical
history, concludes that the disabling condition is causally related to the employment injury and
supports that conclusion with sound medical reasoning.4 Where no such rationale is present,
medical evidence is of diminished probative value.5
In order to establish that a claimant’s alleged recurrence of the condition was caused by
the accepted injury, medical evidence of bridging symptoms between her present condition and
the accepted injury must support the physician’s conclusion of a causal relationship.6

3

R.S., 58 ECAB 362 (2007); 20 C.F.R. § 10.5(x).

4

I.J., 59 ECAB 408 (2008); Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

5

See Ronald C. Hand, 49 ECAB 113 (1957); Michael Stockert, 39 ECAB 1186, 1187-88 (1988).

6

Mary A. Ceglia, 55 ECAB 626 (2004).

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OWCP’s procedure manual provides that, after 90 days of release from medical care
(based on the physician’s statement or instruction to return as needed, or computed by the claims
examiner from the date of last examination), a claimant is responsible for submitting an
attending physician’s report, which contains a description of the objective findings and supports
causal relationship between the claimant’s current condition and the previously accepted work
injury.7
ANALYSIS
In the instant case, appellant has failed to submit any medical opinion containing a
rationalized, probative report which relates his claimed recurrence of disability for work as of
February 1, 2012 to his accepted right knee condition. For this reason, he has not discharged his
burden of proof to establish his claim that he sustained a recurrence of disability as a result of his
accepted employment condition.
OWCP accepted appellant’s May 13, 1982 employment injury for right knee sprain, right
knee dislocation and meniscus tear of the right knee. The record contains no medical reports
from 1991 until June 21, 2012, the date of Dr. Lewis’ report. Dr. Lewis did not provide a
rationalized, probative medical opinion indicating that appellant sustained a recurrence of
disability on February 1, 2012 causally related to his accepted May 13, 1982 right knee injury.
He stated that appellant had arthritic, degenerative changes in his right knee as demonstrated by
examination and x-ray findings. Dr. Lewis indicated that, without any other history of trauma to
the knee, his May 1982 injury and subsequent surgeries, with residual symptoms, appeared to be
the long-term sequelae of the original injury. He opined that appellant had experienced longterm, cumulative trauma to his right knee to the point where it had essentially worn out. In lieu
of any other known cause for the knee to degenerate, Dr. Lewis believed that the current
condition of appellant’s right knee stemmed from the May 13, 1982 employment injury.
Dr. Lewis’ opinion on causal relationship is of limited probative value in that he did not
provide adequate medical rationale in support of his conclusions.8 He did not describe any
alleged recurrence in detail or how the May 13, 1982 work accident would have been competent
to cause the claimed recurrence of disability. Dr. Lewis opined that appellant’s 1982 right knee
injury “appeared” to be the cause of his claimed recurrence because there was no other traumatic
incident in his medical history. These statements are broad and vague as they do not explain
whether appellant’s accepted May 13, 1982 employment injury contributed to his claimed
condition and/or disability as of February 1, 2012. This explanation is particularly important as
there is no bridging evidence of medical treatment between 1983 and the June 21, 2012 report
from Dr. Lewis. Further, his opinion is equivocal in that he appeared too partially attribute
appellant’s right knee condition to cumulative trauma and degeneration over a period of time.
Although Dr. Lewis refers to the initial May 13, 1982 work injury, he failed to sufficiently

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5(b) (January 1995).

8

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

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explain whether appellant required medical treatment beginning February 1, 2012 due to the
accepted injury.9
Appellant has not submitted a physician’s reasoned opinion in which the physician
explains the reasons why his condition as of February 1, 2012 was causally related to the
May 13, 1982 work injury. For these reasons, the medical evidence is insufficient to establish a
recurrence of a medical condition causally related to the accepted right knee condition.
CONCLUSION
The Board finds that appellant has not sustained a recurrence of disability on February 1,
2012 causally related to his accepted May 13, 1982 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the December 21, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 23, 2013
Washington, DC

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

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

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

9

See Mary A. Ceglia, 55 ECAB 656 (2004) (appellant has the burden of furnishing medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes that the condition is
causally related to the employment injury and supports that conclusion with sound rationale).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Elmhurst, IL, Employer
_________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-0075
Issued: December 17, 2020

Case Submitted on the Record

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

On October 23, 2020 appellant, through counsel, filed a timely appeal from a
September 24, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP).
The Clerk of the Appellate Boards assigned Docket No. 21-0075.
In a letter dated and received December 9, 2020, counsel requested that the appeal be
dismissed.
The Board has duly considered the matter and concludes that counsel’s request for the
dismissal of the appeal should be granted. Accordingly,

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.

IT IS HEREBY ORDERED THAT appellant’s request for the dismissal of the appeal
is granted. The appeal docketed as No. 21-0075 is dismissed.
Issued: December 17, 2020
Washington, DC

Christopher J. Godfrey, Deputy 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

2