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

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Appearances:
Robert D. Campbell, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1862
Issued: February 13, 2013

Case Submitted on the Record

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

JURISDICTION
On September 6, 2012 appellant, through counsel, filed a timely appeal from a March 8,
2012 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 that her right knee
degenerative joint disease is causally related to factors of her federal employment.
FACTUAL HISTORY
On May 12, 2011 appellant, then a 50-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that she developed a right knee condition as a result of delivering
mail by walking through the snow in December 2010. She noted that specifically on
1

5 U.S.C. § 8101 et seq.

December 31, 2010, she became stuck in the snow and had to pull herself out, causing increased
right knee pain. Appellant first became aware of her condition on May 20, 2005 and of its
relationship to her employment on January 11, 2011. She notified her supervisor on
May 17, 2011.
By letter dated May 18, 2011, the employing establishment controverted the claim.
In treatment notes dated October 5, 2008, December 31, 2010 and January 3, 2011 from
South River Medical Associates, it was noted that appellant complained of right knee pain due to
arthritis which caused her trouble when walking, worse when driving.
In a December 16, 2009 diagnostic report, Dr. Robert E. Epstein, a Board-certified
diagnostic radiologist, reported that a magnetic resonance imaging (MRI) scan of the right knee
showed mild medial and patellofemoral osteoarthritis without ligament or meniscal tear.
In a September 28, 2010 medical report, Dr. Jonathan B. Pine, Board-certified in
osteopathic medicine, reported that physical examination revealed pain along the medial joint
line of the right knee. He diagnosed medial joint space narrowing and early degenerative joint
disease (DJD) of the right knee. Dr. Pine provided appellant with Marcaine and Celestone
injections.
By letter dated June 3, 2011, OWCP informed appellant that the evidence of record was
insufficient to support her claim. Appellant was advised of the medical and factual evidence
needed and was asked to respond to the questions provided in the letter within 30 days.
In medical reports dated July 6, 2010 to March 22, 2011, Dr. Pine reported that appellant
complained of bilateral knee pain. X-rays of the knees revealed medial joint space narrowing.
Dr. Pine diagnosed early bilateral degenerative joint disease of the knees, restricted appellant to
light duty and recommended she work no more than seven hours a day.
In a January 7, 2011 diagnostic report, Dr. Laura Grygotis, a Board-certified diagnostic
radiologist, reported that an MRI scan of the right knee revealed mild degenerative changes
within the joint and chondromalacia in the retropatellar cartilage with a small subchondral cyst
present in the medial patella, suggesting a small focal area full thickness chondromalacia.
In an undated narrative statement, appellant reported that at the end of December she was
delivering mail on her route with lots of snow on the ground, making it difficult to walk and
increasingly aggravating her knees. She stated that on December 31, 2010 she got stuck in the
snow and injured her right knee when trying to pull her leg out. Appellant described her
employment duties which included sorting and delivering mail and stated that she began to
experience bilateral knee pain in 2009 from her duties as a letter carrier. She further stated that
in 2010, her knee pain became increasingly worse, especially when driving the mail truck and
stepping out of the truck. Appellant also noted that she fell on her right knee in 1993 and was on
light duty for two weeks before returning to full duty. In 2003, she fell off a curb and landed on
her right knee which was not injured during the employment incident.

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By decision dated August 15, 2011, OWCP denied appellant’s claim finding that the
medical evidence did not demonstrate that her injury was causally related to the established
work-related events.
On September 3, 2011 appellant, through counsel, requested an oral hearing before the
Branch of Hearings and Review.
At the January 10, 2012 hearing, appellant argued that delivering mail in the snow
aggravated her knee condition, making it difficult for her to complete her employment duties.
She noted that aggravation of her knee condition was a result of her employment duties in
December 2010 and not just caused by the December 31, 2010 incident. Appellant did not return
to work for approximately two months after December 31, 2010. She testified that though she
returned to full time duty, she continued to experience pain when performing her employment
duties. Appellant further stated that she first noticed mild sharp pains in her knee on May 20,
2005 but her condition was minimal, required little treatment and that her employment activities
in December 2010 aggravated her right knee condition. She further stated that she was not
claiming a left knee injury.
By letter dated February 6, 2012, counsel argued that appellant’s employment duties as a
letter carrier aggravated and exacerbated her right knee degenerative joint disease as evidenced
by Dr. Mohnish Ramani’s January 31, 2012 medical report.
In a January 31, 2012 medical report, Dr. Mohnish Ramani, a Board-certified orthopedic
surgeon, reported that he initially evaluated appellant for treatment of right knee pain on
August 15, 2011. He noted that she presented with a long standing history of right knee pain
which had been progressively worsening and attributed her condition to the type of work she did
as a mail carrier. Dr. Ramani noted that appellant’s work entailed prolonged walking as well as
stairs which exacerbated her symptoms. He noted that on the date of examination, the right knee
showed mild medial and lateral joint line tenderness, mild tenderness over the patella tendon
tibial tuberosity and mediate patellofemoral tenderness and patellofemoral apprehension with
mild patellofemoral crepitus. Diagnostic testing revealed degenerative changes and appellant
was diagnosed with degenerative joint disease of the right knee. During a December 8, 2011
visit, appellant complained of exacerbation of her symptoms, stating that it occurred two weeks
prior when she was going down stairs while working. At her January 19, 2012 visit, examination
of the right knee remained unchanged and x-rays of her hip demonstrated bilateral arthritis.
X-rays of appellant lumbar spine demonstrated degenerative changes in the lower lumbar area at
L5-S1.
Dr. Ramani stated that appellant experienced chronic right knee pain of long standing
duration. Based on radiographic findings and clinical examination, appellant’s symptoms were
consistent with mild degenerative joint disease of the right knee. Dr. Ramani further stated that
he reviewed Dr. Pine’s medical reports and appellant’s description of her employment duties,
noting that her symptoms were exacerbated by her employment duties as a letter carrier due to
constant walking and climbing up and down stairs. He concluded that with a reasonable degree
of medical probability, appellant’s work duties were directly affecting and exacerbating
symptoms referable to the right knee, requiring continued treatment and a more sedentary type
position to alleviate her knee symptoms.

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By decision dated March 8, 2012, OWCP affirmed the August 15, 2011 decision finding
that the evidence of record failed to establish that appellant’s degenerative joint disease of the
right knee is causally related to the established work-related events.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.2 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or occupational disease.3
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.4 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.5
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.6 The opinion of the physician 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. This
medical opinion must include an accurate history of the employee’s employment injury and must
explain how the condition is related to the injury. The weight of medical evidence is determined

2

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

3

Michael E. Smith, 50 ECAB 313 (1999).

4

Elaine Pendleton, 40 ECAB 1143 (1989).

5

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

6

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

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by its reliability, its probative value, its convincing quality, the care of analysis manifested and
the medical rationale expressed in support of the physician’s opinion.7
ANALYSIS
OWCP accepted that appellant delivered mail by walking and climbing up and down
stairs in her employment activities as a letter carrier. It denied her claim, however, on the
grounds that the evidence failed to establish a causal relationship between those activities and her
right knee degenerative joint disease. On appeal, appellant argues that the medical evidence of
record does support causal relationship between her federal employment duties, including the
December 31, 2010 work incident and her right knee condition.
The Board finds that the medical evidence of record is insufficient to establish that
appellant sustained right knee degenerative joint disease or an aggravation of this condition,
causally related to factors of her employment as a letter carrier.
The Board notes initially that there is no medical evidence of record that directly relates
appellant’s diagnosed condition to a specific incident of December 31, 2010. In medical reports
dated July 6, 2010 to March 22, 2011, Dr. Pine reported that appellant complained of bilateral
knee pain. X-rays of the knees revealed medial joint space narrowing. Dr. Pine diagnosed
medial joint space narrowing and early bilateral degenerative joint disease of the knees. He
restricted appellant to light duty and recommended she work no more than seven hours a day.
While Dr. Pine provided a diagnosis of her condition, he failed to provide any opinion on the
cause of her knee injury. The Board has held that medical evidence that does not offer any
opinion regarding the cause of an employee’s condition is of limited probative value on the issue
of causal relationship.8 Thus, Dr. Pine’s reports are insufficient to meet appellant’s burden of
proof.
In a January 31, 2012 medical report, Dr. Ramani reported that he initially evaluated
appellant for treatment of right knee pain on August 15, 2011. He noted that she presented with
a long standing history of right knee pain which had progressively worsened, attributing her
condition to the type of work she did as a mail carrier. Based on diagnostic testing and physical
examination, Dr. Ramani diagnosed degenerative joint disease of the right knee. During a
December 8, 2011 visit, appellant complained of exacerbation of her symptoms, stating that her
knee pain occurred two weeks prior when she was going down stairs while working. Dr. Ramani
stated that she experienced chronic right knee pain of long standing duration. He noted that
appellant’s symptoms were exacerbated by her employment duties as a letter carrier due to
constant walking and climbing up and down stairs. Dr. Ramani further noted that he reviewed
Dr. Pine’s medical reports and concluded that with a reasonable degree of medical probability,
appellant’s work duties were directly affecting and exacerbating symptoms referable to the right
knee. He recommended a sedentary type position to alleviate appellant’s knee symptoms and
continued treatment.

7

James Mack, 43 ECAB 321 (1991).

8

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

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The Board finds that the opinion of Dr. Ramani is not well rationalized. Dr. Ramani
diagnosed right knee degenerative joint disease. He opined that with a reasonable degree of
medical probability appellant’s work duties were directly affecting and exacerbating symptoms
referable to the right knee. Under FECA, when employment factors cause an aggravation of an
underlying physical condition, the employee is entitled to compensation for the periods of
disability related to the aggravation.9 While Dr. Ramani stated an opinion on causal relationship,
he failed to provide an explanation of how walking and climbing stairs would cause or aggravate
appellant’s preexisting degenerative joint disease of the right knee. He did not provide a detailed
medical history and made no mention of her prior right knee injuries other than stating that she
presented with a long standing history of right knee pain. Dr. Ramani also failed to adequately
describe appellant’s work duties, did not specify how long she worked as a letter carrier, how
many hours a day she would walk and climb stairs and the frequency of other physical
movements and tasks. Medical reports without adequate rationale on causal relationship are of
diminished probative value and do not meet an employee’s burden of proof.10 The opinion of a
physician supporting causal relationship must rest on a complete factual and medical background
supported by affirmative evidence, address the specific factual and medical evidence of record
and provide medical rationale explaining the relationship between the diagnosed condition and
the established incident or factor of employment.11 Dr. Ramani’s report does not meet that
standard and is insufficient to meet appellant’s burden of proof.
The remaining medical evidence of record is also insufficient to establish appellant’s
claim. The treatment notes from South River Medical Associates were unsigned and it is well
established that a physician’s signature is required on a report in order for it to be considered as
medical evidence.12 In a December 16, 2009 diagnostic report, Dr. Epstein reported that an MRI
scan of the right knee showed mild medial and patellofemoral osteoarthritis without ligament or
meniscal tear. In a January 7, 2011 diagnostic report, Dr. Grygotis reported that an MRI scan of
the right knee revealed mild degenerative changes within the joint and chondromalacia in the
retropatellar cartilage with a small subchondral cyst present in the medial patella. While these
diagnostic reports provide a diagnosis of appellant’s injury, they fail to state an opinion on causal
relationship.13 Thus, the remaining medical reports are of no probative value.
In the instant case, the record lacks rationalized medical evidence establishing a causal
relationship between appellant’s right knee degenerative joint disease and factors of her federal
employment as a letter carrier. Thus, appellant has failed to meet her burden of proof. She may
submit additional evidence, together with a written request for reconsideration, to OWCP within
one year of the Board’s merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.606
and 10.607.

9

Raymond W. Behrens, 50 ECAB 221, 222 (1999); James L. Hearn, 29 ECAB 278, 287 (1978).

10

Ceferino L. Gonzales, 32 ECAB 1591 (1981).

11

See Lee R. Haywood, 48 ECAB 145 (1996).

12

B.M., Docket No. 11-725 (issued February 17, 2012).

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Supra at note 8.

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CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that her right
knee degenerative joint disease is causally related to factors of her employment as a letter carrier.
ORDER
IT IS HEREBY ORDERED THAT the March 8, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 13, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION WEST SIDE
MEDICAL CENTER, Hines, IL, Employer
__________________________________________

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

Docket No. 10-107
Issued: August 6, 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
By application postmarked October 6, 2009 appellant filed a timely appeal from the
April 16, 2009 decision of the Office of Workers’ Compensation Programs denying his claim for
an emotional condition and the September 28, 2009 decision denying his request for
reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the claim.
ISSUES
The issues are: (1) whether appellant met his burden of proof in establishing that his
emotional condition was causally related to compensable employment factors; and (2) whether
the Office abused its discretion in denying his request for reconsideration.

FACTUAL HISTORY
On March 27, 2006 appellant, then a 52-year-old air maintenance and operations
foreman, filed an occupational disease claim alleging that he sustained an emotional condition
beginning on June 15, 2005 due to harassment, discrimination and a hostile workplace.
In an attending physician’s report (Form CA-20) dated April 6, 2006, Dr. Daniel
Senseng, an attending internist, stated that appellant had diabetes, hypertension, neurodermatitis
and stress adjustment disorder. He noted that appellant has medical problems that were
“aggravated by work stress but not caused by it.” In a work capacity evaluation dated April 10,
2006, Dr. Senseng noted that appellant could work eight hours a day but that he needed a job
with less stress.
On April 20, 2006 the Office asked appellant to submit additional information, including
a detailed description of the employment-related incidents or conditions contributing to his
emotional condition and a comprehensive medical report containing a rationalized opinion on the
cause of his condition.
By letter dated May 11, 2006, Ronald J. Hughes, a supervisor, challenged appellant’s
claim, stating that there were no aspects of his job that could be considered stressful nor were
there any actions taken by management or any supervisor to cause appellant any stress. He
stated that appellant performed his duties in a minimally satisfactory manner.
By decision dated July 13, 2006, the Office denied appellant’s claim on the grounds that
he failed to establish that his emotional condition was causally related to a compensable
employment factor. Appellant did not establish any incidents of harassment by the employing
establishment.
On July 26, 2006 appellant requested a hearing before an Office hearing representative
that was held on October 23, 2006.
Appellant submitted an undated statement, received by the Office on November 2, 2006,
in which he detailed the alleged discriminatory and retaliatory actions taken by the employing
establishment.
He also submitted a January 8, 1990 Equal Employment Opportunity
Commission (EEOC) decision which found that the employing establishment discriminated
against him based on his race (African-American) in failing to select him for a supervisory utility
systems operator position. The employing establishment was ordered to retroactively promote
him to the position of utility systems operator general foreman or an equivalent position effective
February 16, 1986.
By decision dated December 4, 2006, an Office hearing representative affirmed the
July 13, 2006 decision but modified it to find that the denial of appellant’s promotion in 1986, as
found to be racially motivated by a 1990 EEOC decision, established error by the employing
establishment and therefore was a compensable factor. The Office found, however, that the
medical evidence did not establish that his emotional condition was causally related to this
employment factor.

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By letters dated May 30 and November 26, 2007, appellant requested reconsideration. In
a May 10, 2007 report, Dr. Esperanza Y. Salinas, a psychiatrist, provided a lengthy report of a
mental status evaluation at the request of appellant for the purpose of his EEOC claim. She
diagnosed an adjustment disorder, chronic with mixed anxiety and depressed mood, aggravated
by work stress. Appellant claimed that his main problem was interpersonal difficulties with
Mr. Hughes who publicly embarrassed him, unfairly criticized him and gave unfair performance
evaluations. Dr. Salinas found that appellant’s “medical problems were not caused by stress at
work but may have been aggravated by work stressors.”
By decision dated February 7, 2008, the Office denied modification of its December 4,
2006 decision on the grounds that the medical evidence failed to establish causal relationship
between appellant’s emotional condition and the compensable factor of employment.
By letter dated February 3, 2009, appellant requested reconsideration. He submitted an
amended EEOC decision, dated July 7, 2008, which found merit by the EEOC in two allegations:
that appellant’s supervisor, Mr. Hughes, had screamed at appellant during a meeting but that it
was not so severe as to create a hostile work environment and that appellant had been denied
leave to pursue his EEOC claims.
By decision dated April 16, 2009, the Office denied modification of its denial of
appellant’s emotional condition claim. It found that there were now three compensable factors:
(1) discrimination in denying him a promotion in 1986, (2) harassment on August 2, 2005 when
Mr. Hughes yelled at him during a meeting; and (3) improper denial of his requests for leave.
The Office found, however, that the medical evidence did not establish that appellant’s
emotional condition was causally related to any of these employment incidents.
Appellant requested reconsideration. He indicated that he was enclosing copies of EEOC
decisions dated September 11, 2008 and June 4, 2009, but there were no copies of these
documents in the case file.
On September 28, 2009 the Office denied appellant’s request for reconsideration on the
grounds that the evidence submitted was not sufficient to warrant further merit review.
LEGAL PRECEDENT -- ISSUE 1
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with employment but nevertheless does not come within the
coverage of workers’ compensation. Where the disability results from an employee’s emotional
reaction to his regular or specially assigned work duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.1 On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or his frustration from not being permitted to work in a
particular environment or to hold a particular position.2 Generally, actions of the employing
1

5 U.S.C. §§ 8101-8193.

2

Lillian Cutler, 28 ECAB 125 (1976).

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establishment in administrative or personnel matters, unrelated to the employee’s regular or
specially assigned work duties, do not fall within coverage of the Act. However, where the
evidence demonstrates that the employing establishment either erred or acted abusively in the
administration of personnel matters, coverage may be afforded.3
When working conditions are alleged as factors in causing disability, the Office, as part
of its adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment, which may be considered by a physician when
providing an opinion on causal relationship and which are not deemed compensable factors of
employment and may not be considered.4 When an employee fails to establish a compensable
factor of employment, the Office should make a specific finding in that regard. If an employee
does establish a compensable factor of employment, the Office should then determine whether
the evidence of record substantiates that factor.5 As a rule, allegations alone by an employee are
insufficient to establish a factual basis for an emotional condition claim but rather must be
corroborated by other evidence.6 Where the employee alleges compensable factors of
employment, he must substantiate such allegations with probative and reliable evidence.7 When
the matter asserted is a compensable factor of employment and the evidence of record establishes
the truth of the matter asserted, then the Office must base its decision on an analysis of the
medical evidence.8
ANALYSIS -- ISSUE 1
Appellant alleged that his emotional condition was caused by harassment and
discrimination at work. The Office found three factors of employment that could be
compensable if supported by the medical evidence: (1) discrimination in denying him a
promotion in 1986, (2) harassment on August 2, 2005 when Mr. Hughes yelled at him during a
meeting; and (3) improper denial of his requests for leave. The Board finds that the medical
evidence is insufficient to establish that his emotional condition was caused by these accepted
employment factors.
In the Form CA-20, attending physician’s report, Dr. Senseng diagnosed diabetes,
hypertension and neurodermatitis and noted that these medical problems were “aggravated by
work stress but not caused by it.” He diagnosed a stress adjustment disorder but did not describe
specific employment incidents that contributed to appellant’s adjustment disorder or provide
medical rationale explaining how his condition was caused or aggravated by his employment.
Therefore, Dr. Senseng’s opinion regarding causal relationship is insufficient to establish that
appellant’s emotional condition was causally related to the compensable factors of employment.
3

Michael Thomas Plante, 44 ECAB 510 (1993).

4

Dennis J. Balogh, 52 ECAB 232 (2001).

5

Margaret S. Krzycki, 43 ECAB 496 (1992).

6

See Charles E. McAndrews, 55 ECAB 711 (2004).

7

Joel Parker, Sr., 43 ECAB 220 (1991).

8

See Charles D. Edwards, 55 ECAB 258 (2004).

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Dr. Salinas provided a very lengthy report on the results of her mental status evaluation
of appellant. She diagnosed an adjustment disorder, chronic with mixed anxiety and depressed
mood, aggravated by work stress. Dr. Salinas spoke generally about the factors that aggravated
appellant’s anxiety and depression. She noted that “[t]he stressor that [appellant] identifies as
the main component to his present state is interpersonal difficulties with his direct supervisor,
[Mr.] Hughes. Collateral information reviewed supports a hostile work environment under
Mr. Hughes.” Dr. Salinas further noted, “[appellant’s] medical problems were not caused by
stress at work by may have been aggravated by work stressors.” She did not specifically
reference any of the three compensable factors or identify them as the cause of his emotional
condition. Where Dr. Salinas’s report was equivocal, as she noted that his problems “may” have
been aggravated by work stressors, the Board has held that reports that are speculative or
equivocal in character have diminished probative value.9 Therefore, her report is not sufficient
to establish that appellant’s adjustment disorder was causally related to a compensable
employment factor.
On appeal, appellant contends that the report of Dr. Salinas was deficient because she did
not see copies of the 2008 EEOC decisions.10 As noted, it is his burden to provide sufficient
medical evidence in support of his claim. Appellant’s contention is without merit.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of the Act11 does not entitle a claimant to a review of an Office decision
as a matter of right. This section vests the Office with discretionary authority to determine
whether it will review an award for or against compensation.12 The Office, through regulations,
has imposed limitations on the exercise of its discretionary authority under section 8128(a).13
To require the Office to reopen a case for merit review under section 8128(a) of the
Act,14 the Office’s 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.15 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.16 When a claimant
9

L.R., 58 ECAB 369, 376 (2007).

10

As noted, the 2008 EEOC decisions are not of record.

11

5 U.S.C. §§ 8101-8193.

12

Id. at § 8128(a).

13

Annette Louise, 54 ECAB 783, 789-90 (2003).

14

Under section 8128(a) of the Act, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on [his or her] own motion or on application.” 5 U.S.C. § 8128(a).
15

20 C.F.R. § 10.606(b)(2).

16

Id. at § 10.607(a).

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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.17
ANALYSIS -- ISSUE 2
Appellant did not submit any additional medical evidence in support of his request for
reconsideration of the April 16, 2009 merit decision denying his emotional condition claim. His
claim was denied on the grounds that the medical evidence did not establish that his emotional
condition was causally related to a compensable factor of employment. Appellant needed to
submit relevant and pertinent new medical evidence. Because he did not show that the Office
erroneously applied or interpreted a specific point of law, advance a relevant legal argument not
previously considered or constitute relevant and pertinent new evidence not previously
considered by the Office, it properly denied his request for reconsideration of the denial of his
emotional condition claim.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof in establishing that his
emotional condition was causally related to a compensable employment factor.

17

Id. at § 10.608(b).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 28 and April 16, 2009 are affirmed.
Issued: August 6, 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
__________________________________________
A.S., Appellant
and
PEACE CORPS, Washington, DC, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 11-1677
Issued: October 26, 2011

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On July 12, 2011 appellant timely appealed the June 27, 2011 decision of the Office of
Workers’ Compensations Programs (OWCP), which purportedly denied modification of a
May 5, 2008 schedule award decision. The Board docketed the appeal as No. 11-1677.
This case was previously before the Board.1 Appellant, a 43-year old former Peace Corps
volunteer, has an accepted claim for psychosis, depression -- single episode, which arose on or
about December 15, 1991.2 When the case was previously on appeal, OWCP had denied
appellant’s claim for a schedule award, which the Branch of Hearings and Review affirmed. By
decision dated August 20, 2009, the Board affirmed OWCP’s May 5, 2008 schedule award
decision, as well as the hearing representative’s March 3, 2009 decision. The Board explained
that the brain was not included among the list of schedule members under the Federal
Employees’ Compensation Act or its implementing regulations, and as such, a schedule award
for brain damage was not authorized.3 In its latest decision dated June 27, 2011, OWCP

1

Docket No. 09-1145 (issued August 20, 2009).

2

At the time of his injury, appellant was volunteering overseas in Yaoundé, Cameroon.

3

The Board’s August 20, 2009 decision is incorporated herein by reference.

purportedly reviewed the merits of the May 5, 2008 schedule award decision based on a request
for reconsideration appellant ostensibly submitted on August 20, 2009.4
The Board finds OWCP’s June 27, 2011 decision internally inconsistent. At one point in
the decision, OWCP claimed to have reviewed the merits and denied modification. However,
the stated issue was “whether the evidence received ... [was] sufficient to constitute clear
evidence of error” in the May 5, 2008 decision. Under the heading “[Requirements of
Entitlement],” OWCP explained that in order to reopen the case for reconsideration, the evidence
must establish that OWCP erroneously applied or interpreted a point of law in its earlier
decision. The June 27, 2011 decision then listed various statements and medical reports that
were reportedly received along with appellant’s request for reconsideration. Other than noting
the dates of the statements and medical reports, OWCP did not address the substance of the
evidence submitted. Without explanation or elaboration, OWCP summarily stated that “[u]pon
review of the medical and factual evidence of file, there was no evidence presented ... to show
that ... [OWCP] erred in the [May 5, 2008] decision....” While acknowledging that the evidence
submitted was new to the claim, OWCP indicated this new evidence “had been determined to be
insufficient to warrant modification....” OWCP concluded that the evidence received did not
support a finding of error and, therefore, appellant’s request for reconsideration was denied
pursuant to 20 C.F.R. § 10.608(b).
OWCP appears to vacillate between the standard for an untimely request for
reconsideration under 20 C.F.R. § 10.607(b) -- clear evidence of error -- and the standard for a
timely request for reconsideration under 20 C.F.R. §§ 10.606(b). It repeatedly noted the lack of
evidence of “error” with respect to the May 5, 2008 schedule award decision. If appellant timely
requested reconsideration as OWCP’s June 27, 2011 decision implied, then clear evidence of
error is not the appropriate standard. Accordingly, the case shall be remanded for proper
adjudication of appellant’s request for reconsideration.
The Board further notes that the June 27, 2011 decision is deficient because OWCP failed
to comply with 20 C.F.R. § 10.126, which provides that the “decision shall contain findings of
fact and a statement of reasons.” The mere recitation of the dates of various medical reports and
statements will not suffice for purposes of determining whether appellant is entitled to further
merit review of his claim for a schedule award.

4

On May 19, 2001 OWCP advised appellant that he had submitted an application for reconsideration under
5 U.S.C. § 8128 that warranted merit review. This correspondence did not identify the specific date of appellant’s
request for reconsideration.

2

IT IS HEREBY ORDERED THAT the June 27, 2011 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this order of the Board.5
Issued: October 26, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5

The Board notes that appellant has requested an oral argument before the Board. Given the disposition of this
case, the Board will not grant the request for oral argument.

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
JAMES G. RANDAN, Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Huntington, WV, Employer
__________________________________________

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

Docket No. 19-1563
Issued: March 12, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On July 2, 2019 appellant filed a timely appeal from a June 20, 2019 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether OWCP abused its discretion by denying appellant’s request for
authorization for left lower extremity surgery.

1
2

5 U.S.C. § 8101 et seq.

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

FACTUAL HISTORY
On June 30, 2017 appellant, then a 44-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) alleging that on June 29, 2017 he stepped out of his truck onto a grass-covered hole
and sprained his left ankle while in the performance of duty. OWCP accepted the claim for sprain
of other ligament of the left ankle (initial encounter), sprain of the left foot, and sprain of
calcaneofibular ligament of the left ankle. Appellant stopped work on June 29, 2017 and did not
return. He was placed on the supplemental rolls from August 14 to December 9, 2017 and on the
periodic rolls commencing December 10, 2017.
On August 2, 2017 appellant underwent a magnetic resonance imaging (MRI) scan of the
left ankle which revealed sprains of the deltoid ligament and calcaneofibular ligament.
Appellant treated with Dr. Kevin Brown, a podiatrist specializing in foot and ankle surgery,
from August 17 to November 13, 2017. Dr. Brown diagnosed sprain of the calcaneofibular
ligament of the left ankle and disorder of ligament left ankle, noting that he was totally disabled.
He recommended an elastic bandage, a controlled ankle movement boot, and physical therapy.
Dr. Brown continued conservative treatment from December 28, 2017 to June 18, 2018 and noted
minimal change in his condition. Appellant reported lumbar radiculopathy due to over
compensation and gait abnormality due to the accepted left knee injury. On June 18, 2018
Dr. Brown continued to hold appellant off work pending examination of his back pain.
A left ankle MRI scan dated January 3, 2018 revealed no evidence of internal derangement
and improvement of the tibiotalar joint effusion and subcutaneous edema.
Thereafter, OWCP referred appellant to a second opinion physician. In a July 27, 2018
report, Dr. Syed A. Zahir, a Board-certified orthopedic surgeon, recounted the history of injury of
the left foot and diagnosed left ankle with a sprain of the left ankle calcaneofibular ligament. He
opined that appellant’s foot had healed almost completely and his accepted left foot and ankle
injury required only local treatment, noting that he could perform full-time, light-duty work.
In reports dated July 17 to October 3, 2018, Dr. Brown diagnosed capsulitis, sprain of the
calcaneofibular ligament of the left ankle, and disorder of the ligament of the left ankle and noted
that appellant remained totally disabled from work.
OWCP determined that there was a conflict in medical opinion between Dr. Brown and
Dr. Zahir, regarding level of disability and work restrictions. It referred appellant to Dr. E.
Gregory Fisher, a Board-certified orthopedic surgeon, to resolve the conflict of opinion as the
impartial medical examiner (IME).
In a January 17, 2019 report, Dr. Fisher diagnosed sprained ligament of the left ankle,
sprain of the left foot, sprained calcaneofibular ligament of the left ankle, all resolved without
residuals. He also diagnosed nonwork-related extreme obesity, irritable bowel syndrome, and acid
reflux. Dr. Fisher noted that examination of the back, and neurologic examination of the lower
extremities were normal. He found no objective findings of residuals of the accepted conditions.
However, because of dull tension-like pain over the left foot and ankle on prolonged walking and
standing, appellant was unable to perform the duties of his job as a letter carrier. In response to

2

OWCP’s question as to whether the accepted conditions require continued medical treatment,
Dr. Fisher opined that, appellant “does not require any further definitive treatment, except
supportive care of over-the-counter anti-inflammatory medications as needed and slip-on athletic
ankle support as needed.” He noted that appellant could return to full-time, light-duty work.
In reports dated December 10, 2018 to February 7, 2019, Dr. Brown diagnosed Achilles
tendinitis of the left lower extremity, capsulitis, sprain of the calcaneofibular ligament of the left
ankle, and disorder of the ligament of the left ankle. He performed a subtalar injection and noted
that appellant remained totally disabled from work. On February 7, 2019 Dr. Brown treated
appellant for complaints of worsening left ankle pain. He diagnosed Achilles tendinitis of the left
lower extremity, capsulitis, sprain of the calcaneofibular ligament of the left ankle, and disorder
of the ligament of the left ankle. Dr. Brown advised that appellant remained totally disabled from
work.
In a letter received on March 17, 2019, appellant requested surgical authorization for
release of the lower leg tendon and repair of the ankle ligament.
By decision dated March 18, 2019, OWCP denied authorization for surgical release of the
lower leg tendon and repair of the ankle ligament. It accorded the weight of the medical opinion
of Dr. Fisher, the referee physician, who opined that appellant required no further definitive
treatment except supportive care.3
On March 28, 2019 appellant requested reconsideration. In support of his request, he
submitted an April 4, 2019 report from Dr. Jeffrey K. Wu, a Board-certified orthopedist, who
noted a two-year history of a work-related left ankle/foot injury for which conservative treatment
failed. Dr. Wu diagnosed chronic left ankle pain and peroneal tendinitis/tendinopathy after
previous sprain and recommended an updated MRI scan. He noted that surgical treatment was an
option.
Dr. Brown treated appellant in follow up on April 10, 2019 and diagnosed Achilles
tendinitis of the left lower extremity, capsulitis, sprain of the calcaneofibular ligament of the left
ankle, and disorder of the ligament. He noted pain and swelling with instability of the left anterior
talofibular ligament and calcaneofibular ligament. Dr. Brown recommended Brostrom repair for
long-term stability and pain relief.
On April 16, 2019 Dr. Wu treated appellant in follow up for chronic left ankle pain.
Findings on examination revealed no demonstrated laxity with stress of the left ankle and
tenderness at the tip of the lateral malleolus and inframalleolar portion. Dr. Wu reviewed a left
ankle MRI scan performed April 11, 2019, which revealed no evidence of instability or internal
derangement, nonspecific edema along the medial ankle, but no significant tear tendinopathy. He
diagnosed chronic left ankle pain, previous ankle sprain, and possible underlying peroneal
tendinitis. Dr. Wu reviewed the April 10, 2019 report from Dr. Brown who recommended a lateral
ligament reconstruction. He noted that appellant had not described symptoms consistent with
chronic instability and his examination was not consistent with significant laxity. Dr. Wu opined

3

Id.

3

that appellant’s situation was difficult and a surgery would be considered exploratory with
unpredictable results.
On April 17, 2019 the employing establishment offered appellant a full-time, modifiedduty assignment, effective April 18, 2019. On April 17, 2019 appellant accepted the position
“under protest.”
In medical and surgical authorization request dated April 26 and 30, 2019, Dr. Wu again
requested authorization to perform release of the lower left leg tendon and repair of the left ankle
ligament.
On May 24, 2019 Dr. Wu performed a left peroneus longus tendon repair, left peroneus
brevis tenolysis/debridement, and excision of accessory muscle belly. He diagnosed peroneal
tendinitis on the left and chronic pain of the left ankle. In a progress note dated May 30, 2019,
Dr. Wu noted mild swelling and recommended that appellant remain nonweight bearing.
By decision dated June 20, 2019, OWCP denied modification of the March 18, 2019
decision.
LEGAL PRECEDENT
Section 8103(a) of FECA provides for the furnishing of services, appliances, and supplies
prescribed or recommended by a qualified physician which OWCP, under authority delegated by
the Secretary, considers likely to cure, give relief, reduce the degree or the period of disability, or
aid in lessening the amount of monthly compensation.4 In interpreting section 8103(a), the Board
has recognized that OWCP has broad discretion in approving services provided under FECA to
ensure that an employee recovers from his or her injury to the fullest extent possible in the shortest
amount of time.5 OWCP has administrative discretion in choosing the means to achieve this goal
and the only limitation on OWCP’s authority is that of reasonableness.6
While OWCP is obligated to pay for treatment of employment-related conditions, appellant
has the burden of proof to establish that the expenditure is incurred for treatment of the effects of
an employment-related injury or condition.7 Proof of causal relationship in a case such as this
must include supporting rationalized medical evidence.8 Therefore, in order to prove that the
procedure is warranted, appellant must establish that the procedure was for a condition causally

4

5 U.S.C. § 8103(a).

5

G.M., Docket No. 18-1710 (issued June 3, 2019); Dale E. Jones, 48 ECAB 648-49 (1997).

6

G.M., id.; Daniel J. Perea, 42 ECAB 214, 221 (1990) (abuse of discretion by OWCP is generally shown through
proof of manifest error, clearly unreasonable exercise of judgment, or administrative actions, which are contrary to
both logic, and probable deductions from established facts).
7

G.M., id.; Debra S. King, 44 ECAB 203, 209 (1992).

8

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

4

related to the employment injury and that the procedure was medically necessary. Both of these
criteria must be met in order for OWCP to authorize payment.9
ANALYSIS
The Board finds that this case is not in posture for decision.
By decision dated March 18, 2019, OWCP denied appellant’s authorization for surgical
release of the lower leg tendon and repair of the ankle ligament. It accorded the special weight of
the medical evidence opinion of Dr. Fisher, the referee physician. By decision dated June 20,
2019, OWCP denied modification of the March 18, 2019 decision.
The Board notes that Dr. Fisher’s January 17, 2019 report predates appellant’s March 17,
2019 request for authorization for surgery. As no true conflict existed in the medical evidence at
the time of the referral to Dr. Fisher on the issue of authorization for surgery, the Board finds that
his report may not be accorded the special weight of an IME and should instead be considered for
its own intrinsic value.10 The referral to Dr. Fisher is, therefore, considered to be that of a second
opinion evaluation.11 While, at the time, Dr. Fisher opined that appellant did not require “any
further definitive treatment, except supportive care,” he has not specifically addressed whether the
requested surgical release of the lower leg tendon and repair of the ankle ligament is for treatment
of a condition causally related to the employment injury or whether the procedure was medically
necessary.
The Board notes that proceedings under FECA are not adversarial in nature and OWCP is
not a disinterested arbiter. The claimant has the burden of proof to establish entitlement to
compensation. However, OWCP shares responsibility in the development of the evidence to see
that justice is done.12 Once it undertakes development of the record, it must do a complete job in
procuring medical evidence that will resolve the relevant issues in the case.13
Because further clarification is required with regard to Dr. Fisher’s opinion, the case must
be remanded to OWCP.14 On remand, OWCP shall request a supplemental report from Dr. Fisher
9

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

10

See R.B., Docket No. 20-0109 (issued June 25, 2020); see also F.R., Docket No. 17-1711 (issued
September 6, 2018).
11

See M.G., Docket No. 19-1627 (issued April 17, 2020); S.M., Docket No. 19-0397 (issued August 7, 2019) (the
Board found that at the time of the referral for an impartial medical examination there was no conflict in medical
opinion evidence; therefore, the referral was for a second opinion examination); see also Cleopatra McDougalSaddler, 47 ECAB 480 (1996) (the Board found that, as there was no conflict in medical opinion evidence, the report
of the physician designated as the IME was not afforded the special weight of the evidence, but instead considered for
its own intrinsic value as he was a second opinion specialist).
12

T.R., Docket No. 17-1961 (issued December 20, 2018); William J. Cantrell, 34 ECAB 1223 (1983).

13

Id.; Richard F. Williams, 55 ECAB 343, 346 (2004).

14

See F.V., Docket No. 18-0230 (issued May 8, 2020).

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to obtain a rationalized medical opinion as to whether appellant’s request for authorization for
release of the lower leg tendon and repair of the ankle ligament is medically necessary due to the
accepted employment injury. Following this and other such further development as deemed
necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the June 20, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further action consistent with
this decision of the Board.15
Issued: March 12, 2021
Washington, DC

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

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

15

Christopher J. Godfrey, Deputy Chief Judge, was no longer a member of the Board effective January 20, 2021.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
U.S. POSTAL SERVICE, NORTH BROADWAY
STATION, San Antonio, TX, Employer
__________________________________________

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

Docket No. 08-1259
Issued: May 14, 2009

Case Submitted on the Record

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

JURISDICTION
On March 24, 2008 appellant filed a timely appeal from a January 18, 2008 decision of
the Office of Workers’ Compensation Programs that denied his recurrence claim and a
March 10, 2008 decision that denied his request for reconsideration. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office properly found that appellant did not establish that
he sustained a recurrence of disability on February 6, 2007; and (2) whether the Office properly
refused to reopen appellant’s claim for further review of the merits pursuant to 5 U.S.C.
§ 8128(a).
FACTUAL HISTORY
This case has previously been before the Board. By decision dated September 15, 2005,
the Board affirmed a September 9, 2004 Office decision finding that appellant had no loss of

wage-earning capacity, effective February 23, 2003, the date he returned to work.1 On
December 15, 2005 the Board denied appellant’s petition for reconsideration. The law and the
facts of the previous Board decisions are incorporated herein by reference.
On April 2, 2007 appellant submitted a Form CA-2a, claim for recurrence of disability,
alleging that his lower back, neck and left shoulder hurt when he lifted heavy books and boxes at
work. He noted that he had continued to seek medical treatment since the initial injury.
Appellant did not stop work and his supervisor stated that he had returned to full duty on
March 4, 2003. By letter dated November 19, 2007, the Office informed appellant of the
evidence needed to support recurrence claim.
In treatment notes dated from September 1, 2005 to November 12, 2007, Dr. Erlinda E.
Belvis, a Board-certified psychiatrist, noted appellant’s report that he was being harassed at
work, described his emotional condition and advised that his affect and mood were depressed. In
reports dated February 6, 2007, she noted that appellant claimed he injured his hand in the
August 2, 1991 injury and also complained of shoulder and back pain that could have been
aggravated by lifting at work. Dr. Belvis diagnosed chronic cervical and lumbar back pain and
shoulder pain secondary to the August 1991 employment injury. On May 7, 2007 she reported
that appellant had been lifting mail at work and his current condition could be a new injury
instead of an exacerbation of his past injury. In reports dated August 3 and November 12, 2007,
Dr. Belvis noted that appellant continued to have shoulder problems and continued to be
depressed.
In a March 7, 2007 report, Dr. Salvador P. Baylan, a Board-certified physiatrist,
diagnosed left shoulder impingement syndrome and provided restrictions to appellant’s physical
activity. On April 3, 2007 he advised that appellant should remain off work until April 20, 2007
due to an acute exacerbation of low back pain. In reports dated April 20 and June 19, 2007,
Dr. Baylan diagnosed left rotator cuff tear, advised that appellant could work eight hours a day
with left shoulder restrictions and noted that a surgical consult was pending.
By decision dated January 18, 2008, the Office denied appellant’s recurrence claim,
finding the medical evidence insufficient to establish that his current condition or disability were
caused by the August 2, 1991 employment injury.
On February 15, 2008 appellant requested reconsideration. He stated that a report from
Dr. Baylan was enclosed. This report, however, is not found in the case record. In a March 10,
2008 decision, the Office denied appellant’s reconsideration request.
LEGAL PRECEDENT -- ISSUE 1
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 had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
1

Docket No. 05-496 (issued September 15, 2005). Appellant, then a 36-year-old city carrier, sustained
employment-related sprains of the lumbar region and neck, postconcussion syndrome, left knee strain and
depression when he was injured in a motor vehicle accident on August 2, 1991.

2

that caused the illness.”2 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 he 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.3 Where no such rationale is present, medical evidence
is of diminished probative value.4
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship is rationalized medical evidence.5 Rationalized medical opinion evidence is
medical evidence which includes a physician’s rationalized medical opinion of whether there is a
causal relationship between the claimant’s diagnosed condition and the compensable
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.6
ANALYSIS -- ISSUE 1
The Board finds that appellant has not established that he sustained a recurrence of
disability on February 6, 2007 caused by the accepted August 2, 1991 employment injury. The
issue of whether a claimant’s disability is related to an accepted condition is a medical question
which must be established by a physician who, on the basis of a complete and accurate factual
and medical history, concludes that the disability is causally related to employment factors and
supports that conclusion with sound medical reasoning.7 Medical opinion evidence must be 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.8
The accepted conditions in this case are sprains of the neck and lumbar region, a left knee
strain, depression and postconcussion syndrome. Appellant contends that an additional
condition, a left shoulder injury, was caused by the August 2, 1991 employment injury. In
several reports Dr. Belvis, an attending psychiatrist, noted that appellant was complaining of
shoulder pain secondary to the August 2, 1991 injury. However, she also advised that this was a
2

20 C.F.R. § 10.5(x); R.S., 58 ECAB ____ (Docket No. 06-1346, issued February 16, 2007).

3

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

4

See Ronald C. Hand, 49 ECAB 113 (1997); Michael Stockert, 39 ECAB 1186, 1187-88 (1988).

5

Jennifer Atkerson, 55 ECAB 317 (2004).

6

I.J., supra note 3; Victor J. Woodhams, 41 ECAB 345 (1989).

7

Sandra D. Pruitt, 57 ECAB 126 (2005).

8

Roy L. Humphrey, 57 ECAB 238 (2005).

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new injury caused by heavy lifting at work. Medical opinions that are speculative or equivocal
in character are of diminished probative value.9 The reports of Dr. Belvis are therefore
insufficient to establish that appellant’s claimed shoulder condition was caused by the August 2,
1991 employment injury. While appellant has an accepted emotional condition, Dr. Belvis did
not advise that he was totally disabled due to this condition.
Dr. Baylan noted on an April 3, 2007 disability slip that appellant should be off work
until April 20, 2007 due to an acute exacerbation of low back pain. However, he did not provide
any explanation regarding the cause of the condition or disability or relate it in any way to the
August 2, 1991 employment injury. Whether a particular injury causes an employee to be
disabled for employment and the duration of that disability are medical issues which must be
proved by a preponderance of the reliable, probative and substantial medical evidence.10
Medical evidence that does not offer any opinion regarding the cause of an employee’s condition
is of limited probative value on the issue of causal relationship.11
The record in this case does not contain a medical report providing a rationalized medical
opinion that appellant’s claimed recurrence of disability was caused by the accepted injuries.12
As appellant did not submit sufficient medical evidence, he did not meet his burden of proof to
establish that he sustained a recurrence of disability. The Office properly denied his claim.13
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of the Federal Employees’ Compensation Act14 vests the Office with
discretionary authority to determine whether it will review an award for or against compensation,
either under its own authority or on application by a claimant.15 Section 10.608(a) of the Code
of Federal Regulations provides that a timely request for reconsideration may be granted if the
Office determines that the employee has presented evidence and/or argument that meets at least
one of the standards described in section 10.606(b)(2).16 This section provides that the
application for reconsideration must be submitted in writing and set forth arguments and contain
evidence that either: (i) shows that the Office erroneously applied or interpreted a specific point
of law; (ii) advances a relevant legal argument not previously considered by the Office; or
(iii) constitutes relevant and pertinent new evidence not previously considered by the Office.17
9

D.D., 57 ECAB 734 (2006).

10

Tammy L. Medley, 55 ECAB 182 (2003).

11

Willie M. Miller, 53 ECAB 697 (2002).

12

Cecelia M. Corley, 56 ECAB 662 (2005).

13

Tammy L. Medley, supra note 10.

14

5 U.S.C. §§ 8101-8193.

15

5 U.S.C. § 8128(a).

16

20 C.F.R. § 10.608(a).

17

Id. at § 10.608(b)(1) and (2).

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Section 10.608(b) provides that, when a request for reconsideration is timely but fails to meet at
least one of these three requirements, the Office will deny the application for reconsideration
without reopening the case for a review on the merits.18
ANALYSIS -- ISSUE 2
In his February 15, 2008 request for reconsideration, appellant stated that an enclosed
report from Dr. Baylan was sufficient to establish that his left shoulder condition was caused by
the August 2, 1991 employment injury. He did not allege or demonstrate that the Office
erroneously applied or interpreted a specific point of law or advance a relevant legal argument
not previously considered by the Office. Consequently, appellant is not entitled to a review of
the merits of his claim based on the first and second above-noted requirements under section
10.606(b)(2).19
With respect to the third above-noted requirement under section 10.606(b)(2), appellant
stated that an additional report from Dr. Baylan was enclosed. However, such report is not found
in the case record. The underlying issue in this case is whether appellant established that he
sustained a recurrence of disability of the August 2, 1991 employment injury. This requires the
submission of medical evidence establishing that his current condition and/or disability was
caused by the employment injury. Appellant submitted no such evidence. As he did not submit
relevant and pertinent new evidence not previously considered by the Office, properly denied his
reconsideration request.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a recurrence of disability causally related to the August 2, 1991 employment injury and
that the Office properly refused to reopen appellant’s case for further consideration of the merits
of his claim pursuant to 5 U.S.C. § 8128(a).

18

Id. at § 10.608(b).

19

Id. at § 10.606(b)(2).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 10 and January 18, 2008 are affirmed.
Issued: May 14, 2009
Washington, DC

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

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

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

6


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

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

Docket No. 12-1723
Issued: February 1, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 15, 2012 appellant filed an appeal from a May 10, 2012 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 established that she sustained a recurrence of disability on
September 6, 2008.
On appeal, appellant’s attorney contends that OWCP’s decision is contrary to fact and
law.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
This case has previously been before the Board. In a May 4, 2011 decision, the Board
found that appellant did not establish that she sustained a recurrence of disability on
September 6, 2008 and that OWCP properly refused to reopen her case for further consideration
of the merits pursuant to 5 U.S.C. § 8128(a).2 The law and facts of the previous Board decision
are incorporated by reference.
On February 9, 2012 appellant, through her attorney, requested reconsideration and
submitted an October 24, 2011 report from Dr. Jay M. Brooker, an attending Board-certified
orthopedic surgeon. Dr. Brooker advised that she was seen in follow-up for her knees with
excellent alignment of total right knee replacement and excellent range of motion. He noted that
appellant complained of radicular low back symptoms and left knee pain due to degenerative
arthritis on that side. Dr. Brooker added, “Her original knee problem was caused by repetitive
sprain and strain to her left knee over time for all the repetitive activities done at her work
place.”
In a May 10, 2012 decision, OWCP denied modification of its prior decision on the
grounds that Dr. Brooker’s October 24, 2011 report was insufficient to establish that the claimed
recurrent was connected to the accepted February 6, 2006 employment injury.3
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 had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.4 This term also means an inability to work when a light-duty assignment
made specifically to accommodate an employee’s physical limitations due to his or her
work-related injury or illness is withdrawn (except when such withdrawal occurs for reasons of
misconduct, nonperformance of job duties or a reduction-in-force) or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical
limitations.5
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
2

Docket No. 10-1823 (issued May 4, 2011). On February 6, 2006 appellant, a letter carrier, filed a traumatic
injury claim, alleging that she injured her left knee when she slipped and fell on February 3, 2006. OWCP accepted
that she sustained employment-related sprains and strains of the left knee and leg and a left leg contusion. Appellant
returned to modified duty on February 17, 2006 and stopped work on September 6, 2008 when she underwent right
knee surgery. On October 24, 2008 she submitted claims for compensation, for the period September 6 to
October 24, 2008.
3

OWCP also noted that appellant had filed an occupational disease claim for a knee condition in October 2010
that had been denied.
4

20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004).

5

Id.

2

establishes that light duty can be performed, the employee has the burden to establish by the
weight of reliable, probative and substantial evidence a recurrence of total disability. 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 requirements.6
ANALYSIS
The Board finds that appellant has not established a recurrence of total disability on
September 6, 2008 causally related to the accepted sprains and strains of the left knee and leg
and a left leg contusion because she did not establish that the nature and extent of her injuryrelated condition changed on September 6, 2008 so as to prevent her from continuing to perform
her limited-duty assignment. Appellant stopped work on September 6, 2008 to undergo a total
knee replacement on her right knee. As noted by the Board in its May 4, 2011 decision,7 a right
knee condition has not been accepted as employment related. Dr. Brooker’s October 24, 2011
report is insufficient to establish that appellant’s September 6, 2008 disability from work was
caused by the February 3, 2006 traumatic injury that occurred when appellant slipped and fell at
work that day.8 He stated that her knee problem was caused by repetitive sprain and strain to her
knee overtime due to repetitive work activities. Dr. Brooker provided no explanation as to how
the mechanics of the February 3, 2006 employment injury, accepted for left knee conditions,
caused her to stop work on September 6, 2008.
A partially disabled claimant who returns to a light-duty job has the burden of proving
that he or she cannot perform the light duty, if a recurrence of total disability is claimed.9 The
issue of whether an employee has disability from performing a modified position is primarily a
medical question and must be resolved by probative medical evidence.10 A claimant’s burden
includes the necessity 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 medical rationale.
Where no such rationale is present, the medical evidence is of diminished probative value.11

6

Shelly A. Paolinetti, 52 ECAB 391 (2001); Terry R. Hedman, 38 ECAB 222 (1986).

7

Supra note 2.

8

In discussing the range of compensable consequences, once the primary injury is causally connected with the
employment, Larson notes that, when the question is whether compensability should be extended to a subsequent
injury or aggravation related in some way to the primary injury, the rules that come into play are essentially based
upon the concepts of direct and natural results and of claimant’s own conduct as an independent intervening cause.
The basic rule is that a subsequent injury, whether an aggravation of the original injury or a new and distinct injury,
is compensable if it is the direct and natural result of a compensable primary injury. Larson, The Law of Workers’
Compensation § 1300; see Charles W. Downey, 54 ECAB 421 (2003).
9

See William M. Bailey, 51 ECAB 197 (1999).

10

Cecelia M. Corley, 56 ECAB 662 (2005).

11

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

3

It is appellant’s burden of proof to submit the necessary medical evidence to establish a
claim for a recurrence.12 The record does not contain a medical report providing a reasoned
medical opinion that her claimed recurrence of disability was caused by the February 3, 2006
employment injury.13 Furthermore, appellant has not shown a change in her light-duty
requirements. She therefore did not meet her burden of proof to establish disability as a result of
a recurrence.
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 that she sustained a recurrence of
disability on September 6, 2008.
ORDER
IT IS HEREBY ORDERED THAT the May 10, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 1, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

12

Beverly A. Spencer, 55 ECAB 501 (2004).

13

Cecelia M. Corley, supra note 10.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Asheville, NC, Employer
__________________________________________

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

Docket No. 14-156
Issued: June 26, 2014

Case Submitted on the Record

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

JURISDICTION
On October 28, 2013 appellant filed a timely appeal from a July 10, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP) which denied her claim and an
August 2, 2013 nonmerit decision denying reconsideration. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the case.
ISSUES
The issues are: (1) whether appellant sustained right de Quervain’s tenosynovitis
causally related to her federal employment; and (2) whether OWCP properly refused to reopen
appellant’s case for further review of the merits pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant contends that she was not given enough time to get her medical
records.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 20, 2013 appellant, then a 56-year-old medical instrument technician, filed an
occupational disease claim alleging right de Quervain’s tendinitis as a result of her federal
employment. She noted that her job required repetitive twisting motions when spiking
intravenous (IV) bags and changing anesthesia circuits on the anesthesia machines. Appellant
noted that she was spiking a small IV bag when she felt a terrible pain. Her hand became
swollen and she could not use it. Appellant did not submit any medical evidence in support of
her claim.
By letter dated May 28, 2013, OWCP asked appellant to submit additional evidence in
support of her claim. In response, appellant submitted a statement dated June 21, 2013,
describing her work as an anesthesia technician. She reiterated that she made twisting motions
by changing anesthesia circuits, making syringes, changing tubing, unlocking carts and putting
oxygen annuals and “Ambo bags” on ports. Appellant noted that she filled vaporizers and
twisted pop-off valves. She performed such duties over 300 times a day from 3 minutes to 15
minutes. Appellant noted that she injured her right wrist on October 10, 2011, while spiking an
IV bag. She saw a doctor who diagnosed de Quervain’s tenosynovitis and injected her hand, but
that the swelling and pain returned. Appellant had other injections that were unsuccessful and
her only choice was surgery. She stated that she had surgery and physical therapy, but that her
hand still became tight with burning pain. Appellant believed that her injury came from her job
and was an occupational disease.
By decision dated July 10, 2013, OWCP denied appellant’s claim. It accepted the
employment duties she performed, but found insufficient medical evidence to support causal
relationship.
On July 24, 2013 appellant requested reconsideration by checking a line on the appeal
request form.
By decision dated August 2, 2013, OWCP denied appellant’s request for reconsideration
without conducting further merit review.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period, that an injury was sustained in the performance of duty as alleged and that any
disabilities and/or specific conditions for which compensation is claimed are causally related to
the employment injury.2 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.3

2

Elaine Pendleton, 40 ECAB 1143 (1989).

3

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

2

Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.4 To establish fact of injury in an
occupational disease claim, an employee must submit: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.5
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.6
ANALYSIS -- ISSUE 1
The Board finds that appellant did not establish that she sustained an injury in the
performance of duty. OWCP accepted the work duties she performed as a medical technician,
but found that she failed to submit any medical evidence in support of her claim. It informed
appellant of the deficiency of her claim and the need to submit medical evidence providing a
firm diagnosis and addressing causal relation. Appellant did not respond. She failed to submit a
physician’s report to confirm the condition claimed to her right wrist, addressing the issue of
causal relationship or need for surgery.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor her belief that the condition was caused by her employment is sufficient to
establish causal relationship.7 As appellant failed to submit medical evidence that established a
medical condition that was causally related to her employment, OWCP properly denied her
claim.8
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.

4

See S.P., 59 ECAB 184, 188 (2007).

5

See Roy L. Humphrey¸ 57 ECAB 238, 241 (2005); see also P.W., Docket No. 10-2402 (issued August 5, 2011).

6

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, supra note 3.

7

D.I., 59 ECAB 158 (2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

8

W.J., Docket No. 13-1440 (issued January 23, 2014).

3

LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,9 its
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.10 To be entitled to a merit review of an OWCP
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.11 When a claimant fails to meet one of the
above standards, OWCP will deny the application for reconsideration without reopening the case
for review on the merits.12
ANALYSIS -- ISSUE 2
Appellant’s reconsideration request failed to establish that OWCP erroneously applied or
interpreted a point of law, or advance a relevant legal argument not previously considered.
Furthermore, she failed to submit any pertinent new and relevant evidence to OWCP that
supported her request for reconsideration. The Board, therefore, finds that OWCP did not abuse
its discretion in refusing to reopen her claim for a review on the merits.
CONCLUSION
The Board finds that appellant did not establish that her right de Quervain’s tenosynovitis
is causally related to her federal employment, as alleged. The Board further finds that OWCP
properly refused to reopen her case for further review of the merits pursuant to 5 U.S.C.
§ 8128(a).

9

5 U.S.C. § 8128(a). Under section 8128 of FECA, the Secretary of Labor may review an award for or against
payment of compensation at any time on his own motion or on application.
10

20 C.F.R. § 10.606(b)(3).

11

Id. at § 10.607(a).

12

Id. at § 10.607(b).

4

ORDER
IT IS HEREBY ORDERED THAT the August 2 and July 10, 2013 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: June 26, 2014
Washington, DC

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

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

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

5


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

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

Docket No. 07-2351
Issued: September 15, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 27, 2007 appellant filed a timely appeal of a September 26, 2007 decision
of the Office of Workers’ Compensation Programs regarding his wage-earning capacity.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
case.
ISSUE
The issue is whether the Office properly reduced appellant’s wage-loss compensation
effective September 30, 2007 based on his ability to perform the constructed position of
telephone solicitor.
FACTUAL HISTORY
The Office accepted that on April 3, 1972 appellant, then a 25-year-old mail handler,
sustained a right knee contusion with internal derangement when he struck his knee at work.1
1

The Office also accepted a right knee contusion sustained on January 17, 1968. Appellant received a schedule
award for a 20 percent impairment of the right lower extremity, from July 16, 1975 to August 22, 1976.

Appellant underwent right knee surgery on July 20, 1972 to repair torn cartilage and ligaments.
The Office also accepted a right knee contusion sustained on August 7, 1973 and a right knee
strain sustained on April 14, 1975. Appellant received compensation for total disability
beginning in 1983.2
Dr. Thomas D. Schmitz, an attending Board-certified orthopedic surgeon, performed
right knee arthroscopies in 1980, 1992 and on March 13, 1998 to address chondromalacia,
degenerative changes and internal derangement.3
Appellant received vocational rehabilitation services from October 2002 through
March 2004. Initial testing showed that he was functionally illiterate although he earned a real
estate license in 1977. Appellant attributed his learning deficits to a 14-year period of
homelessness with polysubstance addictions beginning in 1984. In 2003, he completed a ninemonth adult basic education class but did not improve his academic performance.4
Dr. Schmitz submitted periodic reports noting appellant’s chronic right knee pain,
patellofemoral chondromalacia and a femoral spur.5 On December 1, 2004 he opined that
appellant could perform full-time sedentary duty with restrictions. Appellant was then followed
by Dr. Scott M. Taylor, a Board-certified orthopedic surgeon, who submitted reports through
June 2005 finding appellant totally disabled for work due to osteoarthritis of the right knee with
muscle spasms.6
The Office obtained a second opinion from Dr. John Randall Chu, a Board-certified
orthopedic surgeon. In a June 9, 2005 report, Dr. Chu found appellant capable of full-time
sedentary duty as a telemarketer, with standing limited to two hours.
Appellant received job placement services from June 2005 to March 2006. The
vocational consultant identified the positions of information clerk, taxicab dispatcher and
2

By decision dated August 30, 1983 and affirmed on September 11, 1984, the Office reduced appellant’s wageloss compensation based on his actual earnings as a real estate salesperson. By decision dated January 24, 1984, it
found that appellant forfeited his compensation from November 10, 1977 to November 1, 1982 as he failed to fully
report income from real estate sales. Following the period of forfeiture, appellant continued to receive total
disability compensation.
3

A September 30, 1991 magnetic resonance imaging (MRI) scan showed a posterior horn and lateral meniscus
tear, chronic degeneration and prior surgery. A March 16, 2004 x-ray showed minimal degenerative changes behind
the right patella. An April 20, 2004 MRI scan showed a small osteochondral defect of the dorsal medial patella and
in the femoral notch and a Grade I strain of the medial collateral ligament.
4

On April 11, 2005 the Office obtained a second opinion from Dr. Jilliann Daly, a licensed clinical psychologist,
who found appellant’s test results invalid as he deliberately gave incorrect or misleading answers. Dr. Daly
diagnosed dysthymic and personality disorders.
5

In an October 29, 2002 letter, appellant admitted that he supplemented the Darvocet prescribed by Dr. Schmitz
with Vicodin, Lortab, Lodine and Motrin obtained from other physicians.
6

In an April 21, 2005 report, Dr. O. Barry McKinley, a neurologist to whom appellant was referred by Dr. Taylor,
diagnosed right knee pain with a slight narrowing of the patellofemoral interval.

2

telephone solicitor as within appellant’s medical and vocational capacities. The positions were
classified as sedentary, with lifting requirements of 10 pounds or less, and required 3 to 30 days
of vocational preparation. A labor market survey showed the positions were reasonably
available in appellant’s commuting area. Appellant conducted a job search but did not obtain
employment.
By notice dated April 7, 2006, the Office proposed to reduce appellant’s compensation
based on his ability to earn wages in the selected position of taxicab dispatcher. Appellant
responded by April 18 and 24, 2006 letters, asserting that there were no jobs available for taxicab
dispatchers within his commuting area. He submitted reports from Dr. Taylor dated through
July 2007, recommending a neurologic consult for right knee clonus. Dr. Taylor opined that
appellant could work four hours a day sedentary duty.
The Office found a conflict of medical opinion between Dr. Chu, for the government, and
Dr. Taylor, for appellant. To resolve the conflict, the Office referred appellant, the medical
record and a statement of accepted facts to Dr. Jack Stehr, a Board-certified orthopedic surgeon.
In a July 6, 2007 report, Dr. Stehr opined that appellant’s right knee was stable, with a full range
of motion, normal joint spaces and no neurologic abnormalities. He diagnosed mild
degenerative arthritis of the right knee. Dr. Stehr found appellant able to work full time as a
taxicab dispatcher or telephone solicitor. He noted that appellant should avoid walking,
kneeling, squatting, stair climbing and prolonged standing.
A July 27, 2007 labor market survey showed that telephone solicitor positions were
reasonably available in appellant’s commuting area with starting wages of $13.00 to $17.00 an
hour, averaging $600.00 a week.
On August 16, 2007 appellant was advised that the Office proposed to reduce his
compensation based on his capacity to earn wages in the selected position of telephone solicitor.
The Office found that the position was within the job restrictions provided by Dr. Stehr.
Appellant responded by August 27, 2007 letter, contending that he could not earn $600.00 a
week as telemarketing job advertisements showed starting wages of only $480.00 to $560.00 a
week.
By September 26, 2007 decision, the Office finalized the wage-earning capacity
determination. It found that appellant had a 71 percent wage-earning capacity and his
compensation would be reduced effective September 30, 2007.
LEGAL PRECEDENT
Once the Office has made a determination that a claimant is totally disabled as a result of
an employment injury and pays compensation benefits, it has the burden of justifying a
subsequent reduction of benefits.7 Under section 8115(a) of the Federal Employees’
Compensation Act, wage-earning capacity is determined by the actual wages received by an
employee if the earnings fairly and reasonably represent his or her wage-earning capacity. If the
actual earnings do not fairly and reasonably represent his or her wage-earning capacity, or if the
7

David W. Green, 43 ECAB 883 (1992).

3

employee has no actual earnings, his or her wage-earning capacity is determined with due regard
to the nature of the injury, the degree of physical impairment, his or her usual employment, age,
qualifications for other employment, the availability of suitable employment and other factors
and circumstances which may affect wage-earning capacity in his or her disabled condition.8
When the Office makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an Office wage-earning capacity specialist for
selection of a position, listed in the Department of Labor, Dictionary of Occupational Titles or
otherwise available in the open market, that fits the employee’s capabilities with regard to his or
her physical limitations, education, age and prior experience. Once this selection is made, a
determination of wage rate and availability in the labor market should be made through contact
with the state employment service or other applicable service. Finally, application of the
principles set forth in Albert C. Shadrick,9 will result in the percentage of the employee’s loss of
wage-earning capacity.10
ANALYSIS
The Office accepted that appellant sustained a right knee contusion with internal
derangement, necessitating subsequent surgical repairs. Dr. Schmitz, an attending Boardcertified orthopedic surgeon, opined that appellant could perform sedentary work for eight hours
a day as of December 1, 2004. Following vocational rehabilitation and job placement assistance,
the Office determined that the selected position of telephone solicitor represented appellant’s
wage-earning capacity as of September 30, 2007, based upon the July 6, 2007 report of
Dr. Stehr, a Board-certified orthopedic surgeon and impartial medical examiner.
The telephone solicitor position was classified as sedentary, with occasional lifting up to
10 pounds. These physical requirements are within the restrictions set forth by Dr. Stehr. A
vocational consultant found appellant’s education and experience commensurate with the
position’s requirements, as he once held a real estate license and recently completed an adult
education course. The vocational consultant then determined the prevailing wage rate of
telephone solicitor positions and their reasonable availability in the open labor market. Based on
these calculations, the Office issued a September 26, 2007 decision reducing appellant’s
compensation based on his ability to earn $600.00 a week as a telephone solicitor.
The Board finds that the Office considered the proper factors, such as availability of
telephone solicitor positions and appellant’s physical limitations, in determining that the
telephone solicitor position represented his wage-earning capacity. Dr. Stehr opined that
appellant was medically capable of working full time as a telephone solicitor. The vocational
consultant found that telephone solicitor positions were reasonably available in appellant’s
commuting area. Also, the Office followed the established procedures under the Shadrick
decision in calculating appellant’s employment-related loss of wage-earning capacity. Appellant
8

M.A., 59 ECAB __ (Docket No. 07-349, issued July 10, 1998); Karen L. Lonon-Jones, 50 ECAB 293 (1999).

9

5 ECAB 376 (1953).

10

Francisco Bermudez, 51 ECAB 506 (2000); James A. Birt, 51 ECAB 291 (2000).

4

did not contend that the Office erred in its mathematical calculations of his wage-earning
capacity. The Board has reviewed these calculations and finds them to be correct.
Appellant contested that telephone solicitors earned less than $600.00 a week. However,
the labor market survey supports the availability of these wages. The Board finds that the Office
properly found that appellant was medically and vocationally capable of working full time as a
telephone solicitor.
The Office’s September 26, 2007 decision reducing appellant’s
compensation based on his ability to earn wages in the selected position of telephone solicitor is
proper under the law and facts of this case.
CONCLUSION
The Board finds that the Office properly reduced appellant’s compensation effective
September 30, 2007 based on his ability to earn wages in the selected position of telephone
solicitor.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 26, 2007 is affirmed.
Issued: September 15, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5