B.V. and Department of Veterans Affairs, Central California Health Care System (Board decision, May 1, 2025)

ECAB remand decision. The Board set aside OWCP's denial of claimed disability and returned the matter for a fuller medical opinion; disability entitlement remains unresolved. A party may petition the Board for reconsideration within 30 days of issuance unless this order specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

A VA nursing assistant sought wage-loss benefits for a period in 2020 after accepted injuries. OWCP's second-opinion physician addressed whether she had a consequential knee condition but was not asked to determine her ability to work during the claimed period. The Board returned the disability issue for further medical development and a new decision.

Decision snapshot

• Authority: Federal Employees' Compensation Act, 5 U.S.C. § 8101 et seq.
• Outcome: Disability denial set aside; 2020 work-capacity issue remanded.
• Key point: OWCP needed an opinion addressing the actual period of claimed disability.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
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B.V., Appellant
)
)
and ) Docket No. 22-0853
)
Issued: May 1, 2025
DEPARTMENT OF VETERANS AFFAIRS,
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CENTRAL CALIFORNIA HEALTH CARE
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SYSTEM, Fresno, CA, Employer
)
__________ )

Appearances: Case Submitted on the Record
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

DECISION AND ORDER

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

JURISDICTION

On May 12, 2022 appellant, through counsel, filed a timely appeal from a March 29, 2022 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case. 3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 2 5 U.S.C. § 8101 et seq.
3
The Board notes that following the March 29, 2022 decision, OWCP received additional evidence. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on appeal. Id.
ISSUE

The issue is whether appellant has met her burden of proof to establish disability from work for the period July 7 through December 14, 2020, causally related to the accepted employment injury.

FACTUAL HISTORY

On November 19, 2007 appellant, then a 27-year-old nursing assistant, filed an occupational disease claim (Form CA-2) alleging that she developed left hip pain and discomfort from repetitive bending and lifting when caring for patients while in the performance of duty. She noted that she first became aware of the condition and its relationship to her federal employment on November 10, 2007. Appellant did not initially stop work. OWCP accepted the claim for left hip and thigh sprains, left hip bursitis, permanent aggravation of lumbar or lumbosacral intervertebral disc, and permanent aggravation of lumbar intervertebral disc without myelopathy.

On August 19, 2011 appellant accepted a permanent reassignment position as program support assistant.

OWCP paid appellant wage-loss compensation on the supplemental rolls for intermittent periods of disability from August 27, 2015 through August 14, 2017.

In a report dated June 29, 2020, Dr. Daniel B. Brubaker, an osteopath Board-certified in pathology, recounted appellant’s history of injury and her continued low back and left knee pain. He also noted that appellant had severe back pain with weakness of the left lower extremity and that she had fallen twice. Dr. Brubaker diagnosed L5-S1 herniated lumbar disc, status post lumbosacral radiculopathy, status post left lumbar radiculopathy/radiculitis, moderate lumbar muscle spasm, degenerative disc disease, left hip enthesopathy, left hip sprain and strain, adjustment disorder with anxiety and depression, left patella chondromalacia, hoffitis of the left knee, and work stress from her injury. He related that appellant was restricted to part-time modified work for four hours per day. Dr. Brubaker observed she was currently performing too many prolonged up and down activities.

Dr. Brubaker, in a work status note also dated June 29, 2020, reduced appellant’s work hours from six to four per day for the period June 30 to December 31, 2020. He listed a diagnosis of lumbar disc herniation with severe pain.

Appellant filed claims for compensation for intermittent disability (Form CA-7) from July 7 to 17, 2020 and July 21 to 24, 2020.

OWCP, by development letters dated July 29, 2020, informed appellant that the evidence submitted was insufficient to establish her claim for wage-loss compensation for intermittent disability from work. It advised her regarding the evidence required to establish her claim and afforded her 30 days to provide this evidence.

In a July 31, 2020 progress report, Dr. Brubaker reviewed appellant’s diagnostic studies, and provided physical examination findings. He reiterated appellant’s diagnoses. Dr. Brubaker related that appellant was capable of working with restrictions of no lifting more than 25 pounds; no bending or stooping; no repetitive pushing, pulling, lifting, stooping, or bending; and alternate sitting and standing every 30 to 45 minutes.
2
Dr. Brubaker, in an August 25, 2020 report, recounted appellant’ history of injury, reviewed medical records, noted appellant’s pain complaints, and provided physical examination findings. He reiterated appellant’s diagnoses. Dr. Brubaker further explained that appellant had several falls due to her radiculopathy, causing left knee injuries. He requested that the acceptance of appellant’s claim be expanded to include her left knee conditions as causally related to the accepted employment injury. Dr. Brubaker related that appellant’s condition had progressively worsened over the past four years requiring changes in her modified duty and hours. He opined that appellant had a permanent disability, but was capable of working part-time at four hours per day, which he attributed to her herniated disc condition.

In progress reports dated September 28 and November 9, 2020, Dr. Brubaker noted appellant’s history of injury and her complaints of ongoing back and left knee pain, which he attributed to lumbar disc herniation. Physical examination findings and diagnoses were unchanged. Dr. Brubaker explained that appellant’s lumbar, left knee, and left knee pain were all related. He further noted that appellant had a recurrence of injury due to her radiculopathy, as her leg gave out and she fell down.

On December 14, 2020 appellant filed a Form CA-7 claiming intermittent disability for the period July 27 through December 14, 2020.

Progress reports dated December 18, 2020, and January 18, February 22, and March 22, 2021 from Dr. Brubaker related unchanged findings.

Dr. Brubaker, in a March 23, 2021 duty status report (Form CA-17), related that appellant was able to return to part-time modified work for four hours per day on June 30, 2020.4

By decision dated May 20, 2021, OWCP denied appellant’s claim for wage-loss compensation for disability from work during the period July 27 through December 14, 2020.

On June 3, 2021 appellant, through counsel, requested a telephonic hearing before a representative of OWCP’s Branch of Hearings and Review. A telephonic hearing was held on September 15, 2021.

Progress reports dated June 22, August 2, and September 9, 2021 from Dr. Brubaker noted that appellant fell on June 8, 2021, when her left leg gave out. He again provided repetitive findings.

On August 6, 2021 OWCP referred appellant, together with a list of questions, a statement of accepted facts (SOAF), and medical record, to Dr. Michael G. Klassen, a Board-certified orthopedic surgeon, for a second opinion evaluation regarding whether appellant sustained a consequential left knee condition.

A hearing was held before an OWCP hearing representative on September 15, 2021. She left the record open for 30 days to allow counsel to submit additional evidence.

4
In a letter dated May 14, 2021, the employing establishment informed OWCP that appellant elected disability retirement effective April 30, 2021.

3
In a report dated October 5, 2021, Dr. Klassen, based upon a review of the medical record, injury history, SOAF, and physical examination, diagnosed chronic low back pain with five- millimeter L5-S1 disc extrusion, left trochanteric bursitis, left knee chondromalacia, and morbid obesity. He noted that appellant was medically retired. Dr. Klassen opined that appellant’s left knee chondromalacia was a consequence of her accepted lumbar injury. He explained that appellant had experienced frequent multiple falls due to L5-S1 radiculopathy with left lower extremity numbness.

By development letter dated November 15, 2021, OWCP advised appellant that the evidence of record was insufficient to establish her claim for wage-loss compensation for intermittent disability from work during the period December 20, 2020 through March 27, 2021. It allotted her 30 days to submit the necessary evidence.

OWCP subsequently received an unsigned and undated addendum to a September 9, 2021 report diagnosing chronic pain due to a herniated disc. The addendum related that appellant was unable to stand or sit for long periods of time due to severe pain and that she was unable to perform her job duties due to problems concentrating.

Dr. Brubaker, in a November 15, 2021 progress report, reiterated diagnoses and findings from his prior reports.

By decision dated November 24, 2021, OWCP’s hearing representative affirmed, as modified, the May 20, 2021 decision to reflect the beginning date of claimed disability as July 7, 2020. The hearing representative noted appellant’s request for expansion of her claim to include a left knee condition and the opinion rendered by Dr. Klassen, a second opinion physician on that issue. OWCP was instructed to issue a formal decision on appellant’s request for expansion of her claim, and to develop and adjudicate appellant’s claim for compensation submitted for dates after December 14, 2020.

By decision dated November 26, 2021, OWCP expanded acceptance of appellant’s claim to include left knee chondromalacia.

On December 29, 2021 appellant, through counsel, requested reconsideration of the November 24, 2021 OWCP hearing representative’s decision. Counsel argued that the decision should be vacated based on the November 26, 2021 decision expanding acceptance of appellant’s claim. Accompanying the request was an October 5, 2021 second opinion evaluation report from Dr. Klassen.

By decision dated March 29, 2022, OWCP denied modification of the November 24, 2021 decision.

LEGAL PRECEDENT

An employee seeking benefits under FECA 5 has the burden of proof to establish the essential elements of his or her claim, including that any disability or specific condition for which

5
Supra note 2.

4 compensation is claimed is causally related to the employment injury. 6 For each period of disability claimed, the employee has the burden of proof to establish that he or she was disabled from work as a result of the accepted employment injury. 7 Whether a particular injury causes an employee to become disabled from work, and the duration of that disability, are medical issues that must be proven by a preponderance of probative and reliable medical opinion evidence. 8

Under FECA, the term disability means an incapacity because of an employment injury, to earn the wages the employee was receiving at the time of the injury. 9 When, however, the medical evidence establishes that the residuals or sequelae of an employment injury are such that, from a medical standpoint, prevent the employee from continuing in his or her employment and he or she is entitled to compensation for any loss of wages. 10

To establish causal relationship between the disability claimed and the employment injury, an employee must submit rationalized medical evidence, based on a complete factual and medical background, supporting such causal relationship. 11 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 employee. 12

For each period of disability claimed, the employee has the burden of proof to establish that he or she was disabled from work causally related to the accepted employment injury. 13 The Board will not require OWCP to pay compensation for disability in the absence of medical evidence directly addressing the specific dates of disability for which compensation is claimed. To do so would essentially allow an employee to self -certify their disability and entitlement to compensation.14

6
See T.T., Docket No. 22-0632 (issued November 16, 2022); D.S., Docket No. 20-0638 (issued November 17, 2020); F.H., Docket No. 18-0160 (issued August 23, 2019); C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989). 7 See T.T., id.; M.B., Docket No. 18-1455 (issued March 11, 2019); D.W., Docket No. 18-0644 (issued November 15, 2018); Amelia S. Jefferson, 57 ECAB 183 (2005). 8 See 20 C.F.R. § 10.5(f); N.M., Docket No. 18-0939 (issued December 6, 2018).
9
Id. at § 10.5(f); Cheryl L. Decavitch, 50 ECAB 397 (1999).
10
See T.T., supra note 6; G.T., Docket No. 18-1369 (issued March 13, 2019); Merle J. Marceau, 53 ECAB 197 (2001).
11
See T.T., id.; S.J., Docket No. 17-0828 (issued December 20, 2017); Kathryn E. DeMarsh, 56 ECAB 677 (2005).
12
C.B., Docket No. 18-0633 (issued November 16, 2018); Leslie C. Moore, 52 ECAB 132 (2000); Gary L.
Fowler, 45 ECAB 365 (1994).
13
See R.A., Docket No. 24-0776 (issued March 21, 2025); B.D., Docket No. 18-0426 (issued July 17, 2019);
Amelia S. Jefferson, supra note 7; Fereidoon Kharabi, 52 ECAB 291, 293 (2001). 14 Id.

5
ANALYSIS

The Board finds that this case is not in posture for decision.

On August 6, 2021 OWCP referred appellant to Dr. Klassen for a second opinion evaluation to determine whether appellant sustained a consequential left knee condition . He opined that appellant’s left knee chondromalacia was a consequence of her accepted lumbar injury. OWCP thereafter expanded acceptance of the claim to include left knee chondromalacia, based on Dr. Klassen’s report. However, OWCP failed to ask Dr. Klassen to specifically address whether appellant was disabled from work during the claimed period of disability causally related to the accepted employment injury. Since OWCP has accepted the additional knee condition based on the second opinion report of Dr. Klasson, it should secure a supplemental report from the second opinion physician to specifically address the claimed period of disability from July 7 through December 14, 2020.

It is well established that proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested arbiter. While the claimant has the burden of proof to establish entitlement to compensation, OWCP shares the responsibility in the development of the evidence to see that justice is done.15 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 .16

As OWCP failed to complete the development it undertook when it referred the case to Dr. Klassen, the case must be remanded for further development. On remand, OWCP shall request a supplemental report from Dr. Klassen, clarifying whether appellant was disabled from work from July 7 to December 14, 2020 causally related to the accepted employment injury. Following this and other such further development as deemed necessary, it shall issue a de novo decision.

CONCLUSION

The Board finds that this case is not in posture for decision.

15
R.A., supra note 13; M.S., Docket No. 23-1125 (issued June 10, 2024); E.B., Docket No. 22-1384 (issued January 24, 2024); J.R., Docket No. 19-1321 (issued February 7, 2020); S.S., Docket No. 18-0397 (issued January 15, 2019). 16 Id.; see also R.M., Docket No. 16-0147 (issued June 17, 2016).

6
ORDER

IT IS HEREBY ORDERED THAT the March 29, 2022 decision of the Office of Workers’ Compensation Programs is set aside and the case is remanded for further proceedings consistent with this decision of the Board.

Issued: May 1, 2025
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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