United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.S., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Hartford, CT, Employer 

__________________________________________ 

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Docket No. 14-373 

Issued: May 22, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

MICHAEL E. GROOM, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On December 4, 2013 appellant filed a timely appeal from a June 17, 2013 merit decision 

and an October 31, 2013 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). Pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 20 C.F.R. 

§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2

ISSUES 

The issues are: (1) whether appellant met his burden of proof to establish bilateral carpal 

tunnel syndrome causally related to factors of his federal employment; and (2) whether OWCP 

properly denied appellant’s request for reconsideration, pursuant to 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq.

2

 The Board notes that appellant submitted additional evidence following the June 17, 2013 decision. Since the 

Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the Board 

may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57 ECAB 

126 (2005). Appellant may submit that evidence to OWCP with a request for reconsideration. 
2

FACTUAL HISTORY 

On April 5, 2013 appellant, then a 60-year-old customer service manager, filed an 

occupational disease claim alleging that he developed pain in both hands, wrists, upper back and 

neck. He first became aware of his condition and realized it resulted from his employment on 

April 2, 2013. Appellant did not stop work. 

On May 13, 2013 OWCP advised appellant that there was insufficient evidence to 

establish his claim. It requested that he respond to an attached questionnaire and submit medical 

evidence to establish a diagnosed condition as a result of his employment duties. 

In a May 7, 2013 report, Sherri Robtoy, a physician’s assistant, noted diagnoses of 

cervical radiculitis, cervical strain and bilateral carpal tunnel syndrome. She related appellant’s 

complaints of neck, bilateral parascapular and right arm symptoms. Appellant denied any 

radiating arm complaints, fine motor difficulties, or gait disturbance. Upon examination, 

Ms. Robtoy observed normal sensation including the arms and hands and nontender 

cervical/parascapular to palpation. She recommended that appellant continue physical therapy 

and transition to a home exercise program. 

In a handwritten May 22, 2013 note, Dr. David Lastomirsky, an internist, stated that 

appellant was diagnosed with bilateral carpal tunnel syndrome and was under the care of an 

orthopedic surgeon. He stated, “This medical condition can be caused by repetitive hand use 

when using a computer keyboard.” 

In a May 30, 2013 statement, appellant reported that he had been a manager of customer 

service since 1994. His duties included using the computer to respond to communications and he 

worked on the computer about five days a week for an average of five hours per day. Appellant 

believed that he developed bilateral wrist pain as a result of repetitive use of the computer. He 

did not have any strenuous or repetitive activities outside of his federal employment, except for 

occasionally dancing with his wife when invited out to a function and occasionally using the 

computer to e-mail members of his religious group. 

In a decision dated June 17, 2013, OWCP denied appellant’s occupational disease claim. 

It accepted that his duties as a customer service manager involved repetitive hand use and that he 

was diagnosed with bilateral carpal tunnel syndrome but denied the claim finding insufficient 

medical evidence to establish that his bilateral hand condition was causally related to factors of 

his employment. 

By letter dated October 9, 2013, appellant submitted a request for reconsideration. He 

stated that he was resubmitting his questions along with additional information. Appellant noted 

that his attending physician had referred him to Dr. Stewart Gross, Board-certified in preventive 

medicine, whose report he submitted. 

In an August 9, 2013 report, Dr. Gross reviewed appellant’s history and diagnosed 

bilateral carpal tunnel syndrome, trigger finger of the right little finger, trigger finger of the left 

thumb, trigger finger of the right thumb and ganglion of the right joint. 
3

In a handwritten October 7, 2013 note, Dr. Lastomirsky stated that appellant continued to 

undergo treatment for chronic anxiety syndrome, which led to incapacitating palpitations. He 

noted that appellant was also treated for bilateral carpal tunnel syndrome and cervical radiculitis. 

Dr. Lastomirsky stated that the conditions made appellant unable to perform his duties because 

his head and neck conditions caused chronic pain. He recommended that appellant remain out of 

work until further notice. 

By decision dated October 31, 2013, OWCP denied further merit review of appellant’s 

claim finding that the evidence submitted was irrelevant and immaterial to the issue. It noted 

that the medical evidence failed to address whether his bilateral carpal tunnel syndrome was 

causally related to his employment duties. 

LEGAL PRECEDENT -- ISSUE 1 

An employee seeking benefits under FECA has the burden of proof to establish the 

essential elements of his or her claim by the weight of the reliable, probative and substantial 

evidence3

 including that he or she sustained an injury in the performance of duty and that any 

specific condition or disability for work for which he or she claims compensation is causally 

related to that employment injury.4 In an occupational disease claim, appellant’s burden requires 

submission of the following: (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 medical evidence generally required to 

establish causal relationship is rationalized medical opinion evidence.6 The opinion of the 

physician must be based on a complete factual and medical background of the employee, 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.7

 

ANALYSIS -- ISSUE 1 

Appellant alleged that he sustained bilateral carpal tunnel syndrome as a result of his 

employment duties as a customer service manager. OWCP accepted that he worked as a 

customer service manager. It denied appellant’s claim, finding insufficient medical evidence to 

 3 J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968). 

4 M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 

ECAB 1143, 1145 (1989). 

5 R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000). 

6 I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007). 

7

 I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005). 
4

establish that his carpal tunnel condition was causally related to factors of his employment. The 

Board finds that he did not meet his burden of proof to establish that his bilateral carpal tunnel 

syndrome resulted from his employment. 

Appellant submitted handwritten notes from Dr. Lastomirsky, who diagnosed bilateral 

carpal tunnel syndrome. Dr. Lastomirsky stated that the medical condition could be caused by 

repetitive use of hands when using a computer keyboard. His opinion, however, that appellant’s 

condition “could be” caused by repetitive hand use is speculative or equivocal in character and is 

of diminished probative value.8

 The Board has found that rationalized medical opinion evidence 

must relate specific employment factors identified by the claimant to the claimant’s condition, 

with stated reasons by a physician.9 Dr. Lastomirsky failed to adequately explain how repetitive 

use of a computer keyboard caused or contributed to appellant’s bilateral carpal tunnel 

syndrome. His opinion is insufficient to establish appellant’s claim. The May 7, 2013 

physician’s assistant report is also insufficient to establish appellant’s claim as a physician’s 

assistant is not a physician as defined under FECA.10

On appeal, appellant alleges that he sustained an injury over time while employed by the 

employing establishment. He described the pain in his hands, back and upper neck and related 

that he worked for more than eight hours a day on a computer. It is well established, however, 

that an employee’s belief of causal relation does not establish the fact of such medical question.11 

The issue of causal relationship is a medical question that must be established by probative 

medical opinion from a physician.12 Because appellant has not provided such rationalized 

medical opinion evidence in this case, the Board finds that OWCP properly denied his claim. 

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. 

LEGAL PRECEDENT -- ISSUE 2 

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

to review an award for or against compensation.13 OWCP’s regulations provide that OWCP may 

 8 D.D., 57 ECAB 734, 738 (2006); Kathy A. Kelley, 55 ECAB 206 (2004). 

9 L.F., Docket No. 10-2287 (issued July 6, 2011); Solomon Polen, 51 ECAB 341 (2000). 

10 R.M., 59 ECAB 690 (2008); section 8101(2) of FECA provides as follows: the term physician includes 

surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic practitioners within 

the scope of their practice as defined by State law. 

11 See Patricia J. Glenn, 53 ECAB 159 (2001). 

12 W.W., Docket No. 09-1619 (issued June 2, 2010); David Apgar, 57 ECAB 137 (2005). 

13 5 U.S.C. § 8128(a); see also D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 

372 (2008). 
5

review an award for or against compensation at any time on its own motion or upon application. 

The employee shall exercise his right through a request to the district office.14

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must 

provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted 

a specific point of law; (2) advances a relevant legal argument not previously considered by 

OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by 

OWCP.15 

A request for reconsideration must also be submitted within one year of the date of 

OWCP’s decision for which review is sought.16 A timely request for reconsideration may be 

granted if OWCP determines that the employee has presented evidence or provided an argument 

that meets at least one of the requirements for reconsideration. If OWCP chooses to grant 

reconsideration, it reopens and reviews the case on its merits.17 If the request is timely but fails 

to meet at least one of the requirements for reconsideration, OWCP will deny the request for 

reconsideration without reopening the case for review on the merits.18

ANALYSIS -- ISSUE 2 

In a decision dated June 17, 2013, OWCP denied appellant’s traumatic injury claim 

finding that the medical evidence did not establish that his bilateral carpal tunnel syndrome was 

causally related to factors of his employment. On October 9, 2013 appellant requested 

reconsideration and submitted an August 9, 2013 report by Dr. Gross, who reviewed appellant’s 

history and noted diagnoses of bilateral carpal tunnel syndrome and trigger finger of the ring 

little finger and left and right thumb. Appellant also submitted an October 7, 2013 note from 

Dr. Lastomirsky, who reiterated that he was treating appellant for bilateral carpal tunnel 

syndrome and cervical radiculitis and explained that he was unable to work because of these 

conditions. 

The Board finds that OWCP properly denied appellant’s request for reconsideration 

without further merit review. While the reports from Drs. Gross and Lastomirsky were not 

previously considered, this evidence is not relevant to the underlying issue of causal relationship. 

The physicians did not address whether appellant’s bilateral carpal tunnel syndrome was causally 

related to his employment as a customer service manager. The submission of evidence that does 

 14 20 C.F.R. § 10.605; see also R.B., Docket No. 09-1241 (issued January 4, 2010); A.L., Docket No. 08-1730 

(issued March 16, 2009). 

15 Id. at § 10.606(b); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569 

(issued December 9, 2008). 

16 Id. at § 10.607(a). 

17 Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007). 

18 Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010). 
6

not address the relevant issue involved does not constitute a basis for reopening a case.19 

Accordingly, these reports are insufficient to warrant further merit review of appellant’s case. 

The Board finds that appellant failed to submit relevant and pertinent new evidence, a 

relevant legal argument not previously considered by OWCP or evidence or argument which 

shows that OWCP erroneously applied or interpreted a specific point of law. Therefore, OWCP 

properly refused to reopen his case for further consideration of the merits of his claim under 5 

U.S.C. § 8128. 

CONCLUSION 

The Board finds that appellant did not meet his burden of proof to establish that his 

bilateral carpal tunnel syndrome was causally related to factors of his employment. The Board 

also finds that OWCP properly denied his request for reconsideration pursuant to 5 U.S.C. 

§ 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the October 31 and June 17, 2013 merit decisions 

of the Office of Workers’ Compensation Programs are affirmed. 

Issued: May 22, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 19 J.B., Docket No. 13-1830 (issued December 19, 2013); M.E, 58 ECAB 694 (2007); D’Wayne Avila, 57 ECAB 

642 (2006).