United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.H., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Grand Rapids, MI, Employer 

__________________________________________ 

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Docket No. 14-220 

Issued: May 2, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

RICHARD J. DASCHBACH, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On November 12, 2013 appellant filed a timely appeal from a September 5, 2013 merit 

decision of the Office of Workers’ Compensation Programs (OWCP) denying his traumatic 

injury claim and his request to subpoena witnesses. 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. 

ISSUES 

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

sustained an injury in the performance of duty on February 10, 2010; and (2) whether OWCP 

properly denied his request for subpoenas. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On February 9, 2011 appellant, then a 45-year-old mail handler, filed a traumatic injury 

claim (Form CA-1) alleging that on February 10, 2010 his preexisting Type 1 diabetes was 

aggravated when he had to work a double capacity shift by himself, causing his blood sugar to 

drop. He stated that his supervisors forced him to seek emergency treatment at the hospital even 

though he would have recovered with a break. 

By letter dated November 27, 2012, OWCP informed appellant that the evidence received 

was insufficient to establish his claim. It requested additional factual and medical evidence and 

asked that he respond to the provided questions within 30 days. OWCP also requested the 

employing establishment to provide additional factual information with respect to appellant’s 

traumatic injury claim. 

By letter dated December 8, 2012, appellant responded that, on February 10, 2010, he 

was working a double capacity job because his supervisor refused to replace his coworker. He 

was restricted from taking breaks without informing his supervisor. Appellant went to go find 

his supervisor to take his first break but his blood sugar had begun to fall due to his Type 1 

diabetes. He began to sweat, experience cramped muscles and had difficulty walking. 

Appellant’s coworkers helped him to the break room and his supervisors made him to go to the 

hospital by way of ambulance despite his protests. He noted that his supervisors overreacted and 

unnecessarily removed him from work. Appellant stated that, if he had been allowed to take his 

break, he would have been able to resume work as it would have given him a chance to raise his 

blood sugar. He argued that management failed to provide him with reasonable 

accommodations. 

Appellant submitted narrative statements dated June 6, 2010 and July 1, 2011 recounting 

the February 10, 2010 employment incident. He stated that his medical treatment for emergency 

services should have been covered by the employing establishment or OWCP. Appellant further 

reiterated that he was forced to go to the hospital by his supervisors and no one ever told him he 

needed to file a Form CA-1 for immediate removal from work due to injury and payment of his 

medical bills. 

Appellant also submitted a February 10, 2011 statement from Michelle Frankovich and a 

February 14, 2011 statement from Ashwin Patel, his coworkers. They supported his assertions 

regarding the February 10, 2010 employment incident. 

In medical reports dated February 7, 2008 and June 29, 2009, Dr. Anne Missavage, a 

Board-certified surgeon, reported that appellant was a severe diabetic and was being treated for 

an infection in the third right toe. The toe required amputation on January 17 and 

February 11, 2008. Appellant stated that he constantly worked on his feet, was required to work 

overtime and had been doing more than one bid job. Dr. Missavage noted that he required work 

restrictions due to his diabetes so that he could appropriately adjust his insulin doses with breaks 

for foot elevation. 

In medical reports dated February 6 and July 10, 2009 and September 21, 2010, 

Dr. David Wenkert, Board-certified in internal medicine, reported that appellant suffered from 
3

Type 1 diabetes with highly variable blood sugar. Appellant required a consistent schedule 

every day during his work shift so that he could adequately plan his meals and insulin doses in 

order to control his blood sugar. He indicated that he was required, with no advanced notice, to 

change job positions frequently during his shift at work. 

In a February 10, 2010 Ingham Regional Medical Center Emergency Room (ER) report, 

Dr. Shannon Wiggins, a doctor of osteopathic medicine, reported that appellant had a history of 

diabetes and was transported from work after his blood sugar dropped. She diagnosed low blood 

glucose and resolved hyperkalemia. Appellant was admitted overnight and released on 

February 11, 2010. 

By decision dated May 21, 2013, OWCP denied appellant’s claim on the grounds that the 

evidence was insufficient to establish that he sustained an injury. It found that the February 10, 

2010 incident occurred as alleged; that he was working two positions by himself, and that he was 

unable to take regularly scheduled breaks. OWCP found that the evidence failed to provide a 

firm medical diagnosis which could be reasonably attributed to the accepted incident. It further 

noted that the evidence did not establish that a medical condition arose or was aggravated by the 

February 10, 2010 employment incident. 

On January 14, 2013 appellant requested an oral hearing before the Branch of Hearings 

and Review. 

On February 9, 2013 appellant requested that OWCP’s hearing representative issue a 

subpoena for Ms. Frankovich and Mr. Patel, his coworkers, to establish his allegations on 

February 10, 2010 and to verify that he was unnecessarily sent to the hospital despite his 

protests. 

On April 1, 2013 OWCP’s hearing representative denied appellant’s request for 

subpoenas stating that the facts surrounding his claim had been established and the case was 

denied due to a lack of medical evidence. The hearing representative noted that it was unclear 

how the subpoena request was relevant to the issue at hand which involved a medical issue and 

that appellant could submit written statements from the individuals. Appellant was also 

informed that he could bring witnesses to testify at the hearing. 

At the May 8, 2013 hearing, appellant testified that he was required to do extra work 

because his workstation was understaffed which caused his blood sugar to drop. He further 

stated that his supervisors forced him to go to the hospital on February 10, 2010 despite his 

protests. Appellant requested that the employing establishment pay for his hospital bills. He 

was advised of the medical evidence needed to establish his claim. The record was held open for 

30 days. 

By decision dated September 5, 2013, OWCP’s hearing representative affirmed the 

January 4, 2013 decision finding that the evidence of record failed to establish a diagnosed 

condition which could be reasonably attributed to the accepted employment incidents. The 

hearing representative also noted that appellant had established that he was forced to go to the 

hospital, against his wishes, on February 10, 2010 by employing establishment management. 
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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 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 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 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 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.5

 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. 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 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.6

ANALYSIS -- ISSUE 1 

OWCP accepted that the February 10, 2010 incidents occurred as alleged. Appellant was 

working two positions on that day and was not allowed to take regularly scheduled breaks. He 

was also required by management to seek medical treatment at a hospital. OWCP denied 

appellant’s claim on the grounds that it lacked sufficient medical evidence to support an injury 

related to the February 10, 2010 incident. The Board finds that he did not submit sufficient 

 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, supra note 2. 

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

6 James Mack, 43 ECAB 321 (1991). 
5

medical evidence to support that he sustained an injury causally related to the February 10, 2010 

employment incident.7

 

In a February 10, 2010 emergency room report, Dr. Wiggins advised that appellant had a 

history of diabetes and was transported from work after his blood sugar dropped. She diagnosed 

low blood glucose and hyperkalemia, resolved. Appellant was admitted overnight and released 

on February 11, 2010. 

Dr. Wiggins’ failed to provide any explanation regarding the cause of appellant’s 

condition on February 10, 2010. She did not address his medical history other than noting his 

preexisting diabetes condition. Dr. Wiggins did not state that appellant’s condition was work 

related or offer a rationalized opinion on the issue of causal relationship.8 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.9

 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.10 Dr. Wiggins’ report is insufficient to meet appellant’s 

burden of proof.11

The remaining medical evidence of record is also insufficient to establish appellant’s 

traumatic injury claim. The reports of Dr. Missavage reference appellant’s diabetes and right toe 

amputation, recommending a stable work schedule with breaks. The reports predating the 

February 10, 2010 employment incident are therefore irrelevant to establish an injury that day. 

Dr. Wenkert provided a diagnosis of Type 1 diabetes and recommended a consistent work 

schedule so that appellant could adequately plan his meals and insulin doses in order to control 

his blood sugar. This evidence is not sufficient to establish appellant’s case. 

OWCP accepted that the employing establishment required appellant to seek medical 

treatment at a hospital on February 10, 2010. It regulations provide that in unusual or emergency 

circumstances it may approve payment for medical expenses incurred.12 OWCP may approve 

payment for medical expenses incurred even if a Form CA-16 authorizing medical treatment and 

expenses has not been issued and the claim is subsequently denied; payment in such situations 

must be determined on a case-by-case basis.13 It did not consider whether emergency 

 7 See Robert Broome, 55 ECAB 339 (2004).

8 Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are 

entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).

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

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

11 Supra note 9. 

12 20 C.F.R. § 10.304. 

13 G.S., Docket No. 13-1731 (issued December 3, 3013). 
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circumstances or unusual circumstances were present or whether this was a situation in which 

reimbursement of medical expenses was appropriate. OWCP is required to exercise its 

discretion to determine whether medical care has been authorized or whether unauthorized 

medical care involved emergency or unusual circumstances and is therefore reimbursable 

regardless of whether the underlying claim for benefits has been accepted or denied. The 

circumstances of the case warrant additional development of this issue. On return of the record, 

OWCP should issue a de novo decision on the issue of reimbursement of medical expenses.14 

Appellant 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. 

LEGAL PRECEDENT -- ISSUE 2 

Section 8126 of FECA provides that the Secretary of Labor, on any matter within her 

jurisdiction under this subchapter, may issue subpoenas for and compel the attendance of 

witnesses within a radius of 100 miles.15 The implementing regulations provide that a claimant 

may request a subpoena, but the decision to grant or deny such a request is within the discretion 

of the hearing representative, who may issue subpoenas for the attendance and testimony of 

witnesses and for the production of books, records, correspondence, papers or other relevant 

documents. Subpoenas are issued for documents only if they are relevant and cannot be obtained 

by other means and for witnesses only where oral testimony is the best way to ascertain the 

facts.16 In requesting a subpoena, a claimant must explain why the testimony is relevant to the 

issues in the case and why a subpoena is the best method or opportunity to obtain such evidence 

because there is no other means by which the testimony could have been obtained.17 Section 

10.619(a)(1) of the implementing regulations provide that a claimant may request a subpoena 

only as a part of the hearings process and no subpoena will be issued under any other part of the 

claims process. 

To request a subpoena, the requestor must submit the request in writing and send it to the 

hearing representative as early as possible, but no later than 60 days (as evidenced by postmark, 

electronic marker or other objective date mark) after the date of the original hearing request.18 

OWCP’s hearing representative retains discretion on whether to issue a subpoena. The function 

of the Board on appeal is to determine whether there has been an abuse of discretion.19 Abuse of 

discretion is generally shown through proof of manifest error, a clearly unreasonable exercise of 

 14 Id. 

15 5 U.S.C. § 8126(1). 

16 20 C.F.R. § 10.619; Gregorio E. Conde, 52 ECAB 410 (2001). 

17 Id. 

18 20 C.F.R. § 10.619(a)(1). 

19 See Gregorio E. Conde, supra note 16. 
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judgment or actions taken which are clearly contrary to logic and probable deduction from 

established facts.20

ANALYSIS -- ISSUE 2 

On January 14, 2013 appellant requested a hearing. By letter dated February 9, 2013, he 

requested subpoenas to compel the attendance of Ms. Frankovich and Mr. Patel, his coworkers, 

who were present during the February 10, 2010 employment incident. By letter dated April 1, 

2013, finalized in the September 5, 2013 decision, OWCP’s hearing representative denied 

appellant’s request for subpoenas stating that he had established the factual portion of his claim. 

The witnesses had submitted to the record and their attendance was not relevant to the issue on 

appeal, which required the submission of medical evidence. 

The Board finds that OWCP’s hearing representative properly denied appellant’s 

subpoena request. Appellant did not establish why a subpoena was the best method to obtain the 

evidence in question or why there was no other means by which the testimony could be obtained. 

As noted, the individuals for whom the subpoenas were requested had provided written 

statements to the record. An abuse of discretion is generally shown through proof of manifest 

error, clearly unreasonable exercise of judgment or actions taken which are contrary to both logic 

and probable deduction from established facts.21 The mere showing that the evidence would 

support a contrary conclusion is insufficient to prove an abuse of discretion. The Board finds 

that the hearing representative did not abuse his discretion in denying appellant’s request for 

subpoenas. 

CONCLUSION 

The Board finds that appellant failed to meet his burden of proof to establish that his low 

blood glucose and hyperkalemia is causally related to the accepted February 10, 2010 

employment incident. In addition, the Board further finds that OWCP properly denied 

appellant’s request for a subpoena. 

 20 Claudio Vazquez, 52 ECAB 496 (2001). 

21 Id. 
8

ORDER 

IT IS HEREBY ORDERED THAT the September 5, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 2, 2014 

Washington, DC 

 

 Richard J. Daschbach, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board