United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.J., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Edison, NJ, Employer 

__________________________________________ 

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Docket No. 15-359 

Issued: April 3, 2015 

Appearances: Case Submitted on the Record

Thomas S. Harkins, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On December 5, 2014 appellant, through counsel, filed a timely appeal from an 

August 15, 2014 Office of Workers’ Compensation Programs’ (OWCP) merit decision. 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 his burden of proof to establish that he sustained an 

injury in the performance of duty. 

On appeal, counsel contends that appellant was actually claiming a recurrence of 

disability based on a change in the nature and extent of his limited-duty job requirements and, 

therefore, OWCP erred in its adjudication of his claim as a new occupational disease claim. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On December 16, 2013 appellant, then a 64-year-old mail processor, filed a recurrence 

claim (Form CA-2a), under File No. xxxxxx217, alleging that he sustained a recurrence of an 

October 30, 2008 employment injury after returning to a limited-duty position. He indicated that 

he returned to limited duty on November 4, 2013 and stopped work on November 23, 2013 

because the position required him to use his thumbs and hands in excess of four hours per day. 

The employing establishment indicated that appellant had not performed a full day on the job as 

he was in training for three continuous weeks and did not exceed his medical restrictions as there 

was no speed requirement and he was able to use either hand and the “one finger hunt and peck” 

method to keyboard as needed. 

In reports dated November 12, 2013 through January 16, 2014, Dr. Robert Lombardi, a 

Board-certified orthopedic hand surgeon, indicated that appellant was a federal employee and 

continued to have bilateral thumb pain “with light lifting and typing.” He also reported right 

elbow pain with rotational movement. Dr. Lombardi diagnosed bilateral osteoarthritis of the 

hand, bilateral carpal tunnel syndrome, and severe degenerative joint disease of the bilateral 

wrists, thumb, and right elbow. He restricted appellant from lifting more than one pound, no use 

of thumbs, limited use of hands to four hours, no fine manipulation or grasping, and no repetitive 

motion of the right and left thumb. 

An electromyography and nerve conduction studies (EMG/NCS) dated January 15, 2014 

revealed no evidence of peripheral entrapment neuropathy or cervical radiculopathy regarding 

the right upper extremity and suggested ulnar nerve irritation at the elbow. 

By letter dated March 19, 2014, OWCP determined that based on appellant’s description 

of his condition he was actually claiming a new occupational disease attributed to repetitive work 

and exposure over the course of more than one work shift. It developed appellant’s claim as a 

new occupational disease and assigned File No. xxxxxx656. 

In an April 7, 2014 letter, OWCP notified appellant of the deficiencies of his claim and 

afforded him 30 days to submit additional evidence and respond to its inquiries. 

Appellant, through counsel, submitted reports dated January 23 through April 10, 2014 

from Dr. Lombardi who reiterated his diagnoses and opinions. In a brief dated May 1, 2014, 

appellant’s counsel indicated that appellant had a previously accepted occupational disease claim 

for bilateral carpal tunnel syndrome and right radial styloid tenosynovitis under File No. 

xxxxxx217. He further indicated that in November 2013 appellant returned to work in a fulltime limited-duty position, which required the use of hands more than four hours per day and the 

use of thumbs in violation of his medical restrictions. As a result, appellant stopped work on 

November 23, 2013 and did not return. 

By decision dated May 15, 2014, OWCP denied the new occupational disease claim on 

the basis that appellant failed to establish fact of injury, finding that the evidence was not 

sufficient to establish that a medical condition was diagnosed in connection with factors of his 

federal employment. 
3

On May 22, 2014 appellant, through counsel, requested reconsideration and submitted a 

September 26, 2013 report from Dr. Lombardi who reiterated his diagnoses and medical 

restrictions. 

A September 5, 2013 rehabilitation assignment offer for a customer care agent position 

from the employing establishment identified the date of injury as October 30, 2008 and OWCP 

File No. xxxxxx217. It indicated that duties required “occasional simple grasping (mouse); 

occasional pushing/pulling using a computer mouse, interchangeable to right/left side as needed 

for comfort; and occasional fine manipulation or use of single finger when using a keyboard.” 

The employing establishment noted that the learning process encompassed three weeks of 

training, the first two weeks in a classroom setting and the third week with an instructor on “live” 

customer calls. 

By decision dated August 15, 2014, OWCP denied modification of its prior decision. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA2 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 of FECA, and that an injury3

 was sustained in the performance of duty. These 

are the essential elements of each compensation claim, regardless of whether the claim is 

predicated upon a traumatic injury or an occupational disease.4

 

To establish that an injury was sustained in the performance of duty in a claim for an 

occupational disease claim, an employee must submit 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 evidence. 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 

 2 Id. 

3

 OWCP regulations define an occupational disease or illness as a condition produced by the work environment 

over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q). 

4 See O.W., Docket No. 09-2110 (issued April 22, 2010); Ellen L. Noble, 55 ECAB 530 (2004). 

5 See D.R., Docket No. 09-1723 (issued May 20, 2010). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); 

Ruby I. Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989). 
4

the relationship between the diagnosed condition and the specific employment factors identified 

by the employee.6 

ANALYSIS 

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

Appellant filed a recurrence claim (Form CA-2a), under File No. xxxxxx217, for a 

bilateral hand condition. OWCP developed the claim as a new occupational disease and 

assigned File No. xxxxxx656. The record reveals that on October 30, 2008 appellant previously 

filed an occupational disease claim, assigned File No. xxxxxx217, for injuries to the same part of 

the body. The factual and medical evidence pertaining to appellant’s employment injuries in File 

No. xxxxxx217, however, are not contained in the case record. Furthermore, the record contains 

evidence of appellant’s attempt to file a recurrence claim of the October 30, 2008 employment 

injury. Nevertheless, OWCP continued to adjudicate the claim as a new occupational disease 

even though the evidence supports that appellant claimed he sustained a recurrence of his 

bilateral hand injury. The Board finds that OWCP failed to properly combine or request 

combination of the present case record with the record of the October 30, 2008 employment 

injury, which appellant implicated as the initial cause of his bilateral hand condition. 

Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested 

arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP 

shares responsibility in the development of the evidence to see that justice is done.7

 The Board 

will consequently remand the case for OWCP to combine the current case record with File No. 

xxxxxx217 and determine whether appellant sustained either a recurrence of disability due to his 

October 30, 2008 employment injury or a new employment injury.8

 Following this and any 

further development deemed necessary, OWCP shall issue a de novo decision on the merits. 

CONCLUSION 

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

 6 See O.W., supra note 4. 

7 See Claudio Vazquez, 52 ECAB 496 (2001). 

8 See C.B., Docket No. 13-1091 (issued September 16, 2013) (remanding the case to OWCP to combine case files 

where the record revealed that appellant attributed a March 2, 2012 injury to a previously accepted April 12, 2004 

employment injury). See also M.Z., Docket No. 13-414 (issued June 26, 2012) (remanding the case to OWCP to 

combine case files where it did not adequately explain why it adjudicated appellant’s notice of recurrence of 

disability as a new injury given that she alleged that she experienced pain immediately upon returning to work rather 

than relating her condition to new work factors). 
5

ORDER 

IT IS HEREBY ORDERED THAT the August 15, 2014 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for proceedings 

consistent with this decision of the Board. 

Issued: April 3, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board