United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.B., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Chicago, IL, Employer 

__________________________________________ 

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Docket No. 16-0345 

Issued: April 21, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On December 16, 2015 appellant filed a timely appeal from a July 16, 2015 merit 

decision and a November 18, 2015 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 arthritis of the 

left shoulder due to factors of his federal employment; and (2) whether OWCP properly denied 

his request for further merit review under 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 November 18, 2015 nonmerit 

decision. Since the Board’s jurisdiction is limited to the evidence that was before OWCP at the time of its final 

decision, the Board may not consider this evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1); Dennis E. 

Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). 
2

FACTUAL HISTORY 

On April 16, 2015 appellant, then a 63-year-old tractor trailer driver, filed an 

occupational disease claim (Form CA-2) alleging that he developed arthritis of the left shoulder 

as a result of his federal employment duties. He first became aware of his condition on 

February 16, 2015 and of its relationship to his employment on March 3, 2015. 

By letter dated May 7, 2015, OWCP informed appellant that the evidence of record was 

insufficient to support his claim. It provided a questionnaire for completion and advised him to 

describe in detail the employment-related activities which he believed contributed to his 

condition. Appellant was informed of the medical and factual evidence necessary and was 

afforded 30 days to respond. 

In support of his claim, appellant submitted medical and diagnostic reports dated March 3 

through June 22, 2015. In an April 27, 2015 report, Dr. Anatoly Rozman, Board-certified in 

physical medicine and rehabilitation, diagnosed left shoulder osteoarthritis and possible rotator 

cuff tendinitis. She noted that given appellant’s work for over 18 years as a truck driver, it 

appeared that he suffered from cumulative trauma disorder/occupational disease which could be 

related to driving, pushing, and pulling heavy objects at work. 

By decision dated July 16, 2015, OWCP denied appellant’s claim finding that the 

evidence of record failed to establish that the occupational exposure occurred as alleged. It noted 

that he had failed to explain what work duties caused or aggravated his condition and noted that 

appellant had not responded to the questions provided in its May 7, 2015 development letter. 

On August 13, 2015 appellant requested reconsideration of OWCP’s decision. 

In support of his claim, appellant submitted an August 13, 2015 report from Dr. Estella 

Hernandez, Board-certified in family medicine. Dr. Estella reported a history of a prior accepted 

claim for left shoulder tendinitis and bursitis from December 2002. She argued that appellant’s 

prior accepted conditions were aggravated resulting in osteoarthritis of the left shoulder due to 

his repetitive employment duties over the years which included pulling, pushing, and throwing 

mail. 

 By decision dated November 18, 2015, OWCP denied appellant’s request for 

reconsideration finding that the evidence submitted was insufficient to warrant a merit review as 

it did not address the outstanding issue of the factors of employment responsible for the 

osteoarthritis. 

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, 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 
3

employment injury.3

 These are the essential elements of every compensation claim regardless of 

whether the claim is predicated on a traumatic injury or an occupational disease.4

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.5 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.6 

To establish causal relationship between the condition, including 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.7 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 

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.8

ANALYSIS -- ISSUE 1 

The Board finds that appellant failed to establish left shoulder osteoarthritis causally 

related to factors of his federal employment as a tractor trailer driver. 

Appellant has not provided sufficient detail to establish what factors of employment 

caused or aggravated his left shoulder osteoarthritis.9

 On his Form CA-2, he failed to provide 3 Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989). 

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

5 Elaine Pendleton, supra note 3. 

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

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

8 James Mack, 43 ECAB 321 (1991). 

9 Dennis M. Mascarenas, 49 ECAB 215, 218 (1997). 
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any discussion of his employment duties. By letter dated May 7, 2015, OWCP requested that 

appellant provide the factual circumstances of his injury and provided him with a questionnaire 

for completion. Appellant did not respond. The record contains no explanation provided by 

appellant pertaining to the employment factors allegedly responsible for his injury. By failing to 

describe his employment duties and circumstances surrounding his alleged injury, appellant has 

not established that the occupational exposure occurred as alleged.10 

Subsequent to OWCP’s May 7, 2015 development letter, appellant submitted an April 27, 

2015 medical report from Dr. Rozman. The Board notes that, in her report, Dr. Rozman 

described some of appellant’s employment duties. However, Dr. Rozman’s report lacks 

sufficient explanation to determine to which specific employment duties appellant is attributing 

his injury, how often he performed these tasks, and the frequency and duration of each task. The 

factual and medical evidence of record fails to establish the factual element of appellant’s claim, 

namely, that a claimed occupational exposure caused him medical injury or disease.11

The Board has held that the mere fact that a condition manifests itself during a period of 

employment does not raise an inference of causal relation.12 An award of compensation may not 

be based on surmise, conjecture, or speculation. Appellant did not submit an adequately detailed 

description of his specific employment duties which he believed caused or aggravated his 

condition and, as such, the Board finds that OWCP properly denied his claim.13

Appellant may submit additional evidence, together 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 and 10.607. 

LEGAL PRECEDENT -- ISSUE 2 

To require OWCP to reopen a case for merit review under FECA section 8128(a), OWCP 

regulations provide that a request for reconsideration must set forth arguments and contain 

evidence that either: (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.14 

Section 10.608(b) of OWCP regulations provides that when an application for reconsideration 

does not meet at least one of the three requirements enumerated under section 10.606(b)(3), 

OWCP will deny the application for reconsideration without reopening the case for a review on 

the merits.15

 10 P.T., Docket No. 14-598 (issued August 5, 2014). 

11 B.S., Docket No. 13-405 (issued July 18, 2013). 

12 Daniel O. Vasquez, 57 ECAB 559 (2006). 

13 Given that appellant did not establish employment factors, further consideration of the medical evidence is 

unnecessary. See Bonnie A. Contreas, 57 ECAB 364, 368 n.10 (2006). 

14 D.K., 59 ECAB 141 (2007). 

15 K.H., 59 ECAB 495 (2008). 
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ANALYSIS -- ISSUE 2 

The Board finds that OWCP properly refused to reopen appellant’s case for further 

consideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a). 

In his August 13, 2015 request for reconsideration, appellant failed to show that OWCP 

erroneously applied or interpreted a specific point of law and he did not advance a relevant legal 

argument not previously considered by OWCP. Appellant also failed to submit relevant and 

pertinent new evidence. 

The underlying issue on appeal involves fact of injury. Appellant’s reconsideration 

request does not provide the requested detail pertaining to the factors of his employment. He 

failed to submit a narrative statement detailing the federal employment duties alleged to have 

caused his injury, or a response to OWCP’s May 7, 2015 questionnaire. Rather, appellant 

submitted new evidence in the form of medical reports. While these documents have some 

connection to his claim, they are not relevant to the issue for which OWCP denied appellant’s 

claim, the failure to establish factors of his federal employment. Therefore, these documents do 

not constitute a basis for reopening appellant’s claim.16 

The Board accordingly finds that appellant did not meet any of the requirements of 20 

C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review. 

CONCLUSION 

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

shoulder osteoarthritis was causally related to factors of his federal employment as a tractor 

trailer driver. OWCP properly denied appellant’s request for reconsideration without a merit 

review. 

 16 David J. McDonald, 50 ECAB 185 (1990). 
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ORDER 

IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’ 

decisions dated November 18 and July 16, 2015 are affirmed. 

Issued: April 21, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board