United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.S., Appellant

and

U.S. POSTAL SERVICE, COTTAGE GROVE 

ANNEX, Cottage Grove, MN, Employer

__________________________________________

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Docket No. 17-1814

Issued: February 13, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

On August 22, 2017 appellant filed a timely appeal from a March 27, 2017 merit decision 

and a June 6, 2017 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 to consider the merits of this case.2

ISSUES

The issues are: (1) whether appellant met her burden of proof to establish an 

occupational disease causally related to the accepted factors of her federal employment; and 

(2) whether OWCP abused its discretion in denying appellant’s request for review of the written 

record before a representative of the Branch of Hearings and Review as untimely filed pursuant 

to 5 U.S.C. § 8124. 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted additional evidence with her appeal to the Board. However, the Board

may only review evidence that was of record at the time OWCP issued its final decision. Thus, the Board is unable 

to review this additional evidence for the first time on appeal. See 20 C.F.R. §§ 501.2(c)(1); M.B., Docket No. 

09-0176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 

57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
2

FACTUAL HISTORY

On January 24, 2017 appellant, then a 57-year-old city carrier, filed an occupational 

disease claim (Form CA-2) alleging that on January 6, 2017 she realized that walking her postal 

route, placing her foot on the gas pedal and brake, and getting out of the postal truck resulted in 

the development of a right ankle fibular fracture and Achilles tendon damage. She stopped work 

on January 20, 2017. 

In a letter dated February 14, 2017, OWCP advised appellant that the evidence of record 

was insufficient to establish her occupational disease claim. It explained that further medical 

evidence was required. Appellant was afforded 30 days to submit the necessary evidence. 

In a December 30, 2016 report, Dr. John Simon, Board-certified in internal medicine, 

related that appellant was seen for complaints of right ankle pain which began on December 21, 

2016 while she was delivering mail on her postal route. Appellant’s physical examination 

revealed significant pain over the right peroneal tendons, as well as the anterior drawer, and mild 

edema. Diagnostic tests of her right foot and ankle revealed negative x-ray results and negative 

ultrasound for blood clot. Dr. Simon diagnosed right ankle impingement and effusion, right 

ankle lateral ligamentous pain, right ankle pain, and right peroneal tendon disease. 

Dr. Simon, in a disability note dated December 30, 2016, diagnosed right ankle strain and 

acute tendinitis and related that appellant was disabled from work. 

A January 5, 2017 magnetic resonance imaging (MRI) scan of appellant’s right ankle 

revealed mild Achilles tendinopathy, mild posterior tenosynovitis, mild-to-moderate insertional 

tibialis anterior tendon tendinopathy, residual of a marked fibular attachment sprain, less than 

one centimeters low grade peroneus brevis tendon fraying and tearing, and fibular stress reaction 

without a discrete fracture line. 

In a January 6, 2017 report, Dr. Benjamin L. Clair, a treating podiatrist, diagnosed right 

fibular stress fracture, peroneal tenosynovitis, and tendinopathy. A physical examination 

revealed right ankle fibula, peroneal, and percussive pain. Dr. Clair reviewed a right ankle MRI 

scan which showed a right fibular stress fracture reaction. OWCP continued to receive progress 

notes from him in which he related that appellant was disabled from work. 

On January 20, 2017 appellant was seen by Dr. Clair for right post ankle sprain and right 

fibular stress fracture. Physical findings included significant fibula pain on percussion and 

palpitation and improved edema. Dr. Clair recommended that appellant remain off work for two 

more weeks.

In a letter dated January 20, 2017, Dr. Clair advised that appellant was unable to work 

due to right ankle injury and fibular stress fracture. He noted that the right ankle MRI scan 

revealed a right fibular stress fracture, which explained her pain. On February 3, 2017 Dr. Clair 

reported that examination of appellant’s right ankle revealed fibula percussive and palpatory

pain, which had improved since her last evaluation. He released her to sedentary light-duty work 

for two weeks with gradual progression to full-duty work. 

By decision dated March 27, 2017, OWCP denied appellant’s occupational disease claim. 

It found that none of the medical evidence of record contained a rationalized medical opinion 
3

explaining how her diagnosed right ankle conditions were causally related to accepted factors of 

her federal employment. 

On May 23, 2017 OWCP received appellant’s request for review of the written record by 

an OWCP hearing representative. The form was dated May 11, 2017 and postmarked 

May 20, 2107. Appellant continued to submit medical evidence to the record. 

By decision dated June 6, 2017, a representative of OWCP’s Branch of Hearings and 

Review denied appellant’s request for review of the written record by an OWCP hearing 

representative as it was untimely filed. After exercising its discretion, the hearing representative 

further denied the request finding that the issue could be equally well addressed through a 

request for reconsideration before OWCP’s district office.

LEGAL PRECEDENT -- ISSUE 1

An employee seeking benefits under FECA3 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 

employment injury.4 These are the essential elements of each and every compensation claim 

regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5

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 

Causal relationship is a medical issue and the medical evidence generally required to

establish causal relationship is rationalized medical opinion evidence.7 Rationalized medical 

opinion evidence is medical evidence which includes a physician’s rationalized opinion on 

whether there is causal relationship between the employee’s diagnosed condition and the 

compensable employment factors.8 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, 

 

3 Supra note 1.

4 C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

5 S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

6 D.U., Docket No. 10-0144 (issued July 27, 2010); R.H., 59 ECAB 382 (2008); Roy L. Humphrey, 57 ECAB 238 

(2005); Donald W. Wenzel, 56 ECAB 390 (2005).

7 Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB 

642 (2006).

8

J.J., Docket No. 09-0027 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006). 
4

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.9 

ANALYSIS -- ISSUE 1

Appellant filed an occupational disease claim alleging that her right ankle conditions 

were due to her walking her postal route, getting into and out of the postal vehicle, and operating 

her postal vehicle. OWCP denied her claim as it found the medical evidence of record failed to 

establish that her right ankle conditions had been caused or aggravated by the accepted federal 

employment factors.

In support of her claim appellant submitted medical reports from Drs. Simon and Clair. 

Dr. Simon diagnosed right ankle impingement and effusion, right ankle lateral ligamentous pain, 

and right conservative peroneal tendon disease, but offered no opinion as to the cause of these 

conditions. Similarly, Dr. Clair offered no opinion on the diagnosed conditions of right fibular 

stress fracture, post right ankle sprain, and peroneal tenosynovitis and tendinopathy. The Board 

has held that medical opinion evidence that offers no opinion regarding the cause of an 

employee’s condition is of limited probative values on the issue of causal relationship.10 Thus, 

the reports from Drs. Simon and Clair are insufficient to establish appellant’s claim.

Appellant also submitted a January 5, 2017 MRI scan of her right ankle in support of her 

claim. The MRI scan report is insufficient to establish her claim as this report is merely a 

diagnostic report and contains no opinion as to the cause of the medical conditions identified on 

the scan.11

The Board finds that appellant has offered insufficient medical evidence to establish her

claim. As noted above, causal relationship is a medical question that must be established by a 

probative medical opinion from a physician.12 The physician must accurately describe 

appellant’s employment duties and explain the physiological process by which these duties 

would have caused her right ankle conditions.

13

 The mere recitation of patient history does not

suffice for purposes of establishing causal relationship between a diagnosed condition and the 

employment incident.14 Without explaining physiologically how the accepted employment 

factors caused or contributed to the diagnosed conditions, the physician’s reports are of limited 

probative value.15

 

9

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

10 M.S., Docket No. 16-1497 (issued December 20, 2016); S.E., Docket No. 08-2214 (issued May 6, 2009); 

Jaja K. Asaramo, 55 ECAB 200 (2004).

11 T.D., Docket No. 17-0649 (issued June 16, 2017).

12 I.J., supra note 9; Roy L. Humphrey, supra note 6.

13 Supra note 9.

14 See J.G., Docket No. 17-1382 (issued October 18, 2017). 

15 See A.B., Docket No. 16-1163 (issued September 8, 2017). 
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The Board finds that, as the medical evidence of record is insufficient for the reasons set 

forth above, appellant has failed to meet her burden of proof.

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 8124(b)(1) of FECA, concerning a claimant’s entitlement to a hearing before an 

OWCP hearing representative, provides: Before review under section 8128(a) of this title, a 

claimant for compensation not satisfied with a decision of the Secretary under subsection (a) of 

this section is entitled, on request made within 30 days after the date of the issuance of the 

decision, to a hearing on his or her claim before a representative of the Secretary.16 A hearing is 

a review of an adverse decision by OWCP’s hearing representative. Initially, the claimant can 

choose between two formats: an oral hearing or a review of the written record. In addition to the 

evidence of record, the claimant may submit new evidence to the hearing representative.17 A 

request for either an oral hearing or a review of the written record must be sent, in writing, within 

30 days of the date of the decision for which the hearing is sought.18 A claimant is not entitled to 

a hearing or a review of the written record if the request is not made within 30 days of the date of 

the decision.19

OWCP has discretion to grant or deny a request that is made after the 30-day period for 

requesting a hearing. In such a case, it will determine whether to grant a discretionary hearing 

and, if not, will so advise the claimant with reasons.20

ANALYSIS -- ISSUE 2

Appellant requested a review of the written record in an appeal request form dated 

May 11, 2017, postmarked May 20, 2017, and received by OWCP’s Branch of Hearings and 

Review on May 23, 2017. All dates were more than 30 days after the March 27, 2017 OWCP 

decision. Section 8124(b)(1) is unequivocal on the time limitation for requesting a review of the 

written record.

21

 Because the request for review of the written record was untimely filed, 

appellant was not entitled to review of the written record as a matter of right.

OWCP has the discretionary power to grant a review of the written record when a 

claimant is not entitled to one as a matter of right. It exercised this discretion in its June 6, 2017 

decision, finding that appellant’s issue could equally well be addressed by requesting 

 

16 5 U.S.C. § 8124(b)(1).

17 20 C.F.R. § 10.615.

18 James Smith, 53 ECAB 188 (2001); id. at § 10.616(a).

19 See R.T., Docket No. 08-0408 (issued December 16, 2008).

20 W.L., Docket No. 17-1538 (issued November 15, 2017); G.W., Docket No. 10-0782 (issued April 23, 2010).

21 William F. Osborne, 46 ECAB 198 (1994).
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reconsideration and submitting additional evidence. This basis for denying appellant’s request 

was a proper exercise of OWCP’s authority.22 Accordingly, the Board finds that OWCP 

properly denied her request for a review of the written record as untimely filed.

CONCLUSION

The Board finds that appellant failed to meet her burden of proof to establish an 

occupational disease causally related to the accepted factors of her federal employment. The 

Board further finds that OWCP properly denied her request for review of the written record as 

untimely filed. 

ORDER

IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’

Compensation Programs dated June 6 and March 27, 2017 are affirmed.

Issued: February 13, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

22 D.B., Docket No. 17-0448 (issued October 12, 2017); Mary B. Moss, 40 ECAB 640 (1989).