United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.H., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Tomball, TX, Employer 

__________________________________________ 

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Docket No. 15-0620 

Issued: March 15, 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 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On January 26, 2015 appellant timely appealed from a September 29, 2014 merit decision 

and a January 7, 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. 

ISSUES 

The issues are: (1) whether appellant sustained an injury in the performance of duty on 

or about February 20, 2014; and (2) whether the Branch of Hearings & Review properly denied 

appellant’s December 4, 2014 request for review of the written record. 

FACTUAL HISTORY 

Appellant, a 41-year-old rural carrier, filed an occupational disease claim (Form CA-2) 

for a right shoulder injury that she attributed to casing mail. She explained that casing required 

 1

 5 U.S.C. § 8101 et seq. 
2

reaching above her head on a daily basis. Appellant identified February 20, 2014 as the date she 

first realized her right shoulder condition was caused or aggravated by her work for the 

employing establishment.2 She did not submit any medical evidence with her June 30, 2014 CA2 form. 

By letter dated August 27, 2014, OWCP advised appellant of the five basic elements to 

establish a claim under FECA. It further explained that the evidence of record was insufficient 

to establish her claimed occupational exposure. OWCP provided a questionnaire that appellant 

was to complete and return. It requested that she describe in detail the employment-related 

activities she believed contributed to her condition, including information regarding the 

frequency and duration of various implicated activities. OWCP also requested appellant to 

provide information regarding all activities outside her federal employment. Additionally, it 

noted that no medical evidence had been received. OWCP afforded appellant 30 days to submit 

the necessary factual information and medical evidence in support of her claimed right shoulder 

injury. 

OWCP subsequently received a September 22, 2014 work excuse form signed by Dr. T. 

Bradley Edwards, a Board-certified orthopedic surgeon, who advised that appellant had 

recovered sufficiently to return to light-duty work. Dr. Edwards imposed restrictions of no 

pulling, no pushing, no overhead work, and no lifting more than five pounds. However, 

Dr. Edwards did not provide a specific diagnosis. 

In a September 29, 2014 merit decision, OWCP denied appellant’s occupational disease 

claim as she failed to establish fact of injury because the evidence did not support that the injury 

occurred as alleged. 

On December 4, 2014 appellant requested a review of the written record by the Branch of 

Hearings & Review. She signed and returned OWCP’s August 27, 2014 activities questionnaire, 

but neglected to provide the requested information. 

In a report dated September 24, 2014, Dr. Emile Mathurin Jr., a Board-certified 

physiatrist, diagnosed right shoulder impingement syndrome.3

 He described appellant as a 

carrier who does a lot of repetitive motion with the shoulder. Dr. Mathurin noted a prior history 

of work-related left shoulder problems. Appellant described her current right shoulder 

symptoms as being very similar to the left shoulder. She denied any history of falls or trauma to 

the shoulder. Appellant also indicated that her pain seemed to be aggravated with motion and 

with certain activities, especially above the head movement. On physical examination 

Dr. Mathurin noted that her shoulders were symmetrical. Appellant had undergone left shoulder 

surgery 4 to 5 months ago and exhibited limited range of motion. Examination of the right 

shoulder revealed no instability and fairly good range of motion. Dr. Mathurin noted some 

tenderness in the suprascapular region. He also reported good scapulohumeral movement of the 

right shoulder and good external and internal range of motion. Additionally, Dr. Mathurin noted 

that there was a little discomfort on internal rotation of the right shoulder. Also, appellant’s 

 2

 Appellant has an accepted claim for a left shoulder traumatic injury sustained on August 21, 2012 (xxxxxx763). 

3

 OWCP received Dr. Mathurin’s report on October 6, 2014. 
3

Hawkins test was negative. Dr. Mathurin ordered plain x-rays of the left shoulder. He noted that 

appellant stated that she had been doing exercises especially working with the left shoulder, 

which apparently helped. 

By decision dated January 7, 2015, OWCP’s Branch of Hearings and Review denied 

appellant’s request for review of the written record as untimely. The hearing representative also 

denied a discretionary hearing, noting that appellant could instead request reconsideration before 

OWCP. 

LEGAL PRECEDENT -- ISSUE 1 

A claimant seeking benefits under FECA has the burden of establishing the essential 

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

including that an injury was sustained in the performance of duty as alleged and that any specific 

condition or disability claimed is causally related to the employment injury.4

To establish that an injury was sustained in the performance of duty, a claimant must 

submit: (1) medical evidence establishing the presence or existence of the disease or condition 

for which compensation is claimed; (2) a factual statement identifying employment factors 

alleged to have caused or contributed to the presence or occurrence of the disease or condition; 

and (3) medical evidence establishing that the diagnosed condition is causally related to the 

identified employment factors.5

ANALYSIS -- ISSUE 1 

When appellant initially filed her Form CA-2 she did not provide any medical evidence 

in support of her claimed right shoulder injury. She also did not provide a detailed account of 

the employment duties she believed either caused or contributed to her claimed injury. On 

August 27, 2014 OWCP advised appellant of the above-noted deficiencies within her claim and 

afforded her at least 30-days to submit additional evidence. However, appellant did not submit 

the requested factual information. 

Dr. Edwards’ September 22, 2014 work excuse, which was of record, did not include a 

medical diagnosis, date of injury, or explanation as to the cause of injury. OWCP denied her 

occupational disease claim because she failed to establish fact of injury. The Board finds that 

appellant has not met her burden to prove she sustained an injury in the performance of duty on 

 4

 20 C.F.R. § 10.115(e), (f) (2014); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996). Causal relationship is 

a medical question, which generally requires rationalized medical opinion evidence to resolve the issue. See 

Robert G. Morris, 48 ECAB 238 (1996). A physician’s opinion on whether there is a causal relationship between 

the diagnosed condition and the implicated employment factors must be based on a complete factual and medical 

background. Victor J. Woodhams, 41 ECAB 345, 352 (1989). Additionally, the physician’s opinion must be 

expressed in terms of a reasonable degree of medical certainty, and must be supported by medical rationale, 

explaining the nature of the relationship between the diagnosed condition and appellant’s specific employment 

factors. Id. 

5 Victor J. Woodhams, id. 
4

or about February 20, 2014 as she has not provided the factual information necessary to evaluate 

her 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 

A claimant, injured on or after July 4, 1966, who has received a final adverse decision by 

OWCP, may obtain a hearing by writing to the address specified in the decision.6

 The hearing 

request must be sent within 30 days (as determined by postmark or other carrier’s date marking) 

of the date of the decision for which a hearing is sought.7

 The claimant must not have previously 

submitted a reconsideration request (whether or not it was granted) on the same decision.8

 If the 

request is not made within 30 days, a claimant is not entitled to a hearing as a matter of right. 

However, the Branch of Hearings and Review may exercise its discretion to either grant or deny 

a hearing.9

ANALYSIS -- ISSUE 2 

OWCP issued its merit decision on September 29, 2014. Appellant had 30 days to 

request a hearing, but she waited more than two months before filing her request. The hearing 

request was postmarked December 4, 2014. The regulations clearly state that “[t]he hearing 

request must be sent within 30 days ... of the date of the decision for which a hearing is 

sought.”10 The Board, therefore, finds that appellant’s December 4, 2014 request was untimely 

and she was not entitled to a review of the written record as a matter of right. The Branch of 

Hearings & Review also denied her request on the basis that her occupational disease claim 

could be equally well-addressed by requesting reconsideration before OWCP. 

The Board finds that the hearing representative properly exercised appellant’s 

discretionary authority in denying her request for review of the written record.11

 6

 20 C.F.R. § 10.616(a). 

7 Id.

8 Id.

9

 5 U.S.C. §§ 8124(b)(1) and 8128(a); Hubert Jones Jr., 57 ECAB 467, 472-73 (2006); Herbert C. Holley, 33 

ECAB 140 (1981). 

10 20 C.F.R. § 10.616(a). 

11 Mary B. Moss, 40 ECAB 640, 647 (1989). 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 

deductions from known facts. See André Thyratron, 54 ECAB 257, 261 (2002). 
5

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. 

CONCLUSION 

Appellant failed to establish that she sustained an injury in the performance of duty on or 

about February 20, 2014. The Board also finds that the Branch of Hearings & Review properly 

denied appellant’s request for review of the written record.

ORDER 

IT IS HEREBY ORDERED THAT the January 7, 2015 and September 29, 2014 

decisions of the Office of Workers’ Compensation Programs are affirmed.12

Issued: March 15, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 12 James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the 

Board effective November 16, 2015.