United States Department of Labor

Employees’ Compensation Appeals Board

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R.B., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION, 

North Chicago, IL, Employer

__________________________________________

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Docket No. 18-0203

Issued: July 2, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 6, 2017 appellant filed a timely appeal from an August 25, 2017 merit 

decision and an October 23, 2017 nonmerit decision of the Office of Workers’ Compensation 

Programs (OWCP).1 Pursuant to the Federal Employees’ Compensation Act2(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 has met her burden of proof to establish an injury 

causally related to the accepted June 20, 2016 employment incident; and (2) whether OWCP 

 

1 The Board notes that appellant submitted additional evidence after OWCP rendered its October 23, 2017 decision. 

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

Therefore, the Board is precluded from reviewing this additional 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 5 U.S.C. § 8101 et seq.
2

abused its discretion in denying appellant’s request for a review of the written record under 5 

U.S.C. § 8124 as untimely filed. 

FACTUAL HISTORY

On June 29, 2017 appellant, then a 49-year-old medical technician, filed a traumatic injury 

claim (Form CA-1) alleging that, on April 15, 2016,

3

she sustained a right upper forearm injury 

when someone accidentally touched her or she accidentally touched something, resulting in a rash 

on her arm one week later. She reported that she subsequently tested positive for Hepatitis A. On 

the reverse side of the claim form, the employing establishment controverted the claim. 

By development letter dated July 14, 2017, OWCP informed appellant that the evidence of 

record was insufficient to establish her claim. Appellant was advised of the factual and medical 

evidence needed and provided a questionnaire for her completion. She was afforded 30 days to 

respond. In a separate letter of the same date, OWCP similarly requested additional information 

from the employing establishment pertaining to appellant’s traumatic injury claim. 

In a June 5, 2017 statement, appellant explained that she did not complete an incident report 

at the time of occurrence because the incident happened on her last day of work in the emergency 

department and the rash did not develop until one week later. She reported that she continued to 

work for the employing establishment in a different department and detailed the June 2016 incident 

in her resignation letter from the emergency department. Appellant alleged that she subsequently 

had blood work done which revealed an illness from the claimed incident. No other evidence was 

received.

By decision dated August 25, 2017, OWCP denied appellant’s claim, finding that the 

evidence of record was insufficient to establish that she sustained an injury. It found that the 

incident occurred as alleged, but the evidence submitted failed to provide a firm medical diagnosis 

which could be reasonably attributed to the accepted employment incident. OWCP noted that 

appellant failed to submit any medical evidence with her claim. 

By appeal request form received on October 12, 2017, appellant requested review of the 

written record before an OWCP hearing representative. The request was postmarked 

October 6, 2017. 

In a June 27, 2016 narrative statement received on October 16, 2017, appellant reported 

that her injury occurred on June 20, 2016, her last day of employment in the emergency 

department, when someone touched the skin on her arm with feces causing, her medical condition. 

In support of her claim, appellant submitted medical reports and laboratory results dated 

November 7, 2016 through June 20, 2017 documenting treatment for her condition. 

 

3 The Board notes that, while appellant’s Form CA-1 reported the date of injury as April 15, 2016, she noted the 

date of notice as June 20, 2016. Appellant’s subsequent narrative statements further refer to a June 20, 2016 date of 

injury, the last day of her employment in the emergency department. As such, the Board will utilize June 20, 2016 as 

the date of injury.
3

In a September 30, 2017 narrative statement, appellant described the circumstances 

surrounding the June 20, 2016 employment incident, diagnoses, and subsequent course of 

treatment. 

By decision dated October 23, 2017, an OWCP hearing representative denied appellant’s 

request for a review of the written record finding that her request was not made within 30 days of 

the August 25, 2017 OWCP decision. The hearing representative further determined that the issue 

in the case could equally well be addressed by requesting reconsideration from OWCP and 

submitting evidence not previously considered which established that she sustained a work-related 

injury. 

LEGAL PRECEDENT -- ISSUE 1

An employee seeking benefits under FECA4 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 are causally related to the 

employment injury.5 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.6

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.7 The second component is whether the 

employment incident caused a personal injury and generally can be established only by medical 

evidence. 

To establish 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 supporting such causal relationship.8 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 

 

4 Supra note 2.

5 Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

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

7 Elaine Pendleton, supra note 5 at 1143 (1989).

8 See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).
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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.9

ANALYSIS -- ISSUE 1

The Board finds that appellant has not established that she sustained an injury causally 

related to the accepted June 20, 2016 employment incident. 

OWCP accepted that the employment incident occurred as alleged. The issue, therefore, 

is whether appellant submitted sufficient medical evidence to establish that the employment 

incident caused an injury. The Board finds that she did not submit any medical evidence to support 

a firm diagnosis which could be related to the accepted employment incident.10 

The only evidence of record is appellant’s (Form CA-1) and a June 5, 2017 statement 

alleging a right arm rash and Hepatitis A as a result of the June 20, 2016 employment incident. By 

letter dated July 14, 2017, OWCP informed her of the medical evidence needed in order to 

establish her claim. Appellant did not respond and failed to submit any evidence, medical or 

otherwise. The Board notes that the underlying issue in this case was whether she sustained an 

injury causally related to the accepted June 20, 2016 employment incident. That is a medical issue 

which must be addressed by relevant medical evidence.11 In this case, appellant failed to submit 

any medical evidence addressing a medical diagnosis and causal relationship in support of her 

claim.12 

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.13 An award of compensation may not 

be based on surmise, conjecture, speculation, or on the employee’s own belief of causal relation.14 

To establish a firm medical diagnosis and causal relationship, appellant must submit a physician’s 

report in which the physician reviews the established incident or factors of employment alleged to 

have caused her condition and, taking these factors into consideration, as well as findings upon 

examination and her medical history, explain how the incident or factors of employment caused 

or aggravated any diagnosed condition, and present medical rationale in support of his opinion.15 

In the instant case, the record is without rationalized medical evidence establishing a 

diagnosed medical condition causally related to the accepted employment incident. Thus, 

 

9

James Mack, 43 ECAB 321 (1991).

10 Id.

11 See Bobbie F. Cowart, 55 ECAB 746 (2004).

12 C.B., Docket No. 08-1583 (issued December 9, 2008).

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

14 D.D., 57 ECAB 734 (2006).

15 See Robert Broome, 55 ECAB 339 (2004).
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appellant has not met her burden of proof to establish an injury causally related to the accepted 

employment incident.

16

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 a 

representative of OWCP’s Branch of Hearings and Review, provides in pertinent part: “Before 

review under section 8128(a) of this title, a claimant for compensation not satisfied with a decision 

of the Secretary ... is entitled, on request made within 30 days after the date of the issuance of the 

decision, to a hearing on his claim before a representative of the Secretary.”

17

 Section 10.615 of 

the federal regulations implementing this section of FECA provides that a claimant shall be 

afforded a choice of an oral hearing or a review of the written record.18 As section 8124(b)(1) is 

unequivocal in setting forth the time limitation for requesting a hearing, a claimant is not entitled 

to a hearing as a matter of right unless the request is made within the requisite 30 days.19 OWCP’s 

regulations and the Board precedent provide that the request for an oral hearing or review of the 

written record must be sent within 30 days of the date of issuance of the decision (as determined 

by the postmark or other carrier’s date marking) for which an oral hearing or review of the written 

record is sought.20

The Board has held that OWCP, in its broad discretionary authority in the administration 

of FECA,21 has the power to hold hearings in certain circumstances where no legal provision was 

made for such hearings and that OWCP must exercise this discretionary authority in deciding 

whether to grant a hearing.22 OWCP procedures, which require OWCP to exercise its discretion 

to grant or deny a hearing when the request is untimely or made after reconsideration, are a proper 

interpretation of FECA and Board precedent.23

ANALYSIS -- ISSUE 2

The Board finds that OWCP’s hearing representative properly found in the October 23, 

2017 decision that appellant was not entitled to an oral hearing or examination of the written record 

 

16 Id.

17 5 U.S.C. § 8124(b)(1).

18 20 C.F.R. § 10.615.

19 Ella M. Garner, 36 ECAB 238, 241-42 (1984).

20 Supra note 6 at § 10.616(a).

21 Supra note 2. 

22 Marilyn F. Wilson, 52 ECAB 347 (2001).

23 Teresa M. Valle, 57 ECAB 542 (2006).
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as a matter of right because her request was not made within 30 days of its August 25, 2017 

decision.24

In the present case, appellant requested review of the written record and OWCP found that 

the reconsideration request was postmarked on October 6, 2017. Her request was made more than 

30 days after the date of issuance of OWCP’s prior August 25, 2017 merit decision.25 The time 

limitation to request a review of the written record by OWCP’s Branch of Hearings and Review 

expired on September 25, 2017, 30 days after the August 25, 2017 decision.26 Therefore, OWCP 

properly found in its October 23, 2017 decision that appellant was not entitled to an oral hearing 

or examination of the written record as a matter of right because her request was not made within 

30 days of its August 25, 2017 decision.27

While OWCP also has the discretionary power to grant a hearing when a claimant is not 

entitled to a hearing as a matter of right, OWCP’s hearing representative, in her October 23, 2017 

decision, properly exercised her discretion by indicating that she had carefully considered 

appellant’s request and had determined that the issue of the case could equally well be addressed 

by requesting reconsideration and submitting additional evidence in support of her claim for a 

work-related traumatic injury. The Board has held that the only limitation on OWCP’s authority 

is reasonableness and 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.28 In this case, the evidence of record does not indicate 

that OWCP abused its discretion in its denial of appellant’s request for review of the written record. 

Accordingly, the Board finds that OWCP properly denied her request.29

CONCLUSION

The Board finds that appellant has not met her burden of proof to establish an injury 

causally related to the accepted June 20, 2016 employment incident. The Board also finds that 

OWCP properly denied her request for a review of the written record under 5 U.S.C. § 8124 as it 

was untimely filed. 

 

24 Supra note 19; Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, 

Chapter 2.1601.4(a) (October 2011).

25 J.A., Docket No. 17-1744 (issued January 9, 2018).

26 The Board notes that the 30-day time limitation ran on Sunday, September 24, 2017. Because the time limitation 

expired on a nonbusiness day, the limitation is extended to include the next business day and did not expire until 

Monday, September 25, 2017. See M.H., Docket No. 13-1901 (issued January 8, 2014); Debra McDavid, 57 ECAB 

149, 150 (2005); Angel M. Lebron, Jr., 51 ECAB 488, 490 (2000); Gary J. Martinez, 41 ECAB 427, 427-28 (1990).

27 Supra note 23.

28 Daniel J. Perea, 42 ECAB 214, 221 (1990).

29 D.P., Docket No. 14-0308 (issued April 21, 2014); D.J., Docket No. 12-1332 (issued June 21, 2013).
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ORDER

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

decisions dated October 23 and August 25, 2017 are affirmed.

Issued: July 2, 2018

Washington, DC

Patricia H. Fitzgerald, Deputy 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