United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.K., Appellant

and

U.S. POSTAL SERVICE, PROCESSING &

DELIVERY CENTER, Milwaukee, WI, 

Employer

__________________________________________

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Docket No. 18-0607

Issued: October 18, 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 January 30, 2018 appellant filed a timely appeal from an October 16, 2017 merit 

decision and a December 28, 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 over the merits of the claim.

ISSUES

The issues are: (1) whether appellant met her burden of proof to establish a left knee injury 

causally related to the accepted August 25, 2017 employment incident; and (2) whether OWCP’s 

Branch of Hearings and Review properly denied appellant’s request for review of the written 

record, pursuant to 5 U.S.C. § 8124(b)(1), as untimely filed.

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On August 25, 2017 appellant, then a 44-year-old mail handler assistant, filed a traumatic 

injury claim (Form CA-1) alleging that, on that date she, was pulling on an all-purpose container 

(APC) while at work when she sustained a left knee strain. She stopped work on August 25, 2017

and returned to work on August 29, 2017. 

In support of her claim, appellant submitted an August 25, 2017 emergency services excuse 

form signed by Kelly Anderson, a physician assistant, which indicated that appellant was excused 

from work until August 27, 2017.

By development letter dated September 11, 2017, OWCP requested that appellant submit

additional factual and medical evidence in support of her claim including a rationalized medical 

opinion from a qualified physician regarding causal relationship. It attached a questionnaire for 

her completion and afforded her 30 days to submit the necessary evidence. 

On September 25, 2017 appellant responded to the development questionnaire and 

provided further details with regard to how her injury occurred. She noted that the driver had taken 

an APC off his truck, as she grabbed it and started pulling it toward the staging area she could not

place pressure on her knee.

Appellant submitted physical therapy notes from her initial visit on September 27, 2017. 

The physical therapist noted that appellant had chronic pain in her left knee. 

By decision dated October 16, 2017, OWCP denied appellant’s claim. It determined that,

although appellant had established that the incident occurred as alleged, she had not submitted 

medical evidence supporting a diagnosed condition causally related to the accepted incident. 

On November 29, 2017 appellant requested review of the written record by a representative 

of OWCP’s Branch of Hearings and Review. She submitted additional evidence from her physical 

therapists. 

In a decision dated December 28, 2017, the hearing representative denied appellant’s 

request for a review of the written record as it was untimely filed. She also reviewed the request 

at her discretion, and determined that the issue could equally well be addressed by requesting 

reconsideration from the district office and submitting evidence not previously considered. 

LEGAL PRECEDENT -- ISSUE 1

A claimant seeking benefits under FECA2 has the burden of proof to establish 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.3

 

2

Id.

3 S.S., Docket No. 16-1760 (issued January 23, 2018). 
3

To determine if an employee sustained a traumatic injury in the performance of duty, 

OWCP begins with an analysis of whether the fact of injury has been established. Generally, fact 

of injury consists of two components that must be considered in conjunction with one another. 

The first component is whether the employee actually experienced the employment incident that 

allegedly occurred.4 The second component is whether the employment incident caused a personal 

injury.5 An employee may establish that an injury occurred in the performance of duty as alleged, 

but fail to establish that the disability or specific condition for which compensation is being 

claimed is causally related to the injury.6

Causal relationship is a medical question that generally requires rationalized medical 

opinion evidence to resolve the issue.7 A physician’s opinion on whether there is causal

relationship between the diagnosed condition and the implicated employment factor(s) must be 

based on a complete factual and medical background.8 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 factor(s).9

ANALYSIS -- ISSUE 1

The Board finds that appellant has not established her traumatic injury claim, as she has

not established a diagnosed condition causally related to the accepted employment incident. 

Appellant failed to submit any medical evidence to support her claim. The evidence of 

record prior to OWCP’s October 16, 2017 merit decision consisted of reports from a physician 

assistant and a physical therapist. The Board has held that reports from physician assistants and 

physical therapists do not constitute competent medical evidence under FECA as these 

practitioners are not considered physicians as defined by FECA. Therefore, these reports are 

insufficient to establish appellant’s claim.

10

 

4 Elaine Pendleton, 40 ECAB 1143 (1989).

5

John J. Carlone, 41 ECAB 354 (1989). Causal relationship is a medical question that generally requires 

rationalized medical opinion evidence to resolve the issue. 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 

factor(s) 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 factor(s). Id.

6 Shirley Temple, 48 ECAB 404, 407 (1997). 

7 Robert G. Morris, 48 ECAB 238 (1996).

8 Victor J. Woodhams, 41 ECAB 345, 352 (1989).

9 See R.E., Docket No. 16-1916 (issued March 8, 2018). 

10 5 U.S.C. § 8101(2) provides that a physician includes surgeons, podiatrists, dentists, clinical psychologists, 

optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by law. Allen C. 

Hundley, 53 ECAB 551, 554 (2002) (physician assistants); P.T., Docket No. 17-0374 (issued April 19, 2018) (physical 

therapists).
4

Consequently, because appellant has failed to submit medical evidence to establish that she 

sustained an employment-related diagnosed medical condition causally related to the accepted 

employment incident, she has not met her burden of proof.11

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 representative, 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.12 Section 10.615 of OWCP’s federal regulations, 

implementing this section of FECA, provides that a claimant who requests a hearing can choose 

between two formats, either an oral hearing or a review of the written record by an OWCP hearing 

representative.13 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.14 The date of filing is fixed by postmark or other carrier’s 

date marking.15

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

of FECA, 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.16 Specifically, the Board has held that OWCP has the discretion to 

grant or deny a hearing request on a claim involving an injury sustained prior to the enactment of 

the 1966 amendments to FECA which provided the right to a hearing,17 when the request is made 

after the 30-day period for requesting a hearing,18 when the request is for a second hearing on the 

same issue,19 and when the request is made after a reconsideration request was previously 

 

11 See E.G., Docket No. 17-0265 (issued May 25, 2018). 

12 5 U.S.C. § 8124(b)(1).

13 20 C.F.R. § 10.615.

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

15 See 20 C.F.R. § 10.616(a).

16 Henry Moreno, 39 ECAB 475, 482 (1988).

17 Rudolph Bermann, 26 ECAB 354, 360 (1975).

18 Herbert C. Holley, 33 ECAB 140, 142 (1981). 

19 Johnny S. Henderson, 34 ECAB 216, 219 (1982). 
5

submitted.20 In these instances, OWCP will determine whether a discretionary hearing should be 

granted, and if not, will so advise the claimant with reasons.21 

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied appellant’s request for review of the written 

record as untimely filed pursuant to 5 U.S.C. § 8124(b)(1).

A request for hearing or review of the written record must, as noted above, be made within 

30 days after the date of the issuance of a final OWCP decision. Appellant’s unsigned request for 

review of the written record was date stamped as having been received by OWCP on November 28, 

2017, which is more than 30 days after its October 16, 2017 decision. The imaged copy of the 

envelope that is in the record before the Board does not contain a visible postmark date. Where 

the postmark is nonexistent or not legible, the hearing request will be deemed timely unless OWCP 

has kept evidence of the date of delivery on the record reflecting that the request is untimely.22 As 

noted, the appeal request form is date stamped as having been received on November 28, 2017. 

Accordingly, the evidence regarding the date of delivery reflects that appellant’s request is 

untimely filed. Therefore, OWCP’s hearing representative properly found in her December 28, 

2017 decision that appellant was not entitled to a review of the written record as a matter of right 

because her request was not made within 30 days of its October 16, 2017 decision.23

OWCP’s hearing representative then properly exercised her discretion by noting that she

had considered the matter and denied appellant’s request for a review of the written record because 

the issue could equally well be addressed through a request for reconsideration.24 The Board has 

held that the only limitation on OWCP’s authority is reasonableness and an abuse of discretion. 

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.25 In this case, the evidence of record does not indicate that OWCP abused 

its discretion in its denial of appellant’s request for a review of the written record. 

Appellant contends that she submitted her request for review of the written record late

because she was waiting for hospital reports. However, as explained above, OWCP properly 

denied appellant’s request for a review of the written record. Accordingly, the Board finds that 

 

20 R.H., Docket No. 07-1658 (issued December 17, 2007); S.J., Docket No. 07-1037 (issued September 12, 2007). 

Section 10.616(a) of OWCP’s regulations provides that the claimant seeking a hearing must not have previously 

submitted a reconsideration request (whether or not it was granted) on the same decision. 20 C.F.R. § 10.616(a). 

21 L.W., Docket No. 18-0249 (issued May 8, 2018). 

22 Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Review of the Written Record, Chapter 

2.1601.2(a) (October 2011). 

23 See Z.D., Docket No. 17-1315 (issued October 12, 2017). 

24 M.H., Docket No. 15-0774 (issued June 19, 2015). 

25 Daniel J. Perea, 42 ECAB 214, 221 (1990). 
6

OWCP properly denied appellant’s request for a review of the written record as untimely filed 

under 5 U.S.C. § 8124(b)(1). 

CONCLUSION

The Board finds that appellant has not met her burden of proof to establish a left knee 

condition causally related to the accepted August 25, 2017 employment incident. The Board 

further finds that OWCP’s Branch of Hearings and Review properly denied appellant’s 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 December 28 and October 16, 2017 are affirmed.

Issued: October 18, 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