United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.J., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Nyack, NY, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 18-1114

Issued: February 5, 2019

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

JURISDICTION

On May 10, 2018 appellant filed a timely appeal from a January 11, 2018 merit decision

and a March 15, 2018 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 has met his burden of proof to establish a right knee 

condition causally related to the accepted November 29, 2017 employment incident; and 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the March 15, 2018 decision, OWCP received additional evidence. However, the 

Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence that was before OWCP 

at the time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on 

appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first 

time on appeal. Id.
2

(2) whether OWCP properly denied appellant’s request for a review of the written record as 

untimely filed pursuant to 5 U.S.C. § 8124.

FACTUAL HISTORY

On December 2, 2017 appellant, then a 21-year-old city carrier assistant, filed a traumatic 

injury claim (Form CA-1) alleging that on November 29, 2017 he tripped on a concrete sidewalk 

and fell on his right knee while delivering mail. He stopped work on December 2, 2017. 

In a December 2, 2017 attending physician’s report as part of an unsigned authorization 

for examination and/or treatment (Form CA-16), Dr. Lisa Better, Board-certified in emergency 

medicine, noted that appellant’s right knee x-rays were negative. She diagnosed knee pain and

checked a box marked “yes” indicating that it was caused or aggravated by the employment 

activity. In a December 2, 2017 form report, Dr. Better reported a date of injury of November 29, 

2017 and diagnosed knee pain. In both reports, she held appellant off work for three days. 

In a December 7, 2017 development letter, OWCP requested additional factual and medical 

evidence from appellant. It provided a questionnaire and informed him of the type of medical and 

factual evidence needed to establish his claim. This included a physician’s opinion supported by 

a medical explanation as to how the reported work incident caused or aggravated a medical 

condition. OWCP afforded appellant 30 days to submit such evidence. 

In a December 2, 2017 right knee x-ray report, Dr. Edward G. Chernesky, a diagnostic 

radiologist, indicated that no acute fracture or dislocation and no joint effusion or soft tissue 

abnormality was seen. He provided an impression of no acute bone abnormality in the right knee. 

In a December 2, 2017 initial progress report and a December 6, 2017 subsequent progress 

report, Dr. Better noted that appellant tripped at work on November 29, 2017 and that his right 

knee had landed on concrete. She provided examination findings and assessments of right knee 

pain and work-related injury. 

In a December 6, 2017 form report, Dr. Better again noted appellant’s right knee pain and 

held him off work. 

In a December 10, 2017 progress report, Dr. Phillip Hubel, Board-certified in emergency 

medicine, reported that appellant had been seen eight days prior for a right knee injury that 

occurred at work when he fell on concrete. He noted that appellant’s x-rays were negative and 

that he had been referred to an orthopedic knee specialist. Dr. Hubel reported examination findings 

and provided an assessment of work-related right knee pain and injury. 

In a December 14, 2017 duty status report (Form CA-17), Dr. Better diagnosed knee pain 

due to the claimed November 29, 2017 injury. She released appellant to full-time work on 

December 15, 2017. 

In a December 18, 2017 and January 8, 2018 reports, Dr. Mark Medici, a Board-certified 

orthopedic surgeon, noted that appellant reported that he fell at work on November 29, 2017 and 

landed on his right knee. He indicated that on December 18, 2017 complete right knee x-rays with 

patella and tunnel views revealed patella alta. Dr. Medici reported examination findings and 
3

provided assessments of chondromalacia of right patella and contusion of the right knee with intact 

skin surface. He opined that the incident that appellant had described was the competent medical 

cause of the injury. Dr. Medici explained that appellant’s complaints were consistent with the 

history of injury and that the history of injury was consistent with his objective findings. He further 

opined that appellant was temporarily totally disabled. 

In a December 18, 2017 duty status report (Form CA-17), Dr. Medici diagnosed a right 

knee contusion due to the injury. He indicated that appellant was unable to work. In a 

December 21, 2017 work capacity evaluation form (OWCP-5c), Dr. Medici indicated that 

appellant was able to work in a sedentary capacity. In his January 8, 2018 report, he ordered a 

magnetic resonance imaging scan of the right knee. 

By decision dated January 11, 2018, OWCP denied appellant’s claim. It found that the 

evidence submitted was sufficient to establish that the November 29, 2017 employment incident 

occurred, as alleged. However, the medical evidence submitted was insufficient to establish causal 

relationship between the diagnosed right knee conditions and the accepted November 29, 2017 

employment incident. 

Following its decision, OWCP received duplicative evidence previously of record along 

with additional medical reports and work excuse notes from Dr. Medici. 

In an appeal request form dated and postmarked February 20, 2018, appellant requested a 

review of the written record before an OWCP hearing representative. 

By decision dated March 15, 2018, an OWCP hearing representative denied appellant’s 

request for a review of the written record as it was untimely filed. She found that the request was 

not made within 30 days of the issuance of the January 11, 2018 OWCP merit decision. After 

exercising her discretion, the hearing representative further found that the issue in the case could 

equally well be addressed through the reconsideration process. 

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

 

3 Supra note 1.

4 See A.C., Docket No. 18-0683 (issued November 6, 2018); C.S., Docket No. 08-1585 (issued March 3, 2009); 

Bonnie A. Contreras, 57 ECAB 364 (2006).

5 See A.C., id.; S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
4

To determine whether a federal employee has sustained a traumatic injury in the 

performance of duty, it must first be determined whether fact of injury has been established.6 First, 

the employee must submit sufficient evidence to establish that he or she actually experienced the 

employment incident at the time, place, and in the manner alleged.7 Second, the employee must 

submit sufficient evidence, generally only in the form of medical evidence, to establish that the 

employment incident caused a personal injury.8

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

establish causal relationship is rationalized medical opinion evidence.9 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.10 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, 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.11

ANALYSIS -- ISSUE 1

The Board finds that appellant has not met his burden of proof to establish a right knee 

condition causally related to the accepted November 29, 2017 employment incident.

In support of his claim, appellant submitted progress and form reports from Dr. Better. In 

her initial December 2, 2017 report, Dr. Better reported that he tripped at work on November 29, 

2017 and that his right knee had landed on concrete. In her subsequent reports, she provided 

assessments of knee pain and work-related injury. A mere conclusion without the necessary 

rationale explaining how work activities could result in the diagnosed conditions is insufficient to 

meet the employee’s burden of proof.12 The Board has also consistently held that pain is a 

symptom, rather than a compensable medical diagnosis.13 Additionally, in her December 2, 2017 

attending physician’s report, Dr. Better had opined with a checkmark “yes” that the diagnosed 

knee pain was caused or aggravated by the employment activity. However, the Board has held 

that when a physician’s opinion on causal relationship consists only of checking “yes” to a form 

question, without explanation or rationale, that opinion is of diminished probative value and is 

 

6 See A.C., supra note 4; B.F., Docket No. 09-0060 (issued March 17, 2009).

7 See A.C., supra note 4; D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

8 See A.C., supra note 4; C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008).

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

642 (2006).

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

11 See A.C., supra note 4; I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

12 See D.P., Docket No. 17-0148 (issued May 18, 2017).

13 C.F., Docket No. 08-1102 (issued October 10, 2008).
5

insufficient to establish a claim.14 Accordingly, the reports from Dr. Better are insufficient to 

establish appellant’s claim.

In his medical report, Dr. Hubel provided assessments of right knee pain and a work-related 

injury. However, he did not provide a firm medical diagnosis of appellant’s right knee condition

or set forth an opinion regarding causal relationship. The Board has held that a medical report is 

of no probative value if it does not provide a firm diagnosis of a particular medical condition or 

offer a specific opinion as to whether the accepted employment incident caused or aggravated the

claimed condition.

15

 Thus, Dr. Hubel’s report is insufficient to establish appellant’s claim.

In December 18, 2017 and January 8, 2018 reports, Dr. Medici noted the history of the 

work injury as reported by appellant, noted examination findings, and diagnosed chondromalacia 

of the right patella and a contusion of the right knee with intact skin surface. He opined that the 

incident that appellant had described was the competent medical cause of the injury. Dr. Medici

explained that appellant’s complaints were consistent with the history of injury and that the history 

of injury was consistent with his objective findings. While he provided a declarative statement of 

causal relationship, he did not offer a rationalized medical explanation to support his opinion. The 

Board has found that a physician must provide a narrative description of the identified employment 

incident and a reasoned opinion explaining how physiologically the employment incident 

described caused or contributed to appellant’s diagnosed medical condition.16 Without explaining 

how physiologically the movements involved in the accepted employment incident caused or 

contributed to the diagnosed condition, Dr. Medici’s opinion on causal relationship is of limited 

probative value.17

OWCP also received diagnostic studies, however, diagnostic studies are of lack probative 

value as they do not address whether the employment incident caused any of the diagnosed 

conditions.18

Appellant has not submitted reasoned medical evidence explaining how a right knee 

condition was caused by his accepted November 29, 2017 employment incident; therefore, he has 

not met his 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. 

 

14 D.D., 57 ECAB 734, 738 (2006); Deborah L. Beatty, 54 ECAB 340 (2003).

15 See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

16 See V.J., Docket No. 17-0358 (issued July 24, 2018).

17 Id.

18 See J.S., Docket No. 17-1039 (issued October 6, 2017).
6

LEGAL PRECEDENT -- ISSUE 2

Section 8124(b)(1) of FECA provides that 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 or her claim before a representative of the Secretary.19 Sections 

10.617 and 10.618 of the federal regulations implementing this section of FECA provide that a 

claimant shall be afforded a choice of an oral hearing or a review of the written record by a 

representative of the Secretary.20 A claimant is entitled to a hearing or review of the written record 

as a matter of right only if the request is filed within the requisite 30 days as determined by 

postmark or other carrier’s date marking and before the claimant has requested reconsideration.21 

Although there is no right to a review of the written record or an oral hearing if not requested 

within the 30-day time period, OWCP may within its discretionary powers grant or deny 

appellant’s request and must exercise its discretion.22 OWCP procedures require that it exercise 

its discretion to grant or deny a hearing when the request is untimely or made after reconsideration 

under section 8128(a).23

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. 

A request for a 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 February 20, 

2018 request for a review of the written record was postmarked on February 20, 2018 more than 

30 days after the issuance of OWCP’s January 11, 2018 decision. Because the postmark date was 

more than 30 days after the date of OWCP’s January 11, 2018 decision, the Board finds that the 

request was untimely filed and he was not entitled to a review of the written record as a matter of 

right.24

The Board further finds that OWCP’s hearing representative properly exercised her 

discretion in denying appellant’s request for a review of the written record because the issue could 

equally well be addressed by requesting reconsideration and submitting new evidence.25 The 

Board has held that the only limitation on OWCP’s discretionary authority is reasonableness. An 

 

19 5 U.S.C. § 8124(b)(1).

20 20 C.F.R. §§ 10.616, 10.617.

21 Id. at § 10.616(a).

22 Eddie Franklin, 51 ECAB 223 (1999); Delmont L. Thompson, 51 ECAB 155 (1999).

23 See R.T., Docket No. 08-0408 (issued December 16, 2008); Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Hearings and Review of the Written Record, Chapter 2.1601.2(a) (October 2011).

24 The 30-day period for determining the timeliness of an employee’s request for an oral hearing or review 

commences the day after the issuance of OWCP’s decision. See Donna A.Christley, 41 ECAB 90 (1989).

25 M.H., Docket No. 15-0774 (issued June 19, 2015).
7

abuse of discretion is generally shown through proof of manifest error, a clearly unreasonable 

exercise of judgment, or actions taken which are contrary to logic and probable deduction from 

established facts.26 In this case, the evidence of record does not indicate that OWCP’s hearing 

representative abused her discretion in denying appellant’s request for a review of the written 

record under these circumstances. Accordingly, the Board finds that OWCP properly denied his 

request for a review of the written record as untimely filed under section 8124.27

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish a right knee 

condition causally related to the accepted November 29, 2017 employment incident. The Board 

further finds that OWCP properly denied his request for a review of the written record as untimely 

filed pursuant to 5 U.S.C. § 8124.

ORDER

IT IS HEREBY ORDERED THAT the March 15 and January 11, 2018 decisions of the 

Office of Workers’ Compensation Programs are affirmed.

Issued: February 5, 2019

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

 

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

27 See C.L., Docket No. 18-0213 (issued June 18, 2018); R.P., Docket No. 16-0554 (issued May 17, 2016).