United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.F., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

ST. ALBANS HARBOR HEALTHCARE 

SYSTEM, Jamaica, NY, Employer

__________________________________________

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Docket No. 18-0791

Issued: February 26, 2019

Appearances: Case Submitted on the Record

Ena Thompson, for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On March 1, 2018 appellant, through her representative, filed a timely appeal from an 

October 26, 2017 merit decision and a January 29, 2018 nonmerit decision of the Office of 

Workers’ Compensation Programs (OWCP). 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.

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2 5 U.S.C. § 8101 et seq.
2

ISSUES

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

injury causally related to her accepted September 4, 2017 employment incident; and (2) whether 

OWCP abused its discretion when it denied appellant’s request for a hearing as untimely filed

pursuant to 5 U.S.C. § 8124.

FACTUAL HISTORY

On September 13, 2017 appellant, then a 51-year-old nursing assistant, filed a traumatic 

injury claim (Form CA-1) alleging that on September 4, 2017 she sprained her back when she 

slipped and fell on a wet floor while in the performance of duty.

On September 4, 2017 appellant was treated in the employing establishment’s emergency 

department for complaints of lower back and buttock pain due to a fall. Dr. Aleksander Gleyzer, 

Board-certified in emergency medicine, noted an unspecified contusion. 

In a September 5, 2017 occupational health note, Dr. Renee Venzen, an internist, indicated 

that she treated appellant for follow-up of lower right back/buttock pain. She related that appellant 

slipped and fell on a wet floor in the B3 unit and landed on her right side. Appellant had a history 

of low back surgery in 2016, secondary to a herniated disc. Dr. Venzen reported that physical 

examination showed no vertebral tenderness. She noted an unspecified muscle strain. 

On September 5, 2017 a health care provider, who signed with initials that appear to be 

R.Y., completed a duty status report (Form CA-17), which noted a September 4, 2017 date of 

injury and also noted an unspecified muscle strain. R.Y. authorized appellant to work modified 

duty with specific restrictions. 

In a September 20, 2017 development letter, OWCP advised appellant that the evidence 

submitted was insufficient to establish her claim. It provided a factual questionnaire for her 

completion and requested additional medical evidence. OWCP afforded appellant 30 days to 

submit the requested information. By separate letter of even date, it requested additional 

information from the employing establishment regarding the circumstances of the September 4, 

2017 injury. 

OWCP subsequently received a September 19, 2017 duty status report (Form CA-17) in 

which a health care provider with initials that appear to be R.Y. noted an unspecified muscle sprain 

and advised that appellant could return to full-duty work. 

By decision dated October 26, 2017, OWCP denied appellant’s traumatic injury claim. It 

accepted that the September 4, 2017 employment incident occurred as alleged, but denied her

claim because the medical evidence submitted did not contain a diagnosis in connection with the 

accepted incident. Although the evidence included diagnoses of “contusion” and “muscle sprain,”

it was unclear as to the specific location(s) of the diagnosed condition(s). Consequently, OWCP

found that appellant had not established the medical component of fact of injury. 

In an undated appeal request form, postmarked December 14, 2017, appellant requested an 

oral hearing before a representative of OWCP’s Branch of Hearings and Review. 
3

By decision dated January 29, 2018, the Branch of Hearings and Review denied appellant’s 

request for a hearing, finding that it was untimely filed as the request was not postmarked within 

30 days of OWCP’s October 26, 2017 merit decision. The hearing representative also considered 

whether to grant a discretionary hearing, but determined that the issue in the case could equally 

well be addressed through the reconsideration process. 

LEGAL PRECEDENT -- ISSUE 1

An employee seeking benefits under FECA 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 timely filed within the applicable 

time limitation period of FECA,3and that an injury was sustained in the performance of duty as 

alleged, and that any disability or medical 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 upon a traumatic injury or an 

occupational disease.5

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

OWCP begins with an analysis of whether fact of injury has been established.6 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.7 The second component is whether the employment incident caused a personal 

injury.8 

Causal relationship is a medical question that requires rationalized medical opinion 

evidence to resolve the issue.9 A physician’s opinion on whether there is causal relationship 

between the diagnosed condition and the implicated employment incident must be based on a 

complete factual and medical background.10 Additionally, the physician’s opinion must be 

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

 

3 S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 

153 (1989).

4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 

ECAB 312 (1988).

5 K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014); 

Delores C. Ellyett, 41 ECAB 992 (1990).

6 T.H., 59 ECAB 388, 393-94 (2008).

7 Elaine Pendleton, 40 ECAB 1143 (1989).

8

John J. Carlone, 41 ECAB 354 (1989).

9 T.H., supra note 6; Robert G. Morris, 48 ECAB 238 (1996).

10 L.D., Docket No. 17-1581 (issued January 23, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).
4

rationale, explaining the nature of the relationship between the diagnosed condition, and 

appellant’s specific employment incident.

11

ANALYSIS -- ISSUE 1

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

causally related to the accepted September 4, 2017 employment incident.

The record contains hospital discharge instructions dated September 4, 2017. While

Dr. Gleyzer noted an unspecified contusion, the report does not contain a firm medical diagnosis

and does not adequately explain the cause of any medical condition.12

In support of her claim appellant also submitted a September 5, 2017 occupational health 

note by Dr. Venzen. Dr. Venzen described that appellant slipped and fell at work and experienced 

lower back and buttock pain. She reported that physical examination showed no vertebral 

tenderness and noted an unspecified muscle strain. This report, however, fails to establish a firm 

medical diagnosis and provides no support for an injury. Dr. Venzen did not specify where the 

muscle sprain was located nor did she report any unremarkable examination findings.13 

Accordingly, the Board finds that her report is insufficient to establish a firm medical diagnosis in

connection with the accepted employment incident.

The Form CA-17 duty status reports completed by an unspecified health care provider 

dated September 5 and 19, 2017 have no probative value, as it is not established that the author is 

a physician.14 

Accordingly, the Board finds that appellant has not established that she sustained an injury 

causally related to the accepted September 4, 2017 employment incident.

On appeal, appellant asserts that she was injured at work and indicates that she has 

supporting documents. As explained above, the medical evidence of record is insufficient to 

establish an injury causally related to the accepted employment incident.

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 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 

 

11 Id.

12 Roy L. Humphrey, 57 ECAB 238, 242 (2005); Michael E. Smith, 50 ECAB 313 (1999).

13 J.P., Docket No. 14-0087 (issued March 14, 2014).

14 See D.D., 57 ECAB 734 (2006); Merton J. Sills, 39 ECAB 572, 575 (1988).
5

issuance of the decision, to a hearing on his [or her] claim before a representative of the 

Secretary.”

15

 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.16 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.17 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.18 

ANALYSIS -- ISSUE 2

The Board finds that OWCP has not abused its discretion when it denied appellant’s request 

for a hearing as untimely filed pursuant to 5 U.S.C. § 8124. OWCP’s regulations provide that the 

request for a hearing or a review of the written record must be mailed within 30 days of the date 

of the decision for which a review is sought. Because appellant’s request was postmarked on 

December 14, 2017, more than 30 days after OWCP’s October 26, 2017 decision, it was untimely 

filed and she was not entitled to a hearing as a matter of right.

Although appellant’s request for a hearing was untimely filed, OWCP has the discretionary 

authority to grant the request and it must exercise such discretion.19 In its January 29, 2018 

decision, OWCP’s hearing representative properly exercised her discretion by notifying appellant 

that she had considered the matter and determined that the issue involved could be equally well 

addressed by requesting reconsideration before OWCP and submitting appropriate evidence. The 

Board finds that the hearing representative properly exercised her discretionary authority in 

denying appellant’s request for a hearing.

20

 An abuse of discretion is generally shown through 

proof of manifest error, a clearly unreasonable exercise of judgment, or actions taken which are 

contrary to both logic and probable deductions from established facts.21 In this case, the evidence 

of record does not indicate that OWCP abused its discretion. Accordingly, the Board finds that 

OWCP properly denied appellant’s hearing request.

CONCLUSION

Appellant has not met her burden of proof to establish a traumatic injury causally related 

to her accepted September 4, 2017 employment incident. The Board further finds that OWCP did 

 

15 5 U.S.C. § 8124(b)(1).

16 20 C.F.R. §§ 10.616, 10.617.

17 Id. at § 10.616(a).

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

19 Id. 

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

21 Samuel R. Johnson, 51 ECAB 612 (2000).
6

not abuse its discretion in denying her request for a hearing as untimely filed pursuant to 5 U.S.C. 

§ 8124.

ORDER

IT IS HEREBY ORDERED THAT the January 29, 2018 and October 26, 2017 decisions

of the Office of Workers’ Compensation Programs are affirmed.

Issued: February 26, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board