United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.K., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Broomfield, CO, Employer

__________________________________________

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Docket No. 19-0428

Issued: July 15, 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

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JURISDICTION

On December 18, 2018 appellant filed a timely appeal from an October 2, 2018 merit 

decision and a November 29, 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.

ISSUES

The issues are: (1) whether appellant has met her burden of proof to establish arm or elbow 

conditions causally related to the accepted August 6, 2018 employment incident; and (2) whether 

OWCP properly denied appellant’s request for a review of the written record before an OWCP 

hearing representative as untimely filed pursuant to 5 U.S.C. § 8124(b).

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On August 9, 2018 appellant, then a 56-year-old mail processing clerk, filed a traumatic 

injury claim (Form CA-1) alleging that on August 6, 2018 she passed out and fell on the workroom 

floor while in the performance of duty. She stopped work on the date of injury.

In an August 14, 2018 statement, S.T., a supervisor, noted that on August 6, 2018 she found 

appellant “face down on the workroom floor.” She noted that appellant’s hands were outstretched 

above her head, she was resting on her left arm, and she was clutching the mobile point of sale 

(MPOS) instrument in her right hand. S.T. indicated that appellant was unable to speak clearly 

and was transported by paramedics to the hospital. She explained that, when she contacted 

appellant the next day, appellant indicated that she had passed out from the heat and emotional 

stress and that she did not remember anything until she awoke at the hospital.

In a development letter dated August 31, 2018, OWCP advised appellant that when her 

claim was first submitted it appeared to be a minor injury that resulted in minimal or no lost time 

from work and it therefore had administratively approved payment of a limited amount of medical 

expenses. It explained that appellant’s claim was being reopened because appellant had not 

returned to work in a full-time capacity. OWCP advised her of the type of factual and medical 

evidence needed to establish her claim and provided a questionnaire for her completion. Appellant 

was afforded 30 days to submit the necessary evidence. 

In an August 13, 2018 work excuse Dr. Jared Lee, Board-certified in orthopedic surgery 

and sports medicine, requested that appellant be excused from work for the period August 13 to 

27, 2018, as she remained dizzy and continued to have left arm pain.

In an August 30, 2018 report, Dr. Nazia Javed, a Board-certified family practitioner, noted 

that appellant reported aching pain in her right elbow. She diagnosed right elbow sprain, right 

medial epicondylitis, and left elbow pain.

In a September 17, 2018 report, Dr. Javed noted that appellant was seen for follow up

treatment. She diagnosed right elbow sprain and indicated that appellant was “pain free and feels 

100 [percent] back to her baseline.” Dr. Javed released appellant to full duty.

By decision dated October 2, 2018, OWCP denied appellant’s claim. It found that she had 

established that the August 6, 2018 employment incident occurred as alleged, but the medical 

evidence of record was insufficient to establish causal relationship between appellant’s diagnosed 

conditions and the accepted August 6, 2018 employment incident.

On November 19, 2018 OWCP received an August 6, 2018 after-visit summary, which 

indicated that appellant was seen by Dr. Ben Mendoza, an internal medicine specialist, Dr. Jennifer 

Gray, an internal medicine specialist, and Dr. Jeffrey Rickard, an osteopath Board-certified in 

emergency medicine, for acute brain disorder, confusion, disorientation, and elbow pain.

By appeal request form postmarked November 6, 2018, appellant requested a review of the 

written record by a representative of OWCP’s Branch of Hearings and Review.
3

By decision dated November 29, 2018, an OWCP hearing representative determined that 

appellant was not entitled to a review of the written record as a matter of right because her request 

was untimely filed. She also denied a discretionary hearing, finding that the contested issue could 

equally well be addressed by appellant requesting reconsideration and providing new evidence or 

argument to establish that she sustained an injury in the performance of duty, as alleged.

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,2that 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.3 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.4

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

OWCP begins with an analysis of whether fact of injury has been established. 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.5 The second component is whether the employment incident caused a personal injury.6

Causal relationship is a medical issue, and the medical evidence required to establish causal 

relationship is rationalized medical evidence.7 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 employee.8 

Neither the mere fact that a disease or condition manifests itself during a period of employment, 

 

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

153 (1989).

3

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

ECAB 312 (1988).

4 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).

5 Elaine Pendleton, 40 ECAB 1143 (1989).

6

 M.H., Docket No. 18-1737 (issued March 13, 2019); John J. Carlone, 41 ECAB 354 (1989).

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

8 L.D., id.; see also Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).
4

nor the belief that the disease or condition was caused or aggravated by employment factors or 

incidents is sufficient to establish causal relationship.9

ANALYSIS -- ISSUE 1

The Board finds that appellant has not met her burden of proof to establish arm or elbow 

conditions causally related to the accepted August 6, 2018 employment incident.

In support of her claim appellant submitted an August 13, 2018 work excuse from Dr. Lee. 

Dr. Lee noted appellant’s symptoms of dizziness and left arm pain. However, dizziness and pain

are descriptions of symptoms rather than a clear diagnosis of a medical condition.10 The Board 

has previously explained that it is not possible to establish causal relationship if a medical 

condition has not been diagnosed.11 As such, the work excuse is of no probative value on the issue 

of causal relationship and is insufficient to establish appellant’s traumatic injury claim.12

In an August 30, 2018 report, Dr. Javed diagnosed right elbow sprain, right medial 

epicondylitis and pain in the left elbow. However, she did not offer an opinion regarding causal 

relationship. The Board has held that medical evidence that does not offer an opinion regarding 

the cause of an employee’s condition is of no probative value.13 As such, this report is of no 

probative value on the issue of causal relationship.

As appellant has not submitted rationalized medical evidence sufficient to establish her 

claim that she sustained arm or elbow conditions causally related to the accepted August 6, 2018 

employment incident, she has, therefore, not met her burden of proof to establish entitlement to 

compensation benefits.

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: “Before review under section 8128(a) of this title 

[relating to reconsideration], a claimant for compensation not satisfied with a decision of the 

Secretary under subsection (a) of this section is entitled, on request made within 30 days after the 

 

9 T.H., Docket No. 18-1736 (issued March 13, 2019); Dennis M. Mascarenas, 49 ECAB 215 (1997).

10 P.S., Docket No. 10-1560 (issued June 23, 2011).

11 Id.

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

13 See N.T., Docket No. 18-1620 (issued May 6, 2019); D.K., Docket No. 17-1549 (issued July 6, 2018). 
5

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

the Secretary.”

14

Section 10.615 of Title 20 of the Code of Federal Regulations provides, “A hearing is a 

review of an adverse decision by a hearing representative. Initially, the claimant can choose 

between two formats: an oral hearing or a review of the written record.”

15

 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 the hearing is sought.16 However, OWCP has discretion to grant or 

deny a request that is made after this 30-day period.17 In such a case, it will determine whether to 

grant a discretionary hearing and, if not, will so advise the claimant with reasons.18

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied appellant’s November 6, 2018 request for a 

review of the written record before an OWCP hearing representative as untimely filed pursuant to 

5 U.S.C. § 8124(b).

Appellant had 30 days from OWCP’s October 2, 2018 merit decision to request a review 

of the written record before OWCP’s Branch of Hearings and Review. Appellant’s hearing request 

was postmarked November 6, 2018. As the postmark date was more than 30 days after OWCP’s 

October 2, 2018 decision, appellant was not entitled to a review of the written record as a matter 

of right.19 Section 8124(b)(1) is unequivocal on the time limitation for requesting a hearing.20

The Board finds that OWCP properly exercised its discretion in denying appellant’s request 

for a review of the written record by determining that the issue in the case could equally well be 

addressed by requesting reconsideration and submitting new evidence or argument relevant to the 

issue of fact of injury.21 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, 

 

14 5 U.S.C. § 8124(b)(1).

15 20 C.F.R. § 10.615.

16 Id. at § 10.616(a).

17 See T.L., Docket No. 19-0028 (issued April 26, 2019); G.W., Docket No. 10-0782 (issued April 23, 2010); James 

Smith, 53 ECAB 188, 191-92 (2001).

18 James Smith, id.

19 Under OWCP’s regulations and procedures, the timeliness of a request for a hearing is determined on the basis 

of the postmark of the envelope containing the request. Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings 

and Reviews of the Written Record, Chapter 2.1601.4a (October 2011).

20 5 U.S.C. § 8124(b)(1); see R.H., Docket No. 18-1602 (issued February 22, 2019); William F. Osborne, 46 ECAB 

198 (1994).

21 R.H., id.; M.H., Docket No. 15-0774 (issued June 19, 2015).
6

clearly unreasonable exercise of judgment, or actions taken which are contrary to both logic and 

probable deduction from established facts.22 The Board finds that the evidence of record does not 

indicate that OWCP abused its discretion in its denial of appellant’s untimely request for a review 

of the written record.

Accordingly, the Board finds that OWCP properly denied appellant’s November 6, 2018 

request for a review of the written record as untimely filed pursuant to 5 U.S.C. § 8124(b).23

CONCLUSION

The Board finds that appellant has not met her burden of proof to establish arm or elbow 

conditions causally related to the accepted August 6, 2018 employment incident. The Board 

further finds that OWCP properly denied appellant’s request for a review of the written record 

before an OWCP hearing representative as untimely filed under 5 U.S.C. § 8124(b).

ORDER

IT IS HEREBY ORDERED THAT the November 29 and October 2, 2018 decisions of 

the Office of Workers’ Compensation Programs are affirmed.

Issued: July 15, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

 

22 R.H., id.; (citing Daniel J. Perea, 42 ECAB 214, 221 (1990)).

23 Id.; R.P., Docket No. 16-0554 (issued May 17, 2016).