United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.A., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

OFFICE OF GENERAL COUNSEL,

Pittsburgh, PA, Employer

__________________________________________

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Docket No. 19-0613

Issued: August 22, 2019

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

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 25, 2019 appellant filed a timely appeal from a November 26, 2018 merit 

decision and a January 17, 2019 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 her burden of proof to establish an 

occupational disease while in the performance of duty, as alleged; and (2) whether OWCP abused 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the issuance of the November 26, 2018 merit 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 

in the case record 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

its discretion by denying appellant’s request for an oral hearing before an OWCP hearing 

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

FACTUAL HISTORY

On August 24, 2018 appellant, then a 30-year-old staff attorney, filed an occupational 

disease claim (Form CA-2) alleging that she developed chronic pain and stiffness of the neck and 

chronic pain, stiffness, trigger points and soreness of the left shoulder, with pain radiating down 

from her left shoulder through her arm and into her fingers and thumb as a result of her work 

duties. She reported that on July 9, 2018 she drove from Pittsburgh, Pennsylvania to Philadelphia, 

Pennsylvania to attend a deposition, and drove back the following day. During this trip, appellant’s

arms and fingers began to ache and her trigger points worsened. She indicated that she first became 

aware of her condition on November 7, 2017 and realized it related to factors of her federal 

employment on August 7, 2018. On the reverse side of the claim form the employing 

establishment noted that appellant did not stop work.

In an August 7, 2018 report, Dr. Alcala diagnosed cervical radiculopathy and strain of left

trapezius muscle.

In an attending physician’s report (Form CA-20) dated August 17, 2018, Dr. Alcala 

reiterated his diagnosis of cervical radiculopathy and opined that appellant’s condition was 

aggravated by long periods of driving. He advised that appellant was capable of returning to work 

with restrictions of limited long-distance driving and limited computer use.

By development letter dated September 20, 2018, OWCP requested that appellant submit 

additional factual and medical evidence in support of her occupational disease claim. It advised 

her of the type of evidence needed and provided a factual questionnaire for her completion. OWCP

afforded appellant 30 days to submit the necessary evidence.

In a supervisor’s statement received by OWCP on October 1, 2018, J.S. indicated that 

appellant was required to spend nearly the entire workday in front of the computer, except when 

she was meeting with clients face-to-face, and she was required to travel for hearings, witness 

preparation meetings, depositions, mediations, settlement conferences, and other meetings with 

clients and colleagues. He noted that appellant typically traveled within the State of Pennsylvania,

but was occasionally required to travel out of state in performance of her duties.

On October 8, 2018 Dr. Alcala asserted that appellant was being treated for her condition 

prior to her long drive to Philadelphia, Pennsylvania and opined that the trip exacerbated her 

symptoms.

By decision dated November 26, 2018, OWCP denied appellant’s claim, finding that the 

evidence submitted was insufficient to establish that the employment incident occurred as alleged. 

It noted that she had not responded to the September 20, 2018 development questionnaire. OWCP 

concluded, therefore, that appellant had not met the requirements to establish that she sustained an 

injury as defined by FECA.

On December 31, 2018 appellant requested an oral hearing before a representative of 

OWCP’s Branch of Hearings and Review.
3

By decision dated January 17, 2019, OWCP denied appellant’s request for an oral hearing 

before an OWCP hearing representative. It found that she was not entitled to a hearing as a matter 

of right because her request was not made within 30 days of the issuance of its November 26, 2018 

decision. OWCP exercised its discretion and determined that the issue in the case could equally 

well be addressed by requesting reconsideration and submitting new evidence.

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,3that 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 establish that an injury was sustained in the performance of duty in an occupational 

disease claim, a claimant must submit the following: (1) a factual statement identifying 

employment factors alleged to have caused or contributed to the presence or occurrence of a 

disease or condition; (2) medical evidence establishing the presence or existence of the disease or 

condition for which compensation is claimed; and (3) medical evidence establishing that the 

employment factors identified by the claimant were the proximate cause of the condition for which 

compensation is claimed, or, stated differently, medical evidence establishing that the diagnosed 

condition is causally related to the employment factors identified by the claimant.6

An employee’s statement that an injury occurred at a given time and in a given manner is 

of great probative value and will stand unless refuted by strong or persuasive evidence.7 The 

employee’s statement, however, must be consistent with the surrounding facts and circumstances 

and his or her subsequent course of action. An employee has not met his or her burden of proof to 

establish the occurrence of an injury when there are such inconsistencies in the evidence as to cast 

serious doubt upon the validity of the claim. Circumstances such as late notification of injury, lack 

of confirmation of injury, continuing to work without apparent difficulty following the alleged 

 

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 See Irene St. John, 50 ECAB 521 (1999).

7 R.T., Docket No. 08-0408 (issued December 16, 2008); Gregory J. Reser, 57 ECAB 238, 241 (2005).
4

injury, and failure to obtain medical treatment may, if otherwise, unexplained, cast doubt on an 

employee’s statement in determining whether a prima facie case has been established.8

ANALYSIS -- ISSUE 1

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

sustained an occupational disease while in the performance of duty, as alleged.

On her claim form appellant alleged that she sustained injuries to her neck and left shoulder, 

with pain radiating down from her left shoulder through her arm and into her fingers and thumb as 

she drove round-trip drive from Pittsburgh, Pennsylvania to Philadelphia, Pennsylvania on July 9 

and 10, 2018 to attend a deposition.

Appellant’s description of the implicated employment factors is vague and fails to provide 

specific detail to determine the manner in which she sustained her alleged injury.9 She was 

provided an opportunity by OWCP to establish how her alleged injury occurred. By development 

letter dated September 20, 2018, OWCP requested that appellant submit additional factual 

evidence and provided a factual questionnaire for her completion. Appellant did not respond prior 

to the issuance of OWCP’s denial of her claim on November 26, 2018. The October 1, 2018 

statement from her supervisor, J.S., confirmed that appellant’s duties required travel, but it failed 

to establish that she was driving in the performance of duty from July 9 to 10, 2018. By failing to

describe the employment factors and circumstances surrounding her alleged injury, appellant has 

not established that an injury occurred in the performance of duty, as alleged.10 Thus, the Board 

finds that she has not met her burden of proof. Inasmuch as appellant has failed to establish the 

factual component of her claim, the Board need not review the medical evidence.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 of FECA12 provides that a claimant is entitled to a hearing before an OWCP 

representative when a request is made within 30 days after issuance of an OWCP final decision.13

 

8 Betty J. Smith, 54 ECAB 174 (2002).

9 See A.E., Docket No. 17-0522 (issued April 13, 2018).

10 Supra note 9.

11 R.F., Docket No. 18-1218 (issued February 7, 2019); Ted A. Off, Docket No. 96-0536 (issued February 5, 1998).

12 Supra note 1.

13 5 U.S.C. § 8124(b)(1).
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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: [a]n oral hearing or a review of the written record.”

14

Under section 10.616(a), “[a] claimant injured on or after July 4, 1966, who had received 

a final adverse decision by the district OWCP may obtain a hearing by writing to the address 

specified in the decision. 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 a hearing is 

sought.”

15

OWCP’s regulations further provide that a request received more than 30 days after 

OWCP’s decision is subject to OWCP’s discretion16 and the Board has held that OWCP must 

exercise this discretion when a hearing request is untimely.

17

ANALYSIS -- ISSUE 2

The Board finds that OWCP has not abused its discretion by denying appellant’s request 

for an oral hearing before an OWCP hearing representative as untimely filed under 5 U.S.C. 

§ 8124(b).

A request for a hearing must be made within 30 days after the date of the issuance of an 

OWCP final decision. Appellant requested an oral hearing before a representative of OWCP’s 

Branch of Hearings and Review on December 31, 2018. As the request was submitted more than 

30 days following issuance of the November 26, 2018 decision, the Board finds that it was 

untimely filed and appellant was not entitled to an oral hearing as a matter of right.

OWCP has the discretionary power to grant an oral hearing even if the claimant is not 

entitled to a review as a matter of right. The Board finds that OWCP, in its January 17, 2019 

nonmerit decision, properly exercised its discretion by indicating that it had considered the matter 

and had denied appellant’s request for oral hearing because her claim could be equally well 

addressed through a reconsideration application. Because reconsideration exists as an alternative 

appeal right to address the issue raised by OWCP’s November 26, 2018 merit decision, the Board 

finds that OWCP has not abused its discretion in denying appellant’s untimely hearing request.18

Accordingly, the Board finds that OWCP properly denied appellant’s December 31, 2018 

request for an oral hearing as untimely filed pursuant to 5 U.S.C. § 8124.

 

14 20 C.F.R. § 10.615.

15 Id. at § 10.616(a).

16 Id. at § 10.616(b).

17 D.W., Docket No. 17-1413 (issued December 18, 2018); Samuel R. Johnson, 51 ECAB 612, 613-14 (2000).

18 See J.N., Docket No. 18-0646 (issued January 28, 2019).
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CONCLUSION

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

sustained an occupational disease while in the performance of duty, as alleged. The Board further 

finds that OWCP has not abused its discretion by denying her request for an oral hearing before 

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

ORDER

IT IS HEREBY ORDERED THAT the January 17, 2019 and November 26, 2018 

decisions of the Office of Workers’ Compensation Programs are affirmed.

Issued: August 22, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board