United States Department of Labor

Employees’ Compensation Appeals Board

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E.F., Appellant

and

DEPARTMENT OF THE INTERIOR, BUREAU 

OF LAND MANAGEMENT, Medford, OR, 

Employer

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Docket No. 19-1008

Issued: October 21, 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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 2, 2019 appellant filed a timely appeal from an October 4, 2018 merit decision 

and a December 11, 2018 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP).1 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.3

 

1 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days fromOctober 4, 2018, the date of OWCP’s last decision, was Tuesday, 

April 2, 2019. Because using April8, 2019, the date the appeal was received by the Clerk of the Appellate Boards, 

would result in the loss of appeal rights, the date of the postmark is considered the date of filing. See 20 C.F.R. 

§ 501.3(f)(1). The date of the U.S. Postal Service postmarkis April2, 2019, rendering the appeal timely filed. Id.

2

5 U.S.C. § 8101 et seq.

3 The record provided to the Board includes evidence received after OWCP issued its January 18, 2019 decision. 

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

ISSUES

The issues are: (1) whether appellant has met his burden of proof to establish an injury in 

the performance of duty on May 23, 2018, as alleged; and (2) whether OWCP properly denied 

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 May 29, 2018 appellant, then a 65-year-old wildlife bio science tech, filed a traumatic 

injury claim (Form CA-1) alleging that on May 23, 2018 he slipped on slick rocks in a stream he 

was fording and fell while in the performance of duty. He alleged that he sustained bruises to his 

right shoulder, knee, and elbow and developed pain in his right shoulder. Appellant also explained 

that he filed his claim as a precaution in case his injuries were more severe. On the reverse side 

of the claim form, appellant’s supervisor concurred that appellant was injured in the performance 

of duty and responded, “yes” when asked if he agreed with appellant’s statements surrounding the 

incident. 

A June 19, 2018 referral note signed by Dr. Howard Morningstar, Board-certified in family 

medicine, indicated that he referred appellant to physical therapy for a right shoulder injury. 

On June 26, 2018 appellant was seen by Michael Siegl, a physical therapist. Mr. Siegl 

noted pain and impingement in appellant’s right shoulder as a result of his May 23, 2018 fall. He 

noted that Disabilities of the Arm, Shoulder, and Hand (DASH) functional shoulder questionnaire 

completed by appellant indicated a 17 percent reduction in his right shoulder function. 

By development letter dated August 22, 2018, OWCP informed appellant that his claim 

initially appeared to be a minor injury that resulted in minimal or no lost time from work and that 

continuation was not controverted by the employing establishment, and thus limited expenses had 

been authorized. However, a formal decision was now required. OWCP advised appellant that 

the evidence of record was insufficient to establish his claim. It further advised him of the factual 

and medical evidence necessary to establish his claim and provided a questionnaire for completion. 

OWCP afforded appellant 30 days to provide the information. 

Appellant provided medical reports dated from June 19 to August 24, 2018, signed by

Dr. Morningstar. Dr. Morningstar’s June 19, 2018 medical report recounted that appellant injured 

his right shoulder on May 23, 2018 when he slipped and fell on some rocks while at work. He

examined appellant and diagnosed sprain of the anterior right shoulder and also noted that 

appellant may have also injured his rotator cuff. The remaining medical reports provided updates 

on appellant’s recovery. 

In appellant’s August 30, 2018 response to OWCP’s questionnaire, he again explained that 

his leg slipped on mossy creek rocks and that he hit his right hip, elbow and shoulder when he fell. 

His right shoulder hurt the most after the fall and did not improve over time.

By decision dated October 4, 2018, OWCP denied appellant’s claim, finding that the 

evidence of record was insufficient to establish the medical component of fact of injury. It 

accepted that the May 23, 2018 incident occurred as alleged, but denied his claim because the 

medical evidence of record failed to provide a medical diagnosis causally related to the accepted 
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employment incident. OWCP concluded, therefore, that the requirements had not been met to 

establish an injury as defined by FECA.

On November 17, 2018 appellant requested an oral hearing before a representative of 

OWCP’s Branch of Hearings and Review. 

By decision dated December 11, 2018, OWCP denied appellant’s request for an oral 

hearing before an OWCP hearing representative, finding that he was not entitled to a hearing as a 

matter of right because his request was not made within 30 days of the issuance of its October 4, 

2018 decision. It exercised its discretion and determined that the issue in the case could equally 

well be addressed by requesting reconsideration and submitting evidence not previously 

considered which established that he sustained an injury. 

LEGAL PRECEDENT -- ISSUE 1

An employee seeking benefits under FECA4 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 of FECA,5that 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.6 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. 7

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.8 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.9 The second component is whether the employee has submitted evidence, 

generally only in the form of probative medical evidence, to establish that the employment incident 

caused a personal injury.

10

 

To establish causal relationship between the condition, as well as any attendant disability 

claimed and the employment event or incident, the employee must submit rationalized medical 

 

4

Supra note 2.

5

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

153 (1989).

6

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

ECAB 312 (1988).

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

DeloresC. Ellyett, 41 ECAB 992 (1990).

8 D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

9 D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

10 B.M.,Docket No. 17-0796 (issued July 5, 2018); M.D., Docket No. 18-0709 (issued September 4, 2018); John J. 

Carlone, 41 ECAB 354 (1989).
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opinion evidence supporting such causal relationship.11 Causal relationship is a medical issue, and 

the medical evidence required to establish causal relationship is rationalized medical evidence. 12 

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.13 Neither the mere fact that a disease or condition 

manifests itself during a period of employment, nor the belief that the disease or condition was 

caused or aggravated by employment factors or incidents is sufficient to establish causal 

relationship.14

ANALYSIS -- ISSUE 1

The Board finds that this case is not in posture for decision.

OWCP denied appellant’s traumatic injury claim, finding that the evidence of record did 

not contain a medical diagnosis from a qualified physician in connection with the accepted 

May 23, 2018 employment incident. 

However, in his June 19, 2018 medical report, Dr. Morningstar diagnosed a sprain of the 

anterior right shoulder and also noted that appellant may have also injured his rotator cuff as a 

result of his fall. He noted that appellant injured his right shoulder on May 23, 2018 when he 

slipped and fell on rocks while at work. 

It is well established that proceedings under FECA are not adversarial in nature, nor is 

OWCP a disinterested arbiter. While the claimant has the burden of proof to establish entitlement 

to compensation, OWCP shares responsibility in the development of the evidence.15 OWCP has 

an obligation to see that justice is done.16 The case shall, therefore, be remanded for OWCP to 

consider whether the medical evidence of record is sufficient to establish causal relationship 

between appellant’s anterior right shoulder sprain and the accepted May 23, 2018 employment 

incident. After this and such further development as deemed necessary, OWCP shall issue a de 

novo decision.17

CONCLUSION

The Board finds that the case is not in posture for decision.

 

11 J.L., Docket No. 18-0698 (issued November 5, 2018); I.J., 59 ECAB 408 (2008); Victor J.Woodhams, 41 ECAB 

465 (2005).

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

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

14 Dennis M. Mascarenas, 49 ECAB 215 (1997).

15 D.H., Docket No. 18-1410 (issued March 21, 2019).

16 M.F., Docket No. 18-0602 (issued October 11, 2018).

17 In light of the Board’s disposition with regard to Issue 1, Issue 2 is rendered moot.
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ORDER

IT IS HEREBY ORDERED THAT the December 11 and October 4, 2018 decisions of 

the Office of Workers’ Compensation Programs are set aside and the case is remanded for further 

proceedings consistent with this opinion of the Board.

Issued: October 21, 2019

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