United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.W., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

FEDERAL EMERGENCY MANAGEMENT 

AGENCY, Washington, DC, Employer

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Docket No. 17-1413

Issued: December 18, 2018

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 June 13, 2017 appellant timely appealed from a March 13, 2017 merit decision and an

April 25, 2017 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 the case.

3

 

1 On appeal appellant submitted 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 5 U.S.C. § 8101 et seq.

3 Appellant timely requested oral argument. By order dated October 12, 2017, the Board exercised its discretion 

and denied her request, finding that the issues could be adequately addressed based on a review of the evidence as 

submitted on the record. Order Denying Request for Oral Argument, Docket No. 17-1413 (issued October 12, 2017).
2

ISSUES

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

causally related to the accepted December 5, 2016 employment incident; and (2) whether OWCP 

properly denied appellant’s request for an oral hearing as untimely filed.

FACTUAL HISTORY

On December 7, 2016 appellant, then a 57-year-old management analyst, filed a traumatic 

injury claim (Form CA-1) alleging that on December 5, 2016 she was sitting in a chair at a table 

when she got up and tripped over the leg of a chair and fell hard to the floor. She noted that her 

kneecap hit the floor and immediately swelled and turned red. The employing establishment

checked a box marked “yes” in response to whether appellant was in the performance of duty. 

Appellant stopped work that day. 

In a December 5, 2016 treatment note, Dr. Leah Jacoby, Board-certified in emergency 

medicine, diagnosed left knee pain.

In December 12, 2016 reports, Dr. Dennis Carlini, a Board-certified orthopedic surgeon, 

noted that appellant related that she injured her left knee during a training class, when she tripped 

over a chair. He examined appellant and noted previous left knee issues and diagnosed prepatellar 

bursitis of the knee. Dr. Carlini placed appellant in a knee brace and recommended physical 

therapy. 

On January 9, 2017 Dr. Carlini examined appellant, noted that she was somewhat 

improved and recommended continued physical therapy. He repeated his diagnosis of prepatellar 

bursitis of the left knee. Dr. Carlini recommended additional therapy. He also completed a 

certificate of disability and indicated that appellant was disabled from work for the period

January 9 to 31, 2017. Dr. Carlini designated that appellant could return to work, full duty, without

restrictions on February 1, 2017. 

By development letter dated January 31, 2017, OWCP advised appellant that she initially 

filed a claim for a traumatic injury which originally appeared to be for a minor injury resulting in 

minimal or no lost time. It advised her that her claim was reopened because she had requested 

medical authorization. OWCP informed appellant of the type of factual and medical evidence 

needed to support her claim, which included responding to questions presented in a questionnaire. 

It afforded her 30 days to submit the requested evidence. 

In a February 23, 2017 statement, appellant indicated that on December 5, 2016 she was 

attending a training class when she got out of her chair to walk. She explained that she tripped 

over the leg of a chair and fell to the floor. Appellant noted that the direct impact of the fall was 

to her left knee which was bent after she hit the floor. She advised that the instructor came to her

aid. Appellant noted that the instructor also tripped over the leg of the chair, but that she did not 

fall. She explained that she could not move her leg and her knee bent and began to instantly swell. 

Thereafter, the instructor asked if she could get up and appellant responded that she could not. 

Appellant indicated that the instructor called 911 and that when she arrived in the emergency room

(ER), the ER physician ordered x-rays of her knee to ensure there were no broken bones. She
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explained that once he reviewed the x-rays, which revealed that no bones were broken, the 

physician informed her that her knee was bruised and sprained. Appellant noted that a leg brace 

was ordered to keep her knee secure until she could get an appointment with an orthopedic 

specialist. 

Appellant noted that on December 12, 2016 she saw Dr. Carlini, who examined her knee 

and reviewed the ER report and x-rays. She advised that he prescribed icing, rest, an antiinflammatory medication (oral and topical), physical therapy twice a week, and to follow up with 

him in one month. Appellant explained that it took almost three weeks before the swelling started 

to subside. She also noted that she attended physical therapy sessions and returned to work. 

Appellant explained that the physical therapy was helping her to recover. However, she explained 

that she was unable to complete the physical therapy prescribed by the doctor because after 

returning to work on February 1, 2017, while walking back to her desk, her left knee gave out and 

she fell to the floor in her office, reinjuring her left knee.

OWCP also received physical therapy notes from January 4 to February 6, 2017. 

By decision dated March 13, 2017, OWCP denied appellant’s claim, finding that it was 

insufficient to establish an injury causally related to the accepted work events. It noted that the 

December 12, 2016 report from Dr. Carlini listed multiple knee conditions. However, there was 

no medical evidence to differentiate the work-related knee conditions from the preexisting knee

conditions. OWCP explained as they had not received a well-reasoned opinion from her physician 

linking the diagnoses to the December 5, 2016 injury, causal relationship could not be established.

On April 18, 2017 OWCP received appellant’s request for a hearing. The postmark 

indicated that it was mailed on April 14, 2017.

OWCP also received physical therapy reports and December 15, 2016 x-rays of the left 

knee read by Dr. Nimisha Mehta, a radiologist.

By decision dated April 25, 2017, OWCP denied appellant’s request for a hearing. It found 

that she was not entitled to a hearing for the reason that her request was not made within 30 days 

of the issuance of its March 13, 2017 decision. OWCP exercised its discretion and determined 

that it would not grant a hearing for the reason that the issue in the case could equally well be 

addressed by requesting reconsideration and submitting new evidence not previously considered 

pertaining to her claim for an injury in the performance of duty.

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,

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and that an injury was sustained in the performance of duty as 

alleged and that any specific condition or disability claimed is causally related to the employment 

 

4

Joe D. Cameron, 41 ECAB 153 (1989).
4

injury.

5

 These are the essential elements of each compensation claim, regardless of whether the 

claim is predicated upon a traumatic injury or an occupational disease.6

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. 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 evidence required to establish causal 

relationship is rationalized medical opinion evidence. Rationalized medical opinion evidence is 

evidence which includes a physician’s opinion on the issue of whether there is causal relationship 

between the claimant’s diagnosed condition and the implicated employment factors. The opinion 

of the physician must be based on a complete factual and medical background, 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 claimant.9

Certain healthcare providers such as physician assistants, nurse practitioners, physical 

therapists, and social workers are not considered “physician[s]” as defined under FECA.10 

Consequently, their medical findings and/or opinions will not suffice for purposes of establishing 

entitlement to FECA benefits.11

ANALYSIS -- ISSUE 1

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

causally related to the accepted December 5, 2016 employment incident.

 

5

James E. Chadden, Sr., 40 ECAB 312, 314 (1988).

6 Delores C. Ellyett, 41 ECAB 992, 994 (1990).

7

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

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Id.

9

I.J., 59 ECAB 408, 415 (2008).

10 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

11 K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). A report from a physician

assistant or certified nurse practitioner will be considered medical evidence if countersigned by a qualified physician. 

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013).
5

OWCP received copies of physical therapy notes from January 4 to February 6, 2017. 

However, they do not rise to the level of competent medical opinion evidence under FECA because 

physical therapists are not deemed physicians under FECA.

12

In a December 5, 2016 treatment note, Dr. Jacoby diagnosed left knee pain. The Board has 

consistently held that pain is a symptom and not a compensable medical diagnosis.13 To establish 

a personal injury, the medical evidence of record must document a diagnosed condition and must 

explain how that condition is causally related to the accepted factors appellant’s federal 

employment. Lacking a firm diagnosis and an opinion regarding the cause of appellant’s 

condition, the report from Dr. Jacoby is of no probative value on the issue of causal relationship.14

In December 12, 2016 reports, Dr. Carlini, a Board-certified orthopedic surgeon, noted that 

appellant related that she injured her left knee during a training class when she tripped over a chair. 

He diagnosed prepatellar bursitis of the left knee, and recommended physical therapy. Dr. Carlini

did not however provide any opinion on causal relationship. Furthermore, he did not offer any 

opinion on multiple knee conditions, which appeared to be preexisting. As such, this report is of

no probative value on the issue of causal relationship and is therefore insufficient to establish 

appellant’s claim.

15

 

On January 9, 2017 Dr. Carlini repeated his diagnosis of prepatellar bursitis of the left knee

and recommended additional therapy. Again, however, he did not offer any opinion regarding the 

cause of her conditions or differentiate between work-related knee conditions and preexisting knee 

conditions.16

Because the medical evidence of record is insufficient to address how the December 5, 

2016 employment incident either caused or contributed to appellant’s claimed left knee condition, 

appellant has not met her 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. 

LEGAL PRECEDENT -- ISSUE 2

Section 8124 of FECA 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.17

 

12 See supra notes 10 and 11.

13 B.P., Docket No. 12-1345 (issued November 13, 2012); C.F., Docket No. 08-1102 (issued October 2008).

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

15 Id.

16 Id.

17 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.”

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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.”

19

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

OWCP’s decision is subject to OWCP’s discretion20 and the Board has held that OWCP must 

exercise this discretion when a hearing request is untimely.21

ANALYSIS -- ISSUE 2

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

OWCP final decision. OWCP noted that appellant’s request for oral hearing was postmarked 

April 14, 2017. As the request was submitted more than 30 days following issuance of the 

March 13, 2017 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 April 25, 2017 decision, 

properly exercised its discretion by stating that it had considered the matter and had denied 

appellant’s request for oral hearing as her claim could be equally well addressed through a 

reconsideration application. The Board has held that the only limitation on OWCP’s authority is 

reasonableness. An abuse of discretion is generally shown through proof of manifest error, clearly 

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

deduction from established facts.22 In the present case, the evidence of record does not indicate 

that OWCP committed any abuse of discretion in connection with its denial of appellant’s request 

for an oral hearing. 

 

18 20 C.F.R. § 10.615. 

19 Id. at § 10.616(a). 

20 Id. at § 10.616(b).

21 Samuel R. Johnson, 51 ECAB 612, 613-14 (2000).

22 See Daniel J. Perea, 42 ECAB 214, 221 (1990). 
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CONCLUSION

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

causally related to the accepted December 5, 2016 employment incident. Furthermore, the Board 

finds that OWCP properly denied appellant’s request for a hearing as untimely filed.

ORDER

IT IS HEREBY ORDERED THAT the April 25 and March 13, 2017 decisions of the 

Office of Workers’ Compensation Programs are affirmed.

Issued: December 18, 2018

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