United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.P., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Merrick, NY, Employer 

__________________________________________ 

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Docket No. 15-1595 

Issued: January 5, 2016 

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 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On July 20, 2015 appellant filed a timely appeal from an April 8, 2015 merit decision and 

a June 17, 2015 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 the case.2

ISSUES 

The issues are: (1) whether appellant established an injury in the performance of duty on 

February 23, 2015, as alleged; and (2) whether OWCP properly denied appellant’s request for an 

oral hearing as untimely. 

 1

 5 U.S.C. § 8101 et seq. 

2

 Appellant submitted additional evidence after OWCP’s April 8, 2015 merit decision. The Board, however, 

cannot consider this evidence. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP 

at the time of its final merit decision. 20 C.F.R. § 501.2(c)(1). 
2

On appeal, appellant notes that he sent his first letter requesting an oral hearing to the 

wrong address. 

FACTUAL HISTORY 

On February 23, 2015 appellant, then a 53-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on that date he slipped on ice and twisted his left knee. 

By letter dated March 2, 2015, OWCP informed appellant that the evidence was 

insufficient to support his claim; and advised him to submit further evidence, including medical 

evidence, in support of his claim. 

On February 27, 2015 Dr. Eric Freeman, a Board-certified orthopedic surgeon and 

attending physician, indicated on a form report that appellant had fallen on the walk while 

delivering mail. He diagnosed pain and synovitis. Dr. Freeman checked a box indicating that he 

believed that this condition was caused by the employment activity described. In a February 27, 

2015 duty status report, he indicated that appellant had left knee pain and synovitis and was 

temporarily totally disabled. In a March 5, 2015 work capacity evaluation, Dr. Freeman noted 

that appellant would be reevaluated on March 10, 2015 for a return to work date. The record 

also contains progress reports dated February 24 and March 10, 2015. Dr. Freeman provided a 

history in his February 24, 2015 note of an employment-related accident that occurred the 

previous day while appellant was on a walkway delivering mail at work. He noted pain in left 

knee posteromedially and mild effusion. Dr. Freeman noted that he administered an injection. 

In a March 10, 2015 note, he indicated that appellant required therapy, and that he was going to 

keep him off work and see him in three weeks. 

In an April 8, 2015 decision, OWCP denied appellant’s traumatic injury claim as he had 

not established that a medical condition had been diagnosed in connection with the claimed 

event. 

In an appeal request form received by OWCP on May 27, 2015, but signed by appellant 

on April 14, 2015, he requested an oral hearing. Appellant submitted new medical evidence with 

his request. 

By decision dated June 17, 2015, OWCP denied appellant’s oral hearing request as it was 

untimely filed. It also reviewed the request at its discretion, and determined that the issue in the 

case could be equally well addressed by requesting reconsideration and submitting new 

evidence. 

LEGAL PRECEDENT -- ISSUE 1 

An employee seeking benefits under FECA has the burden of establishing 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, that an injury was sustained in the performance of duty as alleged, and that any 

disabilities and/or specific conditions for which compensation is claimed are causally related to 
3

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 whether an employee actually sustained an injury in the performance of 

duty, OWCP begins with an analysis of whether fact of injury has been established. Generally, 

fact of injury consists of two components, which must be considered in conjunction with one 

another. The first component to be established is that the employee actually experienced the 

employment incident or exposure, which is alleged to have occurred.5 In order to meet his or her 

burden of proof to establish the fact that he or she sustained an injury in the performance of duty, 

an employee must submit sufficient evidence to establish that he or she actually experienced the 

employment injury or exposure at the time, place, and in the manner alleged.6

The second component is whether the employment incident caused a personal injury and 

generally can be established only by medical evidence.7

 The medical evidence required to 

establish causal relationship is usually rationalized medical evidence. Rationalized medical 

opinion evidence is medical evidence which includes a physician’s rationalized opinion on the 

issue of whether there is a 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 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 claimant.8

ANALYSIS -- ISSUE 1 

The Board finds that it is undisputed that an incident occurred as alleged during 

appellant’s employment on February 23, 2015. However, the medical evidence of record is 

insufficient to establish that he sustained a medical condition causally related to this accepted 

incident. Therefore, OWCP properly denied appellant’s claim. 

In support of his claim, appellant submitted reports by Dr. Freeman, who noted his 

history and conducted an examination. Dr. Freeman diagnosed pain and synovitis and indicated 

that these conditions were caused by the employment injury. Although pain is not a diagnosis,9

the Board finds that he did diagnose synovitis. Accordingly, the Board finds that the evidence 

established a medical diagnosis. However, the Board finds that appellant failed to submit 

 3 Elaine Pendleton, 40 ECAB 1143 (1989). 

4 Victor J. Woodhams, 41 ECAB 345 (1989). 

5 See supra note 3. 

6 Linda S. Jackson, 49 ECAB 486 (1998). 

7 John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978). 

8 Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994). 

9

 The Board has held that the diagnosis of pain does not constitute the basis for payment of compensation. See 

Robert Broome, 55 ECAB 339 (2004); see also K.D., Docket No. 14-1781 (issued August 14, 2015). 
4

rationalized medical evidence establishing that this medical diagnosis was caused by the 

February 23, 2015 employment injury. While Dr. Freeman noted the history of the employment 

injury and indicated that it caused appellant’s medical condition, he did not provide a medical 

explanation as to how this incident caused or contributed to appellant’s synovitis. The Board has 

held that medical evidence that does not explain the mechanism of how the employment incident 

caused the medical diagnosis is of limited probative value on the issue of causal relationship.10 

Thus, Dr. Freeman’s reports are insufficient to establish appellant’s claim. 

An award of compensation may not be based on surmise, conjecture, or speculation. 

Neither, the fact that appellant’s claimed condition became apparent during a period of 

employment nor his belief that the condition was caused by his employment is sufficient to 

establish causal relationship.11 

Because appellant has not provided medical opinion evidence clearly explaining how his 

accepted employment incident resulted in a specific medical diagnosis, he failed to meet his 

burden of proof, and OWCP properly denied his claim for compensation. 

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 

issuance of the decision, to a hearing on his claim before a representative of the Secretary.12 

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.13 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 carriers’ date marking and before the claimant has requested 

reconsideration.14 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 a hearing when the request is untimely or made after reconsideration under section 

8128(a).15

 10 A.D. 58 ECAB 149 (2006); see also L.B., Docket No. 11-2055 (issued June 4, 2012). 

11 D.I., 59 ECAB 158 (2007); Ruth R. Price, 16 ECAB 688, 691 (1965). 

12 5 U.S.C. § 8124(b)(1). 

13 Id. at §§ 10.626, 10.617. 

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

15 See M.W., Docket No. 12-1267 (issued November 2, 2012); Federal (FECA) Procedure Manual, Part 2 --

Claims, Hearings and Review of the Written Record, Chapter 2.1601.2(a) (October 2011). 
5

ANALYSIS -- ISSUE 2 

The Board finds that OWCP properly determined that appellant’s hearing request, 

received by OWCP on May 27, 2015 was untimely filed. Appellant’s request was made more 

than 30 days after the issuance of the April 8, 2015 decision. Section 8124(b)(1) is unequivocal 

on the time limitation for requesting a hearing.16 For this reason, OWCP properly denied 

appellant’s hearing as a matter of right as it was not timely filed within 30 days.17

OWCP also properly exercised its discretion, under Board precedent, to determine 

whether to grant a hearing in this case. It denied appellant’s request as he could equally well 

address any issues in his case by submitting evidence not previously considered by OWCP and 

requesting reconsideration. OWCP correctly employed is discretionary authority and the Board 

finds that OWCP did not abuse its discretion in denying his hearing request.18

CONCLUSION 

The Board finds that appellant has not established that he sustained an injury in the 

performance of duty on February 23, 2015 as alleged. The Board notes that he did establish a 

medical diagnosis, but did not establish that the diagnosed medical condition was causally 

related to the accepted employment incident. The Board further finds that OWCP acted within 

its discretion when it denied appellant’s request for an oral hearing as untimely. 

 16 See William F. Osborne, 46 ECAB 198 (1994). 

17 R.D., Docket No. 15-1152 (issued September 4, 2015). 

18 See Lawrence C. Parr, 48 ECAB 445 (1997). 
6

ORDER 

IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’ 

Compensation Programs dated June 17, 2015 is affirmed and the decision dated April 8, 2015 is 

affirmed, as modified. 

Issued: January 5, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board