United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.W., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Duluth, GA, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 19-0529

Issued: September 4, 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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 2, 2019 appellant filed a timely appeal from a November 2, 2018 merit decision 

and a December 19, 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.2

ISSUES

The issues are: (1) whether appellant has met his burden of proof to establish right shoulder 

conditions causally related to the accepted May 23, 2018 employment incident; and (2) whether 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that following the December 19, 2018 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

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

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

FACTUAL HISTORY

On June 17, 2018 appellant, then a 63-year-old specialized postal clerk, filed a traumatic 

injury claim (Form CA-1) alleging that on May 23, 2018 he sustained a right shoulder sprain and 

rotator cuff injury as a result of securing sacks with metal labels while in the performance of duty. 

He did not stop work. 

On the date of injury, the employing establishment issued a properly executed authorization 

for examination and/or treatment (Form CA-16), which indicated that appellant was authorized to 

seek medical treatment at Caduceus USA for his May 23, 2018 right shoulder injury. The 

accompanying attending physician’s report, Part B of the Form CA-16, was completed on May 24, 

2018 by a physician with an illegible signature noting treatment for right shoulder pain and 

recommending minimizing repetitive use including pushing/pulling with the right hand.

In support of his claim, appellant submitted medical reports and progress notes from 

Caduceus USA dated May 23 through September 11, 2018 documenting treatment for his right 

shoulder condition. Initially, he was treated on May 23, 2018 by a nurse practitioner whose 

findings were countersigned by a Dr. Stephen A. Dawkins, specializing in occupational medicine. 

Dr. Dawkins noted a diagnosis of impingement and strain of the right shoulder. In an August 23, 

2018 medical report, Dr. William Huey, a specialist in occupational medicine, reported that 

appellant presented for follow up of his right shoulder injury. He reported that over the last several 

months appellant noted increasing pain in the anterior right shoulder. Appellant reported his injury 

on May 23, 2018 and was referred for an evaluation on that date. Dr. Huey reported that a 

magnetic resonance imaging (MRI) scan of the right shoulder demonstrated a partial thickness 

supraspinatus and labrum tear. He diagnosed right shoulder impingement syndrome, unspecified 

sprain of right shoulder joint, and right shoulder synovitis and tenosynovitis. Dr. Huey opined that 

appellant’s injury occurred over the last several months which he believed was due to repetitive 

opening of sealed mailbags containing high value items. He noted that opening the seals on these 

bags required “quite a bit” of force with the right arm and shoulder and that appellant performed

this task repetitively and often while working. 

In a development letter dated September 18, 2018, OWCP noted that when appellant’s 

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

from work. Based on this criteria, it had administratively approved payment of a limited amount 

of medical expenses. However, the merits of his claim had not been formally considered and 

OWCP advised appellant of the deficiencies of his claim. It requested additional factual and 

medical evidence and provided a questionnaire for his completion. OWCP afforded appellant 30 

days to respond. 

OWCP received additional reports from Dr. Huey dated September 11 and 18, 2018 

documenting treatment for appellant’s right shoulder condition, as well as physical therapy notes

dated August 30 through September 13, 2018. 
3

By decision dated November 2, 2018, OWCP denied appellant’s claim finding that the 

medical evidence of record failed to establish that his diagnosed right shoulder condition was 

causally related to the accepted employment incident. 

On December 8, 2018 appellant requested a review of the written record by a representative 

of OWCP’s Branch of Hearings and Review.

By decision dated December 19, 2018, an OWCP hearing representative determined that 

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

was not made within 30 days of the issuance of its November 2, 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 on the issue of causal 

relationship.

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

In order to determine whether an employee actually sustained an injury in the performance 

of duty in a traumatic injury claim, OWCP begins with an analysis of whether fact of injury has 

been established.6 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 which is alleged to have occurred.7 The second component 

is whether the employment incident caused a personal injury and can only be established by 

medical evidence. 

Causal relationship is a medical question that requires rationalized medical opinion 

evidence to resolve the issue.8 A physician’s opinion on whether there is a causal relationship 

 

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 D.B., Docket No. 18-1348 (issued January 4, 2019).

7

J.M., Docket No. 17-0284 (issued February 7, 2018); Elaine Pendleton, 40 ECAB 1143 (1989).

8

J.F., Docket No. 19-0456 (issued July 12, 2014); T.H., 59 ECAB 388, 393 (2008).
4

between the diagnosed condition and the accepted employment incident must be based on a 

complete factual and medical background.9 Additionally, the physician’s opinion must be 

expressed in terms of a reasonable degree of medical certainty, and must be supported by medical 

rationale, explaining the nature of the relationship between the diagnosed condition and the 

specific employment incident.10

ANALYSIS -- ISSUE 1

The Board finds that appellant has not met his burden of proof to establish right shoulder 

conditions causally related to the accepted May 23, 2018 employment incident.

11

In support of his claim, appellant submitted medical documentation dated May 23 through 

September 18, 2018 from Caduceus USA. The Board finds that the Caduceus USA physician 

reports are not well rationalized and fail to establish appellant’s right shoulder claim.12 Amongst

these medical reports, Dr. Huey and Dr. Dawkins discussed treatment for appellant’s right 

shoulder beginning on May 23, 2018. While the physicians provided firm diagnoses of right 

shoulder impingement syndrome, unspecified sprain of right shoulder joint, and right shoulder 

synovitis and tenosynovitis, they failed to provide a probative rationalized opinion regarding the 

cause of appellant’s conditions.13 Dr. Huey reported that over the last several months appellant 

had complained of increasing pain in the anterior right shoulder, causing him to report his injury 

and seek medical treatment on May 23, 2018. He opined that appellant’s injury occurred over the 

last several months due to repetitive opening of sealed mailbags containing high value items, 

noting that opening the seals required quite a bit of force with the right arm and shoulder, and that 

appellant performed this task repetitively and often while working. The Board notes, however,

that appellant alleged that his condition was causally related to a single incident on May 23, 2018. 

If he believes that his employment duties aggravated his condition over a period of days or shifts, 

this could be an occupational disease.14 The Board has found that a physician must provide a 

narrative description of the identified employment incident and a reasoned opinion on whether the 

employment incident described caused or contributed to appellant’s diagnosed medical 

conditions.15 In this instance, Dr. Huey’s generalized statements do not establish causal 

relationship because they are unsupported by adequate medical rationale explaining how the 

physical activity on May 23, 2018 actually caused the diagnosed right shoulder conditions.16 He 

did not provide a physiological explanation as to how appellant’s employment incident as alleged 

 

9 M.V., Docket No. 18-0884 (issued December 28, 2018); Robert G. Morris, 48 ECAB 238 (1996). 

10 Id.; Victor J. Woodhams, 41 ECAB 345, 352 (1989).

11 T.S., Docket No. 17-1709 (issued May 7, 2018).

12 S.F., Docket No. 18-1030 (issued April 5, 2019).

13 J.C., Docket No. 19-0310 (issued June 18, 2019).

14 G.R., Docket No. 17-0669 (issued July 19, 2017). 

15 See V.J., Docket No. 17-0358 (issued July 24, 2018); John W. Montoya, 54 ECAB 306 (2003).

16 T.W., Docket No. 18-1436 (issued April 10, 2019).
5

on May 23, 2018 either caused or contributed to his diagnosed right shoulder conditions.17 Thus, 

the Board finds that these reports are insufficient to establish appellant’s traumatic injury claim. 

The remaining medical evidence is also insufficient to establish appellant’s claim. The 

Caduceus USA physical therapy notes have no probative medical value in establishing his claim. 

Physical therapists are not considered “physician[s]” as defined under FECA.18 Consequently, 

their findings and/or opinions will not suffice for purposes of establishing entitlement to FECA 

benefits.19 

Additionally, the attending physician’s report, Part B of Form CA-16, was completed by a 

health provider with an illegible signature. As such, this report has no probative value as it is not 

established that the author is a physician.20

The Board finds that the record lacks rationalized medical evidence establishing a causal 

relationship between the accepted employment incident of May 23, 2018 and appellant’s 

diagnosed right shoulder conditions.21 Thus, appellant has not met his 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 10.607.22

LEGAL PRECEDENT -- ISSUE 2

Section 8124(b)(1) of FECA provides that before review under section 8128(a) of this title, 

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 or her claim 

 

17 D.F., Docket No. 19-0067 (issued May 3, 2019).

18 5 U.S.C. § 8102(2) of FECA provides that the term “physician” includes surgeons, podiatrists, dentists, clinical 

psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined 

by State law. S.J., Docket No. 17-0783, n.2 (issued April 9, 2018) (a nurse practitioner is not a physician under 

FECA); J.L., Docket No. 17-1207 (issued December 8, 2017) (a physical therapist is not a physician under FECA); 

David P. Sachiko, 57 ECAB 316, 320 n.11 (2006).

19 N.B., Docket No. 19-0221 (issued July 15, 2019).

20 See S.G., Docket No. 18-1076 (issued April 11, 2019); D.D., 57 ECAB 734 (2006); Merton J. Sills, 39 ECAB 

572, 575 (1988).

21 K.L., Docket No. 18-1029 (issued January 9, 2019).

22 The record contains a Form CA-16 signed by the employing establishment official on May 23, 2018. When the 

employing establishment properly executes a Form CA-16 which authorizes medical treatment as a result of an 

employee’s claim for an employment-related injury, the CA-16 Form creates a contractual obligation, which does not 

involve the employee directly, to pay for the cost of the examination or treatment regardless of the action taken on the 

claim. The period for which treatment is authorized by a Form CA-16 is limited to 60 days from the date of issuance, 

unless terminated earlier by OWCP. See 20 C.F.R. §§ 10.300 and 10.304; R.W., Docket No. 18-0894 (issued 

December 4, 2018).
6

before a representative of the Secretary.23 Section 10.615 of the federal regulations implementing 

this section of FECA provides that a claimant shall be afforded a choice of an oral hearing or a 

review of the written record.24 OWCP regulations provide that the request must be sent within 30 

days of the date of the decision for which a hearing is sought, as determined by postmark or other 

carrier’s date marking, and also that the claimant must not have previously submitted a 

reconsideration request (whether or not it was granted) on the same decision.25

The Board has held that OWCP, in its broad discretionary authority in the administration 

of FECA,26 has the power to hold hearings in certain circumstances where no legal provision was 

made for such hearings and that OWCP must exercise this discretionary authority in deciding 

whether to grant a hearing.27 OWCP procedures, which require OWCP to exercise its discretion 

to grant or deny a hearing when the request is untimely or made after reconsideration, are a proper 

interpretation of FECA and Board precedent.28

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied appellant’s December 8, 2018 request for a

review of the written record 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 submitted an appeal request form dated December 8, 2018 

requesting a review of the written record. As the request was submitted more than 30 days 

following issuance of the November 2, 2018 merit decision, the Board finds that it was untimely 

filed and appellant was not entitled to a review of the written record as a matter of right.29 Section 

8124(b)(1) is unequivocal on the time limitation for requesting a hearing.30

The Board further 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 causal relationship. 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, clearly unreasonable exercise of judgment, or actions taken which are contrary to 

 

23 5 U.S.C. § 8124(b)(1).

24 20 C.F.R. § 10.615.

25 Id. at § 10.616(a).

26 Supra note 1.

27 R.K., Docket No. 17-0151 (issued December 12, 2018); Marilyn F. Wilson, 52 ECAB 347 (2001).

28 D.W., Docket No. 17-1413 (issued December 18, 2018); Teresa M. Valle, 57 ECAB 542 (2006).

29 W.C., Docket No. 18-1651 (issued March 7, 2019).

30 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).
7

both logic and probable deduction from established facts.31 Because reconsideration exists as an 

alternative appeal right to address the issue raised by OWCP’s November 2, 2018 decision, the 

Board finds that OWCP has not abused its discretion in denying appellant’s untimely request for 

a review of the written record.32

Accordingly, the Board finds that OWCP properly denied appellant’s December 8, 2018 

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

33

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish right shoulder 

conditions causally related to the accepted May 23, 2018 employment incident. The Board also 

finds that OWCP did not abuse its discretion by denying 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).

ORDER

IT IS HEREBY ORDERED THAT the December 19 and November 2, 2018 decisions 

of the Office of Workers’ Compensation Programs are affirmed.

Issued: September 4, 2019

Washington, DC

Christopher J. Godfrey, 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

 

31 M.K., Docket No. 19-0428 (issued July 15, 2019); Daniel J. Perea, 42 ECAB 214, 221 (1990).

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

33 R.P., Docket No. 16-0554 (issued May 17, 2016); D.P., Docket No. 14-308 (issued April 21, 2014); D.J., Docket 

No. 12-1332 (issued June 21, 2013).