United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.K., Appellant

and

DEPARTMENT OF THE AIR FORCE, 

MACDILL AIR FORCE BASE, FL, Employer

__________________________________________

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Docket No. 22-0592

Issued: July 20, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On March 1, 2022 appellantfiled a timely appealfroma December 21,2021merit decision

and a February 7, 2022 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.

ISSUES

The issues are: (1) whether appellant has met his burden of proof to establish a left bicep 

condition causally related to the accepted October 7, 2021 employment incident; and (2) whether 

OWCP properly denied appellant’s request for an oral hearingby an OWCP hearing representative 

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

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On October 26, 2021 appellant, then a 58-year-old physical security specialist, filed a 

traumatic injury claim (Form CA-1) alleging that on October 7, 2021 he injured his left biceps 

tendon when removing equipment from a rack while in the performance of duty. He stopped work 

on October 29, 2021. 

In support of his claim, appellant submitted a referral note dated October 11, 2021 from

Dr. John A. Rog, a Board-certified family medicine specialist, who diagnosed a spontaneous 

rupture of the bicep tendon and referred appellant to an orthopedic surgeon.

OWCP also received an employing establishment position description for physical security 

specialist and a surgical consent form signed by appellant on October 25, 2021.

In a November 15, 2021 development letter, OWCP informed appellant of the deficiencies 

of his claim. It advised him of the type of factual and medical evidence needed and provided a 

questionnaire for his completion. OWCP afforded appellant 30 days to respond.

OWCP thereafter received a form report dated November 2, 2021 by Dr. Alfred Hess, a 

Board-certified orthopedic and hand surgeon, who noted that appellant had undergone left distal 

bicep surgery on October 29, 2021 and should remain out of work for four to six weeks. 

By decision dated December 21, 2021, OWCP denied appellant’s claim, finding that the 

medical evidence of record was insufficient to establish that his left bicep condition was causally 

related to the accepted October 7, 2021 employment incident. 

OWCP thereafter received additional medical evidence and an employing establishment

incident report.

On January 24, 2022 appellant submitted a request for a telephonic oral hearing before a 

representative of OWCP’s Branch of Hearings and Review. The request was dated January 18, 

2022 and was electronically signed by appellant on January 24, 2022.

By decision dated February 7, 2022, OWCP’s Branch of Hearings and Review denied 

appellant’s request for an oral hearing, finding that it was untimely filed. It further 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 a medical 

condition causally related to his federal employment.

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,2that the claim was timely filed within the applicable 

2 K.R., Docket No. 20-0995 (issued January 29, 2021);A.W., Docket No. 19-0327 (issued July 19, 2019); S.B., 

Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
3

time limitation period of FECA, that 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.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 a federal employee has sustained a traumatic injury in the 

performance of duty, it first must be determined whether fact of injury has been established. There 

are two components involved in establishing fact of injury. The first component is that the 

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

employment incident at the time and place, and in the manner alleged. The second component is 

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

evidence.5 

The medical evidence required to establish causal relationship between a claimed specific 

condition and an employment incident is rationalized medical opinion evidence. 6 The opinion of 

the physician must be based on a complete factual and medical background of the employee, 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 specific employment factors 

identified by the employee.7

ANALYSIS -- ISSUE 1

The Board finds that appellant has not met his burden of proof to establish a left bicep

condition causally related to the accepted October 7, 2021 employment incident.

In his October 11, 2021 referral note,Dr. Rog diagnosed a spontaneous rupture of the bicep 

tendon. In his November 2, 2021 form report, Dr. Hess noted that appellant had undergone surgery 

on October 29, 2021 to his left distal bicep. However, neither of these reports contained an opinion 

as to the cause of the diagnosed condition. The Board has held that a medical report that does not 

render an opinion on causal relationship is of no probative value and, thus, is insufficient to 

establish the claim.8 Therefore, these reports are insufficient to meet appellant’s burden of proof.

3

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

ECAB 312 (1988).

4

J.B., Docket No. 20-1566 (issued August31, 2021); 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).

5 T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J. 

Carlone, 41 ECAB 354 (1989).

6

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April24, 2019); RobertG. 

Morris, 48 ECAB 238 (1996).

7 T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020); 

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

8 T.D., Docket No. 19-1779 (issued March 9, 2021).
4

As appellant has not submitted rationalized medical evidence to establish a left bicep

condition causally related to the accepted October 7, 2021 employment incident, the Board finds 

that he 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.

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 [or her] claim before a representative of the Secretary.”

9

 

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.10 A claimantis 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 carrier’s date marking and before the claimant has requested reconsideration. 11 

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 

appellant’s request and must exercise its discretion.12

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied 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.

OWCP’s regulations provide that the request for a hearing or review of the written record 

must be made within 30 days of the date of the decision for which a review is sought. Because 

appellant’s request for a review of the written record was electronically signed and submitted on 

January 24, 2022, it postdated OWCP’s December 21, 2021 decision by more than 30 days and, 

accordingly, was untimely. Appellant was, therefore, not entitled to a review of the written record 

as a matter of right.13

9

Supra note 1 a t § 8124(b)(1).

10 20 C.F.R. §§ 10.616, 10.617.

11 Id. at § 10.616(a).

12 W.H., Docket No. 20-0562 (issued August6, 2020); P.C., Docket No. 19-1003 (issued December 4, 2019); M.G., 

Docket No. 17-1831 (issued February 6, 2018); Eddie Franklin, 51 ECAB 223 (1999); DelmontL. Thompson, 51 

ECAB 155 (1999).

13 See K.B., Docket No. 21-1038 (issued February 28, 2022); M.F., Docket No. 21-0878 (issued January 6, 2022);

see also P.C., Docket No. 19-1003 (issued December 4, 2019).
5

OWCP, however, has the discretionary authority to grant the request and it must exercise 

such discretion.14 The Board finds that, in the February 7, 2022 decision, OWCP properly 

exercised its discretion by determining that the issue in the case could be equally well addressed 

through a request for reconsideration, along with the submission of additional evidence.

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 deductions 

from established facts.15 The Board finds that the evidence of record does not indicate that OWCP 

abused its discretion in connection with its denial of appellant’s request for a review of the written

record.

Accordingly, the Board finds that OWCP properly denied appellant’s request for a review 

of the written record as untimely filed, pursuant to 5 U.S.C. § 8124(b).

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish a left bicep 

condition causally related to the accepted October 7, 2021 employment incident. The Board 

further finds that OWCP properly denied appellant’s request for an oral hearing by an OWCP 

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

14 Id.

15 Id.
6

ORDER

IT IS HEREBY ORDERED THAT the February 7, 2022 and December 21, 2021 

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

Issued: July 20, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board