United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Philadelphia, PA, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-0829
Issued: July 8, 2015

Case Submitted on the Record

DECISION AND ORDER

Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On March 3, 2014 appellant, through counsel, filed a timely appeal from a February 24,
2014 merit 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.
ISSUE
The issue is whether appellant met his burden of proof to establish an injury in the
performance of duty on April 18, 2013.
FACTUAL HISTORY
On April 24, 2013 appellant, then a 33-year-old customs and border protection (CBP)
officer, filed a traumatic injury claim alleging that on Thursday, April 18, 2013 at 11:45 a.m. he
1

5 U.S.C. §§ 8101-8193.

sustained a work-related fracture of the radial head of his right elbow and scrapes on his left
hand. Regarding the cause of the claimed injury, he stated, “While on a paid 20 minute break, I
had walked across the street to get something to eat. While returning with my food I was
stepping over an appox. 3 ft. high metal barrier when I tripped over the barrier and landed face
first onto the pavement.” Appellant stopped work on April 18, 2013 and returned to limited-duty
work on April 22, 2013.
On the same form, Dale Markowitz, appellant’s supervisor, asserted that the claimed
injury did not occur in the performance of duty. He indicated that appellant was injured during a
paid 20-minute break while returning from an off-airport cafeteria located in a nongovernmental
building through an undesignated pedestrian walkway, which necessitated climbing over a
guardrail in order to return to the CBP cargo office.2 Mr. Markowitz noted that the cafeteria,
located across a two-lane roadway opposite the CBP cargo office, was not part of the employing
establishment premises at the Philadelphia International Airport. He stated that “no work was
involved” in appellant’s travel to the cafeteria.
In an April 25, 2013 letter, OWCP requested that the employing establishment respond to
several questions regarding such matters as the location of appellant’s claimed injury relative to
his workstation and the boundaries of the employing establishment premises.
In an undated statement, Mr. Markowitz stated that on April 18, 2013 appellant was
assigned to the CBP cargo office of Cargo City (Building C-2, Room 17-18), located on the
property of the Philadelphia International Airport, with a tour of duty from 8:00 a.m. to 4:00 p.m.
He indicated that at approximately 11:45 a.m. appellant was injured during an authorized paid
break of 20 minutes when he was returning from an off-airport cafeteria located in the One
International Plaza building, a nongovernmental facility. The cafeteria was located opposite the
CBP cargo office (a quarter mile away) and was separated by a two-lane roadway protected by a
guardrail, an access road, and a parking lot. The CBP cargo office had a break area with a table
and chairs, refrigerator, and microwave. Mr. Markowitz stated that appellant returned on foot
from the cafeteria, cut through an undesignated pedestrian walkway, and climbed over the
guardrail in order to return to the CBP cargo office. He asserted that appellant’s travel to the
cafeteria was not in the performance of duty and that no work was being performed at the time of
his claimed injury.
On April 25, 2013 OWCP also requested that appellant submit additional factual and
medical information in support of his claim. It asked him to complete an attached questionnaire
regarding the events of April 18, 2013.
On May 9, 2013 appellant submitted a completed questionnaire, noting that his April 18,
2013 accident occurred approximately 15 feet from the property line of the CBP office in Cargo
City at a guardrail separating a two-lane road from the property line of One International Plaza.
He indicated that he had been assigned for the day at the CBP office in Cargo City. Appellant
stated that during the normal course of duty he was entitled to a 20-minute paid break. Because
the CBP office did not have any refreshment, dining, or vending facilities, he walked to a
cafeteria at One International Plaza during his 20-minute paid break. Appellant indicated that
2

Mr. Markowitz listed appellant’s regular-duty station as the Philadelphia International Airport and his regular
work hours as 8:00 a.m. to 4:00 p.m., Monday through Friday.

2

One International Plaza housed government employees from the Transportation Security
Administration and the Federal Air Marshal Service and that it was the closest building that had
refreshments. He stated that at the time of his fall he was in full uniform while wearing his duty
belt and agency weapon and that he still was “on the clock” in a paid-break status. There was no
designated walkway between the two facilities, only a well-worn foot path that was frequently
used by employees of the warehouse to which he was assigned. Appellant stated that he was
provided a paid-break period because, as a uniformed federal law enforcement officer, he was
always on call and was expected to respond to any situation that might arise during the course of
his shift, whether he was performing his regular work assignment or on a paid break. He noted
that the employing establishment did not place any restrictions on where he could go or what he
could do during his paid-break period.
Appellant submitted medical reports dated from April to June 2013 in which attending
physicians detailed their treatment of his right elbow condition. It was indicated that he
sustained a fracture of the radial head of his right elbow when he fell on April 18, 2013. Reports
from early May 2013 showed “good healing” of the fracture without any bone nonalignment.
In a June 7, 2013 decision, OWCP denied appellant’s claim for an April 18, 2013 work
injury, finding that he had not established an injury in the performance of duty. It indicated that
his April 18, 2013 fall occurred off the employment premises while he was returning with food
he had retrieved and did not arise “during the course of employment and within the scope of
compensable work factors as defined by … FECA.”3
Appellant submitted additional medical evidence detailing the medical treatment of his
right elbow condition.
In a November 11, 2013 statement, appellant noted that at the time of his April 18, 2013
accident he was on a paid break as required by the collective bargaining agreement with the
employing establishment. He indicated that on April 18, 2013 he was the only CBP officer
working in the CBP office because another CBP officer had called in sick. Appellant noted that
he had worked at this location a few times before but that he was never provided instructions “in
any format about lunch.” The food he brought to work on April 18, 2013 seemed tainted and
therefore he left the CBP office to seek refreshments elsewhere. Appellant indicated that, in the
past, a coworker would bring food from a food court off the premises and that he was not
criticized for doing so.
In a November 15, 2013 statement, Bernadette Howe, a CBP manager, stated that CBP
officers such as appellant worked 40 hours per week with a variety of shift schedules. She noted
that, other than the rare occasions when unpaid breaks were included in a shift, CBP officers
were still “on the clock” during rest periods and could be pulled away by management to
perform work duties if needed. Ms. Howe stated, “At the time of [appellant’s] accident he was
working a straight eight[-]hour shift from 8 a.m. to 4 p.m. with no time for an unpaid lunch break
built into the shift, and this was confirmed by his own manager on the reverse of the notice of
traumatic injury and [he] was thus in the course of employment at the time of the injury.”
3

OWCP suggested that appellant was seeking personal comfort by retrieving food at the time of the claimed
injury, but that the injury was not covered because he left the employing establishment premises. It noted that the
premises had a break room with a table and chairs, refrigerator, and microwave.

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In an undated statement received on November 15, 2013, Daniel Arencibia, a CBP
officer, stated that his job required him to work at an alternate location within the Philadelphia
International Airport for two nonconsecutive months per year. He indicated that this location
was known as Cargo City and was the main hub of processing all paperwork for incoming
international cargo. The building at this location did not have anywhere to purchase food and it
only provided a table and microwave to prepare food that workers brought themselves. If a
worker wanted to acquire food, he needed to walk across the street to One International Plaza via
a worn-down path, which cut through the median strip between two roads. Mr. Arencibia stated
that it was understood that he and his coworkers were allowed to take a 20-minute “on the clock”
break during which they could leave Cargo City and have their meals. During this time, he and
his coworkers were still expected to be on notice (via personal mobile telephone) for any calls
from management.
In a November 15, 2013 statement, counsel cited the case D.M.4 for the proposition that
the term premises, as used in workers’ compensation law, was not synonymous with property
owned by the employing establishment. He argued that this case showed that in some cases
premises might include all the property owned by the employing establishment and, in other
cases, even though the employing establishment did not have ownership or control of the place
where the injury occurred, the place was nevertheless considered part of the premises. Counsel
stated that an exception to the premises rule dictated that the course of employment should
include an injury occurring at a point where the employee was within the range of dangers
associated with the employment and would include an injury occurring off the employing
establishment’s premises that happened on the only route or the normal route which employees
must traverse to reach the premises.
Appellant requested a telephonic hearing with an OWCP hearing representative. During
the November 26, 2013 hearing, he testified that his normal-duty station was in Terminal A West
(third floor) on the grounds of the Philadelphia International Airport. Appellant stated that on
April 18, 2013 he had been assigned to work in the CBP office at Cargo City, a separate area of
the Philadelphia International Airport, which was located approximately a half mile away from
his normal-duty station. The assignment lasted about a month and this type of assignment
happened twice per year. Appellant indicated that at the time of his April 18, 2013 injury he was
on a paid 20-minute rest break, the only break that he received during his eight-hour work shift.
He stated that the CBP office at Cargo City had a room with a refrigerator and a microwave, but
there were no restaurants or vending machines in the warehouse where he was working.
Appellant indicated that none of the officers who worked at Cargo City were told that they had to
bring their lunch to work and asserted that he went to the closest place to obtain food utilizing
the most direct route.
Counsel also produced a November 26, 2013 letter in which he further argued that
appellant’s April 18, 2013 accident occurred in the performance of duty. He indicated that the
case D.T.,5 which involved a Transportation Security Administration officer who had an accident
after he left his immediate work area while on a paid break, stood for the proposition that such an
employee could still be considered on the premises of the employing establishment depending on
4

Docket No. 10-1723 (issued August 23, 2011).

5

Docket No. 07-985 (issued October 22, 2008).

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the particular facts of the case. Counsel recited portions of D.T. and stated, “Accordingly, it
appears that [appellant] did not stray from the [employing establishment’s] premises based upon
the unique circumstances of his temporary work location in office space furnished to CBP at
Cargo City.” Citing the case of Theresa B.L. Grissom (Thomas H. Grissom),6 counsel asserted
that an alternative basis of approving appellant’s claim could be based on a finding that he was
on temporary duty (TDY) at the time of his accident on April 18, 2013. He stated that this case
shows that, when an employee is in TDY status, coverage extends to all of the ordinary incidents
of the errand, which the employing establishment would normally contemplate as occurring in
the course of it. Counsel argued that if appellant had to leave the CBP office at Cargo City to
obtain lunch, that meant that the accident sustained during the trip was compensable.
In a February 24, 2014 decision, the hearing representative affirmed OWCP’s June 7,
2013 decision finding that appellant had failed to establish an injury in performance of duty on
April 18, 2013. She noted that appellant was not on the premises of the employing establishment
at the time of his April 18, 2013 accident and found that the proximity rule did not apply such
that the premises were extended to the site of his accident. The hearing representative indicated
that he was returning from his lunch break at the time of his accident and that he was not
engaged in activities incidental to his work duties.
LEGAL PRECEDENT
FECA provides for the payment of compensation for the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.7 The phrase
sustained while in the performance of duty in FECA is regarded as the equivalent of the
commonly found requisite in workers’ compensation law of arising out of and in the course of
employment.8
To arise in the course of employment, an injury must occur at a time when the employee
may reasonably be stated to be engaged in the master’s business, at a place where he may
reasonably be expected to be in connection with the employment and while he was reasonably
fulfilling the duties of his employment or engaged in doing something incidental thereto.9 In
deciding whether an injury is covered by FECA, the test is whether, under all the circumstances,
a causal relationship exists between the employment itself or the conditions under which it is
required to be performed and the resultant injury.10
The Board has recognized a general principle, called the premises doctrine, that offpremises injuries sustained by employees having fixed hours and places of work while going to
or coming from work or during a lunch period, are not compensable, as they do not arise out of

6

18 ECAB 193 (1966).

7

5 U.S.C. § 8102(a).

8

Valerie C. Boward, 50 ECAB 126 (1998).

9

R.A., 59 ECAB 581 (2008); Mary Keszler, 38 ECAB 735 (1987).

10

Mark Love, 52 ECAB 490 (2001).

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and in the course of employment. Rather, such injuries are merely the ordinary, nonemployment
hazards of the journey itself, which are shared by all travelers, subject to certain exceptions.11
Exceptions to the premises doctrine have been made to protect activities that are so
closely related to the employment itself as to be incidental thereto,12 or which are in the nature of
necessary personal comfort or ministration.13 The Board has also found that the course of
employment should extend to any injury that occurred at a point where the employee was within
the range of dangers associated with the employment.14 This principle is called the proximity
rule and the most common ground of extending coverage is that the off-premises point at which
the injury occurred lies on the only route or at least on the normal route, which employees must
traverse to reach the premises and that therefore the special hazards of that route become the
hazards of the employment.15 This exception contains two components. The first is the presence
of a special hazard at the particular off-premises point. The second is the close association of the
access route with the premises, so far as going and coming are concerned. The main
consideration in applying this rule is whether the conditions giving rise to the injury are causally
connected to the employment.16
ANALYSIS
On April 24, 2013 appellant filed a traumatic injury claim alleging that on April 18, 2013
at 11:45 a.m. he sustained a work-related fracture of the radial head of his right elbow and
scrapes on his left hand. Regarding the cause of the claimed injury, he stated, “While on a paid
20 minute break, I had walked across the street to get something to eat. While returning with my
food I was stepping over an appox. 3 ft. high metal barrier when I tripped over the barrier and
landed face first onto the pavement.” Appellant noted that his April 18, 2013 accident occurred
approximately 15 feet from the property line of the CBP office in Cargo City at a guardrail
separating a two-lane road from the property line of One International Plaza. He indicated that
he had been assigned on that date to the CBP office in Cargo City, Philadelphia International
Airport, rather than to his normal-duty station in Terminal A West on the grounds of the
Philadelphia International Airport. Appellant stated that, during the normal course of duty, he
was entitled to a 20-minute paid break, the only break he was allowed to take during his eighthour work shift. Because the CBP office did not have any refreshment, dining, or vending
facilities, he walked to a cafeteria at One International Plaza during his 20-minute break.17

11

V.P., Docket No. 13-74 (issued July 1, 2013); M.L., Docket No. 12-286 (issued June 4, 2012); John M. Byrd,
53 ECAB 684 (2002).
12

See Maryann Battista, 50 ECAB 343 (1999) (activities such as delivering a bad check list and checking on a
customer’s telephone were incidental to employee’s listed duties).
13

J.L., Docket No. 14-368 (issued August 22, 2014).

14

R.O., Docket No. 08-2088 (issued February 18, 2011).

15

Shirley Borgos, 31 ECAB 222 (1979).

16

See supra note 10.

17

Appellant also indicated that he had brought food to work but did not eat it because it appeared to be tainted.

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Appellant stated that at the time of his fall he was in full uniform while wearing his duty belt and
agency weapon and that he still was “on the clock” in a paid break status.
In this case, appellant sustained a fall on April 18, 2013 while on a paid break in an area
that was not on the employing establishment premises. On April 18, 2013 he was assigned to the
CBP office in Cargo City, an area on the grounds of the employing establishment premises at the
Philadelphia International Airport.18 Appellant fell while climbing over a guardrail which was
adjacent to an access road, which in turn was near the outer boundaries of the employing
establishment premises.
The Board has held that, even if a given public area were the customary means of access
to the employing establishment for its employees, this would not alter the public nature of the
area or render it a part of the employing establishment’s premises.19 There is no evidence to
support that the use of the area where appellant fell on April 18, 2013 was restricted to the
employees of the employing establishment or that the employing establishment owned, operated
or maintained the area where the incident occurred. The off-premises area was open to the
general public. The Board finds that the hazard that caused appellant’s injury, a guardrail
adjacent to an access road, is a hazard commonly faced by all pedestrians. Therefore, there was
no special hazard at the off-premises point and the premises did not extend to this area under the
principles of the proximity rule.20 Before OWCP and on appeal, counsel argued that the Board
case D.T.,21 showed that the premises of the employing establishment extended to the area where
he was injured on April 18, 2013. However, counsel’s reliance on this case is misplaced as the
Board merely found in D.T. that further development of the evidence was necessary to determine
whether there was an extension of the employing establishment premises in that case. The facts
of the case do not shed any light on the circumstances of the present case.
Citing the case of Theresa B.L. Grissom (Thomas H. Grissom),22 counsel asserted that an
alternative basis of approving appellant’s claim could be based on a finding that appellant was on
TDY at the time of his accident on April 18, 2013. He stated that this case shows that, when an
employee is in TDY status, coverage extends to all of the ordinary incidents of the errand, which
the employing establishment would normally contemplate as occurring in the course of it.
However, there is no indication that appellant was on TDY status on April 18, 2013 and the
principles of Grissom and other TDY cases do not apply to appellant’s circumstances.23
Moreover, the evidence of record does not establish that appellant was engaged on any special
18

Appellant’s usual duty station was in Terminal A West on the grounds of the Philadelphia International Airport.

19

See R.O., supra note 14.

20

See supra notes 14 through 16.

21

See supra note 5.

22

See supra note 6.

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The evidence reveals that on April 18, 2013 appellant was assigned to another part of the employing
establishment premises, which was about a half mile away from his normal-duty station located on the same
premises. TDY status typically involves travel of some distance to another work site rather than, as in this case,
assignment to another part of a given work premises. See Federal (FECA) Procedure Manual, Part 2 -- Claims,
Performance of Duty, Chapter 2.804.5(d) (August 1992).

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errand when he left the premises to retrieve food. There is no evidence which would establish
that his journey to obtain food on the date of injury was an integral part of any errand or special
task either expressly or impliedly agreed to by the employing establishment. He indicated that
he was in uniform and “on call” at the time of his accident on April 18, 2013, but there is no
evidence that he was responding to a work-related call or otherwise performing work duties or
any special work tasks at the time of his fall.
On appeal counsel also argued that principles enunciated in B.P.24 were applicable
because an injury could be covered in some circumstances where an employee off the premises
was on a paid break, on a brief errand, and acted with the consent of the employing
establishment. He indicated that current situations, which fall under the category of personal
comfort and ministration, included going off premises to get coffee when no coffee was available
in the building and taking a smoke break adjacent to the office building when smoking was not
allowed on the premises.
The Board finds that counsel is correct in stating that the cases pertaining to seeking
personal comfort and ministration off the employing establishment premises while on a paid
break apply to appellant’s circumstances on April 18, 2013. There is no dispute that appellant
was on a 20-minute paid break when he went off the employing establishment premises to
retrieve food.25
The Board has issued a number of decisions regarding off-premises injuries of workers
who had left the premises to seek personal comfort or ministration. In an early case, Helen L.
Gunderson,26 the employee was injured off the premises of the employing establishment while
on her way to get coffee on her morning break. The evidence established that the employee was
on a paid break at the time of her fall, that coffee was not available on the premises, and that her
leaving the premises was in accordance with past practice and was done with the knowledge and
consent of the employing establishment management. Based on these factors, the Board held
that the injury was sustained in the performance of duty.
In Roma A. Mortenson-Kindschi,27 the employee was injured off the premises of the
employing establishment when she slipped and fell on ice during a smoking break. The injury
occurred a few steps into a parking area that was adjacent to the back doors of the employing
establishment building. The employee was on an authorized break in accordance with past
practice and with the knowledge and consent of the employing establishment. The Board found
that this activity was not of such a nature to take her out of the course of employment as such
smoking breaks were condoned by the employing establishment and thus the activity was
considered similar to activities that occur for personal comfort and ministration.

24

Docket No. 14-411 (issued July 17, 2014).

25

OWCP improperly suggested that appellant’s situation fell under the principles for employees who leave the
employing establishment premises for unpaid lunch breaks. See supra note 11.
26

Helen Gunderson, 7 ECAB 288 (1954).

27

57 ECAB 418 (2006).

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In some cases, the Board denied coverage when the employee’s quest off premises for
personal comfort and ministration was not consented to by the employing establishment. For
example, in Harris Cohen,28 the employee was injured in an off-premises accident while he was
returning from getting coffee. The evidence established that there were several coffee machines
in appellant’s office building, including one near appellant’s swing room. The employing
establishment had a posted rule that employees were not permitted to leave the building during
rest, coffee, or relief periods. The Board held that the employee’s injury did not occur in the
performance of duty because his off-premises activities were neither accepted nor approved by
the employing establishment and were not in accordance with any generally accepted past
practice. In James G. Pimento,29 the employee suffered injury in an automobile accident when
he left the employing establishment premises to get coffee. The Board upheld OWCP’s denial of
the claim noting the employing establishment explicitly did not allow employees to leave the
premises for breaks and that the employee had not shown that the employing establishment
consented to his actions.
These cases make clear that a claimant’s journey away from the employing establishment
premises to seek personal comfort and ministration would be covered under FECA if it could be
determined that the employing establishment gave consent to such action.
The Board finds that the case is not in posture regarding whether appellant sustained an
injury in performance of duty on April 18, 2013. Given the present evidence of record, it
remains unclear how the principles of the Helen L. Gunderson line of cases would be applied to
the present case. The employing establishment did not provide a clear indication of whether
traveling off premises for food was an action to which it consented. It merely indicated in its
response to an OWCP query that the CBP office at Cargo City had a break area with a table and
chairs, refrigerator, and microwave for employees to prepare food. Appellant has asserted that
the employing establishment did not place any restrictions on where he could go or what he
could do during his paid break period. In addition, a coworker asserted that it was understood
that he and his coworkers were allowed to take a 20-minute “on the clock” break during which
they could leave Cargo City and have their meals.30 However, without a clear statement on this
matter from the employing establishment, the record remains uncertain with respect to whether
there was any prohibition to leaving the premises or whether the employing establishment
consented to off premises trips for food and other forms of personal comfort and ministration.
For these reasons, the case is not in posture for decision regarding whether appellant
sustained an injury in the performance of duty on April 18, 2013. The case should be remanded
to OWCP for further development, to include an attempt to obtain information from the
employing establishment and appellant as to whether the type of action appellant engaged in at
the time of his claimed April 18, 2013 work injury, i.e., retrieving food from an area just outside
the boundaries of the employing establishment premises, had either been approved or

28

8 ECAB 339 (1976).

29

Docket No. 06-598 (issued June 15, 2006).

30

Both appellant and the coworker asserted that there was no opportunity in their workplace at Cargo City to
purchase food or refreshments.

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prohibited.31 After carrying out this development, OWCP shall issue an appropriate decision
regarding whether appellant sustained an injury in the performance of duty on April 18, 2013.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
sustained an injury in the performance of duty on April 18, 2013.
ORDER
IT IS HEREBY ORDERED THAT the February 24, 2014 merit decision of the Office
of Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: July 8, 2015
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

31

In carrying out this development, information should be requested about past practice and the employing
establishment’s knowledge of and reaction to such practice.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Winder, GA, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 17-1376
Issued: September 22, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 5, 2017 appellant filed a timely appeal from a May 15, 2017 merit 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
ISSUE
The issue is whether appellant met her burden of proof to establish an injury causally
related to a February 17, 2017 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence to OWCP after the May 15, 2017 decision was
issued. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision. Therefore, the Board lacks jurisdiction to review this additional evidence. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On February 22, 2017 appellant, a 56-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that she injured “her shoulder” on February 17, 2017 while she was
delivering a parcel. She stated that her shoe caught a ridge in a driveway and she “fell on her
shoulder.” Appellant stopped work on February 21, 2017, and resumed work the following day
with restrictions.
In a February 22, 2017 report, Dr. Darrell Scales, a Board-certified orthopedic surgeon,
asserted that appellant was seen for right shoulder pain and noted that she “has had this in the
past.” He stated that she recalled back in 2008 or 2009 that she was being seen at Athens
Orthopedic and had steroid injections with Center for Physical Therapy and got better.
Appellant had slowly gotten worse over the past year or so and had a little bit of worsening over
the Christmas holiday when she delivered a lot of packages at work. Dr. Scales indicated that
more recently, she had an acute injury on February 17, 2017 when she was going into a
driveway, caught her foot, and then fell forward. Appellant fell onto both arms and upper
extremities while carrying packages. Dr. Scales reviewed her right shoulder x-ray and noted that
there were some changes to the greater tuberosity to suggest previous rotator cuff tendinitis and
insertional tendinitis. His assessment of appellant’s x-ray was “probable history of rotator cuff
tendinitis to the right shoulder, otherwise normal radiographs of the right shoulder.” Dr. Scales
indicated that she had what appeared to be a work-related injury of the right shoulder with
“possibility” of a rotator cuff tear versus internal derangement. He ordered a right shoulder
magnetic resonance imaging scan, and advised that appellant was unable to work on
February 21, 2017 because of pain due to a right shoulder injury.
In a February 22, 2017 duty status report (Form CA-17), Dr. Scales diagnosed right
shoulder pain and advised that appellant could return to work with restrictions.
On February 24, 2017 appellant accepted a limited-duty job offer as a modified rural
carrier, which required up to eight hours of sitting and one to two hours of walking. Her duties
included processing second notices, answering telephones, and performing administrative duties
as needed.
In an April 7, 2017 claim development letter, OWCP advised appellant that the medical
evidence received thus far was insufficient to establish entitlement to compensation benefits. It
requested a narrative medical report from appellant’s attending physician, and afforded her at
least 30 days to submit the required medical evidence.
In response, appellant resubmitted Dr. Scales’ February 22, 2017 report.
By decision dated May 15, 2017, OWCP accepted that the February 17, 2017
employment incident occurred as alleged, but denied appellant’s traumatic injury claim because
she failed to submit medical evidence containing a diagnosis in connection with the injury or
event(s). Thus, it concluded that she had not established the medical component of fact of
injury.

2

LEGAL PRECEDENT
A claimant seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence, including 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 injury.4
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. 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.5 The second component is whether the employment incident caused a
personal injury.6 An employee may establish that an injury occurred in the performance of duty
as alleged, but fail to establish that the disability or specific condition for which compensation is
being claimed is causally related to the injury.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical evidence. 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 the specific employment factors
identified by the employee.8
ANALYSIS
OWCP accepted that the February 17, 2017 employment incident occurred as alleged.
The issue is whether appellant sustained an injury as a result. The Board finds that she has not
meet her burden of proof to establish that she sustained an injury related to the February 17, 2017
employment incident.
In his February 22, 2017 report, Dr. Scales diagnosed right shoulder pain and noted the
“possibility” of a rotator cuff tear versus internal derangement. The Board finds that Dr. Scales’
3

See supra note 1.

4

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

5

Elaine Pendleton, 40 ECAB 1143 (1989).

6

John J. Carlone, 41 ECAB 354 (1989). Causal relationship is a medical question that generally requires
rationalized medical opinion evidence to resolve the issue. See Robert G. Morris, 48 ECAB 238 (1996). A
physician’s opinion on whether there is a causal relationship between the diagnosed condition and the implicated
employment factor(s) must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB
345, 352 (1989). 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 appellant’s specific employment factor(s). Id.
7

Shirley A. Temple, 48 ECAB 404, 407 (1997).

8

See O.W., Docket No. 09-2110 (issued April 22, 2010).

3

notation of right shoulder pain is a description of a symptom rather than a clear diagnosis of the
medical condition.9 The Board further finds that his mention of the “possibility” of a rotator cuff
tear or internal derangement is speculative and equivocal in nature.10 For these reasons,
Dr. Scales’ February 22, 2017 report and Form CA-17 are insufficient to establish a medical
diagnosis in connection with appellant’s February 17, 2017 work-related fall. Consequently,
appellant has not met her burden of proof to establish her claim because she has not submitted
competent medical evidence addressing how the February 17, 2017 work incident caused or
resulted in an injury.
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.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an injury
causally related to a February 17, 2017 employment incident.

9

See P.S., Docket No. 12-1601 (issued January 2, 2013); C.F., Docket No. 08-1102 (issued October 10, 2008).

10

Medical opinions that are speculative or equivocal in character are of little probative value. See Kathy A.
Kelley, 55 ECAB 206 (2004).

4

ORDER
IT IS HEREBY ORDERED THAT the May 15, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 22, 2017
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.C., Appellant
and
DEPARTMENT OF VETERAN AFFAIRS,
ATLANTA VETERANS ADMINISTRATION
MEDICAL CENTER, Decatur, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 19-0507
Issued: August 7, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On January 8, 2019 appellant filed a timely appeal from a July 13, 2018 merit decision and
a November 14, 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 a diagnosed
medical condition causally related to the accepted April 24, 2018 employment incident; and

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the November 14, 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) whether OWCP properly denied appellant’s request for reconsideration of the merits of his
claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On April 30, 2018 appellant, then a 44-year-old motor vehicle operator, filed a traumatic
injury claim (Form CA-1) alleging that on April 24, 2018 he injured his neck, back, and shoulder
during a motor vehicle accident which occurred while in the performance of duty. On the reverse
side of the claim form the employing establishment indicated that appellant stopped work on the
date of injury.
In a development letter dated June 1, 2018, OWCP informed appellant that the evidence of
record was insufficient to establish his claim. It advised him of the type of factual and medical
evidence needed, and provided a questionnaire for completion. OWCP afforded appellant 30 days
to submit the necessary evidence.
OWCP received an April 24, 2018 police report regarding the motor vehicle incident.
By decision dated July 13, 2018, OWCP denied appellant’s claim finding that the evidence
of record did not provide a firm medical diagnosis in connection with the accepted April 24, 2018
employment incident as no medical evidence had been submitted.
On October 19, 2018 OWCP received an employing establishment incident report which
indicated that appellant had sustained shoulder and lower back/buttocks sprain/strain on April 24,
2018 when his vehicle was hit by an oncoming vehicle that ran a stop light and subsequently
flipped.
On November 5, 2018 appellant requested reconsideration of OWCP’s July 13, 2018
decision. He did not submit evidence with his request.
By decision dated November 14, 2018, OWCP denied appellant’s request for
reconsideration of the merits of his claim.
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,3 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

3
C.B., Docket No. 18-0071 (issued May 13, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59
ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

2

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
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.6 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 medical evidence to establish that the employment incident caused a personal
injury.8
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence.9 Rationalized medical opinion evidence is
medical evidence which includes a physician’s rationalized opinion on whether there is causal
relationship between the employee’s diagnosed condition and the accepted employment incident.
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 the specific
employment incident identified by the employee.10
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.11
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish a diagnosed
medical condition causally related to the accepted April 24, 2018 employment incident.

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

C.B., supra note 3; 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); T.H., 59 ECAB 388, 393-94 (2008).

7

C.B., supra note 3; D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB 1143.

8

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

9

N.C., Docket No. 19-0299 (issued June 24, 2019); M.B., Docket No. 17-1999 (issued November 13, 2018).

10

N.C., id.; M.L., Docket No. 18-1605 (issued February 26, 2019).

11

C.C., Docket No. 18-1099 (issued December 21, 2018).

3

In its June 1, 2018 development letter, OWCP advised appellant of the type of medical
evidence necessary to establish his claim and afforded him 30 days to submit the requested
evidence. However, appellant did not submit any medical evidence in support of his claim.12
The Board finds that, because the evidence of record at the time of OWCP’s July 13, 2018
decision was devoid of medical evidence containing a specific diagnosis in connection with the
accepted April 24, 2018 employment incident, appellant has not met his burden of proof to
establish his claim.
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 8128 (a) of FECA does not entitle a claimant the review of an OWCP decision as
a matter of right.13 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.14 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.15
A timely application for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously considered
by OWCP; or (3) constitute relevant and pertinent new evidence not previously considered by
OWCP.16 Section 10.608(b) of OWCP’s regulations provide that when an application for
reconsideration does not meet at least one of the three requirements enumerated under section
10.606(b)(3), OWCP will deny the application for reconsideration without reopening the case for
a review on the merits.17
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
12

Supra note 8.

13

5 U.S.C. § 8128(a).

14

20 C.F.R. § 10.607.

15

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the integrated Federal
Employees Compensation System. Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.4b.
16

B.H., Docket No. 19-0169 (issued June 24, 2019); D.K., 59 ECAB 141 (2007).

17

P.H., Docket No. 18-1020 (issued November 1, 2018); K.H., 59 ECAB 495 (2008).

4

The Board finds that appellant has not shown that OWCP erroneously applied or
interpreted a specific point of law. Moreover, appellant has not advanced a relevant legal argument
not previously considered. As such, he is not entitled to a review of the merits of his claim based
on the first and second above-noted requirements under section 10.606(b)(3).
The underlying issue in this case is medical in nature. Following the July 13, 2018
decision, OWCP received an employing establishment incident report, but appellant did not submit
any medical evidence along with his November 5, 2018 request for reconsideration. Because
appellant has not submitted relevant and pertinent new evidence not previously considered by
OWCP, he is not entitled to a review of the merits of his claim based on the third above-noted
requirement under section 10.606(b)(3).
The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a diagnosed
medical condition causally related to the accepted April 24, 2018 employment incident. The Board
further finds that OWCP properly denied appellant’s request for reconsideration of the merits of
his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the November 14 and July 13, 2018 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: August 7, 2019
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

Janice B. Askin, Judge
Employees’ Compensation Appeals Board
5


United States Department of Labor
Employees’ Compensation Appeals Board

_________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
New York, NY, Employer
)
___________________________________________ )
D.D., Appellant

Appearances:
Thomas E. Harkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-1916
Issued: February 24, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 19, 2013 appellant filed a timely appeal from the June 17, 2013 merit 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.
ISSUE
The issue is whether appellant met his burden of proof to establish traumatic injury in the
performance of duty on August 16, 2012.
FACTUAL HISTORY
On August 16, 2012 appellant, then a 37-year-old mail carrier, filed a traumatic injury
claim alleging that, on that date, he fell after he stepped in a hole in front of his mail truck. He
indicated that he twisted his left ankle, banged his right elbow, left knee and jammed his right
1

5 U.S.C. § 8101 et seq.

shoulder in the performance of duty. Appellant did not initially stop work.
accompanied his claim and described the incident of stepping in the hole.

A statement

OWCP received several x-ray reports dated August 17, 2012 which were read by
Dr. Jay D. Scheikowitz, a Board-certified diagnostic radiologist. They included a lumbosacral
spine x-ray that showed degenerative disc disease; a left ankle x-ray, which revealed no acute
fracture; a left knee x-ray, which revealed mild degenerative joint disease; a right shoulder x-ray,
which revealed no acute fracture and mild degenerative joint disease; and a right elbow x-ray,
which showed no fracture. An August 21, 2012 magnetic resonance image (MRI) scan of the
left ankle without contrast, read by Dr. Jonathan D. Klug, a Board-certified diagnostic
radiologist, revealed a small chronic intrafascial tear in the medial condensation of the plantar
aponeurosis and mild peroneus longus tendinosis.
In an August 23, 2012 report, Dr. Michael J. Angel, a Board-certified orthopedic surgeon,
noted that appellant sustained an injury at work which occurred when he stepped in a pothole.
He examined appellant’s left ankle and x-rays of the left ankle. Dr. Angel determined that there
was no deformity, atrophy, ecchymosis, swelling or scars of the ankle. He noted that appellant
had full range of motion, normal sensation and a normal examination. Dr. Angel diagnosed left
ankle peroneal tendon tear/tendinitis, medial plantar fascia partial tear and prescribed a Vectra
Air Walker. In an August 23, 2012 disability certificate, he placed appellant off work until
further notice. In an August 29, 2012 attending physician’s report, Dr. Angel noted that
appellant stepped in a pothole at work and sustained a left ankle peroneal tendon tear and a
medial plantar fascia partial tear. He checked the box “yes” in response to whether he believed
the condition was caused or aggravated by an employment activity. Dr. Angel indicated that
appellant was totally disabled from August 16 to September 16, 2012 and partially disabled from
September 16 to October 16, 2012. In a September 14, 2012 report, he noted that appellant
returned for follow up. Dr. Angel examined appellant and diagnosed left ankle peroneal
tendinitis and left foot plantar fasciitis. He recommended physician therapy and indicated that
appellant should remain off work until further notice. Dr. Angel also completed a disability
certificate on September 14, 2012 placing appellant off work. OWCP also received physical
therapy notes.
By letter dated October 5, 2012, OWCP advised appellant that additional factual and
medical evidence was needed. It noted that the claim initially appeared to be a minor injury that
resulted in little or no lost time from work. OWCP advised appellant that payment of a limited
amount of medical expenses was administratively provided because the employing establishment
did not controvert continuation of pay or challenge the case. It advised him that the case was
being reopened and requested additional factual and medical evidence within 30 days.
In an October 17, 2012 disability certificate, Dr. Angel placed appellant off work until
further notice. OWCP also received additional physical therapy notes.
By decision dated November 8, 2012, OWCP denied appellant’s claim on the grounds
that the medical evidence did not support that a medical condition was caused by the accepted
work event.

2

In an October 17, 2012 report, Dr. Angel noted that appellant was seen for follow up of
the left ankle peroneal tendinitis/partial tear, plantar fasciitis/partial tear. He indicated that
appellant related that he had completed physical therapy and was no longer allotted further visits.
Dr. Angel advised that appellant was unable to return to work because of pain. He noted that
appellant related that there was no available light duty and appellant had to stand for long periods
of time. Dr. Angel examined appellant and diagnosed left ankle peroneal tendinitis/partial tear
and left foot plantar fasciitis/partial tear. He advised that appellant remained off work until a
reevaluation in one month. In a November 5, 2012, attending physician’s report, Dr. Angel
noted findings and diagnoses and checked a box “yes” to indicate that appellant condition was
caused or aggravated by work activity.
On April 3, 2013 counsel requested reconsideration. He argued that appellant submitted
sufficient factual and medical evidence to establish his claim.
In a February 27, 2013 report, Dr. Adam Cirlincione, a podiatrist, noted that appellant
was injured with a twist of his ankle on August 16, 2012 with his job as a letter carrier. He
advised that appellant had x-rays which were negative for fracture and received treatment in the
form of a boot and physical therapy with no improvement. Dr. Cirlincione indicated that he first
saw appellant on November 15, 2012 and explained that the examination revealed antalgic gait
with weakness to the peroneal region and an inability to single limb raise on the left side. He
advised that appellant failed to improve despite previous care, and he had daily pain with
antalgic gait and weakness. Dr. Cirlincione recommended aggressive attempts at bracing or
surgery to evaluate his peroneal tendons and posterior tibial tendon for tears. He indicated that
appellant was unable to work due to pain, weakness and limited motion and antalgic gait. In a
March 28, 2013 report, Dr. Cirlincione opined that appellant’s disability was causally related to
the August 16, 2012 incident.
By decision dated June 17, 2013, OWCP denied modification of the November 8, 2012
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 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 of FECA3 and that an injury was sustained in the performance of duty.4 These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.5

2

Id. at §§ 8101-8193.

3

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

4

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

5

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

3

To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. 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.6 In some traumatic injury cases, this
component can be established by an employee’s uncontroverted statement on the Form CA-1.7
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
Rationalized medical opinion evidence is generally required to establish causal
relationship. 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
ANALYSIS
There is no dispute that appellant stepped in a hole and fell in front of his mail truck on
August 16, 2012. The Board finds that the first component of fact of injury, the claimed
incident, that he fell after he stepped in a hole in front of his mail truck, occurred as alleged.
However, the medical evidence is insufficient to establish the second component of fact
of injury, that the employment incident caused an injury. The medical evidence contains
insufficient reasoning explaining how the specific employment incident on August 16, 2012
caused or aggravated an injury.
In an August 23, 2012 report, Dr. Angel stated that appellant was injured at work when
he stepped in a pothole.
He noted findings and diagnosed left ankle peroneal tendon
tear/tendinitis and medial plantar fascia partial tear. Although Dr. Angel provides conclusory
support for causal relationship, he did not provide sufficient medical reasoning to explain the
basis of his conclusion that stepping in a hole could have caused or aggravated the diagnosed
condition. In his August 29 and November 5, 2012 attending physician’s report, he supported
causal relationship by checking a box “yes” that appellant’s condition was employment related.
However, this is insufficient to establish fact of injury, as the checking of a box yes in a form
report, without additional explanation or rationale, is not sufficient to establish causal
relationship.10 Other reports from Dr. Angel are also insufficient to establish the claim as they
provided no opinion on causal relationship. Medical evidence which does not offer any opinion
6

Julie B. Hawkins, 38 ECAB 393, 396 (1987); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of
Injury, Chapter 2.803.2a (June 1995).
7

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

8

See id. For a definition of the term “traumatic injury,” see 20 C.F.R. § 10.5(ee).

9

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

10

See Barbara J. Williams, 40 ECAB 649, 656 (1989).

4

regarding the cause of an employee’s condition is of limited probative value on the issue of
causal relationship.11
In a February 27, 2013 report, Dr. Cirlincione noted findings and advised that appellant
was injured with a twist of his ankle at work on August 16, 2012. In a March 28, 2013 report, he
opined that appellant’s disability was causally related to the August 16, 2012 incident. However,
Dr. Cirlincione did not explain how he arrived at this conclusion. The Board has long held that
medical opinions not containing rationale on causal relation are entitled to little probative value
and are insufficient to meet appellant’s burden of proof.12 Neither Dr. Angel nor Dr. Cirlincione
explained why the August 16, 2012 work incident would have caused or aggravated any of the
diagnosed medical conditions. Consequently, their reports are insufficient to establish the claim.
Other medical evidence of record is of limited probative value as it did not provide an
opinion on the causal relationship between the August 16, 2012 work incident and the diagnosed
medical conditions. OWCP also received physical therapy notes. However, records from a
physical therapist do not constitute competent medical opinion as a physical therapist is not a
physician as defined under FECA.13 Thus, the physical therapy records are of no probative
medical value.14
On appeal, counsel argued that the evidence submitted in his reconsideration request
satisfied the burden of proof. However, as noted above the issue is medical in nature and the
medical evidence is insufficient to establish his claim.
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.
CONCLUSION
The Board finds that appellant did not meet his burden of proof in establishing that he
sustained a traumatic injury in the performance of duty on August 16, 2012.

11

Michael E. Smith, 50 ECAB 313 (1999).

12

Carolyn F. Allen, 47 ECAB 240 (1995).

13

A.C., Docket No. 08-1453 (issued November 18, 2008). See 5 U.S.C. § 8101(2) (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 the applicable state law).
14

Jane A. White, 34 ECAB 515, 518 (1983).

5

ORDER
IT IS HEREBY ORDERED THAT the June 17, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 24, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Baltimore, MD, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 20-1322
Issued: May 27, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 22, 2020 appellant filed a timely appeal from an April 28, 2020 merit 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 OWCP properly determined that appellant received an
overpayment of compensation in the amount of $68,988.07 because she continued to receive
FECA wage-loss compensation for the period July 22, 2018 through February 29, 2020 following
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the April 28, 2020 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 evidence for
the first time on appeal. Id.

the termination of her benefits; and (2) whether it properly determined that appellant was at fault
in the creation of the overpayment, thereby precluding waiver of recovery of the overpayment.
FACTUAL HISTORY
On December 16, 1989 appellant, then a 36-year-old letter sorter, filed an occupational
disease claim (Form CA-2) alleging that she sustained bilateral hand conditions due to the
repetitive use of her hands while the performance of duty. OWCP accepted her claim for bilateral
hand and wrist tenosynovitis, bilateral carpal tunnel syndrome, left lateral epicondylitis, right
elbow and forearm sprain, and strain of an unspecified muscle, fascia and tendon at the right wrist
and hand level. The record reflects that OWCP paid appellant wage-loss compensation on the
periodic rolls as of February 2, 2002.
On June 4, 2018 OWCP issued appellant a proposed notice of termination of her wage-loss
compensation and medical benefits, as the weight of the evidence established that she no longer
had any employment-related residuals or disability due to her accepted employment injuries. It
afforded her 30 days to submit additional evidence or argument if she disagreed with the proposed
termination. No response was received.
By decision dated July 6, 2018, OWCP terminated appellant’s wage-loss compensation
and medical benefits, effective July 22, 2018. However, it continued to pay her wage-loss
compensation benefits.3
On July 13, 2018 appellant requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review. The hearing was held on December 20, 2018. By decision dated
March 6, 2019, OWCP’s hearing representative affirmed OWCP’s July 6, 2018 termination
decision.
A compensation termination record dated March 12, 2020 reflects that appellant received
an overpayment of compensation for the period July 22, 2018 through February 29, 2020. It
indicated that OWCP had not terminated appellant’s compensation as ordered in its July 6, 2018
decision. A March 27, 2020 compensation payment history sheet documented that OWCP
continued to pay appellant wage-loss compensation from July 22, 2018 through February 29, 2020
and calculated that the overpayment totaled $68,988.07.
A March 13, 2020 OWCP intra-office memorandum indicated that appellant was overpaid
because OWCP did not terminate her compensation as ordered in its July 6, 2018 termination
decision. It included information about her compensation payments from July 22, 2018 through
February 29, 2020 and calculated that she received an overpayment of $68,988.07.
On March 27, 2020 OWCP issued a preliminary overpayment determination and
memorandum, which indicated that appellant was overpaid for the period July 22, 2018 through
3

On August 18, 2018 appellant received a payment via electronic funds transfer (EFT) in the amount of $3,249.00
for the period July 22 through August 18, 2018. On September15, 2018 she received a payment via EFT in the amount
of $3,249.00 for the period August 19 through September 15, 2018. OWCP continued to pay appellant compensation
on the periodic rolls through February 29, 2020.

2

February 29, 2020 because it continued to pay her compensation after its July 6, 2018 decision
terminating appellant’s compensation, effective July 22, 2018. It calculated that she received an
overpayment of $68,988.07. OWCP further advised that it found that appellant was at fault in the
creation of the overpayment because she accepted payments that she knew or reasonably should
have known to be incorrect. It requested that she complete the enclosed overpayment recovery
questionnaire (Form OWCP-20) and submit supporting financial documentation. Additionally,
OWCP notified appellant that within 30 days of the date of the letter she could request a telephone
conference, a final decision based on the written evidence, or a prerecoupment hearing. No
information was received.
By decision dated April 28, 2020, OWCP finalized the preliminary overpayment
determination, finding that appellant had received an overpayment of compensation in the amount
of $68,988.07, for the period July 22, 2018 through February 29, 2020, because it continued to pay
her wage-loss compensation through February 29, 2020 despite terminating appellant’s
compensation benefits in its July 6, 2018 decision, effective July 22, 2018. It found that she was
at fault in the creation of the overpayment because she accepted payment that she knew or should
have known to be incorrect. OWCP explained that appellant received a compensation payment
deposited by EFT and over 30 days had elapsed since the deposit was made. It additionally stated
that she should have known that the payment was incorrect because the dates overlapped with a
period she worked, specifically August 18, 2018 through February 1, 2020, and more recently
February 29, 2020. OWCP required recovery of the overpayment by requesting that appellant
forward the full amount of the overpayment within 30 days of the date of the decision.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.4
Section 8116 of FECA defines the limitations on the right to receive compensation benefits.
This section of FECA provides that, while an employee is receiving compensation, he or she may
not receive salary, pay, or remuneration of any type from the United States, except in limited
circumstances.5 Section 10.500 of OWCP’s regulations provides that compensation for wage loss
due to disability is available only for any periods during which an employee’s work-related
medical condition prevents him or her from earning the wages earned before the work-related
injury.6
Section 8129(a) of FECA provides that, when an overpayment of compensation has been
made to an individual because of an error of fact or law, adjustment shall be made under regulations

4

Supra note 1 at § 8102.

5

Id. at § 8116(a).

6

20 C.F.R. § 10.500(a).

3

prescribed by the Secretary of Labor by decreasing later payments to which the individual is
entitled.7
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $68,988.07 for the period July 22, 2018 through February 29,
2020 because she continued to receive wage-loss compensation through February 29, 2020 after
her compensation benefits were terminated by OWCP effective July 22, 2018.
The record reflects that OWCP terminated appellant’s wage-loss compensation and
medical benefits in its decision dated July 6, 2018, effective July 22, 2018, and an OWCP hearing
representative affirmed its decision on March 6, 2019. However, appellant continued to receive
wage-loss compensation on the periodic rolls from July 22, 2018 through February 29, 2020.
Thus, the record establishes that she received an overpayment of FECA wage-loss compensation
for the period July 22, 2018 through February 29, 2020.
OWCP calculated that appellant was overpaid $68,988.07 for the period July 22, 2018
through February 29, 2020. The Board has reviewed OWCP’s March 27, 2020 overpayment
memorandum, which provided calculations for the above-noted overpayment and finds that an
overpayment of compensation in the amount of $68,988.07 was created for the period July 22,
2018 through February 29, 2020.
LEGAL PRECEDENT -- ISSUE 2
5 U.S.C. § 8129(b) provides: “Adjustment or recovery by the United States may not be
made when incorrect payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of FECA or would be against equity and good
conscience.”8 A claimant who is at fault in the creation of the overpayment is not entitled to
waiver.9 On the issue of fault 20 C.F.R. § 10.433(a) provides that an individual will be found at
fault if he or she has done any of the following: (1) made an incorrect statement as to a material
fact, which he or she knew or should have known to be incorrect; (2) failed to provide information,
which he or she knew or should have known to be material; or (3) accepted a payment, which he
or she knew or should have known was incorrect.10
Section 10.433(b) of OWCP’s regulations provides that whether or not an individual was
at fault with respect to the creation of an overpayment depends on the circumstances surrounding

7

5 U.S.C. § 8129(a).

8

Id. at § 8129(b).

9

See K.P., Docket No. 19-1151 (issued March 18, 2020); R.G., Docket No. 18-1251 (issued November 26, 2019);
C.Y., Docket No. 18-0263 (issued September 14, 2018).
10

20 C.F.R. § 10.433(a).

4

the overpayment. The degree of care expected may vary with the complexity of those
circumstances and the individual’s capacity to realize that he or she is being overpaid.11
ANALYSIS -- ISSUE 2
The Board finds that appellant was not at fault in creation of the overpayment for the period
July 22 through August 18, 2018.
In cases where a claimant receives compensation through direct deposit, the Board has held
that OWCP must establish that at the time a claimant received the direct deposit in question that
he or she knew or should have known that the payment was incorrect.12 The Board has held that
an employee who receives payments from OWCP in the form of a direct deposit may not be at
fault for the first incorrect deposit into his or her account since the acceptance of the overpayment,
at the time of receipt of the direct deposit, lacks the requisite knowledge.13 Because fault is defined
by what the claimant knew or should have known at the time of acceptance, one of the
consequences of EFT is that the claimant lacks the requisite knowledge at the time of the first
incorrect payment.14 Whether or not OWCP determines that an individual is at fault with respect
to the creation of an overpayment depends on the circumstances surrounding the overpayment.15
It is not appropriate, however, to make a finding that a claimant has accepted an overpayment via
direct deposit until such time as a reasonable person would have been aware that this overpayment
had occurred. This awareness could be established either through documentation such as a bank
statement or notification from OWCP or where a reasonable period of time has passed during
which a claimant could have reviewed independent confirmation of the incorrect payment.16
On August 18, 2018 OWCP paid appellant wage-loss compensation in the amount of
$3,249.00 for the period July 22 through August 18, 2018, even though her entitlement to
compensation benefits had been terminated as of July 22, 2018. The evidence of record does not
establish that, on the date of the first direct deposit of compensation following the termination of
her compensation, appellant knew or should have known that she was accepting a direct deposit
to which she was not entitled. The record does not contain documentation or other evidence to
demonstrate that appellant had knowledge at the time of the August 18, 2018 direct deposit
covering the initial period July 22 through August 18, 2018 that the payment was incorrect or that
a reasonable period of time passed during which she could have reviewed bank statements or been
informed of the incorrect payment. Thus, the Board finds that, when the initial direct deposit was
made, appellant had no knowledge that this direct deposit was incorrect. Appellant, therefore,
cannot be found to be at fault in the acceptance of the initial August 18, 2018 direct deposit. The
11

Id. at § 10.433(b); see also D.M., Docket No. 17-0983 (issued August 3, 2018).

12

S.N., Docket No. 19-1018 (issued November 12, 2019). See Claude T. Green, 42 ECAB 174, 278 (1990).

13

K.K., Docket No. 19-0978 (issued October 21, 2019); see Tammy Craven, 57 ECAB 689 (2006).

14

Id.

15

Id.; see also K.D., Docket No. 13-0451 (issued April 12, 2013).

16

S.N., supra note 12; see K.H., Docket No. 06-0191 (issued October 30, 2006).

5

case must therefore be remanded for OWCP to determine whether she is entitled to waiver of the
recovery of the overpayment for the first incorrect compensation payment made on
August 18, 2018.17
The Board further finds, however, that appellant was at fault in the creation of the
overpayment of compensation for the period August 19, 2018 through February 29, 2020 and is,
therefore, precluded from waiver of recovery of the overpayment for this remaining period.
When OWCP issued the compensation payment on September 15, 2018 covering the
period August 19 through September 15, 2018, appellant should have known that she was no
longer entitled to compensation as OWCP had notified her that her compensation was formally
terminated, effective July 22, 2018. OWCP continued to pay appellant compensation on the
periodic rolls through February 29, 2020. Therefore, the Board finds that she was at fault in the
creation of the remaining period of the overpayment for the period August 19, 2018 through
February 29, 2020 as she knew or should have known at the time of the second incorrect payment
that she was no longer entitled to additional wage-loss compensation. The Board, thus, finds that
appellant was at fault in the creation of the remaining period of the overpayment.18
As appellant’s eligibility for waiver for a portion of the overpayment cannot yet be
determined, on remand she will be granted an opportunity to submit and have OWCP consider
relevant financial evidence on this issue. Following this and all other development deemed
necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $68,988.07 for the period July 22, 2018 through February 29,
2020 because her compensation benefits were terminated by OWCP, effective July 22, 2018, and
she continued to receive compensation benefits through February 29, 2020. With regard to
OWCP’s finding of fault, the Board finds that appellant was not at fault in the creation of the
overpayment for the period July 22 through August 18, 2018, but was at fault in the creation of the
overpayment of compensation for the period August 19 through February 29, 2020 and was,
thereby, precluded from waiver of recovery for that remaining period.

17

E.N., Docket No. 19-1687 (issued May 27, 2020).

18

See T.N., Docket No. 17-0387 (issued November 28, 2018); K.H., supra note 16.

6

ORDER
IT IS HEREBY ORDERED THAT the April 28, 2020 decision of the Office of Workers’
Compensation Programs is affirmed in part and set aside in part, and the case is remanded for
further proceedings consistent with this decision of the Board.
Issued: May 27, 2021
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board

R.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
SHERIDAN VETERANS AFFAIRS MEDICAL
CENTER, Sheridan WY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 21-1382
Issued: March 7, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 15, 2020 1 appellant filed a timely appeal from a February 5, 2020 merit decision
and an April 29, 2020 nonmerit decision of the Office of Workers’ Compensation Programs

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 from February 5, 2020, the date of OWCP’s last decision, was
August 3, 2020. Because using September 9, 2021, 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 filin g. The date of
the U.S. Postal Service postmark is May 15, 2020, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

(OWCP).2 Pursuant to the Federal Employee’s Compensation Act3 (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 diagnosed
medical condition causally related to the accepted August 28, 2019 employment incident; and
(2) whether OWCP properly denied appellant’s request for reconsideration of the merits of his
claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On September 2, 2019 appellant, then a 54-year-old police officer, filed a traumatic injury
claim (Form CA-1) alleging on August 28, 2019 he injured his lower back and was exposed to
blood when escorting and controlling a patient while in the performance of duty. He stopped work
on August 30, 2019. On the reverse of the claim form, appellant’s supervisor acknowledged that
appellant was in the performance of duty.
On August 30, 2019 Melanie Kawalok, a family nurse practitioner, opined that appellant
was partially disabled from work and recommended light duty with lifting restrictions.
In a development letter dated September 18, 2019, OWCP informed appellant of the
deficiencies of his claim. It advised him of the type of additional factual and medical evidence
needed and provided a questionnaire for his completion. OWCP afforded appellant 30 days to
submit the necessary evidence. Appellant did not respond.
By decision dated October 21, 2019, OWCP accepted that the August 18, 2019 incident
occurred as alleged, but denied appellant’s traumatic injury claim, finding that he had not
submitted evidence containing a medical diagnosis in connection with the injury. Consequently,
it found that he had not met the requirements to establish an injury as defined by FECA.
On November 8, 2019 appellant requested reconsideration of the October 21, 2019
decision. He provided the completed September 18, 2019 development questionnaire and asserted
that he did not initially experience low back pain and was more concerned about the blood
exposure that had occurred on the date of injury. Appellant noted that he first sought medical
treatment on September 9, 2019.
Appellant resubmitted the August 30, 2019 note from Ms. Kawalok and provided an
additional September 7, 2019 note that she completed. On September 11, 2019 Sean Schoonover,

2
The Board notes that, following the April 29, 2020 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.
3

5 U.S.C. § 8101et seq.

2

a physician assistant, completed a form report and a work release note. He also complete d form
reports on November 7, 2019.
On February 5, 2020 OWCP denied modification of its October 21, 2019 decision.
OWCP continued to receive evidence. Appellant submitted September 25 and October 28,
2019 notes from Mr. Schoonover who noted that he presented with continued complaints of low
back pain. He also resubmitted copies of Mr. Schoonover’s September 11 and November 7, 2019
notes.
On April 3, 2020 appellant requested reconsideration of OWCP’s February 5, 2020
decision.
By decision dated April 29, 2020, OWCP denied reconsideration of the merits of
appellant’s claim.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA 4 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning FECA, that the claim was timely filed within the applicable time
limitation period of FECA, 5 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. 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 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. 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, 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.8

4

Id.

5

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
6

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
7

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

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).

3

The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 9 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. 10
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted August 28, 2019 employment incident.
In support of his claim, appellant submitted an August 30, 2019 note from Ms. Kawalok,
a family nurse practitioner, as well as September 11 and November 7, 2019 notes from
Mr. Schoonover, a physician assistant. The Board has long held that certain healthcare providers
such as physician assistants and nurse practitioners are not considered qualified physicians as
defined under FECA. 11 Their medical findings, reports and/or opinions, unless cosigned by a
qualified physician, will not suffice for purposes of establishing entitlement to FECA benefits.12
Consequently, the notes from Ms. Kawalok and Mr. Schoonover are insufficient to meet his burden
of proof.13
As the evidence of record is insufficient to establish a diagnosed medical condition causally
related to the accepted August 28, 2019 employment incident, the Board finds that 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.

9

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
10

O.P., Docket No. 19-0445 (issued July 24, 2019); L.H., Docket No. 18-1217 (issued May 3, 2019); S.C., Docket
No. 16-0293 (issued May 10, 2016); A.C., Docket No. 08-1453 (issued November 18, 2008) (as there was no medical
evidence diagnosing an emotional condition, appellant failed to establish a prima facie claim).
Section 8102(2) of FECA provides as follows: “(2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as d efined
by State law.” 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See Federal (FECA) Procedure Manual, Part 2 -- Claims,
Causal Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay
individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion
under FECA); see also E.W., Docket No. 20-0338 (issued October 9, 2020).
11

12

Id.; K.A., Docket No. 18-0999 (issued October 4, 2019); K.W., 59 ECAB 271, 279 (2007).

13

S.E., Docket No. 21-0666 (issued December 28, 2021).

4

LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 14
To require OWCP to reopen a case for merit review, pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.15
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 16 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 17 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 18
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Appellant’s timely request for reconsideration on November 8, 2019 neither alleged nor
demonstrated that OWCP erroneously applied or interpreted a specific point of law. Additionally,
the Board finds that he did not advance a relevant legal argument not previously considered by
OWCP. Consequently, appellant is not entitled to further review of the merits of his claim based
on either the first or second above-noted requirements under 20 C.F.R. § 10.606(b)(3).
The Board further finds that appellant did not submit relevant and pertinent new evidence
not previously considered by OWCP. OWCP previously denied his claim because there was no
medical evidence of record establishing a diagnosed medical condition causally related to the
accepted August 28, 2019 employment incident. In support of his reconsideration request,
14

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 171287 (issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
15

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
16

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of the merit decision for which review is sought. Supra note 11 at Chapter 2.1602.4 (February 2016).
Timeliness is determined by the document receipt date of the request for reconsideration as indicated by the received
date in the Integrated Federal Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
17

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

18

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

5

appellant submitted September 25 and October 28, 2019 notes from Mr. Schoonover. The Board
finds that submission of these notes did not require reopening appellant’s case for merit review
because they have no probative value on the underlying issue on reconsideration. These reports
do not constitute competent medical evidence because physician assistants are not considered
physicians as defined under FECA. 19 Therefore, this evidence is not relevant and is insufficient to
require a merit review. 20
The Board, accordingly, finds that appellant did not meet any of the requireme nts of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review. 21
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a diagnosed
medical condition causally related to the accepted August 28, 2019 employment incident. The
Board further finds that OWCP properly denied his request for reconsideration of the merits of his
claim pursuant to 5 U.S.C. § 8128(a).

19

Supra note 11.

20

Id.; see R.G., Docket No. 19-1889 (issued April 14, 2021).

21

R.G., id.; D.G., Docket No. 19-1348 (issued December 2, 2019).

6

ORDER
IT IS HEREBY ORDERED THAT the February 5 and April 29, 2020 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 7, 2022
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

7