United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Alpharetta, GA, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1907
Issued: August 14, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 17, 2019 appellant, through counsel, filed a timely appeal from an August 9,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the August 9, 2019 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.

ISSUE
The issue is whether appellant has met her burden of proof to establish a consequential
right upper extremity condition causally related to the accepted April 3, 2015 employment injury.
FACTUAL HISTORY
On April 15, 2015 appellant, then a 40-year-old temporary rural carrier, filed a traumatic
injury claim (Form CA-1) alleging that on April 3, 2015 she strained her left shoulder muscle and
wrist as a result of lifting a tray of magazines while in the performance of duty. She stopped work
on April 13, 2015 and resigned from the employing establishment effective August 7, 2015.4
OWCP accepted the claim for left wrist and shoulder strains, and subsequently expanded
acceptance of the claim to include left shoulder impingement syndrome, cubital tunnel syndrome,
occipital neuritis, and C4-5 and C5-6 cervical disc displacement. It authorized left shoulder
arthroscopy with subacromial decompression, which occurred on June 17, 2016, and anterior
cervical C4-5 and C5-6 decompression surgery, which occurred on June 8, 2017. OWCP paid
appellant wage-loss compensation on the periodic rolls as of June 25, 2017.
In an October 13, 2018 report, Kerri D. Winston, Ph.D., a licensed acupuncturist, advised
Dr. John I. Foster, III, a Board-certified orthopedic surgeon, that appellant appeared to have a
chronic condition despite responding well to her acupuncture treatment. She opined that appellant
had developed neck discomfort and pain in her right thumb and right arm medial aspect from her
daily living activities and surgeries.
In an October 17, 2018 report, Dr. Foster related appellant’s history of injury and related
appellant’s report of right forearm pain and swelling, which he noted that, to his “knowledge is
not part of the claim.” He referenced Dr. Winston’s October 13, 2018 opinion that appellant had
developed a right upper extremity condition. Dr. Foster indicated that he had discussed with
appellant the possibility of filing a new claim for her right upper extremity condition.
In notes of a telephone call (Form CA-110) dated October 17, 2018, OWCP advised
appellant of the procedure for filing a consequential claim for her right upper extremity condition.
On October 30, 2018 appellant filed a claim for a consequential right arm/hand injury.
In a report dated November 1, 2018, Dr. Foster reviewed diagnostic testing, provided
examination findings, and diagnosed thoracic outlet syndrome, left elbow ulnar neuropathy
without demyelinating, resolved left occipital neuritis, left paracentral C4-5 and C5-6 cervical
herniated nucleus pulposus, status post left shoulder arthroscopy with arthroscopic subacromial
decompression, left shoulder distal arthroscopic distal clavicle resection, and left ulnar cubital
tunnel nerve decompression. He referenced an October 13, 2018 letter from appellant’s
acupuncturist, which noted an aggravation of her right thumb and upper extremity conditions.

4

On February 13, 2018 OWCP received a notice of personnel action (Standard Form SF-50), noting June 24, 2015
as the effective date of appellant’s resignation while the earlier SF-50 forms note the date of August 7, 2015. An
October 26, 2016 field nurse report noted that appellant had been terminated from the employing establishment,
effective August 7, 2015, due to abandonment of her position. In CA-110 notes of a telephone call dated January 31,
2017, appellant informed OWCP that she had returned to her private sector job as a bar tender/banquet server on
October 1, 2016.

2

In a development letter dated November 26, 2018, OWCP noted that it received appellant’s
request for a consequential right arm condition causally related to the accepted April 3, 2015
employment injury. It advised her of the type of evidence required to expand the acceptance of
her claim and afforded her 30 days to provide the necessary evidence.
On December 19, 2018 OWCP received reports covering the period October 12 through
November 30, 2018 from Dr. Winston noting appellant’s complaints of severe bilateral pain with
the right arm worse than the left and summarizing her acupuncture treatment.
OWCP received a December 21, 2018 electromyograph and nerve conduction velocity
(EMG/NCV) study performed by Dr. Ralph D’Auria, a Board-certified physiatrist, which showed
right elbow ulnar neuropathy and no electrophysiological evidence of cervical radiculopathy.
By decision dated February 21, 2019, OWCP denied expansion of the acceptance of
appellant’s claim, finding that the medical evidence of record was insufficient to demonstrate that
the right arm condition was causally related to the accepted April 3, 2015 employment injury.5
On February 21, 2019 OWCP received a February 6, 2019 report from Dr. D’Auria who
noted that appellant was referred to Dr. Foster for evaluation and treatment of her right cubital
tunnel syndrome shown by a December 21, 2018 EMG/NCV.
Appellant, through counsel, requested a telephonic hearing before an OWCP hearing
representative on February 27, 2019, which was held on June 17, 2019. The following evidence
accompanied counsel’s request.
In a report dated February 21, 2019, Dr. Foster provided examination findings, detailed
diagnostic studies, and examination findings. Appellant related that her right upper extremity
conditions were worse than her left. Dr. Foster diagnosed right elbow ulnar neuropathy after
reviewing a December 21, 2018 EMG/NCV study. An examination of the right upper extremity
revealed a positive elbow Tinel’s sign with radiating symptoms to her first, second, fourth and fifth
fingers. Diagnoses included right radial neuritis, right elbow ulnar neuropathy, thoracic outlet
syndrome, left elbow ulnar neuropathy without demyelination, resolved left occipital neuritis,
status post left shoulder arthroscopy with arthroscopic subacromial decompression, and left
paracentral C4-5 and C5-6 cervical herniated nucleus pulposus. Dr. Foster noted that the diagnosis
of right radial neuritis was based on appellant’s subjective complaints and was not confirmed
diagnostically while the diagnosis of right elbow ulnar neuropathy had been confirmed
diagnostically. In an addendum, he suggested that she had an underlying degenerative abnormality
in addition to the cubital tunnel condition.
Dr. Foster, in a March 28, 2019 report, reiterated findings, review of diagnostic tests, and
diagnoses contained in his February 21, 2019 report. Appellant noted that her right upper
extremity symptoms were worse than her left with occasional pain. Right upper extremity
examination findings included positive elbow Tinel’s sign radiating into her fingers. In a
5

On January 23, 2019 OWCP reduced appellant’s wage-loss compensation to zero based on a loss of wage-earning
capacity (LWEC) determination due to her actual earnings as a banquet server working part time. It noted that the
employment was effective July 19, 2018, that the position fairly and accurately represented her wage-earning capacity,
and the wages she received met or exceeded the wages she had earned in her date-of-injury position. By decision
dated May 2, 2019, an OWCP hearing representative vacated the January 23, 2019 LWEC determination and
remanded the case for a proper calculation of appellant’s pay rate in order to determine whether she had an LWEC.

3

March 29, 2019 report, Dr. Foster summarized examination findings and diagnosed right cubital
tunnel syndrome based on diagnostic testing. He noted that appellant had undergone several
unsuccessful surgeries, including cervical discectomy and fusion, as well as left shoulder
arthroscopy and left ulnar nerve decompression; therefore, he did not recommend further surgical
intervention.
By decision dated August 9, 2019, OWCP’s hearing representative affirmed the
February 21, 2019 decision, finding that the medical evidence of record was insufficient to expand
the acceptance of the claim to include a consequential right upper extremity condition.
LEGAL PRECEDENT
When an employee claims that a condition not accepted or approved by OWCP was due to
an employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury.6
To establish causal relationship, the employee must submit rationalized medical opinion
evidence.7 The opinion of the physician must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition and
the accepted employment injury.8 The weight of medical evidence is determined by its reliability,
its probative value, its convincing quality, the care of analysis manifested, and the medical
rationale expressed in support of the physician’s opinion.9
When an injury arises in the course of employment, every natural consequence that flows
from that injury likewise arises out of the employment, unless it is the result of an independent
intervening cause attributable to a claimant’s own intentional misconduct.10 Thus, a subsequent
injury, be it an aggravation of the original injury or a new and distinct injury, is compensable if it
is the direct and natural consequence of a compensable primary injury.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a consequential
right upper extremity condition causally related to the accepted April 3, 2015 employment injury.

6

See W.C., Docket No. 19-1740 (issued June 4, 2020); T.F., Docket No. 17-0645 (issued August 15, 2018); Jaja K.
Asaramo, 55 ECAB 200 (2004).
7

E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

8

D.S., Docket No. 20-0146 (issued June 11, 2020); M.V., Docket No. 18-0884 (issued December 28, 2018);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
9

Id.

10

See S.M., Docket No. 19-0397 (issued August 7, 2019); Mary Poller, 55 ECAB 483, 487 (2004); Arthur Larson
& Lex K. Larson, The Law of Workers’ Compensation 10-1 (2006).
11

A.T., Docket No. 18-1717 (issued May 10, 2019); Susanne W. Underwood (Randall L. Underwood), 53 ECAB
139 (2001).

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In support of her claim, appellant submitted a series of reports from Dr. Foster. In an
October 17, 2018 report, Dr. Foster noted her right upper extremity complaints. In reports dated
October 17 and November 1, 2018, he referenced an October 13, 2018 report by appellant’s
acupuncturist who opined that appellant had sustained an aggravation of her right upper extremity.
Dr. Foster, in reports dated February 21 and March 28, 2018, diagnosed right elbow ulnar
neuropathy and right radial neuritis. He noted that appellant’s right elbow ulnar neuropathy had
been confirmed by diagnostic testing while the diagnosis of right radial neuritis was based on only
appellant’s subjective complaints. In reports dated March 28 and 29, 2018, Dr. Foster diagnosed
right cubital tunnel syndrome. He, however, did not provide an opinion as to the cause of the right
upper extremity conditions. Dr. Foster did not explain how appellant developed a consequential
right upper extremity condition from the accepted employment injury. The Board has held that
medical evidence that does not offer an opinion regarding the cause of an employee’s condition is
of no probative value on the issue of causal relationship.12 Accordingly, Dr. Foster’s reports are
insufficient to establish that appellant’s claim should be expanded to include consequential right
elbow ulnar neuropathy or right radial neuritis.
The record also contains a December 21, 2018 EMG/NCV study by Dr. D’Auria
diagnosing right elbow ulnar neuropathy. The Board has held, however, that diagnostic studies
standing alone lack probative value on the issue of causal relationship as they do not provide an
opinion on causal relationship between an employment incident and a diagnosed condition.13 In a
February 6, 2019 report, Dr. D’Auria noted that he had referred appellant for treatment of her right
upper extremity conditions, but he again offered no opinion regarding causal relationship.14 This
report is therefore insufficient to establish appellant’s claim.
The remaining evidence is of no probative value on the issue of causal relationship. The
October 13, 2018 report and subsequent treatment notes from Dr. Winston, an acupuncturist, have
no probative medical value as acupuncturists are not considered physicians as defined under
FECA.15
On appeal counsel contends that OWCP applied an improper standard of causation to
appellant’s case and did not give due deference to the opinions of appellant’s treating physicians.
As noted above, OWCP properly found that the medical evidence of record did not include a
rationalized medical opinion to support expansion of her claim to include a consequential right
upper extremity condition.

12

C.F., Docket No. 19-1748 (issued March 27, 2020); L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,
Docket No. 17-1549 (issued July 6, 2018).
13
14

M.M., Docket No. 20-0019 (issued May 6, 2020).
Supra note 13.

15

5 U.S.C. § 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 defined
by State law. See also 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). 5 U.S.C. § 8101(2); 20
C.F.R. § 10.5(t). M.M., Docket No. 16-1180 (issued October 26, 2016) (acupuncturists and physical therapists are not
considered physicians as defined under FECA); C.K., Docket No. 14-1235 (issued September 11, 2014); Nemat M.
Amer, Docket No. 03-0338 (issued April 7, 2005).

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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 establish a consequential
right upper extremity condition causally related to the accepted April 3, 2015 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the August 9, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 14, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.B., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Hampton, GA, Employer
__________________________________________

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

Docket No. 14-1651
Issued: September 22, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On July 22, 2014 appellant filed a timely appeal from a March 25, 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 emotional
condition in the performance of duty.
FACTUAL HISTORY
On April 1, 2013 appellant, then a 52-year-old air traffic control specialist, filed a
traumatic injury claim (Form CA-1) alleging that he sustained injury in the form of “mental and
1

5 U.S.C. §§ 8101-8193.

emotional trauma” at work on Tuesday, March 19, 2013.2 Regarding the cause of the injury, he
noted, “My brother … suffered a fatal heart attack. I watched as all attempts to revive him were
unsuccessful.” Appellant indicated that the injury occurred in Transition Building 530 at 10:00
a.m. He stopped work on March 19, 2013.3 On the same form, appellant’s immediate supervisor
stated, “[Appellant’s] brother suffered a heart attack on March 19, 2013 in the transition area.
[He] witnessed resuscitation attempts. Appellant’s brother was transported to hospital but was
unable to be resuscitated.”
In an April 4, 2013 letter, OWCP requested that appellant submit additional factual and
medical evidence in support of his claim and provided him with a questionnaire form to be
completed.4 It indicated that the evidence was not sufficient to support that he was injured while
performing any duty of his employment.
In an April 1, 2013 statement, appellant related that on March 19, 2013 at approximately
10:00 a.m. he was conducting a training session when he was notified by his supervisor of an
emergency involving his brother. He indicated that he ran to his brother’s office, but did not find
him there and that he was notified that he was in an adjacent building. When he went outside,
appellant saw a fire truck and ambulance outside the transition building with a dozen people
standing around. He stated that he ran into the building and into the office where he saw his
brother lying on the floor, unconscious, with his shirt ripped open. Emergency medical
technicians were performing chest compressions, giving him oxygen, and pumping him full of
stimulants to try to restart his heart. Appellant noted, “I watched helplessly as their efforts to
revive him failed, and as they frantically loaded him into the ambulance and sped away. I
became physically sick.” He indicated that he returned to work on March 31, 2013, but was
unable to finish conducting a training session due to experiencing anxiety, fear, concentration
difficulties, and physical symptoms.
Appellant sought treatment on April 4, 2013 from Dr. David W. Aycock, an attending
clinical psychologist, and reported that he developed symptoms, including anxiety, sleep
disturbance, and cognitive deficits, after witnessing his brother’s heart failure at work on
March 19, 2013. Dr. Aycock diagnosed anxiety disorder and indicated that it was a “direct result
of the workplace trauma.”
In the questionnaire he completed on May 4, 2013, appellant asserted that he was in the
performance of duty at the time of his claimed injury because he was performing a training
session at the time he was informed of his brother’s medical emergency. He posited that he was
in the performance of duty for the additional reason that, when advised of his brother’s medical
emergency, he “immediately went to assist.” Appellant indicated that, due to the March 19,
2

On the same form appellant’s immediate supervisor indicated that appellant’s duty station was the Atlanta Air
Route Traffic Control Center on 299 Woolsey Road, Hampton, GA, and that his regular schedule was 6:00 a.m. to
4:00 p.m., Sunday through Wednesday.
3

Appellant received continuation of pay from March 19 to May 3, 2013. He filed a claim for compensation
(Form CA-7) for work stoppage starting May 4, 2013 and continuing.
4

The questionnaire included the question, “What duties of your employment as an [air traffic control specialist]
were you performing which you believe caused the claimed condition?”

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2013 incident, he repeatedly relived the event and suffered from such conditions and symptoms
as anxiety, depression, sleep disturbance, and concentration and memory deficits.
In a May 16, 2013 decision, OWCP found that appellant had not shown that he sustained
an emotional condition in the performance of duty on March 19, 2013. Appellant’s case was
denied because the evidence did not show that the claimed injury and/or medical condition arose
during the course of employment and within the scope of compensable work factors. OWCP
noted that, although appellant was at work on March 19, 2013, his witnessing of his brother’s
heart attack did not occur while he was performing duties of his employment or acts incidental to
those duties.
Appellant requested reconsideration of OWCP’s May 16, 2013 decision. In a May 28,
2013 statement, he asserted that he sustained an injury in the performance of duty on March 19,
2013 because he was conducting a training session when he was directed by his immediate
supervisor to respond to a medical emergency concerning his brother. Appellant argued that,
since the emergency occurred on the employing establishment premises, he never left the sphere
of employment. He posited that when a manager assigns a task to an employee that takes him
away from his normal duties, the performance of the task is still considered a requirement of
employment. Appellant argued that he was not merely an observer of his brother’s medical
emergency in that he assisted the emergency medical technicians by gathering information from
family members and providing medical history and other critical information needed for proper
treatment of his brother. He stated that he “actively coordinated between the [emergency
medical technicians] and the hospital” while he still was present in the workplace, and that he
also secured his brother’s federal identification and personal effects. Appellant felt that it was
not necessary for him to actually perform the cardiopulmonary resuscitation in order to provide
assistance in an emergency. He indicated that two other air traffic control specialists responded
to the same emergency on March 19, 2013 and had their compensation claims accepted for
injuries occurring in the performance of duty. Appellant stated that he was certified in
cardiopulmonary resuscitation and use of automated external defibrillators and indicated that the
employing establishment had a volunteer program to encourage employees to gain these skills.
In a June 8, 2013 statement, an operations supervisor5 stated that on March 19, 2013 he
was on duty in Area 3 at the Atlanta Air Route Traffic Control Center when he received a
telephone call message that appellant’s brother might be having a heart attack and that he needed
to get appellant over to the ambulance pick-up area. He indicated that he went to the route
simulation training laboratory where appellant was conducting job instruction with a coworker
and told him that he needed to get to the pick-up area as soon as possible because his brother
might be having a heart attack. The operations supervisor accompanied appellant first to the
front of the building and then to a transfer training building where the ambulance was found. He
stated that appellant went into the building and that the supervisor left appellant at that time.
By decision dated August 13, 2013, OWCP denied appellant’s request for further review
of the merits of his claim pursuant to 5 U.S.C. § 8128(a). It found that the newly submitted
5

The operations supervisor was not the same person who identified himself as appellant’s immediate supervisor
on the Form CA-1 completed on April 1, 2013.

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evidence and argument did not require reopening of appellant’s claim for merit review because it
was repetitious or immaterial to the issue of the case.
Appellant again requested reconsideration of his claim. In a February 13, 2014
statement, he asserted that he remained in the course of his employment when he witnessed his
brother having a heart attack at work on March 19, 2013 because he was directed to the site of
the emergency by his supervisor and rendered assistance in addressing the emergency. Appellant
argued that his reaction to witnessing his brother’s heart attack on March 19, 2013 was not selfgenerated, but rather was related to matters incidental to his employment. He also indicated that
OWCP failed to acknowledge that he also sustained stress when he attempted to return to work
on March 31, 2013. Appellant alleged that his claimed injury was covered under the positional
risk doctrine because his employment placed him in the position where he sustained injury.
In a February 7, 2014 statement, a coworker stated that on March 19, 2013 at
approximately 10:00 a.m. he and appellant were training in the laboratory. During that time
appellant was approached by the operations supervisor who instructed appellant to come with
him because there had been an emergency. Appellant immediately accompanied the operations
supervisor out of the laboratory. The coworker stated that he understood that the instructions
given by the operations supervisor constituted an order. He assumed at that time that the
instructions were air-traffic related and he did not find out until later that the emergency involved
appellant’s brother.
In an undated statement, another coworker stated that on March 19, 2013 he performed
cardiopulmonary resuscitation on appellant’s brother who was suffering from a major heart
attack. While performing cardiopulmonary resuscitation, appellant’s brother “died twice in [his]
hands” and an automated external defibrillator was used to apply a shock in order to bring him
back to life. The coworker stated that appellant’s brother was kept alive until the paramedics
arrived and were able to take over life support. Appellant’s brother later died in the hospital on
March 22, 2013.
In an undated statement, a front-line manager described the duties of air traffic control
specialists and noted that, as part of a national program, the employing establishment offered
training in cardiopulmonary resuscitation and use of automated external defibrillators. The
front-line manager indicated that, although participation in this training was voluntary, the
employing establishment recognized the value of this skill in responding to an employee in need
of assistance and an employee who received this training would be expected to respond to an
emergency situation.
In a March 25, 2014 decision, OWCP affirmed its May 16, 2013 decision finding that
appellant had not established a March 19, 2013 work injury in the performance of duty. It stated
that appellant’s regular duties did not bring him into contact with the emergency situation on
March 19, 2013 and that he was informed of the emergency by a supervisor because of his
familial relationship to the employee in medical distress.

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LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence, including that he or she is an employee within the meaning of FECA and that he or she
filed his or her claim within the applicable time limitation.6 The employee must also establish
that he sustained an injury in the performance of duty as alleged and that his disability for work,
if any, was causally related to the employment injury.7 Where the disability results from an
employee’s emotional reaction to his or her regular or specially assigned duties or to a
requirement imposed by the employment, the disability comes within the coverage of FECA.8
Congress has provided for the payment of compensation for disability or death resulting
from personal injury sustained while in the performance of duty.9 The Board has interpreted the
phrase while in the performance of duty to be the equivalent of the commonly found prerequisite
in workers compensation law of arising out of and in the course of employment.10 The phrase, in
the course of employment, deals with the work setting, the locale, and the time of injury. Arising
out of the employment encompasses not only the work setting, but also a causal concept, the
requirement being that an employment factor caused the injury.11 In the compensation field, to
occur in the course of employment, in general, an injury must occur: (1) at a time when the
employee may reasonably be said to be engaged in his master’s business; (2) at a place where he
may reasonably be expected to be in connection with the employment; and (3) while he was
reasonably fulfilling the duties of his employment or engaged in doing something incidental
thereto.12
The test is similar to the positional risk doctrine discussed by Professor Larson13 in his
treatise on workers’ compensation law, which provides that an injury arises out of the
employment if it would not have occurred, but for the fact that the conditions and obligations of
the employment placed the claimant in the position where he was injured. As further discussed
by Larson, this theory supports compensation in situations where the only connection of the
employment with the injury is that the obligations placed the employee in the particular place at
6

C.B., Docket No. 14-671 (issued August 24, 2015); Kathryn A. O Donnell, 7 ECAB 227 (1954); see 5 U.S.C.
§ 8122.
7

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143 (1989).

8

Lillian Cutler, 28 ECAB 125 (1976). When a claimant has not established any compensable employment
factors, the Board need not consider the medical evidence of record. See Margaret S. Krzycki, 43 ECAB
496 (1992).
9

5 U.S.C. § 8102(a).

10

See Timothy K. Burns, 44 ECAB 291 (1992); Jerry L. Sweeden, 41 ECAB 721 (1990).

11

See M.B., Docket No. 15-215 (issued April 24, 2015).

12

See id.

13

Arthur Larson & Lex K. Larson, The Law of Workers’ Compensation § 3.05 (2014).

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the particular time when he was injured by some neutral force, meaning by “neutral” neither
personal to the claimant nor distinctly associated with the employment.14
ANALYSIS
Appellant filed a claim alleging that he sustained injury in the form of mental and
emotional trauma at work on March 19, 2013 when he witnessed a coworker, his brother, having
a heart attack. He claimed that he sustained disability due to this injury. Appellant indicated that
he was performing his work duties during a training session just prior to the time that the
operations supervisor directed him to go to the scene of the emergency on the employing
establishment premises. He argued that he remained in the performance of duty at the time he
witnessed the emergency situation because he was responding to a supervisor’s order and
rendered useful services in connection with the emergency. OWCP denied appellant’s claim
because he did not show that he sustained an injury in the performance of duty on
March 19, 2013. It found that he was not performing work duties or doing something incidental
thereto when he witnessed his brother having a heart attack.
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an injury in the performance of duty on March 19, 2013.
As noted above, to occur in the course of employment, in general, an injury must occur:
(1) at a time when the employee may reasonably be said to be engaged in his master’s business;
(2) at a place where he may reasonably be expected to be in connection with the employment;
and (3) while he was reasonably fulfilling the duties of his employment or engaged in doing
something incidental thereto. The test is similar to the positional risk doctrine discussed by
Larson in his treatise on workers’ compensation law, which provides that an injury arises out of
the employment if it would not have occurred, but for the fact that the conditions and obligations
of the employment placed the claimant in the position where he was injured.15
Applying this test, in Larry J. Thomas,16 wherein a letter carrier came upon the body of a
suicide victim while delivering mail on his route, the Board found that this incident did occur at a
time when the claimant was engaged in his employer’s business, at a place where he could
reasonably be expected to be, and while he was fulfilling the duties of his employment. Thus,
the Board reasoned that, while claimant’s injury in Thomas may have been caused by a neutral
force, because his employment placed him in the place of injury, his injury was covered under
FECA. The Board applied similar reasoning to accept an employment factor in N.M.,17 a case in
which a letter carrier delivering mail on his route witnessed a child being struck and killed by a
school bus.

14

Id.

15

See supra notes 12 through 14.

16

44 ECAB 291 (1992).

17

Docket No. 10-2017 (issued August 8, 2011).

6

In the present case, however, unlike the claimants in Thomas and N.M., appellant left the
location of his employment duties and did not sustain his injury while engaged in his employer’s
business, or while fulfilling the duties of his employment. Although appellant had been engaged
in a training session at work on March 19, 2013, he stopped the work-related training activities
and went to a different building on the employing establishment premises to tend to his brother
who was in medical distress. In the present case, it is clear that appellant’s emotional condition
arose from the knowledge that his brother was in medical distress, rather than from the
performance of his day-to-day duties, specially-assigned duties, or any other requirement
imposed by his employment. In other words, the claimed injury occurred due to a circumstance
that was personal to appellant. On appeal appellant asserts that he was in the performance of
duty when he witnessed his brother having a heart attack on March 19, 2013 because the
operations supervisor directed him to leave his work area and go to the scene of the medical
incident.18 However, the evidence of record does not indicate that the operations supervisor
directed appellant to go to the scene of his brother’s medical distress as a result of any work duty
or incident of employment. Rather, the evidence of record, including the witness statement of
the operations supervisor, reflects that he informed appellant of his brother’s situation due to his
personal relationship to the employee in medical distress.19 The Board has held that the fact that
an employee learns of a personal tragedy and sustains an emotional condition during working
hours does not, in and of itself, provide the necessary nexus to establish that the emotional
condition occurred while in the performance of duty, as required by FECA.20
On appeal appellant contends that he engaged in an attempt to aid in the rescue of a
coworker and that coverage should be extended under the emergency situation theory, consistent
with the principles set forth in Larson. Larson, in his treatise, explains that under familiar
doctrines in the law relating to emergencies, generally, the scope of an employee’s employment
is impliedly extended in an emergency to include the performance of any act designed to save
life or property in which the employer has an interest.21 The evidence of record does not support
that appellant actually performed any specific acts designed to save a life, resulting in his
emotional condition. Appellant initially indicated that he “watched helplessly” as emergency
medical technicians gave medical assistance to his brother on March 19, 2013. He later asserted
that he assisted the emergency medical technicians by providing his brother’s medical history
and that he “actively coordinated between the [emergency medical technicians] and the hospital”
while he still was present at the scene of his brother’s heart attack. However, appellant did not
describe the information he provided or how it aided in his brother’s treatment; nor did he
explain the nature of the claimed coordination between the emergency medical technicians and
the hospital. The evidence of record establishes that appellant’s emotional condition arose from
18

The Board notes that the operations supervisor was not appellant’s immediate supervisor.

19

A coworker indicated that the operations supervisor instructed appellant to come with him because there had
been an emergency and he indicated that he believed at that time that the instructions given by the operations
supervisor constituted an order. However, the coworker indicated that he had assumed at that time that the
instructions were air-traffic related and he did not find out until later that the emergency involved appellant’s
brother.
20

See Edye Ann Smith, 49 ECAB 463 (1998); Kathryn S. Graham Wilburn, 49 ECAB 458 (1998).

21

See supra note 13 at § 28.01.

7

the knowledge of the medical incident involving his brother. There is no evidence of record that
appellant actually engaged in a rescue action, of benefit to his employer, that led to his emotional
condition.22
As appellant’s emotional condition did not occur on March 19, 2013 as the result of the
performance of his federal employment, OWCP properly denied his claim for workers’
compensation benefits.23
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an emotional condition injury in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the March 25, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 22, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

22

Appellant also claimed that he sustained a work-related injury when he returned to work on March 31, 2013
and experienced symptoms including anxiety, fear, concentration difficulties, and physical symptoms. He did not
establish an employment incident with respect to the events of March 31, 2013 because he did not explain how he
sustained injury while he fulfilled the duties of his employment or was engaged in doing something incidental
thereto on that date.
23

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record. See supra note 8.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.K., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, Long Beach, CA, Employer
__________________________________________

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Appearances:
Max Gest, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-520
Issued: July 18, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 8, 2014 appellant, through his representative, filed a timely appeal from the
Office of Workers’ Compensation Programs’ (OWCP) decision dated September 26, 2013.
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 claim.
ISSUE
The issue is whether appellant established that his brachial plexus condition, bilateral
ulnar neuropathy or right carpal tunnel syndrome are causally related to his accepted
November 17, 1999 employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 17, 1999 appellant, then a 42-year-old supervisory special agent, sustained
injury to his neck and left arm pain as a result of being kicked, shoved and pushed during baton
and pepper spray training. He stopped work on January 14, 2000. OWCP accepted appellant’s
claim for cervical strain, aggravation of cervical degenerative disc diseases, herniated discs L4-5
and L5-S1, major depression and psychogenic pain disorder. Appellant received disability
compensation.
Appellant underwent an authorized cervical discectomy and fusion on March 27, 2008,
which was performed by Dr. Sam Bakshian, a Board-certified orthopedic surgeon. In a report
dated April 8, 2009, Dr. Bakshian related that appellant was one-year post cervical fusion. He
conducted a physical examination and reviewed electromyogram (EMG) studies. Dr. Bakshian
diagnosed bilateral cubital tunnel syndrome, right carpal tunnel syndrome, which were
superimposed on appellant’s cervical radiculopathy and were a direct consequence of the
November 17, 1999 employment injury.
On April 9, 2009 Dr. Lawrence R. Miller, Board-certified in internal medicine, pain
management and anesthesiology, examined appellant. He diagnosed post cervical laminectomy
pain syndrome, lumbar post laminectomy pain syndrome, left shoulder impingement/adhesive
capsulitis, right cubital tunnel syndrome and left thoracic outlet syndrome.
To determine appellant’s permanent impairment, OWCP referred him to Dr. Joan
Sullivan, a Board-certified orthopedic surgeon. In a report dated March 24, 2010, Dr. Sullivan
related that her examination on that day did not reveal cubital tunnel symptoms, but that EMG
findings were consistent with cubital tunnel entrapment neuropathy. OWCP thereafter referred
appellant to Dr. John S. Wendt, a Board-certified neurologist for a second opinion evaluation. In
a report dated July 7, 2010, Dr. Wendt related that appellant had electrodiagnostic evidence of
bilateral cubital tunnel syndrome and mild right carpal tunnel syndrome. He concluded that
appellant had no clear objective neurologic deficits with respect to the upper extremities on an
objective basis that were injury related.
Appellant was evaluated by Dr. Jacob E. Tauber, a Board-certified orthopedic surgeon,
on November 4, 2010. Dr. Tauber explained that appellant had undergone extensive cervical and
lumbar surgery, which were clearly failed surgical procedures. He stated that appellant had a left
thoracic outlet syndrome confirmed on ultrasound, bilateral cubital tunnel syndrome and a right
carpal tunnel syndrome each confirmed by objective testing. Dr. Tauber explained that
appellant’s physical examination would not follow specific dermatomal findings because
appellant had so many levels of involvement.
On July 20, 2012 OWCP referred appellant, together with a statement of accepted facts
and the medical record, to Dr. Robert Lang, a Board-certified neurological surgeon, for a second
opinion examination regarding his upper extremity symptoms. In an August 22, 2012 report,
Dr. Lang reviewed appellant’s history and accurately described the November 17, 1999
employment injury. Upon examination of the upper extremities, he observed +1 triceps and
biceps reflexes on the left. Tinel’s test at the elbow was mildly positive on the right and strongly
positive on the left. Dr. Lang diagnosed a brachial plexus injury, bilateral ulnar neuropathy at

2

the elbow and right carpal tunnel syndrome. He stated that appellant sustained injury to both
upper extremities related to the accepted work injury and continued to have residuals of the
injury. Dr. Lang explained that the brachial plexus and bilateral ulnar neuropathy injuries were
likely related to the cervical condition and subsequent surgeries. He recommended further
electrodiagnostic testing. In a November 19, 2012 addendum report, Dr. Lang noted that he
reviewed an October 29, 2012 EMG report which confirmed findings of bilateral cubital tunnel
syndrome, right carpal tunnel syndrome and chronic left C7-T1 radiculopathy. He reiterated that
appellant’s brachial plexus injury and bilateral ulnar neuropathy were likely related to his
ongoing cervical and lumbar conditions from the industrial injury. Dr. Lang reported that the
EMG study confirmed that appellant had right carpal tunnel syndrome and opined that this
condition was likely related to appellant’s claim. He concluded that appellant sustained an injury
to both upper extremities related to the original work injury and continued to suffer residuals of
the injury.
In a February 8, 2013 report, Dr. Kenneth D. Sawyer, a Board-certified surgeon and the
district medical adviser, reviewed the medical record, including Dr. Lang’s second opinion
reports. He opined that appellant’s carpal tunnel syndrome, cubital tunnel syndrome, brachial
plexus pathology and thoracic outlet syndrome were not likely related to the November 17, 1999
employment injury.
In a letter dated March 7, 2013, appellant’s representative requested that OWCP accept
appellant’s claim for brachial plexus injury, bilateral ulnar neuropathy and right carpal tunnel
syndrome.
In a May 6, 2013 report, Dr. Sawyer again reviewed the record. He opined that
appellant’s brachial plexus injury, bilateral ulnar neuropathy at the elbow and right carpal tunnel
syndrome were most likely not related to the accepted injury. Dr. Sawyer advised that none of
the conditions should be accepted under this claim. He noted that the conditions developed
months or years after the accepted injury. Dr. Sawyer stated that Dr. Lang provided no
explanation for his opinion that appellant’s upper extremity conditions were consequential to the
original November 17, 1999 employment injury.
In a decision dated May 30, 2013, OWCP denied appellant’s claim for brachial plexus
injury, bilateral ulnar neuropathy at the elbow and right carpal tunnel syndrome based on the
opinion of Dr. Sawyer, the district medical adviser.
By letter dated June 11, 2013, appellant’s representative requested a hearing, which was
held on August 12, 2013. He alleged that Dr. Lang’s second opinion reports represented the
weight of medical opinion. Appellant’s representative had physically examined appellant while
Dr. Sawyer only reviewed the medical record. He also contended that there was an unresolved
conflict in medical opinion that existed between Dr. Sawyer and Dr. Lang.
In a June 14, 2013 report, Dr. Tauber reviewed appellant’s history and his previous
evaluation of appellant. He diagnosed thoracic outlet syndrome, bilateral ulnar neuropathy, right
carpal tunnel syndrome and brachial plexus injury. Dr. Tauber noted that these diagnoses were
confirmed by electrodiagnostic studies. He agreed with Dr. Lang that appellant’s upper
extremity conditions were attributable to his employment injury. Dr. Tauber explained that

3

appellant had a history of failed spine surgery syndrome and had diffuse weakness and sensory
losses which would have been consistent with his failed symptoms. He also stated that it
remained his opinion that appellant’s claim should be accepted for all of the diagnosed
conditions because appellant’s employment duties were strenuous, involving repetitive motion
and were a known cause of his conditions. Dr. Tauber disagreed with Dr. Sawyer’s finding that
appellant’s thoracic outlet syndrome was temporary, because it had existed a period of nine
years.
By decision dated September 26, 2013, OWCP’s hearing representative affirmed the
May 30, 2013 denial decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence, including that any specific
condition or disability for work is causally related to the employment injury.3
The evidence generally required to establish causal relationship is rationalized medical
opinion evidence. The medical opinion must be based on a complete factual and medical
background with an accurate history of the employment injury and must explain from a medical
perspective how the current condition is related to the injury.4
Section 8123(a) of FECA provides that if there is a disagreement between the physician
making the examination for the United States and the physician of an employee, the Secretary
shall appoint a third physician (known as a referee physician or impartial medical specialist) who
shall make an examination.5 This is called a referee examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
case.6 When there exists opposing medical reports of virtually equal weight and rationale and
the case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.7

2

Id.

3

T.B., Docket No. 13-799 (issued March 5, 2014).

4

D.U., Docket No, 10-144 (issued July 27, 2010); D.G., 59 ECAB 734 (2008); Donald W. Wenzel, 56 ECAB
390 (2005).
5

5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued
May 4, 2009).
6

20 C.F.R. § 10.321.

7

Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

4

ANALYSIS
The Board has duly reviewed the matter and finds that this case is not in posture for a
decision as there is an unresolved conflict in a medical opinion between appellant’s treating
physicians, Drs. Bakshian and Tauber who found that his upper extremity conditions were
related to his November 17, 1999 employment injury. Dr. Sawyer determined that these
conditions were not causally related to appellant’s accepted injury.
The Board notes that appellant was referred for several evaluations to determine the
degree of his permanent impairment, after Dr. Bakshian, appellant’s treating orthopedic surgeon,
performed a cervical discectomy and fusion in March 2008. In 2009, Dr. Bakshian diagnosed
bilateral cubital tunnel syndrome, right carpal tunnel syndrome, superimposed upon appellant’s
cervical radiculopathy, which he opined were the direct consequence of appellant’s accepted
employment injury. During the second opinion evaluations related to the permanent impairment
question, the issue arose regarding the proper diagnosis of appellant’s cervical and upper
extremity conditions. As noted by Drs. Bakshian and Miller, appellant’s electrodiagnostic
studies evidenced bilateral cubital tunnel syndrome and right carpal tunnel syndrome. OWCP
second opinion physicians, Drs. Sullivan and Wendt noted appellant’s electrodiagnostic studies,
but could not confirm the diagnoses on physical examination. Appellant was then examined by
Dr. Tauber, who advised that appellant’s physical examination would not follow specific
dermatomal findings because appellant had so many levels of involvement. Dr. Tauber related
that appellant’s diagnoses, based upon objective findings, were left thoracic outlet syndrome,
bilateral cubital tunnel syndrome and right carpal tunnel syndrome.
Appellant was then referred by OWCP for a second opinion evaluation with Dr. Lang,
who related that appellant had confirmed findings of bilateral cubital tunnel syndrome, right
carpal tunnel syndrome and brachial plexus injury. Dr. Lang opined that the conditions were
causally related to appellant’s work injury and his cervical surgery. Dr. Tauber subsequently
agreed with Dr. Lang’s opinion that the diagnoses were causally related to appellant’s work
injury. He explained that appellant’s diffuse weakness and his sensory losses were due to his
failed surgery. Dr. Tauber also opined that appellant’s strenuous work activities, which caused
the accepted conditions, were a known cause of his other diagnosed conditions.
The record was reviewed by Dr. Sawyer, an OWCP medical adviser, who opined that
appellant’s conditions were not work related, as they developed months or years subsequent to
the injury.
The Board finds that a conflict exists between Drs. Sawyer, Bakshian and Tauber.
OWCP should refer appellant to an impartial medical examiner to resolve the medical conflict.
The Board will set aside the September 26, 2013 decision and remand the case to OWCP for
referral to an impartial medical examiner for further medical development. Following this and
any further development as deemed necessary, OWCP shall issue an appropriate final decision
on appellant’s claim.

5

CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the September 26, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: July 18, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Ozark, AL, Employer
__________________________________________

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

Docket No. 18-1394
Issued: January 10, 2019

Case Submitted on the Record

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

JURISDICTION
On July 9, 2018 appellant filed a timely appeal from a June 11, 2018 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 his burden of proof to establish an injury in the
performance of duty, as alleged.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence on appeal. 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.

FACTUAL HISTORY
On April 6, 2018 appellant, then a 64-year-old rural carrier, filed an occupational disease
claim (Form CA-2) alleging an employment-related injury due to performing his work duties over
a period of time. Regarding the relationship of the claimed injury to his employment, he asserted
that he constantly used his right arm and shoulder to case mail and that reaching his right arm out
to mailboxes had steadily become more painful over the last couple of months. Appellant alleged
that his symptoms only flared up when he performed his job “over and over” for long periods of
time. He expressed his belief that his right shoulder pain was connected to a problem with his
right rotator cuff. Appellant indicated that he first became aware of his claimed condition on
February 17, 2018 and first realized on March 23, 2018 that it was caused or aggravated by his
federal employment. He did not stop work.
On the reverse side of the Form CA-2 appellant’s immediate supervisor indicated that
appellant first reported his claimed condition to him on April 6, 2018. He noted that appellant had
issues with right shoulder pain and had been taking some leave from work to undergo therapy.3
The supervisor further advised that appellant had not experienced any changes to his normal duties
as a rural carrier and that he had cased and carried mail on a regular basis without “missing any
time directly.”
In an April 20, 2018 development letter, OWCP requested that appellant submit additional
evidence in support of his claim, including a physician’s opinion supported by a medical
explanation as to how the reported employment-related exposures contributed to his claimed
condition. It requested that he complete and return an attached questionnaire, which posed various
questions regarding the employment-related exposures, which he believed contributed to his
claimed condition. OWCP afforded appellant 30 days to submit a response.
Appellant submitted an April 26, 2018 report from Dr. Rifat Parwaiz, an attending Boardcertified family practitioner, who noted that appellant was a “workman comp[ensation] patient”
presenting for a clearance physical examination in connection with upcoming right shoulder
surgery. Dr. Parwaiz noted that appellant had sustained a right shoulder tear and listed appellant’s
date of injury as February 17, 2018. He reported the findings of his April 26, 2018 physical
examination, indicating that appellant had a positive finding of right shoulder pain with no arthritis,
joint deformity, or swelling noted.4 Dr. Parwaiz diagnosed encounter for other procedural
examination (primary), encounter for preprocedural respiratory examination, and other pulmonary
collapse.
In a postal form entitled, “Accident Report,” which was received by the employing
establishment’s injury compensation office on April 23, 2018, appellant’s immediate supervisor
indicated that appellant reported that he had been experiencing some discomfort and pain in his
right shoulder while casing mail and, at times, while delivering mail into curbside boxes on his
3

The supervisor indicated that appellant’s pain had not subsided and that appellant recently underwent a magnetic
resonance imaging scan to determine the cause of the pain.
4
Dr. Parwaiz noted that appellant had a history of right lung collapse and he reported the findings of the respiratory
examination he conducted.

2

mail delivery route. Appellant also reported that engaging in repeated motions at work had created
a “cumulative effect on his right shoulder and possible rotator cuff problem.”5
By decision dated June 11, 2018, OWCP denied appellant’s claim for an employmentrelated occupational condition. It determined that appellant’s claim was denied because the
evidence of record was insufficient to establish that the claimed employment injury or events
occurred as described. OWCP noted that appellant had not responded to the April 20, 2018
development letter.6
LEGAL PRECEDENT
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, that the injury was sustained while in the performance of duty as
alleged, and that any disability and/or specific condition for which compensation is claimed are
causally related to the employment injury.7 To establish fact of injury, an employee must submit
evidence sufficient to establish that he or she experienced a specific event, incident, or exposure
occurring at the time, place, and in the manner alleged.8 An employee must also establish that
such event, incident, or exposure caused an injury.9 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.10
OWCP regulations define the term “[o]ccupational disease or illness” as a condition
produced by the work environment over a period longer than a single workday or shift.11 To
establish that an injury was sustained in the performance of duty in an occupational disease claim,
an employee must submit the following: (1) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; (2) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or occurrence

5

The form identified the cause of the injury as “repetitive motions” and listed a date of injury of March 29, 2018.

OWCP further noted that, even if appellant had established the factual aspect of his claim, Dr. Parwaiz’ April 26,
2018 report would not establish the medical aspect of his claim because Dr. Parwaiz did not relate the denoted right
shoulder tear to appellant’s work activities.
6

7

5 U.S.C. § 8101(1); B.B., 59 ECAB 234 (2007); Elaine Pendleton, 40 ECAB 1143 (1989).

8

J.C., Docket No. 16-0057 (issued February 10, 2016); E.A., 58 ECAB 677 (2007).

9

Id.

10

R.H., 59 ECAB 382 (2008); Ellen L. Noble, 55 ECAB 530 (2004).

11
20 C.F.R. § 10.5(q); see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims,
Chapter 2.800.2b (June 2011).

3

of the disease or condition; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the employee.12
The medical evidence required to establish causal relationship generally is rationalized
medical opinion evidence.13 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 established employment factors.14
ANALYSIS
The Board finds that appellant has met his burden of proof to establish that the alleged
employment factors occurred as alleged. However, the Board further finds that appellant has not
established an injury causally related to the accepted factors of his federal employment.
On April 6, 2018 appellant filed an occupational disease claim alleging an employmentrelated injury due to performing his duties as a rural carrier over a period of time. He asserted that
he constantly used his right arm and shoulder to case mail and that reaching his right arm out to
mailboxes had steadily become more painful over the last couple of months. Appellant indicated
that he first became aware of his claimed condition on February 17, 2018 and first realized on
March 23, 2018 that it was caused or aggravated by his employment. By decision dated June 11,
2018, OWCP denied appellant’s claim because he failed to establish the factual component of fact
of injury.
The Board first finds that appellant did, in fact, establish employment factors, in the form
of casing and delivering mail, in connection with his claim for an employment-related right
shoulder injury. Appellant consistently implicated his rural carrier duties of casing mail with his
right arm and reaching out with his right arm to place mail into mailboxes on his mail delivery
route. He discussed these work duties in the April 6, 2018 Form CA-2 effectuating his
occupational disease claim and also implicated these same work duties in communications with
his immediate supervisor as evidenced in an accident report from April 2018.15 Appellant’s claim
of sustaining a right shoulder injury due to casing and delivering mail is consistent with the content
of the April 26, 2018 report of Dr. Parwaiz, an attending physician. Although Dr. Parwaiz did not
list specific work duties implicated by appellant, he did indicate that appellant’s treatment was
12

D.H., Docket No. 15-1876 (issued January 29, 2016); D.I., 59 ECAB 158 (2007); Victor J. Woodhams, 41 ECAB
345 (1989).
13

F.S., Docket No. 15-1052 (issued July 17, 2015); Tomas Martinez, 54 ECAB 623 (2003).

14

P.K., Docket No. 08-2551 (issued June 2, 2009); John W. Montoya, 54 ECAB 306 (2003).

15

In this document, appellant’s immediate supervisor indicated that appellant reported that he had been
experiencing some discomfort and pain in his right shoulder while casing mail and, at times, while delivering mail
into curbside boxes on his mail delivery route. The document mentions a date of injury of March 29, 2018, but reading
the document in its entirely reveals that appellant had reported right shoulder symptoms which he related to performing
his work duties over a period of time. Moreover, on the reverse of appellant’s Form CA-2, the supervisor
acknowledged that appellant cased and carried mail on a regular basis and that he had reported having right shoulder
problems.

4

related to a workers’ compensation claim and involved the right shoulder. For these reasons, the
Board finds that appellant’s statements regarding his claimed employment factors are consistent
with the surrounding facts and circumstances and his subsequent course of action.16 There are no
inconsistencies in the evidence of record which would be sufficient to cast serious doubt upon the
validity of appellant’s claim.17
The Board further finds that appellant’s claim is denied because he failed to submit medical
evidence sufficient to establish causal relationship between a diagnosed medical condition and the
established employment factors, i.e., casing and delivering mail over a period of time.18 The only
medical report of record is Dr. Parwaiz’ April 26, 2018 report. However, this report is of no
probative value in establishing appellant’s claim for an employment-related occupational
condition because Dr. Parwaiz did not provide an opinion that appellant sustained a medical
condition due to the now-accepted employment factors of casing and delivering mail. Dr. Parwaiz
mentioned a right shoulder tear, but he did not identify the cause of the condition. The Board has
held that medical evidence which does not offer an opinion regarding the cause of an employee’s
condition is of no probative value on the issue of causal relationship.19
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 his burden of proof to establish an injury
causally related to the accepted factors of his federal employment.

16

M.J., Docket No. 17-1810 (issued August 3, 2018) (finding that, in order to establish the fact that an employee
sustained an injury in the performance of duty, the employee’s statements must be consistent with the surrounding
facts and circumstances and his or her subsequent course of action).
17

D.B., Docket No. 17-2009 (issued March 22, 2018) (finding that an employee’s burden of proof to establish the
occurrence of an injury is not met when there are such inconsistencies in the evidence as to cast serious doubt upon
the validity of the claim).
18

See supra notes 12 through 14.

19

See T.H., Docket No. 18-0704 (issued September 6, 2018); Charles H. Tomaszewski, 39 ECAB 461 (1988).

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ORDER
IT IS HEREBY ORDERED THAT the June 11, 2018 decision of the Office of Workers’
Compensation Programs is affirmed, as modified.
Issued: January 10, 2019
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.W., Appellant
and
DEPARTMENT OF THE AIR FORCE, HILL
AIR FORCE BASE, UT, Employer
__________________________________________

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

Docket No. 15-0590
Issued: July 27, 2016

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 January 23, 2015 appellant filed a timely appeal from the December 19, 2014
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). Since more than
180 days elapsed between the last merit decision on October 17, 2013 to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction to review the merits of the claim.
ISSUE
The issue is whether appellant timely requested a hearing before an OWCP hearing
representative.
FACTUAL HISTORY
On June 13, 2013 appellant, a 69-year-old industrial engineering technician, filed an
occupational disease claim (Form CA-2) alleging that his foot problems were the result of the

1

5 U.S.C. § 8101 et seq.

generic safety boots he was required to wear while working in machine areas on cement floors.
The employing establishment challenged the claim asserting that it was untimely filed.
In a decision dated October 17, 2013, OWCP denied appellant’s claim finding that it was
untimely filed. Appeal rights attached to this decision notified appellant that any hearing request
must be made in writing within 30 calendar days after the date of the decision, as determined by
the postmark of his letter. OWCP mailed the decision to his address of record.
On August 7, 2014 appellant called OWCP for a copy of the denial letter. On August 12,
2014 the employing establishment notified OWCP that it had not received a copy of the denial
letter either. It asked if the denial date could be reset due to nonreceipt.
Appellant completed and signed the appeal request form on October 5, 2014 and the form
was received by OWCP on October 16, 2014. He indicated that he was requesting an oral
hearing before an OWCP hearing representative. Appellant’s request was postmarked
October 6, 2014. He explained that he never received the denial letter until August 2014.
In a decision dated December 19, 2014, OWCP denied appellant’s request for a hearing.
As his October 5, 2014 request was not made within 30 days of the October 17, 2013 decision, it
found that he was not entitled to a hearing as a matter of right. OWCP denied a discretionary
hearing finding that the issue in appellant’s case could be addressed equally well by requesting
reconsideration and submitting evidence not previously considered establishing that his claim for
compensation was filed in a timely manner.
On appeal, appellant argues that he received the October 17, 2013 decision 10 months
later, in August 2014, at which time he also received appeal rights dated March 13, 2014. He
argues that the postmarks on the receipt of these letters demonstrated the delay relative to the
letter dates.2 Appellant adds that he was never informed of his right to file a claim, nor was he
given any information as to time frames for filing.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides:
“Before review under section 8128(a) of this title, a claimant for compensation not
satisfied with a decision of the Secretary under subsection (a) of this section is
entitled, on request made within 30 days after the date of the issuance of the
decision, to a hearing on his claim before a representative of the Secretary.”3
The hearing request must be sent within 30 days (as determined by postmark or other
carrier’s date marking) of the date of the decision for which a hearing is sought.4 OWCP has
2

On August 7, 2014 appellant asked for a copy of the October 17, 2013 denial letter. OWCP promptly sent him
one and when the employing establishment indicated on August 12, 2014 that it had also not received the decision,
OWCP again mailed copies.
3

5 U.S.C. § 8124(b)(1).

4

20 C.F.R. § 10.616(a).

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discretion to grant or deny a request that is made after this 30-day period.5 In such a case it will
determine whether a discretionary hearing should be granted or, if not, will so advise the claimant
with reasons.6
ANALYSIS
In its December 19, 2014 decision, OWCP found that appellant was not entitled to a
hearing as a matter of right because his October 5, 2014 request was not made within 30 days of
the October 17, 2013 decision denying his claim. Appellant argued, however, that he did not
receive the October 17, 2013 decision until August 2014, when the appeal rights had already
expired.
It is presumed, in the absence of evidence to the contrary, that a notice mailed to an
individual in the ordinary course of business was received by that individual. This presumption
arises when it appears from the record that the notice was properly addressed and duly mailed. The
appearance of a properly addressed copy in the case record, together with the mailing custom or
practice of OWCP itself, will raise the presumption that the original was received by the addressee.7
OWCP maintains the ultimate burden of proof that it properly mailed the notice to the
claimant. The presumption that arises from a properly addressed and duly mailed notice is a
rebuttable presumption, one that is based on circumstantial evidence, and one that places on the
claimant the burden of producing any evidence that he or she did not receive the notice.
OWCP’s October 17, 2013 decision denying appellant’s claim was properly addressed.
Under the Mailbox Rule, it is presumed that he received it. However, this is a rebuttable
presumption. The presumption is one that will disappear in light of any evidence that supports
that he did not receive the correspondence.
On August 12, 2014 the employing establishment advised OWCP that it had also not
received a copy of the October 17, 2013 decision. It would thus appear that neither of the parties
to whom OWCP supposedly mailed the decision actually received the intended notice. The
question before the Board is whether evidence of nonreceipt by the employing establishment is
sufficient, in conjunction with appellant’s own assertion of nonreceipt, to rebut the presumption
that arose from the Mailbox Rule.
The Board finds that the evidence of concurrent nonreceipt by a party other than the
claimant has a tendency to make the claimant’s assertion of nonreceipt more probable than it
would be without the evidence. In other words, this evidence tends to support appellant’s
assertion that he did not receive the October 17, 2013 decision. A mere presumption of receipt
follows logically from the fact that a properly addressed and properly mailed notice usually
reaches its intended audience, but it must also be acknowledged that such mail, for whatever
reason, is not always delivered.
5

Herbert C. Holley, 33 ECAB 140 (1981).

6

Rudolph Bermann, 26 ECAB 354 (1975).

7

See Larry L. Hill, 42 ECAB 596 (1991). See generally Annotation, Proof of Mailing by Evidence of Business or
Office Custom, 45 A.L.R. 4th 476, 481 (1986).

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When multiple addressees attest that they never received the notice in question, there can
be some doubt whether the notice was delivered. There may be some question whether the
notice was ever properly mailed, a fact that is not established by evidence in these cases, but only
assumed from the mailing custom or practice of OWCP. Under such circumstances, the
presumption of receipt cannot survive.
The Board finds that appellant has met his burden of producing evidence that supports he
did not receive the October 17, 2013 decision. The presumption of receipt under the Mailbox
Rule is therefore rebutted.
The Board will set aside OWCP’s December 19, 2014 decision denying a hearing and will
remand the case for a de novo decision, properly issued, on appellant’s June 13, 2013 occupational
disease claim. OWCP shall afford him full appeal rights.
CONCLUSION
The Board finds that this case is not in posture for decision. Further action by OWCP is
warranted.
ORDER
IT IS HEREBY ORDERED THAT the December 19, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action.
Issued: July 27, 2016
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Wakefield, RI, Employer
__________________________________________

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

Docket No. 20-0913
Issued: July 6, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On March 20, 2020 appellant filed a timely appeal from a November 6, 2019 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated September 7, 2018, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is 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 March 2, 2015 appellant, then a 49-year-old city letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on that date he injured his left wrist, forearm, and hip when he
slipped on ice underneath snow and put his left hand out to break his fall while in the performance
1

5 U.S.C. § 8101 et seq.

of duty. On the reverse side of the claim form the employing establishment indicated that appellant
stopped work on March 2, 2015. On April 17, 2015 OWCP accepted the claim for a left hip
contusion, left wrist sprain, and left lateral epicondylitis.
A March 20, 2017 medical report by Dr. Mark Coppes, a Board-certified orthopedic
surgeon, indicated that appellant complained of intermittent left wrist pain and dysfunction and
difficulty holding objects for any length of time in his left hand. Dr. Copps reviewed appellant’s
history of injury and medical history, and conducted a physical examination. He indicated that an
x-ray of appellant’s left wrist revealed that he was slightly ulnar positive by 1 millimeter and noted
appellant’s accepted condition of a left wrist sprain. Dr. Coppes recommended that appellant
undergo a functional capacity examination to evaluate his physical limitations due to his accepted
March 2, 2015 employment injury.
A May 16, 2017 medical report by Dr. Frank Graf, a Board-certified orthopedic surgeon,
reviewed appellant’s medical history, medical records, and history of injury. Dr. Graf conducted
a physical examination of appellant’s left wrist, which revealed an increase in laxity in the anterior
and posterior manipulation and radial and ulnar directed manipulation, prominent crepitation, and
tenderness on deep palpation of the radiocarpal and radial navicular joints. He opined that
appellant had left wrist ligamentous injuries and chronic instability at the left wrist and a probable
navicular lunate tear. Dr. Graf stated that appellant was at a practical medical end point for his
wrist condition and indicated that his wrist ligamentous injuries predisposed him to slowly
progressive arthritic changes.
On August 12, 2017 appellant filed a claim for a schedule award (Form CA-7).
In a letter to Dr. Graf dated August 29, 2017, OWCP requested that he provide a permanent
impairment evaluation of appellant for the accepted conditions of left hip contusion, left lateral
epicondylitis, and left wrist sprain. No response was received.
By decision dated March 26, 2018, OWCP denied appellant’s schedule award claim,
finding that the evidence of record was insufficient to establish that appellant sustained a
permanent impairment of a scheduled member due to his accepted March 2, 2015 employment
injury.
On April 4, 2018 appellant requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review.
By decision dated July 23, 2018, an OWCP hearing representative set aside OWCP’s
March 26, 2018 decision and remanded the case for further development. It found that the medical
evidence of record documented left wrist residuals, and it ordered OWCP to send appellant’s
medical records to a district medical adviser (DMA) to opine on whether appellant sustained a
permanent impairment due to his accepted March 2, 2015 work injury.
In an August 7, 2018 report, Dr. Arthur Harris, a Board-certified orthopedic surgeon
serving as OWCP’s DMA, indicated that he reviewed the statement of accepted facts (SOAF)
prepared by OWCP and appellant’s medical records. He also reviewed appellant’s history of
injury and indicated that OWCP accepted appellant’s conditions of left wrist sprain, left hip
contusion, and left epicondylitis. Utilizing Dr. Graf’s physical findings and the application of the
diagnosis-based impairment (DBI) method of the sixth edition of the American Medical
2

Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),2 Dr. Harris
referred to Table 15-3 on page 396 to calculate an eight percent permanent impairment of
appellant’s left upper extremity due to tear of the triangular cartilage of his left wrist. Using the
range of motion (ROM) method of the A.M.A., Guides, he calculated a zero percent left upper
extremity impairment and stated that appellant had full range of motion. Dr. Harris related that
Dr. Graf did not document a physical examination of appellant’s left elbow or hip in his medical
report. He indicated that, as the DBI evaluation method yielded a higher result, appellant sustained
an eight percent permanent impairment of the left upper extremity. Dr. Harris also advised that
appellant reached maximum medical improvement (MMI) on May 16, 2017.
By decision dated August 15, 2018, OWCP expanded the acceptance of appellant’s claim
to include a triangular fibrocartilage tear of the left wrist.
In an August 21, 2018 memorandum to Dr. Harris, OWCP requested clarification of his
August 7, 2018 DMA report. It provided an updated list of appellant’s accepted conditions and
requested details regarding how he calculated appellant’s eight percent left upper extremity
permanent impairment.
In an August 25, 2018 supplemental report, Dr. Harris indicated that, when using the DBI
method to calculate appellant’s permanent impairment, he assigned class 1 in Table 15-3 on page
396 based on appellant’s diagnosis of triangular fibrocartilage tear, as he had mild symptoms. For
net adjustments, he selected a grade modifier for functional history (GMFH) of 1, a grade modifier
for physical examination (GMPE) of 1, and a grade modifier for clinical studies (GMCS) of 1 to
calculate a total of eight percent permanent impairment of the left upper extremity.
By decision dated September 7, 2018, OWCP granted appellant a schedule award for eight
percent permanent impairment of the left upper extremity. The period of the award ran for 24.96
weeks from May 16 through November 6, 2017.
On February 19, 2019 appellant, through his then-representative, requested
reconsideration. He contended that the DMA did not address appellant’s lower extremity
residuals, as appellant’s previously accepted claims from his other OWCP case files were not
provided in OWCP’s SOAF. Appellant’s then representative requested that OWCP to submit a
new SOAF that included appellant’s claims from his other OWCP case files to a DMA along with
Dr. Graf’s May 16, 2017 medical report for a new impairment rating. He additionally stated that
if the DMA could not provide a rating then appellant should be referred for a second opinion
examination.
Appellant submitted a January 24, 2019 medical report by Dr. Graf, which provided
bilateral shoulder physical examination findings.
By decision dated April 24, 2019, OWCP denied appellant’s reconsideration request,
finding that it neither raised substantive legal questions, nor included new and relevant evidence.
On September 9, 2019 appellant, through his then-representative, requested
reconsideration. In an attached statement, he indicated that the DMA did not address appellant’s
2

A.M.A., Guides (6th ed. 2009).

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lower extremity residuals, as his accepted claims from his other OWCP case files were not
provided in OWCP’s SOAF. Appellant’s then representative contended that, because all of
appellant’s claims had the same claims examiner and Dr. Graf mentioned appellant’s lower
extremity impairments in his May 16, 2017 medical report, the claims examiner was aware of
appellant’s other claims and, therefore, had the obligation to further develop the issue of
appellant’s lower extremity impairments. He argued that OWCP shares a responsibility in the
development of the evidence and to see that justice is done and, once OWCP undertakes
development of the record, it must do a complete job in procuring medical evidence that will
resolve the issues in the case. Appellant’s then-representative indicated that he has requested
schedule awards in appellant’s other cases, but has yet to receive a decision. He requested for
OWCP to submit a new SOAF that included appellant’s claims from his other OWCP case files to
a DMA along with Dr. Graf’s May 16, 2017 medical report for a new impairment rating and stated
that, if the DMA could not provide a rating, then appellant should be referred for a second opinion
examination.
By decision dated November 6, 2019, OWCP denied appellant’s reconsideration request,
finding that it neither raised substantive legal questions nor included new and relevant evidence.
LEGAL PRECEDENT
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.3
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.4
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.5 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.6 If the request is timely, but fails to meet at least one of the
3

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
4
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).
5

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 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 (iFECS). See Chapter 2.1602.4b. When determining the one-year period for requesting reconsideration, the
last day of the period should be included unless it is a Saturday, a Sunday, or a legal holiday. See also Chapter
2.1602.4.
6

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

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requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.7
ANALYSIS
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).
In appellant’s September 9, 2019 reconsideration request, appellant’s former
representative contended that OWCP should have solicited an impairment rating for appellant’s
lower extremity residuals. He also asserted that the accepted claims from appellant’s other OWCP
case files were not provided in OWCP’s SOAF. These arguments were raised in appellant’s
February 19, 2019 reconsideration request. Evidence or argument that repeats or duplicates
evidence previously of record has no evidentiary value and does not constitute a basis for
reopening a case.8 Moreover, these arguments are irrelevant to the underlying issue as they pertain
to another claim.9 Thus, appellant 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).10
The Board further finds that appellant has not submitted relevant and pertinent new
evidence not previously considered. His request for reconsideration was not accompanied by
evidence other than his former representative’s statement discussed above. As appellant failed to
provide relevant and pertinent new evidence, he is not entitled to a merit review based on the third
requirement under 20 C.F.R. § 10.606(b)(3).11
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.12
CONCLUSION
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).

7

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

8

C.R., Docket No. 18-1102 (issued February 22, 2019).

9

Supra note 4.

10

D.P., Docket No. 19-0964 (issued October 2, 2019).

11

See A.G., Docket No. 20-0290 (issued June 24, 2020).

12

Id.

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ORDER
IT IS HEREBY ORDERED THAT the November 6, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 6, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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