United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.E., Appellant
and
DEPARTMENT OF THE AIR FORCE,
ANDERSON AIR FORCE BASE, Guam,
Employer
__________________________________________

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

Docket No. 10-520
Issued: December 7, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 14, 2009 appellant filed a timely appeal from a November 13, 2009 merit
decision of the Office of Workers’ Compensation Programs. Pursuant to 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 established that she sustained an injury in the performance
of duty on May 21, 2007 causally related to her federal employment.
FACTUAL HISTORY
On December 20, 2008 appellant, a 43-year-old secretary, filed a traumatic injury claim
(Form CA-1) in which she alleged sustaining fractured pars articulars, disc bulge and
fibromyalgia. She attributed these conditions to a May 21, 2007 incident when, while walking to
the womens’ restroom to clean a coffee pot, she slipped on the heavily waxed tile floor and fell,

landing on her back. Included with appellant’s claim form was the statement of a coworker who
witnessed the incident.
Jeffrey R. Sabido, a physician’s assistant, examined appellant on May 21 and 22, 2007.
On May 21, 2007 he noted that she had fallen and had back pain. On May 22, 2007 Mr. Sabido
noted that appellant was seen for leg pain. On May 30, 2007 he noted that she was seen for
backache, with no visible bruising or bony tip. Mr. Sabido noted that appellant felt her right hip
was bruised. He diagnosed “likely soft tissue injury” and noted that appellant was released from
medical care, without any limitations.
On July 2, 2007 appellant moved to Hawaii and was placed on leave-without-pay
(LWOP) status.
Appellant sought treatment from Dr. Jeffrey J. Schulte, an orthopedic surgeon, who on
July 23, 25, August 20 and September 14, 2007 presented findings on examination and
diagnosed abdominal pain, back strain and depression.
In reports dated September 25 and 28, 2007, Dr. Chuen Po Lau, Board-certified in family
medicine, diagnosed back strain.
On October 26, 2007 Dr. Jerry M. Brown, a diagnostic radiologist, reported that x-rays of
appellant’s lumbosacral spine revealed mild thorocolumbar degenerative changes.
In progress reports dated October 26 to November 16, 2007, Dr. Schulte noted
appellant’s continuing complaints of pain all over her body. He diagnosed back strain,
depression and osteoarthritis.
On November 16, 2007 Dr. Darryl Kiyoshi Itow, a Board-certified radiologist, presented
findings on examination following a radiographic study of appellant’s cervical spine. He
diagnosed mild to moderate mid-cervical spine spondylitic changes.
On March 21, 2008 Dr. Felix Song, a Board-certified diagnostic radiologist, presented
findings following x-rays of appellant’s lumbar spine and diagnosed degenerative changes in the
lumbar spine at the L5-S1 level and “possible” right and left pars articularis fracture.
On April 9, 2008 Dr. Dennis M. Crowley, a Board-certified physiatrist, presented
findings on examination and diagnosed L5 spondylolysis. In his history, he wrote:
“The history for this back pain first began in November 2006 when [appellant]
jumped into a pool awkwardly and experienced acute intense back pain. That
back pain subsided until she had a marked flareup of pain when she fell down in
May 2007.”
On April 15, 2008 Dr. Guy Takashi, a Board-certified radiologist, presented findings
following a computerized tomography (CT) scan of appellant’s lumbar spine and diagnosed right
L5 spondylolysis.

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On May 1, 2008 Dr. David R. Finger, a Board-certified internist, presented findings on
examination and diagnosed fibromyalgia, hypertension and lumbago. He noted that appellant’s
symptoms began a year ago after a fall resulting in acute lower back pain.
On May 8, 2008 Dr. Blain S. Walker, a psychologist, diagnosed fibromyalgia and chronic
pain. He noted that appellant began a pain management program on that day. Dr. Walker
continued to submit progress notes through June 18, 2008.
In progress notes dated May 15 to November 21, 2008, Dr. Schulte noted appellant’s
continuing complaints of back pain and diagnosed back strain. On June 3, 2008 he noted that
she needed a referral for physical therapy due to fibromyalisis. On September 11, 2008
Dr. Schulte also noted a diagnosis of depression.
On June 3, 2008 Dr. Travis R. Liddell, an orthopedic surgeon, reported a provisional
diagnosis of low back pain and right and left pars articularis fracture.
Appellant was also seen on June 3, 2008 by Dr. Christina A. Lewis, who noted that
appellant had related that she had experienced chronic pain in multiple sites for over a year.
Dr. Lewis noted that appellant had discussed falling two times last year and injuring her back.
She diagnosed syndrome presentation with multiple myalgias to low back, right rib area, neck
pain, leg pains and fibromyalgia.
On September 5, 11 and 30, 2008 Dr. Schulte presented findings on examination and
diagnosed depression.
In an October 31, 2008 report, Dr. Amy B. Kogut, Board-certified in family medicine,
presented findings on examination and diagnosed chronic pain syndrome and fibromyalgia.
By separate report dated October 31, 2008, Dr. Thomas R. Burkhard, a radiologist,
presented findings following x-rays of appellant’s cervical spine and diagnosed degenerative
changes in the C4 through C6 vertebrae.
In a November 10, 2008 note, Dr. James Finley, a chiropractor, reviewed appellant’s
history of injury and diagnosed nonallopathic lumbars, nonallopathic lesion cervicals,
nonallopathic lesion upper thoracic and spondylolysis. He opined that appellant was unable to
perform her usual job but could perform sedentary work.
On December 4, 2008 Dr. Lewis reported that appellant was seen for chronic pain to
multiple body sites. She diagnosed degenerative changes of the cervical spine, C4-6 and
fibromyalgia.
On December 22, 2008 Dr. Ricardo Burgos, a Board-certified diagnostic radiologist,
presented findings following a magnetic resonance imaging (MRI) scan of appellant’s lumbar
spine. He diagnosed degenerative disc disease at the L4-5 and L5-S1 levels, chronic right L5
pars defect without spondylolisthesis and lower lumbar spine bilateral facet joint degenerative
arthropathy.

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On January 9, 2009 Dr. Schulte noted that appellant had no new symptoms and had no
generalized pain.
On March 12, 2009 Dr. Ewa S. Stamper, a psychologist, diagnosed moderate “[m]ajor
depressive disorder … in the course of back injury (L5 fracture and disc bulge).”
By decision dated March 26, 2009, the Office accepted that the May 21, 2007
employment incident occurred as alleged but denied the claim because the medical evidence of
record did not establish that the May 21, 2007 employment incident caused a medicallydiagnosed injury.
On April 23, 2009 appellant requested an oral hearing.
Appellant submitted reports, dated July 27, 2009, in which Dr. Stamper diagnosed
moderate “[m]ajor depressive disorder … in the course of back injury (L5 fracture and disc
bulge).” She opined that this condition was related to appellant’s May 21, 2007 injury.
The Office conducted an oral hearing on September 14, 2009 at which appellant and her
attorney were present. Appellant described the May 21, 2007 incident and her subsequent
medical treatment. She moved to Hawaii because her husband, who is active-duty military
personnel, was transferred. Appellant did not have a job waiting for her in Hawaii and, because
she was a civilian employee, her former employer placed her on LWOP status until she found a
job in Hawaii. She registered with the employing establishment in Hawaii but never got a job
because “I was told I had these injuries and that I’m not able to work.”
In a September 17, 2009 report (Form CA-20), Dr. Schulte noted that appellant had fallen
at work on May 30, 2007 and had hit her right hip, right wrist and right elbow. He noted
appellant’s complaints of chronic back and neck pain and diagnosed L5 spondylolysis, lumbar
degenerative joint disease and chronic back and neck pain. By checkmark, Dr. Schulte opined
that these conditions were employment related; that appellant could return to work and noted that
she was so advised on July 12, 2007.
By decision dated November 13, 2009, the Office hearing representative affirmed the
Office’s March 26, 2009 decision because the medical evidence of record did not establish that
the May 21, 2007 employment incident caused a medically-diagnosed injury.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of proof to establish the essential elements of her claim by the weight of the evidence,2
including that she sustained an injury in the performance of duty and that any specific condition
or disability for work for which she claims compensation is causally related to that employment
injury.3 As part of her burden, the employee must submit rationalized medical opinion evidence
1
2
3

5 U.S.C. §§ 8101-8193.
J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).
G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

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based on a complete factual and medical background showing causal relationship.4 The weight
of medical evidence is determined by its reliability, its probative value, its convincing quality,
the care of the analysis manifested and the medical rationale expressed in support of the
physician’s opinion.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.6 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.8
ANALYSIS
The Office accepted that appellant slipped and fell on May 21, 2007. Appellant’s burden
is to demonstrate that this employment incident caused a medically-diagnosed injury.
The Board finds appellant has not submitted rationalized medical evidence which
establishes that appellant sustained an injury as a result of the fall on May 21, 2007.9
Initially after the May 21, 2007 fall appellant was seen by Mr. Sabido who noted
appellant’s fall and recorded complaints of back, leg and right hip pain. By decision dated
May 30, 2007, Mr. Sabido noted that appellant was released from further medical care. While he
noted a “likely soft tissue injury,” healthcare providers such as physician assistants are not
4

Id.; Nancy G. O’Meara, 12 ECAB 67, 71 (1960).

5

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

6

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

7

T.H., 59 ECAB 388 (2008); John J. Carlone, 41 ECAB 354, 356-57 (1989).

8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

9

On appeal, appellant submitted additional evidence. The Board may not consider evidence for the first time on
appeal which was not before the Office at the time it issued the final decision in the case. 20 C.F.R. § 501.2(c). See
J.T., 59 ECAB 293 (2008) (holding the Board’s jurisdiction is limited to reviewing the evidence that was before the
Office at the time of its final decision.)

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“physicians” for purposes of the Act.10 Therefore their reports and opinions do not constitute
probative medical evidence.11
After appellant’s move to Hawaii, she was seen on a number of occasions by Dr. Schulte
who diagnosed several conditions, including L5 spondylolysis, lumbar degenerative joint disease
and “chronic” back and neck pain. By checkmark, Dr. Schulte indicated that these conditions
were employment related. A report purporting to address causal relationship with a checkmark,
unsupported by a reasoned discussion and explanation, has little probative value and is
insufficient to establish causal relationship.12 Dr. Schulte did not explain how appellant’s
May 21, 2007 fall at work caused any of the conditions he diagnosed. The medical record
indicates that appellant’s pain complaints continued to increase over the course of time and the
diagnoses of appellant’s condition also increased over time. Given this medical history, it is
especially important for the treating physician to explain the causal relationship between the
diagnosed conditions and the accepted employment incident. Dr. Schulte never offered this
rationalized medical opinion explaining causal relationship. Consequently, his opinion and
reports do not establish the required causal relationship.
Dr. Crowley noted that appellant’s condition “[flared up] when she fell down in
May 2007.” Dr. Finger noted that appellant’s symptoms began a “year ago” after “a fall
resulting in acute [lower back pain].” Neither physician described the “fall” with any detail or
explained how the accepted employment incident caused the conditions they diagnosed. Thus,
the opinions, notes and reports from Drs. Finger and Crowley have little probative value and do
not establish the required causal relationship.
Appellant submitted a number of medical reports from various physicians which offered
diagnoses of back strain, degenerative changes of the lumbar and thorocolumbar spines, cervical
spondylitic changes, possible bilateral pars articularis fracture, based upon diagnostic
evaluations. However none of these reports provided a history of appellant’s fall on May 21,
2007 and none of these reports offered an opinion regarding the cause of appellant’s condition.
In May 2008 Drs. Finger, Walker, Lewis and Kogut noted a diagnosis of fibromyalgia,
but again none of these physicians explained how appellant’s fall in May 2007 would have led to
the diagnosis of fibromyalgia a year later. The Board also notes that none of these physicians
explained the examination findings that supported this diagnosis.
Dr. Stamper diagnosed “major depressive disorder” and opined that this condition was
related to appellant’s May 21, 2007 injury. She provided no reasoned discussion explaining how
this “injury” caused the condition she diagnosed. Therefore, this evidence does not establish the
requisite causal relationship.

10

5 U.S.C. § 8101(2).

11

Id.; see also G.G., 58 ECAB 389 (2007); Jerre R. Rinehart, 45 ECAB 518 (1994); Barbara J. Williams, 40
ECAB 649 (1989); Jan A. White, 34 ECAB 515 (1983).
12

See Calvin E. King, Jr., 51 ECAB 394 (2000); see also Frederick E. Howard, Jr., 41 ECAB 843 (1990).

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Appellant submitted reports from Dr. Finley, a chiropractor, whose report is of no
probative value on causal relationship because he is not a “physician” for purposes of the Act.13
The term “physician” includes chiropractors only to the extent that their reimbursable services
are limited to treatment consisting of manual manipulation of the spine to correct a subluxation
as demonstrated by x-ray to exist.14 Dr. Finley did not diagnose or treat spinal subluxation and,
thus, he is not a “physician” for purposes of the Act. Accordingly, this evidence does not
establish the requisite causal relationship.
An award of compensation may not be based on surmise, conjecture or speculation.15
Appellant has not submitted sufficient probative medical opinion evidence containing a reasoned
discussion that explains how the accepted May 21, 2007 employment incident caused or
aggravated any of the diagnosed medical conditions. The Board finds appellant has not
established the essential element of causal relationship.
CONCLUSION
The Board finds appellant did not establish that she sustained an injury in the
performance of duty on May 21, 2007 causally related to her federal employment.

13

Id.

14

5 U.S.C. § 8101(2); see also Jack B. Wood, 40 ECAB 95 (1988).

15

Edgar G. Maiscott, 4 ECAB 558 (1952) (holding appellant’s subjective symptoms and self-serving declarations
do not, in the opinion of the Board, constitute evidence of a sufficiently substantial nature).

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ORDER
IT IS HEREBY ORDERED THAT the November 13, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 7, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.D., Appellant
and
DEPARTMENT OF THE NAVY, NORFOLK
NAVAL SHIPYARD, Norfolk, VA, Employer
__________________________________________

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Appearances:
Gwendolyn S. Green, for the appellant
No appearance, for the Director

Docket No. 06-1849
Issued: June 22, 2007

Oral Argument May 18, 2007

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 8, 2006 appellant filed a timely appeal from an April 7, 2006 decision of the
Office of Workers’ Compensation Programs that denied her request for reconsideration because
it was untimely filed and did not establish clear evidence of error. As there is no merit decision
within one year of the filing of this appeal, the Board lacks jurisdiction to review the merits of
appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.1
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and did not demonstrate clear evidence of error.
FACTUAL HISTORY
This case has previously been before the Board. In an August 25, 1999 decision, the
Board found that appellant did not meet her burden of proof to establish that her fibromyalgia
and myofascial pain in her neck, shoulder and right arm were causally related to factors of her
1

20 C.F.R. § 501.2(c).

federal employment.2
On May 25, 2000 the Board denied appellant’s petition for
reconsideration of its August 25, 1999 decision. The law and the facts of the previous Board
decision and orders are incorporated herein by reference.
By decision dated October 7, 2004, the Office denied appellant’s request for
reconsideration on the grounds that it was untimely filed and failed to present clear evidence of
error. On August 28, 2005 appellant requested reconsideration and submitted additional
evidence, which consisted of test results and treatment notes. She also submitted reports dated
October 17, 2002 to November 19, 2004 from Dr. Robert B. Hansen, an attending Boardcertified neurologist who specializes in pain medicine. In an April 7, 2006 decision, the Office
denied appellant’s reconsideration request, again finding that it was untimely and that she did not
demonstrate clear evidence of error.
LEGAL PRECEDENT
The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a) of the Federal Employees’ Compensation Act.3
The Office will not review a decision denying or terminating a benefit unless the application for
review is filed within one year of the date of that decision.4 When an application for review is
untimely, the Office undertakes a limited review to determine whether the application presents
clear evidence that the Office’s final merit decision was in error.5 The Office’s implementing
procedures state that the Office will reopen a claimant’s case for merit review, notwithstanding
the one-year filing limitation set forth at section 10.607,6 if the claimant’s application for review
shows “clear evidence of error.” In this regard, the Office will limit its focus to a review of how
the newly submitted evidence bears on the prior evidence of record.7
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office. The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error. Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error. It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office. To show clear
evidence of error, the evidence submitted must be of sufficient probative value to prima facie
shift the weight of the evidence in favor of the claimant and raise a substantial question as to the

2

Docket No. 97-2798 (issued August 25, 1999).

3

5 U.S.C. §§ 8101-8193.

4

20 C.F.R. § 10.607(b); see Gladys Mercado, 52 ECAB 255 (2001).

5

Cresenciano Martinez, 51 ECAB 322 (2000).

6

20 C.F.R. § 10.607.

7

Alberta Dukes, 56 ECAB ___ (Docket No. 04-2028, issued January 11, 2005).

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correctness of the Office decision. The Board makes an independent determination of whether a
claimant has submitted clear evidence of error on the part of the Office.8
ANALYSIS
The Board notes that, as more than one year had elapsed from the date of issuance of the
August 25, 1999 Board decision, appellant’s request for reconsideration on August 28, 2005 was
untimely filed. The one-year time limitation on reconsideration requests begins to run
subsequent to any merit decisions on the issues, including any such decision of the Board.9
Consequently, appellant must demonstrate clear evidence of error by the Office in denying her
claim for compensation.10
The Board finds that appellant failed to establish clear evidence of error with her
reconsideration request. In considering clear evidence of error, the Office will limit its focus to a
review of how the newly submitted evidence bears on the prior evidence of record.11
With her request for reconsideration, appellant submitted several medical reports that had
previously been reviewed by the Office and the Board. These duplicative reports are insufficient
to establish clear evidence of error.12 Similarly, the reports of various medical studies do not
establish error.13 In treatment notes, Dr. Hansen indicated that appellant had been seen at his
practice since 1993 for diagnoses of widespread myofascial pain consistent with fibromyalgia
syndrome with secondary depression and sleep disorder. He advised that numerous treatment
modalities had not satisfactorily relieved her pain and concluded that she was permanently
disabled. Dr. Hansen stated that he relied on the opinion of his practice partner, Dr. Bruce
Tetalman, a Board-certified physiatrist, that appellant’s conditions were employment related.
8

Nancy Marcano, 50 ECAB 110 (1998).

9

Odell Thomas, 42 ECAB 405 (1991).

10

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB ____ (Docket No. 05-1637, issued October 18, 2005).
The Board notes that Office procedures provide that when a reconsideration decision is delayed beyond 90 days and
the delay jeopardizes the claimant’s right to have review of the merits of the case by the Board, the Office should
conduct a merit review. Janice M. Hatcher, 55 ECAB 155 (2003). In this case, however, the last merit decision was
issued on August 25, 1999. As appellant did not request reconsideration until August 28, 2005, the Office did not
jeopardize her right to merit review by delaying beyond 90 days until April 7, 2006 in issuing its decision.
11

Alberta Dukes, supra note 7.

12

Id.

13

Causal relationship is a medical issue, and the medical evidence required to establish a causal relationship is
rationalized medical evidence. Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000). Rationalized medical evidence
is medical evidence which includes a physician’s rationalized medical opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment factors. The opinion
of the physician must be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant. Leslie C. Moore,
52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994). Neither the mere fact that a disease or condition
manifests itself during a period of employment nor the belief that the disease or condition was caused or aggravated
by employment factors or incidents is sufficient to establish causal relationship. Dennis M. Mascarenas, 49 ECAB
215 (1997). Medical evidence that does not offer any opinion regarding the cause of an employee’s condition is of
limited probative value on the issue of causal relationship. Willie M. Miller, 53 ECAB 697 (2002).

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Dr. Tetalman provided reports dating from August 27, 1996 to May 21, 1997. These reports,
however, were reviewed by the Board in its August 25, 1999 decision and were found to be
insufficient to establish that appellant’s fibromyalgia and myofascial pain were causally related
to factors of her federal employment.14 Dr. Hansen’s newly submitted reports are of insufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of the Office decision.15
In accordance with its internal guidelines and with Board precedent, the Office properly
performed a limited review of the evidence and argument submitted by appellant with her
August 28, 2005 reconsideration request to ascertain whether it demonstrated clear evidence of
error. The Office correctly determined that it did not and thus properly denied appellant’s
untimely request for reconsideration of the merits of her claim.16
CONCLUSION
The Board finds that, as appellant’s August 28, 2005 reconsideration request was not
timely filed and she failed to establish clear evidence of error, the Office properly denied a merit
review of her claim in its April 7, 2006 decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 7, 2006 be affirmed.
Issued: June 22, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

14

Supra note 2.

15

Nancy Marcano, supra note 8.

16

Alberta Dukes, supra note 7.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.G., Appellant
and
U.S. POSTAL SERVICE, NORTH TEXAS
PROCESSING & DISTRIBUTION CENTER,
Coppell, TX, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0779
Issued: December 3, 2021

Case Submitted on the Record

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

On April 28, 2021 appellant filed a timely appeal from a December 31, 2020 merit decision
of the Office of Workers’ Compensation Programs (OWCP). 1 The Clerk of the Appellate Boards
assigned Docket No. 21-0779.2
On November 19, 2011 appellant, then a 39-year-old mail processing clerk, filed an
occupational disease claim (Form CA-2) alleging that she sustained lumbar pain due to factors of
her federal employment, including repetitive sweeping, bending, pushing, and pulling all-purpose
containers. She noted that she first became aware of her condition on April 1, 2010 and realized
its relation to her federal employment on October 28, 2011. On the reverse side of the claim form
1

Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the
Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In light
of the Board’s disposition in this appeal, the oral argument request is denied.
2

The Board notes that, following the December 31, 2020 decision, appellant submitted additional evidence to
OWCP. 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.

the employing establishment indicated that appellant stopped work on October 28, 2011. By
decision dated April 4, 2012, OWCP accepted the claim for sprain of the back, lumbar region and
sacroiliitis, not elsewhere classified. It also authorized a series of coccygeal nerve blocks and
sacroiliac joint injections performed from September 12 through December 12, 2012.
On August 20, 2020 appellant filed a notice of recurrence (Form CA-2a) claiming
disability, commencing August 8, 2020. She stopped work completely as of August 11, 2020.
Appellant reported standing while working nixie mail and then rotating to sitting down to work
the waste mail. She indicated that these jobs and the associated activities of lifting trays back and
forth caused shooting and stabbing back pain that worsened when bending, lifting, standing,
walking, and pushing equipment. Following the original injury, appellant reported working light
duty including restrictions on sitting, standing, walking, bending, pushing, and pulling. She noted
that these restrictions were still in effect.
By decision dated October 5, 2020, OWCP denied appellant’s claim for a recurrence of
disability, finding that the medical evidence of record was insufficient to establish that her accepted
employment injury had worsened to the extent that she was disabled from her work duties,
commencing August 8, 2020. It noted that appellant described new work factors connected to her
disability and recommended that she file a new claim.
On October 22, 2020 appellant requested reconsideration. By decision dated December 31,
2020, OWCP denied modification of the prior decision. It again recommended that she file a new
claim.3
The Board has duly considered the matter and finds that this case is not in posture for
decision.
Under its procedures, OWCP has determined that cases should be administratively
combined where a new injury case is reported for an employee who previously filed an injury
claim for the same part of the body and where correct adjudication depends on cross -referencing
between files. 4 This will allow OWCP to consider all relevant claim files in developing this
schedule award claim.
Appellant has a subsequently-filed claim under OWCP File No. xxxxxx092, which also
alleges injury to appellant’s back. Therefore, for a full and fair adjudication, the Board will remand
the case to OWCP to administratively combine File Nos. xxxxxx362 and xxxxxx092. Following
3

By decision dated May 10, 2021, OWCP denied modification of the December 31, 2020 decision. The Board and
OWCP may not exercise simultaneous jurisdiction over the same issues in a case on appeal. 20 C.F.R. § 501.2(c)(3).
Following the docketing of an appeal before the Board, OWCP does not retain jurisdiction to render a further decision
regarding the issue(s) on appeal until after the Board relinquishes jurisdiction. Id. As this appeal, filed on April 28,
2021, was pending when OWCP issued its May 10, 2021 decision, the May 10, 2021 is null and void as the Board and
OWCP may not simultaneously have jurisdiction over the same issue. See 20 C.F.R. § 10.626; see also A.C., Docket
No. 18-1730 (issued July 23, 2019); M.C., Docket No. 18-1278, n.1 (issued March 7, 2019); Russell E. Lerman, 43
ECAB 770 (1992); Douglas E. Billings, 41 ECAB 880 (1990).
4

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000). See also Order Remanding Case, M.W., 20-1221 (issued July 6, 2021).

2

this and other such further development as deemed necessary, OWCP shall issue a de novo
decision.
IT IS HEREBY ORDERED THAT the December 31, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: December 3, 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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Garden City, NY, Employer
__________________________________________

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Appearances:
Paul Kalker, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-1224
Issued: March 9, 2011

Case Submitted on the Record

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

JURISDICTION
On March 30, 2010 appellant, through her representative, timely appealed a March 11,
2010 merit decision of the Office of Workers’ Compensation Programs terminating her
compensation benefits. Pursuant to 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 the Office met its burden of proof to terminate appellant’s
compensation effective March 11, 2010 on the grounds that she no longer had any residuals or
disability causally related to her accepted employment-related injuries.
FACTUAL HISTORY
On June 20, 2007 appellant, then a 59-year-old mail handler, filed a traumatic injury
claim alleging that she hurt her arms and legs and had body aches when she fell off a truck that
pulled away from a platform, causing her to land on her buttocks. She stopped work
June 20, 2007. The Office accepted the conditions of cervical sprain and right shoulder sprain

and paid compensation benefits. On April 16, 2008 appellant returned to part-time limited-duty
work and eventually increased her work hours to six hours a day. On November 13, 2008 she
underwent authorized right shoulder arthroscopic subacromial decompression surgery.
Appellant returned to work full-time limited duty on April 21, 2009. She stopped work on
August 7, 2009 and did not return. The Office accepted a recurrence of disability beginning
August 7, 2009.
In an August 7, 2009 report, Dr. Mark G. Grossman, an attending Board-certified
orthopedic surgeon, who performed appellant’s shoulder surgery, advised that she had neck pain,
bilateral shoulder pain and low back pain. He provided an impression of cervical sprain,
bilateral shoulder impingement and low back pain and opined that she was totally disabled.
Dr. Grossman stated that appellant’s job was too repetitive and she could not perform such work
after having shoulder surgery. He further opined that there was a causal connection between her
right shoulder pain, cervical pain and her accident at work and explained there was no
preexisting injury to his knowledge. In a September 18, 2009 report, Dr. Grossman continued to
opine that appellant was disabled and that her job was too repetitive. He subsequently referred
appellant to Dr. B. Rao Yadlapalli, a Board-certified neurologist.
In a September 25, 2009 report, Dr. Yadlapalli noted that on June 20, 2007 appellant fell
five feet down onto concrete while at work. He noted findings on examination and provided an
assessment of cervical sprain and possible cervical radiculopathy. On October 23, 2009
Dr. Yadlapalli performed an electromyography (EMG) and nerve conduction study (NCS) and
provided an impression of mild bilateral median nerve neuropathy at the wrist. No evidence was
found of cervical radiculopathy.
Dr. Grossman continued to opine that appellant was disabled and her job was too
repetitive. In a September 15, 2009 report, he advised that she had permanent disability to the
cervical spine and both shoulders. Dr. Grossman recommended a neurological consult as
appellant’s neck continued to be an issue. As for her shoulders, he indicated that appellant had
limited range of motion (ROM). Dr. Grossman stated that appellant had flexion of 0 to 145
degrees on the operated shoulder, with normal being 0 to 160 degrees. He further stated that she
always complained of her neck and bilateral shoulder conditions and that all three conditions
arose from her June 20, 2007 work injury. Dr. Grossman further indicated that appellant’s job
was so repetitive that it caused permanent damage to those areas. In a November 30, 2009
report, he advised that, although the EMG was negative, he was still concerned about
radiculopathy. Dr. Grossman recommended a cervical spine magnetic resonance imaging (MRI)
scan to see if appellant’s pain was coming from her neck.
To determine whether appellant continued to have residuals of her June 20, 2007 work
injury and whether she was capable of working, the Office referred appellant to Dr. Peter Leo
Varriale, a Board-certified orthopedic surgeon, for a second opinion evaluation.1 In a
December 9, 2009 report, Dr. Varriale referenced his previous examinations of her and advised
1

The record indicates that Dr. Varriale previously examined appellant on November 29, 2007, March 10 and
July 24, 2008 at the request of the Office. In his previous reports, he opined that her employment-related conditions
had not resolved and, in his July 24, 2008 report, he recommended that she undergo surgery to repair her right
rotator cuff.

2

that she currently presented with complaints of bilateral shoulder pain, minimal neck pain and
mild low back pain. He noted reviewing the history of injury, medical records and a statement of
accepted facts. Examination of the cervical spine revealed no tenderness or spasm, full ROM
and no atrophy of the paraspinal muscles, forearms or upper arms. Appellant had full strength
and no sensory deficit. The right shoulder had normal ROM, no tenderness and no atrophy. The
shoulder had full strength with no evidence of instability or impingement. Left shoulder
examination was also normal as was the examination of the lumbar spine. Dr. Varriale
diagnosed resolved cervical and lumbosacral strain; resolved surgery to the right shoulder and
resolved strain to the left shoulder. He opined that, while the diagnosed conditions were caused
by the June 20, 2007 work injury, the conditions had resolved. Dr. Varriale opined that appellant
could perform all the activities of daily living including her date-of-injury job without
restrictions. In an accompanying December 11, 2009 work restriction evaluation, he reiterated
that her conditions had resolved and that she could return to work without restriction.
A December 17, 2009 MRI scan of the cervical spine noted degenerative disc disease at
C3-4 through C6-7. Central herniation at C6-7 was found with multilevel encroachment of
foramina right greater than left.
In a January 5, 2010 Form CA-20, Dr. Grossman noted the history of injury as well as the
MRI scan results of the cervical spine and diagnosed right shoulder bursitis/tendinitis and
cervical stenosis -- disc herniation. He opined, with a checkmark “yes,” that such conditions
were caused by appellant’s employment activity. Dr. Grossman further stated that she was
disabled from August 7, 2009 to the present and requested physical therapy and copies of her
physical therapy referrals and physical therapy notes were of record.
On February 9, 2010 the Office proposed to terminate appellant’s wage-loss and medical
benefits, finding that the weight of the medical evidence established that the accepted medical
conditions had resolved. It accorded determinative weight to the opinion of Dr. Varriale, the
second opinion specialist.
In response to the proposed termination of benefits, counsel submitted two statements. In
both his February 7 and 17, 2010 letters, he requested the Office to expand appellant’s claim to
include right shoulder rotator cuff tear, cervical radiculopathy and left shoulder impingement. In
his February 17, 2010 letter, counsel argued that the Office failed to refer her to an impartial
medical examiner prior to terminating benefits.
In a January 7, 2010 report, Dr. Nomaan Ashraf, a treating orthopedic surgeon, noted
appellant sustained an injury while at work several years ago when she fell. He noted that she
had been having neck pain and right shoulder pain radiating symptoms into her hands.
Dr. Ashraf noted that the results of the physical and neurological examination were normal and
his review of the cervical spine MRI scan. He provided an impression of: “This is a 61-year-old
female postwork injury with multilevel cervical degenerative disc disease and neuroforaminal
narrowing on the right side.”
In a January 25, 2010 report, Dr. Grossman indicated that appellant originally injured her
shoulder and neck when she fell off a truck. He noted that a subacromial decompression had
helped, but she was far from perfect. Dr. Grossman indicated that her neck showed herniations

3

and she had carpal tunnel from her repetitive work. He noted that the results of his physical
examination and provided an impression of bilateral shoulder tendinitis status post right
subacromial decompression, cervical herniations and bilateral carpal tunnel. Dr. Grossman
opined that all appellant’s conditions were caused by her chronic position at work and that she
was totally disabled. He also continued to prescribe physical therapy and provided physical
therapy reports.
By decision dated March 11, 2010, the Office terminated appellant’s compensation
benefits effective that date finding that her accepted conditions had resolved.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.2 It may not terminate compensation without establishing
that disability ceased or that it was no longer related to the employment.3 The Office’s burden of
proof includes the necessity of furnishing rationalized medical opinion evidence based on a
proper factual and medical background.4
The right to medical benefits for an accepted condition is not limited to the period of
entitlement to compensation for disability.5 To terminate authorization for medical treatment,
the Office must establish that appellant no longer has residuals of an employment-related
condition, which requires further medical treatment.6
ANALYSIS
The Office accepted that appellant sustained cervical sprain and right shoulder sprain and
authorized her right shoulder surgery. It terminated her compensation benefits effective
March 11, 2010 on the grounds that the accepted conditions had resolved without residuals. The
Board finds the Office properly terminated appellant’s benefits.
Dr. Grossman opined that appellant was totally disabled and needed physical therapy. As
noted above, the accepted conditions were cervical sprain and right shoulder sprain. Although
appellant submitted a number of reports from Dr. Grossman, they contained additional diagnoses
which included bilateral shoulder impingement, low back pain, right shoulder bursitis/tendinitis
and cervical stenosis -- disc herniation, and bilateral carpal tunnel. Before any resulting
disability is compensable, the evidence must establish that the diagnosed conditions are
employment related. She has the burden to establish that a specific condition is causally related

2

Jorge E. Sotomayor, 52 ECAB 105, 106 (2000).

3

Mary A. Lowe, 52 ECAB 223, 224 (2001).

4

See Del K. Rykert, 40 ECAB 284 (1988).

5

T.P., 58 ECAB 524 (2007).

6

I.J., 59 ECAB 408 (2008); Kathryn E. Demarsh, 56 ECAB 677 (2005).

4

to the employment injury.7 In order to establish causal relationship, a physician’s opinion must
be based on a complete factual and medical background8 and must be supported by medical
rationale.9
Dr. Grossman did not provide a reasoned opinion on causal relationship between any
diagnosed condition and the employment injury. In his initial and most recent reports, he
attributes appellant’s conditions to her job being too repetitive; however, the employment injury
in this claim related to the traumatic incident of June 20, 2007. In his September 15, 2009 report,
Dr. Grossman advised that she had permanent disability to her cervical spine and bilateral
shoulders, noting there was a limited ROM and lack of preexisting symptoms. However, the
Office only accepted a right shoulder strain, not a bilateral shoulder condition. Dr. Grossman did
not provide any medical rationale as to how or why the limited ROM to appellant’s right
shoulder was causally related to the work injury. Additionally, the lack of symptoms prior to the
employment incident does not provide rationalized support of a causal relationship between a
condition and employment.10 Also without any additional explanation Dr. Grossman’s
January 5, 2010 duty status report is of little probative value on the issue of causal relationship.11
Dr. Ashraf opined that the work injury caused multilevel cervical degenerative disc
disease and neuroforaminal narrowing on the right side. The Office did not accept the conditions
of cervical degenerative disc disease and neuroforaminal narrowing and Dr. Ashraf failed to
provide a rationalized medical explanation as to how those conditions were causally related to
the June 20, 2007 work injury.12
The remaining medical evidence of record is insufficient to establish appellant’s claim.
Dr. Yadlapalli’s report lacks an opinion on causal relation. Therefore, it is of limited probative
value. Reports of EMG’s, MRI scans, NCS’s and other test results are of diminished probative
value as they do not contain an opinion on causal relationship. Appellant also submitted several
reports from a physical therapist. These reports, however, are of no probative value, as physical
therapists are not considered physicians under the Federal Employees’ Compensation Act and, as
a result, they are not competent to provide a medical opinion.13

7

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

8

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

9

Gary L. Fowler, 45 ECAB 365 (1994).

10

See, e.g., Walter J. Neumann, Sr., 32 ECAB 69, 72 (1980).

11

See Barbara J. Williams, 40 ECAB 649, 656 (1989) (the checking of a box is of little probative value on causal
relationship without additional explanation).
12

See T.M., 60 ECAB ___ (Docket No. 08-975, issued February 6, 2009) (for conditions not accepted or
approved by the Office as being due to an employment injury, the claimant bears the burden of proof to establish
that the condition is causally related to the employment injury through the submission of rationalized medical
evidence).
13

Barbara J. Williams, supra note 11; A.C., 60 ECAB __ (Docket No. 08-1453, issued November 18, 2008); 5
U.S.C. § 8101(2).

5

The Board finds that Dr. Varriale’s second opinion report is sufficiently rationalized to
establish that appellant’s employment-related conditions have resolved.14 Dr. Varriale’s
comprehensive opinion is based on a proper factual and medical history in that he had the benefit
of an accurate and up-to-date statement of accepted facts, provided a thorough factual and
medical history and accurately summarized the relevant medical evidence. He also provided
medical rationale for his opinion. Dr. Varriale reported normal findings on examination, found
that there were no continuing residuals of the authorized right shoulder surgery and thus opined
that the accepted conditions had resolved. He additionally opined that appellant could perform
all the activities of daily living including her date-of-injury job without restrictions. Dr. Varriale
found no basis on which to attribute any continuing condition to the June 20, 2007 work injury.
There is no medical evidence showing any continuing residuals or disability due to appellant’s
accepted conditions. Thus, the Office met its burden of proof to terminate her benefits as the
weight of the medical evidence indicates that residuals of the employment-related conditions had
ceased effective March 11, 2010. While counsel contended both before the Office and on appeal
that the Office should expand the claim to include appellant’s other diagnosed conditions, as
noted above, the medical reports of record do not establish causal relationship. Additionally, as
the current medical evidence provides support that the accepted conditions have resolved, the
attorney’s argument that a referral to an impartial medical specialist is necessary lacks merit. A
referral to an impartial medical specialist is only necessary when there exist opposing medical
reports of virtually equal weight and rationale.15
CONCLUSION
The Board finds that the Office properly terminated appellant’s wage-loss and medical
benefits effective March 11, 2010.

14

Michael S. Mina, 57 ECAB 379 (2006) (in assessing medical evidence, the weight of such evidence is
determined by its reliability, its probative value and its convincing quality; the opportunity for and thoroughness of
examination, the accuracy and completeness of the physician’s knowledge of the facts and medical history, the care
of analysis manifested and the medical rationale expressed in support of the physician’s opinion are facts, which
determine the weight to be given to each individual report).
15

5 U.S.C. § 8123(a); Shirley L. Steib, 46 ECAB 309, 317 (1994).

6

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated March 11, 2010 is affirmed.
Issued: March 9, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.A., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Battlecreek, MI, Employer
__________________________________________

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

Docket No. 17-0903
Issued: October 10, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 20, 2017 appellant, through counsel, filed a timely appeal from a February 9,
2017 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 to consider the merits of the case.

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.

ISSUE
The issue is whether appellant has met his burden of proof to establish that he sustained a
permanent impairment as a result of his accepted employment injuries warranting a schedule
award.
FACTUAL HISTORY
On April 5, 2012 appellant, then a 55-year-old housekeeping aid, filed a traumatic injury
claim (Form CA-1) alleging that on April 4, 2012 he injured his right shoulder and neck area
lifting and moving a dresser.3 He returned to full-time light-duty work.
Appellant underwent a magnetic resonance imaging (MRI) scan on April 30, 2012 which
demonstrated C3-4 and C4-5 degenerative disc disease with moderate stenosis at C3-4 and left
cord impingement at C4-5. He underwent a right shoulder MRI scan on the same date which
was normal.
On August 2, 2012 Dr. Michael Kasten, a Board-certified orthopedic surgeon, examined
appellant due to his cervical condition which he attributed to an injury at work as well as a bad
coughing spell. He noted that appellant had experienced this condition for a year. Dr. Kasten
reported that appellant’s pain had been present since an August 17, 2011 work injury. He
recommended back surgery due to severe cervical spondylosis and stenosis with persistent right
arm pain. Dr. Kasten released appellant to return to sedentary work on August 7, 2012.
By decision dated August 10, 2012, OWCP denied appellant’s traumatic injury claim
finding that he had not established a causal relationship between his diagnosed cervical
conditions and his accepted employment incident.
In a note dated September 7, 2012, Dr. Joseph Burkhardt, an osteopath, diagnosed left
C4-5 disc herniation. He attributed appellant’s herniated cervical disc to moving carts at work
on August 17, 2011 and moving a dresser on April 4, 2012. Dr. Burkhardt noted, “There is a
likely association with the findings on MRI [scan] and the reported incidents at work.”
On September 17, 2012 appellant requested reconsideration of the August 10, 2012
decision. He stopped work on October 2, 2012 after the employing establishment terminated his
light-duty assignment. By decision dated November 28, 2012, OWCP accepted appellant’s
April 4, 2012 claim for aggravation of multilevel cervical disc disease and disc herniation at
C4-5 with radiculopathy.
Appellant returned to full-time limited-duty work on
December 10, 2012.

3

Appellant has several traumatic injury claims accepted by OWCP. On December 22, 2006 he sustained a pulled
back muscle in a short form closure case. File No. xxxxxx864. On September 18, 2008 appellant was attacked by a
patient. OWCP accepted this claim for right shoulder and cervical spine sprain. File No. xxxxxx599. On June 23,
2010 appellant sustained a work-related groin strain. File No. xxxxxx136. On June 21, 2011 appellant sustained a
fractured tooth when a mop handle struck him in the face. File No. xxxxxx196. Appellant sustained a right
trapezius strain on March 20, 2010 after lifting a bag of soiled linen. OWCP denied his claim for permanent
impairment of the right upper extremity on November 10, 2015. File No. xxxxxx735.

2

Appellant filed a notice of recurrence (Form CA-2a) alleging that on December 19, 2012
he had stopped work as a result of his April 4, 2012 employment injury.
On January 17, 2013 OWCP referred appellant for a second opinion evaluation with
Dr. Donald C. Austin, a Board-certified neurosurgeon. It provided Dr. Austin with a statement
of accepted facts (SOAF) which included three accepted employment injuries to the neck and
shoulders. These claims were File No. xxxxxx599 which resulted in accepted conditions of right
supraspinatus strain and cervical strain following a June 24, 2008 attack by a patient; File No.
xxxxxx735 which resulted in a right trapezius strain as a result of lifting heavy bags of linen on
August 17, 2011; and the current claim for injury on April 4, 2012 as a result of moving a
dresser.
On February 6, 2013 OWCP accepted appellant’s recurrence of disability claim.
Appellant had returned to light-duty work on January 24, 2013. He stopped work again on
April 30, 2013.
In a report dated February 6, 2013, Dr. Austin noted appellant’s employment injury on
June 24, 2008 when he was assaulted by a patient. Appellant reported that he returned to fullduty, but continued to experience pain radiating down the middle of his back. On August 17,
2011 he developed pain in his right neck and shoulder lifting a heavy bag at work. Appellant
returned to light-duty work after August 17, 2011 and continued to perform light duty.
Dr. Austin did not describe the April 4, 2012 employment injury, but mentioned a motor vehicle
accident occurring in 2011. He concluded that the accepted condition of aggravation of cervical
disc herniation with radiculopathy had ceased based on objective findings, although appellant
reported subjective symptoms. Dr. Austin concluded that appellant could return to full duty in
his date-of-injury position.
In a note dated May 1, 2013, Dr. Burkhardt recommended that appellant undergo surgery
for his herniated disc and radiating pain into his arm. Appellant retired from the employing
establishment on June 14, 2013. He elected to receive benefits from the Office of Personnel
Management (OPM) effective June 14, 2013.
OWCP declared a conflict in the medical opinion evidence between Drs. Burkhardt and
Austin. In a letter dated April 9, 2014, it referred appellant for an impartial medical examination
with Dr. Clifford Buchman, an osteopath Board-certified in orthopedics. Dr. Buchman
completed a report on May 6, 2014 and noted the accepted condition of aggravation of multilevel
cervical disc herniations at C4-5. He described appellant’s employment injuries in 2008 and
2011. Dr. Buchman diagnosed neck pain without clinical findings of radiculopathy. He reported
that appellant had no objective findings and that his accepted condition had resolved.
Dr. Buchman noted that appellant’s MRI scan had shown pathology on the left, while appellant’s
symptoms were on the right. He opined that appellant could return to his regular full-duty
position.
In a letter dated July 1, 2014, OWCP proposed to terminate appellant’s entitlement to
wage-loss compensation and medical benefits due to his April 4, 2012 employment injury as it
found the weight of the medical evidence established that his work-related condition of

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aggravation of multilevel cervical disc disease and herniation at C4-5 with radiculopathy had
resolved. Appellant was allotted 30 days to submit additional evidence, but failed to do so.
By decision dated August 21, 2014, it terminated appellant’s wage-loss compensation
and medical benefits effective that date.
Appellant underwent electromyogram (EMG) and nerve conduction velocity (NCV)
studies on July 16, 2014. These studies demonstrated bilateral carpal tunnel syndrome with no
evidence of cervical radiculopathy or generalized peripheral neuropathy.
On August 5, 2014 Dr. Burkhardt noted that appellant was involved in a motor vehicle
accident on July 8, 2014. He diagnosed cervical degenerative disc disease and bilateral moderate
carpal tunnel syndrome.
In a note dated April 22, 2015, Dr. Burkhardt opined that appellant had reached
maximum medical improvement (MMI). Appellant filed a schedule award claim (Form CA-7)
on September 4, 2015.
On September 29, 2015 OWCP requested additional medical evidence addressing
appellant’s permanent impairment for schedule award purposes. It afforded appellant 30 days
for a response. Appellant did not respond within the time allotted.
By decision dated November 5, 2015, OWCP denied appellant’s claim for a schedule
award as the medical evidence did not establish permanent impairment to a scheduled member.
Counsel requested an oral hearing from OWCP’s Branch of Hearings and Review on
November 17, 2015.
Appellant testified at the oral hearing before an OWCP hearing representative on
July 14, 2016. He asserted that his cervical condition resulted in symptoms in his arms.
On August 4, 2016 appellant underwent a cervical spine MRI scan which demonstrated
moderate central stenosis and mild right foraminal stenosis at C3-4, as well as moderate central
and left foraminal stenosis at C4-5 with mild right foraminal stenosis, and moderate right
foraminal stenosis at C6-7 with mild central and left foraminal stenosis. He also underwent
EMG and NCV studies on August 4, 2016 which demonstrated mild median nerve compression
at both wrists and possible peripheral neuropathy in the lower extremities. On August 9, 2016
appellant underwent a functional capacity evaluation conducted by Stephen Williams, a physical
therapist.
On September 8, 2016 Dr. Neil Allen, a Board-certified neurologist, examined appellant
to determine his permanent impairment for schedule award purposes. He described an
employment incident on September 18, 2008 during which appellant was assaulted by a patron.
Dr. Allen opined that appellant sustained a cervical spine injury with pain and numbness
extending into both hands and difficulty swallowing. He found that appellant had 18 percent

4

motor impairment of the upper extremities based on the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).4
In a decision dated September 28, 2016, OWCP’s hearing representative found that
appellant had not submitted the necessary medical evidence to establish permanent impairment
of a scheduled member warranting a schedule award.
In a letter dated November 15, 2016, counsel requested reconsideration of the
September 28, 2016 OWCP decision.
By decision dated February 9, 2017, OWCP reviewed the merits of appellant’s claim and
found that he had submitted insufficient medical evidence to establish permanent impairment of
his upper extremities warranting a schedule award. It found Dr. Allen did not attribute
appellant’s current permanent impairment to the accepted employment injury on April 4, 2012.
OWCP found that Dr. Allen’s report was not based on an accurate history of injury and was
insufficient to meet appellant’s burden of proof to establish permanent impairment as a result of
his accepted employment injury.
LEGAL PRECEDENT
The schedule award provision of FECA5 and its implementing regulations6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
loss of use of scheduled members or functions of the body. FECA, however, does not specify
the manner in which the percentage loss of a member shall be determined. The method used in
making such determination is a matter which rests in the discretion of OWCP. For consistent
results and to ensure equal justice, the Board has authorized the use of a single set of tables so
that there may be uniform standards applicable to all claimants. OWCP evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the A.M.A.,
Guides.7
It is the claimant’s burden of proof to establish a permanent impairment of the scheduled
member or function as a result of any employment injury.8 OWCP procedures provide that, to
support a schedule award, the file must contain competent medical evidence which shows that
the impairment has reached a permanent and fixed state and indicates the date on which this

4

For new decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and
Permanent Disability Claims, Chapter 2.808.5a (February 2013); Federal (FECA) Procedure Manual, Part 3 -Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Supra note 4.

8

Tammy L. Meehan, 53 ECAB 229 (2001); K.S., Docket No. 15-1082 (issued April 18, 2017).

5

occurred (date of MMI), describes the impairment in sufficient detail so that it can be visualized
on review, and computes the percentage of impairment in accordance with the A.M.A., Guides.9
No schedule award is payable for a member, function or organ of the body not specified
in FECA or in the regulations.10 Because neither FECA nor the regulations provide for the
payment of a schedule award for the permanent loss of use of whole person or the back or
spine,11 no claimant is entitled to such an award.12
Amendments to FECA, however, modified the schedule award provisions to provide for
an award for permanent impairment to a member of the body covered by the schedule regardless
of whether the cause of the impairment originated in a scheduled or nonscheduled member. As
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to a limb even though the cause of the impairment
originated in the spine.13
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. Recognizing that certain jurisdictions, such as
federal claims under FECA, mandate ratings for extremities and preclude ratings for the spine,
the A.M.A., Guides has offered an approach to rating spinal nerve impairments consistent with
sixth edition methodology.14 OWCP has adopted this approach for rating impairment of the
upper or lower extremities caused by a spinal injury, as provided in section 3-700 of its
procedures which memorializes proposed tables outlined in a July/August 2009, The Guides
Newsletter.15
ANALYSIS
The Board finds that this case is not in posture for a decision.
The record before the Board is replete with references to appellant’s previously accepted
traumatic injury claims for cervical spine injuries. The SOAF provided to the second opinion
physician, Dr. Austin, and impartial medical specialist, Dr. Buchman, addressed these injuries.
The medical evidence that appellant provided in support of his claim for permanent impairment
9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5 (March 2017).
10

W.D., Docket No. 10-274 (issued September 3, 2010); William Edwin Muir, 27 ECAB 579 (1976).

11

FECA itself specifically excludes the back from the definition of organ. 5 U.S.C. § 8101(19).

12

W.D., supra note 10. Timothy J. McGuire, 34 ECAB 189 (1982).

13

W.D., supra note 10. Rozella L. Skinner, 37 ECAB 398 (1986).

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.5c(3) (February 2013); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards,
Chapter 3.700 Exhibit 4 (January 2010).
15

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700 (January 2010)
(Exhibits 1, 4).

6

of his upper extremity due to cervical spine injury referenced his 2008 employment injury when
he was attacked by a patient.
OWCP procedures provide that cases should be combined when correct adjudication of
the issues depends on frequent cross-reference between files. For example, if a new injury case
is reported for an employee who previously filed an injury claim for a similar condition or the
same part of the body, doubling is required.16 In the instant case, the record reveals that
appellant had a series of previously accepted claims for cervical injuries beginning in 2006, File
No. xxxxxx864; 2008, File No. xxxxxx599; and 2010, File No. xxxxxx735. Appellant
subsequently filed the current claim for cervical injury on April 4, 2012, File No. xxxxxx651.
The factual and medical evidence pertaining to appellant’s previous cervical injuries are not
contained in the case record.
Appellant filed a schedule award claim and his physician attributed his permanent
impairment to the September 18, 2008 employment injury when appellant was attacked by a
patient which OWCP accepted for right shoulder and cervical spine sprain.17 OWCP failed to
properly combine or request combination of the present case record with the record of the
September 18, 2008 employment injury which, unlike the current employment injury, was
thoroughly discussed by OWCP referral physicians and appellant’s physician in addressing
permanent impairment.18
The Board will consequently remand the case for OWCP to combine the current case
record with File Nos. xxxxxx864, xxxxxx599, and xxxxxx735, and determine whether appellant
has sustained a permanent impairment of a scheduled member due to these injuries. Following
this and any further development deemed necessary, it shall issue a de novo decision on the
merits.
CONCLUSION
The Board finds this case is not in posture for a decision.

16

See B.T., Docket No. 15-0571 (issued May 26, 2015); A.M., Docket No. 14-9 (issued April 15, 2014); Federal
(FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(October 2014).
17

File No. xxxxxx599.

18

W.G., Docket No. 15-0416 (issued July 13, 2015); V.T., Docket No. 14-0296 (issued May 5, 2014).

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ORDER
IT IS HEREBY ORDERED THAT the February 9, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
action consistent with this decision of the Board.
Issued: October 10, 2017
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fairfax, VA, Employer
__________________________________________

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

Docket No. 18-0609
Issued: February 25, 2020

Case Submitted on the Record

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

JURISDICTION
On January 30, 2018 appellant filed a timely appeal from an August 25, 2017 merit
decision and a December 7, 2017 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish a back injury
in the performance of duty on July 10, 2017, as alleged; and (2) whether OWCP properly denied
appellant’s request for a review of the written record as untimely filed pursuant to 5 U.S.C. § 8124.
FACTUAL HISTORY
On July 10, 2017 appellant, then a 51-year-old city letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on July 10, 2017 he heard a popping sound in his back and
1

5 U.S.C. § 8101 et seq.

experienced “severe back pain” as he was bending over to load for a delivery while in the
performance of duty. He stopped work that day. On the reverse side of the claim form, appellant’s
supervisor checked a box marked “Yes” indicating that appellant had been injured in the
performance of duty.
Appellant submitted an accident investigation worksheet indicating that he was injured on
July 10, 2017 at 8:30 a.m. when he “picked up a tub to place in a hamper [and] heard a popping
sound in his back and felt pain.”
A hospital report dated July 10, 2017, indicated that appellant was diagnosed with acute
low back pain without sciatica, unspecified back pain laterally, and a lumbar strain.
In an undated witness statement, a coworker testified that he saw appellant on July 10,
2017 around 8:30 a.m., trying to pick up a yellow tray to put it on a hamper and injuring his back.
He indicated that he saw appellant bending his knees as he was picking up the tray.
In a duty status report (Form CA-17) dated July 10, 2017, an unidentifiable healthcare
provider diagnosed “increased tone and tender [l]eft lumbar region” and described how the injury
occurred “while loading hamper bent over and pulled a tray and heard popping sound.”
On July 14, 2017 the employing establishment controverted the claim and argued that no
medical evidence had been provided to establish causal relationship between appellant’s medical
conditions and the factors of his federal employment.
In a July 25, 2017 development letter, OWCP indicated that when appellant’s claim was
received it appeared to be a minor injury that resulted in minimal or no lost time from work and,
based on these criteria and because the employing establishment did not controvert continuation
of pay or challenge the case, payment of a limited amount of medical expenses was
administratively approved. It stated that it had reopened the claim for formal consideration of the
merits because he had not returned to work in a full-time capacity. OWCP provided a development
questionnaire for appellant’s completion to substantiate the factual basis of his claim. Appellant
was afforded 30 days to respond.
Appellant returned to full-time, regular-duty work on August 1, 2017.
By decision dated August 25, 2017, OWCP found that the evidence of record failed to
establish that the July 10, 2017 employment incident occurred as alleged. It noted that appellant
had failed to respond to the development questionnaire.
Appellant subsequently submitted a July 10, 2017 hospital report, wherein Dr. Daniel J.
Hermes, a Board-certified emergency medicine specialist, noted that appellant had reported
hurting his back while lifting approximately five pounds at work. Dr. Hermes diagnosed back pain
without sciatica, unspecified back pain laterally, and a lumbar strain. An accompanying diagnostic
study dated July 10, 2017 revealed very minimal arthritis.
On an appeal request form dated October 23, 2017 appellant requested a review of the
written record by a representative of OWCP’s Branch of Hearings and Review. The form was
postmarked October 24, 2017.
2

By decision dated December 7, 2017, an OWCP hearing representative denied appellant’s
request for a review of the written record, finding that his request was untimely because it was not
made within 30 days of its August 25, 2017 decision. It further indicated that it had exercised its
discretion and denied the request as the relevant issue of the case could be addressed by requesting
reconsideration and submitting evidence not previously considered by OWCP.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,2 that an injury was sustained in the performance of duty as alleged
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.3 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.4
To determine whether an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established.5 Fact of injury
consists of two components that must be considered conjunctively. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment incident
that is alleged to have occurred.6 Second, the employee must submit sufficient medical evidence
to establish that the employment incident caused a personal injury.7
An employee’s statement that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong or persuasive evidence.8 Moreover,
an injury does not have to be confirmed by eyewitnesses. The employee’s statement, however,
must be consistent with the surrounding facts and circumstances and his or her subsequent course
of action. An employee has not met his or her burden of proof to establish the occurrence of an
injury when there are such inconsistencies in the evidence as to cast serious doubt upon the validity
of the claim. Circumstances such as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury, and failure to obtain

2

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

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
4

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
5

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

6

C.B., Docket No. 18-0071 (issued May 13, 2019); D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine
Pendleton, 40 ECAB 1143 (1989).
7

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

8

M.S., Docket No. 18-0059 (issued June 12, 2019); D.B., 58 ECAB 464, 466-67 (2007).

3

medical treatment may, if otherwise unexplained, cast doubt on an employee’s statement in
determining whether a prima facie case has been established.9
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision.
Appellant’s July 10, 2017 Form CA-1 alleged that he sustained “severe back pain” as a
result of bending over and hearing a popping sound in his back while loading for delivery while in
the performance of duty. On the reverse side of the claim form, his supervisor did not contest that
appellant had been injured in the performance of duty, as alleged. The evidence of record contains
a witness statement from appellant’s coworker who testified that he saw appellant experience back
pain on July 10, 2017 around 8:30 a.m., as he was trying to pick up a yellow tray to put it on a
hamper. Appellant also submitted an accident investigation worksheet indicating that he was
injured on July 10, 2017 at 8:30 a.m. while he was inside loading when he picked up a tub to place
in a hamper and heard a popping sound in his back and felt pain. Another July 10, 2017 workers’
compensation worksheet indicated that he injured his back while loading that same day. The Board
therefore finds that no dispute exists as to whether appellant was bending and lifting while loading
mail at work on July 10, 2017 and therefore he has established that the employment incident
occurred as alleged.
As appellant has established that the July 10, 2017 employment incident occurred as
alleged, further consideration of the medical evidence is necessary.10 Therefore, the case will be
remanded to OWCP to evaluate the medical evidence and determine whether he has met his burden
of proof to establish a medical condition causally related to the accepted July 10, 2017 employment
incident.11 Following this and other such further development as deemed necessary, OWCP shall
issue a de novo decision.12
CONCLUSION
The Board finds that the case is not in posture for a decision.13

9

D.R., Docket No. 19-0072 (issued June 24, 2019).

10

D.C., Docket No. 19-0716 (issued September 13, 2019); M.D., Docket No. 18-1365 (issued March 12, 2019).

11

D.C., id.; A.R., Docket No. 18-0924 (issued August 13, 2019); Constance G. Patterson, 41 ECAB 206 (1989);
Thelma S. Buffington, 34 ECAB 104 (1982).
12

The record submitted to the Board includes a June 5, 2017 left wrist x-ray report which is a medical record of
another claimant. Upon return of the case file, this x-ray report should be removed from appellant’s claim file.
13

In light of the Board’s disposition as to Issue 1, Issue 2 is rendered moot.

4

ORDER
IT IS HEREBY ORDERED THAT the August 25, 2017 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: February 25, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.V., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Omaha, NE, Employer
__________________________________________

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

Docket No. 09-306
Issued: September 8, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 13, 2008 appellant filed a timely appeal of an October 31, 2008 decision of
the Office of Workers’ Compensation Programs denying his claim on the grounds that it was
untimely filed. Pursuant to 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’s claim was filed within the applicable time limitation
provisions of the Federal Employees’ Compensation Act.
FACTUAL HISTORY
On July 22, 2008 appellant, then a 63-year-old retired nuclear medicine technologist,
filed an occupational disease claim alleging that he contracted human immunodeficiency
virus (HIV). He first realized that his condition was caused by his employment on

June 29, 2004. Appellant indicated that he did not file a claim within 30 days of that date
because he was unaware he was HIV positive until June 2004.1
In an undated statement, appellant indicated that in June 2004 he tested positive for HIV
after undergoing a complete physical examination. He noted that his treating physician believed
that he had the virus for over 10 years based on the laboratory results. When appellant met with
his physician on June 29, 2004, they investigated how and where he contracted HIV. During this
discussion, he realized that he contracted the disease at work as he recalled a February 2, 1992
incident when he cut his hand on a glass test tube and later that day pierced his bandaged hand
with a syringe from an HIV positive patient. Appellant submitted medical records pertaining to
treatment for a right thumb laceration.
The Office advised appellant of the factual and medical evidence needed to establish his
claim. Appellant submitted a June 29, 2004 report from Dr. William Redenius, a Board-certified
internist, who advised that appellant sought treatment from him after being diagnosed with HIV
on June 7, 2004. Dr. Redenius noted appellant’s belief that he contracted HIV while working at
the employing establishment. He diagnosed HIV, hypothyroidism, hypercholesterolemia, panic
attacks and depression. Appellant submitted additional medical records from Dr. Redenius and
other physicians regarding his treatment.
In an undated statement, appellant noted that he retired from federal employment on
December 26, 1997, and therefore, could not notify his supervisor of his HIV status which was
diagnosed in June 2004. He did not previously relate his condition to his employment because
he had retired when he was diagnosed with HIV. Appellant subsequently attributed his HIV
exposure to a needle penetration incident at work. He delayed filing his claim because he did not
know where to file it.
In a September 10, 2008 report, Dr. Christopher Crowe, an osteopath specializing in
infectious disease medicine, obtained a history of exposure from appellant who indicated that in
February 1992 he sustained a needle puncture from an individual with HIV. He opined that it
was most likely that this needle puncture exposure resulted in appellant’s HIV disease.
Dr. Crowe diagnosed HIV positive, narrowing of the esophagus, gastroesophageal reflux disease,
hypothyroidism, renal calculi and hypertriglyceridemia.
By decision dated October 31, 2008, the Office denied appellant’s claim, finding that it
was not timely filed as he was aware of the relationship between his HIV condition and his
employment by June 29, 2004 and did not file a claim until July 22, 2008.
LEGAL PRECEDENT
Section 8122(a) of the Act2 states that “[a]n original claim for compensation for disability
or death must be filed within three years after the injury or death.” Section 8122(b) provides that
1

The Board notes that the “supervisor’s report” section of Form CA-2 was not completed or signed by the
employing establishment.
2

5 U.S.C. § 8122(a).

2

“in a case of latent disability, the time limitation does not begin to run until the employee has a
compensable disability and is aware, or by the exercise of reasonable diligence should have been
aware, of the causal relationship of the compensable disability to his employment.”3
The Act provides an exception to the three-year limit for filing a claim, stating that a
claim may be regarded timely if an immediate superior had actual knowledge of the injury within
30 days, or if written notice of injury as specified in section 8119 was given within 30 days. The
knowledge must be such as to put the immediate superior reasonably on notice of an on-the-job
injury or death.4 Office regulations also provide that the Office “may excuse failure to comply
with the three-year time requirement because of truly exceptional circumstances.”5
ANALYSIS
The Board finds that appellant’s compensation claim was not timely filed within the
provisions of the Act.
Appellant alleged that he contracted HIV after he sustained a syringe puncture to his hand
on February 2, 1992. He was unaware of his condition until June 29, 2004 when he was
diagnosed with HIV by his treating physician. Appellant asserted that he was unaware of any
relationship between his federal employment and his condition until June 29, 2004. His
occupational disease claim, filed on July 22, 2008, was not within the three-year time limitation
set forth in the Act. As noted, the time limitation period for occupational disease claims begin to
run when the employee becomes aware or reasonably should be aware that his employment
caused his condition. Accordingly, the time limitation in this case began to run on June 29,
2004, the date on which he learned from Dr. Redenius that he contracted HIV due to a
February 2, 1992 syringe puncture incident at work.6 As more than three years had elapsed
between June 29, 2004 and the filing of his occupational disease claim on July 22, 2008,
appellant’s claim is barred under section 8122.
Appellant’s claim does not qualify under either of the exceptions as provided by the Act
and its implementing provisions. The first exception would regard the claim as timely filed if an
immediate superior had actual knowledge of the injury within 30 days. However, appellant
retired from federal employment on December 26, 1997 and was diagnosed with HIV on
June 7, 2004. He noted that his supervisor did not have actual knowledge of his condition within
30 days. Additionally, appellant did not file his claim sooner as he did not know where to file it.
The Board has held that an employee’s unawareness of possible entitlement, lack of access to

3

Id. at § 8122(b).

4

Id. at § 8122(a); Virginia D. King (Charles B. King), 57 ECAB 143 (2005).

5

20 C.F.R. § 10.100(b)(2).

6

See Mitchell Murray, 53 ECAB 601 (2002) (where the Board held that the time limitation period does not begin
to run until appellant is aware of the causal relationship between his federal employment and his condition).

3

information or ignorance of the law and one’s rights and obligations does not constitute
exceptional circumstances that could excuse a failure to file a timely claim.7
Consequently, appellant’s claim is barred by the applicable time limitation provisions of
the Act.
CONCLUSION
The Board finds that the Office properly denied appellant’s compensation claim on the
grounds that it was not filed within the applicable time limitation provisions of the Act.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated October 31, 2008 is affirmed.
Issued: September 8, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

7

Ralph L. Dill, 57 ECAB 248, 254 (2005).

4