United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.G., Appellant
and
DEPARTMENT OF THE AIR FORCE,
MAINTENANCE DEPARTMENT,
RANDOLPH AIR FORCE BASE, Texas,
Employer
__________________________________________

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

Docket No. 10-2088
Issued: May 6, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 10, 2010 appellant filed a timely appeal from the March 18, 2010 merit
decision of the Office of Workers’ Compensation Programs. Pursuant to the Federal Employees’
Compensation Act1 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 the Office properly denied appellant’s claim for schedule award.

1

5 U.S.C. § 8107.

FACTUAL HISTORY
In late 2007 the Office accepted that appellant, then a 51-year-old sheet metal mechanic,
sustained right plantar fibromatosis due to the walking and standing duties required by his job.2
Appellant did not stop working in his regular job for the employer.
Appellant received treatment for his right foot problems from Dr. Darren J. Silvester, an
attending podiatrist. He received dexamethasone phosphate injections in his right foot and wore
night splints and custom orthotics as part of his treatment. On February 14, 2008 Dr. Silvester
performed right foot surgery in the form of cryosurgery for thermal destruction of the right
medial calcaneal nerve. The procedure was authorized by the Office.
On April 28, 2009 appellant filed a claim for a schedule award due to his accepted right
foot injury.
In May 2009 the Office requested that Dr. Silvester provide an impairment rating for
appellant’s right foot under the standards of the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (6th ed. 2009), but Dr. Silvester
advised the Office that he did not complete impairment ratings. It then referred appellant to
Dr. James F. Hood, a Board-certified orthopedic surgeon, for evaluation of his right foot
condition under the standards of the sixth edition of the A.M.A., Guides.
In a December 21, 2009 report, Dr. Hood stated that as a result of his repetitive walking
appellant began to complain on May 7, 2007 of pain in his right heel and arch. He noted that
appellant had been treated with various modalities, including physical therapy, corticosteroid
injections, orthotics and passive night splinting. Appellant continued to complain of pain in the
mid portion of his right heel and was taking over-the-counter anti-inflammatory medication.
Dr. Hood indicated that appellant worked on a full-time basis in his regular job for the
employing establishment. Upon physical examination of the right foot, he reported that
appellant had 20 degrees of dorsiflexion; 40 degrees of plantar flexion; 30 degrees of inversion;
and 20 degrees of eversion. Appellant reported tenderness of the right heel pad, but there was no
swelling or visible scarring. Dr. Hood stated that appellant had no Tinel’s sign and that testing
of the posterior tibial, anterior tibial and peroneal arteries was negative. He indicated that
appellant would be rated under Table 16-2 of the sixth edition of the A.M.A., Guides under the
portion of the diagnostic grid for soft tissue problems with the foot. Dr. Hood noted, “Because
of the normalcy of the exam[ination] objectively, [appellant] would be rated under class 0 and as
such would have a zero [percent] lower extremity rating.”
On January 27, 2010 Dr. Ronald H. Blum, a Board-certified orthopedic surgeon serving
as an Office medical adviser, stated that he had reviewed the record, including Dr. Hood’s
December 14, 2009 report, for the purpose of rating appellant’s right leg impairment under the
standards of the sixth edition of the A.M.A., Guides. He stated that appellant had an accepted
condition of right plantar fibromatosis and posited that maximum medical improvement was
2

Appellant originally indicated that he was injured on May 7, 2007 when he felt a sharp pain in his right foot
while walking at work on that date, but he later asserted that the injury occurred by walking and standing at work
over a period of time.

2

achieved on December 14, 2009, the date of Dr. Hood’s evaluation. Dr. Blum noted,
“Determination of permanent impairment for the RLE [right lower extremity] is as follows. [He]
describes objectively normalcy on examination. Using [Table] 16-2, p. 501, Dr. Blum
recommends class 0 resulting in zero [percent] impairment for the RLE. Permanent impairment
of the RLE is zero [percent].”
In a March 18, 2010 decision, the Office denied appellant’s schedule award claim on the
grounds that he did not meet his burden of proof to establish entitlement to schedule award
compensation. It found that the opinions of Dr. Hood and Dr. Blum showed that appellant had
no right foot or leg impairment under the sixth edition of the A.M.A., Guides.
LEGAL PRECEDENT
The schedule award provision of the Act3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, the Act does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.5 The effective date of the sixth edition of
the A.M.A., Guides is May 1, 2009.6
In determining impairment for the lower extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the lower extremity
to be rated. With respect to the foot, the relevant portion of the leg for the present case, reference
is made to Table 16-2 (Foot and Ankle Regional Grid) beginning on page 501. Then the
associated class is determined from the Foot and Ankle Regional Grid and the adjustment grid and
grade modifiers (including Functional History, Physical Examination and Clinical Studies) are
used to determine what grade of associated impairment should be chosen within the class defined
by the regional grid.7 Under Chapter 2.3, evaluators are directed to provide reasons for their
impairment rating choices, including choices of diagnoses from regional grids and calculations of
modifier scores.8

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404 (1999).

5

Id.

6

FECA Bulletin No. 09-03 (issued March 15, 2009).

7

See A.M.A., Guides (6th ed. 2009) 499-501.

8

Id. at 23-28.

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ANALYSIS
The Office accepted that appellant sustained right plantar fibromatosis due to the walking
and standing duties required by his job. In a March 18, 2010 decision, it denied his schedule
award claim on the grounds that he did not meet his burden of proof to establish entitlement to
schedule award compensation. The Office based its opinion of the opinions of Dr. Hood, a
Board-certified orthopedic surgeon serving as an Office referral physician and Dr. Blum, a
Board-certified orthopedic surgeon serving as an Office medical adviser.
The Board finds that the opinions of Dr. Hood and Dr. Blum show that appellant does not
have permanent impairment entitling him to schedule award compensation. Appellant has
submitted no additional medical evidence to establish that he has permanent impairment of his
right foot or leg under the standards of the sixth edition of the A.M.A., Guides.
In his December 21, 2009 report, Dr. Hood provided a history of appellant’s right foot
condition and subsequent treatment. He noted that, upon physical examination of the right foot,
appellant had no Tinel’s sign and that testing of the posterior tibial, anterior tibial and peroneal
arteries was negative. Dr. Hood reported range of ankle motion findings and noted that, although
appellant reported tenderness of the right heel pad, he had no swelling or visible scars. Dr. Blum
stated that Dr. Hood indicated that appellant would be rated under Table 16-2 of the sixth edition
of the A.M.A., Guides under the portion of the diagnostic grid for soft tissue problems with the
foot, but he found that his examination showed that he fell under class 0 of the Foot and Ankle
Grid because he had no significant objective abnormal findings on examination or radiographic
studies.9 On January 27, 2010 he stated that he had reviewed the record, including Dr. Hood’s
December 14, 2009 report, and noted that he agreed with Dr. Hood’s assessment that appellant
had no impairment under the standards of the sixth edition of the A.M.A., Guides.
On appeal, appellant indicated that he disagreed with the impairment rating of Dr. Hood.
However, the main issue of the present case is medical in nature and must be resolved by
consideration of the medical evidence of record. Appellant stated that he would rather be seen
by a podiatrist, but he did not provide any evidence to disqualify Dr. Hood.
Appellant did not submit any medical evidence showing that he had permanent
impairment of his right foot or leg.10 As the reports of the Dr. Hood and Dr. Blum provided the
only evaluations which conformed with the A.M.A., Guides, they constitute the weight of the
medical evidence.11 For these reasons, the Office properly denied appellant’s schedule award
claim.

9

See A.M.A., Guides 501, Table 16-2.

10

The Office requested that Dr. Silvester, an attending podiatrist, provide an impairment rating, but he advised
the Office that he did not complete impairment ratings.
11

See Bobby L. Jackson, 40 ECAB 593, 601 (1989).

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CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish entitlement to
schedule award compensation.
ORDER
IT IS HEREBY ORDERED THAT the March 18, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 6, 2011
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pontiac, MI, Employer
__________________________________________

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

Docket No. 09-1303
Issued: February 1, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 22, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated October 29, 2008, which denied her claim for a
traumatic injury. 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 has met her burden of proof in establishing that she
sustained a left knee injury while in the performance of duty.
FACTUAL HISTORY
On September 16, 2008 appellant, then a 41-year-old letter carrier, filed a traumatic
injury claim alleging that on January 8, 2008 she slipped on ice while delivering mail and injured
her left knee. She did not stop work. Appellant submitted a report of accident dated
September 16, 2008 indicating that she slipped on ice while delivering mail.

On September 23, 2008 the Office advised appellant of the type of factual and medical
evidence needed to establish her claim and requested that she submit such evidence, particularly
requesting that she submit a physician’s reasoned opinion addressing the relationship of her
claimed condition and specific employment factors.
Appellant submitted a clarifying statement noting that her date of injury was February 5,
2008 and not January 7, 2008 as indicated on the Form CA-1. She submitted an October 1, 2008
statement from her supervisor, Raymond Sherrod, who indicated that on February 4, 2008 she
notified him by telephone that she fell; however, she believed that she would be alright. Also
submitted was a statement from a coworker who indicated that she was assigned appellant’s
route in the past and developed tendinitis of the knees. Appellant submitted a telephone bill,
instructions for preparing workers’ compensation forms and a statement of employees benefits,
rights and responsibilities. She also forwarded a magnetic resonance imaging (MRI) scan of the
left knee dated May 7, 2008, which revealed possible developing interosseous ganglion cyst
posterior to the acromioclavicular ligament, a slight tilt of the patella and mild subluxation.
A September 4, 2008 x-ray of the left knee revealed a lateral tilt of the patella, mild narrowing of
the lateral knee joint compartment and a possible small knee joint effusion.
Appellant was treated by Dr. Gary G. Gilyard, a Board-certified orthopedist, from
September 4 to October 13, 2008 for a left knee injury. In reports dated September 4 and 19,
2008, she presented with left knee pain and reported that as a mail carrier she was required to
walk distances which caused her left knee to become symptomatic. Appellant reported no
episode of trauma but noted that she had been attacked by dogs three or four times. Dr. Gilyard
noted findings of tenderness at the lateral facet of the patellofemoral joint and the medial
patellofemoral ligament, positive posterior drawer and full range of motion. He diagnosed
acromioclavicular ligament instability and partial posterior ligament tear and returned appellant
to work with restrictions and a knee brace. In an October 2, 2008 report, Dr. Gilyard noted that
she initially reported no episode of trauma and subsequently indicated that she fell and twisted
her knee. He opined that this episode is what “probably” contributed to appellant’s ligament
insufficiency. Dr. Gilyard stated that this was a work-related issue. On October 13, 2008 he
indicated appellant’s job as a letter carrier was very active and she was experiencing pain and
instability of her knee. Dr. Gilyard opined that conservative treatment failed and recommended
anterior cruciate ligament reconstruction and weight reduction.
In a decision dated October 29, 2008, the Office denied appellant’s claim for an injury on
the grounds that the medical evidence was insufficient to establish that her left knee injury was
causally related to her work duties.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an employee of the United States within the meaning of the Act, that the claim was
filed within the applicable time limitation of the Act, that an injury was sustained in the
1

5 U.S.C. §§ 8101-8193.

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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. 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.2
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.3 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence. To establish a causal relationship between the condition,
as well as any attendant disability claimed and the employment event or incident, the employee
must submit rationalized medical opinion evidence, based on a complete factual and medical
background, supporting such a causal relationship.4
Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized 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.5 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.6
ANALYSIS
Appellant alleged that she sustained a left knee injury when she slipped on ice while
delivering mail. The Board notes that the evidence supports that the incident occurred on
February 5, 2008 as alleged. The Board finds, however, that the medical evidence is insufficient
to establish that appellant sustained a left knee injury causally related to the February 5, 2008
work incident.

2

Gary J. Watling, 52 ECAB 357 (2001).

3

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

4

Id.

5

Leslie C. Moore, 52 ECAB 132 (2000).

6

Franklin D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52 ECAB 332 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).

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On September 23, 2008 the Office advised appellant of the type of medical evidence
needed to establish her claim. Appellant did not submit a rationalized medical report from an
attending physician addressing how the February 5, 2008 work incident may have caused or
aggravated her claimed condition.
In support of her claim, appellant submitted reports from Dr. Gilyard dated September 4
and 19, 2008 who treated her for left knee pain. Dr. Gilyard diagnosed acromioclavicular
ligament instability and partial posterior ligament tear. He related that appellant reported
working as a mail carrier and walking distances and subsequently experiencing left knee pain
and clicking. Appellant reported no episode of trauma but indicated that these symptoms
occurred when she was working. Dr. Gilyard opined that her condition was employment related
based on her presentation and history. However, he did not provide a rationalized opinion
explaining the reasons why any diagnosed conditions were caused or aggravated by the
February 5, 2008 fall.7 Furthermore, Dr. Gilyard appeared to support that appellant’s condition
was in the nature of an occupational disease as his report indicates that her condition occurred
over a period of time even though her claim is for a February 5, 2008, traumatic injury due to a
fall on ice while delivering mail.8 Thus, his opinion is of diminished probative value as it is not
based on an accurate factual background regarding the cause of the claimed condition.9 These
reports are insufficient to meet appellant’s burden of proof.
In an October 2, 2008 report, Dr. Gilyard noted that appellant initially reported no
episode of trauma but then indicated that she fell and twisted her knee. He opined that this
episode is what “probably” contributed to her ligament insufficiency while also noting that this
was a “work-related issue.” While this report notes a traumatic incident and provides some
support for causal relationship, it is insufficient to establish that the claimed left knee condition
was causally related to a February 5, 2008 fall. Dr. Gilyard did not show any knowledge of
when the claimed injury occurred. He also opined that the fall at work “probably” contributed to
appellant’s condition and reiterated that this was a “work[-]related issue.” Dr. Gilyard also
provides speculative and unrationalized support for causal relationship as he qualifies his support
by noting both that she has a work-related knee condition and that the employment “probably”
contributed to her condition.10 The need for medical rationale is especially important where the
claimed injury occurred on February 5, 2008 but appellant apparently did not seek any treatment
for the injury until May 2008 and where the medical reports do not provide a clear history of
injury. Therefore, this report is insufficient to meet her burden of proof. Dr. Gilyard’s
October 13, 2008 status report did not address the cause of appellant’s condition.

7

Id.

8

See 20 C.F.R. § 10.5(q) (defines an occupational disease as occurring over a period longer than a single
workday or shift) 20 C.F.R. § 10.5(ee) (defines a traumatic injury as a condition caused by a specific event or
incident within a single workday).
9

See Vernon R. Stewart, 5 ECAB 276, 280 (1953) (where the Board held that medical opinions based on histories
that do not adequately reflect the basic facts are of little probative value in establishing a claim).
10

See Jennifer Beville, 33 ECAB 1970 (1982) (where the Board found a physician’s statement that appellant’s
complaints “could have been” related to an employment incident to be speculative and of limited probative value).

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Likewise, reports of diagnostic testing, such as MRI scan reports and x-rays are
insufficient to establish appellant’s claim as they do not provide a physician’s opinion on the
causal relationship between her job factors and a diagnosed medical condition.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither, the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated or aggravated by her employment is
sufficient to establish causal relationship.11 Causal relationship must be established by
rationalized medical opinion evidence. Appellant failed to submit such evidence and the Office
therefore properly denied her claim for compensation.12
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that she
sustained a left knee injury causally related to her February 5, 2008 employment incident.

11

See Dennis M. Mascarenas, 49 ECAB 215 (1997).

12

See 5 U.S.C. § 501.2(c). The Board’s jurisdiction is limited to the evidence that was before the Office at the
time it issued its final decision therefore the Board is unable to review evidence submitted by appellant after the
October 29, 2008 Office decision.

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ORDER
IT IS HEREBY ORDERED THAT the October 29, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 1, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bath, PA, Employer
__________________________________________

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

Docket No. 18-1156
Issued: January 22, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On May 17, 2018 appellant filed a timely appeal from a January 29, 2018 merit decision
and a May 4, 2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish pelvis and
back conditions causally related to the accepted December 9, 2017 employment incident; 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.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 9, 2017 appellant, then a 63-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on that date she developed pelvic pain due to a fall on snow in
the performance of duty. She stopped work on the date of injury. In an accompanying undated
narrative statement, appellant related that, on December 9, 2017, she parked her car at an address
to deliver two parcels and that the car started to slide backwards down a snow covered and icy
driveway into a road and a tree. As she tried to grab the door of the truck, she slipped. On the
reverse side of the claim form, the employing establishment controverted the claim, contending
that the vehicle could not have slid 132 feet because it was not running and it was against policy
to leave a vehicle running while unattended.
In support of her claim, appellant submitted two medical reports from Dr. Faton Bilali, a
Board-certified family practitioner. In his narrative medical report dated December 9, 2017,
Dr. Bilali indicated that she was evaluated that day for left low back pain. He ordered diagnostic
tests and placed appellant off work until her next evaluation. In his duty status report (Form CA17), also dated December 9, 2017, Dr. Bilali diagnosed a left pelvis contusion due to an injury on
that date. He advised that appellant could not resume work.
A December 12, 2017 pelvis magnetic resonance imaging (MRI) scan report from Dr. Amit
Malhotra, a radiologist and an internist, was received by OWCP. Dr. Malhotra provided an
impression of no bone contusion or fracture, degenerative disc disease of the lower lumbar spine,
mild levoscoliosis, minimal effusion of the right hip joint space with minimal changes of
osteoarthritis, and minimal arthrosis of the sacroiliac joints with minimal subchondral edema. He
also provided an impression of mild-to-moderate tendinopathy at the origin of the hamstrings
tendons with small intrasubstance delaminating tears at the origin of the hamstrings tendon
bilaterally, mild-to-moderate tendinopathy at the insertion of the gluteus minimus and gluteus
medius tendon, and heterogeneous appearance of the uterus with possible ﬁbroids.
OWCP received a series of reports from Dr. Troy Wood, an attending physiatrist. In
narrative reports dated December 11 and 20, 2017, Dr. Wood noted appellant’s history, discussed
examination findings, and assessed left low back pain. In his December 11, 2017 report, he placed
her off work until her next evaluation. In his December 20, 2017 report, Dr. Wood advised that
appellant could return to unrestricted activity as of the date of his evaluation. In an accompanying
December 20, 2017 Form CA-17 report, he noted a history that she fell on December 9, 2017.
Dr. Wood diagnosed lumbago due to injury and released appellant to return to full-time work with
no restrictions.
On December 21, 2017 the employing establishment offered appellant a modified rural
carrier position which she accepted on that date.
A December 26, 2017 treatment note signed by Alicia Kresley, a physical therapist, listed
a diagnosis of low back pain and addressed the treatment of appellant’s diagnosed condition.
By development letter dated December 29, 2017, OWCP advised appellant of the
deficiencies of her claim and requested that she respond to a form questionnaire in order to
establish that she actually experienced the incident alleged to have caused an injury and a medical

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report from her attending physician including a diagnosis, history of the injury, examination
findings, and a rationalized opinion explaining how the reported work incident caused or
aggravated her medical condition. The questionnaire requested that she describe the nature of her
injury, how the injury occurred, and any prior similar injuries or medical conditions. OWCP
afforded appellant 30 days to submit the necessary evidence.
OWCP received an additional treatment note dated December 21, 2017 by Ms. Kresley
who addressed the treatment of appellant’s diagnosed low back pain and assessed that her
condition was secondary to a fall at work on December 9, 2017.
OWCP also received additional reports from Dr. Wood. In a narrative report and Form
CA-17 report dated December 30, 2017, Dr. Wood reiterated his assessment of left lower back
pain. In the narrative report, he indicated that appellant related a history that she sustained an
injury at work. In the Form CA-17 report, Dr. Wood obtained a history that on December 9, 2017
she fell trying to grab a truck. He opined that the diagnosed back condition was due to appellant’s
injury. Dr. Wood continued to advise that she could perform full-duty work.
In a January 22, 2018 letter, Dr. Wood noted a history of appellant’s treatment in his clinic
which commenced on December 9, 2017 by a different physician who reported a mechanism of
injury that she fell onto her lower back on an icy ground from a recent snowfall as she tried to grab
a side view mirror to stop a vehicle, which was sliding down an incline. Appellant immediately
felt pain. Dr. Wood noted that she was diagnosed with left lower back pain based on the
December 9, 2017 evaluation. He indicated that appellant initially presented to him on
December 11, 2017 and reported the December 9, 2017 slip and fall and development of low back
pain to him. Dr. Wood discussed her medical treatment and related that she was feeling well and
had returned to full-duty work. He opined that the reported mechanism of injury was consistent
with appellant’s symptoms, physical examination, and diagnostic ﬁndings. Dr. Wood related that
an assessment code used throughout her most recent treatment was lower back pain (M54.5)
secondary to the fall in question. He indicated that, upon physical examination during her initial
visit, appellant was visibly in pain. Appellant had an antalgic gait, tenderness of the left lumbar
surrounding musculature, decreased range of lumbar range of motion which also caused her pain
with normal reflexes, and muscle testing of the lower extremities. Dr. Wood concluded that her
fall was directly related to the subsequent pain and injury that developed. A review of appellant’s
medical chart revealed that she was evaluated for right-sided low back pain in 2013. She had fully
recovered at that time with physical therapy. Dr. Wood believed that those issues and symptoms
were unrelated to the injury in question. He concluded that the current injury was separate from
the complaints, treatment, and condition in 2013.
Appellant also submitted a December 28, 2017 treatment note in which Ms. Kresley again
addressed the treatment of appellant’s low back pain and assessed her limitations.
By letter dated January 24, 2018, the employing establishment further challenged
appellant’s claim. It contended that, while she stated that she fell in the snow, she failed to mention
the events leading up to the fall. The employing establishment indicated that a surveillance video
from a homeowner showed appellant pulling into a driveway and as she exited the vehicle, the
lights and wipers were still on. It was assumed that she left the vehicle running. The surveillance
video also showed the wheels on the vehicle turning backwards and the vehicle moving down the

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driveway. The surveillance video showed appellant running to catch her vehicle and then falling
face ﬁrst. The employing establishment indicated that on December 8, 2017 she received a safety
talk in which proper procedures for backing up and preventing rollaway/runaway were reviewed.
It further claimed that the medical documentation indicated a diagnosis of left low back pain, but
that pain is a symptom rather than a medical condition. The employing establishment asserted that
appellant had not met her burden of proof to establish a work-related condition and, thus, requested
that OWCP deny her claim.
By decision dated January 29, 2018, OWCP denied appellant’s traumatic injury claim. It
noted that while the employing establishment disputed her claim that she fell in snow based on the
homeowner’s surveillance video, it “accepted [that she] did slip and fall while trying to secure the
run-away vehicle.” OWCP related that it had made no decision at that time on whether there was
any willful misconduct on appellant’s part as further information was needed to make that
determination. It further found that the medical evidence of record did not contain a diagnosed
medical condition in connection with the December 9, 2017 employment incident.
OWCP received a February 14, 2018 letter in which Dr. Wood essentially reiterated the
opinions, findings, and conclusions that he set forth in his January 22, 2018 letter.
In a February 24, 2018 appeal request form, postmarked April 2, 2018, and received by
OWCP on April 6, 2018, appellant requested a review of the written record by an OWCP hearing
representative.
By decision dated May 4, 2018, an OWCP hearing and review examiner denied appellant’s
request for a review of the written record as it was untimely filed. She found that the request was
not postmarked within 30 days of the issuance of the January 29, 2018 OWCP merit decision.
After exercising appellant’s discretion, the hearing representative further found that the issue in
the case could equally well be addressed through the reconsideration process.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA2 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 filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific 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 on a traumatic injury or an occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
2

Id.

3

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

4

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB 153 (1989).

4

sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged.
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.5 The evidence required to establish causal
relationship is rationalized medical opinion evidence, based upon complete factual and medical
background, showing causal relationship between the claimed condition and the identified factors.6
The belief of the claimant that a condition was caused or aggravated by the employment is
insufficient to establish a causal relationship.7
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence sufficient to establish such causal relationship.8 Rationalized medical opinion
evidence is generally required to establish causal relationship. The opinion of the physician must
be based on a complete factual and medical background, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.9
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish pelvic and back
conditions causally related to the accepted December 9, 2017 employment incident.
Appellant submitted a series of reports from her attending physician, Dr. Wood. In Form
CA-17 reports dated December 20 and 30, 2017, Dr. Wood diagnosed lumbago and low back pain
due to the accepted December 9, 2017 employment incident and released her to return to full-time
work with no restrictions. However, he provided no medical rationale explaining how the
employment incident caused the diagnosed conditions and disability from work.10 Dr. Wood did
not explain how the mechanism of injury would have physiologically caused the diagnosed
condition.11 Thus, the Board finds that his reports are insufficient to establish causal relationship.

5

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined, respectively).
6

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

7

See M.J., Docket No. 17-0725 (issued May 17, 2018); see also Lee R. Haywood, 48 ECAB 145 (1996); Kathryn
Haggerty, 45 ECAB 383, 389 (1994).
8

K.V., Docket No. 18-0723 (issued November 9, 2018).

9

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, supra note 4.

10

See T.M., Docket No. 08-0975 (issued February 6, 2009) (a medical report is of limited probative value on the
issue of causal relationship if it contains a conclusion regarding causal relationship which is unsupported by medical
rationale).
11

R.R., Docket No. 16-1901 (issued April 17, 2017).

5

Dr. Wood, in a December 30, 2017 report, noted that appellant related a history that she
sustained a work injury. He assessed left lower back pain and advised that she could continue to
perform full-duty work. However, pain is a symptom and not a compensable diagnosis.12
Furthermore, Dr. Wood appears merely to repeat the history of injury as reported by appellant
without providing his own opinion regarding whether her condition was work related.13 For these
reasons, his report is insufficient to meet her burden of proof.
Similarly, in a January 22, 2018 report, Dr. Wood opined that appellant had lower back
pain secondary to the accepted December 9, 2017 fall. He maintained that the mechanism of injury
was consistent with her symptoms, physical examination findings, and diagnostic test results.
Dr. Wood advised that appellant’s right back pain in 2013, from which she had fully recovered,
was not related to her current back condition. It is not possible to establish the cause of a medical
condition if the physician has not provided a diagnosis, but only notes pain.14 The Board has
consistently held that a diagnosis of pain does not constitute the basis for the payment of
compensation.15 Without further explanation or rationale regarding causal relationship between a
diagnosed condition and the accepted work incident, this report is of limited probative value.16
Dr. Wood’s remaining reports are also insufficient to meet appellant’s burden of proof.
Within these additional reports, he again diagnosed low back pain, which as noted above, is not a
compensable diagnosis.17 Moreover, Dr. Wood failed to provide an opinion concluding that the
accepted December 9, 2017 employment incident caused or aggravated appellant’s diagnosed back
condition, disability status, medical treatment, and work restrictions.18
Dr. Bilali’s narrative report and Form CA-17 report dated December 9, 2017 diagnosed
left low back pain and a left pelvis contusion and placed appellant off work. In his CA-17 form
report, he advised that her left pelvis contusion was due to an injury on December 9, 2017.
However, Dr. Bilali did not offer medical rationale explaining how the accepted work incident
caused the diagnosed condition and resultant disability.19 Thus, his reports are insufficient to
establish appellant’s burden of proof.
Dr. Malhotra’s December 12, 2017 diagnostic test report addressed appellant’s pelvis
conditions, but failed to offer a medical opinion addressing whether the diagnosed conditions were
12

See supra note 10.

13
See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
(Medical evidence which does not offer any opinion regarding the cause of an employee’s condition is of no probative
value on the issue of causal relationship).
14

See C.L., Docket No. 18-0363 (issued July 19, 2018); A.C., Docket No. 16-1587 (issued December 27, 2016).

15

See supra note 8.

16

C.L., Docket No. 17-0354 (issued July 10, 2018); Beverly A. Spencer, 55 ECAB 501 (2004).

17

See supra note 10.

18

See T.M., Docket No. 16-1456 (issued January 10, 2017); S.E., supra note 13.

19

Id.

6

caused or aggravated by the December 9, 2017 employment incident. The Board has held that
reports of diagnostic tests lack probative value as they do not provide an opinion on causal
relationship between appellant’s employment incident and a diagnosed condition.20
The December 21, 26, and 28 2017 treatment notes signed by Ms. Kresley, a physical
therapist, have no probative medical value. A physical therapist is not considered a “physician”
as defined under FECA.21 As such, this evidence is also insufficient to meet appellant’s burden of
proof.
The Board finds that appellant has not submitted any rationalized, probative medical
evidence sufficient to establish pelvis and back injuries causally related to the accepted
December 9, 2017 employment incident. Appellant, therefore, has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides that “a claimant for compensation not satisfied with
a decision of the Secretary is entitled, on request made within 30 days after the date of the issuance
of the decision, to a hearing on his [or her] claim before a representative of the Secretary.”22
Sections 10.617 and 10.618 of the federal regulations implementing this section of FECA provide
that a claimant shall be afforded a choice of an oral hearing or a review of the written record by a
representative of the Secretary.23 A claimant is entitled to a hearing or review of the written record
as a matter of right only if the request is filed within the requisite 30 days as determined by
postmark or other carrier’s date marking and before the claimant has requested reconsideration.24
Although there is no right to a review of the written record or an oral hearing if not requested
within the 30-day time period, OWCP may within its discretionary powers grant or deny
appellant’s request and must exercise its discretion.25

20

See S.G., Docket No. 17-1054 (issued September 14, 2017).

21
5 U.S.C. § 8101(2) provides that a physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law.
See Jennifer L. Sharp, 48 ECAB 209 (1996) (physical therapist); Charley V.B. Harley, 2 ECAB 208, 211 (1949) (a
medical issue such as causal relationship can only be resolved through the submission of probative medical evidence
from a physician).
22

5 U.S.C. § 8124(b)(1).

23

20 C.F.R. §§ 10.616, 10.617.

24

Id. at § 10.616(a).

25

Eddie Franklin, 51 ECAB 223 (1999); Delmont L. Thompson, 51 ECAB 155 (1999).

7

ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for review of the written
record.
Appellant’s February 24, 2018 request for a review of the written record was postmarked
on April 2, 2018, more than 30 days after the issuance of OWCP’s January 29, 2018 merit decision.
Because the postmark date was more than 30 days after the date of OWCP’s January 29, 2018
decision, the Board finds that the request was untimely filed and she was not entitled to a review
of the written record as a matter of right.26
Although appellant’s request for a review of the written record was untimely filed, OWCP
has the discretionary authority to grant the request and it must exercise such discretion.27 In its
May 4, 2018 decision, OWCP’s hearing and review examiner properly exercised her discretion by
notifying appellant that she had considered the matter in relation to the issue of whether she had
established an injury in the performance of duty and determined that the issue involved could be
equally well addressed by a request for reconsideration before OWCP. The Board finds that the
hearing and review examiner properly exercised her discretionary authority in denying appellant’s
request for a review of the written record.28 The Board has held that the only limitation on
OWCP’s authority is reasonableness. An abuse of discretion is generally shown through proof of
manifest error, a clearly unreasonable exercise of judgment, or actions taken which are contrary to
both logic and probable deductions from established facts.29 In this case, the evidence of record
does not indicate that OWCP abused its discretion by denying appellant’s request for a review of
the written record. Accordingly, the Board finds that OWCP properly denied appellant’s request
for a review of the written record.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish pelvic and back
conditions causally related to the accepted December 9, 2017 employment incident. The Board
further finds that OWCP properly denied her request for a review of the written record as untimely
filed pursuant to 5 U.S.C. § 8124.

26
The 30-day period for determining the timeliness of an employee’s request for an oral hearing or review
commences the day after the issuance of OWCP’s decision. See Donna A.Christley, 41 ECAB 90 (1989).
27

See supra note 25.

28

M.B., Docket No. 18-0717 (issued September 5, 2018); Mary B. Moss, 40 ECAB 640, 647 (1989).

29

Samuel R. Johnson, 51 ECAB 612 (2000).

8

ORDER
IT IS HEREBY ORDERED THAT the May 4 and January 29, 2018 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: January 22, 2019
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.T., Appellant
and
U.S. POSTAL SERVICE, ARLINGTON
STATION, Riverside, CA, Employer
__________________________________________
Appearances:
Roxann M. Gonzalez, for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-0322
Issued: June 28, 2021

Case Submitted on the Record

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

On January 4, 2021 appellant, through her representative, filed a timely appeal from an
August 27, 2020 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
The Clerk of the Appellate Boards docketed the appeal as No. 21-0322.
On June 26, 2015 appellant, then a 56-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on June 24, 2015 she sustained a right ankle sprain, left knee contusion,
and left knee scrape when she fell while in the performance of duty. OWCP assigned the claim
OWCP File No. xxxxxx517.2 It initially accepted the claim for right ankle sprain and left knee
contusion. OWCP subsequently expanded its acceptance of the claim to include complex tear of
the medial meniscus and sprain of the anterior cruciate ligament and medial collateral of the left
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
Appellant has a prior occupational disease claim (Form CA-2) filed on May 18, 2011 under OWCP File No.
xxxxxx952, which OWCP accepted for chondromalacia patellae and effusion of the joint of the left lower leg.

knee, sprain of the tibiofibular ligament and calcaneofibular ligament of the right ankle, calcific
tendinitis of the right ankle and foot, and other specific joint derangements not elsewhere classified
of the right ankle. On October 17, 2016 appellant underwent OWCP-authorized left knee
arthroscopy to treat her accepted medial meniscus tear. OWCP paid her wage-loss compensation
on the periodic rolls as of that date. Appellant returned to part-time, modified-duty work on
February 6, 2017.
By decision dated November 7, 2018, OWCP denied expansion of the acceptance of
appellant’s claim to include left knee osteoarthritis and authorization for the requested total left
knee replacement. It found that the weight of the medical evidence rested with a July 6, 2017
medical report of Dr. Michael Einbund, a Board-certified orthopedic surgeon and OWCP referral
physician, and an October 4, 2018 report of Dr. Nathan Hammel, a Board-certified orthopedic
surgeon serving as an OWCP district medical adviser (DMA), who both opined that appellant’s
preexisting left knee arthritis was not aggravated or contributed to by her accepted June 24, 2015
employment injury. Moreover, OWCP accorded the weight of the medical evidence to
Dr. Einbund’s opinion that, while the requested left knee total replacement was medically
necessary, it was not causally related to the accepted work injury.
On February 6, 2019 appellant requested reconsideration and submitted a January 8, 2019
supplemental report from Dr. Charles Herring, a Board-certified orthopedic surgeon. Dr. Herring
reviewed the findings of Dr. Einbund and OWCP’s DMA and opined that her accepted complex
tear of the medial meniscus permanently aggravated her preexisting osteoarthritis and that the left
knee total replacement was medically necessary and causally related to her accepted employmentrelated condition.
On March 11, 2019 OWCP again referred appellant to Dr. Einbund for another second
opinion evaluation to determine whether her preexisting left knee condition was aggravated by the
accepted factors of her federal employment under OWCP File Nos. xxxxxxx517 and xxxxxx952.
In a March 27, 2019 supplemental report, Dr. Einbund noted a review of the medical
evidence in OWCP File Nos. xxxxxx517 and xxxxxx952. He advised that appellant’s accepted
left leg chondromalacia predated the development of the medial joint space, and therefore, there
was no basis for an aggravation injury. Dr. Einbund further advised that even the natural
progression of the chondromalacia would not be expected to affect the medial joint compartment.
Additionally, he related that his prior opinions that appellant’s June 24, 2015 employment injury
did not cause, accelerate, or aggravate her preexisting left knee osteoarthritis and that the requested
left total knee replacement was medically necessary, but not causally related to either work-related
injury remained unchanged.
OWCP, by decision dated May 29, 2019, denied modification of its November 7, 2018
decision based on Dr. Einbund’s March 27, 2019 opinion as the weight of the medical evidence.
On May 29, 2020 appellant requested reconsideration. In support of her reconsideration
request, she submitted a January 15, 2020 letter, in which Dr. Edward Mittleman, a family
medicine specialist, opined that her accepted conditions under OWCP File Nos. xxxxxx517 and
xxxxxx952 and authorized October 17, 2016 left knee surgery permanently aggravated her
preexisting left knee osteoarthritis. Dr. Mittleman advised that the acceptance of appellant’s claim

2

should be expanded to include the diagnosis of permanent aggravation of left knee osteoarthritis
and that the requested left knee total replacement was warranted.
By decision dated August 27, 2020, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
The Board has duly considered the matter and finds that appellant’s May 29, 2020 request
constituted a timely request for reconsideration. Section 10.607(a) of OWCP’s implementing
regulations provides that a request for reconsideration must be received by OWCP within one year
of the date of the decision for which review is sought.3 When determining the one-year period for
requesting reconsideration, the last day of the period should be included unless it is a Saturday,
Sunday, or a legal holiday.4 One year following OWCP’s May 29, 2019 merit decision was
May 29, 2020. Because OWCP received appellant’s request on May 29, 2020, the Board finds
that it was timely filed.5 The clear evidence of error standard utilized by OWCP in its August 27,
2020 decision is appropriate only for untimely reconsideration requests.6 Therefore, the Board
will set aside OWCP’s August 27, 2020 decision and remand the case for an appropriate decision
applying the correct standard for timely requests for reconsideration.

3

20 C.F.R. § 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(a) (February 2016).
4

Federal (FECA) Procedure Manual, id.

5

J.H., Docket No. 18-1367 (issued July 17, 2019); R.M., Docket No. 17-0473 (issued June 6, 2017); C.B., Docket
No. 13-1732 (issued January 28, 2014).
6

See 20 C.F.R. § 10.607(b).

3

IT IS HEREBY ORDERED THAT the August 27, 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: June 28, 2021
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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
AVIATION DEPOT, Cherry Point, NC,
Employer
__________________________________________

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

Docket No. 14-1951
Issued: March 12, 2015

Case Submitted on the Record

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

JURISDICTION
On September 8, 2014 appellant filed a timely appeal from the August 28, 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 to review the merits of this case.
ISSUE
The issue is whether appellant is entitled to an additional schedule award.
FACTUAL HISTORY
In a prior appeal, the Board found in its May 7, 2013 decision that appellant was not
entitled to an additional schedule award.2 In 1998, as a 40-year-old sandblaster, appellant filed
1

5 U.S.C. § 8101 et seq.

2

Docket No. 12-1628 (issued May 7, 2013).

an occupational disease claim alleging that his carpal tunnel syndrome was a result of hand
cleaning, stripping or blasting small aircraft components, which made his hands numb. OWCP
accepted his claim for bilateral carpal tunnel syndrome and approved surgical releases.
Appellant had received schedule awards totaling 42 percent for his left upper extremity (27
percent in 2000 plus an additional 15 percent in 2007) and 28 percent for his right (10 percent in
2000 plus an additional 15 percent in 2007 plus an additional three percent in 2012).3 The Board
found that appellant had only a six percent impairment bilaterally under the American Medical
Association, Guides to the Evaluation of Permanent Impairment (6th ed. 2009) (hereinafter
A.M.A., Guides). As this was less than the impairment for which he previously received
schedule awards, the Board found that he was not entitled to an additional award.
On February 6, 2014 appellant underwent additional bilateral carpal tunnel release. He
filed a claim for an additional schedule award. In support thereof, appellant submitted the
July 10, 2014 report of Dr. Ivor B. Kaplan, a hand surgeon and Board-certified plastic surgeon.
During postsurgical physical therapy, he noted an almost immediate improvement in the
numbness and tingling in his fingers. When he last saw Dr. Kaplan on July 2, 2014, appellant
noted that his hands felt “the best that they have ever felt.” It was Dr. Kaplan’s opinion that he
had reached maximum medical improvement and had an upper extremity impairment of one
percent bilaterally.
In a decision dated August 28, 2014, OWCP denied appellant’s claim for an additional
schedule award.
LEGAL PRECEDENT
FECA authorizes the payment of schedule awards for the loss or loss of use of specified
members, organs, or functions of the body. Such loss or loss of use is known as permanent
impairment. Compensation for the complete loss of an upper extremity, as with amputation at
the shoulder, extends 312 weeks.4 Compensation for partial losses is proportionate.5
FECA, however, does not specify the manner in which the percentage of loss shall be
determined. The method used in making such a determination is a matter that rests within the
sound discretion of OWCP.6
For consistent results and to ensure equal justice under the law to all claimants, good
administrative practice necessitates the use of a single set of tables so that there may be uniform
standards applicable to all claimants. OWCP has adopted the A.M.A., Guides as the appropriate

3

OWCP mistakenly indicated that appellant had received schedule awards for a 30 percent impairment of his
right upper extremity, when in fact he received schedule awards of 10 percent and 15 percent.
4

5 U.S.C. § 8107(c)(1).

5

Id. at § 8107(c)(19).

6

Linda R. Sherman, 56 ECAB 127 (2004); Danniel C. Goings, 37 ECAB 781 (1986).

2

standard for evaluating schedule losses.7 As of May 1, 2009, the sixth edition of the A.M.A.,
Guides is used to calculate schedule awards.8
ANALYSIS
The issue before the Board is whether appellant has permanent impairment in excess of
42 percent permanent impairment of his left upper extremity and a 28 percent permanent
impairment of his right upper extremity. The Board finds that appellant has not established
entitlement to an additional schedule award.
It would appear from the July 10, 2014 report of Dr. Kaplan, the surgeon who performed
the most recent carpal tunnel releases, that appellant now has almost no impairment of his upper
extremities. Appellant stated that his hands feel the best they have ever felt. This is a dramatic
improvement since OWCP determined that he had permanently lost 42 percent of the use of his
left upper extremity and 28 percent of the use of his right. Dr. Kaplan found that appellant’s loss
of use was now merely one percent bilaterally.
Under the sixth edition of the A.M.A., Guides, the highest impairment rating anyone may
receive for carpal tunnel syndrome is nine percent of the upper extremity.9 As appellant has
already received much more than this, he is not entitled to receive an additional schedule award
under the sixth edition of the A.M.A., Guides regardless of how bad his accepted condition may
become.
The Board finds that he is not entitled to an additional schedule award. The Board will
therefore affirm OWCP’s August 28, 2014 decision.
CONCLUSION
The Board finds that appellant is not entitled to an additional schedule award.

7

20 C.F.R. § 10.404; Ronald R. Kraynak, 53 ECAB 130 (2001).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010).
9

A.M.A., Guides 449, Table 15-23 (6th ed. 2009).

3

ORDER
IT IS HEREBY ORDERED THAT the August 28, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 12, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS, VA
MEDICAL CENTER, Syracuse, NY, Employer
__________________________________________

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Appearances:
Christina Faliero, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-1142
Issued: March 23, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 22, 2021 appellant filed a timely appeal from a May 25, 2021 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed
from OWCP’s last merit decision, dated May 8, 2020, to the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks 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 May 25, 2021 decision, OWCP received additional evidence. 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 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 July 17, 2019 appellant, then a 58-year-old registered nurse, filed a traumatic injury
claim (Form CA-1) alleging that on May 17, 2019 he injured his right hip when he slipped and fell
on a patient’s urine while in the performance of duty. He indicated that he did “the splits” with
his right leg slid backwards behind him and felt immediate discomfort in the area of the right
posterior hip. Appellant did not stop work.
In a medical report dated August 6, 2019, Dr. Michael T. Clarke, a Board-certified
orthopedic surgeon, indicated that appellant related complaints of right hip pain , which he
attributed to hyperextending the right hip when he slipped in liquid on May 17, 2019. He noted
that he experienced immediate pain in the posterior right hip and, on physical examination, he
documented mild deep hip irritation, tenderness over the ischial tuberosity, and pain with
hyperextension. Dr. Clarke reviewed x-rays, which revealed mild degenerative changes and
femoral neck thickening. He diagnosed right hip pain and offered a differential diagnosis of
potential hamstring tear versus posterior labral tear. Dr. Clarke recommended magnetic resonance
imaging (MRI) scan of the right hip.
A report of an MRI scan of the right hip dated August 30, 2019 demonstrated mild
osteoarthropathy, a tear of the anterior superior labrum, and a mild partial tear of the right common
hamstring origin.
In a follow-up report dated September 6, 2019, Dr. Clarke reviewed the MRI scan results
and diagnosed right hip pain. He opined that appellant’s pain was originating in the proximal
hamstring, and that the May 17, 2019 employment incident was a competent medical cause of the
injury. Dr. Clarke recommended physical therapy and medication.
In an October 18, 2019 development letter, OWCP informed appellant of the deficiencies
of his claim. It advised him of the type of factual and medical evidence necessary, including a
narrative medical report from his treating physician containing a detailed description of findings
and a diagnosis, explaining how his work activities caused, contributed to, or aggravated his
medical conditions. OWCP afforded appellant 30 days to submit the requested information.
Thereafter, OWCP received a report dated October 1, 2019 from Elizabeth Lannier, a
physical therapist, who noted that appellant related right hip pain, which he attributed to a workrelated hyperextension injury of the right hip. Ms. Lannier recommended various therapeutic
exercises and modalities. Additional notes dated October 3 through November 5, 2019
documented physical therapy treatments for the right hip.
In a follow-up report dated October 22, 2019, Dr. Clarke diagnosed right hip pain and
hamstring tendinosis. He performed a cortisone and lidocaine injection.
In an attending physician’s report (Form CA-20) dated November 14, 2019, Dr. Clarke
diagnosed right hip labral tear, right hip partial tear common hamstring, right hamstring tendinosis,
2

and right hip pain. He answered in the negative as to whether appellant had a history of a
preexisting injury and checked a box marked “Yes” indicating that the diagnosed conditions were
caused when appellant hyperextended his right hip after slipping on a vinyl floor at work.
By decision dated November 27, 2019, OWCP denied appellant’s traumatic injury claim,
finding that he had not submitted medical evidence establishing a causal relationship between his
diagnosed conditions and the accepted May 17, 2019 employment incident. Consequently, it
found that he had not met the requirements to establish an injury or medical condition causally
related to the accepted employment incident.
OWCP continued to receive evidence including physical therapy notes dated November 8
through 29, 2019.
In a December 3, 2019 follow-up note, Dr. Clarke noted that appellant had experienced
significant relief of his right hip pain f ollowing the cortisone injection and opined that his
complaints and examination findings were related to the May 17, 2019 employment incident.
In a report dated January 14, 2020, Dr. Clarke indicated that appellant was working full
duty with ongoing complaints of discomfort in his right buttock. He diagnosed right hip pain and
ischial tendinosis of the hamstring insertion and opined that forcible contraction of the hamstring
during his fall “could clearly have caused this problem” and “should be related to” his claim.
Dr. Clarke injected the area with a steroid.
On February 21, 2020 appellant requested reconsideration of OWCP’s November 27, 2019
decision.
By decision dated May 8, 2020, OWCP denied modification of its prior decision, finding
that appellant had not provided rationalized medical opinion eviden ce supporting causal
relationship between his accepted employment incident and his diagnosed medical conditions .
On May 6, 2021 appellant, through counsel, requested reconsideration of the May 8, 2020
decision. Counsel contended that OWCP erred in issuing its May 8, 2020 decision. She explained
that Dr. Clarke’s medical reports were sufficient to establish causal relationship and that his reports
were not speculative.
By decision dated May 25, 2021, OWCP denied appellant’s request for reconsideration of
the merits of his claim, pursuant to 5 U.S.C. § 8128(a), finding that his request for reconsideration
neither raised substantial legal questions, nor included new or relevant evidence.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant the review of an OWCP decision as a
matter of right. 4 OWCP has discretionary authority in this regard and has imposed certain

4

5 U.S.C. § 8128(a).

3

limitations in exercising its authority. 5 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought. 6
A timely request for reconsideration, including all supporting documents, must set forth
arguments, and contain evidence that either: (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 p reviously
considered by OWCP. 7 When a timely request for reconsideration does not meet at least one of
the above-noted requirements, OWCP will deny the request for reconsideration without reopening
the case for a review on the merits. 8
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 support of his request for reconsideration, appellant, through counsel, argued that OWCP
erred in finding that his claim required a fully rationalized medical opinion in order to establish a
causal relationship between his diagnosed medical conditions and the accepted May 17, 2019
employment incident. The Board finds, however, that appellant did not show that OWCP
erroneously applied or interpreted a specific point of law, nor did he advance a relevant legal
argument not previously considered by OWCP. Accordingly, he is not entitled to a review of the
merits of his claim based on the first and second above-noted requirements under section
10.606(b)(3). 9
Appellant also did not submit any new medical evidence. The underlying issue in this case
is causal relationship, which is medical in nature, and he did not submit any pertinent new and
relevant medical evidence not previously considered by OWCP. Therefore, appellant is not
entitled to further review of the merits of his claim based on the third requirement under section
10.606(b)(3). 10

5

20 C.F.R. § 10.607.

6

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the Integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
7

Id. at § 10.606(b)(3); see L.F., Docket No. 20-1371 (issued March 12, 2021); B.R., Docket No. 19-0372 (issued
February 20, 2020).
8

Id. at § 10.608.

9

Id. at § 10.606(b)(3); see also C.C., Docket No. 19-1622 (issued May 28, 2020); M.S., Docket No. 18-1041 (issued
October 25, 2018); C.N., Docket No. 08-1569 (issued December 9, 2008).
10

See 20 C.F.R. § 10.606(b)(3)(iii).

4

The Board, therefore, finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the May 25, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 23, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chicago, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-1659
Issued: June 8, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JURISDICTION
On July 28, 2014 appellant filed a timely appeal from a February 10, 2014 merit decision
of the Office of Workers’ Compensation Programs (OWCP).1 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.
ISSUE
The issue is whether appellant timely filed an occupational disease claim for
compensation under 5 U.S.C. § 8122(a).

1

Appellant also timely requested oral argument pursuant to section 501.5(b) of the Board’s Rules of Procedure.
20 C.F.R. § 501.5(b). The Board denied the request in a May 5, 2015 order on the grounds that no statement of
reasons supporting the need for oral argument was received and her argument on appeal could be adequately
addressed in a decision based on a review of the case record. Order Denying Request for Oral Argument, Docket
No. 14-1659 (issued May 5, 2015).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 20, 2013 appellant, then a 55-year-old, former letter sorter machine clerk and
mail handler, filed an occupational disease claim (Form CA-2) under File No. xxxxxx021
alleging that she first became aware of an aggravation of her preexisting connective tissue
disorder and neck pain in March 2010. She further alleged that on March 18, 2013 she first
realized that her conditions were caused or aggravated by her repetitive work duties. On the
claim form, the employing establishment stated that appellant stopped work on January 12, 1989.
It further stated that she first reported her injury to a supervisor on March 27, 2013.
In a March 20, 2013 letter, appellant stated that the employing establishment did not
advise her about the filing date for her claim. She was diagnosed with a heart condition in 2010
that was acknowledged by the employing establishment’s medical unit. Appellant contended
that a May 7, 1985 work-related traumatic injury aggravated her conditions and rendered her
unable to return to work after November 7, 1986.3 In a March 31, 2013 letter, appellant
referenced accompanying medical records from the employing establishment’s health unit dated
August 22, 1984 to November 7, 1986. These records were mostly illegible chart notes that
addressed the treatment of her neck, back, and bilateral leg conditions and her work capacity.
By letter dated April 23, 2013, OWCP advised appellant that the evidence submitted was
insufficient to establish her claim. It requested factual and medical evidence. OWCP also
requested that the employing establishment respond to appellant’s allegations and submit
medical evidence, if she had been treated at its medical facility.
On May 7, 2013 appellant submitted a description of her former work duties. She stated
that she last worked for the employing establishment in January 1989, and again contended that
her employment-related activities contributed to her condition. Appellant stated that she first
became aware of a connective tissue disorder on October 26, 2012, when the diagnosis was
confirmed by genetic testing at Cedars Sinai Hospital, not on March 1, 2010 as indicated on her
claim form.
In a June 27, 2013 decision, OWCP found that appellant’s occupational disease claim
was not timely filed under 5 U.S.C. § 8122 as she knew or reasonably should have known that
her condition was caused or aggravated by her employment by at least 2006. It found that her
claimed Marfan syndrome (connective tissue disorder) was addressed in its December 8, 2006
notice which proposed to terminate her compensation benefits and was finalized in a decision
dated January 18, 2007 under File No. xxxxxx086. OWCP also found that appellant’s claim for
compensation was filed on March 20, 2013. It noted that she stopped work at the employing
establishment on January 12, 1989.

3

Prior to the instant claim, appellant filed a traumatic injury claim (Form CA-1) under File No. xxxxxx086
alleging that she sustained left ankle, hip, and neck injuries on May 7, 1985 when she slipped and fell down a full
flight of stairs. OWCP accepted the claim for neck, lumbar, left ankle, and left hip strain. It paid total disability
compensation. On February 1, 2003 appellant filed a Form CA-1 under File No. xxxxxx103 alleging that she
injured her left side, arms, and neck on July 24, 1985 while working on a letter sorter machine. OWCP accepted the
claim for cervical and thoracic strain, and left trapezius myositis. The record does not indicate whether OWCP paid
any compensation. These claims and the instant claim under File No. xxxxxx021 have been combined into a master
claim assigned File No. xxxxxx086.

2

On July 2, 2013 appellant requested an oral hearing before an OWCP hearing
representative and submitted a June 12, 2013 medical report from Dr. Sylvia A. De La Llana, a
physiatrist, who diagnosed connective tissue disease and Marfan syndrome, and opined that these
conditions were accelerated and exacerbated by her May 7, 1985 work-related incident.
During a November 22, 2013 telephonic hearing, appellant testified that she began work
at the employing establishment in 1979 and after 1980 she sustained a neck injury as a result of
an automobile accident. When she returned to work, she constantly told the employing
establishment about the neck pain she experienced while at work. Appellant stated that no one
instructed her that this was an occupational illness. In 2012 she went to Cedars Sinai Hospital
and was tested for Marfan syndrome, but was diagnosed as having a connective tissue disorder.
Appellant stated that this was a preexisting condition that was constantly aggravated by her work
activities.
In a February 10, 2014 decision, an OWCP hearing representative affirmed the June 27,
2013 denial of appellant’s claim as it was untimely filed. The hearing representative found that
appellant was able to pursue her prior claims for the same medical conditions claimed in the
instant occupational disease claim which were addressed in multiple OWCP decisions and, thus,
she should have been capable of timely filing the instant claim. She noted that OWCP’s 2007
termination of appellant’s compensation benefits under File No. xxxxxx086 was based on the
opinion of an impartial medical specialist who found no evidence of any disabling residuals of
the accepted work injuries or Marfan syndrome that prevented her from returning to full-duty
work and was affirmed by the Board. The hearing representative found that she did not provide
a reasonable basis for failing to pursue an occupational disease claim at an earlier date. She
resent the decision on May 12, 2014.4
LEGAL PRECEDENT
Under FECA, as amended in 1974, a claimant has three years to file a claim for
compensation.5 In occupational disease claims, the Board has held that the time for filing a
claim begins to run when the employee first becomes aware or reasonably should have been
aware of a possible relationship between the condition and her employment.6 When an
employee becomes aware or reasonably should have been aware that she has a condition which
has been adversely affected by factors of her federal employment, such awareness is competent
to start the limitation period even though the employee does not know the precise nature of the
impairment or whether the ultimate result of such affect would be temporary or permanent.7
Section 8122(b) provides that, in latent disability cases, the time limitation does not begin
to run until the claimant is aware or by the exercise of reasonable diligence, should have been

4

On May 9, 2014 appellant informed OWCP that she had misplaced the February 2, 2014 decision and that she
wished to appeal the decision to the Board.
5

Duet Brinson, 52 ECAB 168 (2000); William F. Dorson, 47 ECAB 253, 257 (1995); see also 20 C.F.R.
§ 10.101(b).
6

See William C. Oakley, 56 ECAB 519 (2005).

7

Larry E. Young, 52 ECAB 264 (2001).

3

aware of the causal relationship between her employment and the compensable disability.8
Where the employee continues in the same employment after such awareness, the time limitation
begins to run on the date of last exposure to the implicated factors.9 The requirement to file a
claim within three years is the claimant’s burden and not that of the employing establishment.10
Compensation for disability or death may still be allowed even if a claim is not filed
within the three-year time frame if appellant can show that: (1) her immediate supervisor had
actual knowledge of her alleged employment-related injury within 30 days such that the
immediate supervisor was put reasonably on notice of an on-the-job injury; or (2) death or
written notice of injury or death as specified in section 8119 was given within 30 days.11 Section
8119 provides that a notice of injury or death shall be given within 30 days after the injury or
death, be given to the immediate superior of the employee by personal delivery or by depositing
it in the mail properly stamped and addressed, be in writing; state the name and address of the
employee, state the year, month, day and hour when and the particular locality where the injury
or death occurred; state the cause and nature of the injury or, in the case of death, the
employment factors believed to be the cause and be signed by and contain the address of the
individual giving the notice.12 The Board has held that actual knowledge and written notice of
injury under section 8119 serve to satisfy the statutory period for filing an original claim for
compensation.13 For actual knowledge of a supervisor to be regarded as timely filing, an
employee must show not only that the immediate superior knew that he or she was injured, but
also knew or reasonably should have known that it was an on-the-job injury.14
ANALYSIS
Appellant alleges that she sustained an aggravation of her preexisting connective tissue
disorder and neck pain as a result of her employment. OWCP denied her occupational disease
claim as untimely. The Board finds that appellant did not file her claim within the applicable
time limitation provisions of FECA.
In a Form CA-2, appellant stated that she initially became aware of her claimed
conditions on March 18, 2013. She later claimed that she became aware of her conditions on
October 26, 2012 when she was diagnosed as having a connective tissue disorder as confirmed
by genetic testing at Cedars Sinai Hospital. The time limitations period for filing appellant’s
occupational disease claim commenced on January 12, 1989 because she continued to work for
the employing establishment until this date. Nonetheless, she filed her claim on March 20, 2013,
over 24 years after she stopped work. Appellant’s purported unfamiliarity with FECA filing
8

5 U.S.C. § 8122(b); see also Bennie L. McDonald, 49 ECAB 509, 514 (1998).

9

Id.; see also William D. Goldsberry, 32 ECAB 536, 540 (1981).

10

Debra Young Bruce, 52 ECAB 315 (2001).

11

5 U.S.C. § 8122(a).

12

Id. at § 8119.

13

Laura L. Harrison, 52 ECAB 515 (2001).

14

Delmont L. Thompson, 51 ECAB 155 (1999).

4

requirements did not excuse her untimely filing.15 In addition, while she testified at the
November 22, 2013 telephonic hearing that she constantly told the employing establishment
about her neck pain upon her return to work following a 1980 automobile accident in which she
sustained a neck injury, the case record does not contain evidence demonstrating that an
immediate superior either had actual knowledge of or received written or verbal notification
about a neck injury and its relationship to her work within 30 days of its occurrence.16 The
employing establishment stated that appellant first reported her injury to a supervisor on
March 27, 2013. The Board finds that appellant did not file a timely claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant’s claim is barred by the applicable time limitation
provisions of FECA.
ORDER
IT IS HEREBY ORDERED THAT the February 10, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 8, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board
15

5 U.S.C. § 8122(d)(3) (exceptional circumstances); see Ralph L. Dill, 57 ECAB 248, 253-54 (2005) (ignorance
of the law or one’s obligations under it does not constitute exceptional circumstances that would otherwise excuse
an untimely filing).
16

Duet Brinson, supra note 5.

5