United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., widow of S.B., Appellant
and
DEPARTMENT OF ARMY, ARMY
SUSTAINMENT COMMAND, 403 ARMY
FIELD SUPPORT BRIGADE,
Daegu, South Korea, Employer
__________________________________________

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

Docket No. 20-0189
Issued: November 20, 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 October 31, 2019 appellant filed a timely appeal from a May 24, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish that the employee’s
death on November 28, 2015 occurred in the performance of duty, as alleged.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 27, 2018 appellant filed a claim for compensation by widow (Form CA-5) alleging
that her husband, the employee, died on November 28, 2015 of acute myeloid leukemia (AML)
due to factors of his federal employment. On the reverse side of the claim form the employee’s
attending physician, Dr. Jae-Ho Yoon, a hematology specialist, indicated that the employee’s
direct cause of death was AML. He noted that he was told that the employee worked in a secure
facility that stored radiological equipment and had worked with and around petroleum-based
chemicals that cleaned, lubricated, and preserved materials in the secure facility. Dr. Yoon
checked a box marked “yes” indicating that the employee’s death was due to his employmentrelated condition, and he opined that there was a strong possibility that the employee’s job of
taking care of radiological materials by inventorying, cleaning, and issuing them had caused his
diagnosed AML condition, as exposure to radiation and petroleum have known links to leukemia.
A 2014 position description from the employing establishment for a logistics management
specialist indicated that the position entailed working in the Basic Issue and Sensitive Items,
Materiel Branch, Supply Division, Army Prepositioned Stock-4. Duties included responsibility
over brigade sets, sustainment stocks, operational projects, equipment and supplies, cyclic
maintenance, and care of supplies in storage. Other duties included directing and ensuring
completion of all inventories, identifying and fixing shortages, and assuming responsibility for all
inventory requirements for materials. The description indicated that the position required
undergoing nuclear-biological and chemical training. The conditions of employment indicated
that he worked with radiological and toxic items, including two 120 millimeter mortars, and toxins
listed included “trichsoroethysene, phosphate, steel wool, chromium, other, and cleaner, lubricant,
and preservative” (CLP).
A June 20, 2018 letter from appellant indicated that the employee accepted a position in
2007 as a logistics management specialist at the employing establishment and had worked in that
position for five years prior to his AML diagnosis. Appellant alleged that the employee worked
with radiological materials and other petroleum-based toxins on a daily basis without adequate
protection, which she alleged caused his AML.
In a July 18, 2018 development letter, OWCP advised appellant of the deficiencies of her
claim. It advised her of the type of additional evidence needed to support her claim and afforded
her 30 days to respond.
In a separate July 18, 2018 development letter, OWCP requested that the employing
establishment provide additional factual information regarding appellant’s claim, including
comments from a knowledgeable supervisor regarding the accuracy of all statements submitted in
support of appellant’s claim. It also requested information regarding which specific materials the
employee was exposed to, the frequency of and duration of each exposure, the tasks that the
employee performed which resulted in exposure to or contact with radiological, benzene, and
petroleum-based materials, and what precautions were taken to minimize the effects of exposure.
OWCP also asked if other employees suffered similar ailments. It afforded the employing
establishment 30 days to respond.

2

A July 25, 2018 letter from Dr. Yoon indicated that he had been informed that the employee
worked as a logistics management specialist from 2007 until the employee was diagnosed with
AML in July 2012, and that his duties included caring for radiological materials with petroleumbased chemicals. Dr. Yoon opined that the employee’s occupational exposures to radiological
materials and associated chemicals caused the employee’s AML, which directly caused his death.
In a November 2, 2018 response, an OWCP development letter, the employing
establishment indicated that the employee’s former supervisor, who had worked in the facility
since 2000, alleged that it was highly unlikely for an employee to be exposed to radioactive hazards
because the equipment with radioactive material only emitted alpha rays, which were stopped by
paper, skin, and plastic, and this equipment was stored in cardboard boxes and metal and plastic
containers. It also stated that the secured warehouse where the employee worked was a humiditycontrolled facility with two rooftop ventilators that constantly circulated the indoor air. The
employing establishment indicated that lower level employees actually handled the equipment and
referred to the 2014 position description for the logistics management specialist, noting that the
employee’s role as a supervisor would have limited his exposure to any mentioned equipment with
radiological material. It explained that the only petroleum-based products used in the warehouse
were cleaning solvents and CLP, which were used exclusively by contractors. The employing
establishment stated that these products were stored at the opposite end of the warehouse from the
employee’s location, and that even contractors had limited exposure to these products as they were
exposed for less than five minutes per incident, two to three times a day. It further explained that
appellant’s main duty was to oversee the overall warehouse operations, which included directing
workforce and managing reports, and that the employee’s exposure to the petroleum-based
products was therefore highly unlikely. The employing establishment stated that it could not
determine which materials the employee was exposed to or the frequency of his exposure since
there were no requirements for him to handle radioactive materials or petroleum-based products.
It noted that the Area-IV Industrial Hygiene (IH) office was gathering facility inspection results,
specifically IH inspection reports, and it indicated that it would provide supporting evidence if
needed.
In a May 15, 2019 letter, appellant indicated that the employee’s office was inside the
warehouse, and that humidity and rooftop ventilators did not guarantee good air quality. She stated
that the employee undoubtedly handled equipment himself to ensure that inventories were
appropriately conducted and to ensure that his responsibilities as stated in his position description
were taken care of. Appellant explained that it would have been impossible for him to fulfill his
duties if the materials were all covered and boxed. She indicated that the employee was informed
by his colleagues that many Korean national employees had fallen ill while handling sensitive
equipment at the warehouse. Appellant further indicated that when the employee returned from
work he would smell like CLP, so even if it was true that the CLP products were stored at the
opposite end of the warehouse, the ventilation was so poor that he was still exposed. She also
stated that cleaning one weapon may have taken five minutes, but cleaning a set took much longer
and was often a multiday process, and this compounded exposure. Appellant noted that it was
suspect that the IH inspection only occurred after the employee’s death, and stated that although
the results had not been provided to her, she assumed they would be inaccurate because the
inspection occurred after corrective action was taken. The employee was informed that the
warehouse he worked in stopped using certain chemicals after he fell ill and had changed various

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procedures deemed unsafe. Appellant also stated that she confirmed that civilians from the
employing establishment no longer worked in the warehouse where the employee used to work.
By decision dated May 24, 2019, OWCP denied appellant’s claim finding that the evidence
of record was insufficient to establish that the employee’s death was due to a factor of his federal
employment. It indicated that the employing establishment’s November 30, 2018 statement
alleged that it would have been highly unlikely that the employee was exposed to radioactive
hazards in its warehouse that petroleum products were only used by contractors, and that
supervisors were provided with personal protective equipment.
LEGAL PRECEDENT
The United States shall pay compensation for the disability or death of an employee
resulting from personal injury sustained while in the performance of duty.2 An award of
compensation in a survivor’s claim may not be based on surmise, conjecture, or speculation or on
appellant’s belief that the employee’s death was caused, precipitated, or aggravated by the
employment.3 Appellant has the burden of proof to establish by the weight of the reliable,
probative, and substantial medical evidence that the employee’s death was causally related to an
employment injury or to factors of his or her federal employment. As part of this burden, appellant
must submit a rationalized medical opinion, based upon a complete and accurate factual and
medical background, showing a causal relationship between the employee’s death and an
employment injury or factors of his or her federal employment. Causal relationship is a medical
issue and can be established only by medical evidence.4
ANALYSIS
The Board finds that this case is not in posture for decision.
Appellant’s June 20, 2018 letter indicated that the employee accepted a position in 2007 as
a logistics management specialist at the employing establishment and had worked with
radiological materials and other petroleum-based toxins on a daily basis for five years. Her
May 15, 2019 letter indicated that the employee’s office was inside a warehouse, and she stated
that the employee undoubtedly handled equipment himself to ensure that inventories were
appropriately conducted and to check that his responsibilities for the material as stated in his
position description were taken care of, as it would have been impossible for him to fulfill his
duties if the materials were all covered and boxed. Appellant further indicated that when the
employee returned from work he would smell like CLP, so even if it was true that the CLP products
were stored at the opposite end of the warehouse, the ventilation was so poor that he was still
exposed. While the employing establishment contended that appellant’s exposure to radiological
material and petroleum-based products was highly unlikely, its own position description noted
exposure to 120 millimeter mortars as well as exposure to toxic materials including
2

5 U.S.C. § 8133 (compensation in case of death).

3

See W.C., Docket No. 18-0531 (issued November 1, 2018); Sharon Yonak (Nicholas Yonak), 49 ECAB
250 (1997).
4

See L.R. (E.R.), 58 ECAB 369 (2007).

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thrichsoroethysene, phosphate, steel wool, chromium, other, and cleaner, lubricant, and
preservative (CLP). The Board thus finds that appellant has established that the occupational
exposure occurred as alleged, as the record contains sufficient evidence to establish that the
employee was exposed to toxic materials including radiological material and petroleum-based
products during his federal employment.5
As appellant has established that the claimed occupational exposures occurred as alleged,
the question becomes whether these exposures caused the employee’s death. The case will
therefore be remanded for OWCP to consider the medical evidence of record, including the
submission of Dr. Yoon, as to whether the accepted employment exposures caused the employee’s
death. Following this and other such further development as deemed necessary, OWCP shall issue
a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the May 24, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further action consistent with
this decision of the Board.
Issued: November 20, 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

See M.B., Docket No. 19-1643 (issued July 20, 2020).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Frazer, MT, Employer
__________________________________________

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

Docket No. 14-1777
Issued: December 1, 2015

Case Submitted on the Record

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

JURISDICTION
On August 15, 2014 appellant filed a timely appeal of a March 7, 2014 merit decision and
a July 9, 2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish a traumatic
injury in the performance of duty; and (2) whether OWCP properly denied appellant’s request
for reconsideration.

1
2

5 U.S.C. §§ 8101-8193.

On appeal, appellant submitted additional evidence. However, the Board may not consider new evidence on
appeal; see 20 C.F.R. § 501.2(c).

FACTUAL HISTORY
On February 1, 2013 appellant, then a 65-year-old postmaster, filed a Form CA-1,
traumatic injury claim, alleging that on January 30, 2013, while shoveling snow, she slipped and
fell injuring her left wrist while in the performance of duty. She did not stop work but returned
to a light-duty position.
On January 30, 2013 appellant was treated by a nurse practitioner for a left wrist and
right shoulder work injury. She reported that she was shoveling snow when she tripped and fell
injuring her right shoulder and left wrist. The nurse practitioner noted x-rays which revealed a
fracture of the distal radius and appellant was placed in a wrist splint. She diagnosed left wrist
fracture with significant swelling and right shoulder strain secondary to fall. On February 4,
2013 the nurse practitioner removed the splint and placed appellant in a cast. In an attending
physician’s report dated February 12, 2013, she noted that appellant reported shoveling snow,
tripping, and falling injuring her shoulder and wrist. The nurse practitioner diagnosed right
shoulder strain and left wrist distal radial fracture. She noted with a checkmark “yes” that
appellant’s condition was caused or aggravated by an employment activity and returned her to
light-duty work.
Appellant submitted an x-ray of the left wrist dated January 30, 2013 which revealed
nondisplaced fracture of the distal radius with degenerative changes. An x-ray of the right
shoulder dated January 30, 2013 revealed degenerative changes of the acromioclavicular joint
with inferior spur formation. Appellant continued treatment with a nurse practitioner. She
diagnosed fall on ice, left wrist distal radius fracture and right shoulder pain and strain. In a duty
status report dated March 14, 2013, a nurse practitioner noted that appellant reported slipping on
ice and fracturing her left wrist and injured her right shoulder. She diagnosed left fractured wrist
and right shoulder pain and returned appellant to work full time with restrictions. An x-ray of
the left wrist dated February 26, 2013 revealed healing distal radius fracture and osteoarthritis.
On March 5, 2013 appellant was treated by a physician assistant for right shoulder pain.
Appellant reported that on January 30, 2013, while at work, appellant was shoveling snow and
she slipped and fell sustaining a right shoulder and left wrist injury. She noted that appellant
remained in a wrist brace and was having radiating right shoulder pain which was exacerbated by
movement. The physician assistant noted tenderness of the right shoulder, minimally positive
impingement sign, and symmetric with intact motor and sensory testing. She diagnosed joint
pain in the shoulder region, impingement syndrome of the right shoulder status post work injury
on January 30, 2013, degenerative joint disease of the acromioclavicular joint, right shoulder and
adhesive capsulitis of the right shoulder. A March 5, 2013 right shoulder x-ray revealed
prominent degenerative acromioclavicular joint with predominant superior spurring, mild
decreased subacromial space, and degenerative left acromioclavicular joint with superior
extension. A March 14, 2013 x-ray of the left wrist revealed healing distal radius fracture.
In a January 30, 2014 letter, OWCP advised appellant of the type of evidence needed to
establish her claim, particularly requesting that she submit a physician’s reasoned opinion
addressing the relationship of her claimed condition and specific employment factors.
Appellant submitted emergency room records dated January 30, 2013 for treatment of
right shoulder and left wrist injuries. A nurse diagnosed left posterior distal radial fracture.

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Appellant submitted reports dated February 13 and 19, 2013 from a nurse practitioner who
treated her for a right shoulder injury after a work-related fall in 2013. The nurse practitioner
diagnosed right shoulder pain and noted that appellant was scheduled for surgery. She noted that
appellant’s injury was related to a fall.
In a March 7, 2014 decision, OWCP denied the claim on the grounds that appellant failed
to submit sufficient medical evidence to establish that a medical condition was diagnosed in
connection with the claim work incident. It noted that the medical evidence submitted was from
a nurse or nurse practitioner and not from a physician.
On June 27, 2014 appellant requested reconsideration. In an undated statement, she
indicated that on January 31, 2013 she slipped while shoveling snow at work. She sought
treatment at a health clinic and x-rays revealed a left wrist fracture and she was placed in a cast.
Appellant noted undergoing a magnetic resonance imaging scan of the right shoulder which
revealed a rotator cuff tear for which she underwent surgery on May 19, 2014. She submitted a
duplicate copy of the March 5, 2013 report from a nurse practitioner countersigned by
Dr. Thomas M. Mirich, III, a Board-certified orthopedic surgeon.
In a July 9, 2014 decision, OWCP denied appellant’s request for reconsideration on the
grounds that the evidence was insufficient to warrant a merit review.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was filed within the applicable time limitation
of FECA, that an injury was sustained in the performance of duty as alleged, and that any
disability and/or specific condition for which compensation is claimed is 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 occupational disease.3
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 sufficient evidence to establish that she actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.4
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

3

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

4

T.H., 59 ECAB 388 (2008).

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rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.5
ANALYSIS -- ISSUE 1
It is not disputed that appellant worked as a postmaster and that on January 30, 2013 she
was shoveling snow and slipped and fell. However, she has not submitted sufficient medical
evidence to establish any diagnosed conditions that are causally related to the January 30, 2013
work incident.
On January 30, 2014 OWCP 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 specific employment factors may have caused or aggravated her
claimed condition.
Appellant submitted reports from a nurse practitioner dated January 30 to March 14,
2013, who treated her for injuries sustained to her left wrist and right shoulder after a fall at
work. She reported that she was shoveling snow and tripped and fell injuring her right shoulder
and left wrist. The nurse practitioner noted x-rays revealed a fracture of distal radius and she
diagnosed left wrist fracture and right shoulder strain secondary to fall. Appellant also submitted
emergency room notes from a nurse dated January 30, 2013 who diagnosed left posterior distal
radial fracture. Similarly, she was treated by a physician assistant on March 5, 2013 who
diagnosed pain in the joint involving the shoulder region, impingement syndrome of the right
shoulder status post work injury on January 30, 2013, degenerative joint disease of the
acromioclavicular joint, right shoulder, and adhesive capsulitis of the right shoulder. However,
the Board has held that treatment notes signed by a nurse or physician assistant are not
considered medical evidence as these providers are not a physician under FECA.6
The remainder of the medical evidence, including x-ray reports, are insufficient to
establish the claim as they fail to provide an opinion on the causal relationship between
appellant’s job and her diagnosed conditions
As noted, part of appellant’s burden of proof includes the submission of rationalized
medical opinion evidence, based on a complete factual and medical background, supporting such
a causal relationship between the employment and the diagnosed condition. Therefore, these
notes are insufficient to meet her burden of proof.
The record before OWCP at the time of its March 7, 2014 decision contains no other
medical evidence. Because appellant did not submit medical evidence from a physician

5

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

6

L.D., 59 ECAB 648 (2008) (a nurse practitioner is not a physician as defined under FECA). See David P.
Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician assistants, nurses, and physical therapists are not
competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection defines a “physician” as
surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners
within the scope of their practice as defined by State law).

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explaining how and why any diagnosed condition was due to the January 30, 2013 work
incident, she has not met her burden of proof.
On appeal, appellant disagrees with OWCP’s decision denying her claim for
compensation and noted that she submitted sufficient evidence to establish her claim. As noted
above, the medical evidence does not establish that appellant’s diagnosed conditions are causally
related to her employment. Appellant failed to submit a report from a physician which provides
medical rationale explaining the reasons why her claimed conditions were caused or aggravated
by particular employment duties.
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of FECA,7 OWCP has the discretion to reopen a case for review
on the merits. OWCP must exercise this discretion in accordance with the guidelines set forth in
section 10.606(b)(2) of the implementing federal regulations, which provide that a claimant may
obtain review of the merits of his or her written application for reconsideration, including all
supporting documents, sets forth arguments and contain evidence that:
“(1) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
(2) Advances a relevant legal argument not previously considered by OWCP; or
(3) Constitutes relevant and pertinent new evidence not previously considered by
OWCP.”8
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.9
ANALYSIS -- ISSUE 2
OWCP denied appellant’s claim for a traumatic injury on the grounds that the medical
evidence was insufficient to establish that her claimed conditions were causally related to work
events. Thereafter, on July 9, 2014 it denied her reconsideration request, without a merit review,
on the grounds that the evidence was insufficient to warrant a merit review.
However, with her June 27, 2014 reconsideration request, appellant submitted relevant
and pertinent evidence not previously considered by OWCP. After the March 7, 2014 decision,
which denied appellant’s claim because she had not submitted a medical opinion establishing
that the claimed medical condition was causally related to the established work-related events,
appellant re-submitted a March 5, 2013 report from a physician assistant which was
7

5 U.S.C. § 8128(a).

8

20 C.F.R. § 10.606(b)(2).

9

Id. at § 10.608(b).

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countersigned by Dr. Mirich, a Board-certified orthopedic surgeon. In this report, the physician
assistant noted that appellant reported slipping and falling while shoveling snow at work on
January 30, 2013 and injured her right shoulder and left wrist injury. She noted findings of
tenderness of the right shoulder and minimally positive impingement sign and diagnosed pain in
the joint involving the shoulder region, impingement syndrome of the right shoulder status post
work injury on January 30, 2013, degenerative joint disease of the acromioclavicular joint, right
shoulder, and adhesive capsulitis of the right shoulder. This medical evidence is relevant as she
opined that appellant was injured on January 30, 2013. Although OWCP’s July 9, 2014 decision
found that the evidence was duplicative, this evidence was not previously countersigned by a
physician and was not considered medical evidence by OWCP in rendering a decision. The
Board has held that the requirement for reopening a claim for merit review does not include the
requirement that a claimant must submit all evidence which may be necessary to discharge his or
her burden of proof. Instead, the requirement pertaining to the submission of evidence in support
of reconsideration only specifies that the evidence be relevant and pertinent and not previously
considered by OWCP.10 The Board finds that, in accordance with 20 C.F.R. § 10.606(b)(2)(3),
this new evidence from Dr. Mirich is sufficient to require reopening appellant’s case for further
review on its merits.
Therefore, OWCP improperly refused to reopen appellant’s claim for further review on
its merits under 5 U.S.C. § 8128. Consequently, the case must be remanded for OWCP to reopen
appellant’s claim for a merit review. Following this and such other development as deemed
necessary, OWCP shall issue an appropriate merit decision on appellant’s claim.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that her
claimed conditions were causally related to her employment. The Board further finds that
OWCP, in its decision dated July 9, 2014, improperly denied her request for reconsideration of
her case on its merits.

10

See Helen E. Tschantz, 39 ECAB 1382 (1988).

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ORDER
IT IS HEREBY ORDERED THAT the March 7, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed and the July 9, 2014 decision is set aside and the
case is remanded to OWCP for further development in accordance with this decision.11
Issued: December 1, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

11

James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the
Board effective November 16, 2015.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.H., Appellant
and
U.S. POSTAL SERVICE, CARRIER ANNEX,
Frisco, TX, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 18-0025
Issued: July 19, 2018

Case Submitted on the Record

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

On October 3, 2017 appellant filed a timely application for review from an August 7, 2017
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards docketed the appeal as No. 18-0025.
On March 23, 2015 appellant, then a 37-year-old rural carrier associate, filed a traumatic
injury claim (Form CA-1) for a right hip and buttocks strain that reportedly occurred on
December 17, 2014 while delivering a package to a customer’s porch. OWCP initially accepted
the claim for lumbar sprain, right iliofemoral hip sprain, and right hip and thigh sprain
(unspecified).1
On December 14, 2015 OWCP issued two separate decisions. One denied continuation of
pay (COP) for the period December 17, 2014 through January 31, 2015. Appellant had not
reported her injury within 30 days of the December 17, 2014 employment incident. The other
December 14, 2015 decision denied wage-loss compensation beginning March 27, 2015 and
1
OWCP subsequently expanded appellant’s claim to include abdominal muscle strain and unilateral inguinal hernia
as accepted conditions. It also authorized March 31, 2016 surgery to repair her hernia. Appellant received wage-loss
compensation for temporary total disability (TTD) beginning March 29, 2016, and continues to receive compensation
for TTD on the periodic rolls.

continuing.2 OWCP found that the medical evidence submitted was insufficient to support
disability due to the accepted December 17, 2014 work-related injury.3
On January 12, 2016 appellant requested a review of the written record by OWCP’s Branch
of Hearings and Review. She submitted an appeal request form for a “December 17, 2015”
decision.
In a separate letter dated January 6, 2016 and received by OWCP on January 13, 2016,
appellant indicated that she was “appealing the decision” of entitlement to COP and wage-loss
compensation claimed for the period commencing March 27, 2015. She explained that although
she was not totally disabled, the employing establishment could not accommodate her physician’s
March 17, 2015 recommendation of two hours of limited/light-duty work.
By decision dated June 21, 2016, OWCP’s hearing representative affirmed the
December 14, 2015 decision denying COP. She acknowledged receipt of appellant’s January 6,
2016 correspondence “describing her disagreement with [OWCP’s] decision,” but she did not
address appellant’s claim for wage-loss compensation commencing March 17, 2015.
Appellant timely requested reconsideration of the hearing representative’s June 21, 2016
decision denying COP. By September 28, 2016 merit decision, OWCP denied modification of its
June 21, 2016 decision. It explained that appellant was not entitled to COP because she had not
filed her claim within 30 days of her December 17, 2014 traumatic injury.
On April 7, 2017 OWCP received appellant’s March 29, 2017 request for reconsideration
of the September 28, 2016 decision. OWCP also received a separate letter from appellant dated
March 29, 2017. Appellant explained that she wanted to exercise her right to appeal the
December 14, 2015 decision “to allow payment for loss (sic) wages for the period March 1, 2015
to March 30, 2016, prior to surgery….”
On June 5, 2017 OWCP sought clarification regarding which decision(s) appellant was
seeking reconsideration. It noted that both COP and wage-loss compensation had initially been
denied by decisions dated December 14, 2015. In a June 12, 2017 letter, appellant advised that
she was exercising her appeal rights with respect to the December 14, 2015 decision denying
wage-loss compensation beginning March 1, 2015.
By decision dated August 7, 2017, OWCP denied appellant’s March 29, 2017 request for
reconsideration because it was untimely filed and failed to demonstrate clear evidence of error
with respect to the December 14, 2015 decision denying wage-loss compensation.
The Board has considered the matter and finds that appellant’s January 6, 2016
correspondence, which OWCP received on January 13, 2016, constituted a timely request for
reconsideration of the December 14, 2015 merit decision denying wage-loss compensation.
2

Although the December 14, 2015 decision noted a disability commencement date of March 27, 2015, appellant’s
June 23, 2015 claim for compensation (Form CA-7) noted that she last worked on March 16, 2015, and was seeking
compensation beginning March 17, 2015.
3

At the time, OWCP had not yet accepted abdominal muscle strain and unilateral inguinal hernia.

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OWCP’s regulations at 20 C.F.R. § 10.607(a), provides that an “application for reconsideration
must be received within one year of the date of OWCP[‘s] decision for which review is sought.”
In this case, appellant articulated that she was “appealing the decision” denying wage-loss
compensation “beginning [March 27, 2015] and continuing….” OWCP received appellant’s
January 6, 2016 request for reconsideration within one year of its December 14, 2015 merit
decision denying wage-loss compensation. Therefore it was timely filed.
As such OWCP should have reviewed her request under the standard for timely requests
for reconsideration.4 The clear evidence of error standard utilized by OWCP in its August 7, 2017
decision is appropriate only for untimely reconsideration requests.5 The Board will set aside
OWCP’s August 7, 2017 decision and remand the case for an appropriate final decision on
appellant’s timely request for reconsideration.
IT IS HEREBY ORDERED THAT the August 7, 2017 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this order of the Board.
Issued: July 19, 2018
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

4

See 20 C.F.R. § 10.606(b)(3).

5

Id. § 10.607(b).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.K., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTICS AGENCY, Fort Belvoir, VA,
Employer
__________________________________________

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

Docket No. 14-1082
Issued: November 24, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 9, 2014 appellant filed a timely appeal from a November 12, 2013 decision of
the Office of Workers’ Compensation Programs (OWCP) denying his reconsideration request on
the basis that it was untimely filed and failed to present clear evidence of error.1 Because more
than 180 days has elapsed since the most recent merit decision dated June 30, 2011 to the filing
of this appeal, the Board lacks jurisdiction to review the merits of appellant’s case pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.3

1

At the time the present appeal was filed, appellant requested an oral argument with the Board; however, in a
September 16, 2014 letter, he withdrew the oral argument request.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the February 28, 2013 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration on
the basis that it was not timely filed and did not establish clear evidence of error.
FACTUAL HISTORY
On July 27, 2010 appellant, then a 65-year-old supervisory distribution facilities
specialist, filed an occupational disease claim (Form CA-2) alleging that he sustained hearing
loss due to working around and in high-level noise areas during the course of his federal
employment. He first became aware of his hearing loss on May 22, 1985 and first related it to
his federal employment on March 31, 2009. Appellant continued to work at the employing
establishment in the same position until he retired on September 3, 2010. He had previously
received a schedule award for a seven percent binaural (both ears) hearing loss under OWCP File
No. xxxxxx587.
In a December 8, 2010 report, Dr. Daryl Bodner, a Board-certified otolaryngologist,
diagnosed high frequency sensorineural hearing loss of long-standing duration. He advised that
audiometric testing had been conducted, repeated and compared to the best hearing test available
to them, which were two tests from 2004. Dr. Bodner determined that appellant’s hearing test
from December 8, 2010 was very similar to what it was in 2004. He found a slight drop around
the frequency level of 500 cycles per second, but appellant’s higher frequencies were otherwise
fairly stable. Dr. Bodner determined that appellant’s discriminations were better on the
December 8, 2010 testing than it was in the past.
OWCP referred appellant to Dr. Clifford Steinig, a Board-certified otolaryngologist, for a
second opinion examination. In a February 16, 2011 report, Dr. Steinig diagnosed binaural
sensorineural hearing loss causally related to noise exposure in appellant’s federal employment.
He noted that appellant was having significant problems with tinnitus and recommended hearing
aids.
By decision dated March 8, 2011, OWCP accepted bilateral hearing loss due to noise.
On March 16, 2011 Dr. Arnold T. Berman, an OWCP medical adviser, opined that
appellant had a 42.51 percent binaural hearing loss based on a February 16, 2011 audiogram
performed for Dr. Steinig. He found that appellant had reached maximum medical improvement
on February 16, 2011 and noted that hearing aids were not authorized.
By decision dated June 30, 2011, OWCP granted a schedule award for 42.51 percent
binaural hearing loss, less the 7 percent previously paid under File No. xxxxxx587, resulting in
35.51 percent rounded up to a 36 percent binaural hearing loss. The period of the award was 72
weeks from February 16, 2011, the date of the most recent audiogram and date of maximum
medical improvement.
In a May 17, 2012 letter to OWCP, appellant requested continued compensation
payments for an additional 72-week period on the basis that he had extreme ringing in both ears.
He submitted audiometric testing dated December 8, 2010.

2

In an appeal request form dated September 29, 2012 and received by OWCP on
October 2, 2012, appellant requested reconsideration of his claim. He submitted a letter dated
September 28, 2012 requesting 200 weeks of compensation on the basis that he had a 95 percent
binaural hearing loss. In an October 22, 2013 letter, appellant reiterated his request for a total of
200 weeks of compensation for his hearing loss and tinnitus. He also submitted pages from the
Federal Personnel Manual indicating that 200 weeks was the total number payable for a loss of
binaural hearing.
By decision dated November 12, 2013, OWCP denied appellant’s request for
reconsideration on the basis that it was untimely filed and failed to present clear evidence of
error.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.4 OWCP, through its regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a).5 One such limitation provides that an application
for reconsideration must be submitted within one year of the date of OWCP’s decision for which
review is sought.6 The Board has found that the imposition of this one-year time limitation does
not constitute an abuse of the discretionary authority granted OWCP under 5 U.S.C. § 8128(a).7
Section 10.607(b) states that OWCP will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by OWCP in its most recent merit
decision. The reconsideration request must establish that OWCP’s decision was, on its face,
erroneous.8
To establish clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by OWCP.9 The evidence must be positive, precise and explicit and
must be manifest on its face that OWCP committed an error.10 Evidence that does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.11 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.12 This entails a limited review by OWCP of how the
4

See Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

5

See Annette Louise, 54 ECAB 783, 789-90 (2003).

6

20 C.F.R. § 10.607(a).

7

See Jesus D. Sanchez, supra note 4; F.R., Docket No. 09-575 (issued January 4, 2010).

8

20 C.F.R. § 10.607(b).

9

See Nancy Marcano, 50 ECAB 110, 114 (1998); Dean D. Beets, 43 ECAB 1153, 157-58 (1992).

10

See Fidel E. Perez, 48 ECAB 663, 665 (1997); M.L., Docket No. 09-956 (issued April 15, 2010).

11

See Richard L. Rhodes, 50 ECAB 259, 264 (1999).

12

See Leona N. Travis, 43 ECAB 227, 241 (1991).

3

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 OWCP.13
To establish clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflict in medical opinion or establish a clear procedural error, but
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 correctness of OWCP’s decision.14 The
Board makes an independent determination of whether a claimant has submitted clear evidence
of error on the part of OWCP such that OWCP abused its discretion in denying merit review in
the face of such evidence.15
ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
request for reconsideration. OWCP regulations16 and procedures17 establish a one-year time
limit for requesting reconsideration, which begins on the date of the original OWCP decision. A
right to reconsideration within one year also accompanies any subsequent merit decision on the
issues,18 including any merit decision by the Board and any merit decision following action by
the Board.19 The most recent merit decision was OWCP’s June 30, 2011 schedule award
decision. Appellant had one year from the date of this decision to make a timely request for
reconsideration. The appeal request form was dated September 29, 2012 and the record shows
that it was received by OWCP on October 2, 2012. There is no evidence, in the form of a
postmark, e.g., to establish that appellant requested reconsideration earlier than
September 29, 2012. His May 17, 2012 letter to OWCP sought continued compensation based
on tinnitus. Appellant did not specify that he sought reconsideration of the June 30, 2011
schedule award. He did not follow the instructions in the schedule award decision regarding
reconsideration.20 Since appellant did not file his request until September 29, 2012, it was
reviewed outside the one-year time period.
As his September 29, 2012 request for
reconsideration was submitted more than one year after the June 30, 2011 merit decision, it was
untimely filed. Consequently, appellant must demonstrate clear evidence of error by OWCP in
the denial of his claim.21
13

See Jimmy L. Day, 48 ECAB 652 (1997); Nelson T. Thompson, 43 ECAB 919, 922 (1992).

14

See Velvetta C. Coleman, 48 ECAB 367, 370 (1997).

15

See Pete F. Dorso, 52 ECAB 424 (2001); Thankamma Matthews, 44 ECAB 765, 770 (1993).

16

20 C.F.R. § 10.607(a); see Alberta Dukes, 56 ECAB 247 (2005).

17

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (October 2011); see
Veletta C. Coleman, supra note 14.
18

See Robert F. Stone, 57 ECAB 292 (2005).

19

See Federal (FECA) Procedure Manual supra note 17 at Chapter 2.1602.3.b (January 2004).

20

See Thomas Burns, 53 ECAB 351 (2002).

21

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

4

In his letters, appellant requested an additional 72 weeks of compensation or a total of
200 weeks of compensation. He submitted pages from the Federal Personnel Manual indicating
that 200 weeks was the total number payable for a loss of binaural hearing. To the extent that
appellant is arguing that the period of schedule award did not reflect the period of his actual
hearing loss there is no clear evidence of error.22 It is well established that a schedule award
begins at the date of maximum medical improvement.23 The medical evidence determines the
date of maximum medical improvement, the extent of impairment,24 and the number of weeks of
compensation under 5 U.S.C. § 8107(c). Complete or 100 percent binaural hearing loss is the
equivalent of 200 weeks of compensation. OWCP paid appellant for 72 weeks (36 percent of
200) from February 16, 2011, the date of the most recent audiogram and date of maximum
medical improvement. The Board finds that this was proper as neither OWCP nor the Board has
the authority to enlarge the terms of FECA or to make an award of benefits under any terms
other than those specified in the statute.25
Appellant further argued that he had a 95 percent binaural hearing loss. In support of his
claim, he submitted audiometric testing dated December 8, 2010. This evidence is not new,
relevant or pertinent as it was interpreted by Dr. Bodner in his December 8, 2010 report, which
was previously considered by OWCP in its June 30, 2011 schedule award decision. The medical
evidence is not sufficient to raise a substantial question as to the correctness of OWCP’s
decision. If appellant believes his employment-related hearing loss has worsened, he may at any
time seek an increased schedule award based on new relevant and pertinent medical evidence.
To establish clear evidence of error, it is not sufficient merely to show that the evidence
could be construed so as to produce a contrary conclusion. The term clear evidence of error is
intended to represent a difficult standard.26 The evidence does not manifest on its face that
OWCP committed an error in granting an award of 36 percent on June 30, 2011. Appellant has
not otherwise submitted evidence of sufficient probative value to raise a substantial question as
to the correctness of OWCP’s decision. Accordingly, the Board finds that the evidence he
submitted is insufficient to establish clear evidence of error.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration on
the basis that it was not timely filed and did not establish clear evidence of error.

22

See J.T., Docket No. 13-1236 (issued November 6, 2013).

23

See Adela Hernandez-Piris, 35 ECAB 839 (1984); James T. Rogers, 33 ECAB 347 (1981).

24

Under FECA the degree of permanent impairment is determined by application of the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment.
25

See E.S., Docket No. 10-2096 (issued June 7, 2011); see also Helen A. Pryor, 32 ECAB 1313 (1981).

26

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5 (October 2011); see
Dean D. Beets, supra note 9.

5

ORDER
IT IS HEREBY ORDERED THAT the November 12, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 24, 2014
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS, VA
MEDICAL CENTER, Washington, DC,
Employer
__________________________________________

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

Docket No. 21-1060
Issued: March 11, 2022

Case Submitted on the Record

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

JURISDICTION
On July 5, 2021 appellant filed a timely appeal from a February 2, 2021 merit decision of
the Office of Workers’ Compensation Programs (OWCP). 1 Pursuant to the Federal Employees’

1

Appellant timely requested 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 support of appellant’s
oral argument request, she asserted that oral argument should be granted because the evidence of record was sufficient
to establish that she was totally disabled from work due to her accepted employment-related condition. The Board, in
exercising its discretion, denies appellant’s request for oral argument because the arguments on appeal can adequately
be addressed in a decision based on a review of the case record. Oral argument in this appeal would further delay
issuance of a Board decision and not serve a useful purpose. As such, the oral argument request is denied and this
decision is based on the case record as submitted to the Board.

Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case. 3
ISSUE
The issue is whether appellant has met her burden of proof to establish disability from work
for the period November 13, 2020 through January 30, 2021 causally related to her accepted
March 23, 2020 employment injury.
FACTUAL HISTORY
On April 27, 2020 appellant, then a 60-year-old nurse, filed a traumatic injury claim (Form
CA-1) alleging that on March 23, 2020 she contracted COVID-19 while in the performance of
duty. She stopped work on the date of injury and has not returned. On July 20, 2020 OWCP
accepted the claim for COVID-19.
OWCP received hospital records dated April 2 through July 13, 2020, which indicated that
appellant was admitted to the intensive care unit (ICU) on April 2, 2020 and treated for acute
hypoxic respiratory failure and acute renal failure due to COVID-19. The hospital records also
addressed her subsequent physical and occupational therapy.
In a June 22, 2020 letter, Dr. Anna-Carson Rimer Uhelski, an internist, advised appellant
that she should not return to work while she was recovering in the hospital. She also advised that
appellant could be in the hospital through 2020 with a possible return -to-work date of
January 1, 2021.
Dr. Robert S. Mayer, Board-certified in physical medicine and rehabilitation, indicated in
a letter dated July 15, 2020 that appellant could benefit from a home health aide six to eight hours
per day over the next one to two months to assist her with the performance of activities of daily
living (ADLs).
In an undated response to a questionnaire, appellant noted her symptoms and/or conditions
of COVID-19, organ failure of the kidney, lungs, and heart, pneumonia in both lungs, high fever,
coughing, and bacterial infections. She also noted that she was on a ventilator and an
extracorporeal membrane oxygenation bypass portable machine for her lungs and heart and on
dialysis for her kidneys. Additionally, appellant took blood pressure medication, underwent a
tracheostomy, was incubated, and received blood transfusions. She indicated that her conditions
were caused by her employment. Appellant further indicated that she was disabled from work for
the period March 25 through December 31, 2020 due to her conditions.

2

5 U.S.C. § 8101 et seq.

3

The Board notes that, following the issuance of the February 2, 2021 decision, OWCP received additional
evidence. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence
in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be
considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from
reviewing this additional evidence for the first time on appeal. Id.

2

On December 15 and 16, 2020 appellant filed claims for compensation (Form CA-7) for
disability from work for the period November 13 through December 11, 2020.
OWCP, in a December 18, 2020 development letter, informed appellant of the deficiencies
of her wage-loss compensation claim. It advised her of the type of medical evidence needed and
afforded her 30 days to respond.
Appellant filed additional CA-7 forms for disability from work through January 30, 2021.
OWCP received additional medical evidence. In a progress note dated August 4, 2020,
Dr. Daniel R. A. Sova, a physiatrist, noted appellant’s history of injury and medical treatment. He
discussed examination findings. Dr. Sova provided assessments that included no signs of anxiety,
depression, or post-traumatic stress disorder (PTSD). He also noted a history of hypoxic
respiratory failure, noting that a tracheostmy tube had been removed, acute renal failure, noting
that appellant remained off dialysis, right and left upper extremity catheter-associated thrombosis,
atrial fibrillation with rapid ventricular response (RVR), klebsiella pneumonia for which she had
finished a course of treatment, Coagulase-negative staphylococci (CoNS) bacteremia, and that
there was a concern for seizure for which she took medication. Dr. Sova noted that she denied any
current COVID-19-related symptoms. He also noted that appellant received home physical and
occupation therapy treatment and treatment from a speech language pathologist. Appellant
reported that she was making progress with her physical function and endurance.
Dr. Ashral Fawzy, a pulmonologist, noted, in an August 12, 2020 progress note, that
appellant was treated for COVID-19-related symptoms of shortness of breath and voice
hoarseness, and screened for depression. He reported physical examination findings and
diagnostic and laboratory test results. Dr. Fawzy provided assessments of dyspnea, hoarse voice,
deep vein thromobosis (DVT), no significant depression or anxiety , 50 percent physical function,
and adequate cognitive function and no symptoms of memory loss. In a November 11, 2020
progress note, he concluded that, cognitively, appellant performed poorly with respect to her
memory, processing speed, and verbal ﬂuency. Dr. Fawzy noted that appellant denied problems
with mood, anxiety, trauma, or functional decline. He indicated that her scores suggested that she
may beneﬁt from a full neuropsychological examination given her pattern of cognitive deﬁcits.
In a September 4, 2020 report, Dr. Robert A. Wise, Board-certified in internal medicine
and pulmonology, noted that he performed a pulmonary function test, which demonstrated
moderate restrictive ventilatory defect, severe gas transfer defect, and variable extrathoracic
obstruction.
In a report of even date, Dr. Nathaniel Shalom and Dr. Stefan Zimmerman, both Boardcertified in diagnostic radiology, performed a computerized tomography (CT) scan of appellant’s
chest. Dr. Shalom and Dr. Zimmerman provided an impression of peripheral reticulations, ground
glass opacities, and consolidative opacities, which were compatible with the sequela of COVID19 infection; ground glass that could represent mild residual inﬂammation, areas of reticulation
and a cystic change compatible with mild ﬁbrosis, either secondary to COVID -19 infection or
preexisting; and additional multiple subcentimeter lymph nodes compatible with reactive change.
These physicians also provided: impressions of coronary artery calciﬁcations; dilatation of the
main pulmonary artery, which may be seen in the setting of pulmonary hypertension; incidental

3

thyroid nodule measuring greater than or equal to 1.5 centimeters in a patient with age greater than
or equal to 35, recommendation for an evaluation with a thyroid ultrasound on a nonemergent
basis; postsurgical changes of sleeve gastrectomy; and findings suggestive of a small intralobar
pulmonary sequestration in the inferomedial right lower lobe.
In a September 21, 2020 diagnostic report, Dr. Eva K. Ritzal, a Board-certified neurologist,
conducted electroencephalogram (EEG) testing, finding that it was normal with no epileptiform
discharges or lateralizing signs. She noted that this did not rule ou t the presence of a seizure
disorder.
An October 7, 2020 progress note signed by Dr. George T. Kannarkat, a Board-certified
internist, and Dr. Brett M. Morrison, a Board-certified neurologist, indicated that appellant was
evaluated for seizures. Appellant’s history of injury and medical treatment, physical examination
findings and diagnostic test results were provided. Dr. Kannarkat and Dr. Morrison noted that
appellant was recently very critically ill and that she had made a remarkable recovery. She had a
seizure while critically ill and brain imaging was notable for subcortical T2 flair hyper intensities
(non-speciﬁc, but may be chronic ischemic with superimposed changes in setting of critical illness)
and diffuse micro hemorrhages (likely from extracorporeal membrane oxygenation). An EEG,
which was performed while appellant was an inpatient, was diffusely slow, but there was no clear
focality. Dr. Kannarkat and Dr. Morrison indicated that they would use an EEG to risk stratify
given that she had some underlying structural etiology that could predispose her to seizure
although seizure was only in the setting of her critical illness. As appellant was on anticoagulation
for atrial fibrillation, a seizure in this setting could theoretically put her at risk for intracerebral
hemorrhage so this will be weighed in a risk benefit analysis of continuing automated external
defibrillators. Additionally, she had signs of proximal weakness in the right upper extremity and
bilateral lower extremities, and bilateral foot drop, left greater than right. Appellant also had
sensory loss and weakness in the left distal tibial distribution. There was no Tinel’s sign over the
tarsal tunnel. Dr. Kannarkat and Dr. Morrison related that if this continued to improve there was
no need for evaluation as this was the likely sequela of her prolonged critical illness, compression
from positioning, and multiple venous thrombotic events.
In an October 8, 2020 progress note, Dr. Lee M. Akst, a Board-certified otolaryngologist,
reported appellant’s history of injury and medical treatment. He discussed examination findings
and provided an assessment of posterior glottic diastasis after prolonged intubation and
tracheostomy secondary to COVID-19. In a report of even date, Dr. Grace Snow, an
otolaryngologist, performed a transnasal videostrobolaryngoscopy to treat appellant’s dysphonia.
In a progress note dated November 10, 2020, Dr. Sima Rozati, Board-certified in internal
medicine and dermatology, provided findings on physical examination of appellant and diagnosed
acne vulgaris, primary, hair loss, seborrheic dermatitis of the scalp, and post-inﬂammatory
hyperpigmentation.
In a November 23, 2020 progress note, Dr. Nelson Maniscalco, a podiatrist, indicated that
appellant presented with complaints of persistent left foot numbness. He reported findings on
physical, neurological, and dermatologic examination. Dr. Maniscalco diagnosed left lower limb
mononeuropathy and neuropathic left foot pain, gait abnormality, and history of COVID-19.

4

Dr. Sova, in an additional progress note dated December 1, 2020, reiterated his prior
assessments of no signs of anxiety, depression, or PTSD, and he noted that appellant had been
scheduled for an evaluation of her cognitive status. He noted that appellant had a history of
hypoxic respiratory failure, right and left upper extremity catheter-associated thrombosis, atrial
fibrillation with RVR, concern for seizures, and left foot numb ness and intermittent pain in the
first and fifth toes.
In a December 10, 2020 progress note, Dr. Zachary D. Berger, a Board-certified internist,
diagnosed stage 3 chronic kidney disease, dyspnea on exertion, voice hoarseness, unspecified type
of atrial fibrillation, history of DVT in adulthood, chronic anticoagulation, and left foot
neuropathic pain.
A December 23, 2020 progress note from Dr. Vasanth Sathiyakumar, a cardiologist,
reported appellant’s history of injury and medical treatment. He discussed examination and
reviewed laboratory test results. Dr. Sathiyakumar provided an assessment of essential
hypertension, hyperlipdima, and obstructive sleep apnea.
Progress notes dated November 3 and 18, and December 15 and 29, 2020 from Kristine M.
Pietsch, a certified speech language pathologist, provided an assessment that appellant presented
with severe dysphonia secondary to posterior glottic diastasis that negatively impacted
communication. Dr. Pietsch advised that appellant’s prognosis was fair.
OWCP also received clinic treatment, and progress notes dated September 30, 2020
through January 8, 2021 signed by Caroline C. Griffin, a registered occupational therapist,
Casey A. Houlihan, Allison Nogi, and Julia L. Falkenklous, physical therapists, and Blakeney T.
Patterson, an occupational therapist.
By decision dated February 2, 2021, OWCP denied appellant’s claim for disability. It
found that the medical evidence of record was insufficient to establish disability from work during
the claimed period due to the accepted employment injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.5 For each period of
disability claimed, the employee has the burden of proof to establish that he or she was disabled

4

Supra note 2.

5

See D.S., Docket No. 20-0638 (issued November 17, 2020); F.H., Docket No. 18-0160 (issued August 23, 2019);
C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40
ECAB 1143 (1989). See also FECA Bulletin No. 20-05 (issued March 31, 2020) entitled Federal Employees
Contracting COVID-19 in Performance of Duty, which provides in pertinent part: “DISABILITY: FECA pays
compensation for partial or total disability of an employee resulting from injury in the performance of duty. Just as
with other conditions/claims, disability is claimed by the filing of a CA-7, Claim for Compensation, with the
employing agency and requires an incapacity because of an employment-related injury to earn wages.”

5

from work as a result of the accepted employment injury.6 Whether a particular injury causes an
employee to become disabled from work, and the duration of that disability, are medical issues
that must be proven by a preponderance of probative and reliable medical opinion evidence.7
Under FECA, the term disability means an incapacity because of an employment injury, to
earn the wages the employee was receiving at the time of the injury.8 When, however, the medical
evidence establishes that the residuals or sequelae of an employment injury are such that, from a
medical standpoint, prevent the employee from continuing in his or her employment, he or she is
entitled to compensation for any loss of wages.9
To establish causal relationship between the disability claimed and the employment injury,
an employee must submit rationalized medical evidence, based on a complete factual and medical
background, supporting such causal relationship.10 The opinion of the physician 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.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish disability from
work for the period November 13, 2020 through January 30, 2021 causally related to her accepted
March 23, 2020 employment injury.
In support of her claim for compensation, appellant submitted a June 22, 2020 opinion from
Dr. Uhelski. Dr. Uhelski found that appellant could not work while she was recovering in the
hospital and that she could be in the hospital through 2020. She advised that appellant could
possibly return to work on January 1, 2021. Dr. Uhelski’s opinion regarding appellant’s disability
status was speculative in nature. The Board has held that medical opinions that are equivocal or
speculative in nature are of diminished probative value. 12 Thus, the Board finds that Dr. Uhelski’s
June 22, 2020 opinion is insufficient to establish appellant’s disability claim.
The progress reports dated August 4 through December 23, 2020 from Drs. Sova, Fawzy,
Kannarkat, Morrison, Rozati, Maniscalco, Berger, Akst, Snow, Wise, and Sathiyakumar addressed
appellant’s diagnosed conditions, including COVID-19, and her medical treatment. However,
6

See L.F., Docket No. 19-0324 (issued January 2, 2020); T.L., Docket No. 18-0934 (issued May 8, 2019);
Fereidoon Kharabi, 52 ECAB 291, 293 (2001).
7

See 20 C.F.R. § 10.5(f); N.M., Docket No. 18-0939 (issued December 6, 2018).

8

Id. at § 10.5(f); see, e.g., G.T., 18-1369 (issued March 13, 2019); Cheryl L. Decavitch, 50 ECAB 397 (1999).

9

G.T., id.; Merle J. Marceau, 53 ECAB 197 (2001).

10

See S.J., Docket No. 17-0828 (issued December 20, 2017); Kathryn E. DeMarsh, 56 ECAB 677 (2005).

11

C.B., Docket No. 18-0633 (issued November 16, 2018); Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler,
45 ECAB 365 (1994).
12

See M.L., Docket No. 20-1682 (issued June 24, 2021).

6

these reports did not offer an opinion addressing whether appellant was totally disabled from work
during the claimed period due to the accepted injury. As such, the Board finds that this medical
evidence is of no probative value and insufficient to establish appellant’s disability claim. 13
Appellant also submitted a September 4, 2020 chest CT scan report and a September 21,
2020 EEG report. The Board has held, however, that diagnostic studies, standing alone, lack
probative value on the issue of causal relationship as they do not address whether the accepted
employment injury resulted in appellant’s period of disability on specific dates. 14
Progress notes from the speech language pathologists and physical and occupational
therapists were also received. Speech pathologists, physical therapists, and occupational therapists
are not considered physicians as defined under FECA. 15 As such, this evidence is also of no
probative value and insufficient to establish the claim.
As noted, for each period of disability claimed, the employee has the burden of proof to
establish that he or she was disabled from work during the claimed period due to the accepted
employment injury. 16 As appellant has not submitted rationalized medical opinion evidence
sufficient to establish employment-related disability during the period November 13, 2020 through
January 30, 2021due to her accepted employment injury, the Board finds that she has not met her
burden of proof to establish her 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.

13

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

D.M., Docket No. 20-0548 (issued November 25, 2020); O.C., Docket No. 20-0514 (issued October 8, 2020);
R.J., Docket No. 19-0179 (issued May 26, 2020).
Section 8101(2) of FECA provides that the term physician includes “surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law.” 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See Federal (FECA) Procedure Manual, Part 2 -- Claims,
Causal Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay
individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion
under FECA); see also S.S., Docket No. 18-0081 (issued August 22, 2018); P.Y., Docket No. 16-1324 (issued July 24,
2017) (a speech pathologist is not considered a physician under FECA); F.H., supra note 5; R.L., Docket No. 19-0440
(issued July 8, 2019) (a physical therapist is not considered a physician under FECA); S.J., Docket No. 20-1061 (issued
December 22, 2020); J.R., Docket No. 19-0812 (issued September 29, 2020) (an occupational therapist is not
considered a physician under FECA).
15

16

Supra note 6.

7

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish disability from
work for the period November 13, 2020 through January 30, 2021, causally related to her accepted
March 23, 2020 employment injury.17
ORDER
IT IS HEREBY ORDERED THAT the February 2, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 11, 2022
Washington, DC

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

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

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

17

The Board notes that OWCP has not adjudicated appellant’s claims for compensation for subsequent periods of
disability causally related to her accepted employment injury.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Juan, PR, Employer
__________________________________________

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

Docket No. 08-2334
Issued: July 16, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On August 25, 2008 appellant filed a timely appeal from the July 3, 2008 decision of the
Office of Workers’ Compensation Programs terminating her compensation and schedule award
benefits for abandoning suitable employment. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation and
schedule award benefits effective April 7, 2008 on the grounds that she abandoned suitable work
pursuant to 5 U.S.C. § 8106(c)(2).1

1

By decision dated August 28, 2007, the Office denied appellant’s claim for a recurrence of disability as of
January 17, 2007. Appellant has not filed an appeal of the August 28, 2007 decision; therefore, the Board will not
address the merits of the decision.

FACTUAL HISTORY
Appellant, then a 33-year-old acting supervisor and distribution window clerk, filed a
traumatic injury claim alleging that, on April 15, 1999, she was a victim of death threats
associated with a March 25, 1999 robbery, which occurred at the employing establishment. The
Office accepted her claim for post-traumatic stress disorder (PTSD) and appellant was placed on
the periodic rolls.
In a report dated June 4, 1999, appellant’s attending physician, Dr. Vivian Charneco
Llabres, a treating physician, released appellant to work full time, but recommended that she be
restricted from exposure to window clerk duties and that she be placed in a low-noise, low-stress
work area to avoid emotional deterioration.
On June 22, 1999 appellant accepted a job as a modified distribution clerk. Her duties
included data input, filing, preparing reports, operating a computer and answering telephones.
Physical requirements precluded exposure to noise, odors or fumes. On July 6, 2001 appellant
accepted a position as distribution window clerk in the business service network. The position
description specified that appellant would not be exposed to the window service area or to noise
and would be placed in a low-stimulus work area, as required by her treating physician.
On January 14, 2008 the employing establishment made a limited-duty job offer to
appellant. The position of modified sales/services/distribution associate was identified as a
temporary rehabilitation position, which was effective January 5, 2008. The location of the
position was the Main Office Window Services (MOWS). Job duties included processing
certified, registered and express mail and performing other clerical duties. The offer provided
that appellant would not be required to perform window services. The offer contained the
following notation: “Please note, your [t]emporary [r]ehab[ilitation] [j]ob [o]ffer [a]ssignment
will be reassessed again during the National Reassessment Process Phase Two in early 2008.”
On February 18, 2008 appellant declined the limited-duty offer. She contended that the
position offered was not medically suitable.
By letter dated March 5, 2008, the Office advised appellant that the modified
sales/services/distribution associate position offered by the employing establishment was suitable
and in accordance with her medical limitations. It stated that the only difference between the
January 14, 2008 job offer and the July 6, 2001 offer, was the location of the position. The
Office confirmed that the position remained available to appellant and that she had 30 days to
respond.
In response, appellant submitted a letter dated April 1, 2008 contending that the offered
position was not suitable. She stated that she would experience stress at the new location, due to
the fact that the 1999 robbery occurred at that location and due to the high stimulus level.
Appellant submitted a February 13, 2008 report from Dr. Ernesto Marrera Lopez, a
treating physician, who stated that she continued to experience symptoms of PTSD associated
with the 1999 accepted employment incident. Dr. Lopez recommended that she avoid stimuli
associated with the trauma and that she work in an environment with no noise or crowds that

2

might produce flashbacks. Appellant also submitted a copy of a November 19, 2007 Equal
Employment Opportunity settlement agreement and a February 1, 2008 work excuse from
Dr. Lopez.
By decision dated April 25, 2008, the Office finalized its termination of compensation
and schedule award benefits effective April 7, 2008 on the grounds that appellant had abandoned
suitable work. It stated that she did not respond to its March 5, 2008 letter within the required
30-day period.
On May 6, 2008 appellant requested reconsideration, contending that she did not abandon
suitable work. She also stated that she had responded to the Office’s March 5, 2008 letter and
submitted additional evidence within the required 30-day period, as evidenced by an enclosed
express mail receipt dated April 1, 2008. In support of appellant’s request, she submitted a
June 10, 2008 psychiatric report from Dr. Fernando J. Cabrera, Jr., a Board-certified psychiatrist,
who diagnosed adjustment disorder and PTSD. Dr. Cabrera recommended that appellant be
restricted from working at MOWS, where the accepted incident occurred and from working as a
window clerk or in noisy, crowded areas.
By decision dated July 3, 2008, the Office denied modification of its April 25, 2008
decision terminating wage-loss and schedule award benefits.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation, including cases in which the Office terminates compensation
under section 8106(c) for abandonment of suitable work.2
Under section 8106(c)(2) of the Federal Employees’ Compensation Act,3 the Office may
terminate compensation of an employee who refuses or neglects to work after suitable work is
offered to, procured by or secured for the employee.4 However, to justify such termination, the
Office must show that the work offered was suitable5 and must inform the employee of the
consequences of a refusal to accept employment deemed suitable.6 The Board has recognized
that section 8106(c) is a penalty provision that must be narrowly construed.7

2

5 U.S.C. § 8106(c); Henry W. Sheperd, III, 48 ECAB 382, 385 (1997); Shirley B. Livingston, 42 ECAB 855,
861 (1991).
3

5 U.S.C. § 8106(c)(2).

4

Martha A. McConnell, 50 ECAB 129, 131 (1998).

5

Bryant F. Blackmon, 56 ECAB 752 (2005); Dale K. Nunner, 53 ECAB 363 (2002); Marie Fryer, 50 ECAB 190,
191 (1998).
6

Ronald M. Jones, 48 ECAB 600, 602 (1997).

7

Anna M. Delaney, 53 ECAB 384 (2002).

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Once the Office establishes that the work offered was suitable, the burden of proof shifts
to the employee who refuses to work to show that such refusal was reasonable or justified.8 An
employee who returns to work but then abandons such employment must prove through reliable
medical evidence that she is unable to continue working because of a work-related disability.9
The issue of whether an employee has the physical ability to perform the duties of the position
offered is a medical question that must be resolved by medical evidence.10
In initially assessing the suitability of the offered position, the Office utilizes the Office
procedure manual,11 which provides that a temporary position will be considered unsuitable
unless the claimant was a temporary employee when injured and the temporary position
reasonably represents the claimant’s wage-earning capacity.12 It must consider whether the type
of appointment is at least equivalent to the date-of-injury position. If the employee’s date-ofinjury position was permanent, the Office may not find a temporary job to be suitable.13
ANALYSIS
The Board finds that the Office improperly terminated appellant’s compensation benefits
for abandoning suitable work. The employing establishment offered her a temporary position as
a modified sales/services/distribution associate, which the Office found suitable. However,
because there is no evidence of record that establishes that appellant was employed in a
temporary position at the time of her original injury, the position offered was unsuitable.
The Office’s procedure manual provides for review of the offered position to determine if
the position is temporary. A temporary position will be considered unsuitable unless the
claimant was a temporary employee when injured and the temporary position reasonably
represents the claimant’s wage-earning capacity. The procedure manual also states that a
temporary job would be unsuitable if it would terminate in less than 90 days. The Office must
consider whether the type of appointment is at least equivalent to the date-of-injury position. If
the employee’s date-of-injury position was permanent, the Office may not find a temporary job
to be suitable.
In this case, there is no indication in the record that appellant’s date-of-injury position
was temporary, nor does the record reflect that the employing establishment offered her a
permanent position. On the contrary, the employing establishment specifically stated, in its
January 14, 2008 letter to appellant, that the “[t]emporary [r]ehab[ilitation] [j]ob [o]ffer
[a]ssignment [would] be reassessed again during the National Reassessment Process Phase Two
8

Deborah Hancock, 49 ECAB 606, 608 (1998).

9

Bryant F. Blackmon, supra note 5; Robert M. O Donnell, 48 ECAB (1997).

10

Marilyn D. Polk, 44 ECAB 673, 680 (1993).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.4(b)(3) (April 2008).
12

Id.

13

FECA Bulletin No. 99-28 (issued August 30, 1999).

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in early 2008.” The Office did not address the temporary nature of the job in determining
whether the offered position was suitable.
It erred in terminating appellant’s
compensation benefits on the basis of her refusal of the temporary position, as such an offer did
not conform with the Office’s procedural requirements.14
Therefore, the Office failed to meet its burden of proof to terminate appellant’s
compensation benefits.
CONCLUSION
The Board finds that the Office failed to meet its burden of proof to terminate appellant’s
compensation and schedule award benefits effective April 7, 2008 for abandoning suitable work.

14

The Board has held that due process and elementary fairness require that the Office observe certain procedures
before terminating a claimant’s monetary benefits under section 8106(c)(2) of the Act. Linda Hilton, 52 ECAB
476 (2001); see also Maggie L. Moore, 42 ECAB 484 (1991), reaff d on recon., 43 ECAB 818 (1992). Section
10.516 of the Office’s regulations state that the Office will advise the employee that the work offered is suitable and
provide 30 days for the employee to accept the job or present any reasons to counter the Office’s finding of
suitability. 20 C.F.R. § 10.516. Thus, before terminating compensation, the Office must review the employee’s
proffered reasons for refusing or neglecting to work. If the employee presents such reasons and the Office finds
them unreasonable, the Office will offer the employee an additional 15 days to accept the job without penalty.
20 C.F.R. § 10.516; see Sandra K. Cummings, 54 ECAB 493 (2003). The Office must also consider all evidence
submitted by appellant prior to issuance of its final decision. C.W. Hopkins, Docket No. 94-1025 (issued August 23,
1996); William A. Couch, 41 ECAB 548 (1990).
The Board notes that the July 3, 2008 decision did not consider documents submitted by appellant which were
received on April 10, 2008 and issued its final termination decision without providing appellant an additional 15-day
period to accept the position without penalty. There is no envelope in the file establishing the date the documents
were mailed. Therefore, although they were received more than 30 days after the Office’s March 5, 2008 letter, the
date of the letters is controlling. However, in light of the Board’s ruling, it is not necessary to address these
procedural issues.

5

ORDER
IT IS HEREBY ORDERED THAT the July 3, 2008 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: July 16, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF THE NAVY, CHIEF OF
NAVAL & EDUCATION TRAINING,
San Diego, CA, Employer
__________________________________________

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

Docket No. 12-11
Issued: March 27, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On September 27, 2011 appellant filed a timely appeal from a September 2, 2011
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) finding that he
abandoned his request for a hearing. 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 nonmerit
decision by OWCP. The last merit decision of record was OWCP’s March 17, 2011 decision.
Because more than 180 days has elapsed between the last merit decision and the filing of this
appeal on September 27, 2011, the Board lacks jurisdiction to review the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

For decisions issued prior to November 19, 2008, a claimant had up to one year to file an appeal. An appeal of
OWCP decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 501.3(e).

ISSUE
Whether appellant abandoned his request for an oral hearing before an OWCP hearing
representative.
FACTUAL HISTORY
On September 2, 2010 appellant, then a 50-year-old training specialist, filed an
occupational disease claim (Form CA-2) alleging that he sustained stress caused by a hostile
work environment and continued reprisal.
By letter dated September 30, 2010, OWCP informed appellant that the evidence of
record was insufficient to support his claim. Appellant was advised of the medical and factual
evidence needed and asked that he respond to the provided questions within 30 days.
In support of his claim, appellant submitted medical records dated April 20 to
November 9, 2010, narrative statements describing incidents of harassment and discrimination in
the workplace and documents pertaining to his discrimination complaint with the employing
establishment.
By decision dated March 17, 2011, OWCP denied appellant’s claim finding that the
evidence did not establish that the incidents occurred as alleged.
On April 13, 2011 appellant requested an oral hearing by telephone before an OWCP
hearing representative. He completed the request form noting his address of record on Biddle
Court.
By letter dated July 6, 2011, OWCP notified appellant that a telephonic hearing before an
OWCP hearing representative was scheduled for August 11, 2011 at 3:30 p.m. eastern time.
Appellant was provided a toll-free number to call and a pass code to connect to the hearing
representative and court reporter. The notice was sent to his address of record on Biddle Court.
By decision dated September 2, 2011, OWCP’s hearing representative found that
appellant had abandoned his request for an oral hearing. He noted that appellant received written
notice 30 days in advance of the hearing but failed to participate. The hearing representative also
found no evidence that appellant contacted OWCP either prior to or subsequent to the scheduled
hearing to explain his failure to appear.
LEGAL PRECEDENT
Under FECA and its implementing regulations, a claimant who has received a final
adverse decision by OWCP is entitled to receive a hearing upon writing to the address specified
in the decision within 30 days of the date of the decision for which a hearing is sought.3 Unless
otherwise directed in writing by the claim, OWCP’s hearing representative will mail a notice of
the time and place of the hearing to the claimant and any representative at least 30 days before
3

5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.616(a).

2

the scheduled date.4 OWCP has the burden of proving that it mailed notice of a scheduled
hearing to a claimant.5
The authority governing the abandonment of hearings rests with OWCP’s procedure
manual, which provides that a hearing can be abandoned only under very limited circumstances.
All three of the following conditions must be present: the claimant has not requested a
postponement; the claimant has failed to appear at a scheduled hearing; and the claimant has
failed to provide any notification for such failure within 10 days of the scheduled date of the
hearing. Under these circumstances, the Branch of Hearings and Review will issue a formal
decision finding that the claimant has abandoned his request for a hearing and return the case to
the district OWCP.6
ANALYSIS
By decision dated March 17, 2011, OWCP denied appellant’s traumatic injury claim.
Appellant timely requested an oral hearing before an OWCP hearing representative. By letter
dated July 6, 2011, OWCP notified him that a telephonic oral hearing was scheduled for
August 11, 2011 at 3:30 p.m. eastern time. Appellant was provided a toll-free number to call and
a pass code to connect to the hearing representative and court reporter. The notice was sent to
his address of record.7 The record shows that appellant did not appear for the scheduled hearing.
Further, appellant did not request a postponement of the hearing or explain his failure to appear
at the hearing within 10 days of the scheduled hearing date of August 11, 2011. As all three
conditions for abandonment are met, the Board finds that he abandoned his request for an oral
hearing.8
On appeal, appellant contends that he did not receive notice of the scheduled hearing.
The record reflects that a copy of the July 6, 2011 hearing notice was mailed to appellant’s last
known address of record and was not returned as undeliverable. The Board has found that, in the
absence of evidence to the contrary, a letter properly addressed and mailed in the due course of
business, such as in the course of OWCP’s daily activities, is presumed to have arrived at the
mailing address in due course. This is known as the mailbox rule.9 As OWCP properly mailed a
hearing notice to appellant’s address of record, it is presumed to have arrived at his mailing
address.

4

Id. at § 10.617(b).

5

See Michelle R. Littlejohn, 42 ECAB 463 (1991).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(e) (January 1999). See also G.J., 58 ECAB 651 (2007).
7

In the absence of evidence to the contrary, it is presumed that a notice mailed to an individual in the ordinary
course of business was received. See Joseph R. Giallanza, 55 ECAB 186 (2003).
8

See id.; see also L.R., Docket No. 11-1405 (issued November 16, 2011).

9

Jeffrey M. Sagrecy, 55 ECAB 724 (2004); James A. Gray, 54 ECAB 277 (2002).

3

CONCLUSION
The Board finds that appellant abandoned his request for an oral hearing before an
OWCP hearing representative on August 11, 2011.
ORDER
IT IS HEREBY ORDERED THAT the September 2, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 27, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

4