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

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

Docket No. 15-0677
Issued: June 24, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 9, 2015 appellant, through counsel, filed a timely appeal from a January 2,
2015 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 established disability for the period September 1 to
December 23, 2013 causally related to her November 5, 2012 employment injury.
FACTUAL HISTORY
On March 2, 2013 appellant, then a 52-year-old part-time temporary sales and service
distribution associate, filed a traumatic injury claim alleging that on November 5, 2012 she

1

5 U.S.C. § 8101 et seq.

sustained a left lower leg sprain when she slipped and fell at work. She did not stop work.
OWCP accepted appellant’s claim for left knee and leg sprains.
The record reveals that appellant’s temporary assignment ended in December 2012. In
January 2013 appellant’s contract was reapproved and she returned to work. She worked regular
duty until September 1, 2013 and thereafter alleged that she was no longer able to perform the
duties of her employment.
Appellant filed Form CA-7 claims for wage-loss compensation for the period
September 1, 2013 through January 24, 2014.
OWCP paid compensation beginning
December 24, 2013 until February 22, 2014, based upon the reports of Dr. H. Richard Weiner, a
Board-certified internist. It noted that Dr. Weiner’s December 5 and 30, 2013 reports supported
a period of disability beginning December 24, 2013.
Appellant was initially was treated by Dr. Weiner. In reports dated September 9 to
October 31, 2013, Dr. Weiner noted that he had examined appellant for left calf and thigh strain.
Appellant had stated that her leg never fully recovered from the November 2012 injury and that
her right leg was starting to feel sore because she was compensating for her left leg. Dr. Weiner
noted that she had not been working because no light duty was available. Upon examination, he
observed no deformity or erythema of the left knee. Dr. Weiner also found mild upper and lower
leg soreness with mild extension to the left buttocks. Homans’ test was negative. Dr. Weiner
reported full range of motion of the knee and ankle without pain. He diagnosed hip/thigh and
knee/leg sprain. Dr. Weiner provided several work status reports finding that appellant could
work beginning September 3, 2013 with restrictions of no lifting, pushing, or pulling over 20
pounds, no squatting or bending, and no climbing stairs or ladders.
In a November 13, 2013 report, Dr. Weiner stated that on November 5, 2012 appellant
experienced acute onset of left calf soreness when she slipped on gravel and fell in the parking
lot of the employing establishment. He related that appellant was first seen in the clinic on
January 30, 2013 with complaints of left calf soreness and swelling and returned to the clinic on
February 4, 2013 stating that her pain had completely abated. Appellant noted that she had been
working without difficulty. Dr. Weiner related that appellant returned to the clinic on
September 3, 2013 with complaints of left calf pain. Appellant reported that she had been well
until two weeks prior, when her work had become more strenuous, which she believed
aggravated the residual effects of her employment injury. She stated that she had not worked
since then because no light duty was available. Dr. Weiner concluded that appellant’s “initial
injury in early November 2012 may have predisposed her to the difficulties beginning in
September 2013.”
Dr. James D. Lincer, Board-certified in physical medicine and rehabilitation, related in
November 25 and 27, 2013 reports that appellant sustained a work-related injury in
November 2012 when she slipped and fell at work, but continued to work even though she
experienced pain and discomfort. He related that appellant stopped working on Labor Day and
had not returned. Upon examination, Dr. Lincer observed some mild tenderness along the left
posterior thigh along the medial hamstring. Range of motion was normal. Dr. Lincer diagnosed
left medial posterior thigh pain, although likely medial hamstring. In a work status note, he

2

authorized appellant to return to work with restrictions of no prolonged standing or walking
longer than 55 minutes every hour and to only work two-hour shifts.
In a November 27, 2013 handwritten statement, appellant noted that she immediately
reported the November 5, 2012 employment injury to her supervisor and did not know why a
traumatic injury claim was not submitted until March 7, 2013. She explained that she continued
to work all her duties because she hoped to become a regular employee. Appellant stated that
her contract was approved to return to work in January 2013. She reported that she thought the
break in service would be good for her, but about a month after returning to work she continued
to experience pain in her left leg. Appellant explained that she continued to work while she
waited for physical therapy to be approved. While working on Labor Day, she mentioned
several times to the postmaster that her leg was in pain. Appellant was sent home and told not to
return until she was 100 percent. The postmaster informed her that she could not pick and
choose what work she would do and that the employing establishment had no light-duty work.
Appellant explained that she had not returned to work since that day and that her condition had
not improved.
On December 4, 2013 Dr. Thomas Jeffrey Dietrich, Board-certified in emergency
medicine, examined appellant in the hospital and related that she had sustained a left knee injury
in November 2012 at work. He noted that appellant was taken off physical work duties for over
six months and that her pain had improved. Dr. Dietrich reported that appellant returned to
physical labor, but her left knee pain became progressively worse. Upon examination of
appellant’s left leg, he observed no tenderness to palpation over the bony structures, no effusion
or edema, and no instability. Dr. Dietrich stated that there was no evidence of a new injury. He
related that appellant requested a work excuse note for the day since she called out of work.
Dr. Dietrich noted that he would give appellant a work note for today, but advised her to see her
primary care physician for a prolonged work note.
In a December 5, 2013 work activity status note, Dr. Weiner noted appellant’s diagnosis
of knee strain. He recommended that appellant remain off work until physical therapy was
approved.
Appellant’s appointment as a part-time temporary sales and service distribution associate
expired as of December 24, 2013.
In a December 30, 2013 report, Dr. Weiner noted appellant’s diagnosis of knee/leg
sprain. He related that her condition was stable and that she had not worked because no light
duty was made available. Upon examination of her left leg, Dr. Weiner observed mild
tenderness and thigh soreness, but no deformity, erythema, or swelling. Range of motion was
full and gait was normal. Dr. Weiner recommended that appellant return to the clinic as needed.
In a December 30, 2013 work status report, he stated that she could return to work on
December 30, 2013. Dr. Weiner also noted that appellant would remain off work until she
followed up with her primary doctor regarding her restrictions.
On January 27, 2014 OWCP contacted appellant’s supervisor via telephone regarding
appellant’s pay rate. The supervisor also informed OWCP that work was available for appellant

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beginning September 1, 2013, but they were given medical documentation that she could not
work.
By letter dated January 31, 2014, OWCP advised appellant that the medical evidence
failed to demonstrate that she was disabled from work from September 1 to December 23, 2013
as a result of her November 5, 2012 employment injury. It requested that appellant submit
medical evidence to support total disability for the period September 1 to December 23, 2013.
OWCP also noted that compensation would be paid as of December 24, 2013.
In a January 31, 2014 report, Dr. John G. Sanidas, a Board-certified internist, stated that
appellant should be off work until she had further orthopedic evaluation secondary to her left
knee injury and discomfort.
Appellant contended in a February 5, 2014 letter that work was not available for her after
September 1, 2013. She related that her supervisor asked her to leave work and not to return
until she was 100 percent and could perform the duties of a postal support employee (PSE).
Appellant also alleged that Dr. Weiner’s reports verified that she had not been working because
no light duty was available.
Appellant submitted various reports by Dr. Weiner which were previously of record. She
circled the sections where he reported that appellant had not been working since no light duty
was available. Appellant also submitted an October 15, 2013 e-mail wherein she informed the
recipient of the e-mail that the postmaster had sent her home because she was complaining about
her leg and knee hurting her at work. She noted that the postmaster did not want her back to
work until she could do all that was required of her job. Appellant related that he did not have
light duty and could not offer another position based on her current restrictions.
On February 11, 2014 OWCP informed appellant that the last medical evidence on record
was Dr. Weiner’s report which kept her off work until she was seen by her primary physician. It
requested objective medical evidence from appellant to support that she was totally disabled for
the claimed period.
In a February 21, 2014 work capacity evaluation, Dr. Sanidas noted appellant’s diagnosis
of sprain of left knee and leg and found appellant unable to work. He had referred her to an
orthopedist.
In a February 26, 2014 report, Dr. Rory R. Wright, a Board-certified orthopedic surgeon,
described appellant’s November 5, 2012 employment injury and noted that she had continued to
work in a clerk-type position. Appellant related that she thought this type of light work would
help improve her knee, but she continued to experience pain in the hip, lower back, and down the
left knee. Dr. Wright reviewed appellant’s history, provided findings on examination, and
diagnosed patellofemoral chondromalacia of the left knee and residual pain. He reported that
“causation [was] almost impossible … to determine given that it [was] more than 14 months
since her initial injury.” Dr. Wright recommended that appellant not return to work.
In a decision dated March 24, 2013, OWCP denied appellant’s disability compensation
claim for the period September 1 to December 23, 2013 finding that there was insufficient
medical evidence to establish that she was unable to work due to the accepted left leg condition.
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By letter dated March 31, 2014, counsel requested a hearing, which was held on
October 17, 2014. He alleged that appellant’s postmaster sent her home because light-duty work
was not available for her. Counsel related that appellant was told not to return to work until she
was 100 percent. He disputed the employing establishment’s statement that light-duty work was
available and asserted that appellant’s testimony and the medical records demonstrated that it
was not true. Appellant stated that, prior to August 31, 2013, she worked regular duty on the
docks doing physical labor. That week, she received updated light-duty restrictions. During
appellant’s shift on August 31, 2013, appellant complained about her leg and knee hurting and
her postmaster told her that if she was in pain, or if she could not work, she should not report to
work. She related that she was told that there was no light duty available. Appellant stated that
when she reported back to work on September 1, 2013 her supervisor asked her to leave and not
return back to work until she was 100 percent.
By decision dated January 2, 2015, an OWCP hearing representative affirmed the
March 24, 2013 decision. He determined that the evidence of record was insufficient to establish
that appellant was disabled due to the accepted injury during the time period alleged, that the
employing establishment withdrew appellant’s light-duty work assignment beginning
September 1, 2013 or that appellant was unable to work due to a worsening of the accepted left
knee injury.2
LEGAL PRECEDENT
An employee seeking benefits under FECA bears the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence,3 including that he or she
sustained an injury in the performance of duty and that any specific condition or disability for
work for which he or she claims compensation is causally related to that employment injury.4
Whether a particular injury causes an employee to become disabled for work and the
duration of that disability are medical issues that must be proved by a preponderance of reliable,
probative, and substantial medical opinion evidence.5 Findings on examination and a physician’s
opinion, supported by medical rationale, are needed to show how the injury caused the employee
disability for her particular work.6 For each period of disability claimed, the employee must
establish that she was disabled for work as a result of the accepted employment injury. The
Board will not require OWCP to pay compensation for disability in the absence of medical
evidence directly addressing the specific dates of disability for which compensation is claimed.

2

While the hearing representative stated that the period of disability was from September 1 to December 13,
2013, this appears to be a typographical error, as she affirmed the March 24, 2013 decision, which denied benefits
through December 23, 2013. She did not discuss or make specific findings for the period December 13 to 23, 2013.
3

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968).

4

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

Amelia S. Jefferson, 57 ECAB 183 (2005); William A. Archer, 55 ECAB 674 (2004).

6

Dean E. Pierce, 40 ECAB 1249 (1989).

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To do so would essentially allow an employee to self-certify his or her disability and entitlement
to compensation.7
ANALYSIS
OWCP accepted appellant’s claim for left leg sprain as a result of the November 5, 2012
employment injury. Appellant stopped work on September 1, 2013 and requested disability
compensation. By decisions dated March 24, 2013 and January 2, 2015, OWCP denied her
disability compensation claim finding insufficient medical evidence to establish that she was
unable to work for the period September 1 to December 23, 2013 as a result of her November 5,
2012 employment injury.
Appellant was initially treated by Dr. Weiner. In reports dated September 9 to
December 30, 2013, Dr. Weiner noted that on November 5, 2012 appellant slipped and fell in the
parking lot of the employing establishment and sustained a left calf strain. He stated that
appellant had not been working because no light duty was available. Upon examination,
Dr. Weiner observed mild upper and lower leg soreness with mild extension to the left buttocks.
He reported full range of motion of the knee and ankle without pain. Dr. Weiner diagnosed
sprain of the hip/thigh and knee/leg sprain. He authorized appellant to work beginning
September 3, 2013 with restrictions of no lifting, pushing, or pulling over 20 pounds, no
squatting or bending, and no climbing stairs or ladders. In a November 13, 2013 report,
Dr. Weiner related that appellant had been well until two weeks prior when her work became
more strenuous. He concluded that appellant’s “initial injury in early November 2012 may have
predisposed her to the difficulties beginning in September 2013.”
Although Dr. Weiner provided examination findings and an opinion on causal
relationship, his conclusion that the November 5, 2012 injury “may have predisposed” appellant
to her left leg symptoms in 2013 is speculative in nature. The Board has held that medical
opinions that are speculative or equivocal in character are of diminished probative value.8 An
award of compensation may not be based on surmise, conjecture, speculation, or upon
appellant’s own belief that there is causal relationship between his claimed condition and his
employment.9 Dr. Weiner offered no medical rationale to explain why appellant became
disabled or why she required work restrictions in September 2013 due to the accepted
November 5, 2012 injury. Accordingly, his reports are insufficient to establish that appellant
was unable to work from September 1 to December 23, 2013 as a result of her November 5, 2012
employment injury. Likewise, Dr. Wright’s February 26, 2014 report is also vague and
equivocal and of diminished probative value as he stated that he could not determine the cause of
appellant’s condition.
Appellant also submitted various reports by Dr. Lincer dated November 25 and 27, 2013.
Dr. Lincer noted that appellant sustained a work-related injury in November 2012 and continued
7

Amelia S. Jefferson, supra note 5.

8

D.D., 57 ECAB 734, 738 (2006); Kathy A. Kelley, 55 ECAB 206 (2004).

9

Robert A. Boyle, 54 ECAB 381 (2003); Patricia J. Glenn, 53 ECAB 159 (2001).

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to experience pain and discomfort. He provided findings on examination and diagnosed left
medial posterior thigh pain. Dr. Lincer reported that appellant stopped working on Labor Day
and had not returned. He stated that appellant could return to work with restrictions of no
prolonged standing or walking longer than 55 minutes every hour and to only work two-hour
shifts. While Dr. Lincer noted that appellant stopped working on September 1, 2013, the Board
notes that he did not provide any opinion on the cause of appellant’s work stoppage. The Board
has found that medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.10
Similarly, Drs. Dietrich and Sanidas provided no opinion on the cause of appellant’s inability to
work. As none of these reports provide any medical rationale for how the November 5, 2012
injury caused appellant’s disability for this period, these reports are insufficient to establish
appellant’s disability compensation claim.
Although appellant alleged that she was disabled for the period September 1 to
December 23, 2013 as a result of her accepted employment injury, the medical evidence of
record does not establish that her claimed disability during the above timeframe was related to
her accepted employment injury. The Board finds that appellant has failed to submit rationalized
medical evidence establishing that her disability for the period September 1 to December 23,
2013 was causally related to her accepted employment injury. Accordingly, appellant has not
met her burden of proof.
Appellant may submit evidence or argument with a written request for reconsideration to
OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she was
disabled from work for the period September 1 to December 23, 2013 causally related to her
November 5, 2012 employment injury.

10

R.E., Docket No. 10-679 (issued November 16, 2010); K.W., 59 ECAB 271 (2007).

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ORDER
IT IS HEREBY ORDERED THAT the January 2, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 24, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Linwood, PA, Employer
__________________________________________

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

Docket No. 15-1215
Issued: August 13, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 6, 2015 appellant filed a timely appeal of a January 30, 2015 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). Since more than 180 days had
elapsed between the last merit decision on August 22, 2014 and the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. § 501.2(c) and 501.3, the
Board lacks jurisdiction to review the merits of the claim.
ISSUE
The issue is whether OWCP properly determined that appellant’s application for
reconsideration was insufficient to warrant merit review of the claim under 5 U.S.C. § 8128(a) of
FECA.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 23, 2014 appellant, then a 39-year-old letter carrier, filed a Form CA-2 claim for
occupational disease or illness as a result of her federal employment. She identified job duties of
bending, stooping, loading, lifting, pushing, pulling, and carrying of cased mail as contributing to
a back injury. The nature of the condition was described as an L4-5 herniated disc with
radiculopathy, and thoracic or lumbosacral neuritis or radiculitis. The reverse of the claim form
indicated that appellant had stopped working on April 29, 2014.
With respect to medical evidence, appellant submitted a report dated April 28, 2014 from
Dr. David Callaghan, an osteopath, providing results on examination and diagnosing lumbar
radiculopathy and thoracic or lumbosacral neuritis or radiculitis. Dr. Callaghan also provided a
note indicating that appellant should be off work commencing April 29, 2014. In an attending
physician’s report (Form CA-20) dated May 28, 2014, he diagnosed L4-5 herniated disc with
radiculopathy, and thoracic or lumbosacral neuritis or radiculitis. Dr. Callaghan checked a box
“yes” that the diagnosed conditions were employment related. Appellant also submitted reports
from Dr. Callaghan dated May 5 through July 9, 2014 providing results on examination.
By decision dated August 22, 2014, OWCP denied the claim for compensation. It found
that the medical evidence was insufficient to establish her claim.
On November 11, 2014 OWCP received a request for reconsideration. In a letter dated
November 7, 2014, appellant stated that she had gone to an orthopedic surgeon and had
undergone x-ray examination, as well as a magnetic resonance imaging (MRI) scan. She stated
that the tests showed disc degeneration, herniation, and bulging discs. Appellant report that she
was enclosing copies of her office visits. The record does not contain any additional medical
evidence.
By decision dated January 30, 2015, OWCP found the reconsideration request was
insufficient to warrant a review of the merits of the claim for compensation.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2
OWCP regulations provide that a claimant may obtain review of the merits of the claim by
submitting a written application for reconsideration that sets forth arguments and contains
evidence that either “(i) shows that OWCP erroneously applied or interpreted a specific point of
law; (ii) advances a relevant legal argument not previously considered by OWCP; or
(iii) constitutes relevant and pertinent evidence not previously considered by OWCP.”3 20
C.F.R. § 10.608(b) states that any application for review that does not meet at least one of the

2

5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application”).
3

20 C.F.R. § 10.606(b)(3).

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requirements listed in 20 C.F.R. § 10.606(b)(3) will be denied by OWCP without review of the
merits of the claim.4
ANALYSIS
In the present case, OWCP denied appellant’s occupational claim, finding that the
medical evidence did not establish a diagnosed condition causally related to the identified
employment activities.
Appellant submitted a November 7, 2014 letter requesting
reconsideration, stating that she had been treated by an orthopedic surgeon and had undergone
diagnostic testing. She did not show that OWCP erroneously applied or interpreted a specific
point of law, or advance a relevant legal argument not previously considered by OWCP.
Although appellant stated that she was submitting additional medical evidence, the record
does not contain any additional medical evidence submitted on reconsideration. As noted above,
the basis for the denial of the claim was the lack of probative medical evidence on causal
relationship between a diagnosed condition and employment activity as a letter carrier. The
Board finds that appellant did not submit relevant and pertinent evidence not previously
considered by OWCP. As appellant did not meet any of the requirements of 20 C.F.R.
§ 10.606(b)(3), OWCP properly denied the request for reconsideration without reviewing the
merits of the claim for compensation.
On appeal, appellant states that she did enclose additional medical evidence with her
reconsideration request. She states that her claim has been handled by several claims examiners
and some of her medical evidence may not have been properly handled. The Board, however,
can only review the evidence of record.5 There is no additional medical evidence contained in
this case record. Appellant may submit evidence to OWCP with a request for reconsideration.
On this appeal, however, the Board finds that the January 30, 2015 OWCP decision properly
denied merit review of the claim.
CONCLUSION
The Board finds that OWCP properly denied the application for reconsideration without
merit review of the claim.

4

Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

5

The Board reviews evidence that was before OWCP at the time of the decision an appeal.
§ 501.2(c)(1).

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20 C.F.R.

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 30, 2015 is affirmed.
Issued: August 13, 2015
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.M., Appellant
and
DEPARTMENT OF AGRICULTURE, FOREST
SERVICE, Albuquerque, NM, Employer
__________________________________________

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

Docket No. 15-1645
Issued: December 7, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 29, 2015 appellant filed a timely appeal from a March 13, 2015 merit decision
and a May 29, 2015 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish additional
work-related conditions; (2) whether OWCP abused its discretion by denying appellant’s request
for authorization of medical treatment; and (3) whether it properly denied appellant’s request for
a review of the written record.
FACTUAL HISTORY
On December 29, 2010 appellant, then a 40-year-old biological science technician, filed a
traumatic injury claim (Form CA-1) alleging that on December 28, 2010 he sustained a lower
1

5 U.S.C. § 8101 et seq.

back injury due to shoveling snow at work. He did not stop work, but began performing lightduty work for the employing establishment. Appellant’s claim was administratively handled to
allow for payment of a limited amount of medical expenses, but the merits of his claim had not
been formally considered.
Appellant received treatment for his back problems from Dr. Kevin Finley, an attending
osteopath and Board-certified family practitioner. In a January 7, 2011 report, Dr. Finley
diagnosed a lumbar strain due to the December 28, 2010 work incident. On February 11, 2011
he diagnosed degenerative disc disease of the lumbar spine.2
In a June 2, 2011 report, Dr. Gianelia Guernelli, an attending Board-certified physical
medicine and rehabilitation physician, discussed appellant’s December 28, 2010 back injury and
noted that he presented with complaints of pain and stiffness in his lumbar region. He indicated
that a recent magnetic resonance imaging (MRI) scan showed degenerative disc disease at L4-5
through L5-S1 and stated that, on examination, appellant’s back was nontender to palpation.3
Treatment recommendations included taking nonsteroidal anti-inflammatory drugs and applying
ice to the back followed by heat.
In mid-June 2011 OWCP formally considered appellant’s claim and accepted it for a
lumbar strain due to the December 28, 2010 work incident.
In an October 14, 2011 report, Dr. Michael F. Regan, an attending Board-certified
orthopedic surgeon, stated that appellant described a work injury in December 2010 due to
shoveling snow and complained of low back pain since that time. He noted that, on examination,
appellant’s back was not particularly tender and that there was no radicular pain with straight leg
raising. Diagnostic testing of the lumbar spine showed degenerative disc disease but no fracture
or clinically relevant compression. Dr. Regan indicated that surgery would not benefit appellant
and recommended that he continue with nonsteroidal anti-inflammatory drugs and unspecified
physical modalities.
On January 13, 2015 appellant filed a recurrence claim (Form CA-2a) on which he
checked a box indicating that his claimed recurrence was for “medical treatment only.” In other
communications with OWCP, he indicated that he wished to receive authorization for
chiropractic care and that he believed that he sustained a more serious injury on December 28,
2010 than a lumbar strain.
In a February 6, 2015 letter, OWCP asked appellant to submit additional factual and
medical evidence in support of his claim that he had a recurring need for medical treatment due
to his December 28, 2010 work injury and his claim that he sustained additional conditions on
December 28, 2010.

2

The record contains lumbar x-rays from February 3, 2011.

3

Dr. Guernelli did not identify the date of the MRI scan, but the only MRI scan of appellant’s lumbar spine in the
record is dated April 28, 2011.

2

Appellant submitted a February 23, 2015 statement in which he indicated that his back
pain had never gone away and that he recently started treatment with a chiropractor which
seemed to be “helping tremendously.”
Appellant submitted a December 19, 2014 report in which Dr. Finley noted that he had
experienced low back pain since 2008 and had received epidural injections in the past.
Dr. Finley noted that appellant reported that he had previously tried chiropractic treatment which
provided some relief from his back pain. Appellant also reported that in mid-2014 a tractor on
which he was riding rolled over and he now had pain that went down both legs. Dr. Finley
diagnosed low back pain and degenerative disc disease of the lumbar spine. In a December 19,
2014 form report, Dr. Finely noted “referral to chiropractic” in the “treatment/plan” portion of
the form.
In a February 6, 2015 report, Dr. Finley noted that appellant reported having back pain
with radiation to both upper buttocks. He noted that, prior to December 28, 2010, appellant’s
low back pain was periodic and not considered to be discogenic. Dr. Finley noted that, after his
injury at work on December 28, 2010, app’s back pain changed to symptoms compatible to a
disc injury. An MRI scan showed the degenerative changes and bulging and herniated discs that
were abutting the nerve roots and giving appellant his symptoms. Dr. Finley stated, “It is clear
that this most likely occurred with the injury of [December 28, 2010] as [appellant] did not have
these symptoms before this.” He noted that the degenerative changes were most likely present
for quite some time but the bulging and herniated discs were most likely new following the
incident at work on December 28, 2010. Dr. Finely noted that appellant recently was evaluated
and treated with chiropractic care including electrical stimulation and laser therapy. This care
gave appellant relief, but the relief was temporary and he continued to have the discomfort in the
lower back. Dr. Finley diagnosed low back pain, degenerative disc disease of the lumbar spine,
and displacement of lumbar disc without myelopathy. He noted that it was apparent that the
lower back pain appellant now had was different from what he had in previous years and noted,
“It is obvious to me that the symptoms he developed after the incident at work on December 28,
2010, with a causative factors [sic] of his persistent symptoms with radicular pain.”
In a March 13, 2015 decision, OWCP found that appellant had not met his burden of
proof to establish an additional condition other than the accepted December 28, 2010 lumbar
strain. It further denied appellant’s request for authorization of medical treatment related to the
December 28, 2010 work injury.
Appellant requested a review of the written record from OWCP’s March 13, 2015
decision in a form dated April 27, 2015. The form was marked as received by OWCP on
May 4, 2015.
By decision dated May 29, 2015, OWCP’s Branch of Hearings and Review denied
appellant’s request for a review of the written record as untimely filed. It noted that his form
requesting a review of the written record from the March 13, 2015 decision was dated April 27,
2015 but not received by OWCP until May 4, 2015, outside of the requisite 30-day period.
OWCP indicated that it was exercising its discretion and denying appellant’s request for a review
of the written record on the basis that the issue raised by appellant’s request could be addressed
if he requested reconsideration and submitted additional evidence.

3

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 timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any specific condition and/or disability for which compensation is claimed are causally
related to the employment injury.4
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.5 The medical evidence required to establish a causal
relationship between a claimed condition and employment factors is rationalized medical opinion
evidence. The opinion of the physician must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the claimed condition and
the specific employment factors identified by the claimant.6
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a lumbar strain due to shoveling snow at work
on December 28, 2010. Appellant later claimed that he sustained a more serious low back injury
due to the December 28, 2010 work injury but, OWCP denied expansion of his claim for an
additional condition.
The Board finds that appellant has failed to meet his burden of proof to establish a workrelated injury other than the accepted lumbar strain.
Appellant submitted a February 6, 2015 report in which Dr. Finley, an attending
osteopath and Board-certified family practitioner, noted that, prior to December 28, 2010,
appellant’s low back pain was periodic and not considered to be discogenic. Dr. Finley indicated
that, after appellant’s injury at work on December 28, 2010, his back pain changed to symptoms
compatible to a disc injury. He discussed an MRI scan that showed the degenerative changes
and bulging and herniated discs that were abutting the nerve roots and posited that the findings
gave appellant his symptoms.7 Dr. Finley noted, “It is clear that this most likely occurred with
the injury of [December 28, 2010] as he did not have these symptoms before this.” He noted that
the degenerative changes were most likely present for quite some time but the bulging and
herniated disc were most likely new following the incident at work on December 28, 2010.
Dr. Finley concluded that it was apparent that the lower back pain appellant now had was

4

J.F., Docket No. 09-1061 (issued November 17, 2009).

5

Jaja K. Asaramo, 55 ECAB 200 (2004).

6

See E.J., Docket No. 09-1481 (issued February 19, 2010).

7

Dr. Finley did not identify the date of the MRI scan, but the only MRI scan of appellant’s lumbar spine in the
record is dated April 28, 2011.

4

different from what he had in previous years and suggested that the December 28, 2010 work
incident was responsible for his persistent symptoms with radicular pain.
The Board finds that, while Dr. Finley provided an opinion suggesting that appellant
sustained an aggravation of preexisting degenerative disc disease of the lumbar spine on
December 28, 2010, his opinion is of limited probative value because he did not provide
adequate medical rationale in support of his opinion. The Board has held that a medical report is
of limited probative value on the issue of causal relationship if it contains a conclusion regarding
causal relationship which is unsupported by medical rationale.8 Dr. Finley did not provide any
description of the December 28, 2010 work injury or explain how appellant’s actions on that date
could have caused an injury other than a lumbar strain. Such medical rationale is especially
necessary because appellant did not report having pain that radiated down into both his legs until
more than three years after sustaining the December 28, 2010 work injury. Moreover, Dr. Finley
had indicated that appellant had back pain dating from 2008, i.e., a time prior to the
December 28, 2010 work injury, and had rolled over his tractor in a nonwork-related incident in
mid-2014. He did not adequately explain why appellant’s continuing back problems were not
due to the natural progression of his preexisting disc disease or some other nonwork-related back
condition.
Appellant did not submit any other medical evidence addressing whether he sustained a
medical condition on December 28, 2010 other than a lumbar strain. He has failed to meet his
burden of proof to expand his claim.9
LEGAL PRECEDENT -- ISSUE 2
Section 8103(a) of FECA states in pertinent part: “The United States shall furnish to an
employee who is injured while in the performance of duty, the services, appliances, and supplies
prescribed or recommended by a qualified physician, which the Secretary of Labor considers
likely to cure, give relief, reduce the degree or the period of disability, or aid in lessening the
amount of the monthly compensation.”10
The Board has found that OWCP has great discretion in determining whether a particular
type of treatment is likely to cure or give relief.11 The only limitation on OWCP’s authority is
that of reasonableness.12 Abuse of discretion is generally shown through proof of manifest error,
clearly unreasonable exercise of judgment, or actions taken which are contrary to both logic and
probable deductions from established facts. It is not enough to merely show that the evidence
could be construed so as to produce a contrary factual conclusion.13 In order to be entitled to
8

C.M., Docket No. 14-88 (issued April 18, 2014).

9

On appeal, appellant again argued that he sustained a more severe injury on December 28, 2010 than a lumbar
strain, but he did not explain how the medical evidence of record supported this argument.
10

5 U.S.C. § 8103.

11

Vicky C. Randall, 51 ECAB 357 (2000).

12

Lecil E. Stevens, 49 ECAB 673 (1998).

13

Rosa Lee Jones, 36 ECAB 679 (1985).

5

reimbursement of medical expenses, it must be shown that the expenditures were incurred for
treatment of the effects of an employment-related injury or condition.14 Proof of causal
relationship in a case such as this must include supporting rationalized medical evidence.15
ANALYSIS -- ISSUE 2
Appellant filed a claim alleging that in February 2015 he had a recurrence of a need for
medical care related to his December 28, 2010 work injury.16 In particular, he indicated that he
wished to receive authorization for chiropractic care. The Board finds that OWCP did not abuse
its discretion by denying appellant’s request for authorization of additional medical treatment.
In reports dated December 19, 2014 and February 6, 2015, Dr. Finley noted that appellant
had recently tried chiropractic care for his back. He noted that appellant self-reported getting
some relief from his back pain but that the relief was temporary and his pain returned. In a
December 19, 2014 form report, Dr. Finely noted “referral to chiropractic” in the
“treatment/plan” portion of the form.
The Board finds that Dr. Finley did not provide a rationalized medical opinion
establishing that appellant’s need for any specific medical care, including chiropractic care, was
related to the accepted December 28, 2010 work injury, i.e., a lumbar strain. As explained
above, it has not been accepted that appellant sustained work-related degenerative disc disease of
the lumbar spine and it appears that Dr. Finley’s treatment recommendations were for a
nonwork-related degenerative condition. As noted above, in order to be entitled to
reimbursement of medical expenses, it must be shown that the expenditures were incurred for
treatment of the effects of an employment-related injury or condition.17
Appellant did not submit any reports containing a rationalized medical opinion justifying
authorization of specific medical treatment, other than the earlier treatment already approved,
which was necessitated by his December 28, 2010 lumbar strain. The Board finds that OWCP
did not abuse its discretion in denying appellant’s claim for additional medical treatment.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 3
Section 8124(b)(1) of FECA provides that a claimant is entitled, on request made within
30 days after the date of the issuance of the decision, to a hearing on his or her claim before a
representative of the Secretary.18 Section 10.615 of OWCP’s federal regulations implementing
14

Bertha L. Arnold, 38 ECAB 282 (1986).

15

Zane H. Cassell, 32 ECAB 1537 (1981).

16

For these reasons explained above, appellant’s work injury has only been accepted for a lumbar strain.

17

See supra note 13.

18

5 U.S.C. § 8124(b)(1).

6

this section of FECA, provides that a claimant shall be afforded the choice of an oral hearing or a
review of the written record by a representative of the Secretary.19 Thus, a claimant has a choice
of requesting an oral hearing or a review of the written record pursuant to section 8124(b)(1) of
FECA and its implementing regulations. OWCP’s regulations and Board precedent provide that
the request for an oral hearing or review of the written record must be sent within 30 days of the
date of issuance of the decision (as determined by the postmark or other carrier’s date marking)
of the date of the decision for which an oral hearing or review of the written record is sought.20
ANALYSIS -- ISSUE 3
In this case, appellant’s form requesting a review of the written record from OWCP’s
March 13, 2015 decision was dated April 27, 2015 and was marked as received by OWCP’s
Branch of Hearings and Review on May 4, 2015. As the request was not sent within 30 days
after OWCP issued its March 13, 2015 decision, it was untimely filed and he was not entitled to
a review of the written record as a matter of right.21
OWCP retains the discretionary power to grant a review of the written record when a
claimant fails to request a review within the allotted time. In this case, it exercised its discretion
in its May 29, 2015 decision by finding that the issue raised by appellant’s request could be
addressed if he requested reconsideration and submitted additional evidence. The Board finds
that this denial of his request for review of the written record is a proper exercise of OWCP’s
authority.22
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish a workrelated injury other than the accepted lumbar strain. The Board further finds that OWCP did not
abuse its discretion by denying appellant’s request for authorization of medical treatment and
that OWCP properly denied his request for a review of the written record.

19

20 C.F.R. § 10.615.

20

Id. at § 10.616(a). A request for review of the written record is subject to the same requirement as an oral
hearing request that the request be sent within 30 days of OWCP’s final decision. See J.P., Docket No. 15-790
(issued June 3, 2015).
21

The envelope in which appellant’s request was sent contains an illegible postmark, but the date of the form
containing the request shows that his request for a review of the written record was untimely.
22

See D.P., Docket No.15-1061 (issued July 22, 2015).

7

ORDER
IT IS HEREBY ORDERED THAT the May 29 and March 13, 2015 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: December 7, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.Y., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Albany, NY,
Employer
__________________________________________

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

Docket No. 21-0221
Issued: June 30, 2021

Case Submitted on the Record

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

JURISDICTION
On December 1, 2020 appellant filed a timely appeal from an October 28, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a traumatic injury
in the performance of duty on September 22, 2017, as alleged.
FACTUAL HISTORY
On October 2, 2017 appellant, then a 56-year-old postal support employee (PSE) mail
processing clerk, filed a traumatic injury claim (Form CA-1) alleging that on September 22, 2017
he injured his right foot when a door/shelf of a postal container (postcon) fell on it, causing
1

5 U.S.C. § 8101 et seq.

swelling, while in the performance of duty. On the reverse side of the claim form the employing
establishment checked a box marked “No” to indicate that he was not in the performance of duty
when his injury occurred and noted that he had not reported his injury until 10 days after it
occurred. Appellant stopped work on September 22, 2017.2
An October 2, 2017 x-ray of the right foot, performed by Dr. Shirish Parikh, a Boardcertified diagnostic radiologist, revealed soft tissue swelling. Dr. Parikh noted that a drawer fell
on appellant’s right foot on September 22, 2017.
In an October 2, 2017 work status note, Shannon O’Meara, a family nurse practitioner,
excused appellant from work for the period October 2 through 4, 2017 and indicated that he could
return to work on October 5, 2017.
In an October 5, 2017 work status note, Dr. Alexandr Sazon, Board-certified in family
medicine, excused appellant from work for the period October 5 through 8, 2017 and indicated
that he could return to work on October 9, 2017.
In an October 9, 2017 prescription slip, Dr. Nita Parikh, Board-certified in internal
medicine, excused appellant from work for the period October 9 through 17, 2017.
An October 11, 2017 x-ray of the right foot was unremarkable.
In an October 11, 2017 emergency department report, Dr. Beth Cadigan, Board-certified
in emergency medicine, noted that appellant reported that a piece of equipment fell on his right
foot at work on October 1, 2017. Appellant also reported that the doors of a cabinet fell onto his
right foot at work on September 22, 2017, but that he did not have any significant injury and did
not initially seek medical attention. On October 1, 2017 Dr. Cadigan noted that appellant’s right
foot became significantly swollen, causing him to treat at an urgent care center and later seek care
with his primary care physician. She indicated that an x-ray revealed no fractures.
On October 12, 2017 the employing establishment executed an authorization for
examination and/or treatment (Form CA-16). The Form CA-16 listed the date of injury as
September 22, 2017 and noted that a metal shelf on the postcon fell on his foot.
Appellant also submitted a continuation of pay nurse report dated October 16, 2017, which
indicated that he was injured when a shelf fell on his right foot on September 22, 2017.
In an October 19, 2017 report, Christopher C. Szczesniak, a physician assistant, noted that
appellant was seen in his clinic for evaluation of his right foot. He indicated that appellant injured
his right foot at work when a heavy piece of machinery landed on it. Appellant related that he
initially experienced no symptoms, but gradually developed swelling on the dorsum of his foot.
He also reported that October 2, 2017 was the date of injury. Mr. Szczesniak conducted a physical
examination and indicated an x-ray of the right foot revealed no evidence of obvious fractures or
dislocations.

2
In an October 27, 2017 return-to-work form (Form CA-3), the employing establishment advised OWCP that
appellant had stopped work on October 2, 2017 and returned to full-time regular-duty work on October 26, 2017.

2

In an October 25, 2017 report, Mr. Szczesniak again noted October 2, 2017 as the date of
injury and that appellant had not worked since. In a form report of even date, Dr. Samuel G.
Dellenbaugh, a Board-certified orthopedic surgeon, indicated that appellant sustained a workrelated injury on October 2, 2017 and diagnosed right ankle/foot pain and right foot effusion. He
noted that appellant was totally disabled from work for the period October 19 through 25, 2017.
Dr. Dellenbaugh found that appellant could return to work on October 26, 2017 without
restrictions.
In an October 25, 2017 attending physician’s report, Part B of Form CA-16,
Dr. Dellenbaugh noted that appellant injured his right foot when a door fell on it at work. He again
diagnosed right foot/ankle pain and right foot effusion.
In a development letter dated November 22, 2017, OWCP advised appellant of the
deficiencies of his claim and instructed him as to the factual and medical evidence necessary to
establish his claim. It attached a factual questionnaire seeking a full description of the events and
circumstances surrounding the alleged September 22, 2017 employment incident. OWCP
afforded him 30 days to provide the necessary information. No response was received.
In an October 2, 2017 medical report, Dr. Sazon noted that appellant reported that on
September 22, 2017 he was pulling out a shelf at work when it fell on his right foot. He further
reported that, although he felt fine after the September 22, 2017 incident, he experienced pain in
the right foot while working on October 1, 2017. Dr. Sazon diagnosed foot pain.
In an October 9, 2017 medical report, Dr. Nita Parikh noted that appellant presented for an
initial visit following a work-related injury. She indicated that he was injured, when a piece of
heavy metal equipment fell on his right foot. Dr. Parikh diagnosed a foot injury and foot swelling.
By decision dated October 28 2020, OWCP denied appellant’s traumatic injury claim,
finding that the evidence of record was insufficient to establish that the injury and/or events
occurred as he described. It noted that he had not responded to its November 22, 2017
development questionnaire or provided information clarifying the alleged September 22, 2017
employment incident. OWCP concluded, therefore, that the requirements had not been met to
establish an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,4 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the

3

Supra note 1.

4
F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).

3

employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
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 he or she actually experienced the employment incident at the
time, place, and in the manner alleged. The second component is whether the employment incident
caused a personal injury and can be established only by medical evidence.7
An injury does not have to be confirmed by eyewitnesses in order to establish the fact that
an employee sustained an injury in the performance of duty, but the employee’s statements must
be consistent with the surrounding facts and circumstances and his or her subsequent course of
action.8 The employee has not met his or her burden of proof of establishing the occurrence of an
injury when there are such inconsistencies in the evidence as to cast serious doubt upon the validity
of the claim.9 Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury, and failure to obtain
medical treatment may, if otherwise unexplained, cast serious doubt on an employee’s statements
in determining whether a case has been established. An employee’s statement alleging that an
injury occurred at a given time and in a given manner is of great probative value and will stand
unless refuted by strong or persuasive evidence.10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a traumatic
injury in the performance of duty on September 22, 2017, as alleged.
Appellant has not established the factual component of his claim as he has insufficiently
explained how and where the claimed injury occurred.11 In a development letter dated
November 22, 2017, OWCP provided a factual questionnaire for his completion and requested that
he submit clarifying information describing how his claimed injury occurred. Appellant, however,
did not complete and return the attached questionnaire and there is no statement in the record

5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6
P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8

See J.M., Docket No. 19-1024 (issued October 18, 2019); M.F., Docket No. 18-1162 (issued April 9, 2019).

9

See V.J., Docket No. 19-1600 (issued March 13, 2020); E.C., Docket No. 19-0943 (issued September 23, 2019).

10

See M.C., Docket No. 18-1278 (issued March 7, 2019); D.B., 58 ECAB 464, 466-67 (2007).

11

Supra note 8.

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describing the specific alleged employment-related incident.12 As he has not responded to the
request for factual information, the Board finds that the record lacks sufficient factual evidence to
establish specific details of how the claimed injury occurred.13 Absent supporting evidence from
appellant, as was requested in the development questionnaire, it cannot be determined that the
incident occurred as alleged.14
Appellant provided a generalized and vague statement on his October 2, 2017 Form CA-1
alleging that he injured his right foot on September 22, 2017 when the door/shelf of the postcon
fell on his foot. In medical reports dated October 2 and 9, 2017, he again noted his date of injury
as September 22, 2017. In Dr. Cadigan’s October 11, 2017 report, appellant recounted that he had
been injured on October 1, 2017 when a piece of heavy equipment fell on his right foot. On
October 19 and 25, 2017 he reported to Mr. Szczesniak that he was injured on October 2, 2017,
when a piece of heavy machinery fell on his right foot. Similarly, in his October 25, 2017 report,
Dr. Dellenbaugh noted that appellant sustained a work-related injury on October 2, 2017 when a
door fell on his right foot. The Board finds that appellant’s description of the incident in his Form
CA-1 is inconsistent with his statements to his treating physicians. Appellant’s varying
descriptions of the date and circumstances of the claimed injury do not establish a singular account
of the mechanism of injury.15 Further, the history of injury he related to his medical providers
further detailed inconsistent descriptions of the mechanism of injury. By failing to respond to the
development questionnaire and describe the specific employment incident and circumstances
surrounding his alleged injury, and by failing to provide a consistent history of injury when seeking
medical treatment, appellant has not established that the traumatic injury occurred in the
performance of duty, as alleged.16 Thus, the Board finds that he has not met his burden of proof.17
As appellant has not met his burden of proof to establish that the September 22, 2017
incident occurred in the performance of duty, as alleged, it is unnecessary to address the medical
evidence of record regarding causal relationship.18

12

See S.Z., Docket No. 19-1125 (issued October 22, 2020); M.F., Docket No. 18-1162 (issued April 9, 2019).

13

M.L., Docket No. 19-0909 (issued September 17, 2019); M.S., Docket No. 18-0059 (issued June 12, 2019).

14

H.O., Docket No. 17-1176 (issued November 27, 2018).

15

M.W., Docket No. 20-1489 (issued March 29, 2021); T.S., Docket No. 20-0027 (issued October 6, 2020).

16

S.Z., supra note 12;V.J., Docket No. 19-1600 (issued March 13, 2020); H.D., Docket No. 15-1698 (issued
May 4, 2016).
17
The Board notes that the employing establishment issued a Form CA-16. A completed Form CA-16 authorization
may constitute a contract for payment of medical expenses to a medical facility or physician, when properly executed.
The form creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the
examination or treatment regardless of the action taken on the claim. See 20 C.F.R. § 10.300(c); S.P., Docket No.
19-1904 (issued September 2, 2020); J.G., Docket No. 17-1062 (issued February 13, 2018); Tracy P. Spillane, 54
ECAB 608 (2003).
18
J.C., Docket No. 19-0542 (issued August 14, 2019); see M.P., Docket No. 15-0952 (issued July 23, 2015);
Alvin V. Gadd, 57 ECAB 172 (2005).

5

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a traumatic
injury in the performance of duty on September 22, 2017, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the October 28, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 30, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.V., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Los Angeles, CA, Employer
__________________________________________

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

Docket No. 13-678
Issued: July 22, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 31, 2013 appellant filed a timely appeal from a January 11, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying a hearing.1
Because more than 180 days elapsed from the most recent merit decision dated February 10,
2011 to the filing of this appeal, the Board lacks jurisdiction to review the merits of the case.2
Pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the nonmerit decision.

1

Appellant initially requested an oral argument. However, in a February 28, 2013 letter, he asked the Board to
review the case record.
2

An appeal of final adverse OWCP decisions issued on or after November 19, 2008 must be filed within 180
days of the decision. See 20 C.F.R. § 501.3(e).
3

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP abused its discretion by denying a request for an oral hearing
under 5 U.S.C. § 8124(b).
FACTUAL HISTORY
On October 12, 2005 appellant, then a 60-year-old regular mail handler, twisted his left
knee in the performance of duty. He did not stop work. OWCP accepted the claim for left knee
strain and paid benefits.4 At a second opinion evaluation by a Board-certified orthopedic
surgeon on September 18, 2007, it was noted that appellant had degenerative changes in the knee
that were age related and not related to the accepted injury of October 12, 2005. Appellant
returned to limited duties with restrictions of no extended walking, standing or carrying over
10 pounds.
By decision dated February 10, 2011, OWCP denied appellant’s claim for disability
compensation for the period commencing February 17 to 26, 2010. It found that the weight of
the medical evidence did not establish that the degenerative changes in his knee were caused or a
consequence of the October 12, 2005 knee injury.
On December 23, 2012 appellant requested an oral hearing. The request was postmarked
December 26, 2012. Several medical reports were submitted.
By decision dated January 11, 2013, OWCP’s Branch of Hearings and Review denied
appellant’s request for a hearing. It found that the request was not timely filed within 30 days of
the February 10, 2011 decision. OWCP exercised its discretion by performing a limited review
of the evidence and further denied his request as the issue in the case could be equally well
addressed pursuant to a request for reconsideration and the submission of evidence not
previously considered.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides that a claimant not satisfied with a decision of
OWCP has a right, upon timely request, to a hearing before an OWCP representative.5 Section
10.615 of Title 20 of the Code of Federal Regulations provide that a hearing is a review of an
adverse decision by an OWCP hearing representative. Initially, the claimant can choose between
two formats: An oral hearing or a review of the written record.6
A claimant is not entitled to a hearing if the request is not made within 30 days of the
date of issuance of the decision as determined by the postmark or other carrier’s date marking of

4

Appellant’s claim was originally accepted as a simple, uncontroverted case which resulted in minimal or no time
loss from work; however, the case was formally adjudicated when medical expenses exceeded $1,500.00.
5

5 U.S.C. § 8124 (b)(1). See A.B., 58 ECAB 546 (2007); Joe Brewer, 48 ECAB 411 (1997).

6

20 C.F.R. § 10.615.

2

the request.7 OWCP has discretion, however, to grant or deny a request that is made after this
30-day period.8 In such a case, it will determine whether to grant a discretionary hearing and, if
not, will so advise the claimant with reasons.9
ANALYSIS
OWCP accepted that appellant sustained a left knee strain and paid benefits. By decision
dated February 10, 2011, it denied his claim for disability compensation from February 17 to
26, 2010. OWCP did not accept that the degenerative changes in appellant’s knee was caused or
causally related to the October 12, 2005 work injury. Appellant requested an oral hearing in a
letter dated December 23, 2012 and postmarked December 26, 2012. OWCP denied his request
by decision dated January 11, 2013 on the grounds that the request was filed more than 30 days
after OWCP’s February 10, 2011 decision.
Appellant’s letter requesting an oral hearing was postmarked on December 26, 2012,
more than 30 days after issuance of the February 10, 2011 decision. The Board finds that OWCP
properly found that his request for an oral hearing was not timely filed under section 8124
(b)(1) of FECA and that he was not entitled to a hearing as a matter of right.
OWCP properly exercised its discretion and denied appellant’s request for a hearing on
the additional grounds that he could address the issue in his case by submitting evidence not
previously considered accompanying a request for reconsideration. Reconsideration exists as an
alternative right to seek review of the issues in his case. The Board finds that OWCP exercised
its discretion in this case and found that appellant’s right to further proceedings could be equally
well addressed by requesting reconsideration.10
On appeal, appellant argues the merits of his case. As noted, the Board does not have
jurisdiction over the merits of this appeal. Appellant also submitted new evidence on appeal; but
the Board may only review evidence that was in the record at the time OWCP issued its final
decision.11
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for a hearing as
untimely.

7

Id. at § 10.616(a).

8

G.W., Docket No. 10-782 (issued April 23, 2010). See also Herbert C. Holley, 33 ECAB 140 (1981).

9

Id. See also Rudolph Bermann, 26 ECAB 354 (1975).

10

See Gerard F. Workinger, 56 ECAB 259 (2005). See also André Thyratron, 54 ECAB 257 (2002).

11

See 20 C.F.R. § 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008);
G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

3

ORDER
IT IS HEREBY ORDERED THAT the January 11, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 22, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.T., Appellant
and
DEPARTMENT OF COMMERCE, NATIONAL
OCEANIC & ATMOSPHERIC
ADMINISTRATION, Silver Spring, MD,
Employer
__________________________________________

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)
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)
)
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Appearances:
Demetry Pikrallidas, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0388
Issued: September 16, 2020

Case Submitted on the Record

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

JURISDICTION
On November 19, 2019 appellant, through counsel, filed a timely appeal from a
November 14, 2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish that he sustained a
traumatic injury in the performance of duty, as alleged.
FACTUAL HISTORY
On September 27, 2019 appellant, then a 61-year-old physical scientist, filed a traumatic
injury claim (Form CA-1) alleging that on September 21, 2019 he experienced seat belt impact to
the left ribs, back trauma, and neck stiffness when he was involved in a motor vehicle collision
while in the performance of duty. He explained that the taxi he was riding in was struck from
behind while he was travelling from Dulles International Airport to his home following a trip to
Honolulu, Hawaii for a work conference. On the reverse side of the claim form the employing
establishment contended that appellant was not injured in the performance of duty as he was
returning from a work trip when his taxi was involved in an accident. Appellant stopped work on
September 23, 2019.
In support of his claims, appellant submitted a photograph of the damage to the motor
vehicle he was riding in which was involved in the collision.
In an October 3, 2019 development letter, OWCP informed appellant that the evidence of
record was insufficient to establish his claim. It advised him of the type of factual and medical
evidence needed, specifically noting that documentation had not been received to establish that the
injury occurred in the performance of duty. It also noted that medical evidence had not been
received which supported that the alleged incident caused or aggravated a medical condition.
OWCP attached a questionnaire for his completion, which noted that the evidence of record
indicated that appellant was injured while in travel status; however, to determine whether he was
in the performance of duty at time of the accident, additional evidence was necessary. OWCP
specifically inquired as to the following: when and where he last performed his official duties;
whether the injury occurred while he was on the most direct route from the last official duty to the
next expected duty location; whether the travel expenses were reimbursable and, if so to provide
a copy of the travel authorization; to submit a police report or an investigation report from his
employing establishment regarding the September 21, 2019 incident. OWCP afforded him 30
days to submit the necessary evidence. No additional evidence was received.
By decision dated November 14, 2019, OWCP denied appellant’s traumatic injury claim,
finding that the medical evidence of record was insufficient to establish a valid diagnosis causally
related to the accepted September 21, 2019 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
3

Id.

2

time limitation period of FECA,4 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
The phrase sustained while in the performance of duty has been interpreted by the Board
to be the equivalent of the commonly found requisite in workers’ compensation law of arising out
of and in the course of employment.7 In the course of employment deals with the work setting,
locale, and time of injury, whereas arising out of the employment encompasses not only the work
setting, but also the requirement that an employment factor caused the injury.8
To occur in the course of employment, in general, an injury must occur: (1) at a time when
the employee may reasonably be stated to be engaged in his or her master’s business; (2) at a place
where he or she may reasonably be expected to be in connection with the employment; and
(3) while he or she was reasonably fulfilling the duties of his or her employment or engaged in
doing something incidental thereto.9
This alone is not sufficient to establish entitlement to benefits for compensability. The
concomitant requirement of an injury arising out of the employment must be shown, and this
encompasses not only the work setting, but also a causal concept, the requirement being that the
employment caused the injury in order for an injury to be considered as arising out of the
employment.10
OWCP’s procedure manual provides that the employing establishment is required to
complete the reports and statements needed and then submit the evidence to OWCP. In several
types of claims (e.g., stress claims, claims with performance of duty issues such as premises,
temporary duty travel, or recreational injuries), a statement from the employing establishment is
imperative to properly develop and adjudicate the claim.11 OWCP’s procedure manual further
provides that the protection of FECA is not limited to injuries which occur on the industrial

4

S.S., Docket No. 19-1815 (issued June 26, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
5
M.H., Docket No. 19-0930 (issued June 17, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB
312 (1988).
6

S.A., Docket No. 19-1221 (issued June 9, 2020); L.M., Docket No. 13-1402 (issued February 7, 2014); Delores C.
Ellyett, 41 ECAB 992 (1990).
7

A.K., Docket No. 09-2032 (issued August 3, 2010); C.O., Docket No. 09-0217 (issued October 21, 2009).

8

Id.

9

T.F., Docket No. 08-1256 (issued November 12, 2008); Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

10

G.R., Docket No. 16-0544 (issued June 15, 2017); M.T., Docket No. 16-0927 (issued February 13, 2017).

11
Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.7a(2)
(June 2011).

3

premises, and it contains provisions regarding the necessary information to be obtained when an
employee has claimed that an injury occurred while on travel status.12
FECA covers an employee 24 hours a day when the employee is on travel status and
engaged in activities essential or incidental to such duties.13
ANALYSIS
The Board finds that this case is not in posture for decision.
Whether an injury occurs in the performance of duty is a preliminary issue to be addressed
before the remaining merits of the claim are adjudicated.14 On his Form CA-1 appellant claimed
that he was injured during a motor vehicle collision on September 21, 2019 while in the
performance of duty. He explained that the taxi he was riding in was struck from behind while he
was travelling from Dulles International Airport to his home following a trip to Honolulu, Hawaii
for a work conference. On the reverse side of the claim form the employing establishment
controverted appellant’s claim by asserting that appellant was not in the performance of duty when
injured as he was off the employing establishment premises and not engaged in official duties at
the time. The Board finds that OWCP has not adequately developed this aspect of appellant’s
claim.
In an October 3, 2019 development letter, OWCP requested additional evidence from
appellant, noting that the evidence of record was insufficient to establish that the alleged injury
occurred in the performance of duty. It provided a questionnaire for appellant’s completion which
requested that he provide information relative to his travel status. OWCP, however, did not request
all of the information required under its procedures including a map or diagram showing the
location of the place where official duty was last performed, the place where the employee was
next expected to perform official duty, the shortest or most usually traveled route between these
points, and the place where the accident occurred.15 Without this information, the case record is
incomplete. As OWCP failed to request all the information as required under its procedures, the
case must be remanded for further development of the claim.
12
Id. at Part 2 - Claims, Performance of Duty, Chapter 2.804.5 (August 1992). For injuries sustained in a travel
status the record must contain evidence showing when and where the employee last performed official duty, the
distance between the place of injury and the place where official duty was last performed, between what points the
employee was traveling when injured, the purpose of the trip, when and where the employee was next expected to
perform official duty, whether at the time of the injury the employee was riding in or driving a government-owned
vehicle, and whether the employee’s travel expenses were reimbursable. The record must also contain evidence
regarding whether the injury occurred on the direct or most usually traveled route between the place of last official
duty and the place where the employee was expected to next perform official duty and, if not, the nature and extent of
the deviation should be given with a full explanation of the reason for such deviation. Id. at Chapter 2.804.5d.
13

S.T. Docket No. 16-1710 (issued September 27, 2017); L.A., Docket No. 09-2278 (issued September 27,
2010); Ann P. Drennan, 47 ECAB 750 1996); Richard Michael Landry, 39 ECAB 232 (1987) and cases cited therein.
14

T.H., Docket No. 17-0747 (issued May 14, 2018); P.L., Docket No. 16-0631 (issued August 9, 2016); see also
M.D., Docket No. 17-0086 (issued August 3, 2017).
15

Supra note 12.

4

Furthermore, while the employing establishment generally denied that appellant was
engaged in work-related duties on January 9, 2017, it was not asked to specifically respond to
appellant’s claim. OWCP’s procedures provide that the required information regarding injuries
sustained while in travel status should be supplied by the injured employee, with the official
superior confirming or refuting the employee’s allegations.16 OWCP also has the responsibility to
develop the evidence when such evidence is of the character normally obtained from the employing
establishment or other government source.17 In an October 3, 2019 development letter, OWCP
requested that appellant submit additional factual and medical evidence in support of his claim and
provided a questionnaire for his completion posing specific questions regarding the factual
circumstances of the September 21, 2019 motor vehicle accident. OWCP, however, did not send
a development letter to the employing establishment asking it to provide further specific
information about the factual aspects of appellant’s claim, including whether he was on official
travel status when injured on September 21, 2019.
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested arbiter.
While appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence, particularly when such evidence is of the
character normally obtained from the employing establishment or other governmental source.18
Accordingly, the Board will remand the case for OWCP to further develop the question of
whether appellant was in the performance of duty when injured on September 21, 2019. On
remand it shall obtain all relevant information from appellant and the employing establishment
necessary to determine whether appellant was in travel status when injured while returning from
his work trip. 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.

16

Id.

17

R.G. (K.G.), Docket No. 19-1059 (issued July 28, 2020); G.R., Docket No. 18-1490 (issued April 4, 2019); C.F.,
Docket No. 17-1204 (August 22, 2017).
18

A.M., Docket No. 18-0630 (issued December 10, 2018).

5

ORDER
IT IS HEREBY ORDERED THAT the November 14, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: September 16, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6