United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.G., Appellant
and
U.S. POSTAL SERVICE, DOWNTOWN
DELIVERY ANNEX, Baltimore, MD, Employer
__________________________________________

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

Docket No. 15-1217
Issued: October 8, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 7, 2015 appellant, through counsel, filed a timely appeal from an April 9, 2015
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The last merit
decision in this case was a Board decision dated June 16, 2014, which affirmed OWCP’s denial
of appellant’s claim for continuing employment-related residuals or disability. With respect to
the findings made in the Board’s June 16, 2014 decision, these matters are res judicata.1 The
Board may review absent any subsequent decision reviewed thereafter by OWCP under 5 U.S.C.
§ 8128(a).2 Pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this case.

1

Section 501.6(d) of the Board’s Rules of Procedure provides in pertinent part regarding finality: “The decisions
and orders of the Board are final as to the subject matter appealed, and such decisions and orders are not subject to
review, except by the Board. The decisions and orders of the Board will be final upon the expiration of 30 days
from the date of issuance unless the Board has fixed a different period of time therein.” 20 C.F.R. § 501.6(d).
2

See Clinton E. Anthony, Jr., 49 ECAB 476 (1998).

3

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits because appellant’s reconsideration request was untimely filed and failed to
demonstrate clear evidence of error.
FACTUAL HISTORY
This case has previously been before the Board.4 On June 16, 2014 the Board affirmed
an October 24, 2013 merit decision by OWCP finding that appellant did not have any continuing
employment-related residuals or disability after September 16, 2009 causally related to the
May 19, 2006 employment injury. The findings of fact as set forth in the prior decisions by the
Board are herein incorporated by reference.5
Following the issuance of the Board’s June 16, 2014 merit decision, by letter dated and
received on March 26, 2015 appellant, through counsel, filed a request for reconsideration. In
support of his reconsideration request, appellant submitted a medical report by Dr. Leonid Selya,
a Board-certified orthopedic surgeon. Dr. Selya noted that appellant’s symptoms started in 2006
and listed his diagnoses as cervical stenosis, degenerative disc disease at C4-5, disc syndrome at
C5-6 and C6-7, and radiculopathies within the C5 distribution with impairment of balance
consisting of cervical myelopathy and stenosis. He concluded that appellant was totally
disabled.
By decision dated April 9, 2015, OWCP denied appellant’s reconsideration request as
untimely filed and failing to establish clear evidence of error. It explained that he was requesting
reconsideration of its October 24, 2013 decision and that the March 25, 2015 request was
received beyond the one-year time limitation for timely reconsideration requests.
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a
claimant’s application for review must be received within one year of the date of that decision.6
The Board has found that the imposition of the one-year limitation does not constitute an abuse
of the discretionary authority granted OWCP under section 8128(a) of FECA.7 The one-year
4

On May 20, 2006 appellant, then a 57-year-old letter carrier, filed a traumatic injury claim alleging that on
May 19, 2006 he sustained head and neck pain after a vehicle door hit his head. OWCP accepted his claim for back
and lumbar strain sustained on May 19, 2006 during his federal employment. On June 23, 2009 the Board reversed
the termination of appellant’s compensation benefits, found that an unresolved conflict in medical opinion evidence
existed as to whether he established continuing employment-related residuals and disability, and affirmed OWCP’s
denial of a schedule award claim. See Docket No. 09-88 (issued June 23, 2009). By its September 10, 2012
decision, the Board affirmed OWCP’s termination of compensation benefits, as well as its denial of appellant’s
claim for continuing employment-related disability or residuals.
See Docket No. 12-230 (issued
September 10, 2012).
5

Docket No. 14-401 (issued June 16, 2014).

6

20 C.F.R. § 10.607(a).

7

5 U.S.C. § 2128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

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period begins on the date of the original decision. However, a right to reconsideration within one
year accompanies any subsequent merit decision on the issues. This includes any hearing or
review of the written record decision, any denial of modification following reconsideration, any
merit decision by the Board, and any merit decision following action by the Board.8
ANALYSIS
The Board has reviewed the record on appeal and finds that the case must be remanded to
OWCP for application of the appropriate standard of review because appellant’s request for
reconsideration was timely received.
An application for reconsideration must be received by OWCP within one year of the
date of a merit review of the claim, including any merit review by the Board.9 The last merit
decision of record was the Board’s June 16, 2014 merit decision.10
As appellant’s
reconsideration request, dated and received on March 26, 2015, was received within one year of
the Board’s merit decision dated June 16, 2014, the Board concludes that the request was
timely.11
OWCP’s April 9, 2015 decision erroneously noted that date of the last merit decision as
October 24, 2013. It failed to acknowledge that appellant had one year from the date of the last
merit decision, i.e., the Board’s June 16, 2014 decision, to file a timely request with OWCP.12 In
its April 9, 2015 decision denying appellant’s reconsideration request, OWCP applied the clear
evidence of error legal standard. This standard is the appropriate standard only for cases in
which a reconsideration request is untimely filed.13 Since OWCP erroneously reviewed the
evidence submitted by appellant in support of his reconsideration request under the clear
evidence of error standard, the Board will remand the case to OWCP for application of the
standard for reviewing a timely request for reconsideration as set forth at 20 C.F.R. §§ 10.605
through 10.607. Following any necessary further development, OWCP shall issue an appropriate
decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

8

D.G., 59 ECAB 455 (2008); see also C.J., Docket No. 12-1570 (issued January 16, 2013); see also Federal
(FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4a (October 2011).
9

See Mary E. Schipske, 43 ECAB 318 (1991); see also C.V., Docket No. 14-1293 (issued February 23, 2015).

10

Supra note 3.

11

J.N., Docket No. 12-1543 (issued February12, 2013).

12

See John W. O’Connor, 42 ECAB 797 (1991).

13

See Donna M. Campbell, 55 ECAB 241 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 9, 2015 is set aside. The case is remanded for further
proceedings consistent with this opinion.
Issued: October 8, 2015
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Swedesboro, NJ, Employer
__________________________________________

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

Docket No. 08-710
Issued: August 8, 2008

Case Submitted on the Record

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

JURISDICTION
On December 31, 2007 appellant filed a timely appeal from the merit decision of the
Office of Workers’ Compensation Programs dated November 19, 2007 denying her claim for a
recurrence of disability. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has
jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant established a recurrence of disability causally related to
the accepted injury commencing August 14, 2007.
FACTUAL HISTORY
On March 6, 2007 appellant, then a 43-year-old mail handler, filed an occupational
disease claim alleging that she hurt herself after many years of “the way I do my work.” She
indicated that she first became aware of the disease or illness on February 28, 2007.
In an attending physician’s report dated March 23, 2004, Dr. Judith Riley-Lowe, an
osteopath, noted that appellant’s lifting boxes irritated her tendon; she diagnosed tendinitis. She

indicated that appellant was totally disabled from February 28 through March 23, 2007 and able
to return to light-duty work on March 24, 2007. In a medical report dated April 2, 2007,
Dr. Mark K. Levitsky, a Board-certified orthopedic surgeon, indicated that appellant could return
to full duty on April 9, 2007.
By letter dated April 30, 2007, the Office accepted appellant’s claim for tendinitis, right
elbow.
On May 16, 2007 appellant filed a claim for compensation for the period February 28
through April 9, 2007. She submitted time analysis forms for this time period indicating that she
missed time because “arm was hurting.” The employing establishment submitted an absence
analysis on appellant indicating that she was absent from work for intermittent periods from
February 28 through April 13, 2007. Appellant was paid compensation for intermittent wage
loss from February 28 through April 8, 2007. She returned to work on April 9, 2007.
In a form indicating treatment on August 8, 2007, a person with an illegible signature
from Riverfront Medical Center indicated that appellant had pain and numbness in her right
elbow and wrist and referred her for nerve conduction studies and x-rays. This person stated that
appellant should not lift or pull over 10 pounds with her right hand and perform no repetitive
motion with the right hand. Dr. Riley-Lowe referred appellant to physical therapy.
On August 14, 2007 appellant filed a notice of recurrence, alleging a recurrence of
disability on February 28, 2007. She stated, “After original injury unable to sustain 40 hours per
week or 8 hours a day due to discomfort. The employing establishment indicated that, after
appellant’s prognosis of injury, restrictions were accommodated. The employing establishment
further indicated that the date appellant stopped work after the recurrence was August 14, 2007.
However, the employing establishment later amended this to indicate that appellant stopped
work on April 13, 2007.
On October 15, 2007 appellant filed a claim for compensation for the period August 7 to
September 7, 2007. In further support of her claim, she submitted time analysis forms showing
leave without pay for this time period.
In a progress note dated August 8, 2007, a physician whose signature is illegible
indicated that appellant had pain and numbness in her right elbow and wrist. On that same date,
the same physician limited appellant’s lifting with right hand to 10 pounds and indicated that she
was to do no repetitive motion with right hand. On August 15, 2007 this physician limited
appellant to no lifting in right hand over 10 pounds and no repetitive motion with right hand.
By letter dated September 28, 2007, the Office asked appellant to submit further
information with regard to his request for recurrence of disability.
In an October 5, 2007 note, Dr. Riley-Lowe indicated that she had examined appellant on
August 13 and 23 and October 5, 2007. She diagnosed appellant with pain in right wrist and
elbow, carpal tunnel and tendinitis. Dr. Riley-Lowe noted that appellant was to remain off work
from August 13 to October 9, 2007.

2

By decision dated November 19, 2007, the Office denied appellant’s request for
recurrence of disability commencing August 14, 2007.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition, which resulted from a previous
injury or illness without an intervening injury or new exposure to the work-environment that
caused the illness.1 This term also means an inability to work when a light-duty assignment
made specifically to accommodate an employee’s physical limitations due to her work-related
injury or illness is withdrawn (except when such withdrawal occurs for reasons of misconduct,
nonperformance of job duties or a reduction-in-force) or when the physical requirements of such
an assignment are altered so that they exceed her established physical limitations.2 Moreover,
when the claimed recurrence of disability follows a return to light-duty work, the employee may
satisfy her burden of proof by showing a change in the nature and extent of the injury-related
condition such that she was no longer able to perform the light-duty assignment.3
Where an employee claims a recurrence of disability due to an accepted employmentrelated injury, she has the burden of establishing that the recurrence of disability is causally
related to the original injury.4 This burden includes the necessity of furnishing evidence from a
qualified physician who concludes, on the basis of a complete and accurate factual and medical
history, that the condition is causally related to the employment injury.5 The medical evidence
must demonstrate that the claimed recurrence was caused, precipitated, accelerated or aggravated
by the accepted injury.6
ANALYSIS
Appellant’s claim was accepted for tendinitis of the right elbow and she was paid
compensation through April 8, 2007. She returned to limited-duty work on April 9, 2007.
Appellant filed a claim for recurrence of disability. In its November 19, 2007 decision, the
Office denied appellant’s request for recurrence of disability commencing August 14, 2007.
The Board finds that the Office properly found that appellant had not established a
recurrence of disability commencing August 14, 2007. There is no evidence that the employing
establishment has withdrawn the limited-duty position. Furthermore, the Board finds appellant
has not provided a medical rationalized opinion from a physician who, on the basis of a complete
1

20 C.F.R. § 10.5(x).

2

Id.

3

Theresa L. Andrews, 55 ECAB 719, 722 (2004).

4

20 C.F.R. § 10.104(b); Carmen Gould, 50 ECAB 504 (1999); Helen K. Holt, 50 ECAB 279, 382 (1999);
Robert H. St. Onge, 43 ECAB 1169 (1992).
5

See Helen K. Holt, supra note 4.

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.2 (June 1995).

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and accurate factual and medical history, concluded that she had a recurrence of disability
causally related to the employment injury and supported that conclusion with sound medical
reasoning.7 Although Dr. Riley-Lowe indicated that she examined appellant on August 13 and
23 and October 5, 2007, she diagnosed appellant with pain in right wrist and elbow, carpal tunnel
and tendinitis and noted that she was to remain off work from August 13 through October 9,
2007, she failed to provide an explanation as to whether this was a change in the nature and
extent of the injury-related condition to such an extent that appellant was unable to perform her
light-duty assignment. In fact, her brief note did not constitute rationalized medical evidence as
it does not contain a complete and accurate factual and medical history nor does she provide a
complete medical explanation as to how she reached her conclusion. It is well established that
medical reports must be based on a complete and accurate factual and medical background, and
medical opinions based on an incomplete or inaccurate history are of little probative value. The
medical notes from Riverfront Medical Center dated August 8 through 15, 2007 are also
insufficient to establish a recurrence of disability on or about August 14, 2007. These brief notes
and forms indicate that appellant had work limitations; however, the notes never indicate that
appellant could not perform her light-duty work, nor do these notes indicate that her condition
had worsened. Furthermore, these notes are not entitled to any weight as they do not contain a
legible signature by a physician.
Accordingly, the Board finds that appellant has not submitted sufficient rationalized
medical evidence to establish a spontaneous change in her accepted conditions preventing her
from being able to perform her light-duty position. Furthermore, appellant has not shown a
change in the nature and extent of the light-duty job requirements.8
CONCLUSION
The Board finds that appellant failed to establish a recurrence of disability causally
related to the accepted injury commencing August 14, 2007.

7

See Helen K. Holt, supra note 4.

8

The Board notes that it appears that appellant also claimed a recurrence of disability for intermittent periods
between April and August 2007. However, as the Office’s decision of November 19, 2007 only addresses the issue
of disability after August 14, 2007, this is the only issue before the Board.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 19, 2007 is affirmed.
Issued: August 8, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


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

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Appearances:
Ron Watson, for the appellant
No appearance, for the Director

Docket No. 11-1045
Issued: January 19, 2012

Oral Argument August 23, 2011

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

JURISDICTION
On March 17, 2011 appellant, through his representative, filed a timely appeal of an
Office of Workers’ Compensation Programs’ (OWCP) decision dated March 10, 2011. 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 OWCP properly denied modification of the November 26, 2003
wage-earning capacity determination.
FACTUAL HISTORY
Appellant, a 54-year-old letter carrier, filed a Form CA-2 claim for benefits on March 12,
2003, alleging that he sustained a bilateral foot condition causally related to employment factors.

1

5 U.S.C. § 8101 et seq.

OWCP accepted the claim for aggravation of bilateral pes planus deformity.
compensation benefits for total disability.

It paid him

On September 18, 2003 appellant accepted a modified, rehabilitation position as a carrier
technician. The job was tailored to his physical restrictions and allowed him to work for eight
hours per day, with route walking not exceeding two hours per shift, standing not exceeding two
consecutive hours, with a 15-minute break between periods of standing. The offer stated that “If
you accept this job offer, the effective date will be October 4, 2003.”
By decision dated November 26, 2003, OWCP issued a formal wage-earning capacity
decision. It found that appellant had worked more than 60 days in the modified position and that
the actual wages he earned in the modified position of carrier technician, $829.46 per week,
fairly and reasonably represented his wage-earning capacity.
Appellant worked at his modified job until June 1, 2010. By letter dated June 17, 2010,
OWCP advised him that it had received a Form CA-7 claim for wage-loss compensation from
him, claiming compensation as of June 1, 2010 under claim numbers xxxxxx915 and
xxxxxx950.2 It stated that the available evidence showed that the employing establishment had
withdrawn specific hours of appellant’s limited-duty assignment effective June 1, 2010, as part
of its National Reassessment Process. OWCP informed him that, if he believed modification of
the November 26, 2003 loss of wage-earning capacity (LWEC) determination was warranted, he
needed to submit factual evidence, legal argument or medical evidence in support of his claim.
Appellant submitted a March 17, 2003 surgical report, which indicated that he underwent
a first metacarpal fusion procedure of the right foot. Dr. Snehal C. Dalal, Board-certified in
orthopedic surgery, performed the procedure to ameliorate first metatarsophalangeal
degenerative arthritis of the right foot. He also submitted several progress reports from his
treating physician, Daniel S. Toutant, a specialist in podiatry, from 2009 and 2010.
By decision dated July 30, 2010, OWCP denied modification of its November 26, 2003
LWEC decision. It denied appellant’s claims for wage-loss compensation, finding that he failed
to submit evidence sufficient to establish one of the three criteria required to modify the LWEC
decision.
By letter dated January 26, 2011, appellant, through his representative, requested a
review of the written record.
By decision dated March 10, 2011, an OWCP hearing representative affirmed the
July 23, 2009 LWEC decision. He found that appellant had failed to establish that the
November 26, 2003 wage-earning capacity warranted modification. The hearing representative
also denied the claim for compensation for wage loss as of June 1, 2010 and continuing.

2

The instant record does not contain a copy of this claim.

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LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.3 Section 8115(a) of FECA provides that, in
determining compensation for partial disability, the wage-earning capacity of an employee is
determined by his actual earnings if his actual earnings fairly and reasonably represent his wageCompensation payments are based on the wage-earning capacity
earning capacity.4
determination and it remains undisturbed until properly modified.5
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.6 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.7
OWCP’s procedure manual provides that factors to be considered in determining whether
the claimant’s work fairly and reasonably represents his wage-earning capacity include the kind
of appointment, that is, whether the position is temporary, seasonal or permanent and the tour of
duty, that is, whether it is part time or full time.8 OWCP procedures provide that a determination
regarding whether actual earnings fairly and reasonably represent wage-earning capacity should
be made after an employee has been working in a given position for more than 60 days.9
ANALYSIS
In its June 17, 2010 and March 10, 2011 decisions, OWCP denied modification of the
November 26, 2003 LWEC determination. It found that the modified carrier technician position
that was the subject of the original LWEC fairly and reasonably represented appellant’s wageearning capacity. Once the wage-earning capacity of an injured employee is determined, a
modification of such determination is not warranted unless there is a material change in the
nature and extent of the injury-related condition, the employee has been retrained or otherwise
vocationally rehabilitated or the original determination was, in fact, erroneous. Appellant’s
representative does not contend that modification of the November 26, 2003 LWEC
3

See Katherine T. Kreger, 55 ECAB 633 (2004). See 5 U.S.C. § 8115 (determination of wage-earning capacity).

4

See 5 U.S.C. § 8115 (determination of wage-earning capacity).

5

5 U.S.C. § 8115(a); Loni J. Cleveland, 52 ECAB 171 (2000).

6

Sharon C. Clement, 55 ECAB 552 (2004).

7

T.M., Docket No. 08-975 (issued February 6, 2009); Tamra McCauley, 51 ECAB 375, 377 (2000).

8

Id.

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7(c) (July 1997).

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determination was warranted due to a material change in the nature and extent of the injuryrelated condition, nor does the evidence establish that he has been retrained or otherwise
vocationally rehabilitated. He contends, rather, that the original determination was, in fact,
erroneous.
The Board finds that the wage-earning capacity determination was erroneous when
issued.
Appellant had been employed in a full-time position as a letter carrier at the time he
became totally disabled due to his accepted aggravation of bilateral pes planus deformity
condition. He assumed the modified carrier technician job which was the basis of the
November 26, 2003 LWEC when he returned to work, effective October 4, 2003. The Board
finds that the November 26, 2003 wage-earning capacity determination was in error. OWCP
failed to follow its procedures in determining that appellant had worked in the position for at
least 60 days. The record establishes that he accepted the modified carrier technician job on
September 18, 2003; the job offer, however, stated that the position did not become effective
until October 4, 2003. Thus the evidence of record supports that appellant did not work in the
position offered by the employing establishment for more than 60 days prior to the
November 26, 2003 OWCP wage-earning capacity determination. The Board, therefore, finds
that OWCP failed to follow its established procedures as it did not show that appellant performed
the modified carrier technician position consistently for 60 days.10 Thus, OWCP failed to meet
its burden of proof. Accordingly, the Board finds that the October 4, 2003 position did not fairly
and reasonably represent appellant’s wage-earning capacity.
CONCLUSION
The Board finds that appellant has met his burden of proof to modify the November 26,
2003 wage-earning capacity decision on the grounds that the original decision was in error, as he
had not worked in the October 4, 2003 position for 60 days before OWCP issued the
November 26, 2003 wage-earning capacity decision. Accordingly, the Board finds that OWCP
improperly denied modification of the November 26, 2003 wage-earning capacity determination.

10

See Amalia Stys, Docket No. 96-521 (issued June 9, 1998) (where the Board found that, as the claimant was
terminated after 56 days of employment, she did not have 60 days of actual wages from which OWCP could derive a
fair and reasonable representation of her wage-earning capacity).

4

ORDER
IT IS HEREBY ORDERED THAT the March 10, 2011 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: January 19, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.A., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION -- FEDERAL AIR
MARSHAL SERVICE, Houston, TX, Employer
__________________________________________

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

Docket No. 16-0592
Issued: October 26, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 9, 2016 appellant, through counsel, filed a timely appeal from a
December 8, 2015 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 claim.

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 total disability for
intermittent periods from July 8, 2012 through May 30, 2014, due to the accepted July 4, 2012
employment injury.
FACTUAL HISTORY
This case has previously been before the Board.3 On March 26, 2013 appellant, through
counsel, filed a timely appeal of OWCP’s February 27, 2013 merit decision denying his claim.
The Director of OWCP filed a motion on September 9, 2013 and requested that the Board set
aside OWCP’s February 27, 2013 decision and remand the case for further specified
development.4 In a January 24, 2014 Order Granting Remand, the Board found that, at the time
of the alleged injury, appellant was in the performance of duty. The Board remanded the case to
OWCP to issue a de novo decision following any necessary further development on the nature
and extent of appellant’s employment-related medical condition and any related disability
claimed by appellant. The facts and circumstances as presented in the prior decision are
incorporated herein by reference. The relevant facts follow.
On July 7, 2012 appellant, then a 42-year-old federal air marshal, filed a traumatic injury
claim (Form CA-1) alleging that on July 4, 2012 he slipped on oil while exiting his car, hitting
his back on the car door. The injury occurred in the terminal B parking garage at the Bush
International Airport in Houston, Texas, 30 minutes prior to appellant’s scheduled work time.
On April 11, 2014 OWCP accepted the claim for a lumbar strain.
On November 17, 2014 appellant filed a claim for compensation for wage-loss
compensation (Form CA-7) for the period July 8 through November 30, 2012, as well as for the
period August 27, 2012 through May 30, 2014.
The medical evidence indicates that appellant first sought treatment at a hospital on
July 8, 2012 and was treated for back pain and sciatica by Dr. Chinh Q. Pham, a Board-certified
family practitioner. The history of injury indicated that appellant had slipped and fallen on his
buttocks two days previously, and that he experienced worsening back pain. Appellant was
excused from work from July 8 through 13, 2012 and restrictions were provided upon return to
work.
An authorization for examination and/or treatment (Form CA-16) was signed and issued
by the employing establishment on July 8, 2012 for the July 4, 2012 work injury. Dr. Pham
3

Docket No. 13-1041 (issued January 24, 2014).

4

The Director acknowledged that appellant was in the performance of duty on July 4, 2012 when he slipped on
oil while exiting his car in an employee airport parking garage approximately 30 minutes prior to his report time.
The Director noted that while the employing establishment did not own the garage, it had contracted for the use of
the parking garage where the injury occurred, paid its employee’s parking expenses and the employing
establishment’s employees had to swipe their badges to gain access to the garage, had to display a permit in order to
park, and were required to park in a designated area of the garage.

2

completed the attending physician’s report that same day, wherein he reported degenerative disc
disease based on x-ray testing.5 He diagnosed sciatica and back strain and indicated by checking
a box marked “yes” that the diagnosed conditions were caused or aggravated by the employment
activity. Dr. Pham opined that appellant was able to resume light work on July 15, 2012.
In a July 20, 2012 report, Dr. Jeffrey E. Liang, a Board-certified family practitioner,
noted that appellant was evaluated for low back pain after a slip/fall injury and that his symptoms
had been present for two weeks. The history of injury was noted as occurring on or about July 4,
2012, when appellant slipped on oil while exiting his car. He fell and landed on the car’s door
jamb. A lumbar spine x-ray revealed mild degenerative changes. An impression of degenerative
disc disease and back strain were provided. Appellant was released to activity as tolerated. In a
July 20, 2012 note, Dr. Liang noted that appellant had requested that he be excused from work
until August 8, 2012.
In an August 8, 2012 note, Dr. Mohammad Etminan, an orthopedic surgeon, noted the
history of appellant’s July 4, 2012 work injury. He diagnosed herniated lumbar disc and lumbar
degenerative disc disease. Dr. Etminan indicated that appellant would be undergoing right L5
and right S1 transforaminal injections and was to remain out of work from August 8 through 22,
2012, after which time he could return to full duty. He also referred appellant to physical
therapy for lumbar radiculopathy, herniated lumbar disc, and lumbar strain.
In an August 10, 2012 note, Dr. Candice Burnette, a Board-certified physiatrist, related
that appellant was unable to work, but that he would be able to return to work on
August 24, 2012.
In an August 12, 2012 note, Dr. Pham noted that she reviewed appellant’s July 13, 2012
magnetic resonance imaging (MRI) scan of the lumbar spine. She concluded that appellant
needed to be seen by an orthopedic doctor as soon as possible. Dr. Pham excused appellant from
work from July 13 through 21, 2012.
In an August 23, 2012 note, Dr. Burnette indicated that appellant was under her care for
his medical condition and that he was unable to return to work until further evaluation. In a
September 11, 2012 note, she indicated that appellant was unable to return to work until further
notice.
On October 1, 2012 Dr. Burnette indicated that appellant was able to perform light duty
with restrictions. On October 4, 2012 appellant accepted the employing establishment’s lightduty assignment.
In October 15 and November 19, 2012 reports, Jennifer Parrish, a physician assistant,
provided an assessment of lumbar radiculopathy and lumbar disc disruption.

5

A July 8, 2012 x-ray of the lumbar spine contained an impression of mild degenerative changes of the lumbar
spine with no acute findings. A July 8, 2012 x-rays of the spine coccyx and pelvis revealed minimal degenerative
changes about the pelvis with no acute abnormalities about the sacrum or coccyx.

3

In a November 26, 2012 report, Dr. Kenneth Alo, an anesthesiologist, diagnosed lumbar
radiculopathy and disc disruption and indicated a lumbar discectomy and decompression were
medically necessary. On November 20, 2012 appellant underwent L3-4 discectomy and neural
decompression, which was authorized by OWCP.
In a December 20, 2012 report, Dr. Vladimir Redko, a Board-certified anesthesiologist,
related appellant’s history of injury. He noted that MRI scan of the lumbar spine demonstrated
multilevel herniated discs. Appellant therefore underwent epidural steroid injections and then
lumbar discectomy on November 20, 2012. Dr. Redko related that, while appellant’s leg pain
improved, his back pain radiating to the thigh and hip did not get better. He concluded that
appellant should remain off work. In an April 1, 2013 report, Dr. Redko indicated that appellant
could return to light-duty work.
On April 22, 2013 appellant underwent revision L3-4 and L4-5
hemilaminotomies, with foraminotomies with medial facetectomies and
foraminotomies. The record does not reflect that this procedure was authorized.

bilateral
bilateral

In July 2 and 16, 2013 reports, Sarah Ngo, a physician assistant, diagnosed displacement
of L4 disc without myelopathy, lumbago, and radiculopathy, status/post revision lumbar
decompression L3-4, L4-5 on April 22, 2013.
Appellant returned to limited duty in May 2013 and stopped work again in August 2013.
In May 2014 he was removed from his employment due to his inability to perform his regular
duties.
By letter dated November 28, 2014, OWCP requested additional medical evidence
establishing appellant’s disability for work during the periods claimed. It noted that the record
revealed diagnosis of herniated lumbar disc, which is not an accepted condition. OWCP also
noted that appellant was claiming disability due to a worsening of his accepted work-related
condition and that a comprehensive medical report from a physician, which included the history
of his injury and a thorough explanation with objective findings, was necessary to show how his
condition worsened such that he was no longer able to perform the duties of his position.
Appellant was afforded 30 days to submit the additional evidence.
On December 8, 2014 OWCP accepted the additional condition of displacement of
lumbar intervertebral disc without myelopathy.
By decision dated February 19, 2015, OWCP denied appellant’s claim for compensation
for intermittent periods from July 8, 2012 through May 30, 2014. It found that he had not
submitted any medical opinion evidence that supported disability during the claimed periods as a
result of the July 4, 2012 work injury.
On March 3, 2015 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative. The hearing was held on September 17, 2015. At the hearing,
appellant indicated that OWCP did not pay for any of his surgeries and his physicians now
recommended a fusion procedure for his back condition.

4

Duplicative medical evidence, previously of record, was resubmitted. In a September 24,
2015 report, Dr. Robert A. Mohr, a Board-certified orthopedic surgeon, noted the history of the
July 4, 2012 work injury, appellant’s medical course, and that he still suffered pain following
surgery. An impression of sciatica, postlaminectomy syndrome lumbar region, lumbar
radiculitis, lumbar spinal stenosis, and lumbago were provided. Dr. Mohr indicated that he
would provide a letter of medical causation. No further information was received.
By decision dated December 8, 2015, an OWCP hearing representative affirmed
OWCP’s February 19, 2015 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden 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.6 The term disability is
defined as the incapacity because of an employment injury to earn the wages the employee was
receiving at the time of the injury, i.e., a physical impairment resulting in loss of wage-earning
capacity.7
Whether a particular injury causes an employee to be disabled from employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative, and substantial medical evidence.8 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled from work. When a
physician’s statements regarding an employee’s ability to work consist only of repetition of the
employee’s complaints that he or she hurt too much to work, without objective findings of
disability being shown, the physician has not presented a medical opinion on the issue of
disability or a basis for payment of compensation.9 The Board will not require OWCP to pay
compensation for disability in the absence of any medical evidence directly addressing the
specific dates of disability for which compensation is claimed. To do so would essentially allow
employees to self-certify their disability and entitlement to compensation.10
ANALYSIS
The Board finds that appellant has not submitted the necessary medical opinion evidence
to establish total disability during the intermittent periods from July 8, 2012 through May 30,
2014 due to the July 4, 2012 employment injury.

6

G.T., 59 ECAB 447 (2008); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

7

20 C.F.R. § 10.5(f); see, e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).
8

See Fereidoon Kharabi, 52 ECAB 291 (2001).

9

Id.

10

Id.

5

OWCP accepted that appellant’s slip and fall on July 4, 2012 resulted in a lumbar strain
and later displacement of lumbar intervertebral disc without myelopathy. In November 2012
appellant underwent authorized right and left L3-4 discectomies and, on April 22, 2013, he
underwent revision L3-4 and L4-5 hemilaminectomies with revision L3-4 and L4-5 disectomies.
Appellant has not met his burden of proof to establish his claim for intermittent periods
of disability as the physicians of record failed to provide a clear medically-reasoned explanation
as to why appellant could not work full time for the specific claimed periods because of the
July 4, 2012 work injury.11
The emergency room report of July 8, 2012 from Dr. Pham noted the history of injury
and diagnosed back pain and sciatica. While the report indicated that appellant was excused
from work from July 8 through 13, 2012, there was no medical rationale supported by objective
findings as to why appellant was unable to work.12
On the Form CA-16, Dr. Pham diagnosed sciatica and back strain, which he indicated by
checking a box marked “yes” that such diagnosed conditions were caused or aggravated by the
employment activity. He opined that appellant was able to resume light work on July 15, 2012.
Sciatica however is not an accepted condition. The Board has held that a report that addresses
causal relationship with a check mark, without more by way of medical rationale, is of
diminished probative value.13
In his July 20, 2012 report, Dr. Liang noted the history of injury and diagnosed
degenerative disc disease and back strain. He released appellant to activity as tolerated.
Dr. Liang reported in a July 20, 2012 note, that appellant requested that he be excused from work
until August 8, 2012, however, he did not follow appellant’s request.
In an August 8, 2012 note, Dr. Etminan noted the history of appellant’s July 4, 2012
injury and diagnosed herniated lumbar disc and lumbar degenerative disc disease. He indicated
that appellant would be undergoing right L5 and right S1 transforaminal injections and would be
off work from August 8 through 22, 2012. However, Dr. Etminan failed to provide a medical
opinion, supported by rationale and objective findings, that being off work for that period of time
was related to the accepted condition.14
Several notes were provided by Dr. Burnette in August and September 2012 indicating
that appellant was unable to work. However, no diagnosis or medical rationale was provided
supported by objective findings as to why appellant was unable to work. Furthermore, the

11

Supra note 8.

12

The Board has held that medical conclusions unsupported by medical rationale are of diminished probative
value. See S.C., Docket No. 16-0284 (issued June 27, 2016).
13

A.B., Docket No. 16-0556 (issued June 23, 2016).

14

Supra note 8.

6

medical evidence must directly address the specific dates of disability for work for which
compensation is claimed.15
In an August 12, 2012 note, Dr. Pham excused appellant from work from July 13
through 21, 2012. While she noted that appellant needed to see an orthopedic doctor based on
his July 13, 2012 MRI scan of the lumbar spine, no discussion of either the results of the July 13,
2012 MRI scan or the causal relationship of the findings of the MRI scan to the accepted work
incident were provided. On October 1, 2012 Dr. Burnette indicated that appellant was able to
perform light duty with restrictions. Lacking medical rationale to explain why appellant was
totally disabled, this opinion from Dr. Pham is of limited probative value.16
In his November 26, 2012 report, Dr. Alo indicated that appellant needed a lumbar
discectomy and decompression, but failed to offer an opinion on causation or disability. In his
December 20, 2012 report, Dr. Redko indicated that appellant was to remain off work, but failed
to provide any medical rationale as to why. These reports did not directly address the specific
dates of disability for which compensation is claimed, with medical rationale explaining why
appellant was totally disabled.17 On April 1, 2013 Dr. Redko advised that appellant could return
to work light duty. Causal relationship was not addressed.18
In his September 24, 2015 report, Dr. Mohr noted the history of the July 4, 2012 work
injury and found that he still suffered pain following surgery. While he provided an impression
of sciatica, postlaminectomy syndrome lumbar region, lumbar radiculitis, lumbar spinal stenosis,
and lumbago, he failed to offer an opinion as to the causal relationship of such conditions and
whether appellant was disabled from those conditions.19
As noted, appellant must submit rationalized medical evidence supporting causal
relationship between the disabling condition and the accepted injury. Furthermore, the medical
evidence must directly address the specific dates of disability for work for which compensation
is claimed.20 The need for medical rationale is particularly important where the record shows
that appellant has a preexisting degenerative disc disease condition. The physicians also appear
to base appellant’s inability to work on his subjective complaints. A complaint of too much pain
to work without more support does not establish disability for work.21 None of the physicians of
record provided a discussion of how any objective medical findings attributable to the accepted

15

C.S., Docket No. 08-2218 (issued August 7, 2009); Sandra D. Pruitt, 57 ECAB 126 (2005).

16

Id.

17

Id.

18

See T.P., Docket No. 14-1946 (issued February 13, 2015).

19

Id.

20

See supra note 14.

21

See L.A., Docket No. 08-1988 (issued April 8, 2009) (a conclusion based on appellant’s subjective complaints
of pain rather than on any objective tests is insufficient to establish a claim).

7

conditions supported that appellant could not perform his job duties for the specific claimed
periods.
Appellant also provided reports from physician assistants. These documents do not
constitute competent medical evidence as they are not from a physician.22
On appeal, counsel argues that OWCP’s decision is contrary to fact and law. However,
as found, appellant has not submitted any rationalized medical evidence to support his claims for
wage-loss compensation as the medical evidence submitted did not provide sufficient medical
reasoning to support that appellant had work-related disability for specific claimed periods.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.605 and 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish total
disability for intermittent periods from July 8, 2012 through May 30, 2014 due to the July 4,
2012 employment injury.

22

L.L., Docket No. 13-829 (issued August 20, 2013) (a physician assistant is not a physician under FECA). See 5
U.S.C. § 8101(2). This subsection defines the term physician. See also Charley V.B. Harley, 2 ECAB 208, 211
(1949) (where the Board held that medical opinion, in general, can only be given by a qualified physician).

8

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 8, 2015 is affirmed.
Issued: October 26, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
WASHINGTON FIELD OFFICE, Chantilly, VA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Capp P. Taylor, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-1233
Issued: October 1, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On May 12, 2015 appellant, through counsel, filed a timely appeal from an April 14,
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 the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that his shoulder
condition was causally related to factors of his federal employment.
FACTUAL HISTORY
On April 10, 2014 appellant, then a 45-year-old supervisory federal air marshal, filed an
occupational disease claim (Form CA-2) alleging right shoulder pain that radiated to his right
1

5 U.S.C. § 8101 et seq.

hand while participating in squad training on April 7 and 8, 2014.2 He did not immediately stop
work, but did miss intermittent periods before stopping work completely on June 1, 2014.
Within an April 16, 2014 letter, OWCP informed appellant that the evidence of record
was insufficient to support his claim. It advised him to provide a medical report containing a
physician’s opinion supported by a medical explanation as to how work factors caused or
aggravated a diagnosed condition. A similar developmental letter was sent to the employing
establishment.
In an April 22, 2014 attending physician’s report with a preprinted date of April 10, 2014
(Form CA-20), Dr. Michael Kavanagh, a Board-certified orthopedic surgeon, related that
appellant injured his right shoulder while sparring and listed the date of injury as April 18, 2014.3
The report indicates that x-rays were negative for fracture. Dr. Kavanagh diagnosed rotator cuff
dysfunction and possible herniated nucleus pulposus (HNP) at the cervical spine. He noted that
appellant was performing light-duty work due to back surgery and checked the box marked “yes”
to reflect the condition was caused or aggravated by “sparring/punching” in the course of his
employment.
An incident report dated April 15, 2014 reflects that appellant “did not feel well” after
squad training in defensive measures on April 7, 2014. Appellant additionally reported feeling a
“pop” in his left shoulder while performing pull-ups on April 8, 2014.
In an April 22, 2014 report, Anushaya Fitzgerald, a physician assistant, noted that
appellant, while performing physical training, “punched with [his] right arm and felt something
painful in his shoulder.” The next day, appellant noticed increased pain from the shoulder blade
radiating down to the hand when he did pull-ups. Ms. Fitzgerald noted that Dr. Ian
Wattenmaker, a Board-certified orthopedic surgeon, had performed a discectomy and
laminectomy on appellant’s L4-5 and L5-S1 a couple weeks ago. She noted examination
findings and diagnosed radicular pain and numbness in the right arm and rotator cuff
dysfunction, noting that a differential diagnosis would include cervical spine HNP versus a
brachial plexus injury and rotator cuff injury. Ms. Fitzgerald ordered a right shoulder magnetic
resonance imaging (MRI) scan and arthrogram.
Dr. Wattenmaker, in an April 24, 2014 status report, diagnosed appellant with stenosis
HNP and L5 radiculopathy, noting that she had undergone an L4-5 revision laminectomy on
April 16, 2014. He advised that she was at risk for recurring disc herniation.
In a May 29, 2014 report, Dr. Kavanagh reviewed a May 23, 2014 MRI scan, which
revealed a labral tear and no full thickness rotator cuff tears. He advised that appellant’s
symptoms were primarily neurologic. In an attending physician’s report of the same date,
Dr. Kavanagh reported that appellant was injured on April 8, 2014 from sparring/pull-ups. He
diagnosed cervical spine HNP and checked a box “yes” to indicate that appellant’s condition was
2

On April 9, 2014 appellant had completed a Transportation Security Administration Form 1178 and a FECA
rights and responsibilities acknowledgement.
3

Dr. Kavanagh mistakenly listed the date of injury as April 18, 2014.

2

caused or aggravated by his employment. On May 30, 2014 Dr. Kavanagh indicated that
appellant was limited in the physical activities that he could perform.
On July 8, 2014 OWCP denied appellant’s claim, finding the evidence was insufficient to
establish that the events occurred as alleged.
On July 22, 2014 appellant requested an oral hearing. He also submitted additional
medical evidence. In a June 27, 2014 report, Dr. Kavanagh reported that appellant had neck
pain, right arm numbness and tingling, increasing hand weakness, and right hand diffuse
weakness and reiterated the diagnosis of right shoulder labrum tear and cervical spine HNP and
that appellant’s condition was caused or aggravated by his employment.
On June 30, 2014 Dr. Kavanagh found appellant capable of performing limited duties,
such as answering telephones, using a computer, and greeting visitors. He found appellant
unable to work until an August 1, 2014 appointment. Dr. Kavanagh continued to submit updated
work status reports consistent with his earlier findings.
In a July 29, 2014 report, Dr. Raymond Chang, Board-certified in diagnostic radiology
and neuroradiology, found a mild disc bulging at C2-3 and C3-4 and mild diffuse disc bulging
and uncovertebral and facet joint hypertrophy with severe right, and mild left, neural foraminal
stenosis at C5-6.
Dr. Wattenmaker, in an August 28, 2014 prescription note, declared that appellant was
unable to work until further examination regarding his arm pain.
An oral hearing was held on February 12, 2015. Appellant testified that he was required
to participate in squad training for 40 hours per quarter. On April 7, 2014 during squad training,
he experienced shoulder pain after striking a heavy bag. While performing pull-ups on April 8,
2014, appellant felt a “pop” and significant pain in his shoulder. He confirmed undergoing
surgery on April 16, 2014 for a preexisting lower back condition.
Subsequent to the hearing, appellant provided evidence from Dr. Ali Moshirfar, a Boardcertified orthopedic surgeon, to whom appellant was referred by Dr. Kavanagh. By report dated
September 24, 2014, Dr. Moshirfar related that appellant presented with right-sided neck and
trapezial pain, and radiculopathy in the right arm and forearm. Appellant attributed his
conditions to training and sparring on April 8, 2014. Dr. Moshirfar noted that appellant was
recovering from lumbar disc surgery. Upon reviewing a July 29, 2014 MRI scan, he observed, at
C5-6, a disc osteophyte complex with a slight disc bulge causing moderate right foraminal
narrowing and mild left foraminal narrowing. Physical examination revealed slightly limited
cervical range of motion and mild evidence of trapezial and paraspinal muscular tightness.
Dr. Moshirfar diagnosed pain in limb, displacement of cervical intervertebral disc without
myelopathy, cervicalgia, and brachial neuritis or radiculitis not otherwise specified. OWCP
received similar follow-up reports from him dated October 22 and 29, and November 25, 2014.
Dr. Moshirfar, in October 31, 2014 work status notes, advised that appellant was not
medically cleared to perform physical activity. He diagnosed cervical disc herniation,
radiculopathy, and weakness. On the same date, in an attending physician’s report,

3

Dr. Moshirfar checked a box “yes” to indicate that appellant’s condition was caused by work
activity and noted that appellant had a strenuous and difficult job.
On December 1, 2014 Dr. Moshirfar performed a C5-6 anterior cervical discectomy and
right foraminal decompression and foraminotomy. He saw appellant for postsurgery follow-up
examinations on December 17, 2014, January 7 and 28, and February 10, 2015. Appellant
continued to show moderately limited cervical range of motion and mild evidence of trapezial
and paraspinal muscular tightness. Dr. Moshirfar diagnosed cervical spondylosis without
myelopathy, displacement of cervical intervertebral disc without myelopathy, cervicalgia,
brachial neuritis or radiculitis, and lumbago.
In a February 4, 2015 cervical spine MRI scan report, Dr. Jeffrey Troy, Board-certified in
diagnostic radiology and neuroradiology, diagnosed multilevel degenerative disc disease with
grossly mild canal stenosis, and multilevel neural foraminal encroachment on the right at C5-6
and on the left at C3-4 and C4-5.
In a February 18, 2015 report, Dr. Moshirfar noted first seeing appellant in the latter part
of 2014 with complaints of neck pain with radicular symptoms going down the right arm and
hand. He related that most people of appellant’s age would have some degree of disc
degeneration. However, Dr. Moshirfar observed that appellant’s condition at C5-6 indicated
severe right-sided neural foraminal stenosis, correlating with the radicular symptomatology. He
reported that appellant was asymptomatic prior to April 8, 2014 and opined that the force of the
pull-ups placed additional stress on the cervical spine, thereby damaging the cervical spine or
aggravating the degenerative condition causing severe arm pain and weakness that necessitated
surgery. Dr. Moshirfar advised that, if such a condition had existed before the pull-up event, the
radicular symptoms would have existed before such event. He stated that this event aggravated
the foraminal stenosis which may have existed to an extent but was asymptomatic before the
pull-up event. Dr. Moshirfar related that the force of performing pull ups increased the
inflammation causing pressure on the nerve root which manifested itself with the radicular
symptoms. When conservative treatment did not alleviate the condition, he performed a fusion
at C5-6. Dr. Moshirfar advised that appellant had continued postsurgical complaints of
weakness and discomfort. In February 18, 2015 work status notes, he advised that appellant was
unable to engage in regular or light-duty work. In an attending physician’s report dated
February 18, 2015, Dr. Moshirfar checked a box “yes” to indicate that appellant’s condition was
caused by work activity and noted that appellant had a strenuous job.
Dr. Kavanagh, in a February 19, 2015 report, noted that a May 23, 2014 MRI scan
revealed degenerative changes in appellant’s right shoulder. He diagnosed superior labral tear
from anterior to posterior (SLAP) tear of the superior labrum and tendinitis. Dr. Kavanagh
opined that when appellant struck the heavy bag on April 7, 2014, it was “more than likely” the
“beginning of the diagnosed tear, as well as the [tendinitis] or inflammation.” According to him,
the pull-ups on April 8, 2014, would have caused additional stress on appellant’s right shoulder
and neck, causing further “damage to the tear and [tendinitis]. Dr. Kavanagh noted that
“additional stress would have been placed on [appellant’s] cervical spine” because the damaged
shoulder was unable to absorb the stress of the pull-ups.

4

By decision dated April 14, 2015, OWCP’s hearing representative found that the
employment events occurred as alleged, but denied the claim finding that the medical evidence
was insufficient to establish that the work events caused the claimed conditions.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence,4 including that he or she is an employee within the meaning of FECA5 and that he or
she filed his or her claim within the applicable time limitation.6 The employee must also
establish that he sustained an injury in the performance of duty as alleged and that his disability
for work, if any, was causally related to the employment injury.7
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.8
Causal relationship is a medical issue9 and the medical evidence generally required to
establish causal relationship is rationalized medical 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 diagnosed condition and the specific employment factors
identified by the employee.10
ANALYSIS
OWCP accepted that appellant participated in squad training, performing striking
exercises and pull-ups, on April 7 and 8, 2014. The Board finds, however, that the medical
evidence of record is insufficient to establish a causal relationship between appellant’s cervical
and right upper extremity injuries and his accepted employment activities on April 7 and 8, 2014.

4

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

5

See M.H., 59 ECAB 461 (2008); see 5 U.S.C. § 8101(1).

6

R.C., 59 ECAB 427 (2008); see 5 U.S.C. § 8122.

7

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

8

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

9

Mary J. Briggs, 37 ECAB 578 (1986).

10

Victor J. Woodhams, 41 ECAB 345 (1989).

5

In a February 19, 2015 report, Dr. Kavanagh diagnosed tendinitis and a SLAP tear of the
superior labrum. He opined that the pull-ups on April 8, 2014, caused “additional strain on the
shoulder which was already damaged … from the previous day.” Dr. Kavanagh went on to state
that appellant’s action of striking a heavy bag on April 7, 2014 was “more than likely” the
beginning of the diagnosed tear.11 By framing his opinion in speculative terms, his report does
not definitively convey when or how appellant suffered injury. It is unclear if appellant
sustained tendinitis and the SLAP tear from a traumatic event on April 8, 2014 or from an
occupational disease on April 7 and 8, 2014. Moreover, while Dr. Kavanagh noted that
degenerative changes in appellant’s right shoulder made him “susceptible to the injury,” he did
not opine whether the degenerative condition affected the injury. Because his opinion is
equivocal and not fully rationalized, it is insufficient to establish appellant’s claim.
In attending physician’s reports dated April 22 to September 29, 2014, Dr. Kavanagh
noted appellant’s history of injury as sparring/pull-ups. He diagnosed right shoulder labrum tear
and cervical HNP and checked “yes” that the condition was caused or aggravated by
employment. The Board has held that a checkmark or affirmative notation in response to a form
question on causal relationship is insufficient to establish causal relationship.12 Other medical
reports completed by Dr. Kavanagh, dated May 29 and June 27 2014, provided diagnoses and
examination findings. However, these reports failed to offer any opinion as to the cause of
appellant’s condition. 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.13
Accordingly, Dr. Kavanagh’s reports are insufficient to establish appellant’s claim.
In a February 18, 2015 statement, Dr. Moshirfar diagnosed right-sided neural foraminal
stenosis with radicular symptomatology. Based on appellant’s history, he noted that appellant
was asymptomatic prior to performing pull-ups on April 8, 2014. Dr. Moshirfar opined that
stress from the pull-ups damaged the cervical spine or aggravated his degenerative condition.
The Board initially notes that by not mentioning the April 7, 2014 incident in which appellant
struck a heavy bag and allegedly experienced right shoulder pain Dr. Moshirfar provided an
incomplete history. Without an accurate history of injury, this report is not based upon a
complete and factual background and is therefore of limited probative value in establishing
appellant’s claim.14 Furthermore, the Board has held that an opinion that a condition is causally
related because the employee was asymptomatic before the injury is insufficient, without
adequate rationale, to establish causal relationship.15 While Dr. Moshirfar provided some
additional support, he did not explain his conclusions in a rationalized manner. In one instance,
he opined that appellant did not suffer right-sided neural foraminal stenosis prior to April 8,
11

See T.H., Docket No. 15-311 (issued June 2, 2015) (physician’s opinion that employee’s injury was “most
likely” attributable to work factors was considered speculative and insufficient to establish claim); Ricky E. Storms,
52 ECAB 349 (2001) (medical opinions which are speculative or equivocal in character have little probative value).
12

See e.g., M.D., Docket No. 14-1981 (issued June 24, 2015).

13

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

14

B.H., Docket No. 10-907 (issued November 9, 2010).

15

T.M., Docket No. 08-975 (issued February 6, 2009).

6

2014; in another, he stated that the foraminal stenosis “may have existed to an extent.” In this
case, the need for a clear rationale is particularly important given appellant’s underlying cervical
disc degeneration.
In October 31, 2014 and February 18, 2015 attending physician’s reports, Dr. Moshirfar
checked “yes” to the question of whether appellant’s conditions were work related. As noted, a
checkmark or affirmative notation in response to a form question on causal relationship is not
sufficient to establish causal relationship. Dr. Moshirfar did not address the specific factors of
employment that he believed caused appellant’s condition or present a detailed reasoning to
support his opinion.16 His September 24, 2014 report, relates that appellant complained of neck
and arm pain which appellant attributed to training and sparring on April 8, 2014. The Board
finds that Dr. Moshirfar merely conveyed the history of injury as reported by appellant. A
physician’s opinion regarding causal relationship that appears to be primarily based on
appellant’s own representations rather than on objective medical findings is of limited probative
value.17 Other reports from Dr. Moshirfar are of limited probative value as they do not address
whether appellant’s employment caused or contributed to the diagnosed conditions.18
The remainder of the medical evidence is insufficient to discharge appellant’s burden of
proof as it does not offer any opinion regarding the cause of his conditions.19
OWCP also received an April 22, 2014 report completed by a physician assistant. Such
reports are entitled to no probative weight as physician assistants are not considered physicians
as defined under FECA.20
On appeal, counsel contends that Drs. Moshirfar and Kavanagh sufficiently articulated
that appellant’s injuries were work related. While counsel correctly asserts that it is not
necessary that a physician’s opinion be so conclusive as to suggest causal connection beyond all
possible doubt,21 as explained above, the reports of Drs. Moshirfar and Kavanagh are insufficient
to establish appellant’s claim. The Board finds that OWCP properly denied appellant’s 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.

16

Solomon Polen, 51 ECAB 341 (2000) (rationalized medical evidence must relate specific employment factors
identified by the claimant to the claimant’s condition, with stated reasons by a physician).
17

See C.G., Docket No. 14-1430 (issued November 7, 2014).

18

See supra note 12.

19

See id.

20

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. § 8102(2); Lyle E.
Dayberry, 49 ECAB 369 (1998).
21

Kenneth J. Deerman, 34 ECAB 641 (1983).

7

CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that his
claimed injuries were causally related to his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the April 14, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 1, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Grand Rapids, MI, Employer
__________________________________________

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

Docket No. 07-1876
Issued: June 12, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 10, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated April 20, 2007 reducing her compensation
pursuant to 5 U.S.C. § 8113(b). Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly reduced appellant’s compensation to zero
pursuant to 5 U.S.C. § 8113(b) for failure to undergo vocational rehabilitation.
FACTUAL HISTORY
The Office accepted that appellant sustained a right ankle contusion, right heel spur
syndrome, right plantar fasciitis, right tarsal tunnel syndrome and reflex sympathetic dystrophy
in the performance of duty on October 16, 1991. Appellant’s employment as a casual clerk was
terminated on March 31, 1992. She returned to part-time work as a mark-up clerk in
December 1994 and stopped working on February 5, 2001. A second opinion osteopath,

Dr. A. Ronald Rook, stated in a July 8, 2003 report that appellant was capable of working in a
sedentary job.
By letter dated January 5, 2005, the Office referred the case to a vocational rehabilitation
counselor, Mr. Riley. In a report dated March 8, 2005, Mr. Riley reviewed the evidence and
indicated there was a January 18, 2005 home visit for an initial vocational assessment. He
placed three telephone calls to appellant on February 4, 2005 to discuss an indication by the
employing establishment that she had been terminated for failure to provide adequate medical
evidence on disability. Mr. Riley reported that appellant did not answer her telephone, and he
left messages on February 5 and 8, 2005, but she did not respond. The rehabilitation counselor
stated that appellant was not cooperating with vocational rehabilitation services, and he noted
that she had sent a letter withdrawing her consent to release medical records.1
The Office advised appellant by letter dated May 11, 2005 that the rehabilitation
specialist had indicated that she was not cooperating with rehabilitation services. Appellant was
advised of the provisions of 5 U.S.C. § 8113(b) and 20 C.F.R. § 10.519 regarding her failure to
undergo vocational rehabilitation when so directed.
In a report dated May 27, 2005, Mr. Riley indicated that he had attempted to contact
appellant by telephone on May 20 and 23, 2005. He advised that he had not been able to speak
to appellant, but her mother had become abusive and accused him of trying to take appellant’s
medications away. By letter to appellant dated May 27, 2005, Mr. Riley advised her of a
scheduled meeting on June 3, 2005 at a restaurant close to her residence. He also noted that he
had no authority to take any medications away as only a physician could make such a
determination. By report dated June 21, 2005, Mr. Riley indicated that appellant did not appear
for the June 3, 2005 meeting. He stated that she had not cooperated with vocational
rehabilitation services and the file was placed on hold.
By letter dated July 12, 2005, the Office again advised appellant of the consequences of
failure to undergo vocational rehabilitation when directed. It stated that she should contact the
Office and the rehabilitation counselor within 30 days, or provide reasons for not participating.
On September 12, 2005 the Office received a September 1, 2005 letter from appellant regarding
a request for a lump-sum payment of compensation. Appellant did not discuss the vocational
rehabilitation efforts.
By decision dated September 30, 2005, the Office reduced appellant’s compensation to
zero for failure to undergo vocational rehabilitation when directed. Appellant requested a review
of the written record. She alleged that Mr. Riley had told her she would have to agree to stop
receiving nerve blocks and medication, and that she needed no further medical treatment.
In a decision dated March 24, 2006, the Office hearing representative affirmed the
September 30, 2005 decision.
By letter dated March 10, 2007, appellant requested

1

The record contains a January 19, 2005 letter from appellant withdrawing consent to release medical records to
Mr. Riley because he requested a new report about her work restrictions. She stated that she would be submitting a
new medical report and there was no reason to review the entire medical record, as Mr. Riley was not a physician.

2

reconsideration of her claim. She argued there was “clear evidence of error” in the reduction of
her compensation as vocational efforts were unnecessary and improper.
By decision dated April 20, 2007, the Office reviewed the case on its merits and denied
modification. It found that appellant did not cooperate with vocational rehabilitation services.
LEGAL PRECEDENT
Under the Federal Employees’ Compensation Act, the Secretary of Labor may direct a
permanently disabled individual whose disability is compensable to undergo vocational
rehabilitation.2 The Act further provides:
“If an individual without good cause fails to apply for and undergo vocational
rehabilitation when so directed under section 8104 of this title, the Secretary, on
review under section 8128 of this title and after finding that in the absence of the
failure the wage-earning capacity of the individual would probably have
substantially increased, may reduce prospectively the monetary compensation of
the individual in accordance with what would probably have been his wageearning capacity in the absence of the failure, until the individual in good faith
complies with the direction of the Secretary.”3
Section 10.519 of the implementing regulations of 5 U.S.C. § 8113(b), provides in
pertinent part:
“If an employee without good cause fails or refuses to apply for, undergo,
participate in, or continue to participate in a vocational rehabilitation effort when
so directed, [the Office] will act as follows:”
***
“(b) Where a suitable job has not been identified, because the failure or refusal
occurred in the early but necessary stages of a vocational rehabilitation effort (that
is, meetings with the [the Office] nurse, interviews, testing, counseling, functional
capacity evaluations, and work evaluations) [the Office] cannot determine what
would have been the employee’s wage-earning capacity.
“(c) Under the circumstances identified in paragraph (b) of this section, in the
absence of evidence to the contrary, [the Office] will assume that the vocational
rehabilitation effort would have resulted in a return to work with no loss of wageearning capacity, and [the Office] will reduce the employee’s monetary
compensation accordingly (that is, to zero). This reduction will remain in effect

2

5 U.S.C. § 8104(a).

3

5 U.S.C. § 8113(b).

3

until such time as the employee acts in good faith to comply with the direction of
[the Office].”4
ANALYSIS
The Office in this case directed appellant to undergo vocational rehabilitation pursuant to
5 U.S.C. § 8104. The purpose of rehabilitation services is to assist injured workers in a return to
work.5 Appellant did not participate in the vocational rehabilitation effort. According to the
rehabilitation counselor, there was an initial assessment on January 18, 2005, but she failed to
respond to repeated telephone messages after that date. Appellant also failed to appear for a
June 3, 2005 meeting with the rehabilitation counselor, and failed to contact the counselor when
directed by the Office. The Office’s procedure manual provides that specific instances of
noncooperation with rehabilitation efforts include failure to appear for counseling sessions or
interviews conducted by the rehabilitation counselor.6
The Office provided appellant with an opportunity to either take steps to participate in
vocational rehabilitation or provide reasons for nonparticipation. Appellant offered no valid
reasons for her failure to participate in vocational rehabilitation. She alleged that Mr. Riley told
her she would have to stop nerve blocks and medication, but there is no evidence to support this
contention. As Mr. Riley explained in his May 27, 2005 letter to appellant, only a physician can
make a determination regarding medication or treatment. Appellant also appeared to object to a
review of her medical records by withdrawing her consent to release medical information. A
vocational rehabilitation counselor must have accurate medical information to properly assess
appellant’s ability to work. If appellant had concerns regarding medical records, she could have
discussed this with the counselor. She provided no appropriate reasons for her failure to
participate in vocational rehabilitation.
The Board accordingly finds that appellant without good cause failed to undergo
vocational rehabilitation when so directed under 5 U.S.C. § 8104. Pursuant to 5 U.S.C.
§ 8113(b), the Office may reduce appellant’s compensation in accordance with what would
probably have been her wage-earning capacity in the absence of the failure, until appellant in
good faith complies with the direction of the Secretary.
In this case a suitable job had not been identified, as the failure to participate occurred in
the early but necessary stages of the rehabilitation effort. As noted, there had only been one
initial assessment and no further interviews, conversations or counseling. Under 20 C.F.R.
§ 10.519, in the absence of contrary evidence the Office will assume that the vocational
rehabilitation effort would have resulted in a return to work with no loss of wage-earning

4

20 C.F.R. § 10.519.

5

Federal (FECA) Procedure Manual, Part 3 -- Rehabilitation, Services, Chapter 3.200.1(November 1990).

6

See Sam S. Wright, 56 ECAB 358, 361 (2005); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reemployment: Determining Wage-Earning Capacity, Chapter 2.813.11(a) (November 1996).

4

capacity, and will reduce compensation to zero. Based on the evidence of record the Board finds
that the Office properly reduced appellant’s compensation to zero.7
CONCLUSION
The Office properly reduced appellant’s compensation to zero for failure to participate in
vocational rehabilitation efforts.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 20, 2007 is affirmed.
Issued: June 12, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7

The Board notes that appellant’s March 10, 2007 application for reconsideration used the term “clear evidence
of error.” This is a standard of review for applications for reconsideration that are untimely filed, a standard that is
not applicable in this case. See Alberta Dukes, 56 ECAB 247 (2005).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Des Moines, IA, Employer
__________________________________________

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

Docket No. 12-1779
Issued: February 5, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 14, 2012 appellant filed a timely appeal from June 12, 2012 merit decisions
of the Office of Workers’ Compensation Programs (OWCP) denying his claims for January 10
and April 16, 2008 work injuries. 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 filed timely claims for work injuries on January 10 and
April 16, 2008.
FACTUAL HISTORY
On May 25, 2011 appellant, then a 62-year-old mail carrier, filed a Form CA-1,
traumatic injury and claim for compensation, alleging that he injured his right knee and right
1

5 U.S.C. §§ 8101-8193.

hip due to two falls at 10:00 and 11:00 a.m. on January 10, 2008. He stated, “Slipped on ice
and fell on right knee [illegible]. Cleats caught on ice and fell on right hip and knee.”2
Appellant did not stop work on January 10, 2008. He also filed another Form CA-1 on
May 25, 2011 claiming that at 11:00 a.m. on April 16, 2008 he slipped on mud at work and
sustained a twisting injury to his right knee.3
In letters dated August 9, 2011, the employing establishment controverted appellant’s
claims for work injuries on January 10 and April 16, 2008 indicating that they were not timely
filed. It was noted that he attended a dental appointment on April 16, 2008 and was off work
on sick leave for the whole day.
By letters dated September 1, 2011, OWCP informed appellant of the evidence needed
to support his claims for injury on January 10 and April 16, 2008. It requested that he submit
evidence establishing that he provided timely notification of his claimed work injuries.
In a January 18, 2008 report, Dr. John S. Sinnott, an attending osteopath and Boardcertified family practitioner, obtained a history that appellant fell on his left knee on
January 10, 2008 while on his delivery route. Appellant reported minimal injury due to this
fall, but 30 minutes after the first fall, he fell again and landed on his left hip, hurting his left
groin. On examination, he exhibited tenderness of his right hip and right knee. In a
January 23, 2008 report, Dr. Sinnott provided a similar account of appellant’s reported falls on
January 10, 2008. In a March 1, 2012 letter, he indicated that in reviewing his dictation of
January 18, 2008 it was obvious that he had inadvertently stated that appellant fell on his left
side when he should have stated that he fell on his right side. Dr. Sinnott noted that the
examination was consistent with appellant having fallen on his right side.
In an April 18, 2008 report, Dr. Carl E. Toben, an attending osteopath and Boardcertified family practitioner, stated that appellant reported being in the mud carrying mail and
twisting his right knee the previous day. On May 7, 2008 he stated that appellant reported
significant pain in his right ankle “after being at a military funeral.” The findings of x-ray
testing obtained on May 8, 2008 indicated that appellant reported right ankle pain after he “fell
down steps.” Various abnormalities were found in his right ankle and foot, including a partial
rupture of his right posterior tibial tendon.4 On July 10, 2008 Dr. Toben noted that appellant
2

Jeffrey St. Peter, postmaster at the employing establishment, at the time appellant’s May 25, 2011 claim was
filed, completed the supervisor’s portion of the form. He indicated that appellant’s claim was not timely filed and
stated that he did not receive notice of the claimed injury until August 9, 2011. Mr. St. Peter noted, “Carrier made
comments during both incidents that he was not wearing ice cleats. Appellant also had an incident at home a
couple days earlier where he was scooping snow from his roof and he fell off his ladder. I strongly believe that
the claimed injury was sustained at home.” Mr. St. Peter indicated that appellant retired effective March 31, 2009.
3

On the supervisor’s portion of the form, Mr. St. Peter indicated that appellant’s claim was not timely filed and
stated that he did not receive notice of the claimed injury until August 9, 2011. He noted, “[Appellant] was not
even at work on [April 16, 2008]. He had the day off. Appellant also provided an appointment card for dentist
appointment [at] the time he claims the injury took place.”
4

The findings of May 8, 2008 testing of appellant’s right knee showed several abnormalities including a medial
meniscus tear. On May 15, 2008 appellant underwent a diagnostic arthroscopy and partial synovectomy of his
right knee. It does not appear that the surgery was authorized by OWCP.

2

reported that on or about April 17, 2008 he was carrying mail and twisted his right knee in the
mud while walking. In a September 10, 2009 report, Dr. R.L. Crampton, an attending
podiatrist, indicated that his initial visit with appellant was on April 16, 2008 following “an
injury to his right foot and leg.”
In a February 24, 2009 statement, Mr. St. Peter indicated that appellant was on sick
leave from April 17 to 19, 2008 and was on leave for partial days on April 15 and 16, 2008.
Appellant retired on March 31, 2009. The statement contains a handwritten note, presumably
provided by appellant, which stated, “I hurt my knee on the morning of the 16th. Then went
home.”
In June 25, 2009 statement, Pamela Woelke, former postmaster at the employing
establishment, stated, “This is in regards to [appellant] whom I have known and worked with
for the past 15 years. I became [p]ostmaster in July of 2000 when [appellant] was a full[-]time
carrier in Ida Grove.” She indicated that appellant had always had a problem with casing mail
due to an eye injury he received when he was in the service. Ms. Woelke did not discuss either
of appellant’s claimed injuries.
In an October 13, 2011 statement, Mr. St. Peter stated that the “supervisor” did not have
any direct knowledge of any specific injury incurred by appellant on January 10, 2008. He
noted:
“[Appellant] did fall down twice that day both times failing to follow safety
procedures, but he claimed that he was not injured and just a little sore. He also
notified the [p]ostmaster that he had fallen off of his ladder cleaning snow from
his roof two days prior. [Appellant] wrote and signed a note that he was
refusing to complete a [Form] CA-1. The supervisor was never informed that
the employee was being treated for any injury and there was no OWCP.”
In another October 13, 2011 statement, Mr. St. Peter stated, “The [p]ostmaster has no
knowledge of any injured incurred by [appellant] on April 16th, 2008. The employee was not
even at work on the day in question. The [p]ostmaster has no knowledge of any treatment for
this date, and no OWCP was involved.”
The record contains a memorandum of a telephone call by Mr. St. Peter to OWCP on
December 1, 2011: “[Agency] states that[,] although [claimant] reported the work incident, he
did not report a work[-]related injury within 30 days from [January 10, 2008].”
In an undated statement received on January 23, 2012, appellant contended that he was
at work on April 16, 2008 when he hurt his knee. He filed a complaint in a timely manner, but
he filed a second time because the employing establishment claimed it never received his first
filing. Appellant waited to file the claim a second time because the employing establishment
told him last August that he had to go through the Department of Labor. On a form completed
on January 16, 2012, appellant asserted that he never fell off a ladder. An OWCP official
noted that, during a January 31, 2012 telephone call to OWCP, appellant stated that he had
never scooped snow from his roof or fallen off a ladder at his house. Appellant asserted that
his “[agency] is lying and dishonest.”

3

In a February 3, 2012 decision, OWCP denied appellant’s claim for a January 10, 2008
work injury finding that it was not timely filed under FECA. In a February 9, 2012 decision, it
also denied his claim for a January 10, 2008 work injury because it was not timely filed. In
each decision, OWCP found that appellant did not file a timely traumatic injury claim and that
his immediate supervisor did not receive verbal or written notice of the claimed injury within
30 days.
Appellant disagreed with the decisions and requested a review of the written record
before an OWCP hearing representative. He submitted additional medical records and
treatment notes, including notes detailing foot problems in April 2008. In an April 8, 2008
note, Dr. Toben indicated that appellant was seen on that date for a foot problem.
In two June 12, 2012 decisions, OWCP’s hearing representative affirmed OWCP’s
February 3 and 9, 2012 decisions finding that appellant did not file timely claims for work
injuries on January 10 or April 16, 2008.
LEGAL PRECEDENT
The issue of whether a claim was timely filed is a preliminary jurisdictional issue that
precedes any determination on the merits of the claim.5 In cases of injury on or after
September 7, 1974, section 8122(a) of FECA provides that an original claim for compensation
for disability or death must be filed within three years after the injury or death. Compensation
for disability or death, including medical care in disability cases, may not be allowed if a claim
is not filed within that time unless:
“(1) the immediate superior had actual knowledge of the injury or death within
30 days. The knowledge must be such as to put the immediate superior
reasonably on notice of an on-the-job injury or death; or
“(2) written notice of injury or death as specified in section 8119 was given
within 30 days.”6
Section 8119 of FECA provides that a notice of injury or death shall be given within 30
days after the injury or death; be given to the immediate superior of the employee by personal
delivery or by depositing it in the mail properly stamped and addressed; be in writing; state the
name and address of the employee; state the year, month, day and hour when and the particular
locality where the injury or death occurred; state the cause and nature of the injury, or in the
case of death, the employment factors believed to be the cause; and be signed by and contain
the address of the individual giving the notice.7 Actual knowledge and written notice of injury

5

Charles Walker, 55 ECAB 238 (2004); see Charles W. Bishop, 6 ECAB 571 (1954).

6

5 U.S.C. § 8122(a).

7

Id. at § 8119; Larry E. Young, 52 ECAB 264 (2001).

4

under section 8119 serve to satisfy the statutory period for filing an original claim for
compensation.8
When a traumatic injury definite in time, place and circumstances is involved, the time
for giving notice of injury and filing for compensation begins to run at the time of the incident,
even though the employee may not have been aware of the seriousness or ultimate
consequences of his injury.9 The Board has held that the applicable statute of limitations
commences to run although the employee does not know the precise nature of the
impairment.10
It is well established that proceedings under FECA are not adversarial in nature, and
while the claimant has the burden to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.11
ANALYSIS
Appellant filed a traumatic injury claim on May 25, 2011 alleging that on January 10,
2008 he fell twice while at work and injured his right knee and right hip. He also filed another
traumatic injury claim on May 25, 2011 alleging that on April 16, 2008 he slipped on mud at
work and sustained a twisting injury to his right knee. OWCP denied appellant’s claims for
January 10 and April 16, 2008 injuries on the grounds that both of these claims were untimely
filed.
Appellant did not file his claim for an April 16, 2008 traumatic injury until
May 25, 2011. Therefore, his claim for this injury was not filed within the three-year period of
limitation. Appellant’s claim for an April 16, 2008 injury would still be regarded as timely
under section 8122(a)(1) of FECA if his immediate superior had actual knowledge of the
claimed April 16, 2008 injury within 30 days or under section 8122(a)(2) if written notice of
injury was given to his immediate superior within 30 days as specified in section 8119.12 He
has not presented sufficient evidence that he has satisfied either of these provisions, nor does
the record support a finding that he satisfied either requirement with respect to his claimed

8

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

9

Emma L. Brooks, 37 ECAB 407, 411 (1986).

10

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

11

Dorothy L. Sidwell, 36 ECAB 699, 707 (1985); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

12

See supra note 6.

5

April 16, 2008 injury.13 For these reasons, the Board finds that OWCP properly denied
appellant’s claim for an April 16, 2008 injury because it was untimely filed.14
Appellant did not file his claim for a January 10, 2008 traumatic injury until May 25,
2011 and therefore his claim for this injury was not filed within the three-year period of
limitation.
The Board notes, however, that the evidence of record suggests that appellant might
have reported his claimed January 10, 2008 injury to his supervisor within 30 days, such that
his claim would be considered timely filed within the meaning of FECA. Further development
of the evidence is necessary in order to clarify this matter. As noted, OWCP shares in the
responsibility to develop evidence.15
The record contains several statements about the claimed January 10, 2008 injury
which require clarification. For example, on appellant’s Form CA-1 for the two falls alleged to
have occurred on January 10, 2008, Mr. St. Peter stated, “Carrier made comments during both
incidents that he was not wearing ice cleats.” In an October 13, 2011 statement, Mr. St. Peter
stated that the “supervisor” did not have any direct knowledge of any specific injury incurred
by appellant on January 10, 2008. He noted, “[appellant] did fall down twice that day both
times failing to follow safety procedures, but he claimed that he was not injured and just a little
sore. he also notified the [p]ostmaster that he had fallen off of his ladder cleaning snow from
his roof two days prior.” Mr. St. Peter further stated that appellant wrote and signed a note that
he was refusing to complete a Form CA-1 and that the “supervisor” was never informed that
the employee was being treated for any injury and “there was no OWCP.” The statements
suggest that appellant reported the January 10, 2008 falls (along with some adverse effects)
around the time they occurred, although he is vague with respect to precisely when they were
reported. Mr. St. Peter also referred to both a supervisor and the postmaster, but he did not
provide their identities. He was the postmaster at the time appellant filed his claims on
May 25, 2011, but it is not clear from the record whether he was the postmaster on
January 10, 2008.
The Board finds that clarification is required to determine whether appellant reported
his claimed January 10, 2008 injury in such a manner that his claim would be timely within the
meaning of FECA. The case shall be remanded to OWCP for further evidentiary development

13

Despite appellant’s assertions, there is no indication in the record that he provided a statement to his
immediate superior such that he satisfied the provisions of sections 8119 and 8122(a) of FECA. See supra note 6
and accompanying text. Appellant claimed that he notified his supervisor of the claimed April 16, 2008 injury
shortly after it occurred, but the evidence of record does not support this assertion.
14

On appeal, questioned the veracity (with respect to his claimed April 16, 2008 injury) of the statements of
Mr. St. Peter, who was postmaster when he submitted his claim forms on May 25, 2011. Appellant did not
adequately explain why he felt that Mr. St. Peter’s statements were inaccurate. Mr. St. Peter denied that appellant
reported an April 16, 2008 injury to him within 30 days and asserted that appellant was on sick leave and attended
a dental appointment on April 16, 2008.
15

See supra note 11.

6

in this regard. After such development as it deems necessary, OWCP shall issue an appropriate
merit decision regarding appellant’s claim for a January 10, 2008 work injury.
CONCLUSION
The Board finds that appellant did not timely file a claim for a work injury on April 16,
2008 and that the case is not in posture for decision regarding whether he timely filed a claim
for a work injury on January 10, 2008. The case is remanded to OWCP for further
development regarding the claim for a work injury on January 10, 2008.
ORDER
IT IS HEREBY ORDERED THAT the June 12, 2012 decision of the Office of
Workers’ Compensation Programs pertaining to appellant’s claimed April 16, 2008 injury is
affirmed. The June 12, 2012 decision of OWCP pertaining to his claimed January 10, 2008
injury is set aside and the case remanded to OWCP for further proceedings consistent with this
decision of the Board.
Issued: February 5, 2013
Washington, DC

Richard J. Daschbach, Chief 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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