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

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

Docket No. 17-1950
Issued: April 2, 2018

Case Submitted on the Record

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

JURISDICTION
On September 18, 2017 appellant filed a timely appeal from June 12 and July 19, 2017
merit decisions and an August 30, 2017 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish a right shoulder
injury causally related to factors of her federal employment; and (2) whether OWCP properly
denied appellant’s request for reconsideration of the merits of her claim under 5 U.S.C § 8128(a).

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2

5 U.S.C. § 8101 et seq.

Appellant submitted new evidence on appeal. The Board’s jurisdiction is limited to the evidence that was before
OWCP at the time of its final decision. Therefore, the Board is precluded from considering this new evidence for the
first time on appeal. See 20 C.F.R. § 501.2(c)(1).

On appeal appellant contends that she sustained a work-related right shoulder injury.
FACTUAL HISTORY
On July 11, 2016 appellant, then a 63-year-old rural carrier, filed an occupational disease
claim (Form CA-2) alleging that she developed a torn rotator cuff of the right shoulder. She alleged
that she first became aware of the condition and its relationship to her federal employment on
February 16, 2016. Appellant asserted that working with heavy mail without a rural carrier
associate (RCA) and with a staff shortage caused or aggravated her condition. She stopped work
on July 9, 2016.
In support of her claim, appellant submitted a June 29, 2016 progress note from
Dr. Robert R. Herrington, a Board-certified family practitioner. Dr. Herrington reported that
appellant was a rural mail carrier who presented with right shoulder pain and stated that she fell in
January 2016. Appellant related to him that while getting out of a vehicle, she slipped on a wet
surface and fell forward with both arms flexed, landing on her elbow, and causing pain in her
shoulder. She also related that she opened and closed 500 to 600 mailboxes a day. Appellant had
a prior fall while trying to get back into a vehicle after being rushed by several bulldogs. She
lunged backwards and fell striking her left hip. Appellant still had persistent pain. Dr. Herrington
noted appellant’s medical and family background and discussed findings on physical examination.
He provided an impression of right shoulder and left hip pain, osteoarthritis involving multiple
joints, family history of coronary artery disease, malaise, and fatigue.
In a July 7, 2016 letter, appellant claimed that she had been experiencing worsening pain
for five months or longer. She reiterated the factual history of injury she provided in the July 11,
2016 Form CA-2. Appellant described her right shoulder symptoms and medical treatment. A
copy of an accident report regarding the claimed February 16, 2016 right shoulder injury was
submitted.
OWCP, by development letter dated July 19, 2016, advised appellant of the deficiencies in
her claim and afforded her 30 days to submit additional medical evidence.
OWCP subsequently received a July 21, 2016 prescription that contained an illegible
signature and restricted appellant from heavy lifting of more than 25 pounds.
In a July 25, 2016 right shoulder magnetic resonance imaging (MRI) scan report,
Dr. Juan A. Velez, Jr., a radiologist, provided an impression of partial tears of the supraspinatus
tendon and infraspinatus tendon and torn biceps labral complex.
In an August 1, 2016 work status report form, Dr. Brian E. Humphreys, an attending
orthopedic surgeon, indicated that the date of injury was unknown. He advised that appellant had
a right shoulder condition and that she could return to work with a lifting restriction.
On August 1, 2016 appellant responded to OWCP’s July 19, 2016 development letter. She
restated the history of her claimed February 2016 right shoulder injury.
In a September 6, 2016 work status report, Dr. Humphreys recommended a right shoulder
rotator cuff repair to be performed on September 13, 2016. He advised that appellant could not
2

return to work until he saw her again. On September 21, 2016 Dr. Humphreys reported that she
could return to work on March 7, 2017 with lifting restrictions.
By decision dated September 26, 2016, OWCP denied appellant’s occupational disease
claim. It found that the medical evidence of record did not contain a medical diagnosis in
connection with the accepted employment factors.
Appellant requested reconsideration on October 17, 2016.
She related that on
December 30, 2015 she sustained a right shoulder injury when she slipped and fell as she returned
to her sport utility vehicle after delivering a package at work. Appellant again described her
claimed February 2016 right shoulder injury and reported continuous pain. She contended that her
pain worsened due to repeatedly reaching for 590 boxes every day and working without an RCA.
Appellant first sought medical treatment on June 29, 2016 and had rotator cuff surgery on
September 13, 2016. She noted her restrictions and physical therapy treatment. Appellant
resubmitted Dr. Humphreys’ September 21, 2016 work status report.
In a November 7, 2016 decision, OWCP denied modification of its September 26, 2016
decision. It found that appellant had not submitted a rationalized medical opinion to establish that
her right shoulder condition was causally related to employment factors.
In appeal request forms and letters received on December 5, 2016 and January 3, 2017,
appellant requested reconsideration. In her letters, she contended that she had submitted medical
evidence to establish her claim. Appellant reiterated the factual history of her December 2015 and
February 2016 right shoulder injuries and medical treatment.
Appellant submitted a partial copy of an unsigned November 29, 2016 progress note
printed by a nurse. The progress note provided examination findings and a diagnosis of a complete
tear of the right rotator cuff. The report also provided an assessment that appellant was status post
right shoulder rotator cuff repair that was associated with a December 2015 injury and a
February 2016 recurrent injury which both occurred at work. Appellant still had pain symptoms
two weeks and two months postsurgery. Arthroscopy pictures were reviewed and it was
determined that the repair seemed to be solid.
By decision dated February 17, 2017, OWCP denied modification of its November 7, 2016
decision.
On March 14, 2017 appellant requested reconsideration. She submitted a full copy of the
November 29, 2016 progress note which was authored by Dr. Humphreys. Dr. Humphreys related
a history of appellant’s claimed right shoulder injuries and her September 13, 2016 right shoulder
rotator cuff repair and previous medical treatment.
In statements dated December 30, 2015 and March 7, 2017, appellant reiterated the history
of her December 2015 and February 2016 right shoulder injuries.
By decision dated June 12, 2017, OWCP again denied modification, finding that the
medical evidence of record did not contain a rationalized medical opinion to establish that
appellant’s right shoulder condition was causally related to federal employment factors.

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In an appeal request form and a letter received on July 6, 2017, appellant requested
reconsideration. She submitted a June 20, 2017 report from Dr. Humphreys. Dr. Humphreys
provided a history of appellant’s medical treatment, including his own treatment. He reviewed her
job description and opined that she was unable to perform the requirements of the position based
on her lifting restriction. Dr. Humphreys maintained that repeated use of appellant’s right arm
could cause further pain and damage to her shoulder.
By decision dated July 19, 2017, OWCP denied modification of its prior decision.
On August 7, 2017 appellant, in a letter dated July 31, 2017, requested reconsideration and
contended that she sustained a work-related right shoulder injury. She asserted that she had a very
strenuous job that she had performed for 21 years. Appellant described her job duties, which
required reaching over her head while casing mail for 1 hour and 30 minutes every morning. She
related that she also loaded mail and packages and started her route, which involved reaching,
lifting, and pulling on 500 to 600 mailboxes all day on a daily basis. Appellant noted her
September 13, 2016 right shoulder surgery, continuing pain, physical restrictions, and disability
from work. She submitted a copy of a rural carrier position description.
In an August 30, 2017 decision, OWCP denied appellant’s request for reconsideration of
her claim, finding that the evidence submitted was insufficient to warrant merit review of the
July 19, 2017 decision.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the employment
factors identified by the claimant were the proximate cause of the condition for which
compensation is claimed or, stated differently, medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant. The medical
evidence required to establish causal relationship is rationalized medical opinion evidence. The
3

Supra note 1.

4

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

5

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

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opinion of the physician must be based on a complete factual and medical background of the
employee, must be one of reasonable 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.6
ANALYSIS -- ISSUE 1
OWCP accepted as factual that appellant lifted packages while working as a rural carrier.
The Board finds, however, that the medical evidence of record is insufficient to establish that she
sustained a right shoulder condition caused or aggravated by work factors.
Dr. Humphreys’ November 29, 2016 progress note discussed findings and diagnosed a
complete right rotator cuff tear. He opined that appellant was status post right shoulder rotator
cuff repair that was associated with her right shoulder injury sustained at work in December 2015
and February 2016. However, Dr. Humphreys did not provide a probative, rationalized opinion
regarding how the accepted work factors caused a personal injury.7 He did not sufficiently explain
the reasons why, medically, appellant would have sustained a right shoulder injury that required
surgery due to lifting heavy packages at work. While his remaining reports dated August 1 and
September 6 and 21, 2016, and June 20, 2017 noted that appellant had a right shoulder condition
that required surgery, Dr. Humphreys failed to provide a specific opinion as to whether the
diagnosed condition and resultant surgery were caused or aggravated by the accepted employment
factors.8 As such, the Board finds that his reports are insufficient to meet appellant’s burden of
proof.
Similarly, Dr. Herrington’s June 29, 2016 progress note and Dr. Velez’s July 25, 2016
diagnostic test report are of diminished probative value on the issue of causal relationship. He
noted appellant’s description of her work duties and falls at work. Dr. Herrington examined her
and provided an impression of, among other things, right shoulder and left hip pain and
osteoarthritis involving multiple joints. Dr. Velez reported that a right shoulder MRI scan revealed
partial tears of the supraspinatus tendon and infraspinatus tendon and torn biceps labral complex.
Neither physician provided a medical opinion addressing whether the diagnosed conditions were
caused or aggravated by the established employment factors.9
The July 21, 2016 prescription which contained an illegible signature has no probative
value, as it is not established that the author is a physician.10

6

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, id.

7
See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not fortified
by medical rationale is of little probative value).
8

A.D., 58 ECAB 159 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).
9

Id.

10

See D.D., 57 ECAB 734 (2006); Merton J. Sills, 39 ECAB 572, 575 (1988).

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The Board finds that appellant has failed to submit any rationalized, probative medical
evidence sufficient to establish that she sustained a right shoulder injury causally related to the
accepted employment factors. Appellant therefore did not meet her burden of proof.
On appeal appellant contends that she sustained a work-related right shoulder injury. The
Board finds that the weight of the medical evidence of record does not establish that appellant’s
right shoulder condition for which she underwent surgery on September 13, 2016, was caused or
contributed to by the accepted employment factors.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8128 of FECA vests OWCP with a discretionary authority to determine whether it
will review an award for or against compensation, either under its own authority or on application
by a claimant.11 Section 10.608(b) of OWCP’s regulations provide that a timely request for
reconsideration may be granted if OWCP determines that the claimant has presented evidence
and/or argument that meet at least one of the standards described in section 10.606(b)(3).12 This
section provides that the application for reconsideration must be submitted in writing and set forth
arguments and contain evidence that either: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously
considered by OWCP.13 Section 10.608(b) provides that when a request for reconsideration is
timely, but fails to meet at least one of these three requirements, OWCP will deny the application
for reconsideration without reopening the case for a review on the merits.14
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her occupational disease claim.
The Board finds that in an August 7, 2017 request for reconsideration, appellant did not
show that OWCP erroneously applied or interpreted a specific point of law, or advance a new and
relevant legal argument not previously considered. Appellant reiterated her contention that she
sustained a right shoulder injury due to the accepted employment factors. Evidence or argument
that repeats or duplicates evidence previously of record has no evidentiary value and does not

11

5 U.S.C. § 8128(a).

12

20 C.F.R. § 10.608(a).

13

Id. at § 10.606(b)(3).

14

Id. at § 10.608(b).

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constitute a basis for reopening a case.15 Therefore, appellant’s contention is insufficient to
warrant further merit review of her claim.
The Board further finds that appellant did not submit relevant or pertinent new evidence
not previously considered with her August 7, 2017 request for reconsideration. The issue on
reconsideration was whether there was a causal relationship between appellant’s right shoulder
rotator cuff tear and her accepted rural carrier duties. Causal relationship is a medical question
that generally requires rationalized medical opinion evidence to resolve the issue.16 The rural
carrier position description therefore cannot suffice for purposes of establishing causal relationship
as it does not constitute medical evidence. Any medical evidence which OWCP relies upon to
resolve an issue must be in writing and signed by a qualified physician.17 Because appellant did
not provide any probative relevant and pertinent new evidence, she is not entitled to a review of
the merits based on the third requirement under section 10.606(b)(3).18
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.19
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof to establish a right
shoulder injury causally related to factors of her federal employment. The Board further finds,
that OWCP properly denied appellant’s request for reconsideration of the merits of her claim
under 5 U.S.C. § 8128(a).

15

D.K., 59 ECAB 141 (2007).

16

See Robert G. Morris, 48 ECAB 238 (1996).

17

James A. Long, 40 ECAB 538 (1989).

18

20 C.F.R. § 10.606(b)(3)(iii).

19

See A.R., Docket No. 16-1416 (issued April 10, 2017); A.M., Docket No. 16-0499 (issued June 28, 2016); A.K.,
Docket No. 09-2032 (issued August 3, 2010); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006);
(when an application for reconsideration does not meet at least one of the three requirements enumerated under section
10.606(b), OWCP will deny the application for reconsideration without reopening the case for a review on the merits).

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ORDER
IT IS HEREBY ORDERED THAT the August 30, July 19, and June 12, 2017 merit
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: April 2, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.G., Appellant
and
DEPARTMENT OF THE AIR FORCE,
HILL AIR FORCE BASE, UT, Employer
__________________________________________

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

Docket No. 16-0216
Issued: July 7, 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 November 16, 2015 appellant, through counsel, filed a timely appeal from a
September 28, 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 and
501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant met his burden of proof to establish a recurrence of
disability as of June 12, 2013 causally related to his August 27, 2012 employment injury.
FACTUAL HISTORY
On August 29, 2012 appellant, then a 54-year-old police officer, filed a traumatic injury
claim (Form CA-1) alleging that on August 27, 2012 he aggravated his preexisting disc condition
while lifting an equipment bag from his vehicle in the performance of his federal duties. He
1

5 U.S.C. § 8101 et seq.

returned to modified-duty work on August 30, 2012. OWCP accepted the claim for lumbar
sprain and permanent aggravation of degeneration of lumbar or intervertebral disc. Appellant
had a prior medical history of disc bulge, cervical fracture requiring fusion, and tibia/fibular
injury. He was released to full-time, regular duty work on September 24, 2012.
Appellant resigned from federal employment effective June 12, 2013 for personal
reasons.
On August 4, 2014 appellant filed a Form CA-2a, notice of recurrence, claiming a
recurrence of total disability beginning June 12, 2013. He indicated that the nature and extent of
his injury was unchanged from the date of injury to the present. On the claim form, the
employing establishment challenged the claim as it had accommodated appellant’s work injury
until he resigned from his employment. Appellant also filed a Form CA-7 claiming total
disability from work from June 12, 2013 to August 9, 2014. He claimed no earnings from
employment during this period.
On August 25, 2014 OWCP advised appellant of the deficiencies in his claim and
requested medical evidence that established disability for work during the entire period claimed.
It also noted that clarification was needed concerning the dates of work stoppage and leave used
during the period claimed. Appellant was afforded 30 days to provide the requested information.
In a September 17, 2014 report, Dr. Douglas T. Shepherd, an orthopedist, noted that
appellant’s primary diagnosis was chronic low back pain, with multilevel imaging changes. He
noted the history of the August 27, 2012 work injury and that, despite conservative treatment
including a release for light duty, appellant continued to have persistent symptoms and ongoing
disability. Dr. Shepherd noted that appellant last worked on June 11, 2013 and that he was
medically stable as of June 17, 2013. He noted that at the time appellant reached maximum
medical improvement, it was his understanding that he was unable to perform the essential job
duties as a police officer and that restrictions were provided at that time. Restrictions were
imposed related to limitations associated with appellant’s chronic back condition.
By letter dated October 3, 2014, OWCP again provided appellant an opportunity to
submit additional evidence in support of his claim for recurrence of disability.
In an October 20, 2014 letter, counsel for appellant advised that appellant’s recurrence of
disability was due to his inability to meet the physical requirements of his position. He also
alleged that appellant’s medical condition had deteriorated to the point he could no longer
perform the modified position his employing establishment had provided him.
By decision dated January 23, 2015, OWCP denied appellant’s recurrence claim as the
medical evidence did not support a material worsening of the accepted work injury.
On January 27, 2015 appellant requested a telephonic hearing before an OWCP hearing
representative. At the hearing, held on August 5, 2015, counsel for appellant argued that
appellant’s light-duty position had been withdrawn based on innuendo and accusations without
any official finding of wrongdoing. He argued that the case should be decided on the medical
evidence. Appellant testified that he was placed on light duty when he returned to work three
days after his work injury. He explained that he performed the same duties as a regular officer,
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other than he was disarmed and did not wear body armor. Appellant testified that he worked
gates to check identification and he was therefore on his feet, although he was not supposed to
be. He indicated that he had constant pain, which would increase by the end of the day.
Appellant indicated that the employing establishment had tested him for alcohol six times and
only had four positive findings. He noted that the employing establishment had an eight-hour
rule regarding alcohol and he always stopped drinking within eight hours of the beginning of his
shift. Appellant testified that his back did not get better in the light-duty position and he kept
reaggravating his injury both at work and at home. He testified that he had no other chronic
medical conditions. Appellant noted that his Veterans Administration benefits were his current
source of income. He indicated that since June 2013 he has not worked in any capacity.
Appellant noted that at home he took care of chickens and rabbits, mowed the lawn, and walked
for exercise.
By decision dated September 28, 2015, an OWCP hearing representative affirmed
OWCP’s January 23, 2015 decision. She found that this was not a case where the employing
establishment withdrew appellant’s modified job. In this situation, appellant had resigned from
his federal employment position effective June 12, 2013.
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
compensable injury or illness and without an intervening injury or new exposure in the work
environment.2 This term also means an inability to work because a light-duty assignment made
specifically to accommodate an employee’s physical limitations and which is necessary because
of a work-related injury or illness is withdrawn or altered so that the assignment exceeds the
employee’s physical limitations. A recurrence does not occur when such withdrawal occurs for
reasons of misconduct, nonperformance of job duties, or a reduction-in-force.3
OWCP procedures state that a recurrence of disability includes a work stoppage caused
by a spontaneous material change in the medical condition demonstrated by objective findings.
That change must result from the previous injury or occupational illness rather than an
intervening injury or new exposure to factors causing the original illness. It does not include a
condition that results from a new injury, even if it involves the same part of the body previously
injured.4
An employee who claims a recurrence of disability due to an accepted employmentrelated injury has the burden of establishing by the weight of the substantial, reliable, and
probative evidence that the disability for which he or she claims compensation is causally related
to the accepted injury. This burden of proof requires that a claimant furnish medical evidence
2

20 C.F.R. § 10.5(x); see S.F., 59 ECAB 525 (2008).

3

Id.

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2 (June 2013). Kenneth R.
Love, 50 ECAB 193, 199 (1998).

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from a physician who, on the basis of a complete and accurate factual and medical history,
concludes that, for each period of disability claimed, the disabling condition is causally related to
the employment injury, and supports that conclusion with medical reasoning.5 Where no such
rationale is present, the medical evidence is of diminished probative value.6
ANALYSIS
OWCP accepted that appellant’s August 27, 2012 employment injury resulted in lumbar
sprain and aggravation of degenerative lumbar intervertebral disc. Following the August 27,
2012 work injury, appellant returned to modified-duty work on August 30, 2012. On June 12,
2013 he resigned from the employing establishment. Appellant filed a recurrence of disability
claim, effective June 12, 2013. He has the burden of proof to establish a recurrence of disability
due to either a change in his injury-related condition, without intervening injury, or withdrawal
of limited-duty employment subsequent to his June 12, 2013 resignation.
Appellant argued that the employing establishment effectively withdrew his modified
assignment on June 12, 2013. The Board, however, has held that, when a claimant stops work
for reasons unrelated to his accepted employment injury, he has no disability within the meaning
of FECA.7 In this case, appellant resigned for personal reasons. His resignation for personal
reasons does not establish a recurrence of disability on or about June 12, 2013 because it had
nothing to do with his ability to perform the limited-duty requirements of his position.8 The
record does not demonstrate that the employing establishment either explicitly or implicitly
withdrew appellant’s limited-duty assignment due to his accepted medical condition.9
The record also does not contain any medical opinion evidence, based upon a complete
and accurate history, to support that appellant sustained a spontaneous material change in his
accepted injury that would prevent him from performing the modified-duty position he held at
the time of his resignation from federal employment.
Dr. Shepherd had an accurate history of appellant’s lower back conditions and he noted
appellant’s work restrictions. However, he did not explain whether and how appellant’s
August 27, 2012 work injury caused the need for those work restrictions, and he did not explain
whether in fact appellant was totally disabled as of June 12, 2013 due to his accepted work
injury. This explanation is important as appellant sustained several lower back injuries after the
August 27, 2012 work injury which caused him to seek medical attention, at least one injury
caused him to return to modified duty, and at least one injury at home caused him to lose time
from work.
5

Ronald A. Eldridge, 53 ECAB 218 (2001).

6

Mary A. Ceglia, Docket No. 04-113 (issued July 22, 2004).

7

Supra note 4 at Chapter 2.1500.7 (June 2013), see also John W. Normand, 39 ECAB 1378 (1988); Carolyn R.
Gray, Docket No. 05-1700 (issued June 20, 2006).
8

See 20 C.F.R. § 10.5(x); E.S., Docket No. 11-657 (issued February 9, 2012); see also Lester Covington, 47
ECAB 539, 542 (1996); Major W. Jefferson, III, 47 ECAB 295, 298 (1996).
9

See G.M., Docket No. 11-961 (issued November 1, 2011).

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The medical evidence at the time of appellant’s June 12, 2013 resignation establishes that
he was capable of working eight hours a day with restrictions. Additionally, there is no evidence
of any spontaneous material worsening, demonstrated by objective findings, without intervening
injury, to support that appellant’s work injury made him incapable of performing the modifiedduty police officer job effective June 12, 2013 at the date of his resignation from federal
employment.10 Accordingly, the Board will affirm OWCP’s September 28, 2015 decision.
Appellant may submit new evidence or argument as part of a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a recurrence of
disability as of June 12, 2013 causally related to his August 27, 2012 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated September 28, 2015 is affirmed.
Issued: July 7, 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

10

E.S., supra note 8; William C. Thomas, 5 ECAB 591 (1994).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.P., Appellant
and
U.S. POSTAL SERVICE, PORT CHARLOTTE
CARRIER ANNEX, Port Charlotte, FL,
Employer
__________________________________________

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

Docket No. 15-1616
Issued: April 6, 2016

Case Submitted on the Record

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

JURISDICTION
On July 16, 2015 appellant filed a timely appeal from January 20 and May 11, 2015 merit
decisions, and a March 31, 2015 nonmerit decision of the Office of Workers’
Compensation Programs (OWCP).1 Pursuant to the Federal Employees’ Compensation Act2

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from January 20, 2015, the date of an appealed OWCP decision, was
July 19, 2015, a Sunday. Consequently, the period for filing an appeal of that decision ran to the next business day,
Monday, July 20, 2015. Since using July 24, 2015, the date the appeal was received by the Clerk of the Appellate
Boards would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of
the U.S. Postal Service postmark is July 16, 2015, rendering the appeal of the January 20, 2015 decision timely filed.
See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.3
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish that she
was disabled from February 6 to May 16, 2014 and May 19 to July 24, 2014 causally related to
her accepted employment injury; and (2) whether OWCP properly denied appellant’s request for
an oral hearing as untimely under 5 U.S.C. § 8124(b).
FACTUAL HISTORY
This case has previously been before the Board. The facts and circumstances as outlined
in the Board’s prior decision are incorporated herein by reference. The facts relevant to the
instant appeal are set forth below.
On February 6, 1997 appellant, then a 32-year-old rural mail carrier, filed a recurrence of
disability (Form CA-2a) commencing that date causally related to a 1991 employment injury.
OWCP adjudicated the alleged recurrence of disability as an occupational disease claim and
accepted the claim for right shoulder strain and a cervical herniated disc. It paid appellant
compensation for intermittent periods of disability.
By decision dated August 4, 2004, OWCP reduced appellant’s compensation based on its
finding that her actual earnings working 20 hours a week as a part-time modified mail processing
clerk, effective November 7, 1998, fairly and reasonably represented her wage-earning capacity.
On December 19, 2009 the employing establishment reduced appellant’s work hours
from four to two hours per day under the National Reassessment Process. In a decision dated
March 9, 2010, OWCP modified the August 4, 2004 decision after finding that its wage-earning
capacity determination was erroneous as the position of modified mail processing clerk was
makeshift in nature. In decisions dated July 13, 2010 and February 9, 2011, OWCP found that it
had properly paid appellant compensation based on a recurrent pay rate. By decision dated
August 1, 2012, the Board affirmed OWCP’s pay rate determination.4
Appellant returned to full-time employment with restrictions on March 4, 2013.5
On February 5, 2014 Dr. Anjan K. Ghosh, a Board-certified anesthesiologist, diagnosed
right supraspinatus tendinitis, right rotator cuff impingement syndrome, and subacromial bursitis.
He discussed appellant’s history of two prior shoulder surgeries and related that he would
3

Appellant filed a timely request for oral argument. After exercising its discretion, by order dated December 29,
2015, the Board denied her request as her arguments could be adequately addressed in a decision based on a review
of the case record. Order Denying Request for Oral Argument, Docket No. 15-1616 (issued December 29, 2015).
4

Docket No. 11-1889 (issued August 1, 2012).

5

On April 3 and May 21, 2013 OWCP requested that the employing establishment clarify whether appellant
resumed work with or without restrictions.

2

perform a steroid injection if her pain had not decreased at a follow-up appointment in one
month.
On March 21, 2014 appellant filed a claim for compensation (Form CA-7) for the period
February 6 to March 21, 2014.6 On May 14, 2014 she filed a claim for compensation from
March 24 to May 16, 2014.
By letter dated May 23, 2014, OWCP requested that appellant submit evidence
supporting disability from employment for the claimed period of March 24 through
May 16, 2014.
In an office visit note dated April 15, 2014, Dr. Ghosh discussed appellant’s complaints
of pain in her right shoulder and the right side of her neck. He provided a steroid injection.
In a report dated May 13, 2014, Dr. Ghosh evaluated appellant for multiple complaints,
including “muscle aches, muscle weakness, arthralgia/joint pain, back pain, and swelling in the
extremities.” On examination he found impingement of the right shoulder at the rotator cuff,
significant loss of right shoulder motion, and a positive Tinel’s sign of the right wrist. Dr. Ghosh
noted that appellant had pain relief for two weeks after her injection and prescribed medication
for neck and upper trapezius muscle spasms.
By decision dated June 30, 2014, OWCP denied appellant’s claim for compensation from
February 6 to March 21, 2014 and March 24 to May 16, 2014. It found that she had not
submitted sufficient medical evidence supporting disability for the claimed periods.
In a report dated June 15, 2014, received by OWCP on July 4, 2014, Dr. Ghosh related
that on February 5, 2014 he treated appellant for increased right shoulder pain and reduced
motion as a result of her employment injury. He diagnosed supraspinatus tendinitis and
impingement syndrome of the right rotator cuff with bursitis. Dr. Ghosh recommended a
shoulder injection if appellant’s symptoms did not improve and advised her “to rest her shoulder
until it was reevaluated on her next visit.” He reevaluated appellant on March 12, 2014 for
continued shoulder pain and loss of motion. Dr. Ghosh did not perform the shoulder injection
until April 15, 2014 because of delays in authorization. He stated, “[Appellant] was told to rest
the shoulder as much as possible and to return for reexamination in one month on
May 13, 2014.” On May 13, 2014 appellant reported that her pain improved for two weeks after
the injection but then returned. Dr. Ghosh related “[Appellant] was instructed to progressively
increase the range of motion of her right shoulder as per my directions. She may return to work
in two weeks (approximately the first week in July) if everything continues to progress in the
manner it was, however, she must restrict the amount of weight she lifts to 35 pounds”

6

In a decision dated May 7, 2013, OWCP determined that appellant received a $247.41 overpayment of
compensation because she returned to work on March 4, 2013 but received compensation until March 9, 2013. It
further found that she was at fault in the creation of the overpayment.

3

On July 8, 2014 appellant requested a telephone hearing on the June 30, 2014 decision.7
In a duty status report dated July 19, 2014, Dr. Ghosh diagnosed status post cervical
laminectomy and rotator cuff impingement syndrome. He found that appellant could resume her
usual employment.
On July 25, 2014 appellant returned to her full-time employment position without
restrictions.
On July 28, 2014 appellant filed a claim for compensation (Form CA-7) for the period
May 19 to July 24, 2014. By letter dated August 4, 2014, OWCP requested that she submit a
detailed medical report explaining why she was disabled from May 19 through July 24, 2014.
In a report dated April 15, 2014, received by OWCP on October 10, 2014 Dr. Ghosh
diagnosed cervical postlaminectomy syndrome, degeneration of the cervical intervertebral disc,
drug dependence, fibromyositis, inflammation and impingement of the rotator cuff tendon,
rotator cuff syndrome, neck pain, and ulnar neuropathy.8 He performed a steroid injection on her
shoulder.
By decision dated January 20, 2015, OWCP denied appellant’s July 28, 2014 claim for
compensation for the period May 19 to July 24, 2014.
By letter dated March 4, 2015 and postmarked March 5, 2015, appellant requested an oral
hearing on the January 20, 2015 decision.
A hearing was held on February 24, 2015 regarding OWCP’s June 30, 2014 decision
denying appellant’s claim for compensation from February 6 to May 16, 2014. At the hearing,
she advised that Dr. Ghosh informed her not to work until after she received the steroid injection.
In a decision dated March 31, 2015, OWCP denied appellant’s request for an oral hearing
on the January 20, 2015 decision as untimely under section 8124. It considered the request
within its discretion, but found that the matter could be equally well addressed by requesting
reconsideration and submitting evidence supporting disability.
By decision dated May 11, 2015, the hearing representative affirmed the June 30, 2014
decision.
On appeal appellant argues that she would not have stopped work absent instructions
from her physician. She contends that she did not receive approval for the injection because her
physician was not authorized by OWCP.

7

On July 24, 2014 appellant requested reconsideration. In a response dated July 31, 2014, OWCP noted that she
had requested a hearing on her case and advised her to withdraw her request if she wanted to pursue another appeal
right.
8

The record contains reports dated October 2, 2014 and March 12, 2015 from Mandy Nehring, a nurse
practitioner and an October 29, 2014 report from Dr. Steven Chun, a Board-certified anesthesiologist.

4

LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.9 For each period of
disability claimed, the employee has the burden of establishing disability for work as a result of
the accepted employment injury.10 Whether a particular injury causes an employee to become
disabled for work, and the duration of that disability, are medical issues that must be proved by a
preponderance of probative and reliable medical opinion evidence.11
Under FECA the term disability means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.12 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.13 An employee who has a physical impairment causally related to his or her federal
employment, but who nonetheless has the capacity to earn the wages that he or she was receiving
at the time of injury, has no disability and is not entitled to compensation for loss of wageearning capacity.14 When, however, the medical evidence establishes that the residuals or
sequelae of an employment injury are such that, from a medical standpoint, they prevent the
employee from continuing in her employment, she is entitled to compensation for any loss of
wages.
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify his or her disability and
entitlement to compensation.15
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained right shoulder strain and a herniated cervical
disc as a result of her employment duties. After sustaining intermittent periods of total and
partial disability, appellant returned to full-time employment on March 4, 2013. She filed claims
for compensation from February 6 to May 16, 2014 and from May 19 to July 24, 2014 due to her
accepted work injury. Appellant has the burden of establishing a causal relationship between her

9

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986).

10

See Amelia S. Jefferson, id.

11

See Edward H. Horton, 41 ECAB 301 (1989).

12

S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); 20 C.F.R. § 10.5(f).

13

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

14

Merle J. Marceau, 53 ECAB 197 (2001).

15

See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

5

claimed disability and the accepted conditions through the submission of substantial, reliable,
and probative evidence.16
The Board finds that the medical evidence of record is insufficient to show that appellant
was disabled from February 6 to May 16, 2014 and from May 19 to July 24, 2014 due to her
accepted employment injury. On February 5, 2014 Dr. Ghosh diagnosed right supraspinatus
tendinitis, right rotator cuff impingement syndrome, and subacromial bursitis. He indicated that
if appellant’s shoulder pain did not improve within a month he would perform a steroid injection
of the shoulder. Dr. Ghosh did not address her ability to work and thus his report is of little
probative value on the issue of whether she was disabled beginning February 6, 2014.17
In an April 15, 2014 report, Dr. Ghosh diagnosed cervical postlaminectomy syndrome,
degeneration of the cervical intervertebral disc, drug dependence, fibromyositis, inflammation
and impingement of the rotator cuff tendon, rotator cuff syndrome, neck pain, and ulnar
neuropathy. In a chart note dated April 15, 2014, he reviewed appellant’s complaints of right
shoulder and neck pain. Dr. Ghosh administered a steroid injection. He did not, however,
discuss causation or whether appellant was disabled from employment. Consequently,
Dr. Ghosh’s report is of little probative value.18
On May 13, 2014 Dr. Ghosh described appellant’s symptoms of swelling of the
extremities, and weakness and pain in her muscles, joints, and back. He found impingement of
the right shoulder at the rotator cuff, significant loss of right shoulder motion, and a positive
Tinel’s sign of the right wrist. Dr. Ghosh noted that appellant had achieved pain relief for two
weeks after her steroid injection. Again, however, he did not address the relevant issue of
disability from employment and thus his report is of diminished probative value.19
In a report dated June 15, 2014, Dr. Ghosh discussed his treatment of appellant from
February 5, 2014 to the present. He related that on February 5, 2014 he evaluated her for
increased right shoulder pain and reduced motion as a result of her employment injury and
diagnosed supraspinatus tendinitis and impingement syndrome of the right rotator cuff with
bursitis. Dr. Ghosh recommended a shoulder injection if appellant’s symptoms did not improve
and advised her “to rest her shoulder until it was reevaluated on her next visit.” He reevaluated
her on March 12, 2014 for continued shoulder pain and loss of motion. Dr. Ghosh again told
appellant to rest her shoulder pending reexamination in a month. On May 13, 2014 he instructed
her to increase the use of her shoulder. Dr. Ghosh concluded that with continued improvement
16

See Amelia S. Jefferson, supra note 9.

17

See M.R., Docket No. 15-0583 (issued December 9, 2015).

18

See A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004) (medical evidence that does not offer
any opinion regarding the cause of an employee’s condition is of little probative value on the issue of causal
relationship); Carol A. Lyles, 57 ECAB 265 (2005) (whether a particular injury caused an employee disability from
employment is a medical issue which must be resolved by competent medical evidence).
19

See Sandra D. Pruitt, 57 ECAB 126 (2005) (the issue of whether a claimant’s disability is related to an
accepted condition is a medical question which must be established by a physician who, on the basis of a complete
and accurate factual and medical history, concludes that the disability is causally related to employment factors and
supports that conclusion with sound medical reasoning).

6

appellant could resume work with restrictions in early July 2014. While he indicated that he told
her to rest her shoulder and that she could return to work in July 2014, he did not specifically
address any period of disability or causation.20 The issue of whether a claimant’s disability is
related to an accepted condition is a medical question which must be established by a physician
who, on the basis of a complete and accurate factual and medical history, concludes that the
disability is causally related to employment factors and supports that conclusion with sound
medical reasoning.21
On appeal appellant contends that she stopped work on the advice of her physician and
maintains that OWCP did not approve her steroid injection because her physician was not
authorized. She has the burden, however, to support any claimed period of disability from
employment with probative medical evidence directly addressing the specific dates of disability
for which compensation is claimed.22 Appellant did not submit such evidence and thus did not
meet her burden of proof. She further did not claim time lost due to medical appointments in
requesting disability compensation or submit evidence sufficient to establish that she was
obtaining authorized medical services.23
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 and
20 C.F.R. §§ 10.605 through 10.607
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b) of FECA provides that a claimant for compensation not satisfied with a
decision of the Secretary is entitled, on request made within 30 days after the date of the issuance
of the decision, to a hearing on her claim before a representative of the Secretary.24 Section
10.615 of the federal regulations implementing this section of FECA provides that a claimant
shall be afforded a choice of an oral hearing or a review of the written record.25 The request
must be sent within 30 days (as determined by postmark or other carrier’s date marking) of the
date of the decision for which a hearing is sought.26 A claimant is entitled to a hearing or review
of the written record as a matter of right if the request is filed within 30 days.27

20

See supra note 18.

21

Sandra D. Pruitt, supra note 19.

22

See Fereidoon Kharabi, supra note 15.

23

An injured employee is entitled to compensation for lost wages incurred while obtaining authorized medical
services; see 5 U.S.C. § 8103(a); Gayle L. Jackson, 57 ECAB 546 (2006).
24

5 U.S.C. § 8124(b)(1).

25

20 C.F.R. § 10.615.

26

Id. at § 10.616(a).

27

See Leona B. Jacobs, 55 ECAB 753 (2004).

7

While a claimant may not be entitled to a hearing or review of the written record as a
matter of right if the request is untimely, OWCP has the discretionary authority to grant the
request and must properly exercise such discretion.28
ANALYSIS -- ISSUE 2
OWCP issued a decision on January 20, 2015 denying appellant’s claim for
compensation from May 19 to July 24, 2014. By letter dated March 4, 2015 and postmarked
March 5, 2015, appellant requested an oral hearing on the January 20, 2015 decision. OWCP
denied her hearing request as untimely in a March 31, 2015 decision. As appellant’s request for
a hearing was postmarked March 5, 2015, more than 30 days after OWCP issued its January 20,
2015 decision, she was not entitled to a hearing as a matter of right.
OWCP has the discretionary power to grant a hearing or review of the written record
when a claimant is not entitled to a hearing or review as a matter or right.29 It properly exercised
its discretion by considering the matter in relation to the issue involved and denying appellant’s
request for an oral hearing on the basis that the case could be resolved by submitting additional
evidence with a reconsideration request. The Board has held that the only limitation on OWCP’s
discretionary authority is reasonableness. An abuse of discretion is generally shown through
proof of manifest error, clearly unreasonable exercise of judgment, or actions taken which are
contrary to both logic and probable deduction from established facts.30 There is no evidence that
OWCP committed any action in connection with its denial of appellant’s request for an oral
hearing which could be found to be an abuse of discretion. Consequently, it properly denied her
request for an oral hearing as untimely under section 8124 of FECA.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she was
disabled from February 6 to May 16, 2014 and May 19 to July 24, 2014 causally related to her
accepted employment injury. The Board further finds that OWCP properly denied her request
for an oral hearing as untimely under 5 U.S.C. § 8124(b).

28

20 C.F.R. § 10.616(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the
Written Record, Chapter 2.1601.4(a) (October 2011).
29

Afegalai L. Boone, 53 ECAB 533 (2002).

30

See M.G., Docket No. 15-1552 (issued December 8, 2015); L.W., 59 ECAB 471 (2008).

8

ORDER
IT IS HEREBY ORDERED THAT the May 11, March 31, and January 20, 2015
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: April 6, 2016
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Atlanta, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-0479
Issued: March 19, 2019

Case Submitted on the Record

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

JURISDICTION
On January 3, 2017 appellant, through counsel, filed a timely appeal from a November 30,
2016 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 the claim.
ISSUES
The issues are: (1) whether OWCP properly found that an overpayment of $24,800.96 was
created during the period December 5, 2000 through August 13, 2014 due to incorrect payment of
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.

travel reimbursements; and (2) whether OWCP properly found that appellant was at fault in
creation of the overpayment, thereby precluding waiver of recovery of the overpayment.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts of the case as presented in the
prior decision are incorporated herein by reference. The relevant facts are as follows.
On October 29, 2000 appellant, then a 39-year-old mail processor, filed an occupational
disease claim (Form CA-2) alleging that she developed bilateral carpal tunnel syndrome due to
lifting trays of mail at work. OWCP accepted the claim for bilateral carpal tunnel syndrome.
Appellant underwent OWCP-authorized carpal tunnel release surgery for the left wrist on June 4,
2001 and right wrist on November 28, 2001. By decision dated August 28, 2002, OWCP granted
appellant a schedule award for 11 percent permanent impairment of the right arm and 8 percent
permanent impairment of the left arm. By decision dated October 9, 2002, OWCP terminated
appellant’s wage-loss compensation benefits as it determined that her modified clerk
reemployment effective June 7, 2002 fairly and reasonably represented her wage-earning capacity,
with no wage loss.
On October 10, 2007 OWCP expanded acceptance of appellant’s claim to include bilateral
epicondylitis. It authorized surgery, which was performed on October 24, 2007.
By decision dated June 19, 2008, OWCP granted appellant an additional schedule award
for four percent permanent impairment of the left upper extremity and an additional six percent
permanent impairment of the right upper extremity. By decision dated September 8, 2011, it
granted appellant an additional award of 4 percent permanent impairment of the left upper
extremity (totaling 16 percent permanent impairment of the left upper extremity), and an additional
3 percent permanent impairment of the right upper extremity (totaling 20 percent permanent
impairment of the right upper extremity). Appellant returned to work sporadically until she
returned to full-time modified duty on January 29, 2011.
Appellant submitted numerous medical travel refund requests, OWCP Form 957, for travel
to and from her duty office and for medical services in connection with her work injury.4
An investigative report from the employing establishment’s Office of Inspector General
(OIG) analyzing appellant’s medical billing payments, including transportation reimbursements,
for the period January 2007 through March 2015 noted that appellant received an unusual amount
in mileage reimbursement funds related to her workers’ compensation claim. During the course
of the investigation, it was determined that she submitted a total of 964 requests for reimbursement
for transportation service dates, from December 5, 2000 through August 13, 2014, where there
were no corresponding medical services, appliances, or supplies; or had overstated mileage
3

Docket No. 10-1982 (issued July 11, 2011).

4

The record contains medical travel refund request forms for approximately 33 dates in the period from 2008
through 2012, which appellant signed on November 4, 2008, August 7 and May 2, 2009, February 22, April 28 and
November 13, 2011, and November 28, 2012.

2

amounts; and/or reflected travel to/from work at a postal facility. The OIG provided 33 examples
with corresponding exhibits of appellant’s OWCP-957 forms from 2008 through 2012 which
illustrated where there were no corresponding medical claims, appliances, or supplies; overstated
mileage amounts; and had traveled to/from work at a postal facility.5
The OIG found that the total amount of fraudulent mileage reimbursement funds appellant
received was $24,800.96 during the period December 5, 2000 through August 13, 2014. For the
period from 2000 through 2012, the OIG indicated that appellant had received a total fraudulent
amount of approximately $18,357.16. From 2013 through February 2015, the OIG concluded that
appellant had received an additional $6,443.80 in reimbursement requests for which she was not
entitled. The OIG found that appellant erroneously received $282.54 in 2000; $12.96 in 2002;
$28.08 in 2003; $65.08 in 2006; $484.80 in 2007; $1,391.70 in 2008; $3,411.10 in 2009; $2,055.50
in 2010; $4,743.00 in 2011; $5,882.40 in 2012; $3,971.40 in 2013 and $2,474.40 in 2014.
Several exhibits were listed as included in the investigative report, but the only exhibits of
record were: a copy of mileage calculations from GoogleMaps, an internet-based service, from
appellant’s residence to the listed medical providers or post office location from 2008 through the
present; the mileage reimbursement amount per General Services Administration (GSA) website
from January 1, 2004 to the current;6 and 33 copies of appellant’s OWCP Form 957 for October 17,
2008 through October 24, 2012.7 The Risk Analysis Data Repositor (RADR) Healthcare Claimant
Detail Medical Payment Tracking Report, and AQS ACS Bill listing were not of record.
On December 15, 2015 OWCP made a preliminary determination that appellant received
a $24,800.96 overpayment of compensation because she received travel expense reimbursements
for the period December 5, 2000 through August 13, 2014 for reported inflated or fraudulent
mileage. Specific dates from December 5, 2000 through August 13, 2014 and the amounts of the
inflated or fraudulent mileage were listed. It found an overpayment of compensation in the amount
of $282.54 for December 5, 2000; $12.96 for June 4, 2002; 2 dates in 2003 for total of $28.08; 4
dates in 2006 for a total of $65.08; 23 dates in 2007 for a total of $484.80; 35 dates in 2008 for a
total of $1,391.70; 96 dates in 2009 for a total of $3,411.10; 138 dates in 2010 for a total of
$2,055.50; 199 dates in 2011 for a total of $4,743.00; 226 dates in 2012 for a total of $5,882.40;
144 dates in 2013 for a total of $3,971.40; and 94 dates in 2014 for a total of $2,472.40. It found
her at fault in the creation of the overpayment because she accepted payments that she knew or
should have known were incorrect. Appellant was advised to complete an accompanying
overpayment recovery questionnaire and submit supporting financial documents. Additionally,
5

The OIG subpoenaed the medical facilities and practices reflecting all consultation dates pertaining to appellant’s
claim and compared the subpoenaed medical documents with the refund reimbursement requests. It found that
approximately 706 of appellant’s submitted mileage reimbursements had no medical provider claims, appliances, or
supplies associated with them.
6

The reimbursement rate was $0.375 for the period January 1, 2004 to February 4, 2005; $0.400 for the period
February 4, 2005 to August 31, 2004; $0.485 for the period September 1 to December 31, 2005; $0.445 for the period
January 1, 2006 to January 31, 2007; $0.485 for the period February 1, 2007 to March 18, 2008; $0.505 for the period
March 19 to July 31, 2008; $0.585 for the period August 1 to December 31, 2008; $0.550 for the period January 1 to
December 31, 2009; $0.500 for the period January 1 to December 31, 2010; $0.510 for the period January 1, 2011 to
April 16, 2012 and $0.555 for the period April 17, 2012 to current.
7

See supra note 4.

3

she was advised that, within 30 days of the date of the letter, she could request a telephone
conference, a final decision based on the written evidence, or a prerecoupment hearing.
On January 9, 2016 appellant requested a prerecoupment hearing before an OWCP hearing
representative regarding the issues of fault and waiver. She also noted that she had submitted
legitimate travel reimbursement claims for 14 years that were reviewed, approved, and paid by
OWCP. In a January 9, 2016 letter, appellant stated that she had always submitted claim forms
without documentation for travel. She claimed that in 15 years, it had never been brought to her
attention that she was to submit separate documentation as the documentation had always been
submitted by the medical facility. Appellant indicated that she had also provided the addresses of
her destination, whether it was to a medical facility or a postal facility. She stated that, due to her
work injuries, which included left ulnar nerve lesion and bilateral lateral epicondylitis, she could
not drive and that her husband had transported her to work since she returned to work in 2002, not
2011. Appellant stated that in 2002 she had asked an OWCP representative if she could file for
travel reimbursements for her husband traveling the extra miles to transport her and was told to
file the claim and see if it would be approved. As the claims had been approved for 14 years, she
argued it was unjust for OWCP to now decide that the claims should not have been paid and expect
her to reimburse $24,800.96. In a January 11, 2015 letter, appellant listed her current expenses
and provided copies of financial information.
A telephonic hearing before an OWCP hearing representative took place on
September 15, 2016. Appellant indicated that she had severe issues with her arms and had not
been able to drive for a number of years. She stated that she had returned to work in
December 2011 and also had return to work dates in 2002, 2006, and 2008. Appellant stated that
her husband had transported her since 2002 and he would leave his job to pick her up and take her
to and from appointments. She acknowledged that she had claimed the travel to and from work
with the extra trips her husband had to take to and from his work and the trips to and from her duty
station as he took her to work. Appellant testified that she asked OWCP if she could bill the extra
trips her husband was making on her travel claim and was told to fill out the claim and see if it
was paid. She stated that she did not realize that she had been paid in error and had always listed
the correct destination on her travel claims. Appellant advised that October 7, 2014 was the first
time she had received instructions/guidance for filing the travel claims.8 She indicated that she
had not knowingly accepted a payment to which she was not entitled and she was not financially
able to repay the debt.
On October 11, 2016 OWCP received copies of appellant’s current list of bills and
expenses, bank statements, and financial information.
By decision dated November 30, 2016, an OWCP hearing representative finalized the fact
and amount of the preliminary overpayment determination, as well as the finding of fault. She
found that all charges for travel reimbursement must be accompanied by supporting

In response to appellant’s October 7, 2014 inquiry, OWCP explained, in a November 7, 2014 letter, that unless
the person is a valid transportation provider under ACS, the individual cannot be directly reimbursed. However, you
may reimburse the person who provides driving assistance to your medical appointments with documentation that you
attended such appointments.
8

4

documentation. The hearing representative directed recovery of the overpayment by having
appellant make a monthly payment of $200.00 until the debt was satisfied and paid in full.
LEGAL PRECEDENT -- ISSUE 1
Section 8103 of FECA provides that the United States shall furnish to an employee who is
injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree or the period of disability, or aid in lessening the amount of the monthly compensation.9
With respect to travel expenses for medical treatment, the regulations provide:
“(a) The employee is entitled to reimbursement of reasonable and necessary
expenses, including transportation needed to obtain authorized medical services,
appliances or supplies. To determine what a reasonable distance to travel is, OWCP
will consider the availability of services, the employee’s condition, and the means
of transportation. Generally, a roundtrip distance of up to 100 miles is considered
a reasonable distance to travel. Travel taken by the shortest route, and if practical,
by public conveyance. If the medical evidence shows that the employee is unable
to use these means of transportation, OWCP may authorize travel by taxi or special
conveyance.”10
In interpreting section 8103(a) of FECA, the Board has recognized that OWCP has broad
discretion in approving services provided under FECA to ensure that an employee recovers from
his or her injury to the fullest extent possible in the shortest amount of time. OWCP has
administrative discretion in choosing the means to achieve this goal and the only limitation on
OWCP’s authority is that of reasonableness.11
ANALYSIS -- ISSUE 1
The Board finds that the case is not in posture for decision.
OWCP accepted appellant’s claim for bilateral carpal tunnel syndrome and bilateral
epicondylitis and paid wage-loss compensation and medical benefits, including OWCP authorized
surgery. However, it found that the mileage she reported for reimbursement of travel from
December 5, 2000 through August 13, 2014 was fraudulent.
An OIG investigation revealed that for the stated period, appellant had submitted numerous
medical travel refund request forms. The OIG investigation claimed to have found that appellant
had submitted approximately 964 signed mileage reimbursement requests for dates where there
were no corresponding medical services, appliances, or supplies; had overstated mileage amounts;
9

5 U.S.C. § 8103; see Dona M. Mahurin, 54 ECAB 309 (2003).

10

20 C.F.R. § 10.315(a).

11

R.L., Docket No. 08-0855 (issued October 6, 2008).

5

and/or pertained to travel to/from work at a postal facility. However, only 33 OWCP-957 forms
are listed as exhibits of record along with a yearly synopsis from 2000 to 2014 totaling $24,800.96.
It is particularly important to be able to review all 964 medical travel refund request forms
which the OIG and OWCP found to be fraudulent because OWCP subsequently issued a decision
finding that appellant received an overpayment of compensation resulting from these requests, for
which she was at fault. OWCP found that her signature on each OWCP-957 form certified that
any information she provided was true and correct. The Board finds, that only a sample of the
travel reimbursement OWCP-957 forms are of record. OWCP has not fully established the
existence of the total overpayment claimed in this case, nor explained the calculation methods used
and their validity.12 As such, without this crucial evidence the Board will set aside the
November 30, 2016 OWCP decision and remand the case to OWCP for reconstruction of the
record. OWCP shall obtain all of the OWCP-957 forms completed and signed by appellant for the
claimed reimbursement period as well as a list of the dates and money appellant received for each
reimbursement travel request. Following reconstruction of the record and any necessary further
development, OWCP shall issue a de novo decision on the merits of the claim.13
CONCLUSION
The Board finds that this case is not in posture for decision.

12

E.S., Docket No. 17-1041 (issued December 27, 2017); see also C.S., Docket No. 14-1377 (issued June 23, 2015).

13
OWCP’s decision shall also cite the legal authority by which the existence of an overpayment in this case is
established and explain the calculation methods used and their validity.

6

ORDER
IT IS HEREBY ORDERED THAT the November 30, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action consistent
with this decision of the Board.
Issued: March 19, 2019
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
U.S. POSTAL SERVICE, PEKIN POST
OFFICE, Pekin, IL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0469
Issued: July 30, 2021

Case Submitted on the Record

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

On February 4, 2021 appellant filed an appeal from a December 16, 2020 notice of the
Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 21-0469.
The Board, having duly considered the matter, notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act.1
The case record as transmitted to the Board does not contain a final adverse decision of OWCP
issued within 180 days from the date of docketing of the current appeal. 2 In the December 16,
2020 notice, OWCP advised appellant that it proposed to modify an August 28, 1997 loss of wageearning capacity (LWEC) determination. It afforded him 30 days to submit additional evidence if
she disagreed with the proposed LWEC modification. As this notice was merely advisory in
nature, it does not constitute a final adverse decision issued by OWCP over which the Board may

1

5 U.S.C. § 8101 et seq.; 20 C.F.R. §§ 501.2(c) and 501.3(a).

2
20 C.F.R. § 501.3(e) provides in pertinent part: “Any notice of appeal must be filed within 180 days from the
date of issuance of a decision of the OWCP.”

properly exercise jurisdiction.3 Therefore, the Board concludes that the appeal docketed as No.
21-0469 must be dismissed. Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-0469 is dismissed.
Issued: July 30, 2021
Washington, DC

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

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

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

3

Id. at §§ 501.2(c) and 501.3(a).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.G., Appellant
and
U.S. POSTAL SERVICE, LAKE HIAWATHA
MAIN POST OFFICE, Lake Hiawatha, NJ,
Employer
__________________________________________

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

Docket No. 19-0233
Issued: July 16, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 12, 2018 appellant, through counsel, filed a timely appeal from a
September 17, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the September 17, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant met his burden of proof to establish back and hand
conditions causally related to factors of his federal employment.
FACTUAL HISTORY
On December 18, 2017 appellant, then a 58-year-old temporary sales and services clerk,
filed an occupational disease claim (Form CA-2), alleging that he developed sciatica and carpal
tunnel syndrome due to factors of his federal employment, including “continuous hours of
unloading trucks, moving, scanning, and tossing heavy boxes and banded bundles.” He indicated
that he first became aware of his conditions and first realized that they were caused or aggravated
by his federal employment on December 7, 2017. Appellant stopped work on December 12, 2017.
In an undated narrative statement, appellant indicated that he had reported for full-time
eight-hour work on December 6, 2017 and upon arrival he was told that the majority of his work
would be unloading trucks, breaking down and unloading packages from carts and bins, scanning
all packages and tossing/walking them to the assigned route bin, unloading pallets of banded
magazines, and distributing the banded packets to each route station. He stated that, for virtually
all but 45 minutes of his work shift, the above was his routine for the day. Appellant completed
the eight-hour work shift. He indicated that he was totally unaware that his new position consisted
of substantial dock and warehouse work. Appellant returned to work on December 7, 2017 and
was given the same routine, excluding the magazines. He was told that during Christmas the
volume of inbound was the highest of the year and that his job would pretty much be the above
and after the Christmas rush he would be able to spend more time on window duties, and other
peripheral duties and training at the facility. On December 7, 2017 appellant reported that he was
in a lot of back and hand pain and that his fingers and hands were cramping so badly that he could
hardly use the scanner. He was told that after a few week he would acclimate. Appellant asked if
he could work a reduced shift for the first 10 days or so, but he was told that it was the busiest time
and that they needed him there. He mentioned that coming from 19 years of office management
and being immediately placed into dock/warehouseman work did not allow the time for any
physical acclimation. Appellant returned to work on December 8, 2017 and was in worse pain,
with swollen hands and limping due to a strained back. With the concern of not wanting to lose
his job, he continued to work, but finally reported that he needed to cut his shift short due to his
pain. Appellant was allowed to leave after a six-hour shift with the hope that two days off that
weekend would help rejuvenate his body. When he returned to work on Monday, December 11,
2017, he worked an eight-hour shift. During that shift, appellant asked that some envelopes be
picked up for him because the pain was severe and he could not bend to the ground. That night he
experienced back spasms and was unable to sleep. Appellant’s hands were both swollen, with
cramping fingers, and painful hands going through his wrists. He reportedly called into the office
on December 9, 2017 and advised that he was going to the physician due to his back and hand
injuries that he had sustained at work. Appellant noted that he had never experienced or suffered
these types of injuries in his life.
In a December 13, 2017 report, Dr. Andrew Gilmartin, a Board-certified internist,
diagnosed carpal tunnel syndrome and sciatica and he opined that these conditions were directly
related to the recent work appellant had been doing. He provided work restrictions of no bending,
no repetitive activities, and no lifting of any kind for approximately two weeks, or until further
evaluation.
2

In an undated statement, the employing establishment controverted appellant’s claim. It
indicated that he had attended new employee training from November 27 to 28, 2017, sedentary
classroom clerk training from November 29 to December 5, 2017, and then reported to his duty
station of Lake Hiawatha on December 6, 2017. The employing establishment asserted that
appellant’s federal duties included sorting small parcels, performing window duties which
included serving customers by selling stamps, and at the end of the night, he helped prepare mail
for dispatch. It stated that at no time did he ever unload or load trucks with mail including parcels.
The employing establishment argued that appellant’s carpal tunnel and sciatica conditions could
not have been caused by factors of his federal employment because he only worked for three days.
It strongly believed that his diagnosed conditions existed prior to his federal employment.
By development letter dated January 12, 2018, OWCP advised appellant of the deficiencies
of his claim and afforded him 30 days to submit additional evidence and respond to its inquiries.
In response, appellant submitted a February 8, 2018 narrative statement indicating that he
utilized his thumb, index finger, and wrist thousands of times through the day while scanning items
at work.
In reports dated December 13 and 27, 2017, and January 5, 2018, Dr. Gilmartin noted that
appellant presented with hand pain localized to the left hand and right hand with some radiation to
the wrists. He stated that the pain began six days prior and the onset of pain was work related.
Dr. Gilmartin diagnosed carpal tunnel syndrome and sciatica and indicated that appellant’s work
required significant lifting, bending, and twisting in a repetitive manner for eight hours per day.
He noted that appellant had been in a “very deconditioned state” prior to starting work
approximately one week before.
On February 5, 2018 Dr. Gilmartin indicated that appellant’s symptoms of hand pain with
swelling had worsened since his last visit. He related that appellant’s federal duties included
significant activity with bending and twisting of the right wrist and hand while scanning and
sorting packages and opined that appellant’s conditions began while working over the holidays.
Dr. Gilmartin noted that appellant had no prior history of osteoporosis or carpal tunnel syndrome.
In reports dated December 27, 2017 and January 11, 2018, Dr. Gilmartin continued to
diagnose carpal tunnel syndrome and sciatica and opine that these conditions were directly related
to the recent work appellant had been doing.
By decision dated March 19, 2018, OWCP denied appellant’s claim because the medical
evidence of record failed to establish causal relationship between his diagnosed conditions and
factors of his federal employment.
On March 27, 2018 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
Appellant submitted an April 19, 2018 report from Dr. Gilmartin, who advised that
appellant had been his patient for several years, most recently in December 2017, after he was
evaluated for a work-related injury to his right hand. He opined that the injury seemed to be related
to appellant’s carpal tunnel syndrome, which was exasperated by the use of a scanning device
associated with packing, tracking, handling, and distribution, and was utilized throughout the
workday and required the constant repetitive movements of the thumb, index finger, and wrist.
3

Dr. Gilmartin further indicated that appellant was also suffering from gouty arthritis of the hands,
for which he had referred him to a rheumatologist.
A telephonic hearing was held before an OWCP hearing representative on July 23, 2018.
Appellant provided testimony and the hearing representative held the case record open for 30 days
for the submission of additional evidence.
In response, appellant submitted an August 3, 2018 report from Dr. Gilmartin who
specified that appellant had been his patient for over six years and asserted that appellant had no
medical history of having inflammation or gout of either hand prior to his work-related injury. He
related that on December 13, 2017 appellant was evaluated for a work-related injury to his right
hand and was diagnosed with carpal tunnel syndrome, inflammation of the left hand, and sciatica.
Dr. Gilmartin reiterated his opinion that appellant’s federal duties from December 6 to 11, 2017
were a direct cause of his injury, which was caused by repetitive micro traumas and exacerbated
by the repetitive motions of the strap-on scanner he was required to use at work. He reported that
his initial evaluation showed that both hands were swollen, right more inflamed than left, obvious
discoloration on both hands, with protruding veins through the wrists and lower arms, resulting in
about 10 percent mobility of the right hand. Dr. Gilmartin explained that after a full evaluation he
had determined that appellant had a carpal tunnel syndrome type of injury caused by repetitive
micro traumas. Appellant’s left hand was also swollen, but to a much lesser degree than the right,
displaying only slight vein inflammation with approximately 60 percent mobility of his fingers.
Dr. Gilmartin also examined appellant’s back and performed a variety of physical tests and
determined that he was also suffering from sciatica. He mentioned to appellant that having him
start a new job that involved the work type as described above would be the equivalent of him
participating in a marathon without any training or preparation, without any chance of completing
the race.
By decision dated September 17, 2018, OWCP’s hearing representative affirmed the
March 19, 2018 decision. It determined that Dr. Gilmartin’s reports did not differentiate between
appellant’s preexisting conditions and any effects of work factors nor explain how appellant’s brief
period of work contributed to his diagnosed medical conditions.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence, including the fact that the individual is an employee of the United States within the
meaning of FECA, that the claim was timely filed within the applicable time limitation period of
FECA, that an injury was sustained in the performance of duty as alleged, and that any disability
or specific condition for which compensation is claimed is causally related to the employment
injury.5 These are the essential elements of every compensation claim regardless of whether the
claim is predicated on a traumatic injury or an occupational disease.6
4

Supra note 2.

5

K.V., Docket No. 18-0947 (issued March 4, 2019); M.E., Docket No. 18-1135 (issued January 4, 2019); Kathryn
Haggerty, 45 ECAB 383, 388 (1994).
6

K.V. and M.E., id.; Elaine Pendleton, 40 ECAB 1143 (1989).

4

To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee must submit the following: (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.7
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.8 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.9 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s).10
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.11
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that his
diagnosed back and hand conditions are causally related to the accepted factors of his federal
employment.
Dr. Gilmartin’s reports provided diagnoses and statements of reasonable medical certainty,
but failed to provide a detailed explanation on causal relationship. While he identified the specific
employment factors alleged by appellant, he did not provide a pathophysiological explanation as
to how those activities either caused or contributed to appellant’s diagnosed conditions.12
Additionally, in his April 19, 2018 report, Dr. Gilmartin noted that appellant’s work-related injury
seemed to be related to his carpal tunnel syndrome, and it was his opinion that appellant was
suffering from both carpal tunnel syndrome and gouty arthritis of the hands. He also described
appellant as having been in a deconditioned state prior to the work-related injury, but did not
provide any further explanation or details. The Board has consistently held that complete medical
rationalization is particularly necessary when there are preexisting conditions involving the same

7
D.R., Docket No. 09-1723 (issued May 20, 2010). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
8

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

9

M.V., Docket No. 18-0884 (issued December 28, 2018).

10

Id.; Victor J. Woodhams, supra note 7.

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013). See
R.D., Docket No. 18-1551 (issued March 1, 2019).
12

Id.

5

body part,13 and has required medical rationale differentiating between the effects of the workrelated injury and the preexisting condition in such cases.14 Thus, the Board finds that the reports
from Dr. Gilmartin are insufficient to meet appellant’s burden of proof, as they do not provide
adequate physiological explanation regarding the cause of appellant’s diagnosed conditions.
Moreover, while Dr. Gilmartin opined that appellant’s medical conditions were a direct
result of the factors of his federal employment, noting that he had no medical history of having
inflammation or gout of either hand prior to his work-related injury, the Board has held that neither
the mere fact that a disease or condition manifests itself during a period of employment nor the
belief that the disease or condition was caused or aggravated by employment factors or incidents
is sufficient to establish a causal relationship.15
As appellant has not submitted any rationalized medical evidence to support his claim that
he sustained back and hand conditions causally related to the accepted employment factors, he has
failed to meet his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish back and hand
conditions causally related to the accepted factors of his federal employment.

13

E.g., K.R., Docket No. 18-1388 (issued January 9, 2019).

14

See, e.g., A.J., Docket No. 18-1116 (issued January 23, 2019); M.F., Docket No. 17-1973 (issued December 31,
2018); J.B., Docket No. 17-1870 (issued April 11, 2018); E.D., Docket No. 16-1854 (issued March 3, 2017); P.O.,
Docket No. 14-1675 (issued December 3, 2015).
15

See J.L., Docket No. 18-1804 (issued April 12, 2019).

6

ORDER
IT IS HEREBY ORDERED THAT the September 17, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 16, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7