United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.J., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, Bremerton, WA,
Employer
__________________________________________

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

Docket No. 17-0267
Issued: January 27, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 15, 2016 appellant filed a timely appeal from a June 6, 2016 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has met his burden of proof to establish ratable hearing
loss.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional medical evidence after OWCP rendered its June 6, 2016
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision. Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On June 9, 2015 appellant, then a 60-year-old police officer, filed an occupational disease
claim (Form CA-2) for bilateral hearing loss, which he attributed to his federal employment. He
submitted a series of annual audiograms from July 2005 through October 2014, some of which
were administered as part of the employing establishment’s hearing conservation program.3
Appellant indicated that he first became aware of his employment-related hearing loss on
October 1, 2010. He reported that as a police officer, he was exposed to noise from trades
working in industrial areas, such as chipping, grinding, etc. Appellant was also exposed to noise
from vehicles and trucks while working the gates. His occupational noise exposure occurred for
up to eight hours per day and hearing protection was not permitted to be worn.
OWCP referred appellant to Dr. Julie Gustafson, a Board-certified otolaryngologist, for a
second opinion. In an October 20, 2015 report, Dr. Gustafson diagnosed sensorineural hearing
loss and tinnitus. She stated that appellant’s workplace exposure would be considered of
sufficient intensity and duration to have materially impacted the hearing loss in question. In
conclusion, Dr. Gustafson indicated that appellant had a mild high-frequency sensorineural
hearing loss that may be related to presbycusis, but could have a contribution from noise
exposure. An October 20, 2015 audiogram, performed on Dr. Gustafson’s behalf, reflected
testing at the frequency levels of 500, 1,000, 2,000, and 3,000 cycles per second and revealed the
following decibel (dB) losses: 10, 15, 10, and 25 for the right ear and 20, 15, 15, and 15 for the
left ear. Based on these results and in accordance with American Medical Association, Guides to
the Evaluation of Permanent Impairment (A.M.A., Guides) (5th ed. 2001), Dr. Gustafson
determined that appellant had zero percent binaural hearing loss. She also noted that appellant’s
hearing loss did not appear to be severe enough to warrant amplification at that time.
On November 6, 2015 OWCP accepted appellant’s claim for bilateral sensorineural
hearing loss and bilateral tinnitus, with an October 1, 2010 date of injury.
In a November 12, 2015 report, OWCP’s district medical adviser (DMA) reviewed
Dr. Gustafson’s report and October 20, 2015 audiometric test results. He concurred with
Dr. Gustafson’s finding of an “extremely mild” hearing loss. The DMA further noted that the
October 20, 2015 audiogram results showed no impairment for hearing loss or tinnitus based on
either the fifth or sixth editions of the A.M.A., Guides. He determined that the date of maximum
medical improvement was October 20, 2015, which coincided with the date of Dr. Gustafson’s
examination.4

3

The record indicates that appellant served in the Navy from August 1972 through August 1998. He worked in
the private sector from 1998 until May 2003, with no significant noise exposure. From May 2003 through
September 2008, appellant worked for the Department of Defense as a security guard. During that timeframe, he
reported limited exposure to noise from ships and tankers, approximately one hour per day. Appellant began work
as a police officer with the employing establishment on September 28, 2008.
4

The DMA further noted that appellant’s hearing loss was not severe enough to justify authorization of hearing
aids. Notwithstanding the consensus among Dr. Gustafson and the DMA that hearing aids (amplification) were
unnecessary, OWCP authorized hearing aids by letter dated November 17, 2015.

2

By decision dated November 20, 2015, OWCP found that the medical evidence of record
failed to establish a permanent, measurable, scheduled impairment under the A.M.A., Guides (6th
ed. 2009).
On December 18, 2015 appellant requested a review of the written record before a
representative of the Branch of Hearings and Review. He did not submit any additional medical
evidence with his request.
By decision dated June 6, 2016, an OWCP hearing representative affirmed the
November 20, 2015 decision. She noted that appellant did not submit any additional evidence to
support that his hearing loss was ratable for schedule award purposes.
LEGAL PRECEDENT
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions, and organs of the body.5 FECA,
however, does not specify the manner by which the percentage loss of a member, function, or
organ shall be determined. To ensure consistent results and equal justice under the law, good
administrative practice requires the use of uniform standards applicable to all claimants. The
implementing regulations have adopted the A.M.A., Guides as the appropriate standard for
evaluating schedule losses.6 Effective May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2009).7
Using the frequencies of 500, 1,000, 2,000, and 3,000 hertz (Hz), the losses at each
frequency are added up and averaged.8 Then, the “fence” of 25 dB is deducted because, as the
A.M.A., Guides points out, losses below 25 dB result in no impairment in the ability to hear
everyday speech under everyday conditions.9 The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss.10 The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss; the lesser loss is multiplied
by five, and then added to the greater loss and the total is divided by six to arrive at the amount
of the binaural hearing loss.11

5

For complete loss of hearing of one ear, an employee shall receive 52 weeks’ compensation. 5 U.S.C.
§ 8107(c)(13). For complete loss of hearing of both ears, an employee shall receive 200 weeks’ compensation. Id.
6

20 C.F.R. § 10.404.

7

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); see also Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6a
(February 2013).
8

See A.M.A., Guides 248-51 (6th ed. 2009), section 11.2, Hearing and Tinnitus.

9

Id. at 250.

10

Id. at 250-51.

11

Id. at 251.

3

ANALYSIS
On November 6, 2015 OWCP accepted appellant’s claim for bilateral sensorineural
hearing loss and bilateral tinnitus, with an October 1, 2010 date of injury. It had previously
referred appellant to Dr. Gustafson for an October 20, 2015 evaluation, which included an
audiogram. Dr. Gustafson correctly noted that the October 20, 2015 audiogram tested dB losses
at 500, 1,000, 2,000, and 3,000 cycles per second and recorded dB losses of 10, 15, 10, and 25,
respectively in the right ear. The total dB loss in the right ear is 60. When divided by 4, the
result is an average hearing loss of 15 dB. The average of 15 dB, reduced by 25 dB (the first 25
dB were discounted as discussed above), equals 0 dB, which when multiplied by the established
factor of 1.5 computes to zero percent hearing loss in the right ear. The October 20, 2015
audiogram tested dB losses for the left ear at 500, 1,000, 2,000, and 3,000 cycles per second and
recorded dB losses of 20, 15, 15 and 15, respectively. The total dB loss in the left ear is 65.
When divided by four, the result is an average hearing loss of 16.25 dB. The average hearing
loss of 16.25 is reduced by the fence of 25 dB to zero, which when multiplied by the established
factor of 1.5 computes zero percent hearing loss in the left ear. Therefore under this calculation
appellant had zero percent binaural hearing loss.
OWCP’s medical adviser concurred in the finding of zero percent binaural hearing loss
based on the October 20, 2015 audiogram results and found that appellant had no ratable hearing
loss under the A.M.A., Guides (6th ed. 2009).
Although appellant submitted annual audiometric test results dating back to July 2005,
these earlier audiograms are insufficient to meet appellant’s burden of proof as they did not
comply with the requirements set forth by OWCP. These tests lack speech testing and bone
conduction scores and were not prepared or certified as accurate by a physician as defined under
FECA. The audiograms were not accompanied by a physician’s opinion addressing how
appellant’s post-September 2008 employment-related noise exposure caused or aggravated any
hearing loss. OWCP is not required to rely on this evidence in determining the degree of
appellant’s hearing loss because it does not constitute competent medical evidence and,
therefore, is insufficient to satisfy appellant’s burden of proof.12
Dr. Gustafson provided a thorough examination and a reasoned opinion explaining how
the findings on examination and testing were causally related to the noise in appellant’s
employment. The Board finds that Dr. Gustafson’s audiometric test results showing zero percent
hearing loss represent the weight of the evidence. As there was no other medical evidence of
record establishing that appellant had ratable hearing loss causally related to employment factors,
the Board affirms OWCP’s June 6, 2016 decision affirming the November 20, 2015 decision
denying appellant a schedule award.
Appellant may request a schedule award or increased schedule award at any time based
on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.

12

Joshua A. Holmes, 42 ECAB 231, 236 (1990).

4

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish ratable hearing
loss.
ORDER
IT IS HEREBY ORDERED THAT the June 6, 2016 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 27, 2017
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.A., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Madison, WI,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 10-1801
Issued: May 12, 2011

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On June 28, 2010 appellant filed a timely appeal from the Office of Workers’
Compensation Programs March 3, 2010 nonmerit decision denying his request for
reconsideration. The Board docketed the appeal as No. 10-1801.
The Board has duly considered the matter and notes that on September 15, 2008
appellant, then a 42-year-old supervisor of distribution services, filed an occupational disease
claim alleging that on August 11, 2008 he first realized that his depression, panic attacks, chronic
anxiety, vomiting, irritability and nausea were due to stress and disparate treatment at work. In a
letter dated September 19, 2008, the Office advised appellant that the record was insufficient to
establish his claim and advised him as to the type of medical and factual evidence to submit. It
allotted him 30 days to provide the requested information. The Office denied his claim on
February 26, 2009. Appellant requested reconsideration and submitted medical and factual
evidence in support of his request including statements, medical reports from Dr. Jeffrey
Schiffman, a treating Board-certified psychiatrist, and Dr. Anthony J. Braus, a treating
psychiatrist; e-mails concerning his Family and Medical Leave Act requests, investigative
reports; a February 25, 2009 grievance settlement agreement and disciplinary action evidence.
However, in the March 3, 2010 decision denying reconsideration, the Office noted that appellant
failed to submit any new and relevant evidence.

Board precedent holds that the Office must review all the evidence submitted by a
claimant and received by the Office prior to the issuance of a final decision.1 As the Board’s
jurisdiction is final as to the subject matter, it is crucial that the Office accomplish this.2
Because the Office specifically found in its March 3, 2010 nonmerit decision that it had
not received new and relevant evidence, it is clear to this Board that the Office did not consider
the newly submitted evidence in reaching its decision. As such, the Board concludes that the
case must be remanded for review of this evidence. Following any further necessary
development, the Office shall issue an appropriate decision to protect appellant’s rights to future
appeals.
IT IS HEREBY ORDERED THAT the March 3, 2010 nonmerit decision of the Office
of Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this order of the Board.
Issued: May 12, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

1

See M.B., Docket No. 09-176 (issued September 23, 2009); Yvette N. Davis, 55 ECAB 475 (2004); Linda
Johnson, 45 ECAB 439 (1994) (evidence received the same day as the issuance of the Office’s decision); William A.
Couch, 41 ECAB 548 (1990); 20 C.F.R. § 501.6(c).
2

See id.

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
U.S. POSTAL SERVICE, ROCHESTER
PROCESSING & DISTRIBUTION CENTER,
Rochester, NY, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0970 & Docket
No. 21-0972
Issued: March 3, 2022

Case Submitted on the Record

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

On January 3, 2021 appellant also filed a timely appeal from a November 24, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP) under OWCP File No.
xxxxxx550. The Clerk of the Appellate Boards docketed the appeal as No. 21-0972. On June 10,
2021 appellant filed a timely appeal from a December 29, 2020 merit decision of OWCP under
OWCP File No. xxxxxx896. The Clerk of the Appellate Boards docketed that appeal as No.
21-0970.
With regard to OWCP File No. xxxxxx550, on October 27, 2007 appellant, then a 45-yearold mail processor, filed an occupational disease claim (Form CA-2) alleging that she developed
neck, shoulder, and wrist conditions due to factors of her federal employment, including lifting
trays, pushing containers, and moving mail. She noted that she first became aware of her condition
and its relation to her federal employment on October 27, 2007. OWCP accepted the claim for
right biceps strain and sprain of the shoulder and upper arm. On November 12, 2008 OWCP
expanded the acceptance of appellant’s claim to include right lateral epicondylitis, lesion of the
left ulnar nerve, and bilateral carpal tunnel syndrome.
With regard to OWCP File No. xxxxxx896, on January 3, 2017 appellant, then a 54-yearold mail processor, filed an occupational disease claim (Form CA-2) alleging that she developed

a left wrist condition due to factors of her federal employment, including repetitive fixing and
bagging of the mail. On April 5, 2017 OWCP accepted the claim for left radial styloid
tenosynovitis (de Quervain’s) under OWCP File No. xxxxxx896.
On June 1, 2020 appellant filed claims for compensation (Form CA-7) for a schedule award
under both OWCP File Nos. xxxxxx896 and xxxxx550. By decision dated November 24, 2020,
under OWCP File No. xxxxxx550, OWCP granted appellant a schedule award for seven percent
permanent impairment of her right upper extremity and nine percent permanent impairment of her
left upper extremity. The award ran for 47.76 weeks during the period September 14, 2020 to
August 14, 2021. By decision dated December 29, 2020, under OWCP File No. xxxxx896, OWCP
denied appellant’s schedule award claim, finding that the evidence of record was insufficient to
establish permanent impairment of a scheduled member or function of the body.
The Board has duly considered the matter and finds that these cases are not in posture for
decision.
Under its procedures, OWCP has determined that cases should be administratively
combined where a new injury case is reported for an employee who previously filed an injury
claim for the same part of the body and where correct adjudication depends on frequent crossreferencing between files.1 This will allow OWCP to consider all relevant claim files in developing
these schedule award claims.2
Appellant has claimed schedule awards in two claims, both accepted for injuries to her left
upper extremity. Therefore, for full and fair adjudication, the cases must be remanded to OWCP
to administratively combine OWCP File Nos. xxxxxx896 and xxxxxx550.3 Following this and
other such further development as deemed necessary, OWCP shall issue a de novo decision on
appellant’s schedule award claims.

1

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
2

Id. at Chapter 2.400.8(c)(1); E.J., Docket No. 20-1556 (issued July 27, 2021); V.G., Docket No. 19-0670 (issued
April 30, 2020); L.P., Docket Nos. 18-1558, 18-1568 (issued June 21, 2019); L.S., Docket Nos. 17-1863, 17-1867,
17-1868 (issued April 18, 2018); W.S., Docket No. 15-0969 (issued October 5, 2015); C.C., Docket No. 14-1576
(issued March 9, 2015).
3

Id.

2

IT IS HEREBY ORDERED THAT the November 24 and December 29, 2020 decisions
of the Office of Workers’ Compensation Programs under OWCP File Nos. xxxxxx550 and
xxxxxx896 are set aside and the cases are remanded to OWCP for further proceedings consistent
with this order of the Board.
Issued: March 3, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Atlanta, GA, Employer
__________________________________________

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Appearances:
Michael T. McCulley, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-2146
Issued: July 19, 2011

Case Submitted on the Record

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

JURISDICTION
On August 25, 2010 appellant filed a timely appeal from the March 1, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying modification of its
wage-earning capacity decision. Pursuant to the Federal Employees’ Compensation Act1 and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that modification of
OWCP’s wage-earning capacity decision was warranted.
FACTUAL HISTORY
On July 7, 2005 appellant, then a 54-year-old transportation security screener, sustained
an injury when she fell on her left side after handling a bag which was stuck on a conveyer belt.

1

5 U.S.C. §§ 8101-8193.

OWCP accepted that she sustained closed rib fractures and contusions of her chest wall and left
lower leg. Appellant stopped work and received OWCP compensation.
Appellant received treatment for her condition from Dr. Jorge R. Alvear, an attending
Board-certified anesthesiologist, who diagnosed chest wall pain and found her to be totally
disabled. In December 12, 2006 and January 18, 2007 reports, Dr. Harold H. Alexander, a
Board-certified orthopedic surgeon serving as an OWCP referral physician, stated that appellant
had only subjective pain in her left rib cage and posited that she could return to modified work
on a full-time basis.
In an April 11, 2007 report, Dr. Todd Zeigler, a Board-certified anesthesiologist serving
as an impartial medical specialist, indicated that appellant complained of swelling in her left rib
area but noted that his examination did not reveal swelling in that area. He indicated that bone
scan and x-ray testing of her ribs showed negative results. Dr. Zeigler diagnosed left rib
contusion, persistent pain complaints out of proportion to any objective findings and prolonged
disability and time away from work despite minimal objective findings. He concluded that
appellant could perform full-time work with restrictions from lifting more than 40 pounds and
lifting more than 25 pounds on a regular basis.
Beginning August 22, 2007 appellant began working for the employing establishment on
a full-time basis as a modified security screener for $644.56 per week. The position involved
reminding airline passengers about the procedures for passing through security and did not
require lifting more than 10 pounds.
In a November 15, 2007 decision, OWCP adjusted appellant’s compensation based on its
determination that her earnings as a modified security screener fairly and reasonably, effective
August 22, 2007, represented her wage-earning capacity. It indicated that appellant worked
more than 60 days in the modified position.
Appellant claimed that her work-related condition had worsened such that she could not
work as a modified security screener. She submitted an April 11, 2008 report in which
Dr. Alvear diagnosed chest wall pain and moderate thoracic radiculitis and indicated that she
might have sustained a thoracic disc bulge or herniation at the time of her original accident.
In a May 15, 2008 decision, OWCP affirmed its November 15, 2007 decision finding that
appellant had not established that modification of its wage-earning capacity decision was
warranted. It found that the medical evidence did not show a material change in the nature and
extent of appellant’s injury-related condition.
Appellant claimed that she sustained reflex sympathetic dystrophy syndrome due to her
July 7, 2005 condition, but OWCP denied her claim for this condition in a June 23, 2008
decision.2
In a February 10, 2008 report, Dr. Christopher Crooker, an attending Board-certified
internist, indicated that appellant suffered from permanent left side pain due to her July 2005 fall
at work and noted that she reported that standing and walking for long periods was painful. He
2

Appellant stopped work and retired from the employing establishment effective October 7, 2008.

2

posited that appellant was totally disabled from work. In an April 29, 2008 report, Dr. William
Bostock, an attending Board-certified family practitioner and osteopath, advised that appellant
was suffering from reflex sympathy dystrophy syndrome and was totally disabled. On May 5,
2008 Dr. Crooker reported that appellant had made some improvement but continued to have a
great deal of pain in her left lower chest on the axillary line.
Appellant also claimed that she sustained neuropathic pain disorder and major depression
due to her July 7, 2005 work injury. In a June 23, 2008 decision, OWCP found that appellant
had not shown these conditions were work related and affirmed its earlier determination that she
did not have work-related reflex sympathetic dystrophy syndrome.
In a September 18, 2008 report, Dr. Alvear stated that appellant suffered a workplace
injury resulting in ongoing pain within her left chest wall, noting that it was diagnosed as a
possible intercostal neuralgia and was treated as such. He stated that the x-rays showed no
pathology within the intercostal area and indicated, “I feel that due to the radiating nature of the
pain along the underside of the rib towards the left thorax indicates a likely thoracic
radiculitis….” In a November 5, 2008 report, Dr. Larry D. Empting, an attending Boardcertified neurologist, provided a history of the injury as provided by appellant and reported the
findings on examination, including pain complaints in various muscle groups.3 He stated that
appellant’s “ongoing myofascial features, the left shoulder, the left hip, the possible low back
contributors and the left rib contusion features” were all related to the July 7, 2005 accident.
Dr. Empting noted that appellant also likely suffered diabetes-induced peripheral neuropathy and
mononeuritis multiplex-type changes responsible for her distal peripheral neuropathy and her
ulnar and lateral femoral cutaneous nerve involvement.
In a January 22, 2009 decision, OWCP’s hearing representative affirmed OWCP’s
May 15, 2008 decision, indicating that appellant had not established work-related disability on or
after April 2, 2008.
Appellant continued to submit periodic reports from attending physicians showing that
she complained of chronic left chest pain and leg weakness.
In a January 12, 2010 order, the Board set aside the January 22, 2009 decision of OWCP
and remanded the case to OWCP for consideration of whether appellant met her burden to
establish that modification of OWCP’s wage-earning capacity decision was warranted. The
Board found that OWCP had improperly characterized the issue as whether appellant had
established a recurrence of disability on or after April 2, 2008.4
In a February 22, 2010 report, Dr. Crooker diagnosed unchanged abdominal pain of the
left upper quadrant and indicated that appellant was to continue her regular regimen.
In a March 1, 2010 decision, OWCP found that appellant did not meet her burden to
establish that modification of OWCP’s wage-earning capacity decision was warranted.
Appellant did not show that the original November 2007 wage-earning capacity determination
3

Dr. Empting noted that appellant’s muscle tone and bulk were intact and that she could toe walk and heel walk.

4

Docket No. 09-1411 (issued January 12, 2010).

3

was improper or that she underwent a material change in the nature and extent of her injuryrelated condition.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.5 OWCP’s procedure manual provides that, “[i]f a
formal loss of wage-earning capacity decision has been issued, the rating should be left in place
unless the claimant requests resumption of compensation for total wage loss. In this instance the
[claims examiner] will need to evaluate the request according to the customary criteria for
modifying a formal loss of wage-earning capacity.”6
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated, or the original determination was, in fact, erroneous.7 The burden of proof is on
the party attempting to show a modification of the wage-earning capacity determination.8 The
Board has held that a new injury does not constitute a material change in the nature and extent of
the original injury-related condition such that a wage-earning capacity determination should be
modified.9
In addition, Chapter 2.814.11 of the procedure manual contains provisions regarding the
modification of a formal loss of wage-earning capacity. The relevant part provides that a formal
loss of wage-earning capacity will be modified when: (1) the original rating was in error; (2) the
claimant’s medical condition has changed; or (3) the claimant has been vocationally
rehabilitated. Office procedures further provide that the party seeking modification of a formal
loss of wage-earning capacity decision has the burden to prove that one of these criteria has been
met.10
Section 8115(a) of FECA provides that the “wage-earning capacity of an employee is
determined by his actual earnings if his actual earnings fairly and reasonably represent his wageearning capacity.”11 The Board has stated, “Generally, wages actually earned are the best
measure of a wage-earning capacity and in the absence of evidence showing that they do not
5

Katherine T. Kreger, 55 ECAB 633 (2004).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995).
7

Stanley B. Plotkin, 51 ECAB 700 (2000).

8

Id.

9

M.E., Docket No. 07-2306 (issued March 24, 2008).

10

See Federal (FECA) Procedure Manual, supra note 4 at Chapter 2.814.11 (June 1996).

11

5 U.S.C. § 8115(a).

4

fairly and reasonably represent the injured employee’s wage-earning capacity, must be accepted
as such measure.”12 However, wage-earning capacity may not be based on an odd-lot or makeshift position designed for an employee’s particular needs or a position that is seasonal in an area
where year-round employment is available.13 Wage-earning capacity may only be based on a
temporary or part-time position if the position held by the employee at the time of injury was a
temporary or part-time position.14 Office procedures direct that a wage-earning capacity
determination based on actual wages be made following 60 days of employment.15
ANALYSIS
On July 7, 2005 appellant sustained work-related closed rib fractures and contusions of
her chest wall and left lower leg. After a period off work, she began working on August 22,
2007 as a modified security screener on a full-time basis. The position did not require lifting
more than 10 pounds. In a November 15, 2007 decision, OWCP adjusted appellant’s
compensation effective August 22, 2007 based on its determination that her earnings as a
modified security screener fairly and reasonably represented her wage-earning capacity.
Appellant later requested modification of this wage-earning determination.
Appellant has not shown that OWCP’s original wage-earning determination was
erroneous. The Board finds that OWCP’s determination that appellant’s actual earnings as a
modified security screener beginning August 22, 2008 fairly and reasonably represented her
wage-earning capacity was consistent with section 8115(a) of FECA which provides that the
wage-earning capacity of an employee is determined by her actual earnings if her actual earnings
fairly and reasonably represent her wage-earning capacity.16 OWCP properly noted that
appellant had received actual earnings as a modified security screener for more than 60 days in
that she had been working in the position since August 22, 2008 when OWCP issued its
November 15, 2007 decision and there is no evidence that appellant’s earnings in this position
did not fairly and reasonably represent her wage-earning capacity. The modified security
screener position was not an odd-lot or make-shift position designed for appellant’s particular

12

Floyd A. Gervais, 40 ECAB 1045, 1048 (1989); Clyde Price, 32 ECAB 1932, 1934 (1981). Disability is
defined in the implementing federal regulations as “the incapacity, because of an employment injury, to earn the
wages the employee was receiving at the time of injury.” (Emphasis added.) 20 C.F.R. § 10.5(f). Once it is
determined that the actual wages of a given position represent an employee’s wage-earning capacity, OWCP applies
the principles enunciated in Albert C. Shadrick, 5 ECAB 376 (1953), in order to calculate the adjustment in the
employee’s compensation.
13

See James D. Champlain, 44 ECAB 438, 440-41 (1993); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.7a(1) (July 1997).
14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7a(1), (3) (July 1997).
15

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment:
Capacity, Chapter 2.814.7c (December 1993).
16

See supra note 12 and accompanying text.

5

Determining Wage-Earning

needs and it was not seasonal in nature.17 Moreover, the position was not a temporary or parttime position.18
The evidence does not show that appellant’s actual earnings as a modified security
screener did not fairly and reasonably represent her wage-earning capacity and OWCP properly
adjusted her compensation based on this wage-earning capacity determination.19 For these
reasons, appellant has not shown that OWCP’s original determination with regard to her wageearning capacity was erroneous.
Appellant alleged that medical evidence showed that there was a material change in the
nature and extent of her employment-related condition. However, this evidence does not contain
a rationalized medical opinion explaining why an employment-related condition prevented
appellant from performing the modified security screener position or otherwise establish that
OWCP improperly determined her wage-earning capacity.20
After late 2007, several attending physicians indicated that appellant had continuing
symptoms due to her July 7, 2005 work accident, including chronic left chest pain, and posited
that these symptoms prevented her from working. For example, Dr. Crooker, an attending
Board-certified internist, indicated on February 10, 2008 that appellant suffered from permanent
left side pain due to her July 2005 fall at work and posited that she was totally disabled from
work. In an April 29, 2008 report, Dr. Bostock, an attending Board-certified family practitioner
and osteopath, advised that appellant was suffering from reflex sympathy dystrophy syndrome
and was totally disabled. On September 18, 2008 Dr. Alvear, an attending Board-certified
anesthesiologist, stated that appellant suffered a workplace injury resulting in ongoing pain
within her left chest wall, noting that it was diagnosed as a possible intercostal neuralgia and was
treated as such. He stated that appellant likely had thoracic radiculitis. In a November 5, 2008
report, Dr. Empting, an attending Board-certified neurologist, noted that appellant’s myofascial
pain, including that in the left shoulder, hip and ribs, were all related to the July 7, 2005 accident.
The Board notes, however, that these reports do not contain a clear opinion that
appellant’s injury-related condition had materially worsened to the extent that she could not
work as a modified security screener. The reports essentially show that appellant continued to
have relatively stable symptoms due to her work injury, including left chest pain, over an
extended period. On appeal, appellant alleged that she actually sustained a more serious
condition due to her July 7, 2005 work injury, such as reflex sympathetic dystrophy syndrome or
some type of neuropathic condition affecting her legs. However, the medical evidence of record
does not show that appellant sustained any injury on June 7, 2005 other than closed rib fractures
17

See supra note 13 and accompanying text.

18

See supra note 14 and accompanying text. In addition, Dr. Zeigler, a Board-certified anesthesiologist serving
as an impartial medical specialist, indicated on April 11, 2007 that appellant could perform full-time work with
restrictions from lifting more than 40 pounds and lifting more than 25 pounds on a regular basis. The duties of the
modified security screener position were within these restrictions.
19

OWCP properly applied the principles enunciated in Albert C. Shadrick, 5 ECAB 376 (1953), in order to
calculate the adjustment in appellant’s compensation.
20

See Norman F. Bligh, 41 ECAB 230, 237-38 (1989).

6

and contusions of her chest wall and left lower leg.21 Therefore, the record lacks medical
evidence showing that an injury-related condition prevented her from working as a modified
security screener.
Moreover, appellant has not been retrained or otherwise vocationally rehabilitated such
that her work as a modified security screener would not be representative of her wage-earning
capacity. For these reasons, she did not meet her burden of proof to establish that modification
of OWCP’s wage-earning capacity decision was warranted.
Appellant may request modification of the wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that
modification of OWCP’s wage-earning capacity decision was warranted.
ORDER
IT IS HEREBY ORDERED THAT the March 1, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 19, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

21

At least one attending physician attributed some of appellant’s neuropathic symptoms to her nonwork-related
diabetes.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
U.S. POSTAL SERVICE, CAYEY POST
OFFICE, Cayey, PR, Employer
__________________________________________
Appearances:
Thomas S. Harkins, Esq.
Office of the Solicitor, for the Director

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Docket No. 21-1337
Issued: March 18, 2022

Case Submitted on the Record

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

On September 6, 2021 counsel filed an appeal from a decision of the Office of Workers’
Compensation Programs (OWCP). The Office of the Clerk of the Appellate Boards assigned
Docket No. 21-1337 to this appeal. 1
The Board has duly considered the matter and recognizes that the current appeal was not
filed by appellant or his authorized representative. Section 501.3(a) of the Board’s Rules of
Procedure provides that a “person adversely affected by a final decision of the Director [of OWCP]
or his or her authorized Representative, may file an appeal of such decision by the Board .”2 The
Board concludes that neither a “person adversely affected” by a final OWCP decision, nor an
“authorized Representative,” has filed an appeal to the Board. As such, there is no valid appeal
before the Board and Docket No. 21-1337 must be dismissed.3 Accordingly,

1

By letter dated October 8, 2021 counsel advised the Board that he did not represent appellant and had inadvertently
filed the current appeal.
2

20 C.F.R. § 501.3(a).

The Board’s decisions and orders are “final upon the expiration of 30 days from the date of their issuance.” 20
C.F.R. § 501.6(d).
3

IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-1337 is dismissed.
Issued: March 18, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
DEPARTMENT OF THE INTERIOR, BUREAU
OF SAFETY & ENVIRONMENTAL
ENFORCEMENT, Washington, DC, Employer
__________________________________________

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Appearances:
Andrew Douglas, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-1285
Issued: March 4, 2022

Case Submitted on the Record

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

JURISDICTION
On August 25, 2021 appellant, through counsel, filed a timely appeal from an August 13,
2021 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). 2 Pursuant

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

Counsel did not appeal from July 2 and 16, 2021 OWCP merit decisions. He identified only the August 13, 2021
nonmerit decision on the application for review (Form AB-1). As such, the July 2 and 16, 2021 merit decisions are
not properly before the Board on the current appeal. See 20 C.F.R. § 501.3; see also M.M., Docket No. 20-0523
(issued August 25, 2020).

to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case. 4
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 25, 2017 appellant, then a 63-year-old administrative specialist, filed a
traumatic injury claim (Form CA-1) alleging that on that date she injured her left foot when a
19-pound box fell on her foot while in the performance of duty. She stopped work on the date of
injury. OWCP accepted appellant’s claim for left ankle and foot arthropathies and left foot
fracture. It paid wage-loss compensation on the supplemental rolls beginning March 20, 2017 and
placed her on the periodic rolls, effective February 4, 2018.
On March 1, 2018 OWCP referred appellant, along with a statement of accepted facts
(SOAF), a copy of the case record, and a series of questions, to Dr. Robert Smith, a Board-certified
orthopedic surgeon, for second opinion evaluation regarding the status of her accepted January 25,
2017 employment injury. In a March 15, 2018 report, Dr. Smith reviewed her history, including
the SOAF, and conducted a physical examination. In response to OWCP’s questions, he indicated
that appellant’s accepted left foot fracture and left foot and ankle arthropathies had resolved and
that the only remaining medical condition of concern was Complex Regional Pain Syndrome
(CPRS)/Reflex Sympathetic Dystrophy (RSD). Dr. Smith recommended a bone scan for the left
lower extremity.
On March 14, 2018 OWCP also referred appellant to Dr. Ira Kornbluth, a Board-certified
pain management and physical medicine and rehabilitation physician, for a second -opinion
examination. In an April 6, 2018 progress note, Dr. Kornbluth indicated that he had reviewed the
SOAF, and provided examination findings. In response to OWCP’s questions, he reported that
appellant had residuals of her left foot arthropathy condition. Dr. Kornbluth opined that she was
capable of working in “a light physical capacity level.” He completed a work capacity evaluation
form (Form OWCP-5c) which indicated that appellant could work full time with restrictions of
sitting up to 4 hours, walking, standing, bending/stooping, and operating a motor vehicle up to 1
hour, pushing, pulling, and lifting up to 10 pounds, and no squatting, kneeling, or climbing.
In a June 15, 2018 report, Dr. Lee Ann Rhodes, a Board-certified anesthesiologist and pain
medicine physician, recounted appellant’s complaints of left lower extremity pain since a
January 2017 work-related injury. She noted physical examination findings of slightly reduced
3

5 U.S.C. § 8101 et seq.

4

The Board notes that, following the August 13, 2021 decision, appellant submitted additional evidence to
OWCP. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence
in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be
considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from
reviewing this additional evidence for the first time on appeal. Id

2

range of motion and strength on the left lower extremity. Dr. Rhodes assessed RSD and opined
that appellant’s left foot RSD/CPRS was a direct result of her work injury. She also reported that
there were no tests to confirm this diagnosis and that bone density tests were not diagnostic.
On August 31, 2018 the employing establishment offered appellant a full-time, modifiedduty position as an administrative specialist based on Dr. Kornbluth’s work restrictions. The
physical requirements of the position included sitting up to 4 hours, walking, standing, operating
a motorized scooter, twisting, bending, and stooping up to 1 hour, and pushing, pulling, and lifting
up to 10 pounds less than 1 hour.
In an October 18, 2018 supplemental report, Dr. Kornbluth noted appellant’s accepted left
foot arthropathy and left foot fracture conditions. He indicated that she was not disabled from
work and could work at the sedentary physical capacity level.
In a November 30, 2018 letter, Dr. Smith opined that appellant did not have RSD in her
left lower extremity causally related to the accepted January 25, 2017 employment incident. He
explained that physical examination on March 15, 2018 did not show dystrophic signs of any kind
in her left lower extremity.
In a February 1, 2019 addendum note, Dr. Rhodes provided examination findings and
assessed CRPS of the left lower extremity. She reported that appellant met the criteria on skin
color changes, sensory changes in the area of pain, and edema. Dr. Rhodes indicated that
appellant’s pain prohibited appellant from working until August 2019.
In a February 5, 2019 letter, a human resources specialist for the employing establishment,
advised that the August 31, 2018 job offer remained available. He also noted that appellant did
not respond to the August 31, 2018 job offer.
By notice dated February 12, 2019, OWCP advised appellant that it determined that she
refused or failed to report to the offered position as a modified administrative specialist. It
informed her that it had reviewed the offered position and found that it was suitable in accordance
with the medical limitations provided by Dr. Kornbluth in his October 18, 2018 report. Pursuant
to 5 U.S.C. § 8106(c)(2), OWCP afforded appellant 30 days to either accept the position or to
provide adequate reasons for refusal. It informed her that, if she failed to report to work or failed
to demonstrate that the failure was justified, her right to compensation for wage loss or a schedule
award would be terminated.
By notice dated March 19, 2019, OWCP notified appellant that her reasons for refusing the
August 31, 2018 job offer were not valid. It provided her 15 days to accept the position or have
her entitlement to wage-loss compensation benefits terminated. OWCP advised appellant that the
offered position remained available.

3

On April 3, 2019 appellant returned to work, but stopped working after a few hours.5
By decision dated April 10, 2019, OWCP terminated appellant’s wage-loss compensation
and entitlement to a schedule award, effective April 10, 2019.
On April 9, 2020 appellant, through then-counsel, requested reconsideration. She asserted
that new medical documentation from appellant’s treating physician demonstrated that appellant
was justified in rejecting the August 31, 2018 job offer due to work restrictions resulting from the
January 25, 2017 employment injury.
Appellant submitted an April 24, 2019 functional capacity evaluation summary report,
which indicated that she was capable of working full-time modified light-duty work. OWCP also
received additional treatment notes, laboratory test result reports, and physical therapy notes dated
April 24 through November 4, 2019.
By decision dated July 6, 2020, OWCP denied modification of the April 10, 2019 decision.
On April 6, 2021 appellant, through counsel, requested reconsideration. Counsel argued
that OWCP failed to meet its burden of proof to terminate appellant’s wage-loss compensation
because a conflict in medical evidence existed between Dr. Smith, OWCP’s second opinion
examiner, and Dr. Rhodes, appellant’s treating physician, regarding whether appellant had CPRS
of the left lower extremity as a result of the January 25, 2017 employment incident and the need
for further medical treatment. Counsel asserted that this issue should have been resolved before
OWCP terminated appellant’s wage-loss compensation and entitlement to schedule award benefits
based on her refusal of suitable work.
In a June 14, 2019 report, Dr. Rhodes reviewed appellant’s history and recounted
appellant’s complaints of low back pain radiating into the left buttock, thigh, and calf. She
provided examination findings and diagnosed CRPS of the left lower extremity. Dr. Rhodes
reported that appellant was 100 percent disabled and could not return to work in any capacity.
By decision dated July 2, 2021, OWCP denied modification of the July 6, 2020 decision.
On July 23, 2021 appellant, through counsel, requested reconsideration. Counsel argued
that OWCP erroneously interpreted the law regarding a conflict in the medical evidence
requirement for a referee medical examination. He contended that a conflict in the medical opinion
evidence existed between Dr. Smith and Dr. Rhodes regarding whether appellant had CPRS
causally related to the accepted January 25, 2017 employment incident and whether appellant
required further medical treatment in order to return to work. Counsel asserted that OWCP erred
in terminating appellant’s wage-loss compensation benefits before a referee medical examiner
could resolve the conflict in medical evidence.

5

Appellant subsequently filed a notice of recurrence of disability (Form CA-2a) claim alleging that on April 3,
2019 she sustained a recurrence of the accepted January 25, 2017 employment injury. In a May 12, 2020 decision,
OWCP denied the recurrence claim. The recurrence issue is currently not before the Board.

4

By decision dated August 13, 2021, OWCP denied appellant’s request for reconsideration
of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 6
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (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.7
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 8 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 9 If the request is timely but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsidera tion without
reopening the case for review on the merits. 10
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
With appellant’s July 23, 2021 request for reconsideration, counsel submitted a statement
alleging that OWCP erroneously interpreted the law regarding a conflict in the medical evidence.
He argued that OWCP erred in terminating appellant’s wage-loss compensation benefits before an
impartial medical examiner could resolve the conflict in medical evidence between Dr. Smith and
Dr. Rhodes regarding whether appellant had CPRS causally related to the accepted January 25,
2017 employment incident and whether appellant required further medical treatment in order to
6

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
7

20 C.F.R. § 10.606(b)(3); see P.M., Docket No. 20-0780 (issued November 24, 2020); J.W., Docket No. 19-1795
(issued March 13, 2010); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
8

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (September 2020). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
9

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

10

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

5

return to work. Appellant’s reconsideration request does not advance a new legal argument not
previously considered nor show that OWCP erroneously applied or interpreted a specific point of
law. Her argument was substantially similar to that which was previously considered and
discussed in OWCP’s July 2, 2021 decision.11 Consequently, appellant is not entitled to further
review of the merits of her claim based on either the first or second above-noted requirements
under 20 C.F.R. § 10.606(b)(3). 12
Furthermore, the Board finds that appellant has not provided any relevant and pertinent
new evidence not previously considered. 13 Thus, appellant is also not entitled to a review of the
merits of her claim based on the third above-noted requirement under section 10.606(b)(3).14
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. 15
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

11

See T.S., Docket No. 20-0968 (issued August 17, 2021); see also J.V., Docket No. 19-1554 (issued
October 9, 2020).
20 C.F.R. § 10.606(b)(3)(i) – (ii); P.M., Docket No. 20-0780 (issued November 24, 2020); G.Q., Docket No. 181697 (issued March 21, 2019); Alan G. Williams, 52 ECAB 180 (2000).
12

13

T.H., Docket No. 20-1598 (issued June 2, 2021); F.D., Docket No. 19-0890 (issued November 8, 2019).

14

20 C.F.R. § 10.606(b)(3)(iii); J.V., Docket No. 19-1554 (issued October 9, 2020); T.M., Docket No. 19-0535
(issued July 25, 2019).
15

S.M., Docket No. 21-0392 (issued August 12, 2021); D.G., Docket No. 19-1348 (issued December 2, 2019); A.R.,
Docket No. 16-1416 (issued April 10, 2017); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006)
(when a request for reconsideration does not meet at least one of the three requirements enumerated under section
10.606(b), OWCP will deny the request for reconsideration without reopening the case for a review on the merits).

6

ORDER
IT IS HEREBY ORDERED THAT the August 13, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 4, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.M., Appellant
and
U.S. POSTAL SERVICE, WYLIE POST
OFFICE, Wylie, TX, Employer
__________________________________________

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

Docket No. 21-0603
Issued: November 10, 2021

Case Submitted on the Record

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

JURISDICTION
On March 8, 2021 appellant filed a timely appeal from a January 22, 2021 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). 1 As more than 180 days
has elapsed from OWCP’s last merit decision, dated July 16, 2020, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction to review the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

1

Appellant also indicated that she was appealing from an April 10, 2020 OWCP decision. The Board notes that
there is no April 10, 2020 decision of record.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 3, 2015 appellant, then a 48-year-old rural carrier, filed an occupational disease
claim (Form CA-2) alleging that she sustained carpal tunnel syndrome (CTS) caused by factors of
her federal employment including casing, holding and delivering mail. She first became aware of
the condition and its relationship to her federal employment on January 1, 2013. After initially
denying the claim, OWCP accepted right CTS, radial styloid tenosynovitis, and bilateral other
synovitis and tenosynovitis. It later expanded the acceptance of appellant’s claim to include a
lesion of the ulnar nerve of the left upper limb and olecranon bursitis of the right elbow.
Electromyography (EMG) diagnostic and motor nerve conduction velocity (NCV) test
results dated March 17, 2016 demonstrated bilateral abnormalities in the median nerve/abductor
pollicis brevis on the right and left distal to the wrists, bilateral neuropathy of the wrists involving
the median nerve, prolonged distal latency and decreased amplitude of the bilateral median motor
nerves, and prolonged latency in the left median sensory nerve with decreased amplitude in the
right median and ulnar sensory nerves.
On October 13, 2016 appellant underwent OWCP-approved left ulnar nerve
decompression and open carpal tunnel release.
In an attending physician’s report (Form CA-20) dated April 4, 2017, Dr. Cynthia
Goodman, Board-certified in physical medicine and rehabilitation, diagnosed right CTS, right
radial styloid tenosynovitis, bilateral other synovitis and tenosynovitis, a left lesion of the ulnar
nerve, and olecranon bursitis of the right elbow. In an accompanying duty status report (Form
CA-17) of even date, she advised that appellant would be off work from April 4 through 20, 2017.
OWCP received another Form CA-20 from Dr. Goodman dated June 15, 2017 containing the same
diagnoses.
On June 8, 2017 appellant underwent OWCP-approved right open carpal tunnel release
and right ulnar nerve decompression at the elbow.
OWCP continued to receive duty status reports (Forms CA-17) from Dr. Goodman wherein
she related appellant’s work status.
On September 10, 2018 appellant filed a claim for compensation (Form CA-7) for a
schedule award.
In a report dated July 25, 2018, Dr. Rory L. Allen, an osteopath and family medicine
specialist, found that appellant’s date of maximum medical improvement (MMI) was July 25, 2018
and, referring to the sixth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment (A.M.A., Guides)3, calculated a total left upper extremity impairment
of 12 percent and a total right upper extremity impairment of 11 percent.
On April 10, 2019 OWCP referred the record, including a statement of accepted facts, to
Dr. David J. Slutsky, a Board-certified orthopedic surgeon serving as a district medical adviser
3

A.M.A., Guides (6 th ed. 2009).

2

(DMA), to review Dr. Allen’s July 5, 2018 report and to determine appellant’s percentage of
permanent impairment and date of MMI. In a report received May 21, 2019, Dr. Slutsky reviewed
the medical record, including Dr. Allen’s July 25, 2018 report. Referring to the sixth edition of
the A.M.A., Guides, he calculated appellant’s total left upper extremity impairment as two percent
and her total right upper extremity impairment as eight percent. Dr. Slutsky explained why his
impairment ratings differed from the rating of Dr. Allen and found that appellant’s date of MMI
was July 25, 2018.
By report dated September 25, 2019, Dr. Allen replied to Dr. Slutsky’s May 21, 2019
report, attaching an amended impairment rating report that maintained the earlier calculations of
11 percent total right upper extremity permanent impairment and 12 percent total left upper
extremity permanent impairment.
On February 26, 2020 OWCP requested an addendum report from Dr. Slutsky to respond
to Dr. Allen’s September 25, 2019 report. On April 10, 2020 Dr. Slutsky rendered an addendum
report, noting that his reliance on postoperative electrodiagnostic studies to calculating an
impairment rating for nerve entrapment was not in conformance with the sixth edition A.M.A.,
Guides. He corrected QuickDASH scores from his earlier report and calculated total right upper
extremity permanent impairment of eight percent and total left upper extremity permanent
impairment of two percent. The date of MMI remained July 25, 2018.
By decision dated July 16, 2020, OWCP granted appellant a schedule award for eight
percent permanent impairment of the right upper extremity and two percent permanent impairment
of the left upper extremity. The award ran from July 25, 2018 through February 28, 2019.
On August 7, 2020 appellant requested a change of address.
Appellant resubmitted the March 17, 2016 EMG/NCV diagnostic study. She resubmitted
CA-17 forms dated April 4 and June 15, 2017, October 1 and 29 and November 26, 2018, and
January 23 and February 25, 2019. Appellant also resubmitted CA-20 forms from Dr. Goodman
dated April 4 and June 15, 2017.
On October 25, 2020 appellant requested reconsideration of OWCP’s July 16, 2020
schedule award decision.
On November 20, 2020 appellant informed OWCP of her address change and her correct
date of birth.
By decision dated January 22, 2021, OWCP denied appellant’s request for reconsideration.
It found that the medical evidence received since the July 16, 2020 decision were repetitious and
that her notes about her address change and birthdate were irrelevant to the underlying issue of
permanent impairment.

3

LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 4
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (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.5
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 6 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 7 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 8
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
Appellant’s October 25, 2020 request for reconsideration neither alleged nor demonstrated
that OWCP erroneously applied or interpreted a specific point of law. Addition ally, the Board
finds that it did not advance a relevant legal argument not previously considered by OWCP.
Consequently, appellant is not entitled to further review of the merits of her claim based on either
the first or second above-noted requirements under 20 C.F.R. § 10.606(b)(3).
In support of her reconsideration request, appellant resubmitted a March 17, 20216
EMG/NCV diagnostic study. She also resubmitted CA-17 forms dated April 4 and June 15, 2017,
October 1 and 29 and November 26, 2018, and January 23 and February 25, 2019. Additionally,
appellant resubmitted CA-20 forms from Dr. Goodman dated April 4 and June 15, 2017. The
4

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
5

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
6

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

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

8

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

4

Board finds that, as these reports were duplicative of evidence of record and previously considered
by OWCP, they did not constitute relevant and pertinent new evidence. 9 As such, they do not
constitute a basis for merit review of appellant’s claim based on the third requirement under 20
C.F.R. § 10.606(b)(3).
Appellant also submitted a request for a change of address and noted her correct birth date.
The underlying issue in this case is whether she has met her burden of proof to establish entitlement
to an increased schedule award for the right and left upper extremities. That is a medical issue
which must be addressed by relevant and pertinent new medical evidence. 10 While the request for
a change of address and the note that appellant’s birth date was incorrect, were not previously of
record, they are irrelevant to the underlying issue in this case. The Board has held that the
submission of evidence or argument which does not address the particular issue involved does not
constitute a basis for reopening a case. 11 As appellant failed to provide relevant and pertinent new
evidence, she is not entitled to a merit review based on the third requirement under 20 C.F.R.
§ 10.606(b)(3).
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.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

9

Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a case. See T.W., Docket No. 18-1088 (issued February 14, 2019); A.R., Docket No.
17-1504 (issued May 25, 2018); Eugene F. Butler, 36 ECAB 393, 398 (1984).
10

See Bobbie F. Cowart, 55 ECAB 746 (2004).

11

A.J., Docket No. 20-0926 (issued January 26, 2021); Jimmy O. Gilmore, 37 ECAB 257 (1985); Edward Matthew
Diekemper, 31 ECAB 224 (1979).

5

ORDER
IT IS HEREBY ORDERED THAT the January 22, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 10, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Houston, TX, Employer
__________________________________________

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

Docket No. 21-1185
Issued: March 4, 2022

Case Submitted on the Record

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

JURISDICTION
On July 29, 2021 appellant filed a timely appeal from an April 15, 2021 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish a traumatic injury
in the performance of duty on February 18, 2021, as alleged.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the April 15, 2021 decision, OWCP received additional evidence. The Board’s
Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that was
before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for
the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

FACTUAL HISTORY
On March 9, 2021 appellant, then a 29-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that she suffered a “traumatic injury” on February 18, 2021 when she was
robbed at gun point by two male suspects while in the performance of duty. On the reverse side
of the claim form the employing establishment acknowledged that she was injured in the
performance of duty and that its knowledge of the facts of her injury was consistent with her
statements. Appellant stopped work on February 19, 2021.
A February 18, 2021 police report noted that appellant was robbed at gun point by two
male suspects who fled the scene.
In a development letter dated March 12, 2021, OWCP informed appellant that it had
received no medical evidence in support of her traumatic injury claim. It advised her of the type
of factual and medical evidence needed to establish her claim and provided a questionnaire for her
completion. OWCP also requested a narrative medical report from appellant’s treating physician,
which contains a detailed description of findings and a diagnosis, explaining how the claimed
employment incident caused, contributed to, or aggravated her medical conditions. It afforded her
30 days to submit the necessary evidence. Appellant did not submit a response.
By decision dated April 15, 2021, OWCP denied appellant’s traumatic injury claim,
finding that she had not established the factual component of her claim, as she had not provided
evidence or a statement explaining how she was injured as a result of the alleged employment
incident. It noted that she had not responded to the March 12, 2021 development letter. OWCP
concluded, therefore, that the requirements had not been met to establish an injury as defined by
FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 4 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 6

3

Supra note 1.

4

F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).

2

To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established. 7
Generally, fact of injury consists of two components that must be considered in conjunction with
one another. First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time and place, and in the manner alleged. 8 Second,
the employee must submit sufficient evidence to establish that the employment inc ident caused a
personal injury. 9
To establish that an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
circumstances and his or her subsequent course of action. The employee has not met his or her
burden when there are such inconsistencies in the evidence as to cast serious doubt on the validity
of the claim. Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury, and failure to obtain
medical treatment may, if otherwise unexplained, cast sufficient doubt on the employee’s
statements in determining whether a prima facie case has been established. 10 An employee’s
statement alleging that an injury occurred at a given time and in a given manner is of great
probative value and will stand unless refuted by strong or persuasive evidence.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a traumatic
injury in the performance of duty on February 18, 2021, as alleged.
In her Form CA-1, appellant indicated that she was robbed at gunpoint on February 18,
2021 by two male suspects, which was confirmed by a police report of even date. However, she
did not provide an explanation as to how she was injured or what body part was injured as a result
of the alleged employment incident. In a development letter dated March 12, 2021, OWCP
requested that appellant submit clarifying information describing how and when her claimed injury
occurred and provided a questionnaire for her completion. However, appellant did not complete
and return the March 12, 2021 development questionnaire. Therefore, she has failed to present a
clear factual statement in the record describing the specific alleged employment-related incident
alleged to have caused or contributed to her claimed medical condition.12 As she has not responded
to the request for factual information to describe the employment incident and circumstances

7

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

8

D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

9

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

10

C.M., Docket No. 20-1519 (issued March 22, 2021); Betty J. Smith, 54 ECAB 174 (2002).

11

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

12

See D.C., Docket No. 18-0082 (issued July 12, 2018).

3

surrounding her alleged injury, the Board finds that appellant has not established that a traumatic
injury occurred in the performance of duty on February 18, 2021, as alleged.13
The Board further finds that, because appellant failed to establish the first component of
fact of injury, it is unnecessary to discuss whether she submitted medical evidence sufficient to
establish that a medical condition existed and whether the condition was causally related to the
employment factors as alleged. 14 Thus, the Board finds that appellant has not met her burden of
proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an injury in the
performance of duty, as alleged.

13

See H.B., Docket No. 18-0278 (issued June 20, 2018); John R. Black, 49 ECAB 624 (1998); Judy Bryant, 40
ECAB 207 (1988); Martha G. List, 26 ECAB 200 (1974).
14

See R.L., Docket No. 17-1670 (issued December 14, 2018); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997)
(as appellant failed to establish that the claimed event occurred as alleged, it is unnecessary to discuss the probative
value of medical evidence).

4

ORDER
IT IS HEREBY ORDERED THAT the April 15, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 4, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.L., Appellant
and
DEPARTMENT OF STATE, LOS ANGELES
PASSPORT AGENCY, Los Angeles, CA,
Employer
__________________________________________

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

Docket No. 18-1732
Issued: April 2, 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 September 14, 2018 appellant filed a timely appeal from an August 29, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the August 29, 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 has met her burden of proof to establish a traumatic injury
causally related to the accepted July 12, 2018 employment incident.
FACTUAL HISTORY
On July 19, 2018 appellant, then a 45-year-old passport specialist, filed a traumatic injury
claim (Form CA-1) alleging that on July 12, 2018 she injured her left arm when she stumbled and
hit a metal cabinet while in the performance of duty. On the reverse side of the claim form the
employing establishment indicated that appellant had been injured while in the performance of
duty. It noted that appellant stopped work on July 13, 2018 and returned to work on July 16, 2018.
In a report dated July 13, 2018, Dr. Quynh Thuy Dinh, Board-certified in internal medicine,
related that she examined appellant for left arm and left hand pain. She did not indicate a diagnosis.
Dr. Dinh noted that appellant should see her workers’ compensation physician.
In a development letter dated July 23, 2018, OWCP informed appellant that the evidence
of record was insufficient to establish her claim. It advised that she should submit a rationalized
medical opinion which provided a diagnosis of her condition and explained how the employment
incident caused the diagnosed condition. OWCP afforded appellant 30 days to provide the
necessary evidence. No further evidence was received.
By decision dated August 29, 2018, OWCP denied appellant’s traumatic injury claim. It
found that she had not established a diagnosed medical condition due to the accepted July 12, 2018
employment incident and, therefore, she had not met the requirements to establish an injury as
defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including 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 is 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

3

Supra note 1.

4

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

5
P.F., Docket No. 18-0973 (issued January 22, 2019); S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB
153 (1989).

2

To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.6 First,
the employee must submit sufficient evidence to establish that he or she actually experienced
the employment incident at the time, place, and in the manner alleged.7 Second, the employee
must submit sufficient evidence, generally only in the form of medical evidence, to establish that
the employment incident caused a personal injury.8
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence.9 Rationalized medical opinion evidence is
medical evidence which includes a physician’s rationalized opinion on whether there is causal
relationship between the employee’s diagnosed condition and the compensable employment
factors.10 The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the employee.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a traumatic
injury causally related to the accepted July 12, 2018 employment incident.
The Board finds that appellant has not submitted medical evidence from a physician
containing a diagnosis in connection with the July 12, 2018 employment incident.12 The only
medical evidence of record is an after visit summary dated July 13, 2018 from Dr. Dinh in which
she indicated that she examined appellant for left arm and left hand pain, and noted that appellant
should visit a workers’ compensation physician. The Board has explained that pain is not
considered a diagnosis as it merely refers to symptoms of the underlying condition.13 Because
Dr. Dinh’s July 13, 2018 after visit summary did not contain a firm diagnosis or opinion regarding
causal relationship, it is insufficient to establish that appellant sustained a medical condition
causally related to the accepted July 12, 2018 employment incident.14 Appellant has the burden
6

B.F., Docket No. 09-0060 (issued March 17, 2009); Bonnie A. Contreras, supra note 4.

7

P.F., supra note 5; D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

8
C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra
note 4.
9

E.J., Docket No. 18-0207 (issued July 13, 2018); A.D., 58 ECAB 149 (2006).

10

J.J., Docket No. 09-0027 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2008).

11

P.R., Docket No. 18-0737 (issued November 2, 2018).

12

See E.B., Docket No. 18-0014 (issued July 12, 2018); L.F., Docket No. 17-1511 (issued November 28,
2017); J.P., Docket No. 14-0087 (issued March 14, 2014).
13

See T.C., Docket No. 18-1498 (issued February 13, 2019).

14

See R.C., Docket No. 18-1639 (issued February 26, 2019).

3

of proof to submit rationalized medical evidence establishing that a diagnosed medical condition
was causally related to the accepted July 12, 2018 employment incident.15 She has not submitted
such evidence and thus has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a traumatic
injury causally related to the accepted July 12, 2018 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the August 29, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 2, 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

15

Id.

4