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

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

Docket No. 09-2206
Issued: May 18, 2010

Case Submitted on the Record

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

JURISDICTION
On September 2, 2009 appellant filed a timely appeal from the August 4, 2009 merit
decision of the Office of Workers’ Compensation Programs denying claimed periods of
recurrences of disability. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained
recurrences of total disability between October 27, 2004 and April 15, 2005 due to his
October 24, 2004 employment injury.
FACTUAL HISTORY
This is the second appeal in this case. The Board issued a decision on January 15, 2009
affirming the Office’s finding that appellant did not meet his burden of proof to establish that he

sustained recurrences of total disability between October 27, 2004 and April 15, 2005.1 In
support of his claim, appellant had submitted reports of Dr. Shannon T. Herr, an attending
chiropractor, and Dr. Gerald L. Peer, an attending Board-certified anesthesiologist. The Board
agreed with the Office’s findings that Dr. Herr’s reports did not constitute probative medical
evidence because he did not qualify as a physician under the Federal Employees’ Compensation
Act and that Dr. Peer did not provide any indication that the disability he found between
March 18 and April 1, 2005 was related to the October 24, 2004 employment injury or any other
employment-related cause. The facts and the circumstances of the case up to that point are set
forth in the Board’s prior decision and are incorporated herein by reference.
Appellant continued to claim that he sustained recurrences of total disability between
October 27, 2004 and April 15, 2005. In a February 19, 2009 report, Dr. Peer stated that
appellant underwent a surgical procedure performed by him on March 18, 2005, which was
related to his on-the-job injury of October 24, 2004. He stated:
“The bill for this procedure was accepted and paid for by [the Office] in relation
to this injury. [Appellant] did have a normal period of total disability from work
following the surgical procedure on March 18, 2005. This disability is therefore
related to his on-the-job injury of October 24, 2004.”2
Appellant also submitted reports, dated January 29, March 13, May 19 and July 8, 2009,
in which Dr. Peer discussed the treatment of his medical problems. Dr. Peer noted that appellant
continued to experience pain in his neck and low back.3 None of the reports related the observed
conditions or provided treatment to appellant’s October 24, 2004 employment injury or
otherwise indicated that he sustained work-related recurrences of total disability between
October 27, 2004 and April 15, 2005. The record contains several bills and authorization letters
from the period around March 2005.
In an August 4, 2009 decision, the Office denied appellant’s claim on the grounds that he
did not submit sufficient medical evidence to show that he sustained recurrences of total
disability between October 27, 2004 and April 15, 2005 due to his October 24, 2004 employment
injury.

1

Docket No. 08-1829, issued January 15, 2009. Portions of the Board’s decision indicate that appellant claimed
recurrences of disability between April 15, 2005 and October 27, 2007 but the decision actually found that he did not
establish his claim of recurrences of disability between October 27, 2004 and April 15, 2005. The Office accepted
that on October 24, 2004 appellant, then a 47-year-old mail handler, sustained a lumbar sprain/strain due to moving
an all-purpose container filled with mail. Appellant stopped work on October 24, 2004 and returned to his regular
work the next day. He stopped work on October 27 to 29, November 10 to 14, December 12 to 13 and 22 to 25,
2004, January 25 to 30, February 2 to 6 and 14 to 20 and March 19 to April 15, 2005 and claimed that these work
stoppages constituted recurrences of total disability due to his October 24, 2004 employment injury.
2

A review of the record reveals that on March 13, 2005 Dr. Peer performed a radiofrequency facet neurolysis
procedure at left L3, L4 and L5 under fluoroscopy. The procedure was designed to interrupt the flow of pain
signals.
3

On March 13, 2009 Dr. Peer performed a bilateral radiofrequency facet neurolysis procedure at L3, L4, L5, 51
under fluoroscopy.

2

LEGAL PRECEDENT
An individual 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 compensation is claimed is causally related to the
accepted injury.4 This burden includes the necessity of furnishing medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes
that the disabling condition is causally related to the employment injury and supports that
conclusion with sound medical rationale.5 Where no such rationale is present, medical evidence
is of diminished probative value.6
ANALYSIS
The Office accepted that appellant sustained a lumbar sprain/strain at work on
October 24, 2004. Appellant stopped work on October 24, 2004 and returned to his regular work
as a mail handler the next day. He stopped work on October 27 to 29, November 10 to 14,
December 12 to 13 and 22 to 25, 2004, January 25 to 30, February 2 to 6 and 14 to 20 and
March 19 to April 15, 2005 and claimed that these work stoppages constituted recurrences of
total disability due to his October 24, 2004 employment injury.
The Board finds that appellant did not submit sufficient medical evidence to establish that
he sustained recurrences of total disability between October 27, 2004 and April 15, 2005, due to
his October 24, 2004 employment injury.
In a February 19, 2009 report, Dr. Peer, an attending Board-certified anesthesiologist,
stated that appellant underwent a surgical procedure performed by him on March 18, 2005,
which was related to his on-the-job injury of October 24, 2004. A review of the record reveals
that on March 13, 2005 he performed a radiofrequency facet neurolysis procedure at left L3, L4
and L5 under fluoroscopy. Dr. Peer asserted that the bill for this procedure was accepted and
paid by the Office as related to the work injury. He noted, “[that appellant] did have a normal
period of total disability from work following the surgical procedure on March 18, 2005. This
disability is therefore related to his on-the-job injury of October 24, 2004.”
The Board notes that this report does not contain sufficient rationale to support
appellant’s claim that he sustained a recurrence of disability between October 27, 2004 and
April 15, 2005. The record contains bills and authorization letters from the period around
March 2005, but none of these documents show that the Office paid for and/or accepted that the
radiofrequency facet neurolysis procedure performed on March 18, 2005 was related to the
October 24, 2004 employment injury.7 Dr. Peer did not describe the March 18, 2005 procedure
4

Charles H. Tomaszewski, 39 ECAB 461, 467 (1988); Dominic M. DeScala, 37 ECAB 369, 372 (1986).

5

Mary S. Brock, 40 ECAB 461, 471-72 (1989); Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

6

Michael Stockert, 39 ECAB 1186, 1187-88 (1988).

7

The Office paid some medical bills during this period but there is no indication that it approved the March 18,
2005 test as work related.

3

or explain how it was necessitated by the October 24, 2004 employment injury. Moreover, he
did not identify any specific period of disability. In addition, it should be noted that appellant’s
claim was only accepted for a lumbar sprain/strain and not for any radicular pain condition.
Appellant also submitted reports, dated January 29, March 13, May 19 and July 8, 2009,
in which Dr. Peer discussed the treatment of his neck and low back problems.8 However,
Dr. Peer did not provide an opinion that his observed conditions or need for treatment were
related to his October 24, 2004 employment injury. He did not indicate in these reports that
appellant sustained work-related recurrences of total disability between October 27, 2004 and
April 15, 2005.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither, the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief that his condition was aggravated by his employment is sufficient to
establish causal relationship.9 Appellant failed to submit rationalized medical evidence
establishing that his claimed recurrence of disability is causally related to the accepted
employment injury and therefore the Office properly denied his claim for compensation.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained recurrences of total disability between October 27, 2004 and April 15, 2005 due to his
October 24, 2004 employment injury.

8

On March 13, 2009 Dr. Peer performed a bilateral radiofrequency facet neurolysis procedure at L3, L4, L5, 51
under fluoroscopy.
9

See Walter D. Morehead, 31 ECAB 188, 194-95 (1986).

4

ORDER
IT IS HEREBY ORDERED THAT the August 4, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 18, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.R., Appellant
and
DEPARTMENT OF THE ARMY, HUMAN
RESOURCES COMMAND, Alexandria, VA,
Employer
__________________________________________

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Appearances:
Dean E. Wanderer, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-575
Issued: January 4, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 29, 2008 appellant filed a timely appeal from an October 7, 2008 nonmerit
decision of the Office of Workers’ Compensation Programs, denying her request for
reconsideration on the grounds that it was not timely filed and did not present clear evidence of
error. There is no merit decision within one year of the filing of this appeal. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of the claim.
ISSUE
The issue is whether the Office properly denied appellant’s April 8, 2008 request for
reconsideration on the grounds that it was not timely filed and did not establish clear evidence of
error.
On appeal, counsel asserts that on October 17 and December 17, 2007 he timely
requested reconsideration of a January 23, 2007 merit decision denying appellant’s claim. He

contends that the Office erred by refusing to act on his correspondence until appellant authorized
his representation.1
FACTUAL HISTORY
On October 20, 2006 appellant, then a 48-year-old human resources specialist, filed a
traumatic injury claim (Form CA-1) alleging that she fractured her left ankle and right foot at
10:00 a.m. on October 19, 2006 when she fell on a sidewalk in front of a restaurant next to the
office building where she worked.2 Her scheduled shift began at 7:00 a.m. Appellant stopped
work on October 19, 2006. It is not clear from the record whether she returned to work.
In a December 12, 2006 telephone memorandum, the Office noted that the employing
establishment did not own or control the sidewalk where appellant fell. The employing
establishment advised that she “may have been on a smoke break.”
In a December 21, 2006 letter, the Office advised appellant that the evidence did not
establish that she was in the performance of duty at the time of the October 19, 2006 incident. It
requested that she describe what she was doing at the time and place of the injury. Appellant
submitted a January 17, 2007 statement, asserting that, as she walked out of the building with
two coworkers, she turned and fell on an uneven sidewalk in front of a restaurant.
By decision dated January 23, 2007, the Office denied appellant’s claim on the grounds
that she was not in the performance of duty at the time of the October 19, 2006 incident. It found
that the claimed injury did not occur on the employing establishment’s premises. Appellant did
not submit evidence establishing that her fall arose out of and in the course of her federal
employment.
In an April 2, 2008 letter received by the Office on April 8, 2008, counsel claimed to
represent appellant. He requested reconsideration of the January 23, 2007 decision, asserting
that she was on an authorized smoking break at the time of the injury. Counsel enclosed an
appeal form dated and signed by appellant on September 24, 2007, requesting reconsideration of
the January 23, 2007 decision. He enclosed a sketch of the accident site.
In an April 18, 2008 letter, the Office advised that counsel’s April 8, 2008 letter was not a
valid request for reconsideration as there was no notice of representation of record. Therefore, it
would take no action on his correspondence. The Office advised appellant that to request
reconsideration, she or a properly appointed representative, must make such request within one
year of the date of the decision she was asking the Office to reconsider.

1

On appeal, counsel submitted documents not previously of record at the time the Office issued the final merit
decision in the case on January 23, 2007. The Board may not consider evidence for the first time on appeal that was
not before the Office at the time it issued the final merit decision in the case. 20 C.F.R. § 501.2(c).
2

On October 19, 2006 appellant underwent open reduction and internal fixation of a displaced left bimalleolar
ankle fracture. Dr. David A. Kavjian, an attending Board-certified orthopedic surgeon, also diagnosed a right fifth
metatarsal fracture. Appellant submitted periodic progress notes.

2

In an April 24, 2008 letter, counsel asserted that he submitted October 17 and
December 17, 2007 requests for reconsideration and a notice of representation. He contended
that his paralegal spoke to Office personnel about appellant’s claim, thus indicating the Office’s
awareness of his representation. Counsel enclosed copies of the October 17 and December 17,
2007 letters, medical reports, leave forms and legal extracts.
In a July 11, 2008 letter, the Office advised appellant that it would take no action on
counsel’s April 24, 2008 correspondence until it received her signed and dated authorization of
representation. On July 22, 2008 appellant authorized counsel to represent her for purposes of
her compensation claim.
In a September 18, 2008 letter received by the Office on October 2, 2008, appellant,
through her attorney, requested reconsideration of the Office’s April 18, 2008 letter. It was
contended that she was on an authorized smoking break at the time of the October 19, 2006
injury.
By decision dated October 7, 2008, the Office denied appellant’s April 8, 2008 request
for reconsideration as it was not timely filed within one year of the Office’s January 23, 2007
decision. Regarding appellant’s September 18, 2008 request for reconsideration, it noted that its
April 18, 2008 letter was not a final decision and there was no provision for reconsideration from
such correspondence.
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act3 does not entitle a claimant
to a review of an Office decision as a matter of right.4 This section vests the Office with
discretionary authority to determine whether it will review an award for or against
compensation.5 The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority. One such limitation is that the Office will not review a decision denying
or terminating a benefit unless the application for review is filed within one year of the date of
that decision.6 The Board has found that the imposition of this one-year time limitation does not
constitute an abuse of the discretionary authority granted the Office under 5 U.S.C. § 8128(a).7
In those cases where requests for reconsideration are not timely filed, the Office must
nevertheless undertake a limited review of the case to determine whether there is clear evidence
of error pursuant to the untimely request in accordance with section 10.607(b) of its regulations.8
3

5 U.S.C. § 8128(a).

4

Thankamma Mathews, 44 ECAB 765, 768 (1993).

5

Thankamma Mathews, id.; see also Jesus D. Sanchez, 41 ECAB 964, 966 (1990).

6

20 C.F.R. §§ 10.607; 10.608(b). The Board has concurred in the Office’s limitation of its discretionary
authority; see Gregory Griffin, 41 ECAB 186 (1989), petition for recon., denied, 41 ECAB 458 (1990).
7

5 U.S.C. § 10.607(b); Thankamma Mathews, supra note 4, Jesus D. Sanchez, supra note 5.

8

Thankamma Mathews, supra note 4.

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Office regulations state that the Office will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation set forth in the Office’s regulations, if the
claimant’s request for reconsideration shows “clear evidence of error” on the part of the Office.9
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.10 The evidence must be positive, precise and explicit and must
be manifest on its face that the Office committed an error.11 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.12 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.13 This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office.14
Section 20 C.F.R. § 10.701 provides in pertinent part that a claimant “may authorize any
individual to represent him or her in regard to a claim under the FECA [Federal Employee’s
Compensation Act].”15 Under definitions, 20 C.F.R. § 10.5(z) states: “Representative means an
individual properly authorized by a claimant in writing to act for the claimant in connection with
a claim or proceeding under the FECA or this part.”16 Section 20 C.F.R. § 10.700(c) provides
that “[a] properly appointed representative who is recognized by [the Office] may make a request
or give direction to [the Office] regarding the claims process, including a hearing.” Section 20
C.F.R. § 10.606 provides in pertinent part that “[a]n employee (or representative) seeking
reconsideration should send the application for reconsideration to the address as instructed by
[the Office] in the final decision.”
The Board has held that there is no requirement that the Office actually have the
authorization in hand at the time an authorized representative acts on behalf of a claimant. The
representative only need to show that he (or she) was authorized at the time such action was
undertaken.”17

9

20 C.F.R. § 10.607(b).

10

Thankamma Mathews, supra note 4.

11

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

12

Jesus D. Sanchez, supra note 5.

13

Leona N. Travis, supra note 11.

14

Nelson T. Thompson, 43 ECAB 919, 922 (1992).

15

5 U.S.C. § 8101 et seq.

16

See David M. Ibarra, 48 ECAB 218 (1996).

17

Ira D. Gray, 45 EAB 445 (1994).

4

ANALYSIS
In its October 7, 2008 decision, the Office properly determined that appellant failed to
file a timely application for review. It rendered its most recent merit decision on
January 23, 2007. Appellant requested reconsideration on April 8, 2008 more than one year after
January 3, 2007. Accordingly, her request for reconsideration was not timely filed.
On appeal, counsel contends that he filed timely requests for reconsideration on
November 17 and December 17, 2007. He argued that the Office must have received these
letters as its personnel discussed appellant’s case by telephone with his paralegal. However,
counsel did not submit any postmarks, certified return receipts, certificates of mailing or other
evidence that he mailed these letters or to establish that the Office received them. There is no
evidence corroborating the alleged telephone conversations.
Counsel also asserts that the Office erred by failing to act on his correspondence
submitted prior to July 22, 2008, when appellant authorized his representation. As noted, the
Office’s implementing regulations regarding the representation of claimants clearly state that for
a representative to be recognized by the Office, the claimant must submit a signed written notice
to the Office appointing the representative.18 Appellant did not submit a signed, written notice to
the Office authorizing counsel’s representation until July 22, 2008. Therefore, the Office
properly refused to act on his correspondence until she filed a proper notice authorizing him to
act on her behalf for the purposes of her compensation claim.19 The Board notes that after
appellant authorized counsel’s representation, the Office acted on his April 8, 2008 request for
reconsideration, his first letter of record.
The Board finds that appellant’s April 8, 2008 letter does not raise a substantial question
as to whether the Office’s January 23, 2007 decision was in error or shift the weight of the
evidence in her favor. Therefore, it is insufficient to establish clear evidence of error. The
medical evidence, leave forms and legal extracts submitted in support of the request are
insufficient to establish clear evidence of error by the Office. These documents do not address
the issue of performance of duty, the critical issue in the January 23, 2007 merit decision.
Evidence that is not germane to the issue on which the claim was denied is insufficient to
demonstrate clear evidence of error.20 Therefore, the evidence accompanying the April 8, 2008
letter is insufficient to raise a substantial question as to the correctness of the Office’s
January 23, 2007 decision.
Appellant has not submitted argument or evidence of sufficient probative value to shift
the weight of the evidence in her favor or raise a substantial question as to the correctness of the
Office’s decision denying her claim. Consequently, the Office properly denied appellant’s
reconsideration request as her request does not establish clear evidence of error.

18

20 C.F.R. § 10.5(z).

19

Shirley Rhynes, 55 ECAB 703 (2004).

20

Thankamma Mathews, supra note 4.

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CONCLUSION
The Board finds that appellant’s April 8, 2008 request for reconsideration was untimely
filed and failed to show clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 7, 2008 is affirmed.
Issued: January 4, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.O., Appellant
and
U.S. POSTAL SERVICE, RAVENSWOOD
STATION, Chicago, IL, Employer
__________________________________________

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

Docket No. 10-64
Issued: July 2, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 7, 2009 appellant filed a timely appeal from a June 30, 2009 merit decision
of the Office of Workers’ Compensation Programs finding that she did not establish a recurrence
of disability. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant sustained a recurrence of disability on March 12, 2009
causally related to her July 4, 2006 employment injury.
FACTUAL HISTORY
On July 12, 2006 appellant, then a 31-year-old letter carrier, filed a claim alleging that on
July 4, 2006 she sustained pain in her lower back and tailbone in the performance of duty. She

stopped work on July 6, 2006 and returned to limited-duty employment on July 10, 2006. The
Office accepted the claim for lumbar strain.1
On April 1, 2009 appellant filed a notice of recurrence of disability on March 12, 2009
causally related to her July 4, 2006 work injury. She stopped work on March 12, 2009.
Appellant related that she carried mail for a week and a half when she returned to work but
began experiencing sharp mid and lower back pain. She stated, “When I returned to work since
the last injury the back pain was coming and going. At the time I was doing clerk duties. Now
I’ve been carrying mail for about 2 week and injured again.”
In an accompanying statement, a manager with the employing establishment indicated
that appellant performed clerical duties after her work injury. On March 2, 2008 appellant began
working as a letter carrier two hours per day in accordance with her medical restrictions. The
manager related, “During this two[-]week period of her return she has consistently requested to
do indoor work which is outside of her job as a letter carrier….”
By letter dated April 15, 2009, the Office requested additional factual and medical
information from appellant regarding her alleged recurrence of disability. It informed her that
she should submit a supporting statement that she stopped work while in a light-duty position
because the position changed such that it was no longer within her work restrictions. The Office
further advised appellant that if she stopped work because her condition worsened she should
submit supporting medical evidence.
In a disability certificate dated March 12, 2009, a chiropractor diagnosed lumbosacral and
shoulder pain.2 He found that she was disabled from March 12 to 17, 2009.3
In a report dated May 7, 2009, Dr. Alicja Poleszak, Board-certified in family practice,
noted that she treated appellant for low back pain radiating into the right leg and knee which
increased “with prolonged sitting, getting-up and any movements.” On examination she found
tenderness of the right paraspinal muscle and decreased range of motion due to pain.
Dr. Poleszak related that a magnetic resonance imaging (MRI) scan study showed “mild
spondylotic changes, mild degenerative changes of L5-S1 level and mild foramina stenosis.”
She indicated that she had referred appellant for chiropractic care.
On May 11, 2009 appellant related that she “wanted to know about my reimbursement
dating back to March 14, 2009. Currently, I am not receiving pay for those 2 hours per day, five
days a week that I’d worked, since I return for modified duty in Feb 2009.” She also questioned
whether she had authorization for treatment for her back.

1

By decision dated May 2, 2008, the Office denied appellant’s claim for compensation from July 24 to
August 18, 2007 on the grounds that the medical evidence was insufficient to show that she was disabled due to her
accepted work injury.
2

The diagnosed conditions are nearly illegible and the name of the chiropractor is illegible.

3

Appellant also submitted medical evidence predating the alleged recurrence of disability.

2

By decision dated June 30, 2009, the Office found that appellant had not established a
recurrence of disability causally related to her July 4, 2006 work injury. It determined that the
medical evidence was insufficient to show that she had a current condition due to her accepted
employment injury.
On appeal, appellant contends that her continuing back injury and March 2009 recurrence
of disability resulted from her original injury. She noted that she had a recurring back injury
after a few weeks of carrying mail which resulted in recurrent bilateral carpal tunnel syndrome.
LEGAL PRECEDENT
Where an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that the employee can perform the light-duty position, the employee has the burden to
establish by the weight of the reliable, probative and substantial evidence, a recurrence of total
disability and to show that he or she cannot perform such light duty. As part of this burden, the
employee must show a change in the nature and extent of the injury-related condition or a change
in the nature and extent of the light-duty job requirements.4
Office regulations provide that 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
had resulted from a previous injury or illness without an intervening injury or new exposure to
the work environment that caused the illness.5 This term also means an inability to work that
takes place when a light-duty assignment made specifically to accommodate an employee’s
physical limitations due to his or her work-related injury or illness is withdrawn, (except when
such withdrawal occurs for reasons of misconduct, nonperformance of job duties or a reductionin-force) or when the physical requirements of such an assignment are altered so that they exceed
his or her established physical limitations.6
ANALYSIS
The Office accepted that appellant sustained lumbar strain due to a July 4, 2006
employment injury. Appellant stopped work on July 6, 2006 and returned to limited-duty
employment on July 10, 2006. On March 2, 2008 she began performing the duties of a letter
carrier for two hours per day. Appellant stopped work on March 12, 2009 and filed a notice of
recurrence of disability beginning that date causally related to her July 4, 2006 employment
injury.
By letter dated April 15, 2009, the Office requested that appellant submit a supporting
statement if she believed that she sustained a recurrence of disability as the result of a change in
the requirements of her limited-duty position. Appellant did not respond to the Office’s request
4

Richard A. Neidert, 57 ECAB 474 (2006); Jackie D. West, 54 ECAB 158 (2002); Terry R. Hedman, 38 ECAB
222 (1986).
5

20 C.F.R. § 10.5(x).

6

Id.

3

and thus has neither alleged nor established a change in the nature and extent of her light-duty
job requirements. Consequently, she must provide medical evidence establishing that she was
disabled beginning March 12, 2009 due to a worsening of her accepted work-related condition of
lumbar strain.7
On March 12, 2009 a chiropractor diagnosed lumbosacral and shoulder pain and opined
that appellant was disabled from March 12 to 17, 2009. Section 8101(2) of the Federal
Employees’ Compensation Act provides that the “term ‘physician’ includes chiropractors only to
the extent that their reimbursable services are limited to treatment consisting of manual
manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist….”8 A
chiropractor cannot be considered a physician under the Act unless it is established that there is a
subluxation as demonstrated by x-ray evidence.9 As the chiropractor did not diagnose a
subluxation as demonstrated by x-ray, he is not considered a “physician” under the Act and his
report is of no probative value.10
On May 7, 2009 Dr. Poleszak described her treatment of appellant for low back pain
radiating down the right lower extremity which increased with movement and extended sitting.
She listed findings of tenderness of the right paraspinal muscle and loss of range of motion due
to pain and discussed the MRI scan study findings of mild degenerative changes at L5-S1, mild
foramina stenosis and mild spondylotic changes. Dr. Poleszak did not address the cause of
appellant’s low back pain or the findings on MRI scan study. The Board has held that medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of
diminished probative value on the issue of causal relationship.11 Additionally, Dr. Poleszak did
not address the relevant issue of whether appellant was disabled from work beginning
March 12, 2009.12
On appeal, appellant contends that her March 2009 recurrence of disability was causally
related to her accepted work injury.13 An award of compensation, however, may not be based on
surmise, conjecture, speculation or upon her own belief that there is a causal relationship

7

See Jackie D. West, supra note 4.

8

5 U.S.C. § 8101(2); see also Michelle Salazar, 54 ECAB 523 (2003).

9

The Office’s regulation, at 20 C.F.R. § 10.5(bb), defines subluxation to mean an incomplete dislocation, offcentering, misalignment, fixation or abnormal spacing of the vertebrae which must be demonstrated on x-ray. See
Mary A. Ceglia, 55 ECAB 626 (2004).
10

Isabelle Mitchell, 55 ECAB 623 (2004).

11

S.E., 60 ECAB ___ (Docket No. 08-2214, issued May 6, 2009); Conrad Hightower, 54 ECAB 796 (2003).

12

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).
13

Appellant also noted that she had a recurring back injury after a few weeks of carrying mail which resulted in
recurrent bilateral carpal tunnel syndrome. A recurrence of disability, however, does not include disability resulting
from exposure to new work factors, even if it involves the same part of the body previously injured. 20 C.F.R.
§ 10.5(x); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3b(2) (May 1997).

4

between her claimed condition and her employment.14 Appellant must submit a physician’s
report in which the physician reviews those factors of employment she identified as causing her
condition and, taking these factors into consideration as well as findings upon examination and
the medical history, explain how employment factors caused or aggravated any diagnosed
condition and present medical rationale in support of his or her opinion.15 She failed to submit
such evidence and therefore failed to discharge her burden of proof.
CONCLUSION
The Board finds that appellant has not established that she sustained a recurrence of
disability on March 12, 2009 causally related to her July 4, 2006 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 30, 2009 is affirmed.
Issued: July 2, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

14

George H. Clark, 56 ECAB 162 (2004); Patricia J. Glenn, 53 ECAB 159 (2001).

15

Robert Broome, 55 ECAB 339 (2004).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
U.S. POSTAL SERVICE, INCOMING MAIL
FACILITY, Linthicum, MD, Employer
__________________________________________

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

Docket No. 07-1289
Issued: September 25, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 6, 2007 appellant filed a timely appeal of the March 23, 2007 merit decision of
the Office of Workers’ Compensation Programs, which denied his claim for an employmentrelated emotional condition. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has
jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant sustained an emotional condition in the performance of
duty on January 23, 2007.
FACTUAL HISTORY
On January 30, 2007 appellant, a 47-year-old mail processing equipment mechanic, filed
a traumatic injury claim for employment-related stress. He attributed his condition to a
January 23, 2007 employment incident involving his supervisor, Delbert Tullius, Jr. Appellant
alleged that, on the evening of January 23, 2007, he was seated at his workbench when
Mr. Tullius approached to tell him something. Although he did not indicate what was stated to

him, appellant alleged that he shook his head in response and then Mr. Tullius hit him and asked
“‘[D]id you hear me[?]” On the claim form, Mr. Tullius indicated that he had only touched
appellant on the shoulder to get his attention.
Maxine G. Dawkins, a union steward, provided a statement regarding conversations she
had with both appellant and Mr. Tullius soon after the January 23, 2007 employment incident.
She indicated that appellant came to her office complaining that Mr. Tullius had put his hands on
him. Shortly after appellant left the union office, Mr. Tullius came in and explained why
appellant was upset. Ms. Dawkins stated that she asked Mr. Tullius if he had put his hands on
appellant and he answered in the affirmative. She then admonished Mr. Tullius for his conduct,
noting that it was unbecoming of a supervisor.
In a February 5, 2007 statement, Mr. Tullius indicated that he touched appellant’s right
shoulder with his index finger in order to get appellant’s attention. He explained that he had
asked appellant at least three times if he needed any additional tools or parts to do his job.
Appellant reportedly turned away from Mr. Tullius and did not respond to the questioning. At
that point, Mr. Tullius touched appellant’s shoulder. In response, appellant jumped out of his
seat and yelled “DON’T YOU TOUCH ME! DON’T YOU EVER LAY YOUR HANDS ON
ME.” Mr. Tullius explained that he and several of his family members wore hearing aids and it
was customary for him to touch his hearing-impaired relatives to get their attention. This was
what he was attempting to do when he touched appellant’s shoulder on January 23, 2007.
In a February 21, 2007 statement, appellant indicated that Mr. Tullius used his whole
hand and hit him on the upper arm. He stated that, on January 23, 2007 at 8:35 p.m., Mr. Tullius
came to his workstation and slammed a box of equipment down and stated, “[H]ere is (sic) 10
gates. That should keep you until 2300 h[ou]rs.” Appellant looked at Mr. Tullius, nodded his
head O.K., and kept working on the gates. Mr. Tullius then hit him on his left upper arm with
his whole hand and stated in a hard tone “Did you hear me?” Appellant stated that the incident
caused significant stress and frustration. He also refuted Mr. Tullius’ February 5, 2005 statement
that he had asked appellant at least three times if he needed any additional tools or parts to do his
job. Appellant indicated that Mr. Tullius did not ask him anything three times.
Dr. Nicki Lankerani, a psychiatry resident at the Veterans Affairs Medical Center in
Baltimore, MD, saw appellant on January 24, 2007. She explained that appellant had been
receiving treatment at the mental health clinic since May 2005, and that she had personally
worked with him since July 2006, which included weekly meetings for psychotherapy and
medication management. According to Dr. Lankerani, appellant’s working diagnoses were
mood disorder, anxiety disorder and post-traumatic stress disorder (PTSD). She indicated that he
was partially compliant with his current medications, Depakote and Risperdal. Dr. Lankerani
also noted that during therapy sessions appellant reported significant stress at work related to
problems with management. He reported being harassed and excluded from meetings and
having been told he was not allowed breaks. Appellant also claimed to have received degrading
comments regarding his purported illiteracy. He was also reported being told he had nothing
important to say. Dr. Lankerani noted that “most recently [appellant reported being] hit on the
shoulder by the supervisor for not responding to the harassment.” She explained that, due to
appellant’s long-standing problems with anxiety, mood swings and hypervigilance, he had a
difficult time coping with work-related stressors. Dr. Lankerani stated that appellant had

2

completed anger management classes and participated in some PTSD groups to learn new coping
skills. She explained that appellant’s frustrations at work had contributed to problems with selfesteem and mood. Dr. Lankerani advised that, given problems with current stresses, appellant
might benefit from being transferred to another branch or work environment.
By decision dated March 23, 2007, the Office denied appellant’s emotional condition
claim. The Office accepted that Mr. Tullius touched appellant on the shoulder to get his
attention. However, appellant alleged that Mr. Tullius hit him, which the Office found was not
supported by the record. The Office denied the claim on the basis that appellant failed to
establish fact of injury. Appellant purportedly failed to establish his version of events regarding
the January 23, 2007 employment incident.
LEGAL PRECEDENT
To establish that he sustained an emotional condition causally related to factors of his
federal employment, appellant must submit: (1) factual evidence identifying and supporting
employment factors or incidents alleged to have caused or contributed to his condition;
(2) rationalized medical evidence establishing that he has an emotional condition or psychiatric
disorder; and (3) rationalized medical opinion evidence establishing that his emotional condition is
causally related to the identified compensable employment factors.1
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to one’s employment. There are situations where an injury or illness has some
connection with the employment, but nevertheless, does not come within the purview of
workers’ compensation. When disability results from an emotional reaction to regular or
specially-assigned work duties or a requirement imposed by the employment, the disability is
deemed compensable. Disability is not compensable, however, when it results from factors such
as an employee’s fear of a reduction-in-force or frustration from not being permitted to work in a
particular environment or hold a particular position.2 Perceptions and feelings alone are not
compensable. To establish entitlement to benefits, a claimant must establish a basis in fact for
the claim by supporting his allegations with probative and reliable evidence.3 When the matter
asserted is a compensable factor of employment and the evidence of record establishes the truth
of the matter asserted, the Office must base its decision on an analysis of the medical evidence.4
ANALYSIS
The Office found that Mr. Tullius touched appellant on the shoulder to get his attention.
Because appellant claimed that Mr. Tullius hit him, the Office concluded that the January 23,
2007 incident was not established as alleged.
1

See Kathleen D. Walker, 42 ECAB 603 (1991).

2

Lillian Cutler, 28 ECAB 125 (1976).

3

Kathleen D. Walker, supra note 1. Unless a claimant establishes a compensable factor of employment, it is
unnecessary to address the medical evidence of record. Garry M. Carlo, 47 ECAB 299, 305 (1996).
4

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

3

In this case, the distinction drawn by the Office between touching and hitting is not
dispositive on the issue of whether appellant established a compensable employment factor. The
primary issue is whether Mr. Tullius had physical contact with appellant on January 23, 2007.
Physical contact by a coworker or supervisor may give rise to a compensable work factor if the
incident occurred as alleged.5 The statements from both appellant and Mr. Tullius establish that
there was physical contact between them on January 23, 2007. Mr. Tullius did not deny
initiating the contact, as acknowledged to Ms. Dawkins. Appellant did not allege that he was
physically injured by the force of Mr. Tullius’ contact with his left upper arm. Mr. Tullius’
reason for placing all or part of his hand on appellant’s upper body is of little or no importance.
His stated purpose of merely trying to get appellant’s attention is inconsequential. The amount
of force applied to appellant’s upper extremity or the reason for the physical contact is not
determinative as to the compensability of the incident. Accordingly, the Board finds that a
compensable employment factor has been established in that Mr. Tullius made physical contact
with appellant on January 23, 2007. The Office’s March 23, 2007 decision will be modified to
reflect this finding. Because the Office previously found that no compensable factors were
established, it did not review the medical evidence of record. The case will be remanded to the
Office for further development as it deems necessary, followed by the issuance of an appropriate
de novo decision on the merits.
CONCLUSION
The Board finds that the case is not in posture for decision.

5

Denise Y. McCollum, 53 ECAB 647, 648 (2002).

4

ORDER
IT IS HEREBY ORDERED THAT the March 23, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed as modified and the case is remanded for further
action consistent with this decision.
Issued: September 25, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Oklahoma City, OK, Employer
__________________________________________

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

Docket No. 19-1354
Issued: March 13, 2020

Case Submitted on the Record

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

JURISDICTION
On May 28, 2019 appellant filed a timely appeal from a December 3, 2018 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP).1 The most recent merit
decision was a Board decision dated March 13, 2018, which became final 30 days after issuance,
and is not subject to further review.2 As there was no merit decision by OWCP within 180 days
of the filing of this appeal, pursuant 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.
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 December 3, 2018, the date of OWCP’s last decision, was
June 1, 2019. As this fell on a Saturday, appellant had until the following business day, Monday, June 3, 2019, to file
the appeal. Since using June 4, 2019, 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 May 28, 2019, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

20 C.F.R. § 501.6(d). See G.G., Docket No. 18-1074 (issued January 7, 2019).

3

5 U.S.C. § 8101 et seq.

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
This case has previously been before the Board.4 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are set forth
below.
On February 11, 2008 appellant, then a 51-year-old administrative assistant, filed an
occupational disease claim (Form CA-2) alleging that she developed constant pain in both elbows,
hands, arms, and her neck and back as a result of her employment duties. She indicated that she
first became aware of her condition and first realized that it resulted from her employment on
January 15, 2008. On the reverse side of the claim form, the employing establishment reported
that appellant was last exposed to the conditions alleged to have caused her conditions on
“February 12, 2008.” OWCP accepted her claim for bilateral lateral epicondylitis, bilateral medial
epicondylitis, sciatica, and neck sprain. It subsequently expanded acceptance of appellant’s claim
to include bilateral carpal tunnel syndrome.5 OWCP paid wage-loss compensation for total
disability on the periodic rolls, effective June 7, 2009.
On December 5, 2014 OWCP mailed appellant an EN1032 form for her completion. The
form instructed her to report all employment for which she received a salary, wages, income, sales
commissions, piecework, or payment of any kind. Appellant was also directed to report all selfemployment activities or involvement in business enterprises, including (but not limited to)
farming, sales work, operating a business, and providing services in exchange for money, goods,
or other services. The kinds of services that she was required to report included such activities as
carpentry, mechanical work, painting, contracting, child care, keeping books and records, and
managing and overseeing a business of any kind, including a family business. The form also
instructed appellant to report any work or ownership interest in any business enterprise, even if the
business lost money or if profits or income were reinvested or paid to another.
The cover letter for the EN1032 form included the following warning: “A false or evasive
answer to any question, or the omission of an answer, may be grounds for forfeiting your
compensation benefits and subject you to civil liability.” The forms contained certification clauses
which informed appellant of the consequences of not accurately reporting her employment

4

Docket No. 17-1362 (issued March 13, 2018).

5

Under OWCP File No. xxxxxx455, OWCP accepted appellant’s September 15, 2008 occupational disease claim
for cervical spondylosis without myelopathy or radiculopathy, cervical disc degeneration, lumbar spondylosis without
myelopathy or radiculopathy, lumbar spondylolisthesis, bilateral pes planus, neck sprain, bilateral medial and lateral
epicondylitis, and bilateral carpal tunnel syndrome as causally related to her employment duties. On September 1,
2010 OWCP combined the current case under OWCP File No. xxxxxxx045 with OWCP File No. xxxxxx455 with the
latter file as the master file.

2

activities, such as being subjected to criminal penalties and losing the right to receive workers’
compensation benefits.
On December 27, 2014 appellant completed and signed the EN1032 form. In response to
the question of whether she worked for an employer for the past 15 months, she reported “No.”
Appellant also responded “No” to the question of whether she was self-employed or involved in
any business enterprise in the past 15 months.
On June 12, 2015 OWCP received a narrative statement from appellant. Appellant
indicated that she needed to correct an answer on the yearly paperwork form. She explained that
her husband had purchased a snow cone trailer and had added her name to the permits, trailer, and
limited liability company (LLC) just in case anything happened to him. Appellant reported that
she answered “No” on the EN1032 form and that she did not think about the snow cone trailer
until her husband opened it for business over the summer.
In a July 23, 2015 letter, the employing establishment’s Office of Inspector General (OIG)
informed OWCP that an investigation into appellant revealed that she had been operating her own
business and had failed to report the employment activities to OWCP. It requested that OWCP
issue a forfeiture decision due to her failure to disclose her employment.
On July 27, 2015 OWCP received an OIG summary report of investigation, which
indicated that during surveillance OIG agents had observed appellant working at a snow cone
business, carrying merchandise and buckets, unloading supplies from a trailer, writing on the
outside menu of the business, setting up tables and umbrellas, staking signs in the ground, and
serving snow cones to customers.
In a completed Form EN1032 dated February 7, 2016, appellant answered “yes” that she
was self-employed or involved in a business enterprise from the period April 1 to
September 1, 2015. She explained that she and her husband bought a snow cone stand and that
she bought and delivered cups, checked on the employees, and visited with customers a couple of
times. Appellant noted a pay rate of $8.00/hour.
In a February 7, 2016 narrative statement, appellant explained that her husband had added
her name to the title of the snow cone stand that he had bought because he had lung cancer. She
indicated that, while grocery shopping with her husband, they occasionally bought cups, straws,
or napkins and dropped them off at the snow cone stand. Appellant also related that the snow cone
stand was two blocks from her house and that she occasionally stopped by to see how the business
was operating and visit with customers. She reported that neither she nor her husband were paid
or received any wages while operating the snow cone stand.
By decision dated August 18, 2016, OWCP found that appellant had forfeited her wageloss compensation for the period September 27, 2013 through December 27, 2014 for failure to
report her business and employment activities or earnings on a Form EN1032. The forfeiture
period covered the 15 months preceding the December 27, 2014 EN1032 form. OWCP found that
appellant had knowingly provided false information about earnings and self-employment on that

3

EN1032 form. It also determined that all compensation paid during the period would be considered
an overpayment subject to recovery in accordance with 5 U.S.C. § 8129.6
OWCP received a September 21, 2016 letter by Dr. John Ellis, Board-certified in family
medicine, who related that appellant had severe anxiety and depression due to the multiple
work-related injuries to her neck, upper extremities, lumbar spine, and feet. Dr. Ellis noted that
she was under the influence of narcotic pain medicine when she filled out the Form EN1032 in
2014 and opined that she was not fully aware of what she was signing.
In an October 18, 2016 report, Dr. Gary A. Rouse, a clinical psychologist, related that,
since his original evaluation in September 2008, appellant had continued to decline emotionally
and physically. He opined that she was not competent or knowledgeable enough to understand
what she was signing or attesting to or to understand the complexity or legal implications of
partnerships and LLCs.
In a January 31, 2017 statement, appellant explained that she had not received money from
her husband’s snow cone business nor did she perform any job activities. She reported that her
husband had recently dissolved the LLC.
On August 18, 2017 appellant requested reconsideration of the August 18, 2016 forfeiture
decision. In a statement dated August 9, 2017, she asserted that she believed that she was not
required to report her investment income as work activities since there was no evidence that the
three to five hours total spent at the business could be construed as integral to the operation of the
business. Appellant cited to FECA Procedure Manual 2.402.5 and S.G.,7 and contended that the
Board has distinguished between the reporting requirements for income received from passive
investment and earnings and income received by performing work and earning wages. She also
alleged that she was not fully aware when she signed the LLC documents due to her deteriorating
mental health, severe anxiety, and depression. Appellant also cited to B.Y.,8 alleging that the Board
had previously found that, in finding that a claimant forfeited compensation, OWCP could not rely
solely on video tape and summary submitted by the employing establishment’s OIG. She also
noted her disagreement with the OIG investigation and her interview with the OIG agents.

6

By separate decision dated August 18, 2016, OWCP also issued a preliminary determination that appellant
received an overpayment of compensation in the amount of $43,832.60 for the period September 27, 2013 through
December 27, 2014 as a result of the forfeiture. It found that she was at fault in the creation of the overpayment
because she failed to report her business and employment activities or earnings from the snow cone business that she
owned with her husband. By decision dated December 12, 2016, OWCP finalized the preliminary overpayment
determination, finding an overpayment of compensation in the amount of $43,832.60 for the period September 27,
2013 to December 27, 2014. It also found that appellant was at fault in the creation of the overpayment, and therefore
was not eligible for waiver for recovery of the overpayment. On June 2, 2017 appellant filed an appeal to the Board
regarding the December 12, 2016 overpayment decision. By decision dated March 13, 2018, the Board affirmed the
December 12, 2016 OWCP decision, which finalized the overpayment of compensation in the amount of $43,832.60
for the period September 27, 2013 to December 27, 2014 and found that she was at fault in the creation of the
overpayment.
7

Docket No. 11-0942 (issued April 4, 2012).

8

Docket No. 11-1798 (issued July 24, 2012).

4

By decision dated November 17, 2017, OWCP denied modification of the August 18, 2016
forfeiture decision.
On November 20, 2018 OWCP received appellant’s appeal request form, which requested
reconsideration of the November 17, 2017 decision. In a narrative statement, appellant alleged
that OWCP ignored many issues, including her arguments concerning why any of the OIG
interviews or photographs were applicable. She also contended that OWCP erred by ignoring
evidence and arguments concerning whether her comprehension was impaired. Appellant cited to
the Board’s holding in C.G.,9 and alleged that she had provided probative supporting evidence that
she would have difficulty understanding the obligations required on a Form EN1032.
Appellant also resubmitted Dr. Ellis’ September 21, 2016 report and Dr. Rouse’s
October 28, 2016 report.
OWCP received a statement from appellant dated June 1, 2017. Appellant alleged that
OWCP had not supported its forfeiture determination because there was no evidence establishing
that she knowingly failed to report self-employment or earnings on the Form EN1032 signed on
December 27, 2014. She explained that the three to five hours spent at the business were not
considered valuable on the open labor market and that her activities could not be construed as
integral to the operation of the business. Appellant also asserted that, although the business was
licensed in May 2014, it had not opened for business in April 2015. She further indicated that the
file contained statements from her psychologist who noted that she was not fully aware of what
she was signing when she signed the LLC.
By decision dated December 3, 2018, OWCP denied appellant’s request for
reconsideration of the merits of the 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.10 This discretionary authority, however, is subject
to certain restrictions.11 One such limitation is that the request for reconsideration must be received
by OWCP within one year of the date of the decision for which review is sought.12 Timeliness is
determined by the document receipt date of the request for reconsideration as is indicated by the
“received date” in the Integrated Federal Employees’ Compensation System (iFECS).13
9

Docket No. 11-0454 (issued May 22, 2012).

10

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 171287 (issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
11

20 C.F.R. § 10.607; S.C., Docket No. 18-0126 (issued May 14, 2019).

12
Id. at § 10.607(a); L.W., Docket No. 18-1475 (issued February 7, 2019). 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).
13

Id. at Chapter 2.1602.4(b).

5

Imposition of this one-year filing limitation does not constitute an abuse of discretion.14 OWCP
may not deny a reconsideration request solely because it was untimely filed. When a claimant’s
request for reconsideration is untimely filed, it must nevertheless undertake a limited review to
determine whether it demonstrates clear evidence of error.15 If an application demonstrates clear
evidence of error, OWCP will reopen the case for merit review.16
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue decided by OWCP. The evidence must be positive, precise, and explicit, and it must manifest
on its face that OWCP committed an error.17 It is not enough merely to demonstrate that the
evidence could be construed so as to produce a contrary conclusion.18 The evidence submitted
must not only be of sufficient probative value to create a conflict in medical opinion or demonstrate
a clear procedural error, but must be of sufficient probative value to shift the weight of the evidence
in favor of the claimant and raise a substantial question as to the correctness of OWCP’s decision.19
OWCP procedures further provide that the term clear evidence of error is intended to represent a
difficult standard.20
The Board makes an independent determination of whether a claimant has demonstrated
clear evidence of error on the part of OWCP such that it abused its discretion in denying merit
review in the face of such evidence.21
ANALYSIS
The Board finds that this case is not in posture for decision.
The most recent merit decision of OWCP was the November 17, 2017 decision. One year
from November 17, 2017 elapsed on November 17, 2018. As November 17, 2018 fell on a
Saturday, appellant had until the next business day on Monday, November 19, 2018 to file her
reconsideration request.22 OWCP received her reconsideration request on November 20, 2018
which was more than one year after the November 17, 2017 decision. Appellant’s request
14

G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
15

See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB
499, 501-02 (1990).
16
L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See
also 20 C.F.R. § 10.607(b); supra note 12 at Chapter 2.1602.5 (February 2016).
17

20 C.F.R. § 10.607(b); P.L., Docket No. 18-0813 (issued November 20, 2018); Fidel E. Perez, 48 ECAB 663,
665 (1997).
18

See Leona N. Travis, 43 ECAB 227, 240 (1991).

19

V.L., Docket No. 17-1493 (issued September 12, 2018); Annie L. Billingsley, 50 ECAB 210 (1998).

20

Supra note 12 at Chapter 2.1602.5a (October 2011).

21

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Matthews, 44 ECAB 765, 770 (1993).

22

Supra note 12 at Chapter 2.1602.4 (February 2016).

6

therefore was untimely filed.23 The proper standard of review for an untimely reconsideration
request is the clear evidence of error standard.24 In denying her request, OWCP applied the
standard of review for timely requests for reconsideration.25 As it applied the incorrect standard
of review to the untimely request for reconsideration, the Board will set aside OWCP’s
December 3, 2018 decision and remand the case for proper review under the clear evidence of
error standard as required by regulations.26
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the December 3, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and this case is remanded for further action
consistent with this decision of the Board.
Issued: March 13, 2020
Washington, DC

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

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

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

23

See E.H., Docket No. 19-0859 (issued December 10, 2019).

24

Supra note 15.

25

See L.W., Docket No. 16-1202 (issued January 25, 2018); H.L., Docket No. 13-2077 (issued March 20, 2014).

26

See 20 C.F.R. § 10.607(b); see also M.C., Order Remanding Case, Docket No. 18-0866 (issued March 26, 2019).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.A., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL EMERGENCY MANAGEMENT
AGENCY, Washington, DC, Employer
__________________________________________

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

Docket No. 17-0138
Issued: April 5, 2017

Case Submitted on the Record

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

JURISDICTION
On October 27, 2016 appellant filed a timely appeal from a September 23, 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 established a left ankle injury in the performance of
duty on July 24, 2016, as alleged.

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted additional evidence accompanying his appeal. The Board may not consider evidence that
was not before OWCP at the time it issued the final decision in the case. Therefore, the Board will not review this
evidence on appeal. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On August 4, 2016 appellant, then a 59-year-old emergency program specialist, filed a
traumatic injury claim (Form CA-1) alleging that on July 24, 2016 at 11:30 a.m., he sustained a
left ankle injury while on travel status (TDY) Washington at Dulles (Dulles) International
Airport. He alleged both that he “tripped over some object on the floor” and “slipped on a wet
floor” while walking with his suitcase to a shuttlebus. Appellant “developed soreness and sharp
pain the following day at work.” The employing establishment advised that appellant was in the
performance of duty when the claimed injury occurred.
In an August 12, 2016 letter, OWCP advised appellant of the evidence needed to
establish his claim, including a detailed statement describing the July 24, 2016 incident, and
medical evidence diagnosing an injury related to that incident. It afforded appellant 30 days to
submit such evidence.
In response, appellant submitted an August 17, 2016 letter, asserting that at 3:00 p.m. on
July 24, 2016, after arriving at Dulles International Airport, he “fell down the steps leading to the
street” while trying to locate a chartered bus to a training facility. He did not experience left
ankle pain until “the following day while in the class room,” prompting a supervisor to call an
ambulance. Appellant also alleged that sleeping with his left foot hanging over the side of the
bed the night of June 24, 2016 caused his ankle to swell. He contended that the hotel bed was
“too short.”
Appellant later provided a September 8, 2016 letter, asserting that on July 24, 2016, while
at Dulles International Airport “trying to catch the shuttle bus to the hotel, [he] tripped over [his]
suitcase and fell on the floor.” He noted that this statement superseded his previous accounts of
events.
In support of his claim, appellant provided a July 19, 2016 employing establishment
travel itinerary, showing a scheduled 12:55 p.m. departure from John F. Kennedy (JFK)
International Airport and arrival at Dulles International Airport, at 2:14 p.m. He also submitted
July 25, 2016 emergency room discharge instructions regarding a left ankle sprain, photographs
of medical bills, a bill for July 25, 2016 x-rays, a photograph of an adult’s left lower leg in a
fiberglass cast, and August 18 and 25, 2016 notes from Dr. Russell Trahan, an attending
podiatrist, holding him off work from August 5 to September 19, 2016.
By decision dated September 23, 2016, OWCP denied the claim, finding that fact of
injury had not been established. It found that appellant had not submitted sufficient factual
evidence to establish that the alleged July 24, 2016 incident occurred at the time, place, and in
the manner alleged. OWCP noted that appellant’s conflicting accounts of the July 24, 2016
incident created doubt and confusion regarding the mechanism of injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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

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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.3 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.4
To determine whether an employee sustained a traumatic injury in the performance of
duty, OWCP begins with an analysis of whether “fact of injury” has been established. Generally,
fact of injury consists of two components that must be considered conjunctively. First, the
employee must submit sufficient evidence to establish that he actually experienced the
employment incident that is alleged to have occurred.5 An employee has not met his or her
burden of proof of establishing the occurrence of an injury when there are such inconsistencies in
the evidence as to cast serious doubt upon the validity of the claim.6 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.7
An employee’s statement 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.8
Moreover, an injury does not have to be confirmed by eyewitnesses. The employee’s statement,
however, must be consistent with the surrounding facts and circumstances and his subsequent
course of action. An employee has not met his burden of proof to establish the occurrence of an
injury when there are such inconsistencies in the evidence as to cast serious doubt upon the
validity of the claim. Circumstances such 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 doubt on an employee’s statement
in determining whether a prima facie case has been established.9
ANALYSIS
Appellant claimed that he sustained a left ankle sprain on July 24, 2016 while in travel
status (TDY). He described two mechanisms of injury in his August 4, 2016 claim form,
asserting that at 11:30 a.m. on July 24, 2016, he tripped over an unspecified object, and also
slipped on a wet floor. OWCP advised appellant by August 12, 2016 letter of the type of
evidence needed to establish his claim, including a detailed statement of how he was injured.
Appellant subsequently changed his account of events in an August 17, 2016 letter, asserting that
he was injured at 3:00 p.m. when he fell down steps at Dulles International Airport, and that his
3

Joe D. Cameron, 41 ECAB 153 (1989).

4

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

5

Gary J. Watling, 52 ECAB 278 (2001).

6

S.N., Docket No. 12-1222 (issued August 23, 2013); Tia L. Love, 40 ECAB 586, 590 (1989).

7

Deborah L. Beatty, 54 ECAB 340 (2003).

8

R.T., Docket No. 08-408 (issued December 16, 2008); Gregory J. Reser, 57 ECAB 277 (2005).

9

Betty J. Smith, 54 ECAB 174 (2002); L.D., Docket No. 16-0199 (issued March 8, 2016).

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sleeping position later aggravated the injury. He provided a third scenario on September 8, 2016,
contending that he tripped over a suitcase at Dulles International Airport. OWCP denied the
claim, finding that appellant failed to establish the threshold issue of fact of injury as he provided
several conflicting accounts of how the injury occurred.
Appellant was consistent in identifying July 24, 2016 as the date of injury. However, this
is the only unchanging element of his accounts. Appellant alleged variously that he sprained his
ankle when he tripped over an unspecified object, tripped over his suitcase, slipped on a wet
floor, or fell down stairs. In his claim form, he alleged that he was injured at 11:30 a.m., when
his travel itinerary placed him at JFK International Airport, but later changed the time of injury
to 3:00 p.m., after his arrival at Dulles International Airport. The Board finds that, due to the
conflicting evidence regarding the time, place, and manner in which the alleged incident
occurred, appellant has failed to establish his claim.10 As noted, an employee has not met his
burden of proof to establish the occurrence of an injury when there are such inconsistencies in
the evidence as to cast serious doubt upon the validity of the claim.11 Appellant has failed to
meet his burden of proof. Therefore, OWCP’s September 23, 2016 decision was appropriate
under the circumstances of the case.
On appeal appellant contends that OWCP failed to fully review the medical record.
However, as appellant failed to establish that the claimed incident occurred, it is unnecessary to
address the medical evidence with respect to causal relationship.12
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 established a left ankle injury in the performance
of duty on July 24, 2016, as alleged.

10

See Caroline Thomas, 51 ECAB 451 (2000).

11

Supra note 9.

12

Alvin V. Gadd, 57 ECAB 172 (2005).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 23, 2016 is affirmed.
Issued: April 5, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Louis, MO, Employer
__________________________________________

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

Docket No. 20-0464
Issued: July 21, 2020

Case Submitted on the Record

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

JURISDICTION
On December 23, 2019 appellant filed a timely appeal from an October 22, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish bilateral trigger
finger causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On January 24, 2019 appellant, then a 57-year-old mail processing clerk, filed an
occupational disease claim (Form CA-2) alleging that he developed trigger finger of the left long
finger and right ring finger due to factors of his federal employment including repetitive pushing
1

5 U.S.C. § 8101 et seq.

and grabbing mail with his hands. He indicated that he first became aware of his condition and
first realized it was caused or aggravated by his federal employment on November 2, 2012.
Appellant did not immediately stop work.
Appellant was evaluated by Dr. Jay H. Patel, a family practitioner, on February 1, 2018 for
a history of a triggering left long finger and right ring finger. Dr. Patel noted a palpable nodule on
the A1 pulley at the left long finger and right ring finger. He administered a corticosteroid injection
into the right ring finger and left long finger and diagnosed right ring and left long trigger finger.
Appellant was treated by Dr. Joao Panattoni, a Board-certified orthopedist, from May 24,
2012 to October 5, 2017, for triggering of his left ring finger with a palpable nodule at the A1
pulley level which had been catching for months. Dr. Panattoni diagnosed left ring trigger finger
and performed corticosteroid injections into the A1 pulley level on May 24 and October 4, 2012
and October 5, 2017. He treated appellant on February 27, 2014 and April 14, 2016 for triggering
of the left ring finger and right long finger and he administered corticosteroid injections during
both visits. On February 5, 2015 appellant presented with complaints of right long finger
triggering multiple times a day. He reported working as a postal worker and experiencing hand
pain while at work. Dr. Panattoni diagnosed right long trigger finger and administered a
corticosteroid injection.
Appellant was treated by Dr. Pooya Javidan, a resident, on February 14, 2013, in follow up
for triggering of the left ring finger. Dr. Javidan reported resolution of the trigger finger symptoms
after the injection and returned appellant to work full time.
An x-ray of the right and left hand on October 11, 2018 revealed no acute osseous
abnormality or significant arthritis.
Appellant was treated by Dr. Kyle Y. Xu, a Board-certified plastic surgeon, on October 11,
2018, for bilateral trigger finger. Dr. Xu noted palpable triggering of the right ring finger and left
middle finger and administered a corticosteroid injection into the right finger. He recommended
right trigger finger release. On December 13, 2018 Dr. William W. Behrens, a resident, treated
appellant in follow up for right ring trigger finger. He reported good resolution of symptoms after
the injection. Dr. Behrens diagnosed bilateral trigger finger and returned appellant to work without
restrictions.
In a February 22, 2019 development letter, OWCP informed appellant of the deficiencies
of his claim. It advised him of the type of factual and medical evidence needed and provided a
questionnaire for his completion. By separate letter of even date, OWCP also requested additional
information from the employing establishment. It afforded both parties 30 days to respond.
In a March 12, 2019 response to OWCP’s questionnaire, appellant provided a description
of his work duties which included feeding and sweeping mail into a delivery bar code sorter
machine, lifting trays of mail, pushing trucks, and lifting and loading trays of mail for 8 to 12 hours
a day over the last 21 years. He first noted his symptoms in 2012 and underwent cortisone
injections which helped for about three months. Appellant had no previous injuries to his hands.
Appellant was treated by Dr. Gianfranco Frojo, a resident, on March 12, 2019 who
indicated that appellant would remain off work for four weeks after his planned hand surgery.
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By decision dated April 12, 2019, OWCP denied appellant’s occupational disease claim
finding that the medical evidence of record was insufficient to establish causal relationship
between his bilateral trigger finger condition and the accepted factors of his federal employment.
On May 3, 2019 appellant requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review. The hearing was held on August 13, 2019.
In a report dated May 21, 2019, Dr. Xu indicated that appellant had been treated for trigger
finger of the left fourth finger, which required operative intervention. He opined that the injury is
commonly associated with repetitive activity and was consistent with the day to day demands of a
postal worker. Dr. Xu reported that appellant made a full recovery and would be released to work
on May 27, 2019.
Similarly, in a May 30, 2019 note, Dr. Elizabeth M. Ekpo, a resident, indicated that she
had treated appellant for trigger finger of the right fourth finger which also required surgical
intervention. She opined that “this injury could have been sustained while performing his duties
at work.” Dr. Ekpo noted that appellant made a full recovery and was cleared to resume work
activities as of May 27, 2019. In a report of even date, Drs. Xu and Ekpo reiterated appellant’s
treatment history and their opinion that his trigger finger of the right fourth finger could have been
sustained while performing his work duties.
By decision dated October 22, 2019, an OWCP hearing representative affirmed OWCP’s
April 12, 2019 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,3 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.4 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.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) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
2

5 U.S.C. § 8101 et seq.

3

E.W., Docket No. 19-1393 (issued January 29, 2020); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

L.C., Docket No. 19-1301 (issued January 29, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5
20 C.F.R. § 10.115; E.S., Docket No. 18-1580 (issued January 23, 2020); L.M., Docket No. 13-1402 (issued
February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).

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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 identified employment factors.6
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.7 The opinion of the physician must be based on a complete factual
and medical background of the claimant, must be one of reasonable medical certainty, and must
be supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.8 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 causal relationship.9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish bilateral trigger
finger causally related to the accepted factors of his federal employment.
In notes from Drs. Xu and Ekpo dated May 21 and 30, 2019, respectively, they indicated
treating appellant for trigger finger of the left and right fourth finger. They opined that such an
injury is commonly associated with repetitive activity and was consistent with the day to day
demands of a postal worker. Drs. Xu and Ekpo opined that appellant’s injury “could” have been
sustained while performing his duties at work. Their opinions are speculative in nature. The Board
has held that medical opinions that are speculative or equivocal are of diminished probative
value.10 Moreover, a medical opinion must explain how the implicated employment factors
physiologically caused, contributed to, or aggravated the specific diagnosed conditions.11 Lacking
a rationalized explanation, the physicians’ opinions are insufficient to meet appellant’s burden of
proof.12
In reports dated May 24 to October 5, 2017, Dr. Panattoni evaluated appellant for
triggering of his left ring finger with a palpable nodule at the A1 pulley level which had been
catching for months. He diagnosed left ring trigger finger and administered a corticosteroid
injection. On February 27, 2014 and April 14, 2016 Dr. Panattoni diagnosed triggering of the left
ring finger and right long finger and administered corticosteroid injection into both fingers. On
6

See T.L., Docket No. 18-0778 (issued January 22, 2020); Roy L. Humphrey, 57 ECAB 238, 241 (2005); Victor J.
Woodhams, 41 ECAB 345, 352 (1989).
7

J.F., Docket No. 18-0492 (issued January 16, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

8

A.M., Docket No. 18-0562 (issued January 23, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

9

E.W., supra note 3; Gary L. Fowler, 45 ECAB 365 (1994).

10

H.A., Docket No. 18-1455 (issued August 23, 2019).

11

C.M., Docket No. 19-0360 (issued February 25, 2020).

12

Id.

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February 5, 2015 appellant reported working as a postal worker and experiencing hand pain at
work. Dr. Panattoni again diagnosed right long trigger finger and administered a corticosteroid
injection. In these reports, however, he failed to address the cause of the diagnosed conditions.
The Board has held that medical evidence that does not offer an opinion regarding the cause of an
employee’s condition is of no probative value and insufficient to establish the claim.13
Appellant was treated by Dr. Javidan on February 14, 2013 in follow up for triggering of
the left ring finger. He reported resolution of symptoms after a cortisone injection on
October 4, 2012. On February 1, 2018 Dr. Patel evaluated appellant for a nodule on the A1 pulley
at the left long finger and right ring finger. He diagnosed right and left trigger finger and
administered a corticosteroid injection. Similarly, reports from Dr. Xu dated October 11, 2018
and Dr. Behrens dated December 13, 2018 noted palpable triggering of the right ring finger and
left middle finger and diagnosed bilateral trigger finger. On March 12, 2019 Dr. Frojo indicated
that appellant would remain off work for four weeks after a planned hand surgery. However, the
physicians offered no opinion on causal relationship in these reports. As previously noted, the
Board has held that medical evidence that does not offer an opinion regarding the cause of an
employee’s condition is of no probative value on the issue of causal relationship.14 These reports
are therefore insufficient to establish appellant’s claim.
Appellant also submitted an x-ray of the right and left hand on October 11, 2018. The
Board has held, however, that diagnostic studies standing alone lack probative value on the issue
of causal relationship as they do not provide an opinion as to whether the accepted employment
factors caused appellant’s diagnosed condition.15
On appeal appellant asserts that he submitted sufficient medical evidence to establish that
he developed bilateral trigger finger causally related to his repetitive work duties. As explained
above, the evidence of record does not contain a medical report from a physician which provides
sufficient medical rationale to establish that his bilateral trigger finger condition was causally
related to his federal employment duties.
As appellant has not submitted rationalized medical evidence explaining the causal
relationship between his diagnosed bilateral trigger finger conditions and the accepted factors of
his federal employment, the Board finds that he has not met 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.

13

A.P., Docket No. 18-1690 (issued December 12, 2019); L.B., Docket No. 18-0533 (issued August 27, 2018).

14

Id.

15

L.C., supra note 4.

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CONCLUSION
The Board finds that appellant has not met his burden of proof to establish bilateral trigger
finger causally related to the accepted factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the October 22, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 21, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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