United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Buffalo, NY, Employer
__________________________________________

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

Docket No. 17-0859
Issued: December 4, 2018

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 March 9, 2017 appellant filed a timely appeal from a December 13, 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 her burden of proof to establish a recurrence of
disability on October 7, 2015, causally related to her accepted March 18, 2014 employment injury.

1

5 U.S.C. § 8101 et seq.

2
The Board notes that appellant submitted additional evidence on appeal. 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 evidence for the first time on appeal. Id.

FACTUAL HISTORY
On April 19, 2014 appellant, then a 47-year-old practical nurse, filed a traumatic injury
claim (Form CA-1) alleging that she injured her left knee on March 18, 2014 as a result of
attempting to sit in a chair while in the performance of duty. She stated that the chair slipped from
behind her, which caused her to fall to the floor, injuring her left knee. OWCP initially denied the
claim by decision dated August 8, 2014, because it found that the medical evidence was
insufficient to establish causal relationship. Subsequently, by decision dated February 19, 2015,
an OWCP hearing representative reversed the decision and returned the case for acceptance of left
knee medial meniscus tear. By decision dated March 6, 2015, OWCP accepted appellant’s claim
for left knee medial meniscus tear. It also authorized two left knee surgeries which appellant
underwent on September 29, 2014 and January 20, 2015.
In a June 9, 2015 report, Dr. Michael A. Rauh, a Board-certified orthopedic surgeon,
released appellant to light-duty work with the following restrictions: walking and standing up to
eight (8) hours per day, no bending/stooping, pushing, pulling, and lifting no more than 10 pounds,
and no squatting, kneeling, or climbing with occasional stair use.
On June 10, 2015 appellant accepted a light-duty job offer from the employing
establishment as a modified licensed practical nurse. The position required scheduled six 12-hour
shifts and one 8-hour shift per pay period. The physical requirements included occasional stair
climbing, standing, or walking limited to 12 hours, no bending, stooping, squatting, or kneeling,
lifting limited to less than 10 pounds, pushing or pulling less than 10 pounds, and sedentary work
only.
Subsequently, on September 8, 2015 appellant accepted a job as a modified procedure
scheduler. The tour of duty was Monday through Friday (two shifts) from 7:00 a.m. to 3:30 p.m.
and 8:00 a.m. to 4:30 p.m. The physical requirements included standing or walking limited to 12
hours, lifting limited to less than 10 pounds, and pushing or pulling less than 10 pounds.
An x-ray dated October 7, 2015 demonstrated an L4-5 anterolisthesis and decreased disc
height at L5-S1.
In an October 7, 2015 report, Dr. Lindsey Clark, an orthopedic surgeon, diagnosed other
intervertebral disc degeneration, lumbar region, and noted that appellant presented with low back
pain and bilateral leg pain. He indicated that appellant had a work-related injury to her left knee
on March 18, 2014, which had caused her to compensate on the right side exacerbating her low
back pain. Appellant reported 75 percent low back pain and 25 percent leg pain.
On October 21, 2015 Dr. Rauh diagnosed status post left knee anterior cruciate ligament
(ACL) reconstruction with continued left knee pain in the setting of degenerative changes. He
opined that appellant would benefit from receiving viscosupplementation injections to help
alleviate her symptoms and possibly allow for improved function and return to daily activities, as
well as occupational activities.
In two reports dated October 23, 2015, Dr. Clark diagnosed cervicalgia and took appellant
off of work until further notice.

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On October 29, 2015 appellant filed a claim for wage-loss compensation (Form CA-7) for
the period October 19 to 21, 2015.
In a November 2, 2015 letter, OWCP advised appellant that it appeared that she was
claiming a recurrence of disability and found that it was unclear why she stopped work on
October 19, 2015. It requested additional medical evidence in support of her claim.
In a November 13, 2015 duty status report (Form CA-17), Dr. Clark diagnosed
intervertebral disc degeneration and provided work restrictions.
On November 20, 2015 appellant filed a notice of recurrence (Form CA-2a). She stated
that, when returning back to work, she continued to have left knee pain and burning/popping back
pain which worsened on October 21, 2015. Appellant indicated that she compensated her weight
to the right side of her body and not being able to put full pressure on her left leg caused her back
and hip issues.
In a November 4, 2015 report, Dr. Sridhar Rachala, a Board-certified orthopedic surgeon,
diagnosed left knee pain, status post ACL reconstruction, mild left knee arthritis, and morbid
obesity. He checked a box marked “yes” indicating his support for causal relationship, noting that
the injury occurred while appellant was on duty.
On December 4, 2015 Meghan McNichol, a physician assistant, diagnosed other
intervertebral disc degeneration, lumbar region, and checked a box marked “yes” indicating her
support for causal relationship, noting that the injury occurred while appellant was on duty.
In a December 11, 2015 letter, OWCP advised appellant of the deficiencies of her
recurrence claim. It requested additional evidence in support of the claim and afforded appellant
30 days to respond to its inquiries.
In response, appellant submitted a narrative statement dated December 15, 2015, indicating
that she returned to work on June 6, 2015.
An October 23, 2015 x-ray of the cervical spine was normal and showed no evidence of
fracture, subluxation, or degenerative change.
On December 16, 2015 Dr. Rauh diagnosed pain in the left knee and unilateral primary
osteoarthritis of the left knee. He noted that appellant continued treatment with his spine specialist
colleague for her lower back and right hip conditions.
In a December 21, 2015 report, Dr. Clark noted that appellant sustained a work injury on
March 18, 2014 to her left knee and since that injury she had difficulty putting full weight on her
left lower extremity. Appellant was compensating her weight to her right side, which Dr. Clark
opined had caused a consequential injury to her lumbar spine. Dr. Clark noted that appellant was
diagnosed with intervertebral disc degeneration of the lumbar spine and on October 23, 2015 she
reported worsening of her low back and lateral hip pain. She reported that appellant had been
working light duty, but was no longer able to tolerate even those duties. Dr. Clark took appellant
off of work as she was not able to sit, stand, or walk for any prolonged period and advised that she
was unable to lift, bend, or twist.

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By decision dated February 10, 2016, OWCP denied appellant’s recurrence claim, finding
that the medical evidence of record was insufficient to establish a recurrence of her medical
condition causally related to her March 18, 2014 employment injury. It found that the evidence of
record was insufficient to establish a return or increase of disability due to a consequential injury
or condition stemming from appellant’s accepted left knee condition.
Appellant submitted physical therapy reports dated February 15 and 17, 2015 and a
March 1, 2016 report from a physician assistant in support of her claim.
In a February 12, 2016 report, Dr. Clark continued to diagnose other intervertebral disc
degeneration, lumbar region, and opined that appellant’s condition was causally related to her
accepted employment injury.
On March 7, 2016 appellant requested reconsideration and submitted a narrative statement
dated February 24, 2016.
In a December 22, 2015 report, Dr. Rauh asserted that appellant experienced low back
pain, which was felt to be causally related to her knee secondary to favoring the left knee
postoperatively. Appellant continued to have knee pain and subsequently began to experience low
back discomfort and was referred to Dr. Clark for evaluation and consultation. She did not have
any complaints of low back pain prior to her left knee surgery and Dr. Rauh concluded that her
low back condition was causally related to her work-related injury.
An x-ray dated March 1, 2016 revealed moderate degenerative changes of the medial
compartment of the knees bilaterally.
In a March 10, 2016 report, Dr. Elizabeth D. Ditonto, a Board-certified anesthesiologist
and pain medicine specialist, diagnosed possible lumbar radiculopathy with known disc disease
and foraminal stenosis, possible facet syndrome, and ongoing knee pain status post trauma and
surgery. She asserted that appellant’s accepted left knee injury and surgery affected her gait and
made her low back pain on the right worse.
On April 5, 2016 Dr. Rauh reported that appellant had a recent fall at work on April 5,
2016 and diagnosed ACL sprain of the left knee.
In a March 21, 2016 report, Ms. McNichol released appellant to work without restrictions
on April 4, 2016 and indicated that she would be “doing light duty for her knee.”
By decision dated May 19, 2016, OWCP denied modification of its prior decision.
In response, appellant submitted a physical therapy report dated June 10, 2016 and a July 5,
2016 narrative statement indicating that she was presently on light duty working four hours per
day.
On June 20, 2016 Dr. Ditonto administered a lumbar epidural steroid injection with
epiduragram.
On July 26, 2016 appellant requested reconsideration and argued that she could not
perform her job duties because of her consequential injuries to her back that came from her knee.
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In an April 22, 2016 report, Dr. Rauh diagnosed left knee exacerbation of preexisting
arthritis, no clear evidence of interval ACL tear, possible new posterior horn lateral meniscus tear,
and medial compartment arthritis due to a new history of injury to her left knee.
Appellant further submitted a physical therapy report dated May 20, 2016.
By decision dated November 21, 2016, OWCP denied modification of its prior decision.
On November 28, 2016 appellant requested reconsideration and submitted a November 2,
2016 report from Dr. Rauh who continued to diagnose left knee status post ACL reconstruction
with new onset pain and locking.
By decision dated December 13, 2016, OWCP denied modification of its prior decision,
finding that appellant has not met her burden of proof to establish a recurrence of disability due to
her accepted work-related injury on March 18, 2014.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that caused
the illness.3 Recurrence of disability also means an inability to work that takes place when a lightduty assignment made specifically to accommodate an employee’s physical limitations due to his
work-related injury or illness is withdrawn or when the physical requirements of such an
assignment are altered so that they exceed his established physical limitations.4 Generally, a
withdrawal of a light-duty assignment would constitute a recurrence of disability where the
evidence established continuing injury-related disability for regular duty.5 A recurrence of
disability does not apply when a light-duty assignment is withdrawn for reasons of misconduct,
nonperformance of job duties or other downsizing, or where a loss of wage-earning capacity
determination is in place.6
Absent a change or withdrawal of a light-duty assignment, a recurrence of disability
following a return to light duty may be established by showing a change in the nature and extent
of the injury-related condition such that the employee could no longer perform the light-duty
assignment.7
Where an employee claims a recurrence of disability due to an accepted employmentrelated injury, he or she has the burden of proof to establish that the recurrence is causally related

3

20 C.F.R. § 10.5(x).

4

Id.

5

Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.6a(4) (June 2013).

6

20 C.F.R. §§ 10.5(x), 10.104(c) and 10.509; see Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences,
Chapter 2.1500.2b.
7

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

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to the original injury.8 This burden includes the necessity of furnishing evidence from a qualified
physician who concludes that the condition is causally related to the employment injury.9 The
physician’s opinion must be based on a complete and accurate factual and medical history and
supported by sound medical reasoning.10
When an injury arises in the course of employment, every natural consequence that flows
from that injury likewise arises out of the employment, unless it is the result of an independent
intervening cause attributable to claimant’s own intentional misconduct.11 Thus, a subsequent
injury, be it an aggravation of the original injury or a new and distinct injury, is compensable if it
is the direct and natural result of a compensable primary injury.12
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.13
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a recurrence of
disability on October 7, 2015, causally related to her accepted March 18, 2014 employment injury.
Appellant argued that she could not perform her limited job duties because of consequential
injuries to her back that resulted from her accepted knee condition. An x-ray dated October 7,
2015 demonstrated an L4-5 anterolisthesis and decreased disc height at L5-S1. However, this
diagnostic study does not address the etiology of appellant’s back conditions. Appellant also
submitted evidence from physician’s assistants and physical therapists. These reports do not
constitute competent medical evidence because these medical care providers are not considered
“physician[s]” as defined under FECA.14 Certain healthcare providers such as physician assistants,
nurse practitioners, physical therapists, and social workers are not considered “physician[s]” as

8
20 C.F.R. § 10.104(b); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5
and 2.1500.6.
9

See S.S., 59 ECAB 315, 318-19 (2008).

10

Id. at 319.

11
Mary Poller, 55 ECAB 483, 487 (2004); 1 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation
Law 10-1 (2006).
12

Susanne W. Underwood (Randall L. Underwood), 53 ECAB 139, 141 n.7 (2001).

13

Jaja K. Asaramo, 55 ECAB 200, 204 (2004).

14
5 U.S.C. § 8101(2); Sean O’Connell, 56 ECAB 195 (2004) (physician’s assistants); Jennifer L. Sharp, 48 ECAB
209 (1996) (physical therapists). See also Gloria J. McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 2 ECAB
208, 211 (1949) (a medical issue such as causal relationship can only be resolved through the submission of probative
medical evidence from a physician).

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defined under FECA.15 Consequently, their medical findings and/or opinions will not suffice for
purposes of establishing entitlement to FECA benefits.16
Dr. Ditonto diagnosed possible lumbar radiculopathy with known disc disease and
foraminal stenosis, possible facet syndrome, and ongoing knee pain status post trauma and surgery.
However, his report does not provide an opinion regarding the cause of appellant’s current
disability. 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.17 For
these reasons, the Board finds that this evidence is insufficient to establish that appellant sustained
a consequential injury.
In a December 22, 2015 report, Dr. Rauh noted that appellant experienced low back pain,
which he felt to be causally related to her knee secondary to favoring the left knee postoperatively.
Similarly, Dr. Clark diagnosed cervicalgia, other intervertebral disc degeneration, lumbar region,
and noted that appellant presented with low back pain and bilateral leg pain. She indicated that
appellant had a work-related injury to her left knee on March 18, 2014 which had caused her to
compensate on the right side and caused a consequential injury to her lumbar spine. Although
disability resulting from surgery or treatment authorized by OWCP is compensable,18 Drs. Rauh
and Clark have failed to provide sufficient medical rationale explaining how appellant’s accepted
left knee condition caused or aggravated her back conditions. Therefore, the Board finds that this
evidence is insufficient to establish appellant’s claim for a consequential back injury.
Appellant alleged that her recurrence of total disability was caused by an inability to
perform her light-duty job requirements. However, the record shows that the modified licensed
practical nurse position she accepted on June 10, 2015 indicated that the duties required
“occasional stair climbing, standing, or walking limited to 12 hours, no bending, stooping,
squatting, or kneeling, lifting limited to less than 10 pounds, pushing or pulling less than 10
pounds, and sedentary work only.”
Further, appellant did not submit sufficient medical evidence to establish that her assigned
duties had changed such that she was not medically able to perform them. She did not submit
adequate medical evidence to support that her assigned duties exceeded her medical limitations or
that she otherwise had a spontaneous change in her accepted left knee condition in the present
claim. In his reports, Dr. Rauh released appellant to light-duty work with the following
restrictions: walking and standing up to eight hours per day, no bending/stooping, pushing,
pulling, and lifting no more than 10 pounds, and no squatting, kneeling, or climbing with
occasional stair use. He failed to provide a rationalized medical opinion explaining how
appellant’s assigned duties exceeded her physical limitations or caused or aggravated her accepted
left knee condition. Dr. Rauh reported that appellant had a recent fall at work on April 5, 2016
15

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

16

K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). A report from a physician
assistant or certified nurse practitioner will be considered medical evidence if countersigned by a qualified physician.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013).
17

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

18

See R.S., Docket No. 15-0576 (issued June 9, 2015).

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and diagnosed ACL sprain of the left knee and on April 22, 2016 he diagnosed left knee
exacerbation of preexisting arthritis, no clear evidence of interval ACL tear, possible new posterior
horn lateral meniscus tear, and medial compartment arthritis due to a new history of injury to her
left knee. However, OWCP has not accepted an April 5, 2016 employment incident in this case.
The Board finds there is insufficient evidence to establish that appellant’s light-duty job
requirements changed such that the job requirements were no longer within the restrictions
provided by Dr. Rauh and appellant was unable to perform her limited-duty position.19
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 recurrence of
disability on October 7, 2015 causally related to her accepted March 18, 2014 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the December 13, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 4, 2018
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

19

See J.F., 58 ECAB 124 (2006); see also Terry R. Hedman, 38 ECAB 222 (1986).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.J., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Myrtle Beach, SC,
Employer
__________________________________________

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

Docket No. 14-498
Issued: May 19, 2014

Case Submitted on the Record

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

JURISDICTION
On January 3, 2014 appellant filed a timely appeal from the July 31, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied his
reconsideration request. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s reconsideration request under
5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 18, 2011 appellant, then a 44-year-old transportation security officer (screener),
filed a traumatic injury claim alleging that he injured his right shoulder on April 23, 2011 while
in the performance of duty.
In a decision dated September 20, 2012, OWCP accepted that the evidence was sufficient
to establish a work incident on April 23, 2011. It denied appellant’s claim, however, on the
grounds that the medical opinion evidence lacked sufficient rationale to establish the element of
causal relationship.
OWCP found that the medical reports of appellant’s physician,
Dr. Wayne B. Bauerle, a Board-certified orthopedic surgeon, for the period September 28
through November 4, 2011 offered a history of the work incident and a secure diagnosis, but he
did not explain how and why he felt that the incident caused the diagnosed condition or how the
incident aggravated appellant’s preexisting cervical condition.
In decisions dated November 15, 2012 and March 1, 2013, OWCP reviewed the merits of
appellant’s case and denied modification of its prior decision.
Appellant requested reconsideration. OWCP received his request on June 25, 2013.
Appellant submitted a position description, general information obtained from the Internet about
certain medical conditions and a June 11, 2013 report from Dr. Bauerle, which stated in its
entirety: “With a reasonable degree of medical certainty, [appellant’s] injury of April 23, 2011
to his right shoulder and neck is causally related to his work. Please see my attached dictation of
September 28, 2011.”
In a decision dated July 31, 2013, OWCP denied appellant’s reconsideration request. It
found that the evidence submitted to support the request was irrelevant, repetitious and
cumulative.
LEGAL PRECEDENT
OWCP may review an award for or against payment of compensation at any time on its
own motion or upon application.2 An employee (or representative) seeking reconsideration
should send the request for reconsideration to the address as instructed by OWCP in the final
decision. The request for reconsideration, including all supporting documents, must be in
writing and must set forth arguments and contain evidence that either: (1) shows that OWCP
erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument
not previously considered by OWCP; or (3) constitutes relevant and pertinent new evidence not
previously considered by OWCP.3
A request for reconsideration must be received by OWCP within one year of the date of
its decision for which review is sought.4 A timely request for reconsideration may be granted if
2

Id. at § 8128(a).

3

20 C.F.R. § 10.606.

4

Id. at § 10.607(a).

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OWCP determines that the employee has presented evidence or argument that meets at least one
of these standards. If reconsideration is granted, the case is reopened and the case is reviewed on
its merits. Where the request is timely but fails to meet at least one of these standards, OWCP
will deny the request for reconsideration without reopening the case for a review on the merits.5
ANALYSIS
OWCP received appellant’s reconsideration request within one year of the most recent
merit decision, namely, the March 1, 2013 decision denying modification of the denial of his
injury claim. Appellant’s request is therefore timely. The question for determination is whether
that request met at least one of the standards for obtaining a merit review.
Appellant’s request did not show that OWCP erroneously applied or interpreted a specific
point of law. He did not identify a specific point of law and did not show how it erroneously
applied or interpreted it. Appellant’s request also did not advance a relevant legal argument not
previously considered by OWCP. He offered no legal argument.
A claimant may be entitled to a merit review by submitting relevant and pertinent new
evidence not previously considered by OWCP. Appellant submitted a position description, but
this was not the reason OWCP denied his claim. OWCP denied his claim because his physician
failed to provide sufficient medical rationale to establish that what happened at work on
April 23, 2011 caused an injury. A copy of the position description does not supply the sound
medical reasoning necessary to establish the critical element of causal relationship. The
evidence is thus not relevant and pertinent.
Appellant also submitted general information obtained from the Internet about certain
medical conditions. The Board has held, however, that evidence such as newspaper clippings,
medical texts and excerpts from publications are of no evidentiary value in establishing the
necessary causal relationship, as they are of general application and are not determinative of
whether the relevant employment incident caused the specific condition claimed.6 This evidence
is also not relevant and pertinent to the grounds upon which OWCP denied appellant’s claim.
Finally, appellant submitted a June 11, 2013 report from Dr. Bauerle, who repeated his
opinion that appellant’s right shoulder and neck condition was causally related to his work.
Dr. Bauerle still offered no medical rationale to support his opinion. The first page of his
September 28, 2011 report, previously considered by OWCP, made no connection between
appellant’s work and his cervical and right arm condition other than a temporal history of events.
The evidence does not discuss what happened on April 23, 2011 and what convinced Dr. Bauerle
that the incident or event caused one of appellant’s diagnosed medical conditions.

5

Id. at § 10.608.

6

Gaetan F. Valenza, 35 ECAB 763 (1984); Kenneth S. Vansick, 31 ECAB 1132 (1980).

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Evidence that repeats or duplicates evidence already in the record has no evidentiary
value and constitutes no basis for reopening a case.7
Accordingly, as appellant’s reconsideration request did not meet any of the standards for
reopening his case, the Board finds that OWCP properly denied his reconsideration request. The
Board will affirm OWCP’s July 31, 2013 decision.
CONCLUSION
The Board finds that OWCP properly denied appellant’s reconsideration request.
ORDER
IT IS HEREBY ORDERED THAT the July 31, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 19, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7

Eugene F. Butler, 36 ECAB 393 (1984); Bruce E. Martin, 35 ECAB 1090 (1984).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Willowick, OH, Employer
__________________________________________

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

Docket No. 13-2012
Issued: February 6, 2014

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 September 3, 2013 appellant, through counsel, filed a timely appeal from a March 13,
2013 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying his
request for reconsideration. Because more than 180 days elapsed from May 21, 2012, the date of
the most recent merit decision, to the filing of this appeal, and pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks
jurisdiction to review the merits of appellant’s claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request to reopen his claim for
further merit review under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 17, 2012 appellant, then a 40-year-old mail carrier, filed an occupational
disease claim (Form CA-2) alleging that he sustained a rotated pelvis and pinched nerve as a
result of carrying his bag on the right side of his body in the performance of duty. He first
became aware of the condition’s relationship to his federal employment on January 28, 2012.
By letter dated February 27, 2012, OWCP requested additional factual and medical
evidence from appellant. It stated that he had not submitted factual or medical evidence in
support of his claim and afforded him 30 days to submit additional evidence.
In a report dated March 16, 2012, Dr. John A. Bondra, Jr., a chiropractor, diagnosed
appellant with lumbosacral sprain-strain and right sciatic neuralgia. He stated that appellant was
temporarily disabled until April 2, 2012 and that his lower back pain had improved
approximately 75 to 80 percent. On examination of x-rays, Dr. Bondra noted a significant lateral
curve of the lumbar spine with concavity to the left, lateral flexion of L3 and L4 to the left and
pelvic unleveling. He asserted that appellant carried a heavy bag in the performance of his duties
as a mail carrier and that there was a direct causal relationship between the history of injury as
described by appellant and his diagnoses.
In a statement dated March 27, 2012, appellant noted that he had been a mail carrier for
three years. He stated that he walked six hours per day and five to six days per week and that he
did not engage in sports or hobbies outside of his federal employment.
In notes dated February 13 and 27, 2012, Dr. Bondra stated that appellant was unable to
work from February 13 through March 12, 2012. In notes dated April 16 and 30, 2012, he stated
that appellant was unable to work from April 16 through May 21, 2012.
In a report dated April 14, 2012, Dr. Tod R. Podl, a Board-certified family physician,
diagnosed appellant with sciatic pain. He noted that appellant’s duty of carrying a mailbag for
work led to irritation of a sacroiliac joint and the lower spine. Dr. Podl stated that appellant’s
back problem arose from the nature of his work. He recommended work restrictions of lifting no
more than 10 pounds, no repetitive stooping or bending and no continuous standing for more
than half-hour intervals every two hours.
In a statement dated February 17, 2012, appellant noted that he awoke on January 27,
2012 with pain in his lower back. He had experienced this pain for about a week before visiting
a physician. On January 27, 2012 appellant visited a physician, who referred him to Dr. Bondra.
In a statement of the same date, a supervisor noted that appellant had visited a physician before
filing his claim.
By decision dated May 21, 2012, OWCP denied appellant’s claim. It found that he had
not submitted any medical evidence containing a diagnosis in connection with duties of his
federal employment. OWCP stated that he had only provided evidence of sciatic pain from
Dr. Podl, which was of little probative value in establishing his claim.
In a report dated July 16, 2012, Dr. Bondra noted that appellant was temporarily disabled
until August 6, 2012 and that his lower back pain had improved approximately 90 percent.
2

In a statement dated September 26, 2012, appellant described the duties of his position as
a mail carrier. He noted that there was no one particular incident that caused his condition, but
that he had been taking an over-the-counter pain medication to deal with back pain. Appellant
stated that he remained off work.
In a note dated November 12, 2012, Dr. Bondra stated that appellant was partially
disabled and could begin working six hours per day from November 15 through 30, 2012. On
December 4, 2012 he released appellant to work full time.
By letter dated December 3, 2012, appellant, through his representative, requested
reconsideration of OWCP’s May 21, 2012 decision. Appellant’s representative again enclosed
the April 14, 2012 report of Dr. Podl with the request, stating that it had not previously been
considered.
By decision dated March 13, 2013, OWCP declined appellant’s request for
reconsideration. It noted that the only evidence received, the April 14, 2012 report of Dr. Podl,
had been previously reviewed.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a), its regulations
provide that the evidence or argument submitted by a claimant must: (1) show that OWCP
erroneously applied or interpreted a specific point of law; (2) advance a relevant legal argument
not previously considered by it; or (3) constitute relevant and pertinent new evidence not
previously considered by OWCP.2 Section 10.608(b) of its regulations provide that when an
application for reconsideration does not meet at least one of the three requirements enumerated
under section 10.606(b)(2), OWCP will deny the application for reconsideration without
reopening the case for a review on the merits.3
The Board has found that evidence that repeats or duplicates evidence already in the case
record has no evidentiary value.4 The Board also has held that the submission of evidence which
does not address the particular issue involved does not constitute a basis for reopening a case.5
While the reopening of a case may be predicated solely on a legal premise not previously
considered, such reopening is not required where the legal contention does not have a reasonable
color of validity.6

2

20 C.F.R. § 10.606(b)(2); D.K., 59 ECAB 141, 146 (2007).

3

Id. at § 10.608(b); K.H., 59 ECAB 495, 499 (2008).

4

See Daniel Deparini, 44 ECAB 657, 659 (1993).

5

P.C., 58 ECAB 405, 412 (2007); Ronald A. Eldridge, 53 ECAB 218, 222 (2001); Alan G. Williams, 52 ECAB
180, 187 (2000).
6

Vincent Holmes, 53 ECAB 468, 472 (2002); Robert P. Mitchell, 52 ECAB 116, 119 (2000).

3

ANALYSIS
OWCP issued a May 21, 2012 decision denying appellant’s claim for compensation. On
December 3, 2012 appellant requested reconsideration of this decision.
As noted above, the Board does not have jurisdiction over the merits of the May 21, 2012
decision. The issue presented on appeal is whether appellant met any of the requirements of
20 C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the
claim. In his December 3, 2012 request for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law, or advance a new and relevant legal
argument not previously considered. Thus, he is not entitled to a review of the merits of his
claim based on the first and second above-noted requirements under section 10.606(b)(2).
The relevant issue in this case is whether a medical condition has been diagnosed by a
physician in connection with duties of appellant’s federal employment.7 A claimant may be
entitled to a merit review by submitting new and relevant evidence, but appellant did not submit
any new and relevant evidence in this case. Appellant submitted the April 14, 2012 report from
Dr. Podl, which had already been reviewed. Submitting additional evidence that repeats or
duplicates information already in the record does not constitute a basis for reopening a claim.8
Dr. Podl’s April 14, 2012 report was previously of record and was specifically considered in
OWCP’s May 21, 2012 decision. Therefore, this report, while relevant, was insufficient to
require a merit review of appellant’s claim.
Appellant also submitted a report from Dr. Bondra dated July 16, 2012. While this
evidence was not previously of record, it is irrelevant to the grounds upon which OWCP denied
appellant’s claim. Section 8101(2) of FECA9 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 and subject to regulations by the Secretary.10 Dr. Bondra did not diagnose a spinal
subluxation. Without a diagnosis of a spinal subluxation from x-ray, a chiropractor is not a
physician under FECA and his opinion does not constitute competent medical evidence.11
Therefore, his report is of no probative value on the issue of whether appellant has been
diagnosed with a medical condition in connection with duties of appellant’s federal employment.
As the evidence submitted does not address the issue on which OWCP’s decision was based, it is
not relevant.12 Dr. Bondra’s notes dated November 12 and December 4, 2012, along with
appellant’s statement dated September 26, 2012, similarly do not address the issue on which

7

See Shirley A. Temple, 48 ECAB 404, 407 (1997).

8

See James W. Scott, 55 ECAB 606, 608 n.4 (2004); supra note 4 at 659.

9

5 U.S.C. § 8101(2).

10

See 20 C.F.R. § 10.311.

11

See Jay K. Tomokiyo, 51 ECAB 361, 367-68 (2000).

12

See K.W., Docket No. 12-1590 (issued December 18, 2012).

4

OWCP’s decision was based. A claimant may be entitled to merit review by submitting new and
relevant evidence, but appellant did not submit any relevant factual evidence in this case.
On appeal, appellant’s representative argues that a report from a Dr. Brown dated
January 10, 2012 suffices to establish appellant’s claim. As this report is not part of the case
record, the Board cannot determine the validity of this argument.
The Board accordingly finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted
a specific point of law, advance a relevant legal argument not previously considered by OWCP,
or submit relevant and pertinent evidence not previously considered. 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 further review of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the March 13, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 6, 2014
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.V., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
NORTHAMPTON VETERANS MEDICAL
CENTER, Leeds, MA, Employer
__________________________________________

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

Docket No. 15-1759
Issued: January 8, 2016

Case Submitted on the Record

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

JURISDICTION
On August 20, 2015 appellant filed a timely appeal from a June 4, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish a respiratory
condition causally related to factors of her federal employment.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the June 4, 2015 decision, appellant submitted new evidence to
the Board. However, the Board is precluded from reviewing evidence which was not before OWCP at the time it
issued its final decision. See 20 C.F.R. § 501.2(c)(1). Appellant may resubmit this evidence, together with a formal
request for reconsideration to OWCP pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606.

FACTUAL HISTORY
On October 2, 2014 appellant, then a 52-year-old nurse, filed an occupational disease
claim (Form CA-2) alleging respiratory problems due to poor ventilation and black mold at her
workplace. She first became aware of her illness on September 2, 2014 and she stopped work on
that day.
With her claim form, appellant submitted an undated statement describing the conditions
of the clinic, which included a problematic ventilation system, an on-going leaky roof with
visible water stains, and mold on the ceiling tiles. She indicated that testing revealed black mold
and she explained that a professional mold remediation had been completed. Appellant also
indicated that the workplace had uneven temperatures and was uncomfortable. She noted that
duct work ceiling vents were cleaned in August 2014 and she became sick in September 2014.
Appellant described her symptoms and stated that she had to be admitted to the hospital, where
she was diagnosed with sepsis secondary to community acquired pneumonia. She advised that
she never had respiratory problems prior to her employment with the employing establishment.
In an October 27, 2014 report, Dr. Sabitha Gopalswamy, a Board-certified internist,
reported a history of exposure to roof leaks, poor ventilation, and mold on ceiling tiles at
appellant’s office/clinic. She noted treatment of appellant for fever, chills, cough, and shortness
of breath on September 1, 2014 and an admission to the hospital with pneumonia on
September 4, 2014.
Dr. Gopalswamy indicated that appellant returned to work on
September 18, 2014. A repeat chest x-ray taken on September 24, 2014 showed resolution of
previous pneumonia.
On January 5, 2015 OWCP notified appellant of the deficiencies in her claim and
afforded her the opportunity to provide further factual and medical evidence to substantiate her
claim. This included a physician’s rationalized opinion as to how appellant’s workplace
exposure resulted in a diagnosed condition.
A May 30, 2014 laboratory analysis report of air monitoring analysis at the employing
establishment noted findings of high levels of aspergillis and stachybotrys. In a June 6, 2014
memorandum, the employing establishment stated that stachybotrys was commonly called black
mold.
In a January 16, 2015 statement, appellant asserted that she became ill after repeated
airborne workplace hazards resulted in her September 2014 hospitalization for sepsis secondary
to community acquired pneumonia. She concluded that the conditions at her workplace were
deplorable and submitted photographs.
By report dated September 5, 2014, Dr. Gregory T. Williams, a Board-certified internist
with subspecialty in infectious disease, noted that appellant was treated for sepsis secondary to
community acquired pneumonia. No reference was made to workplace exposure.
In a decision dated February 9, 2015, OWCP denied the claim because the medical
evidence of record did not establish that appellant’s medical condition was causally related to the
accepted workplace exposure. Specifically, it found that appellant’s physicians did not provide

2

rationale establishing a medical relationship between the diagnosed pneumonia and the
workplace mold exposure.
On February 27, 2014 OWCP received appellant’s February 24, 2015 request for a
review of the written record before an OWCP representative.
With her request for review, appellant submitted several medical reports. These included
the September 5, 2014 hospital admission report for sepsis secondary to pneumonia and
Dr. William’s report previously of record.
In a February 24, 2015 report, Dr. Gopalswamy noted that appellant had related that there
were duct/vent issues in her workplace which she strongly believed could have precipitated her
pneumonia symptoms. She advised that, since the causes of pneumonia could be of different
etiology, it was difficult to tell with certainty as to whether the workplace issues contributed to
the pneumonia.
By decision dated June 4, 2015, an OWCP hearing representative affirmed the prior
decision.
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 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 establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is generally rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition, and the implicated employment factors. 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
3

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

4

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

3

nature of the relationship between the diagnosed condition, and the specific employment factors
identified by the claimant.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.6 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors.7 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.8
ANALYSIS
OWCP denied appellant’s claim because there was insufficient medical evidence to
establish that her diagnosed pneumonia condition was caused or aggravated by her exposure to
black mold at work.
The determination of whether an employment injury is causally related to work factors is
generally established by medical evidence.9
In her October 27, 2014 report, Dr. Gopalswamy noted appellant’s history of exposure to
roof leaks, poor ventilation, and mold on ceiling tiles at her workplace and that she was admitted
to the hospital with pneumonia on September 4, 2014. However, she offered no opinion on the
causal relationship of appellant’s condition. The Board has held that medical evidence that does
not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship.10 In her February 24, 2015 report, Dr. Gopalswamy
again noted appellant’s workplace exposure, but advised that, since the causes of pneumonia
could be of different etiology, it was difficult to tell with certainty if the workplace issues
contributed to the pneumonia. The Board has held that medical opinions which are speculative
or equivocal are of diminished probative value.11 Thus, Dr. Gopalswamy’s reports are
insufficient to discharge appellant’s burden of proof as they do not present a rationalized medical
opinion establishing causal relationship.
5

Solomon Polen, 51 ECAB 341 (2000).

6

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); Michael S. Mina, 57 ECAB
379 (2006).
7

J.J., Docket No. 09-27 (issued February 10, 2009); Sedi L. Graham, 57 ECAB 494 (2006).

8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

9

Lois E. Culver (Clair L. Culver), 53 ECAB 412 (2002).

10

See C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

11

See S.E., id. (finding that opinions such as the condition is probably related, most likely related, or could be
related are speculative and diminish the probative value of the medical opinion); Cecilia M. Corley, 56 ECAB 662,
669 (2005) (finding that medical opinions which are speculative or equivocal are of diminished probative value).

4

In his September 5, 2014 report, Dr. Williams advised that appellant was treated for
sepsis secondary to community acquired pneumonia, but provided no reference to any workplace
mold exposure and offered no opinion as to whether her workplace exposures were the cause of
her condition. As noted, medical evidence which does not offer any opinion regarding the cause
of an employee’s condition is of limited probative value on the issue of causal relationship.12 As
such, Dr. Williams’ report is insufficient to meet appellant’s burden of proof.
On appeal appellant asserts that the medical evidence submitted supports her claim. As
noted, the evidence of record is insufficient to establish causal relationship. Appellant has the
burden to establish causal relationship through the submission of rationalized medical opinion
evidence.13
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.605 and 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that her
diagnosed medical condition was due to factors of employment, as alleged.

12

See C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., id.

13

John J. Montoya, 54 ECAB 306 (2003).

5

ORDER
IT IS HEREBY ORDERED THAT the June 4, 2015 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 8, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.Y., claiming as widow of T.Y., Appellant
and
DEPARTMENT OF THE ARMY,
Fort Myers, VA, Employer
__________________________________________

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

Docket No. 06-1660
Issued: January 11, 2007

Case Submitted on the Record

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

JURISDICTION
On July 17, 2006 appellant filed a timely appeal of a June 26, 2006 merit decision of the
Office of Workers’ Compensation Programs, finding that her husband’s death was not causally
related to his federal employment. 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’s husband’s death on July 11, 2003 was causally related to
his federal employment.
FACTUAL HISTORY
The Office accepted that the employee, a mason, sustained exacerbation of preexisting
pulmonary disease due to factors of his federal employment. The claim was later expanded to

include chronic airway obstruction. Appellant stopped working as a mason on July 1, 1996.1 He
received appropriate compensation benefits.2
In a report dated February 21, 2003, Dr. Hamid Taheri, Board-certified in internal
medicine, opined that the employee’s heart condition was secondary to his underlying lung
disease.
In a July 14, 2003 memorandum, the Office noted that it was informed that the employee
died on July 11, 2003. A copy of the death certificate signed on July 14, 2003, listed the cause of
death as respiratory arrest and chronic obstructive pulmonary disease (COPD).
By letter dated October 3, 2003, the Office advised appellant that she could submit a
claim for death benefits and to provide a Form CA-5, copies of the death and marriage
certificates, the itemized bills for the burial and a detailed narrative report from a physician who
attended to the employee prior to his death. Appellant was advised that the report should include
a detailed history, diagnosis, treatment rendered, and opinion as to the relationship of the disease
or death to the employment factors and work-related conditions. She was also advised to provide
copies of the medical records pertaining to the employee’s hospitalization prior to his death.
On March 9, 2004 the Office received appellant’s Form CA-5 which was dated
February 17, 2004. Appellant indicated that the total burial expenses were $3,838.30. She noted
that the employee died on July 11, 2003 and that she attributed his respiratory arrest to his
deteriorating lung disease. Appellant provided the records from the employee’s hospitalization,
which included his outpatient registration dated July 11, 2003 and contained an admitting
diagnosis of cardiac arrest and a record of death, also dated July 11, 2003. The Office also
received a copy of appellant’s March 5, 1963 marriage certificate and an August 6, 2003 receipt
from a funeral home which totaled $3,648.30.
On April 1, 2004 the Office advised appellant that it was her responsibility to provide the
evidence needed to support her claim. The Office also provided a copy of the letter to
Pulmonary and Critical Care Specialists in Fairfax, Virginia.
On May 11, 2005 the Office referred the record to Dr. Leonard Y. Cosmo, Boardcertified in internal medicine, who was asked to review the medical evidence and a statement of
accepted facts and provide an opinion on whether the employee’s death was related to his
employment injury.
In a report dated May 25, 2005, Dr. Cosmo noted the employee’s history of injury and
treatment. He opined that it “appeared that the cause of death is not causally related to the work
exposures of September 1, 1989. The death that occurs over a decade or approximately 14 years
later is not due to the exposures of dust but due to specific medical conditions.” Dr. Cosmo
explained that the employee’s cause of death was primarily associated with his underlying
1

The record reflects that appellant had a history of smoking cigarettes and pipe tobacco.

2

The employee eventually returned to work in an alternative position and a loss of wage-earning capacity
decision was issued on February 24, 1998.

2

medical problems including cardiomyopathy, complicated with a reduced ejection fraction and
abnormal left ventricular dysfunction, arrhythmias. He advised that treatment requiring antiarrhymthmic agents had a higher incidence of morbidity and mortality and that the employee’s
cause of death was associated with his underlying cardiac disease. Dr. Cosmo also explained
that pulmonary function testing revealed a “lack of objective medical documentation to support
any significant respiratory or pulmonary impairment.” He noted that the pulmonary function
tests were “indicative of fairly good flow rates and lung volumes.” Dr. Cosmo also noted that
the spirometry or lung volumes did not show any significant respiratory or pulmonary lung
impairment, or serious pulmonary obstructive or restrictive disorder. The employee had
preexisting diabetes and a history of obstructive sleep apnea syndrome, which made him more
susceptible to developing cardiac complications including cardiomyopathy. Dr. Cosmo opined
that the employee’s prior exposures did not lead to any significant lung disease and that his cause
of death was not work related. He opined that the cause of death was sudden and associated with
significant cardiac arrhythmias and underlying cardiac disease.
On September 23, 2005 the Office advised appellant’s congressional representative that
Dr. Cosmo did not address an accepted condition and thus the case was being referred to a
pulmonary specialist.
On April 4, 2006 the Office referred the record for a second opinion, together with a
statement of accepted facts, a set of questions and the medical evidence to Dr. Ajit Raisinghani,
Board-certified in internal medicine and cardiovascular disease.
In a report dated April 25, 2006, Dr. Raisinghani, described the employee’s history of
injury and treatment and noted that pulmonary function tests from September 2002 showed mild
obstructive lung disease with severe air trapping and a total lung capacity of 5.55 or 129 percent
of predicted. He noted that, when the paramedics had presented, the employee was bradycardiac
and had pulse less electrical activity (PEA). Dr. Raisinghani noted that the employee’s cardiac
history developed in 2002 when he presented with atrial fibrillation and heart failure and opined
that the employee died from cardiac-related arrhythmia. He explained that there was no
relationship between the employee’s heart disease and the accepted COPD. Dr. Raisinghani also
explained that, while some persons with COPD could have some atrial arrhythmias, he was not
aware of them having a higher incidence of atrial fibrillation, with which the employee
presented. Furthermore, he explained that COPD did not cause heart disease, which was caused
by smoking and other cardiac risk factors. Dr. Raisinghani opined that atrial fibrillation was not
a direct cause of the employee’s death.
By decision dated June 26, 2006, the Office denied appellant’s claim for survivor’s
benefits on the grounds that the medical evidence failed to establish that the employee’s death
was due to his accepted employment injury.

3

LEGAL PRECEDENT
The United States shall pay compensation for the disability or death of an employee
resulting from personal injury sustained while in the performance of his duty.3
Appellant has the burden of proving by the weight of the reliable, probative and
substantial evidence that the employee’s death was causally related to his employment. This
burden includes the necessity of furnishing rationalized medical opinion evidence of a cause and
effect relationship, based on a complete factual and medical background, showing causal
relationship. The opinion of the physician must be one of reasonable medical certainty and must
be supported by medical rationale.4
ANALYSIS
The Office relied on Dr. Raisinghani’s April 25, 2006 report in finding that the
employee’s death was not caused by his federal employment.5
In a report dated April 25, 2006, Dr. Raisinghani provided a reasoned opinion in which
he described the employee’s history of injury and treatment. He also reviewed diagnostic test
results which included pulmonary function tests from September 2002 which showed mild
obstructive lung disease with severe air trapping. Dr. Raisinghani explained that the employee
was bradycardiac and had PEA on July 11, 2003 when the paramedics arrived. Furthermore, he
advised that the employee had a cardiac history dating back to 2002 when he presented with
atrial fibrillation and heart failure. Dr. Raisinghani explained that the employee died from
cardiac-related arrhythmia and that there was no relationship between the employee’s heart
disease and COPD and that there was no causal connection between the two. Additionally, he
explained that some persons with COPD could have some atrial arrhythmias, but that he “was
not aware of them having a higher incidence of atrial fibrillation, which the [employee]
presented with.” Dr. Raisinghani concluded that the employee’s death was caused by smoking
and other cardiac risk factors but that atrial fibrillation was not a direct cause of the employee’s
death.
The Board finds that Dr. Raisinghani offered an unequivocal opinion on the essential
element of causal relationship and he supported that opinion with medical rationale. The Board
finds that Dr. Raisinghani’s opinion represents the weight of the medical evidence on the issue of
causal relationship.
Appellant has not provided any reasoned medical evidence to support that the employee’s
death was causally related to his employment. Therefore, appellant has failed to establish her
claim.
33
4

5 U.S.C. § 8102(a); see id. § 8133 (compensation in case of death).

Lois E. Culver, 53 ECAB 412 (2002).

5

The Board notes that Dr. Cosmo did not consider the accepted conditions and, therefore, his report was not
utilized.

4

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that the
employee’s death on July 11, 2003 was causally related to his work injury.
ORDER
IT IS HEREBY ORDERED THAT the June 26, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 11, 2007
Washington, DC

Alec J. Koromilas, Chief 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
__________________________________________
D.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Southeastern, PA, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1129
Issued: June 7, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 24, 2009 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ merit decision dated January 29, 2009. Under 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 more than a 16 percent permanent impairment to her
left upper extremity.
FACTUAL HISTORY
This is the third appeal before the Board. The Office accepted a claim for left carpal
tunnel syndrome. It granted appellant an award for 10 percent permanent impairment of the left
arm on August 12, 1997; it affirmed this award by decision dated July 6, 1998. In a January 9,
2001 decision,1 the Board set aside the Office’s decisions. The Board found that there was an
1

Docket No. 99-178 (issued January 9, 2001).

unresolved conflict in the medical evidence regarding the percentage of impairment in
appellant’s left upper extremity used under the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides) (5th ed. 2001). The Board remanded the
case to the Office for referral of appellant to an impartial medical specialist to resolve the
outstanding conflict in medical evidence regarding the appropriate percentage of impairment in
her left arm.
The Office referred appellant to Dr. Randall N. Smith, Board-certified in orthopedic
surgery, for an impartial medical examination. Relying on Dr. Smith’s findings, the Office, by
decision dated September 27, 2001, found that appellant was not entitled to an award greater
than the 10 percent already awarded. By decision dated May 9, 2002, an Office hearing
representative set aside the September 27, 2001 Office decision; it remanded the case and
instructed that it be referred back to Dr. Smith to explain his calculation pursuant to the
applicable tables of the fifth edition of the A.M.A., Guides. By decision dated February 4, 2003,
relying on Dr. Smith’s supplemental June 28, 2002 report, the Office granted appellant a
schedule award for an additional 6 percent permanent impairment of the left upper extremity,
totaling an overall 16 percent impairment. In a decision dated December 15, 2003, an Office
hearing representative affirmed the April 24, 2003 Office decision and denied appellant’s claim
for a greater award. By decision dated August 30, 2005, the Office reissued its February 4, 2003
decision granting appellant an award for a 16 percent left upper extremity impairment.
In a decision dated September 15, 2006,2 the Board set aside the August 30, 2005
decision. It found that the Office improperly relied on Dr. Smith’s opinion, which contained
insufficiently clear and comprehensible findings upon which to render a judgment and that he
failed to indicate the applicable tables and figures of the A.M.A., Guides upon which he relied in
calculating his impairment rating. The Board remanded the case and instructed the Office to
refer appellant to a second impartial medical specialist for a well-rationalized, updated medical
opinion, to specifically refer to the applicable tables and standards of the A.M.A., Guides in
rendering his impairment rating and to clearly indicate the specific background upon which he
based his opinion. The complete facts of this case are set forth in the Board’s January 9, 2001
and September 15, 2006 decisions and are herein incorporated by reference.
The Office scheduled appellant for an impartial medical examination with Dr. Evan S.
Kovalsky, Board-certified in orthopedic surgery. In a December 1, 2006 report, Dr. Kovalsky
found that she had no additional permanent impairment under the A.M.A., Guides. He stated
that appellant had good motor strength, a five out of five, with no weakness in the upper
extremities. Dr. Kovalsky advised that there was no evidence of any restricted range of motion
in the upper extremity on which to base impairment. He also noted no objective loss of strength
or sensation, no gross atrophy and no indication of ankylosis in the left upper extremity.
Dr. Kovalsky stated that appellant’s subjective pain in the left hand at worst was 3 out of 10. He
indicated that the most severe pain she had was in the neck area, but that this was not at issue.
Dr. Kovalsky stated that appellant had a positive Tinel’s bilaterally over the carpal tunnels, as
well as positive Phalen’s. He also indicated that she underwent an electromyelogram (EMG) on
July 25, 2006, which showed evidence of moderate right brachial plexus compromise, left radial
2

Docket No. 06-150 (issued September 15, 2006).

2

nerve compromise, right median nerve compromise and bilateral ulnar nerve compromise.
Dr. Kovalsky stated:
“In regards to the A.M.A., Guides, she would have several different impairment
ratings based upon the accepted facts. I will not comment upon the impairment
ratings due to the myofascial pain syndrome which involves the thoracic and
trapezial regions. In regards to the cervical radiculopathy and its aggravation, I
cannot attribute a specific component to the left upper extremity. If there was
significant weakness or sensory changes as a result of this, this could be
delineated to the left upper extremity. Based upon the cervical spine impairment
rating due to cervical disorders in Table 15-5, she would have approximately a
five to eight percent impairment of the whole person based upon her
symptomatology and findings. Once again, I cannot necessarily attribute a
portion of this to the left upper extremity.
“This leaves the only accepted diagnosis of a left carpal tunnel to determine the
impairment of the left upper extremity. Given the fact that she does not have any
significant objective sensory loss at this time but intermittent subjective sensory
symptoms, I would place her impairment of the left upper extremity at [five]
percent. This is based on the guidelines for carpal tunnel syndrome on page 495.
Under Item #2, the guidelines indicate in the patient with normal sensibility and
opposition strength with an abnormal [EMG], a residual carpal tunnel syndrome
an impairment rating not to exceed five percent of the upper extremity may be
justified. I feel that this would be the maximum amount of her impairment based
upon her objective findings.”
In a January 4, 2007 report, an Office medical adviser agreed with Dr. Kovalsky’s
opinion that appellant had a five percent impairment of her left upper extremity. He rejected any
additional impairment for aggravation of the cervical radiculopathy or myofascial pain
syndrome. The Office medical adviser stated that there was no applicable rating for myofascial
syndrome under the A.M.A., Guides, which does not permit awards based on spinal
impairments. He further stated that since there was no clinical evidence of C6 radiculopathy
there was no impairment for this condition.
With regard to appellant’s left-sided carpal tunnel syndrome, the Office medical adviser
noted that Dr. Kovalsky had found that she had intermittent subjective sensory symptoms but did
not have any significant objective sensory loss. He concurred with Dr. Kovalsky’s assessment
that appellant had a five percent left upper extremity impairment for carpal tunnel syndrome,
based on paragraph number 2 at page 495 of the A.M.A., Guides. As appellant had already been
granted an award for 16 percent impairment, the Office medical adviser found that she was not
entitled to an additional award for the left upper extremity than the she already received.
By decision dated January 4, 2007, the Office denied appellant’s claim for a schedule
award. It found that Dr. Kovalsky’s referee medical opinion represented the weight of the
medical evidence.

3

By letter dated January 9, 2007, appellant’s attorney requested an oral hearing, which was
held on April 2, 2007.
By decision dated June 19, 2007, an Office hearing representative affirmed the January 4,
2007 Office decision.
In a February 22, 2008 report, Dr. Scott Fried, an osteopath, stated that appellant had
ongoing dysfunction and disability, which was much higher than that found by Dr. Kovalsky and
the Office medical adviser. He asserted that her accepted diagnoses were still quite symptomatic
and that she was substantially dysfunctional. Dr. Fried stated that appellant underwent a
March 7, 2008 EMG nerve conduction study, which was consistent with bilateral brachial plexus
thoracic outlet nerve involvement, in addition to bilateral ulnar neuropathies at the elbows and
radial nerve involvement at the left and right forearm. He also stated that there was evidence of
bilateral median nerve carpal tunnel involvements at the wrist levels, again consistent with her
median nerve carpal tunnel diagnosis; the proximal brachial plexus involvements were consistent
also with her cervical nerve root involvements.
Dr. Fried stated that appellant’s findings were consistent with a 16 percent impairment of
the left arm secondary to the carpal tunnel and the dysfunction of the hand. He also stated that
she had evidence of cervical radiculopathy and brachial plexus involvement, adding another 16
percent impairment to her proximal extremity. Dr. Fried indicated that the brachial plexus
cervical radicular component, in addition to the carpal tunnel and thoracic component, would
amount to a 35 percent impairment of her left upper extremity secondary to her carpal tunnel,
cervical radiculopathy and myofascial pain syndrome, as well as thoracic degenerative disease.
By letter dated March 13, 2008, appellant’s attorney requested reconsideration.
By decision dated January 29, 2009, the Office denied modification of the June 19, 2007
decision.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act3 set forth the
number of weeks of compensation to be paid for permanent loss or loss of use of the members of
the body listed in the schedule. Where the loss of use is less than 100 percent, the amount of
compensation is paid in proportion to the percentage loss of use.4 However, the Act does not
specify the manner in which the percentage of loss of use of a member is to be determined. For
consistent results and to insure equal justice under the law to all claimants, the Office has
adopted the A.M.A., Guides (fifth edition) as the standard to be used for evaluating schedule
losses.5

3

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

4

Id. at § 8107(c)(19).

5

20 C.F.R. § 10.404.

4

ANALYSIS
In this case, the Office referred appellant to Dr. Kovalsky, the impartial examiner, who
determined that she had no additional permanent impairment applicable to the A.M.A., Guides.
It determined that appellant was not entitled to an additional schedule award in its June 19, 2007
and January 29, 2009 decisions, finding that Dr. Kovalsky’s opinion represented the weight of
the medical evidence.6 Dr. Kovalsky noted that she still showed residual findings, including a
positive Tinel’s bilaterally over the carpal tunnels, a positive Phalen’s test and EMG results
which showed evidence of moderate right brachial plexus compromise, left radial nerve
compromise, right median nerve compromise and bilateral ulnar nerve compromise. He found,
however, that these findings did not provide a basis for an additional permanent impairment
greater than the 16 percent already awarded. Dr. Kovalsky found that appellant had intermittent
subjective sensory symptoms but did not have any significant objective sensory loss. He found
that appellant had a five percent left upper extremity impairment for carpal tunnel syndrome
based on paragraph number 2 at page 495 of the A.M.A., Guides, which states:
“Normal sensibility and opposition strength with an abnormal sensory and/or
motor latencies or abnormal EMG testing of the thenar muscles: a residual carpal
tunnel syndrome is still present and an impairment rating not to exceed five
percent of the upper extremity may be justified.”7
The Office medical adviser reviewed Dr. Kovalsky’s report and rejected any additional
award for left lower extremity impairment. He properly noted that there was no applicable rating
for myofascial syndrome under the A.M.A., Guides, which does not permit awards based on
spinal impairments. The Office medical adviser further found that, given the fact that there was
no clinical evidence of C6 radiculopathy, there was no ratable impairment for this condition. He
concurred with Dr. Kovalsky’s assessment that appellant had a five percent left upper extremity
impairment for carpal tunnel syndrome based on paragraph number 2 at page 495 of the A.M.A.,
Guides. As appellant had already been granted an award for a 16 percent left upper extremity
impairment, the Office properly found in its June 19, 2007 decision that she had no additional
permanent impairment of the left upper extremity based on the reports from Dr. Kovalsky and
the Office medical adviser, which were rendered in conformance with the applicable protocols of
the A.M.A., Guides.
Appellant thereafter submitted the February 22, 2008 report from Dr. Fried, who found
that she had a 35 percent left upper extremity impairment based on residual left carpal syndrome,
cervical radiculopathy, myofascial pain syndrome and thoracic degenerative disease. The Board
finds that Dr. Fried’s report was not sufficient to negate the Office’s finding that Dr. Kovalsky’ s
referee report represented the weight of the medical evidence. Dr. Fried did not relate any of his
findings to the applicable tables and charts of the A.M.A., Guides. The Office properly

6

It is well established that the opinion of an impartial medical specialist is to be given special weight. See
Anna M. Delaney, 53 ECAB 384 (2002).
7

A.M.A., Guides 495.

5

determined that Dr. Fried’s report did not provide a basis for a schedule award under the Act.8
His report does not provide adequate medical rationale in support of his opinion that appellant is
entitled to an additional schedule award for the left upper extremity.9
There is no other probative medical evidence establishing that appellant sustained any
additional permanent impairment. The Board finds that the Office medical adviser properly
applied the A.M.A., Guides to rate appellant’s left upper extremity impairments based on
Dr. Kovalsky’s opinion, which constitutes the weight of medical opinion. The Board will affirm
the January 29, 2009 decision.
CONCLUSION
The Board finds that appellant has no additional impairment of her left upper extremity.
ORDER
IT IS HEREBY ORDERED THAT the January 29, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 7, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
8

The Board notes that a description of appellant’s impairment must be obtained from appellant’s physician,
which must be in sufficient detail so that the claims examiner and others reviewing the file will be able to clearly
visualize the impairment with its resulting restrictions and limitations. See Peter C. Belkind, 56 ECAB 580,
585 (2005).
9

William C. Thomas, 45 ECAB 591 (1994).

6


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

)
)
)
)
)
)
)
)

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

Docket No. 18-0769
Issued: September 10, 2018

Case Submitted on the Record

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

JURISDICTION
On February 26, 2018 appellant filed a timely appeal from a February 15, 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.
ISSUE
The issue is whether appellant has met her burden of proof to establish an injury in the
performance of duty on June 12, 2017, as alleged.
FACTUAL HISTORY
On June 14, 2017 appellant, then a 31-year-old rural mail carrier, filed a traumatic injury
claim (Form CA-1) alleging that she sustained a “back injury” on June 12, 2017 in the performance
of duty.

1

5 U.S.C. § 8101 et seq.

In support of her claim, appellant submitted: June 12, 2017 x-rays of her lumbar spine; a
June 12, 2017 return to work outline and June 12, 2017 disability slip of Dr. Matthew Tincher, an
attending Board-certified emergency medicine physician;2 general emergency department
discharge instructions; a June 28, 2017 continuation of pay nurse report; an unsigned “workers
compensation claim” form listing a June 12, 2017 date of injury; a June 26, 2017 report in which
an attending nurse indicated that appellant reported injuring herself by lifting a heavy box on
June 12, 2017; and a November 3, 2017 administrative document memorializing a visit to
Radiology Alliance, P.C.
In a January 4, 2018 development letter, OWCP advised appellant that the evidence she
had submitted was insufficient to establish that she actually experienced an employment incident.
It requested that appellant submit additional evidence in support of her claim, including a
physician’s opinion supported by a medical explanation as to how an employment incident caused
or aggravated a medical condition. OWCP requested that she complete and return an attached
questionnaire which posed various questions regarding how the alleged June 12, 2017 injury
occurred. It afforded her 30 days to submit a response.
Appellant submitted a copy of the questionnaire that she signed on January 9, 2018, but
she did not answer any of the questions posed by questionnaire.
By decision dated February 15, 2018, OWCP denied appellant’s claim for a June 12, 2017
employment injury. It found that she failed to meet her burden of proof to establish the fact of
injury, noting that she did not provide any statement explaining how the claimed June 12, 2017
employment injury occurred.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as alleged,
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury.4 These are the essential elements of each compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing the fact of injury. First, the employee must submit
2

Dr. Tincher listed a June 12, 2017 date of injury and found disability from June 12 to 13, 2017.

3

See supra note 1.

4

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

5
S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989). A traumatic injury refers to injury caused
by a specific event or incident or series of incidents occurring within a single workday or work shift whereas an
occupational disease refers to an injury produced by employment factors which occur or are present over a period longer
than a single workday or work shift. 20 C.F.R. § 10.5(q), (ee); Brady L. Fowler, 44 ECAB 343, 351 (1992).

2

sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged.6 Second, the employee must submit evidence, in the form
of medical evidence, to establish that the employment incident caused a personal injury.7 Causal
relationship is a medical issue and the medical evidence generally required to establish causal
relationship is rationalized medical opinion evidence.8
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish an injury in the
performance of duty, as alleged.
By decision dated February 15, 2018, OWCP denied appellant’s claim for a June 12, 2017
employment injury. It found that appellant failed to meet her burden of proof to establish fact of
injury, noting that she did not provide any statement explaining how the alleged June 12, 2017
employment injury occurred.
The Board finds that appellant failed to meet her burden of proof to establish fact of injury.
Despite being advised of the insufficiency of her initial submission of evidence, appellant failed
to submit a statement, in her own words, explaining what employment activity or condition she
believed caused her alleged June 12, 2017 employment injury.9 As noted, to establish fact of
injury, an employee must first submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place, and in the manner alleged.10 Appellant
has failed to meet this first component of establishing fact of injury and therefore has failed to
establish her claim for a June 12, 2017 employment injury.
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 on June 12, 2017, as alleged.

6

Julie B. Hawkins, 38 ECAB 393 (1987).

7

John J. Carlone, 41 ECAB 354 (1989).

8

See I.J., 59 ECAB 408 (2008); Donna Faye Cardwell, 41 ECAB 730 (1990).

9

The record contains a June 26, 2017 report in which an attending nurse indicated that appellant reported injuring
herself by lifting a heavy box on June 12, 2017. The Board notes that this document does not constitute a statement
of appellant in her own words and that the report does not specify that the reported lifting event occurred at work.
10

See supra note 6.

3

ORDER
IT IS HEREBY ORDERED THAT the February 15, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 10, 2018
Washington, DC

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

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

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

4