United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.F., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
ALCOHOL, TOBACCO, FIREARMS &
EXPLOSIVES, Washington, DC, Employer
__________________________________________

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

Docket No. 14-1392
Issued: October 21, 2014

Case Submitted on the Record

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

JURISDICTION
On June 2, 2014 appellant filed a timely appeal from a March 14, 2014 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 met her burden of proof to establish a traumatic injury in
the performance of duty on February 28, 2013.
FACTUAL HISTORY
On March 5, 2013 appellant, then a 54-year-old management analyst, filed a traumatic
injury claim (Form CA-1) alleging that she sustained a strained back, stiff neck, arm and
1

5 U.S.C. § 8101 et seq.

shoulder soreness, migraine headaches, pain in the right ear during a flight, and an unspecified
left hip and left leg injury in the performance of duty on February 28, 2013. She explained that,
while on a temporary-duty assignment at a Federal Law Enforcement Training Center on that
date, she exited a vehicle while it was very windy, carrying a number of items including her
laptop, coat and handouts for students, while also holding down her dress in the wind.
Appellant’s car door “blew open” and hit the car next to her. She turned and twisted to catch the
door, which “pulled her back out” and caused her to feel a “popping” sensation in her back.
On March 4, 2013 Dr. Gregory Levickas, a Board-certified internist, assessed appellant
with a migraine headache, ear pain and back pain, noting that all had improved. Appellant told
Dr. Levickas that she had flown without eating to Georgia for a trip for work and began to
develop a headache. She could feel pain in her right ear during the flight despite taking
medication for the pain. Appellant then developed some pain in her right lower back and neck,
for which she attended massage therapy, which granted some relief. Dr. Levickas noted that her
ear pain was a recurrent condition whenever she flew. He noted an unremarkable examination of
the extremities. In a disability certificate dated March 4, 2013, Dr. Levickas stated that appellant
had been under his care on that date and could return to regular duties on March 6, 2013.
In a report dated May 14, 2013, Dr. Jonathan Dunn, a Board-certified orthopedic surgeon,
assessed appellant with left hip greater trochanteric bursitis, thoracolumbar sprain/strain, bilateral
shoulder strain that occurred after getting out her car at work, and preexisting lower back, left leg
and bilateral shoulder symptoms. He noted that appellant told him that she was in Georgia to
teach a training class when she exited a rental car, she twisted to grab the door of the car while
holding her bag at the same time, and began to experience lower back, bilateral shoulder and
neck pain. Appellant also reported that she developed a migraine headache at about the same
time. Dr. Dunn noted that appellant had first seen Dr. Levickas on March 4, 2013. He reviewed
a report of a magnetic resonance imaging (MRI) scan dated February 28, 2012, which found a
partial bursal-sided rotator cuff tear. Dr. Dunn noted that appellant had a history of left hip,
shoulder, and leg issues that began when she joined L.A. Fitness, noting that she once lifted
weights and her shoulder pain developed, without ever resolving completely. Appellant’s lower
back pain and left leg pain worsened at that time, but Dr. Dunn noted that she had lower back
pain over 20 years ago, with no recent lower back pain.
On examination, Dr. Dunn noted mild restriction of range of motion of appellant’s
cervical and thoracolumbar spine, moderate tenderness to palpation over the left greater
trochanter, negative Neer’s and Hawkins’ tests, and no shoulder restriction of range of motion,
instability, swelling, ecchymosis or erythema. He stated “It is my opinion within a reasonable
degree of medical certainty that her lower back, left hip, left leg, and bilateral shoulder
symptoms are directly and causally related to the work-related incident on [February 28, 2013]
and represent a worsening of her preexisting pain in those areas.” Dr. Dunn further noted,
“Obviously, she has had symptoms in these areas in the past, but it seems to have worsened with
this twisting injury at work; these are mostly soft tissue injuries, which I think would be expected
to improve over the course of four to six weeks with appropriate therapy.”
In a report dated May 20, 2013, Dr. Francisco A. Ward, Board-certified in physical
medicine and rehabilitation, assessed appellant with lower back pain, shoulder pain, hip/pelvic
pain, somatic/segmental dysfunction of the lumbar region, lesion of the medial nerve,

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trochanteric bursitis of the left hip, shoulder impingement and bursitis of the right shoulder. He
noted that appellant’s most recent flare-up of symptoms occurred when she exited a car in
Georgia while carrying a laptop bag in her right arm and handouts in her left hand, when a gust
of wind swung the door open. Appellant tried to hold her dress down and twisted forcefully,
when she felt something “pop” in her lower back. Dr. Ward stated that her shoulder condition
was first noted years ago, and that she had been diagnosed with a partial tear of the right side.
He stated that appellant did not recall an incident leading to a tear, so he suspected that it was
degenerative in nature. Appellant’s left shoulder pain was similar, but not as intense. Dr. Ward
stated that her left hip discomfort was first noted in August 2012 without trauma. He noted an xray of her left hip was unremarkable. On examination, Dr. Ward noted good lumbar flexion and
extension without tenderness over facet joints; atrophy of the left abductor pollicis brevis with
slight weakness; a tender right subacromial bursa area and deltoid insertion in the humerus; mild
positive Hawkins and Neer’s tests on the right; and left hip tenderness over the greater
trochanter. He recommended a subacromial steroid injection of the right shoulder; a fitness
program with low-impact aerobics; and physical therapy of the shoulder and left hip.
On June 4, 2013 Dr. Ward performed a cortisone injection on appellant’s right shoulder.
On June 6, 2013 appellant requested authorization for physical therapy of her left hip
bursitis and lumbar sprain. On July 1, 2013 OWCP approved her request for authorization for an
office visit and x-rays of her hip, pelvis and lumbar spine. Appellant continued to request
authorization for physical therapy.
In a follow-up report dated June 11, 2013, Dr. Dunn stated that appellant reported no pain
in her left hip laterally, and a moderate degree of pain in her lower back and shoulders, with the
right shoulder more painful than the left. He examined her, noting mild restriction of the
thoracolumbar region, a mildly positive Neer’s test on the right, and tenderness to palpation
grossly over the left greater trochanter. Dr. Dunn assessed appellant with a status post motor
work-related injury on February 28, 2013 with left hip greater trochanteric bursitis,
thoracolumbar sprain/strain, and bilateral shoulder sprain with preexisting lower back, left leg
and bilateral shoulder symptoms.
In an August 26, 2013 letter, OWCP noted that appellant’s case file had been reopened
for consideration because her medical bills had exceeded $1,500.00. It notified her that she had
not provided sufficient evidence to establish that she actually experienced the incident in
question; that she was injured in the performance of duty; or that a physician had provided an
opinion as to how the alleged incident had resulted in her diagnosed conditions. OWCP afforded
appellant 30 days to submit additional evidence and to respond to its inquiries.
In a report dated February 5, 2013, Dr. Enzo Cosentino, a Board-certified
otolaryngologist, noted that appellant has sensorineural hearing loss and that he recommended
Afrin for an upcoming flight in an airplane along with a decongestant. He diagnosed appellant
with chronic rhinitis with sinusitis and a history of fluid with previous myringotomies, a rightsided sensorineural “drop,” asymmetric hearing loss, and a headache with probable sinusitis. An
attached MRI scan of her right ear was normal. In an attached report dated March 4, 2013,
Dr. Cosentino noted that appellant had come to the office for an emergency visit, and that she
had returned from an airplane flight four days previously, at which time she had significant

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difficulties with right ear pain, facial pain and congestion along with a headache during the
flight. He diagnosed her with eustachian tube dysfunction secondary to a recent airplane flight
and previous serous otitis media with fluid and myringotomies.
By letter dated September 4, 2013, Dr. Levickas noted that he had seen appellant on
March 4, 2013 for a migraine headache, ear pain and back pain. He noted that appellant reported
her symptoms began while traveling on a plane for work in Georgia. Appellant told him that the
next three days were “the worst 3 days of my entire life.” Dr. Levickas noted that she was seen
by Dr. Cosentino and given Medrol and Levaquin. By the time appellant saw Dr. Levickas, her
symptoms were improving. He noted her examination was unremarkable and that no further
testing was performed. Dr. Levickas stated, “As far as I know she made a full recovery. I
suspect that the flight triggered pressure trauma to her ear that then triggered a migraine. The
back pain was likely triggered by the immobilization of the flight and the stress associated with
the ear pain and headache.”
In a narrative report dated September 24, 2013, Dr. Ward responded directly to the
information requested by OWCP in its August 26, 2013 development letter. He noted that he
had seen appellant on May 20, 2013 and on June 4, 2013. Dr. Ward stated that appellant’s most
recent flare-up of bilateral shoulder pain, left hip pain, lower back pain, and neck soreness
occurred on February 28, 2013 when, while in Georgia, she exited a car while carrying a laptop
bag in her right arm and hand-outs in her left arm. Wind swung the car door open and appellant
twisted forcefully while trying to hold down her dress. On twisting, appellant felt something
“pop” in her back. Dr. Ward noted that her shoulder condition was first noted years ago, and that
she did not recall an incident leading to a tear, so that he suspected it was degenerative in nature.
He stated that appellant’s left hip discomfort was first noted in August 2012 without trauma.
Dr. Ward stated his findings of lumbar lordosis, right shoulder bursitis and trochanteric bursitis
of the left hip. He stated that it was his opinion within a reasonable degree of medical certainty
that appellant’s lower back, left hip, left leg, and bilateral shoulder symptoms were directly and
causally related to the work-related incident on February 28, 2013 and represented a worsening
of her preexisting pain in those areas.
On September 25, 2013 appellant responded to OWCP’s inquiries. She stated that she
was on a work trip to the Federal Law Enforcement Training Center in Brunswick, Georgia from
February 27 through March 1, 2013. Appellant noted that her ear, nose, and throat specialist had
advised her that prior to any airplane flight, she must take Sudafed and Afrin nasal spray the day
before, the flight, the day of, the flight and the day after her flight. On the flight to Georgia, she
felt pain and pressure in her right ear. Appellant noted several prior incidents of pain and
hearing loss after airplane flights. She stated that her supervisors at work knew that she had this
condition, but that she was still forced to fly and take these trips. Appellant noted that, after
leaving the flight to Georgia, she readied her materials for work and did not eat until 6:30 p.m. to
7:00 p.m. During this time, her headache worsened. After a night during which appellant
continued awakening due to the cold and noise from hotel maintenance in the next room, she ate
breakfast. Her headache continued to worsen, and she left for her presentation at the Federal
Law Enforcement Training Center at 11:30 a.m. When appellant exited her vehicle, it was
windy, and she attempted to carry her purse, her laptop bag, her coat, and handouts. She
attempted to hold her dress down in the wind and the car door blew open, hitting the car next to
hers. Appellant turned to catch the door while still holding the items, when she “pulled her back

4

out” and felt a pop. She was able to give her presentation afterward, but the room was very hot.
Appellant’s head was “pounding severely” after the presentation was over and she felt nauseated.
She requested an ice bag and after receiving it, returned to her hotel. Appellant’s nausea and
headache continued, and she felt too ill that evening to leave the hotel room. She began to feel
pain in her neck, back, shoulders and left hip while recovering in her room from the headache.
Appellant got a massage at Jacksonville Airport and at home. During the flight home, she was
cramped between two large men. Appellant noted that she learned later that the area around the
Federal Law Enforcement Training Center was experiencing a high pollen count at the time of
her visit, and that this pollen could have caused her migraine. She noted that she waited until
March 3, 2013 to report the injury because she was extremely ill, and that in fact she had
reported the injury on March 2, 2013, the first day she felt well enough to enter her injury online.
Appellant stated that she waited until May 14, 2013 to receive additional medical treatment
because she had hoped her injuries would resolve by themselves with time, and because she had
difficulty finding physicians that would accept federal workers’ compensation. She stated that
she had similar preexisting injuries of migraine headaches, a right ruptured eardrum, developing
fluid and hearing loss after airplane flights for work, sinusitis, a right partial rotator cuff tear,
lower back pain, neck pain, right arm pain from the shoulder, left hip pain and left leg pain.
On August 31, 2006 Dr. Cosentino stated that he believed appellant developed right-sided
eustachian tube dysfunction from bronchitis and the fact that she was on an airplane. In a letter
dated October 11, 2006, he stated that appellant returned to his office with improvement of her
symptoms of otitis media and eustachian tube dysfunction. On March 5, 2007 Dr. Cosentino
noted no recurrence of serous otitis media and a significant excoriation of the septum and the
lateral wall on the left side with polypoid change of the right middle turbinate. On April 15,
2010 he noted that appellant presented with symptoms of sinusitis, which had been fairly
significant after an airplane flight in early 2010. On examination, Dr. Cosentino noted severe
crusting, significant mucopurulent discharge and a deflective septum to the left with a friable
mucosa. In a letter dated May 18, 2010, he noted that appellant had no recurrence of nasal
bleeding and that her mucosa was slowly reversing back to normal. On January 4, 2011
Dr. Cosentino noted that appellant visited his office for a follow-up on severe sinusitis and
clogged ears. He noted that there was severe impaction of the ears and a recurrence of sinusitis.
On October 4, 2011 Dr. Cosentino noted that appellant came to the office for an emergency visit
regarding severe coughing, headache, post-nasal drip, nasal congestion and mucous. He noted
that she had intermittent sinusitis. In a letter dated October 6, 2011, Dr. Cosentino noted a right
serous otitis media. On November 9, 2011 he noted that appellant had a serous otitis media,
acute otitis media with rupture, conductive hearing loss, eustachian tube dysfunction and external
otitis. In a report dated January 4, 2012, Dr. Levickas assessed appellant with shoulder pain, ear
pain and coronary atherosclerosis.
By decision dated September 26, 2013, OWCP denied appellant’s claim. It found that
she had not established a diagnosed condition related to the incident of February 28, 2013; that
her injuries were related to duties of her federal employment; and that she had not submitted a
well-reasoned physician’s opinion on causal relationship.
On October 7, 2013 appellant requested a review of the written record before the Branch
of Hearings and Review.

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In a follow-up report from Dr. Dunn dated September 24, 2013, he assessed her with a
status post work-related injury on February 28, 2013 with left hip greater trochanteric bursitis,
thoracolumbar sprain/strain, right shoulder strain, and a history of preexisting lower back, left leg
and bilateral shoulder symptoms. He recommended a brief course of physical therapy.
In a follow-up report from Dr. Ward dated September 24, 2013, he assessed her with
right shoulder bursitis, which had been improved on her last visit via a subacromial bursa
injection; trochanteric bursitis; and intermittent radicular discomfort into the left calf, with no
nerve tension signs. On examination, he noted the same results as in his examination of
May 20, 2013.
By decision dated March 14, 2014, the hearing representative determined that appellant
had established the factual components of fact of injury, and that she was in the performance of
duty while on travel status on February 28, 2013. However, he affirmed OWCP’s decision dated
September 26, 2013, finding that appellant had not established a causal relationship between the
alleged factors of employment on February 28, 2013 and her diagnosed conditions. The hearing
representative noted that the opinions of Drs. Dunn, Levickas and Ward were not supported by
objective findings.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing 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 determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a fact of injury has been established.5
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged.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

2

5 U.S.C. § 8101 et seq.

3

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364, 366 (2006).

4

S.P., 59 ECAB 184, 188 (2007); Joe D. Cameron, 41 ECAB 153, 157 (1989).

5

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 3.

6

D.B., 58 ECAB 464, 466 (2007); David Apgar, 57 ECAB 137, 140 (2005).

7

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734, 737 (2008); Bonnie A. Contreras,
supra note 3.

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While on temporary-duty assignment, an employee is covered by FECA 24 hours a day
with respect to any injury that results from activities incidental to the temporary assignment. The
fact that an employee was on a special mission or in travel status during the time the condition
manifested itself does not raise an inference that the condition was causally related to the
incidents of employment.8
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.9 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.10
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.11 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
compensable employment factors.12 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.13
ANALYSIS
The Board finds that appellant has not established that she sustained an injury causally
related to factors of her employment while on temporary duty status on February 28, 2013.
On March 5, 2013 appellant filed a traumatic injury claim alleging that she sustained a
strained back, stiff neck, arm and shoulder soreness, migraine headaches, pain in the right ear
during a flight, and an unspecified left hip and left leg injury in the performance of duty on
February 28, 2013. In a later statement, she clarified that the pain to her right ear during a flight
to Georgia while on travel status triggered a migraine headache, and that the next morning, while
still in travel status, she twisted her back when exiting a car at the Federal Law Enforcement
Training Center. In its March 14, 2014 decision, OWCP accepted that appellant had established
the factual component of fact of injury, and that her incidents occurred within the performance of
8

See Rene Bonnin, 38 ECAB 193 (1986).

9

Roma A. Mortenson-Kindschi, 57 ECAB 418, 428 n.37 (2006); Katherine J. Friday, 47 ECAB 591, 594 (1996).

10

P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

11

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149, 155-56 (2006); D’Wayne Avila, 57
ECAB 642, 649 (2006).
12

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379, 384 (2006).

13

I.J., 59 ECAB 408, 415 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

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duty. The Board finds that the medical evidence of record is not sufficient to discharge
appellant’s burden of proof to establish that her alleged conditions were causally related to
factors of her federal employment.
In a report dated May 14, 2013, Dr. Dunn assessed appellant with left hip greater
trochanteric bursitis, thoracolumbar sprain/strain, bilateral shoulder strain that occurred after
getting out her car at work, and preexisting lower back, left leg and bilateral shoulder symptoms.
On examination, he noted mild restriction of range of motion of appellant’s cervical and
thoracolumbar spine, moderate tenderness to palpation over the left greater trochanter, negative
Neer’s and Hawkins’ tests, and no shoulder restriction of range of motion, instability, swelling,
ecchymosis or erythema. Dr. Dunn stated “It is my opinion within a reasonable degree of
medical certainty that her lower back, left hip, left leg, and bilateral shoulder symptoms are
directly and causally related to the work-related incident on [February 28, 2013] and represent a
worsening of her preexisting pain in those areas.” He further noted, “Obviously, she has had
symptoms in these areas in the past, but it seems to have worsened with this twisting injury at
work; these are mostly soft tissue injuries, which I think would be expected to improve over the
course of four to six weeks with appropriate therapy.” In a follow-up report dated June 11, 2013,
Dr. Dunn examined her, noting mild restriction of the thoracolumbar region, a mildly positive
Neer’s test on the right and tenderness to palpation grossly over the left greater trochanter. He
assessed her with a status post motor work-related injury on February 28, 2013 with left hip
greater trochanteric bursitis, thoracolumbar sprain/strain, and bilateral shoulder sprain with
preexisting lower back, left leg and bilateral shoulder symptoms.
Dr. Dunn’s reports are deficient in several respects. There are no objective findings with
regard to any leg conditions. Dr. Dunn’s opinion on causal relationship refers to symptoms
rather than diagnosed conditions. The report containing his opinion on causal relationship for a
shoulder condition contains no positive objective findings supporting the existence of such a
condition, though his later report found a positive Neer’s test. With regard to appellant’s
claimed neck, arm, right ear, left leg, and headache conditions, there are no objective findings to
support causation or the aggravation of preexisting conditions. Dr. Dunn found a negative
Spurling’s sign in his May 14, 2013 report and no physician diagnosed a neck condition.
Moreover, his reports lack a thorough biomechanical explanation of how appellant’s alleged
injuries occurred or were aggravated on February 28, 2013. Thus, Dr. Dunn’s reports are
insufficient to meet appellant’s burden of proof to establish a causal relationship between her
condition and the incident of February 28, 2013, supported by proper medical rationale.14
Neither the fact that appellant’s claimed conditions became apparent during a period of
employment, nor the belief that they were aggravated by her employment is sufficient to
establish causal relationship.15
On May 20, 2013 Dr. Ward assessed appellant with segmental dysfunction of the lumbar
region, lesion of the medial nerve, trochanteric bursitis of the left hip, shoulder impingement and
bursitis of the right shoulder. On examination, he noted good lumbar flexion and extension
without tenderness over facet joints; atrophy of the left abductor pollicis brevis with slight
14

See K.W., Docket No. 10-98 (issued September 10, 2010).

15

See D.I., 59 ECAB 158 (2007).

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weakness; a tender right subacromial bursa area and deltoid insertion in the humerus; mild
positive Hawkins and Neer’s tests on the right; and left hip tenderness over the greater
trochanter. In a narrative report dated September 24, 2013, Dr. Ward noted his findings of
lumbar lordosis, right shoulder bursitis and trochanteric bursitis of the left hip. He stated that it
was his opinion within a reasonable degree of medical certainty that her lower back, left hip, left
leg, and bilateral shoulder symptoms were directly and causally related to the work-related
incident on February 28, 2013 and represented a worsening of her preexisting pain in those areas.
Dr. Ward’s opinion, like Dr. Dunn’s, is not sufficient to meet appellant’s burden of proof to
establish causal relationship. It is not fully rationalized, as it lacks a thorough physiological
explanation of how the incident of February 28, 2013, in particular, aggravated appellant’s
conditions of the thoracolumbar region, shoulder and back. Dr. Ward refers to symptoms rather
than diagnosed conditions, as causally related to the events of February 28, 2013.
Appellant was diagnosed by a migraine by Dr. Levickas in his March 4, 2013 report. In a
letter dated September 4, 2013, Dr. Levickas stated, “I suspect that the flight triggered pressure
trauma to her ear that then triggered a migraine. The back pain was likely triggered by the
immobilization of the flight and the stress associated with the ear pain and headache.” However,
there were no objective findings supporting the aggravation of a migraine condition. Similarly,
the existence of appellant’s right ear condition is supported by the reports of Dr. Cosentino from
2006 through 2012; however, the aggravation of a right ear condition on February 28, 2013, in
particular, is not supported by any objective findings. There were no objective findings in any
reports to support a left leg condition. The opinion of a physician supporting causal relationship
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.16
The Board finds that the medical evidence of record lacks supporting medical rationale to
establish appellant’s claimed conditions, as there is a deficiency of objective medical evidence to
support causation or aggravation of these conditions on February 28, 2013. Hence, appellant has
not met her burden of proof to establish a causal relationship between her claimed back, neck,
arm, ear, leg, and headache conditions and the incidents of February 28, 2013, and has not
submitted sufficient evidence with regard to these conditions to require OWCP to undertake
further development.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision.17
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained an injury on February 28, 2013.

16

Supra note 13.

17

See 5 U.S.C. § 8128(a); 20 C.F.R. §§ 10.605-10.607.

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ORDER
IT IS HEREBY ORDERED THAT the March 14, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 21, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.O., Appellant
and
DEPARTMENT OF JUSTICE, IMMIGRATION
& NATURALIZATION SERVICE,
San Francisco, CA, Employer
_________________________________________

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

Docket No. 07-1360
Issued: December 6, 2007

Case Submitted on the Record

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

JURISDICTION
On April 25, 2007 appellant filed a timely appeal from an April 9, 2007 decision of the
Office of Workers’ Compensation Programs, finding that he abandoned his request for a hearing,
and a November 3, 2006 decision suspending his compensation benefits. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office properly suspended appellant’s right to
compensation benefits effective November 3, 2006 on the grounds that he failed to attend a
directed medical examination; and (2) whether the Office properly found that he abandoned his
request for a hearing.
FACTUAL HISTORY
On May 21, 2002 appellant, then a 50-year-old special agent, filed a traumatic injury
claim alleging that on May 14, 2002 he injured his neck, back, hips, knees and right shoulder

while participating in weapons training at the Naval Base and Reserve Training Center. The
Office accepted his claim for a lumbosacral sprain. On August 23, 2002 it accepted additional
conditions of a cervical strain, thoracic strain, bilateral knee sprain, bilateral shoulder sprain and
a left hip strain.1
On July 27 and September 24, 2002, respectively, Dr. Philip Wirganowicz and
Dr. Thomas D. Schmitz, Board-certified orthopedic surgeons and Office referral physicians,
examined appellant and opined that he had no residuals from his May 14, 2002 accepted
conditions.
On September 3, 2002 Dr. Fred Blackwell, an attending Board-certified orthopedic
surgeon, stated that appellant still had residuals from his May 14, 2002 employment injury.
The Office found a conflict in the medical opinion evidence between Dr. Blackwell and
the Office referral physicians and referred appellant, together with a statement of accepted facts,
a list of questions and the case file, to Dr. John W. Batcheller, a Board-certified orthopedic
surgeon, in order to resolve the conflict in the medical opinion evidence.
On February 3, 2003 Dr. Batcheller reviewed the medical history and provided findings
on physical examination. He stated that appellant had no residual disability or medical condition
causally related to his May 14, 2002 employment-related medical conditions.
By decision dated March 17, 2003, the Office terminated appellant’s compensation on the
grounds that the report of Dr. Batcheller established that he no longer had any residuals from his
May 14, 2002 employment injury. On December 1, 2003 an Office hearing representative
vacated the March 17, 2003 decision, finding that Dr. Batcheller’s report was not based on a
complete and accurate background because the Office had not provided him with relevant
medical reports regarding appellant’s other orthopedic claims. He remanded the case for the
Office to obtain a supplemental report from Dr. Batcheller after providing him with medical
records pertaining to earlier treatment of appellant’s orthopedic conditions.
On December 16, 2003 the Office notified appellant that an Office hearing representative
had directed that Dr. Batcheller rereview his case in conjunction with related orthopedic claims.
It indicated that the case was reopened for medical treatment until Dr. Batcheller had submitted a
supplemental report. On March 18, 2004 the Office asked Dr. Batcheller to reexamine
appellant’s case in light of a revised statement of accepted facts, which included information
regarding appellant’s related orthopedic claims and copies of medical reports regarding these
claims.
By letter dated March 18, 2004, the Office advised appellant that it was necessary for him
to be reexamined by Dr. Batcheller in order to properly resolve the conflict in the medical
evidence. It notified him of an appointment with Dr. Batcheller scheduled for May 17, 2004.
The Office advised appellant that, if he failed to keep the appointment and did not provide an
1

Subsequent to appellant filing his claim in 2002, his employing establishment changed from the Department of
Justice, Immigration and Naturalization Service to the Department of Homeland Security, Immigration and Customs
Enforcement.

2

acceptable reason for not attending, his benefits would be suspended pursuant to section 8123(d)
of the Federal Employees’ Compensation Act.
On June 24, 2004 the Office issued a final decision suspending appellant’s compensation
benefits on the grounds that he failed to attend a directed medical examination. By letter dated
July 6, 2004, appellant advised that he was making funeral arrangements for a relative between
May 14 and 21, 2004. Consequently, he could not attend the medical appointment scheduled for
May 17, 2004 with Dr. Batcheller. On March 23, 2005 the Office rescinded the June 24, 2004
suspension of appellant’s compensation benefits, finding that he had shown good cause for his
failure to attend the May 17, 2004 medical examination.
By letter dated October 18, 2005, the Office again referred appellant to Dr. Batcheller for
an evaluation as to whether he had any residual disability or medical condition causally related to
his May 14, 2002 employment injury. The Office advised him that the examination was
scheduled for November 14, 2005 at 12:30 p.m. It advised appellant that his compensation
benefits would be suspended if he missed the appointment and did not provide an acceptable
reason. On June 6, 2006 Dr. Batcheller’s office staff advised the Office that appellant cancelled
the appointment and never rescheduled. On October 4, 2006 the Office proposed to suspend
appellant’s compensation benefits pursuant to section 8123(d) of the Act for failure to attend the
examination scheduled with Dr. Batcheller for November 14, 2005, as directed in the
October 18, 2005 Office letter.
On October 18, 2006 appellant stated that he did not attend the appointment with
Dr. Batcheller on November 14, 2005 because section 8123(a) of the Act provided that the
physician selected to resolve a medical conflict must not have been previously involved in the
case. He stated that Dr. Batcheller had previously rendered a “negative” opinion against him.
Appellant stated that he advised Dr. Batcheller’s office staff that he did not plan to attend the
appointment and understood that his staff would so advise the Office.
By decision dated November 3, 2006, the Office finalized its suspension of appellant’s
compensation benefits.
On November 29, 2006 appellant requested an oral hearing.
In a February 20, 2007 notice, the Office advised appellant that a hearing would be held
in his case on March 22, 2007 at 2:15 p.m. at the Federal Building located at 450 Golden Gate
Avenue, Room 7-5290, in San Francisco, California. The notice was sent to his address of
record. Appellant did not appear for the hearing.
By decision dated April 9, 2007, the Office found that appellant abandoned his request
for a hearing. It found that a hearing had been scheduled for March 22, 2007. Appellant failed
to appear although a notice of the hearing had been sent to him 30 days in advance of the
hearing. The Office further found that appellant did not contact the Office before or after the
scheduled hearing to explain his failure to appear.

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LEGAL PRECEDENT -- ISSUE 1
Section 8123 of the Act authorizes the Office to require an employee, who claims
disability as a result of federal employment, to undergo a physical examination as it deems
necessary.2 The determination of the need for an examination, the type of examination, the
choice of locale and the choice of medical examiners are matters within the province and
discretion of the Office.3 The Office’s federal regulation at section 10.320 provides that a
claimant must submit to examination by a qualified physician as often and at such times and
places as the Office considers reasonably necessary.4 Section 8123(d) of the Act and section
10.323 of the Office’s regulations provide that, if an employee refuses to submit to or obstructs a
directed medical examination, his or her right to compensation is suspended until the refusal or
obstruction ceases.5 Office procedures provide that, before the Office may invoke these
provisions, the employee is to be afforded a period of 14 days within which to present in writing
his or her reasons for the refusal or obstruction.6 If good cause for the refusal or obstruction is
not established, entitlement to compensation is suspended in accordance with section 8123(d) of
the Act.7
ANALYSIS -- ISSUE 1
By letter dated October 18, 2005, the Office referred appellant to Dr. Batcheller for a
second examination and evaluation as to whether he had any residual disability or medical
condition causally related to his May 14, 2002 employment injury. The Office advised him that
the examination was scheduled for November 14, 2005 at 12:30 p.m. It advised appellant that
his compensation benefits would be suspended if he missed the appointment and did not provide
an acceptable reason for failing to attend. On June 6, 2006 Dr. Batcheller’s office staff advised
the Office that appellant cancelled the November 14, 2005 appointment and never rescheduled.
On October 4, 2006 the Office advised appellant that it proposed to suspend his compensation
benefits, pursuant to section 8123(d) of the Act, for failure to attend the examination scheduled
with Dr. Batcheller for November 14, 2005, as directed by the Office in its October 18, 2005
letter.
On October 18, 2006 appellant stated that he did not attend the appointment with
Dr. Batcheller on November 14, 2005 because section 8123(a) of the Act provided that the
physician selected to resolve a medical conflict must not have been previously involved in the
case. He stated that Dr. Batcheller had previously rendered a “negative” opinion against him.
Appellant stated that he advised Dr. Batcheller’s office staff that he did not plan to attend the
2

5 U.S.C. § 8123.

3

See Lynn C. Huber, 54 ECAB 281 (2002).

4

20 C.F.R. § 10.320.

5

5 U.S.C. § 8123(d); 20 C.F.R. § 10.323; see Alfred R. Anderson, 54 ECAB 179 (2002).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.14(d) (July 2000).
7

Id.

4

appointment and understood the staff would so advise the Office. Appellant’s stated explanation
for failing to attend the second scheduled examination with Dr. Batcheller is not valid as a matter
of law. The language of section 8123 of the Act does not require that a physician selected to
resolve a medical conflict must not have been previously involved in the case. There is a
relevant provision in the Code of Federal Regulations. In section 10.321(b) of the Office’s
regulations is language which states, in relevant part, that “[the Office] will select a physician
who is qualified in the appropriate specialty and who has had no prior connection with the
case.”8 However, this requirement applies to the initial selection of a physician performing an
impartial examination, not subsequent, additional examinations by the same physician to resolve
a conflict of medical opinion.
In addition to the statute and the regulations, the Office’s procedure manual provides that
if the impartial specialist’s report is vague, speculative, incomplete or unrationalized, it is the
responsibility of the Office to secure a supplemental report from that physician to correct the
defect in the original report. Only if the impartial specialist is unable or unwilling to provide a
supplemental report, or if the supplemental report is also defective, will the Office arrange for an
examination by a new impartial specialist.9
In this case, an Office hearing representative found that Dr. Batcheller’s initial report was
incomplete because the doctor had not been provided with relevant information regarding
appellant’s previous orthopedic claims. Under the circumstances in this case described above,
the Office properly found that it was reasonably necessary for appellant to undergo a second
examination by Dr. Batcheller. For the reasons discussed, appellant did not show good cause for
his failure to attend the November 14, 2005 examination with Dr. Batcheller.10 Because
appellant failed to attend the directed medical examination and did not provide good cause for
the failure within 14 days of the Office’s October 4, 2006 notice of proposed suspension, the
Office properly suspended his compensation benefits as of November 3, 2006.
LEGAL PRECEDENT -- ISSUE 2
The statutory right to a hearing under 5 U.S.C. § 8124(b)(1) follows the initial final merit
decision of the Office. Section 8124(b)(1) provides as follows: “Before review under section
8128(a) of this title, a claimant for compensation not satisfied with a decision of the Secretary [of
Labor] under subsection (a) of this section is entitled, on request made within 30 days after the
date of the issuance of the decision, to a hearing on his claim before a representative of the
Secretary.”

8

20 C.F.R. § 10.321(b).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.11(c)(2) (April 1993).
10

The Board notes that appellant did not object toe the first follow-up evaluation by Dr. Batcheller which had
been scheduled for May 17, 2004. His stated reason for not attending the second examination with Dr. Batcheller at
that time was that he was making funeral arrangements for a relative.

5

With respect to abandonment of hearing requests, Chapter 2.1601.6.e of the Office’s
procedure manual provides in relevant part:
“(1) A hearing can be considered abandoned only under very limited
circumstances. All three of the following conditions must be present: the
claimant has not requested a postponement; the claimant has failed to appear at a
scheduled hearing; and the claimant has failed to provide any notification for such
failure within 10 days of the scheduled date of the hearing. Under these
circumstances, [the Branch of Hearings and Review] will issue a formal decision
finding that the claimant has abandoned his or her request for a hearing and return
the case to the [district Office].”11
ANALYSIS -- ISSUE 2
By decision dated November 3, 2006, the Office suspended appellant’s compensation
benefits. Appellant timely requested an oral hearing. In a February 20, 2007 letter, the Office
notified appellant that an oral hearing was to be held on March 22, 2007. Appellant did not
attend.12 As noted, he was required to provide an explanation for his failure to appear within 10
days of the March 22, 2007 hearing. However, there is no evidence of record that appellant
explained his failure to appear at the March 22, 2007 hearing within 10 days of the hearing date.
The evidence establishes that appellant did not request a postponement of the hearing,
failed to appear at the hearing and failed to provide adequate explanation for his failure to appear
within 10 days of the hearing date. The Board therefore finds that he abandoned his request for a
hearing.
CONCLUSION
The Board finds that the Office properly suspended appellant’s compensation benefits
effective November 3, 2006 for failure to attend a directed medical examination. The Board
further finds that the Office properly determined that appellant abandoned his request for a
hearing.

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6.e (January 1999); see also G.J., 58 ECAB ___ (Docket No. 07-1028, issued August 16, 2007).
12

The Board notes that, on appeal, appellant asserted that he failed to attend the scheduled hearing or timely
request a postponement because he was traveling between February 22 and March 14, 2007. In his appeal letter,
appellant did not explain why he could not attend the March 22, 2007 hearing in light of the fact that the return date
for his trip was March 14, 2007. However, upon his return from his trip on March 14, 2007, he did not request a
postponement of the March 22, 2007 hearing. Whatever their merit, appellant’s explanations contained in his appeal
letter were not before the Office and are not part of the record below. Therefore, the Board cannot consider those
statements on appeal.

6

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 9, 2007 and November 3, 2006 are affirmed.
Issued: December 6, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.D., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. SECRET SERVICE, Washington, DC,
Employer
__________________________________________

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

Docket No. 21-1205
Issued: January 13, 2022

Case Submitted on the Record

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

JURISDICTION
On August 4, 2021 appellant filed a timely appeal from a March 11, 2021 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case. 2
ISSUE
The issue is whether appellant has met his burden of proof to establish a diagnosed medical
condition causally related to the accepted January 17, 2021 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 11, 2021 decision, appellant submitted additional evidence to OWCP.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
On January 20, 2021 appellant, then a 48-year-old law enforcement officer, filed a
traumatic injury claim (Form CA-1) alleging that on January 17, 2021 he sustained trauma to the
body, including soreness in the shoulders, neck, back, and hips and possible whiplash , due to a
motor vehicle accident (MVA), which occurred while in the performance of duty. He reported
that he was being transported in a government vehicle after the completion of a protective
assignment when the vehicle he was traveling in was rear ended by another vehicle. On the reverse
side of the claim form the employing establishment acknowledged that appellant wa s injured in
the performance of duty and indicated that appellant’s injury was caused by a third party.
Appellant stopped work on January 17, 2021 and returned to work on January 20, 2021.
In a development letter dated January 28, 2021, OWCP informed appellant of the
deficiencies of his claim. It advised him as to the type of additional factual and medical evidence
required and provided a questionnaire for his completion. OWCP afforded appellant 30 days to
respond.
In support of his claim, appellant submitted a January 17, 2021 attending physician’s report
(Form CA-20) from Dr. Uthman Alamoudi, a Board-certified emergency medicine, who examined
him on January 17, 2021. Dr. Alamoudi related that appellant was a backseat passenger in a car
that was rear ended. He noted that appellant had been wearing a seatbelt and that no air bag had
deployed. On examination, Dr. Alamoudi noted that appellant experienced mild neck pain on the
right side. He diagnosed neck muscle strain. Dr. Alamoudi checked a box marked “No,”
indicating that he did not believe appellant’s condition was caused or aggravated by an
employment activity. He advised that appellant could resume work immediately. In a January 17,
2021 employing establishment medical clearance checklist, Dr. Alamoudi diagnosed motor
vehicle collision, noting that appellant was injured in a motor vehicle collision.
In Part B, attending physician’s report, of a January 17, 2021 authorization for examination
and/or treatment (Form CA-16), Dr. Samantha Noll, an emergency medicine physician, related
appellant’s history of injury, including the fact that he was in a government vehicle at the time of
the alleged injury. She marked boxes indicating “Yes” and “No” as to whether she believed the
condition was caused or aggravated by the employment activity. Dr. Noll diagnosed mild neck
pain and advised that appellant could return to work without restrictions.
OWCP also received a January 17, 2021 police report signed by an investigating police
officer, which listed appellant as a backseat passenger in the car that was rear ended that morning.
The report indicated that appellant sustained a possible injury and that all vehicle occupants were
taken to the hospital as a precaution.
In an emergency medical service (EMS) conversion record of even date, an emergency
medical technician (EMT) indicated that, on that date, appellant was transported to a hospital from
the scene of the accident. The record related appellant’s history of injury and indicated symptoms
of neck injury and malaise. A second EMS report of even date repeated appellant’s history of
injury and noted symptoms of neck injury and malaise.
By decision dated March 11, 2021, OWCP denied appellant’s traumatic injury claim,
finding that the medical evidence of record was insufficient to establish a medical diagnosis in
2

connection with the accepted January 17, 2021 employment incident. It concluded, therefore, that
the requirements had not been met to establish an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including 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, 4 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury. 5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 6
To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.7 The second component is whether the employment incident caused a personal injury.8
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 9 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 specific employment incident
identified by the employee. 10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that his
diagnosed neck strain was causally related to the accepted January 17, 2021 employment incident.
3

Supra note 1.

4

S.S., Docket No. 19-1815 (issued June 26, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
5

M.H., Docket No. 19-0930 (issued June 17, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB
312 (1988).
6

S.A., Docket No. 19-1221 (issued June 9, 2020); L.M., Docket No. 13-1402 (issued February 7, 2014); Delores C.
Ellyett, 41 ECAB 992 (1990).
7

R.K., Docket No. 19-0904 (issued April 10, 2020); Elaine Pendleton, 40 ECAB 1143 (1989).

8

Y.D., Docket No. 19-1200 (issued April 6, 2020); John J. Carlone, 41 ECAB 354 (1989).

9

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
10

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).

3

Dr. Alamoudi diagnosed a neck muscle strain in the January 17, 2021 Form CA-20;
however, he checked a box marked “No” indicating that he did not believe that the condition was
caused or aggravated by the employment activity. The Board has held that evidence that negates
causal relationship is of no probative value. 11 While this evidence is sufficient to establish a valid
medical diagnosis, it is insufficient to establish causal relationship.
In a January 17, 2021 employing establishment medical clearance checklist, Dr. Alamoudi
diagnosed motor vehicle collision noting that appellant was injured in a motor vehicle collision.
However, he did not provide an opinion regarding causal relationship. 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.12 Therefore, this report is insufficient to
establish appellant’s traumatic injury claim.
Appellant also submitted two January 17, 2021 EMS reports not signed by a physician.
The Board has held that medical reports signed solely by an EMT, physician assistant, registered
nurse, or medical assistant are of no probative value as such healthcare providers are not considered
physicians as defined under FECA and are, therefore, not competent to provide medical opinions. 13
Consequently, their medical findings and/or opinions will not suffice for the purpose of
establishing entitlement to FECA benefits.
OWCP also received a January 17, 2021 Form CA-16 wherein Dr. Noll related appellant’s
history of injury, including the fact that he was in a government vehicle at the time of the alleged
injury. She diagnosed mild neck pain and advised that appellant could return to work without
restrictions. Dr. Noll marked boxes indicating both “Yes” and “No” as to whether the injury was
caused or aggravated by the employment activity. The Board has long held that medical opinions
that are equivocal in nature are of diminished probative value. 14 Therefore, this report is also of
no probative value and is insufficient to establish appellant’s claim.
As appellant has not submitted rationalized medical evidence establishing causal
relationship between his diagnosed condition and the accepted January 17, 2021 employment
incident, 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.

11

T.W., Docket No. 19-0677 (issued August 16, 2019).

12

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

13
Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3a(1) (January 2013); D.B., Docket No. 16-1219 (issued November 8, 2016) (an EMT is
not considered a physician under FECA); R.L., Docket No. 19-0440 (issued July 8, 2019) (nurse practitioners are not
considered physicians under FECA); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as
physician assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA).
14

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

4

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that his
diagnosed neck strain was causally related to the accepted January 17, 2021 employment
incident.15
ORDER
IT IS HEREBY ORDERED THAT the March 11, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed as modified.
Issued: January 13, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

15
A completed Form CA-16 authorization may constitute a contract for payment of medical expenses to a medical
facility or physician, when properly executed. The form creates a contractual obligation, which does not involve the
employee directly, to pay for the cost of the examination or treatment regardless of the action taken on the claim. See
20 C.F.R. § 10.300(c); J.G., Docket No. 17-1062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.P., Appellant
and
TENNESSEE VALLEY AUTHORITY,
Stevenson, AL, Employer
__________________________________________

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Appearances:
Ronald K. Bruce, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1360
Issued: October 29, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 29, 2014 appellant, through his attorney, filed a timely appeal from an April 28,
2014 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 established that he sustained a bilateral hearing loss
causally related to his federal employment.
FACTUAL HISTORY
Appellant, a 60-year-old boilermaker and welder, filed an occupational disease claim
(Form CA-2) on April 23, 2013, alleging bilateral hearing loss caused by factors of his federal
employment. He first became aware of his hearing loss in January 1991 and realized it was
1

5 U.S.C. § 8101 et seq.

related to his employment on April 4, 2013. Appellant worked as a boilermaker with the
employing establishment for intermittent periods between March 1979 and October 26, 1990,
totaling approximately three years.2 He was provided with hearing protection but did not always
use it.
In a March 20, 2013 report, Dr. William A. Logan, Board-certified in otolaryngology,
noted a history of occupational noise exposure. He diagnosed bilateral sensorineural hearing loss
and tinnitus. The report included an audiogram dated March 19, 2013; however, the audiogram
did not evince that the calibration protocol required by accreditation manual of the American
Speech and Hearing Association was followed.
In a report dated July 16, 2013, Dr. Whitney Mauldin, audiologist, related that the
employing establishment had requested that she review appellant’s records and provide an
opinion regarding his hearing loss claim. She noted that he underwent audiometric testing while
employed at the employing establishment. Dr. Mauldin determined that appellant’s employment
at the employing establishment, some 23 years ago, was not the cause of his hearing loss, which
was due to presbycusis and nonemployment-related noise exposure.
In order to determine whether appellant sustained a work-related hearing loss, OWCP
referred him to Dr. Jack W. Aland, a specialist in otolaryngology, for a second opinion
examination.3 In an August 19, 2013 report, Dr. Aland evaluated appellant for bilateral,
sensorineural hearing loss. An audiogram dated August 19, 2013, with an attached calibration
certificate, showed hearing levels of 20, 20, 45 and 65 decibel (dB) on the right and 15, 20, 40
and 65 dB on the left at 500, 1,000, 2,000 and 3,000 hertz, respectively. Dr. Aland diagnosed
bilateral, mild sensorineural hearing loss but noted that appellant had noise exposure at work
performed outside of his federal employment. Appellant’s prior federal workplace exposure was
not sufficient in intensity or duration to have caused the loss in question. In comparing his
present audiometric findings to those at the beginning of exposure, he did not show a
sensorineural loss in excess of what would normally be predicted on the basis of presbycusis.
Dr. Aland noted that appellant had a preexisting hearing loss and wore heavy ear protection
during his federal employment. He further advised that appellant’s noise exposure at the federal
workplace was intermittent over the years.
In an August 22, 2013 report, an OWCP medical adviser, Dr. Eric Puestow, Boardcertified in internal medicine, concurred with Dr. Aland’s opinion that appellant’s bilateral
hearing loss was not work related. He noted that the sensorineural loss was not in excess of what
would normally be predicted on the basis of presbycusis and that appellant’s federal workplace
exposure was not sufficient as to intensity or duration to have caused the loss in question.

2

In a statement received by OWCP on July 5, 2013, appellant documented the periods between March 1979 and
October 1990 in which he worked as a federal employee for the employing establishment, totaling to approximately
three years. He also indicated that he worked out of the Boilermakers Union until March 16, 2010 during which
time he worked directly for the employing establishment, as well as for contractors at various employing
establishment plants.
3

Dr. Aland was provided a statement of accepted facts that listed noise exposure in appellant’s federal
employment intermittently from March 15, 1979 to October 26, 1990.

2

Dr. Puestow found that appellant’s sensorineural loss was not caused or contributed to by noise
exposure in the federal workplace.
By decision dated August 27, 2013, OWCP denied appellant’s claim for a schedule
award. It found the medical evidence was not sufficient to establish that his hearing loss was
caused by noise exposure in his federal employment.
By letter dated September 5, 2013, appellant, through his attorney, requested an oral
hearing, which was held on February 18, 2014. At the hearing, he testified that he began his
employment with the employing establishment at the Hartsville Nuclear Plant on March 12,
1979, where it was continuously noisy, with motors and pumps running and people beating and
banging on hammers and grinding. Appellant worked 5 to 7 days a week, 8 to 12 hours per day
and earplugs were not provided to him. He also worked at the employing establishment’s
Widow’s Creek Plant, where he was continuously exposed to the same noise; hammering and
motors running, steam discharging, conveyor belts running, grinding, turbines and large fans.
Appellant worked 5 to 7 days a week, 8 to 10 hours per day and sometimes, but infrequently,
wore earplugs. He also worked at the Sequoyah Nuclear Plant, with similar hours and days,
where he wore earplugs.
In a January 9, 2014 report, Dr. Logan stated that appellant had a bilateral sensorineural
hearing loss and that his history and the pattern of hearing loss were consistent with cumulative
exposure to loud noise. He stated that appellant’s exposure at the employing establishment
likely contributed to his hearing loss. Based on the March 19, 2013 audiogram results, appellant
had a ratable hearing loss of 22.50 percent in the right ear and 16.90 percent in the left ear, for a
binaural hearing loss of 17.8 percent, pursuant to the A.M.A., Guides.
In a statement dated March 17, 2014, the employing establishment rebutted several
statements that appellant made at the hearing. It denied his assertion that no hearing protection
was provided during his employment at Hartsville, which was contradicted by a March 13, 1979
outpatient record stating “small comfits issued.” The employing establishment stated that
comfits were the standard hearing protection issued at the time of appellant’s employment. It
also disagreed with his statement that work at Sequoyah Nuclear Plant was “deafening all the
time.” The employing establishment stated that appellant neglected to mention that, during the
time he worked at this plant, there were equipment outages; during which the equipment on
which he worked was not in operation. It asserted that he incorrectly stated that he first noticed
his hearing loss in 1991, which was contradicted by his February 22, 1978 preemployment
audiometric examination, which showed that he had a preexisting hearing loss caused by
exposure to noise in his nonfederal employment.
By decision dated April 28, 2014, an OWCP hearing representative affirmed the
August 27, 2013 decision. She found that Dr. Logan’s opinion was not based on a full or
accurate history of appellant’s exposure to noise in his federal employment.

3

LEGAL PRECEDENT
An employee seeking compensation under FECA4 has the burden of establishing the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence,5 including that he or she is an employee within the meaning of FECA and that he or
she filed his or her claim within the applicable time limitation.6 The employee must also
establish that he or she sustained an injury in the performance of duty as alleged and that his or
her disability for work, if any, was causally related to the employment injury.7
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.8
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. 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. 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.9
OWCP procedures set forth requirements for the medical evidence used in evaluating
hearing loss. These include that the employee undergo both audiometric and otologic
examination; that the audiometric testing be performed by an appropriately certified audiologist;
that the otologic examination be performed by an otolaryngologist certified or eligible for
certification by the American Academy of Otolaryngology and that the audiometric and otologic
examination be performed by different individuals as a method of evaluating the reliability of the
findings. Further, all audiological equipment authorized for testing meet the calibration protocol
contained in the accreditation manual of the America Speech and Hearing Association; that the
audiometric test results include both bone conduction and pure tone air conduction thresholds,
speech reception thresholds and monaural discrimination scores. The otolaryngologist’s report is
to include: date and hour of examination, date and hour of employee’s last exposure to load
4

See supra note 1.

5

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

6

See M.H., 59 ECAB 461 (2008); Emiliana de Guzman (Mother of Elpedio Mercado), 4 ECAB 357, 359 (1951);
see 5 U.S.C. § 8101(1).
7

R.C., 59 ECAB 427 (2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954); see 5 U.S.C. § 8122.

8

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

9

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

4

noise, a rationalized medical opinion regarding the relation of the hearing loss to the
employment-related noise exposure and a statement of the reliability of the tests.10 The
physician should be instructed to conduct additional tests or retests in those cases where the
initial tests were inadequate or there is reason to believe that the claimant is malingering.11
ANALYSIS
The issue is whether appellant’s hearing loss was caused or contributed to by exposure to
noise in his federal employment. The record reflects that he was exposed to noise in the course
of federal employment for intermittent periods between March 15, 1979 and October 26, 1990,
totaling approximately three years.
Appellant submitted Dr. Logan’s March 19, 2013 report, with audiogram, as well as
results of audiometric testing performed from February 1978 to January 1991. Dr. Logan’s
report, however, offered no opinion regarding the cause of his hearing loss. Further, the
diagnostic testing obtained for Dr. Logan did not provide proper certification of calibration.
Dr. Mauldin opined that appellant’s hearing loss was not work related. To the extent that
she offered a medical opinion, she is not a physician and her opinion is of no probative medical
value.12 Following the initial denial of the claim, Dr. Logan submitted a January 9, 2014
supplemental statement. He opined that appellant had bilateral sensorineural hearing loss,
consistent with cumulative exposure to loud noise and that his work at the employing
establishment “likely” contributed to his hearing loss. The Board finds that Dr. Logan did not
adequately address how the specific factors of appellant’s federal employment, based upon an
accurate employment history, caused or contributed to his hearing loss. Dr. Logan’s opinion is
couched in speculative terms, not fully rationalized and is of limited probative value.
The Board finds that the weight of medical opinion is represented by Dr. Aland, the
referral specialist. In his August 20, 2013 report, Dr. Aland found that the August 19, 2013
audiogram showed bilateral, mild sensorineural hearing loss but not related to industrial noise
exposure. He noted that appellant had noise exposure from work performed outside of his
federal employment and stated that the accepted workplace exposure was not sufficient in
intensity or duration to have caused the loss in question. Dr. Aland stated that, in comparing his
present audiometric findings to those at the beginning of exposure, appellant did not show a
sensorineural loss in excess of what would normally be predicted on the basis of presbycusis.13
He noted that appellant had a preexisting hearing loss and wore heavy ear protection during his
10

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

11

Luis M. Villanueva, 54 ECAB 666 (2003). See Federal (FECA) Procedure Manual, Part 3 -- Medical,
Requirements for Medical Reports, Chapter 3.600.8(a) (September 1995).
12

See 5 U.S.C. § 8101(2) (defines the term physician); M.P., Docket No. 13-1790 (issued December 17, 2013)
(an audiologist is not a physician under FECA and the audiologist’s opinion regarding the medical cause of a
claimant’s hearing loss is of no probative medical value).
13

As noted above, it is appellant’s burden to submit a properly certified audiogram for review if he objects to the
audiogram selected by OWCP for determining the degree of hearing loss. Joshua A. Holmes, 42 ECAB 231,
236 (1990).

5

federal employment. Dr. Aland noted that his noise exposure at the federal workplace was
intermittent over the years.
While the record contains other audiometric results, none were accompanied by a
physician’s rationalized-medical opinion addressing how appellant’s employment-related noise
exposure caused or aggravated any hearing loss. OWCP is not required to rely on this evidence
in determining the degree of his hearing loss because it does not constitute competent medical
evidence and therefore is insufficient to satisfy his burden of proof.14
On appeal, appellant’s attorney argues that appellant sustained a binaural hearing loss
causally related to noise exposure in his federal employment and is entitled to a schedule award.
He asserts that Dr. Aland’s opinion was flawed because he did not take into account the fact that
appellant worked for seven months after the last audiogram he underwent at the employing
establishment or that he was exposed to 96 dB of noise, which exceeds the 85 dB OSHA
standard. Counsel contends that, at the very least, OWCP should have found a conflict in
medical opinion between Dr. Aland and Dr. Logan which warranted referral to an impartial
medical specialist. As noted above, the Board finds Dr. Logan’s opinion lacked probative
weight.
Dr. Aland provided a thorough examination and a reasoned opinion explaining how the
findings on examination and testing were not due to noise exposure in appellant’s employment.
He was provided an accurate statement of accepted noise exposure and contrasted audiometric
test performed on August 19, 2013 with the prior audiograms of record. Dr. Aland concluded
that noise exposure did not contribute to his mild sensorineural loss, which was attributed to
presbycusis.
The Board finds that OWCP properly determined that Dr. Aland’s opinion that appellant
did not establish a bilateral hearing loss causally related to his employment-related noise
exposure represents the weight of the evidence. Dr. Aland conducted a thorough examination
and provided a reasoned opinion explaining how the findings on examination and testing of
appellant’s right and left ear were not due to the noise in his employment. The medical adviser,
concurred with Dr. Aland’s August 20, 2013 opinion. The Board will affirm OWCP’s April 28,
2014 decision.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that his
bilateral sensorineural hearing loss was causally related to his federal employment.

14

Holmes, id.

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ORDER
IT IS HEREBY ORDERED THAT the April 28, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 29, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.J., Appellant
and
U.S. POSTAL SERVICE, BURLINGTON POST
OFFICE, Burlington, NC, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0944
Issued: March 23, 2022

Case Submitted on the Record

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

On June 1, 2021 appellant filed a timely appeal from a January 13, 2021 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as 21-0944.
On February 4, 2016 appellant, then a 54-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that she sustained injuries on January 20, 2016 when she fell down
steps while delivering mail. OWCP accepted the claim for contusion of right hip, contusion of left
hip, left side lumbago with sciatica, left hip trochanteric bursitis, and lumbar intervertebral disc
displacement. It authorized lumbar spinal decompression surgery, which occurred on
December 15, 2016. OWCP paid appellant wage-loss compensation intermittently on the
supplemental rolls and on the periodic rolls from May 28, 2016 until January 4, 2019.
In a report dated June 17, 2019, Dr. Mark Dumonski, a Board-certified orthopedic surgeon,
diagnosed left sacroiliac joint dysfunction and status post L3-4 decompression and fusion. He
opined that appellant had 30 percent permanent impairment of her back, which was based upon 25
percent permanent impairment for L3-4 fusion and 5 percent permanent impairment of the left
sacroiliac joint.
On September 3, 2019 appellant filed a claim for compensation (Form CA-7) for a schedule
award.

On September 18, 2019 OWCP referred appellant to Dr. Chason S. Hayes, a Boardcertified orthopedic surgeon, for a permanent impairment rating. In a report dated October 11,
2019, Dr. Hayes diagnosed lumbar radiculopathy. He found appellant was at maximum medical
improvement (MMI). Using the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides), he found that appellant had an eight
percent permanent impairment of the lumbar spine. In an addendum dated November 5, 2019,
Dr. Hayes noted that he had been requested to recalculate appellant’s permanent impairment based
upon her peripheral nerve impairment. He concluded that under this method, as appellant had no
motor or sensory deficits she had zero percent permanent impairment.
In a report dated December 10, 2019, Dr. Arthur Harris, a Board-certified orthopedic
surgeon serving as the district medical adviser (DMA), noted his disagreement with Dr. Hayes’
October 11, 2019 impairment rating for lumbar spine impairment as this permanent impairment
rating was not based on The Guides Newsletter Rating Spinal Nerve Extremity Impairment Using
the Sixth Edition (July/August 2009) (The Guides Newsletter) for rating spinal nerve impairments.
He explained that appellant did not have any neurologic deficit causing sensory or motor loss,
therefore she had a Class 0 placement using Table 2 of The Guides Newsletter resulting in zero
percent lower extremity permanent impairment, due to her lumbar radiculopathy.
By decision dated December 30, 2019, OWCP denied appellant’s claim for a schedule
award as the medical evidence of record was insufficient to support an impairment to a member or
function of the body.
In a report dated November 20, 2020, Dr. Dumonski diagnosed left sacroiliac joint
dysfunction. He explained that appellant’s 30 percent permanent impairment rating was based
upon her sacroiliac joint dysfunction, which caused pain to extend into her left leg.
On January 5, 2021 OWCP received appellant’s request for reconsideration of the
December 30, 2019 decision.
By decision dated January 13, 2021, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
The Board, having duly considered the matter, finds that this case is not in posture for
decision.
The Board finds that OWCP did not make findings regarding the evidence appellant
submitted in support of the reconsideration request. 1 OWCP summarily denied appellant’s request
for reconsideration without complying with the review requirement of FECA a nd its implementing
regulations.2 As noted, section 8124(a) of FECA provides that OWCP shall determine and make
1
See R.C., Order Remanding Case, Docket No. 20-1671 (issued May 6, 2021); J.K., Order Remanding Case,
Docket No. 20-0556 (issued August 13, 2020); C.D., Order Remanding Case, Docket No. 20-0450 (issued August 13,
2020); T.B., Order Remanding Case, Docket No. 20-0426 (issued July 27, 2020).
2

See M.G., Docket No. 21-0893 (issued December 27, 2021); Order Remanding Case, W.D., Docket No. 20-0859
(issued November 20, 2020); Order Remanding Case, C.G., Docket No. 20-0051 (issued June 29, 2020); Order
Remanding Case, T.P., Docket No. 19-1533 (issued April 30, 2020); see also 20 C.F.R. § 10.607(b).

2

a finding of fact and make an award for or against payment of compensation. 3 Its regulations at
20 C.F.R. § 10.126 provide that the decision of the Director of OWCP shall contain findings and
facts and a statement of reasons. 4 As well, OWCP’s procedures provide that the reasoning behind
OWCP’s evaluation should be clear enough for the reader to understand the precise defect of the
claim and the kind of evidence which would overcome it.5
In the January 13, 2021decision, OWCP did not reference or consider the November 20,
2020 medical report of Dr. Dumonski that appellant submitted in support of her request for
reconsideration. It failed to analyze this evidence. OWCP summarily denied appellant’s request
for reconsideration without complying with the review requirements of FECA and its
implementing regulations. 6 Section 8124(a) of FECA provides that OWCP shall determine and
make a finding of fact and make an award for or against payment of compensation. 7 Its regulations
at 20 C.F.R. § 10.126 provide that the decision of the Director of OWCP shall contain findings of
fact and a statement of reasons. 8 As well, OWCP’s procedures provide that the reasoning behind
OWCP’s evaluation should be clear enough for the reader to understand the precise defect of the
claim and the kind of evidence which would overcome it. 9
The Board will therefore set aside OWCP’s January 13, 2021 decision and remand the case
for an appropriate decision on appellant’s reconsideration request, which considers the evidence
submitted. Accordingly,

3

5 U.S.C. § 8124(a).

4

20 C.F.R. § 10.126.

5

Federal (FECA) Procedure Manual Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013) (all
decisions should contain findings of fact sufficient to identify the benefit being denied and the reason for the
disallowance).
6

See C.G., supra note 2; T.P., supra note 2; see also 20 C.F.R. § 10.607(b).

7

5 U.S.C. § 8124(a).

8

20 C.F.R. § 10.126.

9

Supra note 5.

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IT IS HEREBY ORDERED THAT the January 13, 2021 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: March 23, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Arlington, VA, Employer
__________________________________________

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Appearances:
Richard J. Link, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-100
Issued: August 1, 2011

Case Submitted on the Record

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

JURISDICTION
On October 15, 2010 appellant filed a timely appeal from an August 24, 2010 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) which denied his request
for reconsideration.1 Pursuant to the Federal Employees’ Compensation Act (FECA)2 and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the nonmerit issue in this case.
ISSUE
The issue is whether OWCP properly denied appellant’s February 26, 2010 request for
reconsideration under 5 U.S.C. § 8128(a).

1

The last merit decision in this case was the March 4, 2009 OWCP decision which denied appellant’s claim. For
OWCP decisions issued prior to November 19, 2008, a claimant had one year to file an appeal. An appeal of OWCP
decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. See 20 C.F.R.
§§ 501.2(c) and 501.3. Because more than 180 days elapsed from the most recent merit decision dated March 4,
2009, the Board does not have jurisdiction over the merits of this case.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 26, 2007 appellant, then a 44-year-old letter carrier, filed an occupational
disease claim alleging that he had osteoarthritis in his right knee and ankle as a result of wear and
tear from packing and unpacking a truck 100 times daily and from a previous meniscus injury.
Appellant submitted reports from Dr. Kevin Sumida, a Board-certified orthopedic
surgeon, dated February 16, March 6 and April 3, 2007. Dr. Sumida diagnosed osteoarthritis of
the knee with effusion and right meniscus tear. On March 6, 2007 he performed a right knee
arthroscopy and chondroplasty to repair appellant’s right knee medial meniscal tear.
In an April 29, 2007 statement, appellant attributed his osteoarthritic condition to
performing his motorized collection duties on his assigned route from 1991 to 2002. He
explained that constantly disembarking off the vehicle from a standing position to the pavement
and climbing back onto the truck caused constant pounding on his right knee. Appellant noted
that his right meniscus tear originated from a February 4, 2004 injury when he slipped and fell on
the ice, which worsened as a result of frequent walking and climbing stairs in the performance of
duty.3
In a May 30, 2007 decision, OWCP denied appellant’s claim finding insufficient medical
evidence to establish that his right knee or ankle condition was causally related to his federal
employment.
On June 19, 2007 appellant requested an oral hearing before the Branch of Hearings and
Review. On December 12, 2007 an oral hearing was held. Appellant submitted additional
medical reports from Dr. Sumida.
In a December 14, 2007 report, Dr. Adrian L. Uy, a Board-certified internist, stated that
for the past three years he had been treating appellant for knee problems that started in
February 2007. He noted appellant’s 2004 knee injury and subsequent surgery. Dr. Uy opined
that appellant’s current knee arthritis was a direct result of chronic repetitive injuries to the right
knee.
By decision dated February 8, 2008, OWCP’s hearing representative denied appellant’s
occupational disease claim finding that he failed to provide sufficient medical evidence to
establish that his right knee and ankle conditions were causally related to factors of his
employment. Although Dr. Sumida and Dr. Uy opined that appellant’s injuries resulted from his
employment, they failed to discuss any specific work duties that contributed to appellant’s
claimed condition.
On January 23, 2009 OWCP received appellant’s reconsideration request.
In a March 3, 2008 report, Dr. Sumida repeated that appellant had been his patient since
May 2006, underwent knee surgery and received physical therapy treatments. He noted that
3

The record reflects that appellant sustained a previous right knee injury on February 3, 2004 as a result of a slip
and fall in the performance of duties.

2

appellant had difficulty climbing stairs or standing for a prolonged period of time and
experienced extreme pain with squatting. Dr. Sumida stated that, because appellant’s work
required him to stand, walk and climb stairs, it was difficult for him to return to work any sooner.
In a March 4, 2008 report, Dr. Uy stated that he had treated appellant’s right knee
problems for the past three years. He noted the 2004 knee injury and 2007 knee surgery. Dr. Uy
reported that appellant’s knee condition had progressively worsened due to the nature of his
employment and that the arthritis in his knee was the direct result of chronic repetitive injury
while working at the employing establishment. He explained that appellant would get in and out
of his postal truck, which primarily affected his right knee and appeared to be responsible for the
repetitive injury.
In a March 4, 2009 decision, OWCP denied modification of its February 8, 2008 decision
on the grounds of insufficient medical evidence establishing that his claimed right knee condition
was causally related to his work activities.
In a letter dated February 26, 2010, appellant, through his representative, submitted a
request for reconsideration. OWCP did not receive any additional evidence.
By decision dated August 24, 2010, OWCP denied appellant’s request for reconsideration
because he failed to raise arguments or submit evidence not previously considered sufficient to
warrant reconsideration under 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.4 OWCP’s regulations provide that OWCP may
review an award for or against compensation at any time on its own motion or upon application.
The employee shall exercise his right through a request to the district OWCP.5
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (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.6
A request for reconsideration must also be submitted within one year of the date of
OWCP decision for which review is sought.7 A timely request for reconsideration may be
4

5 U.S.C. § 8128(a); see also W.C., 59 ECAB 372 (2008); D.L., Docket No. 09-1549 (issued February 23, 2010).

5

20 C.F.R. § 10.605; see also R.B., Docket No. 09-1241 (issued January 4, 2010); A.L., Docket No. 08-1730
(issued March 16, 2009).
6

Id. at § 10.606(b); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569 (issued
December 9, 2008).
7

Id. at § 10.607(a).

3

granted if OWCP determines that the employee has presented evidence or provided an argument
that meets at least one of the requirements for reconsideration. If OWCP chooses to grant
reconsideration, it reopens and reviews the case on its merits.8 If the request is timely but fails to
meet at least one of the requirements for reconsideration, it will deny the request for
reconsideration without reopening the case for review on the merits.9
ANALYSIS
As noted, the Board does not have jurisdiction over the merits of this case. The issue
presented is whether appellant met any of the requirements of 20 C.F.R. § 10.606(b)(2), to
reopen his claim for review of the merits. In his February 26, 2010 request for reconsideration,
appellant, through his representative, did not allege that OWCP erroneously applied or
interpreted a specific point of law. He also failed to advance a relevant legal argument or to
submit relevant and pertinent evidence not previously considered by OWCP. Appellant stated
that he enclosed another report from Dr. Uy, but the record on appeal does not contain any
additional medical report from Dr. Uy following the February 26, 2010 request for
reconsideration. He did not submit any new and relevant medical evidence in this case.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b). 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.10
CONCLUSION
The Board finds that OWCP did not abuse its discretion by denying appellant’s
February 26, 2010 request for reconsideration pursuant to 5 U.S.C. § 8128(a).

8

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

9

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

10

The Board notes that appellant submitted additional evidence following the August 24, 2010 nonmerit decision.
Since the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision,
the Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57
ECAB 126 (2005). Appellant may submit that evidence to OWCP along with a request for reconsideration.

4

ORDER
IT IS HEREBY ORDERED THAT the nonmerit decision of the Office of Workers’
Compensation Programs dated August 24, 2010 is affirmed.
Issued: August 1, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

5