United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Woodville, WI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-0683
Issued: June 1, 2017

Case Submitted on the Record

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

JURISDICTION
On February 6, 2017 appellant, through counsel, filed a timely appeal from a January 10,
2017 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The most
recent merit decision was the September 16, 2016 decision of the Board which became final after
30 days of issuance and is not subject to further review.2 Pursuant to the Federal Employees’
Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c), 501.3, and 501.6(d), the Board lacks
jurisdiction to review the merits of the claim.

1

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

20 C.F.R. § 501.6(d).

3

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for further
reconsideration of the merits of her claim under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board. The facts and circumstances as set forth
in the prior Board decisions are incorporated herein by reference. The relevant facts are set forth
below.
On August 17, 2012 appellant, then a 53-year-old part-time flexible sales and services
distribution associate, filed a traumatic injury claim (Form CA-1) alleging that on October 4,
2011 she injured her left shoulder when handling a bent shelf at work. She did not stop work.
By decision dated September 26, 2012, OWCP denied appellant’s claim. It found that
the medical evidence of record was insufficient to establish a diagnosed condition causally
related to the accepted October 4, 2011 employment incident.
On September 27, 2012 OWCP received a January 4, 2012 report from Dr. Marvin
Klingler, who specializes in family medicine. Dr. Klingler evaluated appellant for left shoulder
pain after a fall and diagnosed left shoulder strain.
In a February 1, 2012 report, Dr. Lance Weagant, Board-certified in family medicine,
obtained a history of appellant sustaining an injury on October 4, 2011 trying to bring down a
cart from a shelf. He noted that she reinjured her shoulder in the middle of December 2011 after
a fall at work. On March 8, 2012 Dr. Weagant noted that appellant’s injury occurred with lifting
and that it was a workers’ compensation injury.
Dr. Thomas Comfort, a Board-certified orthopedic surgeon, evaluated appellant on
June 11, 2012. He indicated that she sustained an injury when a shelf she was holding gave way.
Dr. Comfort noted that x-rays showed an intact rotator cuff and acromioclavicular (AC) joint
arthrosis.
In a September 4, 2012 report, Dr. Weagant advised that he was treating appellant for a
left shoulder injury sustained at work on October 4, 2011 when she tried to lift a cart off of a
shelf. Her physician opined that her work duties, including repeatedly lifting material above
shoulder level, caused her injury.
Dr. Jason Dieterle, an orthopedic surgeon, diagnosed left shoulder impingement
syndrome with partial thickness tear of the rotator cuff and AC arthrosis in July 13 and
September 26, 2012 reports. He noted that appellant injured herself when she pulled a cart at
work.
On October 19, 2012 appellant requested an oral hearing, which was held before an
OWCP hearing representative on February 12, 2013.

2

Dr. Dieterle, in a March 12, 2013 addendum report, clarified that appellant’s injury
occurred when she jammed her shoulder holding on to an upper shelf on a cart that gave way.
By decision dated May 1, 2013, an OWCP hearing representative affirmed the
September 26, 2012 decision. He found that the medical evidence of record was insufficient to
establish a diagnosed condition causally related to the accepted work incident.
On September 24, 2013 counsel requested reconsideration.
In an August 26, 2013 report, Dr. Michael Lockheart, Board-certified in occupational
medicine, diagnosed left shoulder pain.4 He provided a history of appellant jamming her left
shoulder while attempting to pull a shelf from a cart on October 4, 2011. Dr. Lockheart advised
that she related to him that her physician deemed the injury work related.5
On August 8, 2013 Dr. Samuel Inkumsah, Board-certified in family medicine, related that
appellant injured herself at work while unloading mail from an upright steel cart. He diagnosed
a partial thickness tear of the rotator cuff and bone spurring due to the force of the shelf jamming
into her shoulder. Dr. Inkumsah noted that a fall two months later on uneven pavement at work
contributed to her condition.
Dr. Comfort, on September 9, 2013, indicated that appellant jammed her shoulder while
using a mail cart when a shelf she was holding gave way. He opined that her injury was work
related.
By decision dated April 17, 2014, OWCP denied modification of its May 1, 2013
decision. It found that the medical evidence was insufficient to show that appellant sustained a
left shoulder condition due to the October 4, 2011 employment incident.
Appellant appealed to the Board. By decision dated February 4, 2015, the Board
affirmed OWCP’s April 17, 2014 decision.6 The Board found that the medical evidence of
record was insufficient to establish that the October 4, 2011 work incident caused appellant’s left
shoulder condition.
On August 18, 2015 appellant, through counsel, requested reconsideration. In support of
her request, she submitted a July 14, 2015 report from Dr. Dieterle. Dr. Dieterle related that
when a jamming motion occurred the muscle of the rotator cuff contracts and that if the arm is
not allowed the intended arc of motion, the force directed to the tendon can cause the tendon to
pull away from the bone causing a rotator cuff tear. He opined that this is what occurred in
4

On January 2, 2013 Dr. Dieterle performed a left shoulder arthroscopy with rotator cuff repair, arthroscopic
subacromial decompression, acromioplasty, and arthroscopic distal clavicle resection. He treated appellant
beginning February 5, 2013 for a shoulder reinjury.
5

In a September 10, 2013 report, Dr. Lockheart diagnosed shoulder pain, low back pain, foot pain, fibromyalgia,
and neck pain. He noted that appellant had shoulder surgery in January 2013 and indicated that this was being
claimed as a workers’ compensation injury.
6

Docket No. 14-1502 (issued February 4, 2015).

3

appellant’s case when she jammed her shoulder. Dr. Dieterle opined that she likely tore her
rotator cuff, or at least exacerbated her condition, when the tendon pulled away from the bone
secondary to the jamming event as described.
By decision dated November 2, 2015, OWCP denied modification of its prior decision. It
found that the medical evidence was insufficient to show that appellant sustained a left arm
condition on October 4, 2011.
Appellant appealed to the Board. By decision dated September 16, 2016, the Board
affirmed the November 2, 2015 decision.7 The Board determined that the medical evidence of
record, including Dr. Dieterle’s July 14, 2015 report, was insufficiently rationalized to meet her
burden of proof.
On December 6, 2016 appellant, through counsel, requested reconsideration. He
resubmitted the July 14, 2015 report from Dr. Dieterle, which he asserted constituted new
evidence.
By decision dated January 10, 2017, OWCP denied appellant’s request for
reconsideration of the merits of her claim as she had not raised an argument or submitted
evidence sufficient to warrant reopening her case for further consideration of the merits under
section 8128(a).
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,8
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) submit relevant and pertinent new evidence not previously
considered by OWCP.9 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant’s application for review must be received by OWCP within one
year of the date of that decision.10 When a claimant fails to meet one of the above standards,
OWCP will deny the application for reconsideration without reopening the case for review on the
merits.11
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening the merits of a case.12 The
7

Docket No. 16-0509 (issued September 16, 2016).

8

Supra note 3. Section 8128(a) of FECA provides that “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on his own motion or on application.”
9

20 C.F.R. § 10.606(b)(3).

10

Id. at § 10.607(a).

11

Id. at § 10.608(b).

12

F.R., 58 ECAB 607 (2007); Arlesa Gibbs, 53 ECAB 204 (2001).

4

Board also has held that the submission of evidence which does not address the particular issue
involved does not constitute a basis for reopening the merits of a case.13 While the reopening of
the merits may be predicated solely on a legal premise not previously considered, such reopening
is not required where the legal contention does not have a reasonable color of validity.14
ANALYSIS
The last merit decision was issued by the Board on September 16, 2016. In that decision,
the Board affirmed a November 2, 2015 OWCP decision, finding that appellant had not
submitted sufficient medical evidence to establish that she sustained a left shoulder condition due
to an October 4, 2011 work incident. Appellant timely sought reconsideration with OWCP on
December 6, 2016. OWCP denied her request for reconsideration in a January 10, 2017
decision, finding that she had not raised an argument or submitted evidence sufficient to warrant
reopening her case for further merit review.
The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(3) requiring OWCP to reopen the case for review of the merits of the claim.
In her December 6, 2016 request for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law or advance a new and relevant legal
argument not previously considered by OWCP. She further did not submit any pertinent new
and relevant evidence. Through counsel, appellant resubmitted the July 14, 2015 report from
Dr. Dieterle, which she maintained was new evidence. Dr. Dieterle’s July 14, 2015 report,
however, was previously considered by both OWCP and the Board. Evidence which repeats or
duplicates evidence already in the case record has no evidentiary value and does not constitute a
basis for reopening a case.15
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). 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 new evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for further
reconsideration of the merits of her claim under 5 U.S.C. § 8128(a).

13

P.C., 58 ECAB 405 (2007); Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB
180 (2000).
14

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

15

See J.P., 58 ECAB 289 (2007); Richard Yadron, 57 ECAB 207 (2005).

5

ORDER
IT IS HEREBY ORDERED THAT the January 10, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 1, 2017
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
TENNESSEE VALLEY AUTHORITY,
DRAKESBORO KENTUCKY FOSSILE
OPERATIONS PARADISE, Chattanooga, TN,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 07-526
Issued: June 8, 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 December 18, 2006 appellant timely appealed a July 11, 2006 merit decision of the
Office of Workers’ Compensation Programs denying his occupational disease claim and a
November 22, 2006 nonmerit decision finding that he had abandoned his request for an oral
hearing. 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 appellant met his burden of proof to establish that he
sustained an injury in the performance of duty causally related to factors of his federal
employment; and (2) whether the Office properly determined that he had abandoned his hearing
request.

FACTUAL HISTORY
On November 27, 2004 appellant, a 52-year-old retired laborer, filed an occupational
disease claim alleging pulmonary emphysema resulting from exposure to coal and flue gases
while employed by the employing establishment. He stated that he first realized that his
condition was employment related in April 2003.
On November 16, 2005 the Office requested that appellant submit additional evidence
including a detailed description of the employment activities he believed contributed to his
pulmonary condition. The Office also instructed him to submit a comprehensive medical report
addressing the cause and extent of the claimed pulmonary condition and an explanation of
whether and how such exposure in the employing establishment contributed to his condition.
On January 10, 2006 the Office received a letter from appellant and a copy of a
January 30, 2004 rating decision from the Department of Veterans Affairs, which listed a
10 percent disability for chronic obstructive pulmonary disease.
On January 20, 2006 the Office conducted a conference call with appellant to clarify his
work history and the agents to which he was exposed. Appellant noted working for the
employing establishment from 1978 to 1981 and, thereafter, intermittently through 1988.
Following further development of the claim, the Office determined that a referral to a
pulmonologist for a second opinion was necessary. By letter dated April 3, 2006, the Office
stated that it was referring appellant, along with a statement of accepted facts, list of questions
and the medical file, to Dr. Kenneth Anderson, a pulmonologist. In an April 25, 2006 report,
Dr. Anderson reviewed the statement of accepted facts with appellant and noted that he reported
a 30-year smoking history of about a half pack of cigarettes per day. Physical examination and
objective testing findings were provided. He provided an impression of early chronic obstructive
pulmonary disease, with symptoms consistent with chronic bronchitis with a history of and
continuation of tobacco abuse and an abnormal chest x-ray consistent with early findings of
asbestosis. Dr. Anderson advised that while appellant’s chest x-ray demonstrated early findings
of asbestosis, the pulmonary function tests did not corroborate those findings as they were most
consistent with appellant’s known tobacco abuse. He opined that it would be “impossible” to say
what degree of appellant’s “early abnormal chest x-ray” was secondary to his employment at the
employing establishment versus his employment with a private company from 1989 to 1994 as a
laborer paving concrete and shoveling coal spills. Copies of objective testing were provided.
By decision dated July 11, 2006, the Office denied appellant’s claim, finding that he
failed to establish that he sustained an injury in the performance of duty. The Office found that,
while he had the exposure claimed, the medical evidence provided did not establish that the
claimed condition resulted from the accepted events.
On July 19, 2006 appellant requested an oral hearing by way of a teleconference. In a
notice dated October 4, 2006, the Office informed appellant that a telephonic hearing on his
claim would be held on November 6, 2006. He was advised to call the toll free number provided
at the scheduled hearing time and to enter the pass code provided when prompted. Appellant did
not appear for the telephonic hearing.

2

By decision dated November 22, 2006, the Office determined that appellant had
abandoned his request for a hearing. It noted that he failed to appear for the scheduled
telephonic hearing on November 6, 2006 and had not contacted the Office either before or after
the scheduled hearing to explain his failure to appear.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act1 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 the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained
in the performance of duty as alleged and that any disability and specific condition for which
compensation is claimed is causally related to the employment injury. Regardless of whether the
asserted claim involves traumatic injury or occupational disease, an employee must satisfy this
burden of proof.2
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical opinion must be one of reasonable medical certainty and must be supported by
medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the claimant.3
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship is rationalized medical evidence.4 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.5 Neither the mere fact
that a disease or condition manifests itself during a period of employment, nor the belief that the

1

5 U.S.C. §§ 8101-8193.

2

Gary J. Watling, 52 ECAB 357 (2001).

3

Solomon Polen, 51 ECAB 341 (2000).

4

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

5

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

3

disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.6
ANALYSIS -- ISSUE 1
The employing establishment did not dispute that appellant was exposed to coal and flue
gases and the Office found that he was exposed to such factors. However, there is no medical
evidence documenting an employment-related medical condition.
In this case, appellant did not provide the required medical evidence necessary to
establish his claim for compensation benefits under the Act.7 The rating decision from the
Department of Veterans Affairs does not establish that the claimed condition resulted from the
accepted events.8
The Office also further developed the medical evidence and referred appellant to
Dr. Anderson who examined appellant and reviewed test results and he found that testing
revealed that appellant’s condition was most consistent with appellant’s known tobacco abuse.
He indicated that it would be “impossible” to say what degree of appellant’s “early abnormal
chest x-ray” was secondary to his employment as opposed to other factors such as his
employment in private industry.
Accordingly, appellant has failed to establish that he sustained an injury in the
performance of duty as the medical evidence does not support that exposure to employment
factors caused or aggravated a diagnosed condition.
LEGAL PRECEDENT -- ISSUE 2
With respect to hearing requests, Chapter 2.1601.6(e) 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 hearing request.
“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].

6

Dennis M. Mascarenas, 49 ECAB 215 (1997).

7

See Richard A. Weiss, 47 ECAB 182 (1995).

8

Findings of other administrative agencies are not dispositive of proceedings under the Act, which is
administered by the Office and under Board review, where such findings are made pursuant to different standards of
proof. Michael A. Deas, 53 ECAB 208 (2001).

4

“(2) However, in any case where a request for a postponement has been received,
regardless of any failure to appear for the hearing, [the Branch of Hearings and
Review] should advise the claimant that such a request has the effect of
converting the format from an oral hearing to a review of the written record.
“This course of action is correct even if [the Branch of Hearings and Review] can
advise the claimant far enough in advance of the hearing that the request is not
approved and that the claimant is, therefore, expected to attend the hearing and
the claimant does not attend.”9
ANALYSIS -- ISSUE 2
In finding that appellant had abandoned his July 19, 2006 request for a hearing the Office
noted that a telephonic hearing had been scheduled for November 6, 2006. The record shows
that the Office mailed appellant appropriate notice of the hearing to his last known address. He
received written notification of the hearing 30 days in advance, but failed to telephone the
hearing representative as instructed. The record contains no evidence that appellant contacted
the Office to reschedule the hearing or explain his failure to participate in the scheduled
telephonic hearing.
The Board finds that the record contains no evidence that appellant requested
postponement of the hearing. Appellant failed to participate in the scheduled hearing and did not
provide any notification of such failure within 10 days of the scheduled hearing. As the
circumstances of this case meet the criteria for abandonment as provided in Chapter 2.1601.6(e)
of the Office’s procedure manual, the Board finds that appellant abandoned his request for an
oral hearing.
CONCLUSION
The Board finds that appellant failed to establish that his pulmonary condition was
sustained in the performance of duty. The Board further finds that the Office properly
determined that he abandoned his request for an oral hearing.

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearing and Reviews of the Written Record, Chapter
2.1601.6(e) (January 1999); see also Claudia J. Whitten, 52 ECAB 483 (2001); 20 C.F.R. § 10.622.

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 22 and July 11, 2006 are affirmed.
Issued: June 8, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.J., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Las Vegas, NV, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 14-2042
Issued: February 10, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On September 22, 2014 appellant filed a timely appeal from a May 8, 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 a hand or back injury in the performance of
duty on July 17, 2013.
FACTUAL HISTORY
On July 25, 2013 appellant, then a 59-year-old revenue agent, filed a traumatic injury
claim (Form CA-1) alleging that on July 17, 2013 he was stopped at a traffic light when another
1

5 U.S.C. § 8101 et seq.

car struck the rear of his vehicle. He stated that there was swelling on the right side of his right
hand and pain in his lower back. In a motor vehicle accident report (SF-91), appellant indicated
that there were scratches on the rear bumper of the car, with no other damage. In an August 2,
2013 statement, an employing establishment manager indicated that the incident occurred during
work hours while appellant was on a field appointment.
On August 19, 2013 appellant submitted a July 23, 2013 form report from Dr. Lawrence
Allen, an internist, indicating that x-rays of the right hand and spine had been taken. The report
indicated a fifth digit fracture was found.
By decision dated August 28, 2013, OWCP denied the claim for compensation. It
accepted that an incident in the performance of duty occurred as alleged, but found that the
medical evidence was insufficient to establish an injury causally related to the incident.
Appellant requested an oral hearing with an OWCP hearing representative, which was
held on March 31, 2014. At the hearing he stated that he was near an accountant’s office where
he had been performing an audit. Appellant was rear ended by another vehicle while at a
stoplight. He stated that the impact jammed his finger against the steering wheel. On March 13,
2014 OWCP received an x-ray report of the right hand by Dr. Clement Herred, a radiologist.
The diagnosis was early degenerative changes of the interphalangeal joint. Dr. Herred also
diagnosed degenerative disc disease of the lumbar spine. In a statement dated March 3, 2014,
appellant stated that the impact of the vehicle hitting his car from the rear jammed his finger
against the steering wheel, causing a broken finger.
In a narrative report dated July 26, 2013, Dr. Allen stated that appellant was complaining
of low back pain.2 He stated that appellant had pain and some swelling in his right hand on the
ulnar side. Dr. Allen stated, “[Appellant] was hit in the side by another driver. [Appellant] does
not recall hitting his hand but there is some swelling.” Dr. Allen diagnosed contusion of the
right hand, displaced fracture of the proximal phalanx of the right index finger, and degenerative
joint disease of the lumbar spine. He stated that appellant was involved in a motor vehicle
accident and has a fracture of the fifth digit, and tenderness in the lumbar spine.
By decision dated May 8, 2014, the hearing representative affirmed the August 28, 2013
decision. She found that the medical evidence was insufficient to establish the claim for
compensation.
LEGAL PRECEDENT
FECA provides for the payment of compensation for “the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.”3 The
phrase “sustained while in the performance of duty” in FECA is regarded as the equivalent of the
commonly found requisite in workers’ compensation law of “arising out of an in the course of

2

The report was dated July 26, 2013. Some of the notes included in the report are dated July 23, 2013.

3

5 U.S.C. § 8102(a).

2

employment.”4 An employee seeking benefits under FECA has the burden of establishing that
he or she sustained an injury while in the performance of duty.5 In order to determine whether
an employee actually sustained an injury in the performance of duty, OWCP begins with an
analysis of whether “fact of injury” has been established. Generally, “fact of injury” consists of
two components which must be considered in conjunction with one another. The first
component to be established is that the employee actually experienced the employment incident
which is alleged to have occurred. The second component is whether the employment incident
caused a personal injury, and generally this can be established only by medical evidence.6
To be of probative value, the medical opinion evidence must be based on a complete
factual and medical background, of reasonable medical certainty and supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant. The weight of medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of the analysis
manifested and the medical rationale expressed in support of the physician’s opinion.7
ANALYSIS
In the present case, OWCP accepted that appellant was involved in a motor vehicle
accident on July 17, 2013 while in the performance of his duties as a revenue agent. Appellant
stated that he was rear ended while at a stoplight. The issue is whether the medical evidence is
sufficient to establish a diagnosed injury causally related to the employment incident.
In this regard, the Board finds that the medical evidence of record is insufficient to meet
appellant’s burden of proof. It is not sufficient for a physician to diagnose a condition and
simply state that it is related to a motor vehicle accident.8 As the Board has noted, a claimant
must submit a medical report from a physician with an accurate history of injury, a diagnosis of
his or her condition, and reasoned medical opinion that explains how his or her medical
condition was caused by the accepted motor vehicle accident.9 Dr. Allen provided only a brief
history that appellant was hit from the side and did not recall hitting his hand. This does not
represent an accurate or complete history of injury, as appellant reported being hit from the rear.
As of March 3, 2014, appellant stated that his hand was jammed into the steering wheel.
Dr. Allen did not describe the incident or provide a complete and accurate history in his July 26,
2013 report.
In addition, Dr. Allen did not provide a medical opinion that was supported by sound
medical reasoning on causal relationship between a diagnosed condition and the employment
4

Valerie C. Boward, 50 ECAB 126 (1998).

5

Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115.

6

See John J. Carlone, 41 ECAB 354, 357 (1989).

7

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

8

See I.J., Docket No. 14-1109 (issued October 16, 2014).

9

C.H., Docket No. 13-432 (issued June 5, 2013).

3

incident. There was a diagnosis of a hand contusion, with no opinion on causal relationship. As
to the diagnosis of displaced fracture, Dr. Allen stated that appellant was involved in a motor
vehicle accident. He did not, as noted above, provide a clear description of the incident with
respect to the finger and his statement is not a rationalized medical opinion. With respect to the
back, Dr. Allen diagnosed degenerative disc disease. To the extent he was attempting to relate a
diagnosed back condition to the employment incident, he provided no medical reasoning or
explanation. The record contains an x-ray report from Dr. Herred, a radiologist, who diagnosed
early degenerative changes of the interphalangeal joint and diagnosed degenerative disc disease
of the lumber spine. His report is devoid of discussion of causal relationship.
The Board accordingly finds that appellant did not meet his burden of proof in this case.
The record does not contain a medical report sufficient to establish a diagnosed condition
causally related to the employment incident.
On appeal, appellant states that the medical evidence substantiates a claim for
compensation. He states that nothing short of having Dr. Allen in his car would establish his
claim under OWCP’s analysis. For the reasons discussed above, the Board finds the medical
evidence of record is of diminished probative value to the issue presented.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established a hand or back injury in the
performance of duty on July 17, 2013.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 8, 2014 is affirmed.
Issued: February 10, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.R., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
CORPS OF ENGINEERS, Walla, Walla, WA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 08-462
Issued: October 22, 2008

Case Submitted on the Record

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

JURISDICTION
On December 5, 2007 appellant filed a timely appeal from an October 31, 2007 nonmerit
decision of the Office of Workers’ Compensation Programs, which denied his reconsideration
request and a January 10, 2007 merit decision, which denied his occupational disease claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the
case.
ISSUES
The issues are: (1) whether appellant has met his burden to establish that he sustained an
occupational disease in the performance of duty; and (2) whether the Office properly denied
appellant’s request for reconsideration.

FACTUAL HISTORY
On June 23, 2006 appellant, then a 61-year-old maintenance worker, filed an
occupational disease claim alleging exposure to filthy, dusty, polluted air from the debris of
Hurricane Katrina at dumpsites in Mississippi. He developed a serious chest cough and ache.
In a July 10, 2006 memorandum, appellant’s supervisor described his duties. Appellant
received incoming truckloads of debris generated by Hurricane Katrina, estimated the debris load
size, directed truck traffic to the proper dump location on site and ensured truck compliance with
safety regulations. The supervisor noted that appellant’s work did not require him to work on the
debris piles or come in direct physical contact with any materials. However, appellant was
subject to any dusty conditions that arose. The supervisor also noted that field testing of
appellant’s worksite for hazardous materials and airborne contaminants was conducted with the
results documented and available. Hazardous airborne particulates such as asbestos were not
found in any of the tests conducted at the site. Appellant was working temporary duty at the
dumpsite from September 13 to December 12, 2005 and January 11 to March 13, 2006.
On July 6, 2006 the Office requested additional factual and medical information from
appellant, including a comprehensive medical report from a physician. No medical evidence was
received.
In an August 24, 2006 decision, the Office denied appellant’s claim finding that the
evidence was not sufficient to establish that he sustained an occupational disease. It found that
the claimed exposure occurred as alleged but there was no medical evidence which provided any
diagnosis.
On October 2, 2006 appellant requested reconsideration. A June 15, 2006 chest x-ray
report from Dr. Robert E. Morris, a radiologist, compared the films to those dated May 6, 2005.
Dr. Morris found that subtle stranding was noted in the left lung base which was not evident
previously. He also found that the appearance “suggests some atelectasis and/or a possible slight
infiltrate from pneumonia.” In a July 17, 2006 report, Dr. Morris compared current films with
those of May 6, 2005 and June 14, 2006 and found that the slight stranding in the left lung base
had resolved and that the lungs were currently clear. A pulmonary function analysis was
performed on June 15, 2006 by James Hansen, a physician’s assistant, who noted a possible early
obstructive pulmonary impairment and recommended repeat testing.
In an August 15, 2006 summary report, Dr. Kate Flanigan Sawyer, Board-certified in
occupational medicine, stated that appellant described pulmonary and dermatologic symptoms,
including cough, headaches, shortness of breath and skin rash. She recommended appellant seek
care from a pulmonologist.
In an August 21, 2006 report, Dr. Bayu Teklu, Board-certified in family medicine,
reported that appellant had been experiencing a cough for quite sometime, which became worse
after he returned from Mississippi. Appellant also complained of palpitations and chest pain.
Dr. Teklu reported that the chest x-ray reports were normal and listed the impression of allergic
or hyperactive airway disease. An August 25, 2006 computerized tomography scan of the chest
revealed hyperinflation with lower lung zone septal thickening, but otherwise no acute finding.

2

In a January 10, 2007 decision, the Office denied modification of the August 24, 2006
decision finding that the medical evidence submitted was insufficient to establish that appellant
sustained a pulmonary condition causally related to the accepted employment exposure.
On October 10, 2007 appellant requested reconsideration. No additional information was
received.
In an October 31, 2007 nonmerit decision, the Office denied reconsideration finding that
appellant’s request did not warrant further merit review.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of establishing the essential elements of his or her claim by the weight of the reliable,
probative and substantial evidence, including the fact that the individual is an “employee of the
United States” within the meaning of the Act and that the claim was timely filed within the
applicable time limitation period of the Act, that an injury was sustained in the performance of
duty as alleged and that any disability or specific condition for which compensation is claimed is
causally related to the employment injury.1
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying the factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the factors
identified by the claimant were the proximate cause of the condition for which compensation is
claimed or stated differently, medical evidence establishing that the diagnosed condition is
causally related to the factors identified by the claimant.2
Causal relationship is a medical issue,3 which is established though medical evidence
which must include a physician’s rationalized opinion on whether there is a causal relationship
between the claimant’s diagnosed condition and the established employment factors. The
opinion of the physician must be based on a complete factual and medical background of the
claimant,4 must be one of reasonable medical certainty5 and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
established factors of employment.6

1

Anthony P. Silva, 55 ECAB 179 (2003).

2

Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005).

3

Mary J. Briggs, 37 ECAB 578 (1986).

4

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

5

See Morris Scanlon, 11 ECAB 384, 385 (1960).

6

See William E. Enright, 31 ECAB 426, 430 (1980).

3

ANALYSIS -- ISSUE 1
Appellant alleges that he sustained a pulmonary condition as a result of his employmentrelated exposure while working at a dumpsite cleaning up debris from Hurricane Katrina. The
Office accepted his occupational exposure while at the dumpsite. The issue is whether the
medical evidence is sufficient to establish that appellant sustained a diagnosed condition causally
related to this exposure.
The medical evidence is insufficient to establish that appellant sustained a pulmonary
diagnosed condition causally related to his federal employment. The medical evidence indicates
that he had hyperactive airway disease, as diagnosed by Dr. Teklu. However, Dr. Teklu did not
offer any opinion as to the cause of appellant’s condition. Medical evidence which does not
offer any opinion regarding the cause of an employee’s condition is of limited probative value on
the issue of causal relationship.7 To establish causal relationship, appellant must submit a
physician’s report in which the physician reviews the employment factors identified by appellant
as causing his condition and, taking these factors into consideration as well as findings upon
examination, state whether the employment injury caused or aggravated the diagnosed conditions
and present medical rationale in support of his or her opinion.8 Dr. Teklu failed to provide an
opinion as to the cause of appellant’s airway disease or an explanation as to how the condition
was causally related to accepted employment exposure.
The remainder of the medical evidence does not provide a firm medical diagnosis.
Dr. Morris found that appellant had “some atelectasis and/or a possible slight infiltrate from
pneumonia.” However, this report is speculative and not a definitive diagnosis. The Board has
held that medical opinions that are speculative or equivocal in character are of diminished
probative value.9 A physician’s assistant noted that appellant had a “possible early obstructive
pulmonary impairment” however his report does not constitute medical evidence.10 Dr. Sawyer
reported that appellant described pulmonary and dermatologic symptoms such as cough,
headaches, shortness of breath and skin rash, related to his employment. However, she did not
provide confirmation of any diagnosis or an opinion as to the cause of his complaints. As noted
medical evidence which does not offer any opinion regarding the cause of an employee’s
condition is of limited probative value on the issue of causal relationship.11
Appellant has not established that he sustained a diagnosed condition therefore it follows
that he has not established that any such condition is causally related to his accepted employment
events. The burden is on him to establish through medical evidence that he sustained a condition

7

Michael E. Smith, 50 ECAB 313 (1999).

8

D.D., 57 ECAB 734 (2006); Calvin E. King, 51 ECAB 394 (2000).

9

Kathy A. Kelley, 55 ECAB 206 (2004).

10

A physician’s assistant is not a physician as defined under the Act. See Roy L. Humphrey, 57 ECAB
238 (2005).
11

Michael E. Smith, supra note 7.

4

as a result of his employment. The Board finds that appellant has not met his burden to establish
his occupational disease claim.
LEGAL PRECEDENT -- ISSUE 2
Section 10.606(b)(2) of Title 20 of the Code of Federal Regulations provides that a
claimant may obtain review of the merits of the claim by either: (1) showing that the Office
erroneously applied or interpreted a specific point of law; (2) advancing a relevant legal
argument not previously considered by the Office; or (3) constituting relevant and pertinent new
evidence not previously considered by the Office.12 Section 10.608(b) provides that when an
application for review of the merits of a claim does not meet at least one of the three
requirements enumerated under section 10.606(b)(2), the Office will deny the application for
reconsideration without reopening the case for a review on the merits.13 When reviewing an
Office decision denying a merit review, the function of the Board is to determine whether the
Office properly applied the standards set forth at section 10.606(b)(2) to the claimant’s
application for reconsideration and any evidence submitted in support thereof.14
ANALYSIS -- ISSUE 2
The Office is required to reopen a case for merit review if appellant demonstrates that it
erroneously applied a specific point of law, puts forth relevant and pertinent new evidence or
presents a new relevant legal argument. Appellant did not present any argument that the Office
erroneously applied a point of law or present a new relevant legal argument. He did not submit
any evidence after the Office issued its January 10, 2007 merit decision. Therefore, appellant did
not submit relevant and pertinent new evidence. The Board finds that he is not entitled to further
review of the merits of his claim under section 10.606(b)(2). The Office properly refused to
reopen his case for further review of the merits.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration.
The Board also finds that appellant had not established that he sustained an occupational disease
in the performance of duty.

12

20 C.F.R. § 10.606(b)(2) (2003).

13

Id. at § 10.608(b) (2003).

14

Annette Louise, 54 ECAB 783 (2003).

5

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated October 31 and January 10, 2007 are affirmed.
Issued: October 22, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Iowa City, IA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 09-63
Issued: March 12, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 9, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated September 11, 2008. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established an injury causally related to his federal
employment as a medical supply technician.
FACTUAL HISTORY
The case was before the Board on a prior appeal. In a decision dated June 4, 2008, the
Board affirmed Office decisions dated March 6 and November 16, 2007, finding that appellant
had not established that his human immunodeficiency virus (HIV) infection was causally related

to his federal employment.1 The history of the case is provided in the Board’s prior decision and
is incorporated herein by reference.
Appellant requested reconsideration and submitted a July 5, 2008 report from Dr. Alan
Kravitz, an internist, who stated that appellant was negative for HIV in September 2005 and
positive in August 2006, and during the interim he was “exposed to bodily fluids at his
workplace including splashes of bloody instruments in his face and was poked by a sharp object
(skin patch).” Dr. Kravitz further stated, “In reviewing your documents, the medical literature,
and the test that you have set forth, it is clear that [appellant] had exposure that constitutes one of
the ways this disease is acquired. Therefore, in my opinion, the accepted facts of HIV exposure
are the direct and proximate result of the HIV diagnosis.”
In a report dated August 19, 2008, Dr. Andrew Schaeckenbach, an employing
establishment physician, stated that there was no evidence that appellant was exposed to
contaminated fluids. He stated that HIV is fairly rare in the employing establishment patient
population and there was no way to determine if an HIV exposure even occurred as no testing
was performed. Dr. Schaeckenbach stated that there were many other risk factors that were
much more likely to cause HIV than a potential workplace exposure to contaminated fluids.
By decision dated September 11, 2008, the Office reviewed the case on its merits. It
denied modification finding the medical evidence from Dr. Kravitz was of insufficient probative
value to establish the claim.
LEGAL PRECEDENT
A claimant seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his claim by the weight of the reliable, probative
and substantial evidence, including that an injury was sustained in the performance of duty as
alleged and that any specific condition or disability claimed is causally related to the
employment injury.3
To establish that an injury was sustained in the performance of duty, a claimant must
submit: (1) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; (2) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
and (3) medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant.4

1

Docket No. 08-513 (issued June 4, 2008).

2

5 U.S.C. §§ 8101-8193.

3

20 C.F.R. § 10.115(e), (f) (2005); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

4

Ruby I. Fish, 46 ECAB 276, 279 (1994).

2

Causal relationship is a medical question that can generally be resolved only by
rationalized medical opinion evidence.5 A physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors must be based on a complete factual and medical background of the claimant.6
Additionally, in order to be considered rationalized, the opinion must be expressed in terms of a
reasonable degree of medical certainty, and must be supported by medical rationale, explaining
the nature of the relationship between the diagnosed condition and appellant’s specific
employment factors.7
ANALYSIS
On reconsideration, appellant submitted a July 5, 2008 report from Dr. Kravitz. With
respect to the factual and medical background, Dr. Kravitz noted that he reviewed some
documents, including a hearing representative’s decision, as well as medical texts. He does not
provide a complete and accurate history. For example, Dr. Kravitz stated that appellant had been
poked by a sharp object at work. As the Board noted in the prior decision, the factual evidence
did not establish a puncture wound at work. Appellant had referred to a needle stick incident
after the HIV diagnosis, and a dental instrument incident, without providing further relevant
detail. No additional factual evidence was presented on reconsideration. Although Dr. Kravitz
stated there was evidence of a puncture wound, the evidence of record is not sufficient to
establish a puncture wound incident at work.
In addition, the opinion on causal relationship is not supported by medical rationale.
Dr. Kravitz referred generally to review of “documents” and the “test you have set forth” without
providing additional detail. He stated that appellant’s exposure was “one of the ways” that HIV
is caused, and then appeared to conclude that it was the cause in this case, without further
explanation. Dr. Kravitz did not acknowledge the lack of evidence that appellant was exposed to
HIV contaminated fluids, discuss the other risk factors for HIV and explain why he believed
appellant’s HIV was causally related to his federal employment.
The Board finds that appellant did not submit probative medical evidence with a
rationalized medical opinion, based on a complete and accurate background, on causal
relationship between an HIV infection and appellant’s federal employment. It is appellant’s
burden of proof, and the Board finds that appellant did not meet his burden in this case.
CONCLUSION
Appellant did not meet his burden of proof to establish an HIV infection causally related
to his federal employment.

5

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

6

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

7

Id.

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 11, 2008 is affirmed.
Issued: March 12, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.K., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, North Houston, TX,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 17-1265
Issued: August 16, 2018

Case Submitted on the Record

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

JURISDICTION
On May 22, 2017 appellant filed a timely appeal from a March 2, 2017 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days elapsed from
the last merit decision, dated July 27, 2016, to the filing of this appeal, pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for an oral hearing as
untimely filed.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 1, 2014 appellant, then a 61-year-old building equipment mechanic, filed a
traumatic injury claim (Form CA-1), alleging that on March 31, 2014, the dock door opener/closer
fell on his hand, fracturing his right thumb. OWCP accepted his claim for right open phalanx or
phalanges and right open fracture of the neck of the metacarpal bone. Appellant underwent three
OWCP-approved right thumb/hand surgical procedures, the most recent of which occurred on
April 14, 2015. OWCP also paid his wage-loss compensation for periods of temporary total
disability. Following his latest surgery, appellant resumed full-time work without restrictions,
effective June 30, 2015.2
On February 16, 2016 appellant filed a claim for a schedule award (Form CA-7).
In an October 26, 2015 report, Dr. Benjamin Agana, a Board-certified physiatrist, opined
that appellant sustained three percent permanent impairment of the right upper extremity under the
sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides).3
In a February 3, 2016 report, Dr. Raymond K. Glass, a chiropractor, determined that
appellant’s right thumb range of motion (ROM) deficit(s) represented 37 percent permanent
impairment of the thumb/digit or 15 percent permanent impairment of the hand.
In a May 12, 2016 report, OWCP’s district medical adviser concurred with Dr. Agana’s
rating of three percent permanent impairment of the right upper extremity.
By decision dated July 27, 2016, OWCP granted appellant a schedule award for three
percent permanent impairment of the right upper extremity. The award covered a period of 9.36
weeks from October 26 to December 30, 2015.
By appeal request form dated and postmarked August 29, 2016, appellant requested an oral
hearing before an OWCP hearing representative. OWCP subsequently received another copy of
Dr. Glass’ February 3, 2016 impairment rating.
By decision dated March 2, 2017, OWCP’s hearing representative denied appellant’s
request for an oral hearing, finding that the request was untimely filed. He informed appellant that
his case had been considered in relation to the issues involved, but that the request was further
denied because the issues in this case could equally be addressed by requesting reconsideration
from OWCP and submitting evidence not previously considered.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides that “a claimant for compensation not satisfied with
a decision of the Secretary ... is entitled, on request made within 30 days after the date of the
2

Appellant’s surgeon, Dr. Munir A. Shah, a Board-certified orthopedic and hand surgeon, indicated that he had
reached maximum medical improvement (MMI) as of June 29, 2015.
3

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

2

issuance of the decision, to a hearing on his claim before a representative of the Secretary.”4
Sections 10.617 and 10.618 of the federal regulations implementing this section of FECA provides
that a claimant shall be afforded a choice of an oral hearing or a review of the written record by a
representative of the Secretary.5 A claimant is entitled to a hearing or review of the written record
as a matter of right only if the request is filed within the requisite 30 days as determined by the
postmark or other carrier’s date marking and before the claimant has requested reconsideration.6
Although there is no right to a review of the written record or an oral hearing if not requested
within the 30-day time period, OWCP may, within its discretionary powers, grant or deny
appellant’s request and must exercise its discretion.7
ANALYSIS
By decision dated July 27, 2016, OWCP granted appellant a schedule award for three
percent permanent impairment of the right upper extremity. Appellant requested an oral hearing
by appeal request form dated and postmarked August 29, 2016. Section 8124(b)(1) is unequivocal
on the time limitation for requesting a hearing.8 As appellant’s request for hearing was submitted
more than 30 days after the July 27, 2016 OWCP decision, it was untimely filed. He was,
therefore, not entitled to an oral hearing as a matter of right.
OWCP has the discretionary power to grant an oral hearing when a claimant is not entitled
to one as a matter of right. It exercised this discretion in its March 2, 2017 decision, finding that
appellant’s issue could equally be addressed by requesting reconsideration and submitting
additional evidence. This basis for denying his request for a hearing is a proper exercise of
OWCP’s authority.9 Accordingly, the Board finds that OWCP properly denied appellant’s request
for an oral hearing as untimely filed.
On appeal appellant asserts that Dr. Glass provided a more accurate determination of his
right thumb impairment and his report should be used to determine the impairment rating. As
explained above, the Board lacks jurisdiction over the merits of the claim.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for an oral hearing as
untimely filed.

4

5 U.S.C. § 8124(b)(1).

5

20 C.F.R. §§ 10.616, 10.617.

6

Id. at § 10.616(a).

7

Eddie Franklin, 51 ECAB 223 (1999); Delmont L. Thompson, 51 ECAB 155 (1999).

8

William F. Osborne, 46 ECAB 198 (1994).

9

Mary B. Moss, 40 ECAB 640, 647 (1989).

3

ORDER
IT IS HEREBY ORDERED THAT the March 2, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: August 16, 2018
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
U.S. POSTAL SERVICE, TWENTY-SECOND
STREET STATION, Chicago, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 19-0627
Issued: June 1, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 30, 2019 appellant, through counsel, filed a timely appeal from a November 21,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a bilateral wrist
condition causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On January 18, 2018 appellant, then a 45-year-old mail carrier, filed an occupational
disease claim (Form CA-2) alleging that she developed tendinitis causally related to factors of her
federal employment, including casing mail on January 15, 2015. She indicated that she first
became aware of the condition on November 11, 2015 and first realized that the condition was
caused or aggravated by her federal employment on January 11, 2018. Appellant did not stop
work. On the reverse side of the claim form, her supervisor indicated that she had not informed
management about her condition.
In a progress report dated December 27, 2017, Dr. Roderick H. Birnie, an orthopedic
surgeon, diagnosed bilateral de Quervain’s tendinitis. He noted that appellant had received two
prior injections for right-sided de Quervain’s tendinitis and one prior injection for left-sided
de Quervain’s tendinitis. Dr. Birnie advised that she had experienced a recurrence of
de Quervain’s tendinitis on the right side which was “most likely due to the repetitive nature of
her work….” He recommended a surgical release of the first dorsal compartment of the right wrist.
On January 4, 2018 a nurse advised that appellant was scheduled for a de Quervain’s
release on February 2, 2018 and would be out of work for four to six weeks following surgery.
In a February 2, 2018 development letter, OWCP advised appellant of the type of factual
and medical evidence needed to establish her claim, including a physician’s reasoned report
addressing the causal relationship between her claimed condition and specific employment factors.
It attached a questionnaire for appellant’s completion. OWCP afforded her 30 days to submit the
requested information.
In an attending physician’s report (Form CA-20) dated March 1, 2018, Dr. Megan Conti
Mica, a Board-certified orthopedic surgeon, diagnosed left wrist tendinitis and radial styloid
tenosynovitis. She checked a box marked “yes” in response to the question of whether the
condition was caused or aggravated by an employment activity and indicated that appellant had
overused her thumb and hand. Dr. Mica found that appellant was totally disabled from February 7
to April 2, 2018. She indicated that she had attached findings to the form, but these are not
contained in the record.
On February 26, 2018 appellant described her employment duties, including casing mail
two to four hours per day, delivering mail and parcels, sorting parcels, constantly scanning parcels
(using her thumb, hand, and wrist), tying mail, opening mailboxes, walking, and driving.
By decision dated March 15, 2018, OWCP denied appellant’s occupational disease claim
finding that the medical evidence submitted was insufficient to establish that she had sustained a
diagnosed medical condition causally related to the accepted employment factors.

2

On April 9, 2018 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative. A telephonic hearing was held on September 14, 2018. Appellant
testified that she began having problems around November 2015. She sought medical treatment
and her physician informed her that repetitive motion at work had caused her condition. OWCP’s
hearing representative afforded appellant 60 days to submit additional evidence.
In a letter dated November 6, 2018, Dr. Neil Allen, a Board-certified internist and
neurologist, advised that he had reviewed appellant’s medical records in order to determine
whether there was a causal relationship between her bilateral wrist conditions and “repetitive
work[-]related trauma sustained prior to and on November 11, 2015.” He indicated that her job
duties required lifting and carrying over 70 pounds and continual pushing, pulling, grasping, and
pinching. Dr. Allen noted that appellant began to “notice gradually worsening pain and weakness
in her wrists.” He diagnosed bilateral radial styloid tenosynovitis and unspecified wrist tendinitis.
Dr. Allen advised that appellant had no history of a bilateral wrist injury, and that her job exposed
her to many risk factors for wrist tendinitis such as forceful exertion, awkward positions, repetitive
movement, and overhead work, causing tension and stress in the tendons. He noted that, without
sufficient rest or avoidance, these activities caused the tendons of the hand and wrist to become
inflamed, break down, and restrict motion, giving rise to complaints of tenderness, weakness, pain,
and motion restriction. Dr. Allen concluded that such subjective complaints and objective findings
were “documented throughout the claimant’s records.” He opined that, as a letter carrier appellant
performed constant reaching, pushing, pulling, lifting, pinching and grasping in the performance
of her regular daily duties and that these repetitive activities precipitated the bilateral wrist
tendinitis.
By decision dated November 21, 2018, OWCP’s hearing representative affirmed the
March 15, 2018 decision finding that the medical evidence of record was insufficient to establish
a causal relationship between appellant’s diagnosed conditions and the accepted employment
factors. She noted that the medical evidence, while providing a diagnosis, failed to support the
diagnosis with any findings on physical examination.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation 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

3

Id.

4
J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).

3

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 establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant 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 identified employment factors.7
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.8 The opinion of the physician must be based on a
complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the employee.9
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.10
ANALYSIS
The Board finds that this case is not in posture for decision.
In support of his claim appellant submitted a letter dated November 6, 2018, from Dr. Allen
who reviewed her medical record and provided an opinion on the issue of whether the accepted
employment factors were sufficient to have caused bilateral wrist conditions. From his review of
the medical record Dr. Allen advised, as had appellant’s attending physicians, that appellant had
no history of a bilateral wrist injury. He discussed appellant’s job duties noting that her job
exposed her to many risk factors for wrist tendinitis such as forceful exertion, awkward positions,
repetitive movement, and overhead work. Dr. Allen explained how those duties were sufficient to
have caused tension and stress in the tendons of her upper extremity. He noted that, without
sufficient rest or avoidance, appellant’s workplace activities were sufficient to cause the tendons
of the hand and wrist to become inflamed, break down, and restrict motion, giving rise to
complaints of tenderness, weakness, pain, and motion restriction. Dr. Allen concluded that such
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7
R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
8

L.D., Docket No. 17-1581 (issued January 23, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

9

L.D., id.; see also Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

10

M.B., Docket No. 19-1816 (issued April 28, 2020); Dennis M. Mascarenas, 49 ECAB 215 (1997).

4

subjective complaints and objective findings were documented throughout the claimant’s records.
He opined that, as a letter carrier appellant performed constant reaching, pushing, pulling, lifting,
pinching, and grasping in the performance of her regular daily duties and that these repetitive
activities precipitated the bilateral wrist tendinitis.
The Board finds that while Dr. Allen’s November 6, 2018 letter is not fully rationalized, it
is relevant evidence in support of appellant’s claim as it explains the physiological process by
which the accepted factors of her federal employment were sufficient to have resulted in the
claimed bilateral wrist conditions diagnosed by her attending physicians. Although the opinion
letter by Dr. Allen is alone insufficient to meet appellant’s burden of proof to establish her claim,
it does raise an uncontroverted inference between the diagnosed wrist conditions and the accepted
employment factors sufficient to require OWCP to further develop the claim.11
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested arbiter.
While it is appellant’s burden of proof to establish the claim, OWCP shares responsibility in the
development of the evidence.12 It has the obligation to see that justice is done.13 The Board will,
therefore, remand the case to OWCP for further development of the medical evidence.
On remand OWCP shall refer appellant, a statement of accepted facts, and the medical evidence
of record to an appropriate Board-certified physician. The chosen physician shall provide a
rationalized opinion opining whether the diagnosed conditions are causally related to the accepted
factors of appellant’s federal employment. If the physician opines that the diagnosed conditions
are not causally related, he or she must explain with rationale how or why the opinion differs from
that provided by Dr. Allen.14 Following this and any other further development as deemed
necessary, OWCP shall issue a de novo decision on appellant’s claim.
CONCLUSION
The Board finds that this case is not in posture for decision.

11
See J.G., Docket No. 18-1484 (issued June 14, 2019); D.V., Docket No. 17-1590 (issued December 12, 2018);
E.J., Docket No. 09-1481 (issued February 19, 2010); John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29
ECAB 820 (1978).
12
C.W., Docket No. 19-0231 (issued July 15, 2019); D.G., Docket No. 15-0702 (issued August 27, 2015);
Donald R. Gervasi, 57 ECAB 281, 286 (2005); William J. Cantrell, 34 ECAB 1233, 1237 (1983).
13

Id.

14

OWCP’s procedures provide that cases should be administratively combined when correct adjudication of the
issues depends on frequent cross-referencing between files. For example, if a new injury claim is reported for an
employee who previously filed an injury claim for a similar condition or the same part of the body, doubling is
required. See Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter
2.400.8(c) (February 2000). On remand OWCP shall administratively combine all necessary claims with the present
file for a full and fair adjudication of appellant’s pending right knee injury claim prior to the referral to an appropriate
specialist.

5

ORDER
IT IS HEREBY ORDERED THAT the November 21, 2018 decision of the Office of
Workers’ Compensation Program is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: June 1, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.L., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION,
Harrisburg, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 11-1668
Issued: February 10, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 13, 2011 appellant filed a timely appeal from the June 6, 2011 merit decision of
the Office of Workers’ Compensation Programs, which denied his injury claim. 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 sustained an injury in the performance of duty on
April 14, 2011, as alleged.
FACTUAL HISTORY
On April 20, 2011 appellant, a 34-year-old criminal investigator, claimed a traumatic
injury in the performance of duty on April 14, 2011: “While on official duty, I was conducting
1

5 U.S.C. § 8101 et seq.

defensive tactics training and acting as an aggression during a drill when I received a knee strike
to my right rib cage.” He described his injury as either a bruise or a potential cracked rib.
Appellant did not stop work.
OWCP informed appellant that additional evidence was required. It advised him that his
attending physician must provide a firm diagnosis and an opinion supported by a medical
explanation as to how the reported work incident caused or aggravated medical condition.
OWCP notified appellant that this evidence was crucial to the consideration of his claim.
Dr. Denise Harr, a family physician, saw appellant on April 20, 2011. She described
what happened and related his complaints. Appellant “just wants to know if anything is broken.”
Dr. Harr examined him and found that his chest was tender to touch over the anterior mid-lower
rib area on the right. There was no palpable abnormality, no bruising and no skin changes.
Dr. Harr diagnosed acute chest wall trauma and chest pain made worse by breathing. A
radiology report that same date found no evidence of any displaced rib fracture.
On June 6, 2011 OWCP denied appellant’s injury claim. It accepted that the April 14,
2011 incident occurred as alleged but that the medical evidence offered no firm medical
diagnosis to connect with that incident. As Dr. Harr did not diagnose a specific medical
condition, such as contusion or bruise, appellant failed to establish the element of fact of injury.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.2 An employee seeking benefits under FECA
has the burden of proof to establish the essential elements of his claim. When an employee
claims that he sustained an injury in the performance of duty, he must submit sufficient evidence
to establish that he experienced a specific event, incident or exposure occurring at the time, place
and in the manner alleged. He must also establish that such event, incident or exposure caused
an injury.3
A traumatic injury is defined by OWCP regulations as a condition of the body caused by
a specific event or incident or series of events or incidents, within a single workday or shift.
Such condition must be caused by external force, including stress or strain, which is identifiable
as to time and place of occurrence and member or function of the body affected.4
A person who claims benefits for a work-related condition has the burden of establishing
by the weight of the medical evidence a firm diagnosis of the condition claimed and a causal
relationship between that condition and factors of federal employment. Pain is generally
considered a symptom, not a firm medical diagnosis.5
2

5 U.S.C. § 8102(a).

3

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

4

20 C.F.R. § 10.5(ee).

5

J.W., Docket No. 11-1475 (issued December 7, 2011).

2

ANALYSIS
OWCP accepts that appellant received a knee strike to his right rib cage while in the
performance of duty on April 14, 2011. Appellant established that he experienced a specific
event, incident or exposure occurring at the time, place and in the manner alleged. The question
becomes whether this incident caused an injury.
The medical evidence offers no specific diagnosis of an injury. Dr. Harr, the treating
physician, diagnosed trauma and pain, but trauma is a general term that does not identify a
particular medical condition and pain is generally a symptom of an unidentified medical
condition. In the case of D.I.,6 the employee alleged a low back injury when his postal vehicle
struck a curb. Dr. Harr reported that appellant was treated on an emergency basis for back pain.
He would later diagnose chronic back pain. OWCP denied the claim on the grounds that the
evidence offered no firm medical diagnosis of a condition that could be attributed to the incident
at work. The Board affirmed, noting that pain as a symptom, not a firm medical diagnosis.
The medical evidence in this case rules out bruising, skin changes and displaced rib
fracture. It remains unknown what medical condition caused the reported tenderness to touch or
pain made worse by breathing. A firm diagnosis of the injury is necessary not only to support
the element of fact of injury, it will allow OWCP to accept a specific medical condition and
authorize appropriate medical treatment.
Because the medical evidence fails to diagnose a specific medical condition, appellant
has not met his burden to establish that he sustained an injury on April 14, 2011, as alleged. The
Board, therefore, will affirm OWCP’s June 6, 2011 decision denying his injury claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained an injury in the performance of duty on April 14, 2011, as alleged.

6

Docket No. 11-317 (issued December 12, 2011).

3

ORDER
IT IS HEREBY ORDERED THAT the June 6, 2011 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 10, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, VITILAS “VITO”
)
REID POST OFFICE, Normandy, MO, Employer )
__________________________________________ )
D.J., Appellant

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

Docket No. 21-1027
Issued: March 25, 2022

Case Submitted on the Record

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

On June 21, 2021 appellant, through counsel, sought an appeal from a purported June 3,
2021 decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards assigned Docket No. 21-1027.
The Board, having duly considered the matter, notes that it has jurisdiction to review final
adverse decisions of OWCP issued under the Federal Employees’ Compensation Act. 2 This
jurisdiction encompasses any final decision issued by OWCP within 180 days of the date appellant
filed this appeal. 3 Although the case record does contain a document from OWCP dated June 3,
1

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

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

20 C.F.R. § 501.3(e) provides in pertinent part: “Any notice of appeal must be filed within 180 days from the
date of issuance of a decision of the OWCP.”
3

2021, it is an informational letter and, thus, does not constitute a final adverse OWCP decision. 4
As there is no final adverse decision over which the Board may properly exercise jurisdiction, the
Board concludes that the appeal docketed as No. 21-1027 must be dismissed. 5 Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-1027 is dismissed.
Issued: March 25, 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

4

See Order Dismissing Appeal, G.T., Docket No. 21-0199 (issued December 1, 2021); Order Dismissing Appeal,
S.U., Docket No. 20-0636 (issued December 3, 2020) (correspondence that is purely informational in nature does not
constitute a final adverse decision of OWCP from which appellant may properly appeal).
The Board’s decisions and orders are “final upon the expiration of 30 days from the date of their issuance.”
20 C.F.R. § 501.6(d).
5

2