United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.G., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,
Seattle, WA, Employer
__________________________________________

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

Docket No. 19-1938
Issued: September 3, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On September 23, 2019 appellant filed a timely appeal from an August 21, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a respiratory
condition causally related to the accepted April 4, 2018 employment exposure.
FACTUAL HISTORY
On June 6, 2018 appellant, then a 51-year-old claims examiner, filed a traumatic injury
claim (Form CA-1) alleging that on April 4, 2018 he developed headaches, watery eyes, dizziness,
1

5 U.S.C. § 8101 et seq.

cough, and congestion in the performance of duty due to exposure to toxic fumes and vapors from
11:30 a.m. to 3:30 p.m. which occurred while contractors were welding/soldering copper pipes
and fittings in an enclosed workspace. The employing establishment controverted the claim.
Appellant was seen on April 4, 2018 by Karen L. Morice, a certified physician assistant.
He reported that approximately 11:30 a.m. that day he smelled something burning at work, and
that the smell increased and decreased throughout the afternoon. Around 3:00 p.m., a contractor
came out of a (mechanical) closet and appellant realized that he had been soldering copper pipe all
day. Appellant indicated that the closet was about 25 feet from his desk. He reported that he first
noticed his eyes watering in the morning, which improved, but his headache and dizziness
(lightheadedness) persisted. Appellant also felt a little more shortness of breath than normal when
walking from the ferry to the clinic. He denied sneezing or coughing, but advised that he had
previously experienced a cough when dust was blown on his desk. Appellant’s physical
examination was reported as normal.
On June 1, 2018 appellant was examined by Sydney E. Thompson, an advanced registered
nurse practitioner. He described the April 4, 2018 employment incident and indicated that his
cough was continuing and occurred mainly at work. Appellant also reported that he felt like he
had a cold all of the time and that a few weeks prior he was light headed and had trouble going
“from point A to B.” His chest x-ray and physical examination were reported as normal with no
acute cardiopulmonary abnormalities.
In a June 6, 2018 report, Dr. Sundance L. Rogers, a Board-certified internist, noted that
appellant was seen for a cough, dizziness, headache, and exposure to toxic chemicals. She noted
a history of appellant’s April 4, 2018 employment exposure and that his dizziness had resolved,
but his headache remained. Dr. Rogers opined that appellant’s persistent irrigative cough was
secondary to workplace exposure. She reported that appellant had a chronic cough the prior June
which resolved in October and that he had been without a cough until the April exposure at work
to copper fumes. Based on appellant’s excellent peak flow that day, Dr. Rogers found no evidence
of asthma. She noted appellant’s shortness of breath, but indicated that the etiology was unclear.
OWCP also received appellant’s April 4 and 5, 2018 e-mails to employing establishment
officials, which noted: the burning smell and his symptoms; a packet entitled “Hazards From
Inhaling and Exposure to Soldering Fumes”; and a June 11, 2018 letter from the employing
establishment controverting the claim.
In a June 18, 2018 development letter, OWCP advised appellant of the type of factual and
medical evidence required to establish his traumatic injury claim and requested a narrative medical
report from his physician which contained a diagnosis and provided the physician’s rationalized
medical explanation as to how the alleged employment incident caused his diagnosed condition.
It afforded him 30 days to submit the necessary evidence. On that same date, OWCP also sent a
development letter to the employing establishment. The employing establishment was asked to
provide comments regarding appellant’s exposure to toxic substances at the workplace on
April 4, 2018.
In response, OWCP received a June 27, 2018 statement from the employing establishment
and a June 10, 2015 safety data sheet. The employing establishment confirmed that on April 4,

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2018 soldering was performed in a mechanical closet, on the same floor as appellant’s office,
which caused a light smell several times during the day.
By decision dated July 20, 2018, OWCP denied appellant’s claim, finding that he had not
established the factual component of fact of injury as he had not responded to its June 18, 2018
development questionnaire. It concluded that the requirements had therefore not been met to
establish an injury as defined by FECA.
OWCP subsequently received a July 16, 2018 statement in response to OWCP’s
development questionnaire. Appellant reiterated details regarding the April 4, 2018 incident as
well as details regarding a March 2017 incident during which a coworker placed a personal fan on
a shared wall which directed dust and environmental irritants into his workspace. OWCP also
received: an e-mail from appellant to employing establishment representatives pertaining to the
April 4, 2018 odor and related complaints; an April 4, 2018 e-mail notification that another
employee, G.N., had reported a burning smell; a document titled “Health Hazards From Inhaling
And Exposure To Smoldering Fumes”; a safety data sheet from a vendor; a sworn declaration of
appellant’s union president; and a copy of the national collective bargaining agreement between
the employing establishment and his union.
On August 7, 2018 appellant requested a review of the written record by a representative
of OWCP’s Branch of Hearings and Review.
OWCP subsequently received additional evidence including a June 20, 2018 “Welch Allyn
CardioPerfect Workstation” report and a June 20, 2018 spirometer report, which noted an
unconfirmed/abnormal interpretation.
In a September 6, 2018 report, amended on October 3, 2018, Dr. Rachakonda D. Prabhu,
a pulmonary disease specialist, reported that appellant’s chronic cough started at work on April 4,
2018 around 11:30 a.m. Appellant indicated that the possible source of his symptoms, which
included frequent coughing bouts, dizziness, headache, and watery eyes, was discovered around
3:30 p.m. on April 4, 2018 when he learned that contractors had been welding and soldering copper
pipes on his work floor the entire day. Dr. Prabhu indicated that, while appellant was no longer
exposed to the welding, his symptoms persisted and he sought further treatment including x-ray,
spirometry, and pulmonary function testing. He opined that, based on appellant’s history,
appellant had reactive airway dysfunction syndrome (RADS), but indicated bronchial provocative
testing was needed to make a diagnosis. Dr. Prabhu noted that bronchial provocative testing
performed that day indicated an asthma diagnosis. He provided an assessment of contact exposure
to hazardous, chiefly nonmedicinal, chemicals; cough variant asthma; exercise-induced
bronchospasm; and reactive airway dysfunction.
By decision dated December 12, 2018, an OWCP hearing representative modified the
July 20, 2018 decision, finding that appellant had established that the April 4, 2018 employment
exposure occurred as alleged. The claim remained denied, however, as the medical evidence of
record was insufficient to establish causal relationship between a diagnosed medical condition and
the accepted April 4, 2018 employment exposure.
On February 8, 2019 appellant requested reconsideration.

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In a November 5, 2018 report, Dr. Prabhu indicated that on April 4, 2018 a maintenance
crew performed cutting, welding, and soldering of copper pipe within 30 feet of appellant’s desk
for approximately four hours. He noted appellant’s medical history following the April 4, 2018
workplace exposure to toxic substances, indicating that the September 6, 2018 bronchial
provocative testing was consistent with RADS. Dr. Prabhu opined that the exposure to welding
fumes at the employing establishment caused the RADS. He noted that appellant returned to work
and that on September 21 and October 24, 2018 he was exposed to cleaning agents by a
maintenance crew. Dr. Prabhu diagnosed asthma secondary to RADS as a result of the new
workplace exposures, noting that the employing establishment continued to expose appellant to
harmful toxins in the workplace as the maintenance always occurred during work hours. He
advised that appellant had decreased lung function due to RADS, which was caused by his
workplace exposure.
A copy of March 22, 2019 diagnostic tests were received, along with an April 26, 2019
letter from appellant and an April 30, 2019 letter from J.S. noting the April 4, 2018 incident.
By decision dated May 1, 2019, OWCP denied modification of its December 17, 2018
decision.
In a May 14, 2019 addendum report, Dr. Prabhu indicated that appellant has moderate
persistent asthma and RADS. He advised that the medical evidence, including the June 20, 2018
abnormal spirometer report and September 6, 2018 bronchial provocative testing, was sufficient,
objective, well-rationalized medical evidence of the diagnosed RADS. Dr. Prabhu opined, based
on a reasonable degree of medical certainty, that the April 4, 2018 employment exposure to toxic
fumes and vapors resulted in appellant’s RADS. He indicated that there were no other outside
factors that may have caused the RADS, except for the April 4, 2018 exposure.
On May 29, 2019 appellant requested reconsideration.
By decision dated August 21, 2019, OWCP denied modification of its May 1, 2019
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related

2

Id.

3
S.C., Docket No. 18-1242 (issued March 13, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59
ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

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to the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established.6 There are 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
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.9 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment incident must be based on a
complete factual and medical background.10 Additionally, the physician’s 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 incident.11
In a case where a preexisting condition involving the same part of the body is present and
the issue of causal relationship therefore involves aggravation, acceleration, or precipitation, the
physician must provide a rationalized medical opinion that differentiates between the effects of the
work-related injury or disease and the preexisting condition.12
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a respiratory
condition causally related to the accepted April 4, 2018 employment exposure.
In a June 6, 2018 report, Dr. Rogers opined that appellant’s persistent irrigative cough was
secondary to workplace exposure as he had been without a cough until the April exposure at work
4

T.H., Docket No. 18-1736 (issued March 13, 2019); J.M., Docket No. 17-0284 (issued February 7, 2018); R.C.,
59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988).
5

T.E., Docket No. 18-1595 (issued March 13, 2019); K.M., Docket No. 15-1660 (issued September 16, 2016); L.M.,
Docket No. 13-1402 (issued February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
6

S.S., Docket No. 18-1488 (issued March 11, 2019); T.H., 59 ECAB 388, 393-94 (2008).

7

E.M., Docket No. 18-1599 (issued March 7, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

8

E.M., id.; John J. Carlone, 41 ECAB 354 (1989).

9

S.S., supra note 6; Robert G. Morris, 48 ECAB 238 (1996).

10

C.F., Docket No. 18-0791 (issued February 26, 2019); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

11

Id.

12
R.C., Docket No. 18-1146 (issued August 12, 2019); J.F., Docket No. 19-0456 (issued July 12, 2019); Federal
(FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

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to copper fumes. The Board has held that the fact that a claimant was asymptomatic before a
claimed injury is insufficient, without adequate rationale, to establish causal relationship.13 Thus,
Dr. Rogers’ report is insufficient to establish that appellant sustained a diagnosed condition
causally related to his accepted employment exposure.14
Appellant also submitted several reports from Dr. Prabhu in support of his claim. In a
September 6, 2018 report, amended on October 3, 2018, Dr. Prabhu opined, based on appellant’s
history, that appellant has RADS. However, he indicated that bronchial proactive testing was
needed to make a diagnosis. However, these reports failed to provide an opinion regarding the
cause of appellant’s cough variant asthma or the other diagnosed conditions.15 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.16 This report is thus insufficient to establish causal relationship.
In his November 5, 2018 report, Dr. Prabhu provided an assessment of moderate persistent
asthma and RADS. He indicated that the September 6, 2018 bronchial provocative testing was
consistent with RADS. Dr. Prabhu opined that the exposure to welding fumes at the employing
establishment caused the RADS and that appellant had decreased lung function due to
employment-related RADS. While he generally supported causal relationship, he did not provide
rationale explaining how the accepted exposure was sufficient to result in the diagnosed
conditions. The Board has held that a report is of limited probative value regarding causal
relationship if it does not contain medical rationale explaining how a given medical condition is
related to an employment exposure.17 Thus, this report is of limited probative value and
insufficient to establish the claim.
In a May 14, 2019 addendum report, Dr. Prabhu diagnosed moderate persistent asthma and
RADS. He indicated that the June 20, 2018 abnormal spirometer report and September 6, 2018
bronchial provocative testing was sufficient objective well-rationalized medical evidence of the
diagnosed RADS. Dr. Prabhu opined, based on a reasonable degree of medical certainty, that the
April 4, 2018 employment exposure to toxic fumes and vapors resulted in appellant’s RADS as
there were no other outside factors that may have caused the RADS. Although he supported causal
relationship, he does not offer medical rationale to explain how and why he believes that only the
April 4, 2018 employment incident could have resulted in or contributed to the diagnosed
conditions or provide an explanation as to why his conditions were not due to other conditions.

13

A.R., Docket No. 19-0465 (issued August 10, 2020); J.F., Docket No. 19-1694 (issued March 18, 2020).

14

See D.L., Docket No. 18-0767 (issued March 10, 2020).

15

L.D., Docket No. 18-1468 (issued February 11, 2019).

16

See L.B., Docket No. 18-0533 (issued August 27, 2018); C.B., Docket No. 09-2027 (issued May 12, 2010); S.E.,
Docket No. 08-2214 (issued May 6, 2009).
17
D.L., Docket No. 19-0900 (issued October 28, 2019); Y.D., Docket No. 16-1896 (issued February 10, 2017);
C.M., Docket No. 14-0088 (issued April 18, 2014).

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Therefore, this report is also of limited probative value and is insufficient to establish appellant’s
claim.
The record also contains an April 4, 2018 report by a certified physician assistant and a
June 1, 2018 report from a registered nurse practitioner. However, these reports will not suffice
for purposes of establishing entitlement to FECA benefits as physician assistants, nurse
practitioners, and physical therapists are not considered physicians as defined under FECA.18
The remainder of the medical evidence, including a June 20, 2018 spirometer report and
March 22, 2019 diagnostic tests, standing alone, lack probative value as they do not provide a
physician’s opinion on whether there is a causal relationship between appellant’s accepted
employment incident and a diagnosed condition.19 For this reason, this evidence is insufficient to
meet his burden of proof.
As the medical evidence of record does not contain a rationalized opinion on causal
relationship, the Board finds that appellant 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.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a respiratory
condition causally related to the accepted April 4, 2018 employment incident.

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). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter
2.805.3a(1) (January 2013); 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); C.P., Docket
No. 19-1716 (issued March 11, 2020) (physician assistants are not physicians as defined under FECA).
18

19
See P.A., Docket No. 18-0559 (issued January 29, 2020); A.P., Docket No. 18-1690 (issued December 12, 2019);
R.M., Docket No. 18-0976 (issued January 3, 2019).

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ORDER
IT IS HEREBY ORDERED THAT the August 21, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 3, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.Y., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DELIVERY CENTER, Kansas City, MO,
Employer
__________________________________________

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

Docket No. 10-1647
Issued: March 1, 2011

Case Submitted on the Record

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

JURISDICTION
On June 8, 2010 appellant filed a timely appeal from the December 17, 2009 and May 11,
2010 merit decisions of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of these decisions.
ISSUE
The issue is whether the Office properly denied appellant’s request for physical therapy
services on the grounds that the current medical condition was not employment related.
On appeal, appellant, through counsel, contends that the Office’s decision is contrary to
fact and law.

FACTUAL HISTORY
This case has previously been before this Board. The facts as set forth in the prior
decision are incorporated by reference.1 The relevant facts are set forth below.
On July 7, 2005 appellant, then a 47-year-old clerk, filed a traumatic injury claim
alleging that on July 6, 2005, while sitting and sorting mail, his back began to hurt. On
November 18, 2005 the Office accepted his claim for sprain/strain lumbar region and the Office
paid compensation benefits.
On October 16, 2009 the Office received a request for authorization for physical therapy
from Professional Rehabilitative Services for the period October 21 through November 23, 2009.
By letter dated October 19, 2009, it informed Professional Rehabilitative Services that the
request could not be authorized at this time and requested further information.
In response, appellant submitted reports by Dr. Hamid Alhosseini, a Board-certified
family practitioner, dated October 16 and November 11, 2009, wherein he stated that appellant
has had onset of numbness and tingling that has developed gradually in his right hand and
fingertips up to his arm and elbow over the past three years. He noted that there were no
precipitating factors. Dr. Alhosseini also noted that appellant was suffering from lower back
pain which has been occurring persistently for two weeks. He diagnosed him with low back
pain, radiculopathy (lumbar or thoracic) and carpal tunnel syndrome.
Appellant also submitted an October 21, 2009 report by his physical therapist, Lesley
Rhine, indicating that appellant stated that he injured his back in July 2005 while lifting
70-pound bags of mail. Dr. Rhine noted that he has been undergoing a series of treatments but
still had signs and symptoms consistent with lower back pain and would benefit from physical
therapy.
By decision dated December 17, 2009 the Office denied appellant’s request for
authorization for physical therapy as the evidence was not sufficient to establish that his current
medical condition and need for physical therapy were related to the established work-related
injury of July 6, 2005.
By letter dated December 23, 2009, appellant requested a telephonic hearing before an
Office hearing representative. At the hearing, held on March 2, 2010, he noted that he no longer
worked for the employing establishment but was working for area transit transportation in
Kansas City, Missouri. Appellant noted that he left the employing establishment on
September 4, 2006. He noted that he left the employing establishment as his leave under the
Family and Medical Leave Act and regular leave was used and due to his absence, he was
removed from service. Appellant stated that he has been temporarily employed on and off since
leaving the employing establishment. He also testified that while working for J.C. Penney he
was doing a lot of standing and his back started bothering him again. Appellant testified that his
1

Docket No. 09-1376 (issued January 22, 2010) (the Board found that the Office properly refused to reopen
appellant’s case for further review of the merits of the claim on the grounds that his request was untimely filed and
failed to demonstrate clear evidence of error).

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physician told him that due to his previous injury he was still having problems and recommended
that he go to physical therapy.
In a letter dated March 19, 2010, the employing establishment argued that the medical
evidence in the record was not sufficient to meet appellant’s burden of proof to connect the
current treatment requested to his previous injury that occurred over four years ago. The
employing establishment also noted that he appeared to describe a new intervening incident at
J.C. Penney that would break the chain of causation.
By decision dated May 11, 2010, an Office hearing representative affirmed the Office’s
December 17, 2009 decision.
LEGAL PRECEDENT
Section 8103 of the Federal Employees’ Compensation Act states in pertinent part: The
Unites States shall furnish to an employee who is injured while in the performance of duty the
services, appliances and supplies prescribed or recommended by a qualified physician, which the
Secretary of Labor considers likely to cure, give relief, reduce the degree or the period of
disability or aid in lessening the amount of the monthly compensation.2 The Office’s obligation
to pay for medical treatment under section 8103 of the Act extends only to treatment of
employment-related conditions and appellant has the burden of establishing that the requested
treatment is for the effects of an employment-related condition. Proof of causal relation must
include rationalized medical evidence.3 In interpreting this section of the Act, the Board has
recognized that the Office has broad discretion in approving services provided under the Act.
The Office has the general objective of ensuring that an employee recovers from his injury to the
fullest extent possible in the shortest amount of time. It therefore has broad administrative
discretion in choosing means to achieve this goal. The only limitation on the Office’s authority
is that of reasonableness. Abuse of discretion is generally shown through proof of manifest
error, clearly unreasonable exercise of judgment or actions taken which are contrary to both logic
and probable deductions from established facts. It is not enough to merely show that the
evidence could be construed so as to produce a contrary factual conclusion.4
In order to be entitled to reimbursement for medical expenses, a claimant must establish
that the expenditures were incurred for treatment of the effects of an employment-related injury
by submitting rationalized medical evidence that supports such a connection and demonstrates
that the treatment is necessary and reasonable.5 While the Office is obligated to pay for
treatment of employment-related conditions, the employee has the burden of establishing that the

2

5 U.S.C. §§ 8101-8193, § 8103(a).

3

Stella M. Bohlig, 53 ECAB 341, 343 (2002).

4

Daniel J. Perea, 42 ECAB 214 (1990).

5

See Debra S. King, 48 ECAB 504 (1997).

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expenditure is incurred for treatment of the effects of any employment-related injury or
condition.6
ANALYSIS
In the instant case, the Office accepted that on July 6, 2005 appellant sustained a
sprain/strain of the lumbar region in the performance of duty.
The Board finds that there is no rationalized medical evidence that the physical therapy
services requested for the period October 21 through November 23, 2009 were related to the
accepted employment injury of July 6, 2005. Dr. Alhosseini discussed onset of numbness and
tingling in appellant’s arm and elbow for the past three years and also discussed lower back pain
which had been occurring for two weeks prior to his October 16, 2009 appointment. However,
he never linked these symptoms to appellant’s work-related injury, nor did he provide medical
rationale explaining why physical therapy was needed to assist in the cure or relief of the effects
of the employment-related conditions. As such, the Board finds that the reports of
Dr. Alhosseini are insufficient to warrant authorization for payment or reimbursement of medical
services.
Appellant also submitted a report from his physical therapist. This report has no
probative value in establishing appellant’s claim. Section 8101(2) of the Act provides that the
term physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists,
chiropractors and osteopathic practitioners within the scope of their practice as defined by State
law. A physical or occupational therapist is not a physician as defined under the Act; their
opinions are of no probative medical value.7 Therefore, appellant has failed to submit evidence
showing that the Office abused its discretion in denying his request for physical therapy services.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for physical therapy
services on the grounds that the current condition was not employment related.

6

Kennett O. Collins, Jr., 55 ECAB 648, 654 (2004).

7

See 5 U.S.C. § 8101(2); A.C., 60 ECAB ___ (Docket No. 08-1453, issued November 18, 2008); David P.
Sawchuk, 57 ECAB 316 (2005).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 11, 2010 and December 17, 2009 are affirmed.
Issued: March 1, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
U.S. POSTAL SERVICE, VICKERY STATION,
Dallas, TX, Employer
__________________________________________

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

Docket No. 21-1204
Issued: March 11, 2022

Case Submitted on the Record

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

JURISDICTION
On August 3, 2021 appellant filed a timely appeal from a March 29, 2021 merit decision
and a July 27, 2021 nonmerit 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
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish a medical
condition causally related to the accepted factors of his federal employment; and (2) whether

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the July 27, 2021 decision, appellant submitted additional evidence to the Board.
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.

OWCP properly denied appellant’s request for reconsideration of the merits of his claim, pursuant
to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 28, 2021 appellant, then a 69-year-old city carrier, filed an occupational disease
claim (Form CA-2) alleging that he developed bilateral wrist pain due to factors of his federal
employment. He noted that an attached statement explained how his employment factors caused
his condition, however, no such statement was contained in the record. Appellant noted that he
first became aware of his claimed injury on December 16, 2021 and realized its relation to his
federal employment on January 26, 2021.3 On the reverse side of the claim form, his supervisor,
M.J., indicated that appellant’s work was modified so that he did not have to lift items over 10
pounds and that he was attending physical therapy daily. The employing establishment challenged
appellant’s claim because appellant did not submit any factual or medical documentation.
In a development letter dated February 5, 2021, OWCP informed appellant of the
deficiencies of his claim. It advised him of the type of additional factual and medical evidence
needed and provided a questionnaire for his completion. In a separate development letter of even
date, OWCP requested additional information from the employing establishment, including
comments from a knowledgeable supervisor and an explanation of appellant’s work activities. It
afforded both parties 30 days to respond.
A January 26, 2021 report from Dr. Juan Zamora, a Board-certified physician specializing
in family medicine, related appellant’s history of injury. Appellant awoke on December 16, 2020
with sharp pain in his left wrist and continued to experience frequent pain and discomfort
extending into his middle fingers. A similar pattern of pain started in his right wrist on
December 30, 2020. Appellant also began to experience right elbow pain on January 4, 2021.
Pain in each of these areas increased with activity. Dr. Zamora opined that appellant’s condition
was work related and recommended diagnostic testing. He diagnosed unspecified sprains of the
right elbow and both wrists.
On February 9, 2021 appellant responded to OWCP’s development questionnaire, noting
that he worked limited duty and retired from the employing establishment on February 1, 2021.
He indicated that his responses to OWCP’s remaining questions were contained in an attached
statement, however, no such statement is found in the record.
Appellant underwent bilateral wrist x-rays and a magnetic resonance imaging (MRI) scan
on February 10, 2021. The x-ray of his left wrist revealed severe triscaphe and mild
trapeziometacarpal osteoarthritis and a one millimeter ulnar positive variance indicating possible
ulnar impaction syndrome or triangular fibrocartilage complex (TFCC) tears. The x-ray of
appellant’s right wrist revealed severe triscaphe and mild radiocarpal and trapeziometacarpal
osteoarthritis. The MRI scan of his left wrist demonstrated tricompartmental wrist effusions,
chondromalacia within the lunate and distal ulna, which could relate to ulnar impaction syndrome
and/or osteoarthritis, severe triscaphe and mild-to-moderate trapeziometacarpal osteoarthritis,
3

A January 20, 2021 notice of separation indicated that appellant retired from the employing establishment on
January 31, 2021.

2

increased signal within the TFCC compatible with either a TFCC tear or TFCC degeneration, and
mild generalized extensor tenosynovitis. The MRI scan of appellant’s right wrist demonstrated
mild generalized extensor tenosynovitis with grade 1 strain of the extensor carpi ulnaris tendon,
tricompartmental wrist effusions, severe triscaphe and mild trapeziometacarpal osteoarthritis, and
increased signal within the TFCC indicative of either a TFCC tear or TFCC degeneration .
In a February 23, 2021 report, Dr. Zamora reviewed the February 10, 2021 x-ray and MRI
scans and diagnosed chondromalacia, osteoarthritis, and TFCC degeneration, possibly with tears.
He opined that appellant’s conditions were due to the natural wear and tear of the body but were
aggravated by his 42 years of work for the employing establishment. Dr. Zamora advised appellant
to begin a regimen of physical rehabilitation.
By decision dated March 29, 2021, OWCP denied appellant’s occupational disease claim,
finding that the medical evidence submitted was insufficient to establish causal relationship
between his diagnosed conditions and the accepted factors of his federal employment.
Appellant subsequently submitted an undated statement responding to OWCP’s initial
development questionnaire. He described his employment activities, including daily sorting and
delivering of mail and parcels weighing up to 70 pounds and carrying up to 35 pounds of letters,
flats, and small parcels in a satchel carried on left shoulder such that weight was almost entirely
on his left shoulder and arm. Appellant noted that he had been under lifting restrictions at work
since July 2020 due to a left arm injury. He compensated for his left arm injury by doing more
work with his right arm. Appellant’s left wrist and hand pain began during the night on
December 16, 2020, and he reported it to his station manager, D.D, the next day. Similar pain
began in his right wrist on December 30, 2020 and in his right arm and elbow on January 4, 2021.
Appellant experienced greater pain and discomfort during periods of activity. He reported this
history to his manager, M.J., on January 13 and 15, 2020. Appellant’s activities outside of work
consisted mainly of listening to music and watching movies. He believed that his symptoms were
indicative of repetitive motion injuries due to the nature of his work for the employing
establishment.
OWCP received February 23, 2021 report from Dr. Zamora in which he again reviewed
the February 10, 2021 x-rays and MRI scans and diagnosed chondromalacia, osteoarthritis, and
TFCC degeneration, possibly with tears. Dr. Zamora opined that appellant’s conditions were due
to the natural wear and tear of the body but were aggravated by his 42 years of work at the
employing establishment. Specifically, he explained that appellant’s work duties, including
carrying and handling heavy loads, sorting and casing mail, repetitively twisting at the wrist to
open mailboxes, and repetitively locking and unlocking his work vehicle throughout the day,
aggravated his conditions. Dr. Zamora advised that appellant begin a regimen of physical
rehabilitation.
On April 28, 2021 appellant requested reconsideration. In support of his request, he
submitted an April 27, 2021 statement, in which he contended that his more than 42 years of
service to the employing establishment, including a great deal of overtime, directly contributed to
his diagnosed conditions. Appellant noted that, as a result of a previously accepted left arm injury,
assigned OWCP File No. xxxxxx014, he had been restricted to eight hours of work per day during
the latter half of 2020. Finally, he argued that the medical documentation proved causal

3

relationship between his diagnosed medical conditions and the accepted factors of his federal
employment.
By decision dated July 27, 2021, OWCP denied appellant’s request for reconsideration of
the merits of his claim, pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA 4 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, 5 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. 6 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. 7
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence o f 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. 8
Causal relationship is a medical question that requires rationalized medical opin ion
evidence to resolve the issue. 9 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background. 10 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical

4

Supra note 1.

5

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
6

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

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

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).
9

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

10

M.V., Docket No. 18-0884 (issued December 28, 2018).

4

rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s). 11
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted factors of his federal employment.
In his January 26, 2021 report, Dr. Zamora diagnosed unspecified sprains of the right
elbow and both wrists and opined that appellant’s condition was work related. Similarly, in a
February 23, 2021 report, he diagnosed chondromalacia, osteoarthritis, and TFCC degeneration,
possibly with tears, and opined that appellant’s conditions were due to the natural wear and tear of
the body, but were aggravated by appellant’s 42 years of work for the employing establishment.
While he provided an affirmative opinion suggestive of causal relationship, Dr. Zamora did not
offer medical rationale sufficient to explain why he believes appellant’s employment duties could
have resulted in or contributed to his diagnosed conditions. Without identifying specific
employment duties or explaining how they caused or aggravated app ellant’s conditions,
Dr. Zamora’s letter is of limited probative value and is insufficient to meet appellant’s burden of
proof.12
In a separate February 23, 2021 report, Dr. Zamora repeated the above diagnoses and again
opined that appellant’s conditions were due to the natural wear and tear of the body , but were
aggravated by appellant’s 42 years of work for the employing establishment. Specifically, he
explained that appellant’s work duties, including carrying and handling heavy loads, sortin g and
casing mail, repetitively twisting at the wrist to open mailboxes, and repetitively locking and
unlocking his work vehicle throughout the day, aggravated his conditions. However, Dr. Zamora
did not explain how any of these described employment activities caused appellant’s diagnosed
chondromalacia, osteoarthritis, and TFCC degeneration. To be of probative medical value, a
medical opinion must explain how, physiologically, the movements involved in the employment
activities caused or contributed to the diagnosed conditions. 13 As such, Dr. Zamora’s report is
insufficient to establish appellant’s claim.
The remaining medical evidence consisted of bilateral x-ray and MRI scans of appellant’s
wrists. The Board has held, however, that diagnostic testing reports, standing alone, lack probative
value on the issue of causal relationship as they do not address the relationship between the
accepted employment factors and a diagnosed condition. 14 For this reason, this evidence is also
insufficient to meet appellant’s burden of proof.

11

Id.; Victor J. Woodhams, supra note 8.

12

See A.P., Docket No. 19-0224 (issued July 11, 2019).

13

A.W., Docket No. 19-0327 (issued July 19, 2019); M.D., Docket No. 18-0195 (issued September 13, 2018);
Jimmie H. Duckett, 52 ECAB 332 (2001).
14

W.M., Docket No. 19-1853 (issued May 13, 2020); L.F., Docket No. 19-1905 (issued April 10, 2020).

5

As appellant has not submitted rationalized medical evidence sufficient to establish a
medical condition causally related to the accepted factors of his federal employment, the Board
finds that he has not met his burden of proof. 15
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.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 16
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.17
A request for reconsideration must be received by OWCP within one year of the date of
OWCP decision for which review is sought. 18 If it chooses to grant reconsideration, it reopens and
reviews the case on its merits. 19 If the request is timely but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 20

15

See T.J., Docket No. 19-1339 (issued March 4, 2020); F.D., Docket No. 19-0932 (issued October 3, 2019); D.N.,
Docket No. 19-0070 (issued May 10, 2019); R.B., Docket No. 18-1327 (issued December 31, 2018).
16

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 171287 (issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
17

20 C.F.R. § 10.606(b)(3); see L.D., id; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
18

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (September 2020). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
19

Id. at § 10.608(a); see also A.F., Docket No. 19-1832 (issued July 21, 2020); M.S., 59 ECAB 231 (2007).

20

Id. at § 10.608(b); J.B., Docket No. 20-0145 (issued September 8, 2020); Y.K., Docket No. 18-1167 (issued
April 2, 2020); E.R., Docket No. 09-1655 (issued March 18, 2010).

6

ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Appellant has not alleged or demonstrated that OWCP erroneously applied or interpreted
a specific point of law. Moreover, appellant has not advanced a relevant legal argument not
previously considered. Consequently, he is not entitled to a review of the merits of his claim based
on the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).21
Appellant also did not submit relevant and pertinent new evidence in support of his
reconsideration request. The underlying issue on reconsideration is whether appellant has met his
burden of proof to establish a medical condition causally related to the accepted factors of his
federal employment. This is a medical issue which is addressed by relevant medical evidence not
previously considered. 22
With his request for reconsideration, appellant submitted an undated response to OWCP’s
initial development questionnaire, a February 23, 2021 medical report from Dr. Zamora, and an
April 27, 2021 statement contending that his conditions were causally related to the accepted
factors of his federal employment. The undated questionnaire response and the April 27, 2021
statement do not constitute relevant and pertinent new evidence as they are not medical evidence.
Further, Dr. Zamora’s separate February 23, 2021 medical report substantially replicates a
previously considered report of even date. The only addition in the later-submitted report was a
list of employment activities that he believed aggravated appellant’s medical conditions.
Dr. Zamora’s did not, however, offer an explanation of the causal relationship between those
activities and the diagnosed conditions. The Board has held that the submission of evidence that
does not address the particular issue involved does not constitute a basis for reopening a case. 23
As such, appellant is not entitled to further review of the merits of his claim based on the third
above-noted requirement under 20 C.F.R. § 10.606(b)(3).24
The Board, accordingly, finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review. 25
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted factors of his federal employment. The Board further
21

C.B., Docket No. 18-1108 (issued January 22, 2019).

22

Y.L., Docket No. 20-1025 (issued November 25, 2020).

23

See T.T., Docket No. 19-0319 (issued October 26, 2020); Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M.
Nixon-Steward, 52 ECB 140 (2000); Edward Matthew Diekemper; 31 ECAB 224, 225 (1979).
24

Supra note 16.

25

J.B., supra note 20; D.G., Docket No. 19-1348 (issued December 2, 2019).

7

finds that OWCP properly denied his request for reconsideration of the merits of his claim pursuant
to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the March 29 and July 27, 2021 decisions of the
Office of Workers’ Compensation Programs are affirmed. 26
Issued: March 11, 2022
Washington, DC

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

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

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

26

Upon return of the case record, OWCP may consider administratively combining the current claim file with
OWCP File No. xxxxxx014.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.H., Appellant
and
U.S. POSTAL SERVICE, JAMES A. FARLEY
BUILDING, New York, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-2283
Issued: July 7, 2011

Case Submitted on the Record

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

JURISDICTION
On September 13, 2010 appellant filed a timely appeal from a March 19, 2010 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) that denied her request for
reconsideration. As more than 180 days elapsed between the most recent OWCP merit decision
dated October 8, 2009 to the filing of this appeal on September 13, 2010, pursuant to the Federal
Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the nonmerit decision.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration
without further merit review of the claim under 5 U.S.C. § 8128(a).
On appeal, appellant noted that her benefits have been interrupted since October 2009
and contended that they be reinstated.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 28, 1998 appellant, then a 45-year-old personnel clerk, filed an occupational
disease claim alleging that she sustained carpal tunnel syndrome causally related to her federal
duties. On January 26, 1999 OWCP accepted appellant’s claim for bilateral carpal tunnel
syndrome. It paid wage-loss compensation and medical benefits.
By decision dated October 8, 2009, OWCP suspended appellant’s benefits effective
October 25, 2009 as she failed to complete the required Form EN1032 and Form SSA-581. It
informed her that, if she completed and returned the forms, her compensation benefits would be
restored retroactively to the date they were suspended.
On December 29, 2009 appellant requested reconsideration. In an accompanying letter,
she noted that there had been a delay since the medical evidence disclosed permanent injuries.
Appellant continued personal home therapy, but sought to resume treatment with her former
medical association. She noted that she would be forwarding further documents. No further
evidence was submitted.
In a March 19, 2010 decision, OWCP denied appellant’s request for reconsideration
without conducting a merit review. It noted that although appellant did not specify which
decision she was appealing, the last merit decision was issued October 8, 2009. OWCP found
that appellant’s letter did not raise any substantive legal questions or include new and relevant
evidence and was not sufficient to warrant review of the October 8, 2009 decision.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.3 To be entitled to a merit review
of OWCP’s decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.4 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.5

2

5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
3

20 C.F.R. § 10.606(b)(2).

4

Id. at § 10.607(a).

5

Id. at § 10.608(b).

2

ANALYSIS
The only issue is whether OWCP properly denied appellant’s reconsideration request.
Appellant did not make any argument that OWCP erroneously applied or interpreted a
specific point of law. She did not advance any relevant legal argument not previously considered
by OWCP. Furthermore, appellant did not submit any new or relevant evidence with her request
for reconsideration. As she has not met any of the requirements for reopening her case for merit
review under section 8128(a) of FECA, OWCP properly denied reconsideration of her case on
the merits.6
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration
without further merit review of the claim under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 19, 2010 is affirmed.
Issued: July 7, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6

The Board notes that OWCP informed appellant in its October 8, 2009 decision that, if she submitted completed
copies of the forms that were enclosed with that decision, her benefits would be restored retroactively to the date
they were suspended.

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cleveland, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 11-588
Issued: September 30, 2011

Case Submitted on the Record

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

JURISDICTION
On January 10, 2011 appellant filed a timely appeal from a December 22, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has a permanent impairment to a scheduled member or
function of the body entitling him to a schedule award pursuant to 5 U.S.C. § 8107.
FACTUAL HISTORY
On October 27, 2005 appellant, then a 51-year-old letter carrier, filed an occupational
disease or illness claim (Form CA-2) alleging that sitting at work aggravated a rectal fistula

1

5 U.S.C. § 8101 et seq.

condition. OWCP accepted the claim for aggravation of perianal hidradenitis suppurativa
(International Classification of Diseases (ICD) No. 705.83).2
In a report dated January 26, 2009, Dr. Timothy Morley, an osteopath, provided a history
and results on examination. He opined that under the fifth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) appellant had
a five percent impairment to the leg due to hip flexion weakness. Dr. Morley also opined that
appellant had a five percent whole person impairment due to anal disease, citing Table 6-5. The
total impairment was reported as 17 percent to the lower extremity. An OWCP medical adviser
submitted an April 22, 2009 report, noting the findings of Dr. Morley and concurring that the
impairment was 17 percent.
Appellant submitted an August 29, 2009 report from Dr. William Grant, an internist, who
provided a history and results on examination. Dr. Grant cited Table 8-2 in the sixth edition of
the A.M.A., Guides, stating appellant had scars consistent with a 35 percent impairment under
that table.3
OWCP referred the case for a second opinion evaluation. By report dated March 28,
2010, Dr. Manhal Ghanma, an orthopedic surgeon, stated that, although appellant may be
awarded a whole person impairment under the A.M.A., Guides sixth edition for hidradenitis,
there was no basis for a lower extremity award. He stated the perianal hydradenitis was
localized in nature and does not affect the nerve roots or peripheral nerves of the lower
extremities. Dr. Ghanma did not provide a history or results on examination.
The record indicates that OWCP referred appellant for second opinion examination by
Dr. Ira Ungar. It did not ask for an opinion regarding permanent impairment, and Dr. Ungar’s
May 27, 2010 report did not provide an opinion on the issue.
Dr. Grant submitted a report dated April 18, 2010, again opining that appellant had a 35
percent impairment under Table 8-2. In a report dated June 24, 2010, OWCP’s medical adviser
noted the statement by Dr. Ghanma, and opined that Dr. Grant’s report was “wrong, and
unacceptable.”
By decision dated August 4, 2010, OWCP found appellant was not entitled to a schedule
award. It found the weight of the evidence did not establish a permanent impairment. Appellant
requested a telephonic hearing before an OWCP hearing representative, which was held on
November 5, 2010. By decision dated December 22, 2010, the hearing representative affirmed
the August 4, 2010 OWCP decision. The hearing representative found that Dr. Ghanma
represented the weight of the medical evidence.

2

The record indicates that appellant also had other claims accepted for a right knee injury on December 24, 2004,
carpal tunnel syndrome and a neck strain on September 22, 2008.
3

Table 8-2 provides whole person impairments for skin disorders. A.M.A., Guides 166.

2

LEGAL PRECEDENT
Section 8107 of FECA provides that, if there is permanent disability involving the loss or
loss of use of a member or function of the body, the claimant is entitled to a schedule award for
the permanent impairment of the scheduled member or function.4 Neither FECA nor the
regulations specify the manner in which the percentage of impairment for a schedule award shall
be determined. For consistent results and to ensure equal justice for all claimants OWCP has
adopted the A.M.A., Guides as the uniform standard applicable to all claimants.5 For schedule
awards after May 1, 2009, the impairment is evaluated under the sixth edition.6
When OWCP refers a claimant for a second opinion evaluation and the report does not
adequately address the relevant issues, it should secure an appropriate report on the relevant
issues.7
ANALYSIS
In this case, appellant had submitted an August 29, 2009 report from Dr. Grant, who
found appellant had an impairment for scarring under Table 8-2.8 Under FECA, an impairment
for skin disfigurement is limited to serious disfigurement of the face, head or neck of a character
likely to handicap an individual in securing or maintaining employment.9 There is no provision
under FECA for an impairment calculated under Table 8-2 for scarring to another part of the
body.10
OWCP’s hearing representative finds the Dr. Ghanma, a physician selected for a second
opinion evaluation, represented the weight of the evidence. The hearing representative stated
that Dr. Ghanma “examined the claimant” on March 28, 2010. If Dr. Ghanma examined
appellant, he provided no evidence in his March 28, 2010 report. The report contains no findings
on physical examination or any discussion of clinical findings. In addition, there is no history of
injury or history of medical treatment which would serve as a foundation for Dr. Ghanma’s
opinion and demonstrate his understanding of the factual and medical background. OWCP also
referred appellant for a second opinion examination by Dr. Ungar, however, the issue of
permanent impairment was not at issue.
4

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
5

A. George Lampo, 45 ECAB 441 (1994).

6

FECA Bulletin No. 09-03 (March 15, 2009).

7

See Robert Kirby, 51 ECAB 474, 476 (2000); Mae Z. Hackett, 34 ECAB 1421 (1983); Richard W. Kinder, 32
ECAB 863 (1981).
8

A.M.A., Guides 166, Table 8-2.

9

5 U.S.C. § 8107(c)(21). The amount of compensation is not to exceed $3,500.00.

10

See A.S., Docket No. 08-1483 (issued December 10, 2008).

3

Dr. Ghanma refers to the possibility of a whole person impairment under the A.M.A.,
Guides, but then states that there was no lower extremity impairment as no nerves were involved.
He did not discuss any specific tables or figures, and as noted above, provided no results on
examination or medical background to support his opinion. It is well established that medical
reports must be based on a complete and accurate factual and medical background, and medical
opinions based on an incomplete or inaccurate background are of little probative value.11 The
Board finds that Dr. Ghanma’s report is of diminished probative value and cannot represent the
weight of the evidence on the issue presented.
Since OWCP attempted to develop the medical evidence and referred the case for a
second opinion evaluation, it is OWCP’s responsibility to secure a medical report that adequately
addresses the pending issues.12 The case will be remanded to OWCP for additional development
and a rationalized medical opinion as to an employment-related permanent impairment. After
such further development as OWCP deems necessary, it should issue an appropriate decision.
CONCLUSION
The Board finds the report of the second opinion physician, Dr. Ghanma, does not
represent the weight of the evidence and the case is remanded for additional development.

11

See Patricia M. Mitchell, 48 ECAB 371 (1997); Cleopatra McDougal-Saddler, 47 ECAB 480 (1996).

12

Supra note 7.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 22, 2010 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: September 30, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


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

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Docket No. 21-1199
Issued: February 8, 2022

Case Submitted on the Record

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

On August 2, 2021 appellant filed an appeal from a purported February 4, 2021 decision
of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 21-1199.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act. 1
This jurisdiction encompasses any final adverse decision issued by OWCP within 180 days of the
date appellant filed her appeal. 2 The case record as transmitted to the Board does not contain a
final adverse decision of OWCP issued within 180 days from the date of docketing of the current

1

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.”
2

appeal.3 The Board notes that the record contains a February 4, 2021 informational letter advising
appellant that the Board’s January 28, 2020 Order Dismissing Appeal 4 was not subject to
reconsideration or appeal. This correspondence does not constitute a final adverse decision by
OWCP.
As there is no final adverse decision issued by OWCP over which the Board may properly
exercise jurisdiction, the Board concludes that the appeal docketed as No . 21-1199 must be
dismissed. Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-1199 is dismissed.
Issued: February 8, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

3

Id.

4

On December 4, 2018 appellant sought appeal from a purported June 7, 2018 OWCP decision that was, in fact,
an informational letter. The Clerk of the Appellate Boards assigned Docket No. 19-0533. By order issued January 28,
2020, the Board dismissed appellant’s appeal as there was no final adverse decision issued within 180 days of the date
appellant filed her appeal. Order Dismissing Appeal, J.D., Docket No. 19-0533 (issued January 28, 2020). This order
became final after 30 days of issuance, i.e., on February 27, 2020. See 20 C.F.R. § 501.6(d).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Palmdale, CA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0043
Issued: April 20, 2021

Case Submitted on the Record

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

On October 2, 2020 appellant filed an appeal from a March 27, 2020 merit decision of the
Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 21-0043.
The Board, having duly considered this matter, concludes that the appeal docketed as No.
21-0043 must be dismissed. The Board’s jurisdiction is limited to the review of final adverse
OWCP decisions issued under the Federal Employees’ Compensation Act (FECA).1 For final
adverse decisions of OWCP issued on or after November 19, 2008, the Board’s review authority
is limited to appeals which are filed within 180 days from the date of issuance of OWCP’s
decision.2
The 180th day following the March 27, 2020 decision was Wednesday,
September 23, 2020. As appellant did not file an appeal with the Board until October 2, 2020,
more than 180 days after the March 27, 2020 OWCP decision, the Board finds that the appeal
docketed as No. 21-0043 is untimely filed. The Board is without jurisdiction to review the appeal.
1

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

2

20 C.F.R. § 501.3(e) (2009).

Appellant has not offered a reason to explain her failure to timely file an appeal with supporting
documentation sufficient to establish compelling circumstances. Because there is no adverse, final
decision issued by OWCP within 180 days of the October 2, 2020 filing of the instant appeal, the
Board concludes that the appeal, docketed as No. 21-0043, must be dismissed.3 Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-0043 is dismissed.
Issued: April 20, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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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).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.E., Appellant
and
DEPARTMENT OF THE NAVY, NORFOLK
NAVAL AIRSTATION, Norfolk, VA, Employer
__________________________________________

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

Docket No. 11-742
Issued: October 13, 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 February 2, 2011 appellant filed a timely appeal of an August 10, 2010 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying his traumatic injury claim.
Pursuant to the Federal Employees’ Compensation Act (FECA)1 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 cervical injury in the
performance of duty on October 1, 2009, as alleged.
FACTUAL HISTORY
On May 3, 2010 appellant, then a 59-year-old pumpman, filed a traumatic injury claim
alleging that on October 1, 2009 he sustained a central and right-sided herniated disc at C6-7 and

1

5 U.S.C. § 8101 et seq.

a compressed right C7 nerve root as a result of shifting convertible tanks on a ship at work. He
stopped work on November 20, 2009.
By letter dated July 6, 2010, OWCP advised appellant that the evidence submitted was
insufficient to establish his claim. It requested that he submit medical evidence, including a
rationalized opinion from an attending physician which described a history of injury and
provided dates of examination and treatment, findings, test results, a diagnosis together with
medical reasons on how the October 1, 2009 incident caused or aggravated the claimed injury.
In a July 14, 2010 letter, the employing establishment controverted appellant’s claim,
contending that the evidence failed to establish that he sustained an injury in the performance of
duty as alleged.
In a medical summary form dated November 18, 2009, Dr. Sohaib A. Kureshi, a Boardcertified neurosurgeon and an employing establishment physician, advised that appellant had a
cervical herniated nucleus pulposus at C6-7. He further advised that appellant was not fit for sea
duty. Dr. Kureshi indicated that authorization for surgery to treat the diagnosed condition was
pending.
In an August 10, 2010 decision, OWCP denied appellant’s claim. It accepted that the
October 1, 2009 incident occurred as alleged, but the medical evidence was insufficient to
establish an injury causally related to the employment incident.2
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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 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.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury of an occupational disease.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
2

Following the issuance of OWCP’s August 10, 2010 decision, it received additional evidence. On appeal,
appellant has submitted new evidence. The Board cannot consider evidence that was not before OWCP at the time
of the final decision. See 20 C.F.R. § 501(c)(1); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R.
Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
3

5 U.S.C. §§ 8101-8193.

4

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

5

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999); Elaine Pendleton, supra
note 4.

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actually experienced the employment incident or exposure, which is alleged to have occurred.6
In order to meet his burden of proof to establish the fact that he sustained an injury in the
performance of duty, an employee must submit sufficient evidence to establish that he actually
experienced the employment injury or exposure at the time, place and in the manner alleged.7
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.8 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing a causal relationship between the claimed condition and the
identified factors.9 The belief of the claimant that a condition was caused or aggravated by the
employment is insufficient to establish a causal relationship.10
ANALYSIS
OWCP accepted that appellant shifted convertible tanks on a ship on October 1, 2009
while working as a pumpman. The Board finds that the medical evidence of record is
insufficient to establish that his cervical condition was caused or aggravated by the October 1,
2009 employment incident.
The sole medical evidence of record on appeal consists of Dr. Kureshi’s November 18,
2009 medical summary form. Dr. Kureshi diagnosed cervical herniated nucleus pulposus at
C6-7 for which appellant was awaiting authorization to undergo surgery and advised that he was
unfit for sea duty, Dr. Kureshi did not, however, offer any explanation as to how shifting of
convertible tanks caused or contributed to appellant’s cervical condition and disability for work.
Medical evidence that does not offer any opinion regarding the cause of an employee’s condition
is of limited probative value.11 As noted, part of appellant’s burden of proof includes the
submission of medical evidence explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by him.12 Dr. Kureshi’s November 18,
2009 report did not explain how the October 1, 2009 employment incident caused or aggravated
appellant’s diagnosed condition. Appellant failed to establish his claim.

6

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (June 1995).

7

Linda S. Jackson, 49 ECAB 486 (1998).

8

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined).
9

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

10

Charles E. Evans, 48 ECAB 692 (1997).

11

See A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004); Willie M. Miller, 53 ECAB
697 (2002); J.F., Docket No. 09-1061 (issued November 17, 2009). Furthermore, Dr. Kureshi failed to identify any
work factors. See John W. Montoya, 54 ECAB 306, 309 (2003) (a physician’s opinion must discuss whether the
employment incident described by the claimant caused or contributed to diagnosed medical condition).
12

See cases cited supra note 9.

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The Board finds that there is insufficient rationalized medical evidence of record to
establish that appellant sustained a cervical injury causally related to the accepted October 1,
2009 employment incident. Appellant did not meet 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.
CONCLUSION
The Board finds that appellant has failed to establish that he sustained a cervical injury on
October 1, 2009, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the August 10, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 13, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
DEPARTMENT OF THE ARMY, MILITARY
ENTRANCE PROCESSING STATION,
Forest Park, GA, Employer
__________________________________________

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

Docket No. 17-0433
Issued: June 9, 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 December 19, 2016 appellant filed a timely appeal from an October 5, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish an injury to her right
thumb causally related to the accepted March 29, 2016 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after OWCP rendered its October 5, 2016
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision. Therefore, this additional evidence cannot be considered by the Board for the first time on appeal. 20
C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On April 6, 2016 appellant, then a 61-year-old lead medical technician, filed a traumatic
injury claim (Form CA-1) alleging that on March 29, 2016 she stuck her right thumb with a dirty
needle while drawing blood for a Human Immunodeficiency Virus test from a military applicant.
By letter dated August 24, 2016, OWCP requested that appellant submit additional
medical evidence in support of her claim. It noted that appellant had not yet submitted any
diagnosis of a medical condition resulting from her claimed injury and afforded her 30 days to
submit evidence. Appellant did not respond.
By decision dated October 5, 2016, OWCP denied appellant’s claim for compensation. It
found that she did not submit any medical evidence containing a diagnosis related to her claimed
injury resulting from the accepted employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty, as alleged, and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
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.6
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place, and in the manner alleged.7 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.8
Causal relationship is a medical question that can generally be resolved only by
rationalized medical opinion evidence.9 A physician’s opinion on the issue of whether there is a
3

5 U.S.C. § 8101 et seq.

4

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

5

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

6

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 4 at n.5.

7

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

8

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734, 737 (2008); Bonnie A. Contreras,
supra note 4 at n.5.
9

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

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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.10
Additionally, in order to be consider3d rationalized, the opinion must be expressed in terms of a
reasonable degree of medical certainty and must be supported by sound medical rationale,
explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factors.11
ANALYSIS
On April 6, 2016 appellant filed a traumatic injury claim alleging that an injury to the
right thumb as a result of an incident at work on March 29, 2016. By decision dated October 5,
2016, OWCP found that the employment incident occurred as alleged, but denied appellant’s
claim, finding that she had not established a diagnosed condition causally related to the
March 29, 2016 employment incident.
The Board finds that appellant had not met her burden of proof to establish a claim for a
March 29, 2016 work-related injury because she had not submitted any medical evidence from a
physician establishing any medical diagnosis, causally related to the accepted employment
incident. OWCP sent appellant a development letter dated August 24, 2016, outlining
appellant’s burden of proof with regard to medical evidence, and afforded her 30 days to submit
such evidence. However, no evidence was received within that time frame. An employee who
claims benefits for a work-related condition has the burden of proof to establish by the weight of
the medical evidence a firm diagnosis of the condition claimed and a causal relationship between
that condition and factors of her federal employment.12 Without submission of this evidence,
appellant did not meet her burden of proof to establish an injury causally related to the accepted
March 29, 2016 employment incident.13
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 did not meet her burden of proof to establish an injury to
her right thumb.
10

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

11

Id.

12

See Roy L. Humphrey, 57 ECAB 238 (2005); see Naomi A. Lilly, 10 ECAB 560, 574 (1959).

13

In cases involving high risk exposure FECA does not authorize provision of preventive measures such as
vaccines and inoculations and, in general, preventive treatment is a responsibility of the employing establishment
under the provisions of 5 U.S.C. § 7901. N.S., Docket No. 07-1652 (issued March 18, 2008). OWCP regulations
pertaining to workplace hazard exposure explain that simple exposure to workplace hazard, such as an infectious
agent, does not constitute a work-related injury entitling an employee to medical treatment under FECA. See L.W.,
Docket No. 15-366 (issued April 20, 2016).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 5, 2016 is affirmed.
Issued: June 9, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
DEPARTMENT OF THE AIR FORCE,
ROBINS AIR FORCE BASE, GA, Employer
__________________________________________

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

Docket No. 10-507
Issued: October 4, 2010

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 December 14, 2009 appellant filed a timely appeal of an August 11, 2009 schedule
award decision of the Office of Workers’ Compensation Programs and an August 31, 2009
decision denying his request for reconsideration without a merit review. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether appellant has more than 10 percent binaural hearing loss for
which he received a schedule award; and (2) whether the Office properly denied appellant’s
request for reconsideration without a merit review.
FACTUAL HISTORY
On January 26, 2009 appellant, then a 57-year-old sheet metal mechanic and welder, filed
an occupational disease claim for hearing loss caused by noise exposure in the course of his
federal employment. He first realized that his hearing loss was caused or aggravated by his
employment activities on January 1, 1998. Appellant did not stop work.

On February 2, 2009 the Office advised appellant of the factual and medical evidence
necessary to establish his claim and allowed him 30 days to submit such evidence. Appellant did
not submit any evidence to the record.
In a March 6, 2009 decision, the Office denied appellant’s claim finding that he did not
establish that he sustained an injury in the performance of duty.
Appellant requested reconsideration on April 22, 2009. In a statement dated March 17,
2009, he described workplace noise exposure from jet engines, rivet guns, impact guns, auxiliary
air conditioners, auxiliary heaters, auxiliary air compressors and hammers. Appellant was
exposed to this noise 8 to 10 hours per day for six days per week. He also listed his employment
history and the types of noise exposure at each. Appellant also submitted audiogram results
dated between September 7, 1993 and January 23, 2009.
On June 16, 2009 the Office referred appellant with a statement of accepted facts to
Dr. Sean Peppard, a Board-certified otolaryngologist, for a second opinion. In a June 30, 2009
report, Dr. Peppard noted that at the beginning of appellant’s noise exposure in 1989 he had
normal hearing with normal pure-tone levels. He found that appellant showed sensorineural loss
in excess of what would be normally predicated on the basis of presbycusis, with hearing loss
worse in the left ear. Dr. Peppard advised that appellant’s workplace exposure was sufficient as
to intensity and duration to have caused the loss in question. His examination revealed clear
external canals, intact tympanic membranes bilaterally and normal drum motility. Dr. Peppard
diagnosed noise-induced sensorineural hearing loss and opined that this condition was due to
noise exposure at appellant’s federal employment as he had normal audiometries at the initiation
of his federal employment in 1989 and had noise exposure throughout his career. He
recommended noise protection and hearing aid fitting. An audiogram performed on
Dr. Peppard’s behalf on June 30, 2009 reflected testing at the frequency levels of 500, 1,000,
2,000 and 3,000 cycles per second and revealed the following decibel losses: 15, 20, 35 and 55
for the right ear and 20, 15, 40 and 65 for the left ear respectively. Based on these results and in
accordance with American Medical Association, Guides to the Evaluation of Permanent
Impairment (6th ed. 2009) (A.M.A., Guides), Dr. Peppard determined that appellant had 13.1
percent monaural hearing loss of the right ear, 18.8 percent monaural hearing loss of the left ear,
14.1 percent binaural hearing loss and 5 percent whole person impairment.
In a July 15, 2009 report, an Office medical adviser reviewed Dr. Peppard’s report and
audiometric test results. He concluded that appellant had 10 percent bilateral sensorineural
hearing loss and that the date of maximum medical improvement was June 30, 2009, the date of
Dr. Peppard’s examination.
In a July 15, 2009 decision, the Office accepted appellant’s claim for binaural noiseinduced sensorineural hearing loss.
Appellant filed a schedule award claim on July 21, 2009.
In an August 11, 2009 decision, the Office granted a schedule award for 10 percent
binaural hearing loss. The period of the award ran for 20 weeks and ran from June 30 to
November 16, 2009.
Appellant submitted a request for reconsideration on August 21, 2009.
2

In an August 31, 2009 decision, the Office denied appellant’s reconsideration request
without a merit review finding that he did not raise any substantive legal questions or submit any
new and relevant evidence.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act and its
implementing regulations set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. Where the loss of use is less than 100 percent, the amount of compensation is paid in
proportion to the percentage loss of use. The Act, however, does not specify the manner in
which the percentage loss of a member shall be determined. The method used in making such
determination is a matter which rests in the sound discretion of the Office. For consistent results
and to ensure equal justice, the Board has authorized the use of a single set of tables so that there
may be uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by
the Office for evaluating schedule losses and the Board has concurred in such adoption.1
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000 and 3,000 cycles per second, the
losses at each frequency are added up and averaged. Then, the “fence” of 25 decibels is
deducted because, as the A.M.A., Guides points out, losses below 25 decibels result in no
impairment in the ability to hear everyday speech under everyday conditions. The remaining
amount is multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss. The
binaural loss is determined by calculating the loss in each ear using the formula for monaural
loss; the lesser loss is multiplied by five, then added to the greater loss and the total is divided by
six to arrive at the amount of the binaural hearing loss. The Board has concurred in the Office’s
adoption of this standard for evaluating hearing loss.2
ANALYSIS -- ISSUE 1
Appellant submitted a hearing loss claim and the Office developed the claim by referring
him to Dr. Peppard. On June 30, 2009 Dr. Peppard examined appellant and an audiogram was
obtained on the physician’s behalf. He found that appellant’s noise exposure in his federal
employment was sufficient to cause binaural hearing loss.
An Office medical adviser applied the Office’s standard procedures to the June 30, 2009
audiogram. It tested decibel losses at 500, 1,000, 2,000 and 3,000 cycles per second and
recorded decibel losses of 15, 20, 35 and 55 respectively in the right ear. The total decibel loss
in the right ear is 125. When divided by 4, the result is an average hearing loss of 31.25 decibels.
The average hearing of 31.25 is reduced by the fence of 25 decibels to equal 6.25, which when
multiplied by the established factor 1.5, resulted in 9.38 percent impairment of the right ear. The
audiogram tested decibel losses for the left ear at 500, 1,000, 2,000 and 3,000 cycles per second
1

Harry Butler, 43 ECAB 859 (1992); see Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700, Exhibit 1 (January 2010) (applying the sixth edition of the A.M.A., Guides effective
May 1, 2009).
2

E.S., 59 ECAB ___ (Docket No. 07-1587, issued December 10, 2007); see also A.M.A., Guides 250-53
(6 ed. 2009).
th

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and recorded decibel losses of 20, 15, 40 and 65 respectively. The total decibel loss in the left
ear is 140. When divided by four, the result is an average hearing loss of 35 decibels. The
average hearing loss of 35 is reduced by the fence of 25 decibels to equal 10, which when
multiplied by the established factor of 1.5, resulted in 15 percent impairment of the left ear. The
Office medical adviser then proceeded to calculate appellant’s binaural hearing loss. The 9.38
percent hearing loss of the right ear, when multiplied by 5, yielded a product of 46.9. The 46.9
was then added to 15 percent hearing loss for the left ear to obtain a total of 61.9. The 61.9 was
then divided by 6, in order to calculate a binaural hearing loss of 10.31, rounded to 10 percent.3
The evidence of record establishes that appellant has a 10 percent binaural hearing loss.
Although Dr. Peppard stated that appellant had 13.1 percent right ear hearing loss, 18.8 percent
left ear hearing loss and 14.1 percent binaural hearing loss, he did not explain this calculation in
conformance with the A.M.A., Guides. The Office medical adviser set forth his calculations
based on audiometric results obtained by Dr. Peppard. He applied the Office’s standard for
evaluating hearing losses and to find a 10 percent binaural hearing loss. There is no other
medical evidence showing a greater loss pursuant to this standard.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a), the
Office’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.4 When a claimant fails to meet
one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.5
ANALYSIS -- ISSUE 2
Appellant’s request for reconsideration consists of an appeal request form with a
checkmark next to “reconsideration.” He did not explain any reasons why he disagreed with the
Office’s decision. Appellant does not satisfy any of the three criteria required to reopen a case
for merit review. His request does not attempt to show that the Office erroneously applied the
law as he did not identify a point of law that was erroneously applied or interpreted. Appellant’s
request form also did not advance any new relevant legal arguments not previously considered
by the Office. In addition, he did not submit any new medical evidence addressing the issue of
hearing loss impairment due to noise exposure at his workplace. This is particularly important as
the underlying issue is medical in nature, regarding whether appellant has more than 10 percent
binaural hearing loss due to his federal employment. As a result, no relevant and pertinent new
evidence supports appellant’s request for reconsideration.

3

See J.P., 60 ECAB ___ (Docket No. 08-832, issued November 13, 2008) (the policy of the Office is to round the
calculated percentage of impairment to the nearest whole number).
4

20 C.F.R. § 10.606(b)(2).

5

Id. at § 10.608(b).

4

On appeal, appellant asserts that he should be properly compensated for sustaining severe
hearing loss as indicated by two outside medical opinions. Although appellant submitted new
medical evidence with his appeal, the Board may only review evidence that was in the record at
the time the Office issued its final decision.6 Under the Office’s standardized procedures for
determining hearing loss impairment, the Office found that appellant had 10 percent binaural
hearing impairment and issued him a schedule award for this amount. Appellant also asserts that
he has difficulty hearing conversations and must increase the sound level while watching
television. The Board has also held that factors such as limitations on daily activities do not go
into the calculation of a schedule award.7
CONCLUSION
The Board finds that appellant has more than 10 percent binaural hearing loss for which
he received a schedule award. The Board also finds that the Office properly denied appellant’s
request for reconsideration without a merit review.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated August 31 and 11, 2009 are affirmed.
Issued: October 4, 2010
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

6

Id. at § 501.2(c).

7

E.L., 59 ECAB ___ (Docket No. 07-2421, issued March 10, 2008).

5