United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARTMENT OF THE AIR FORCE, 99TH
MEDICAL GROUP, NELLIS AIR FORCE
BASE, NV, Employer
__________________________________________

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

Docket No. 21-1165
Issued: March 1, 2022

Case Submitted on the Record

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

JURISDICTION
On July 19, 2021 appellant filed a timely appeal from a February 11, 2021 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated May 27, 2020, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case. 2

1
2

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On March 10, 2015 appellant, then a 63-year-old nurse educator, filed an occupational
disease claim (Form CA-2) alleging that she sustained an aggravation of her degenerative disc
disease due to constant sitting, staring at a computer screen, and inputting data while in the
performance of duty.
In a July 22, 2014 report, Dr. Shirley Rodriguez, an osteopath, recounted appellant’s
complaints of mid-thoracic, left-sided pain medial to the scapular area. She reported physical
examination findings of abnormal edema bilaterally in appellant’s extremities. Dr Rodriguez
assessed hypertension, osteoarthritis, gastroesophageal reflux disease, thoracic region strain, and
venous insufficiency.
In an October 28, 2014 report, Dr. Wesley Johnson, a Board-certified orthopedic surgeon,
recounted that appellant had worked for the employing establishment for a number of years and
complained of chronic pain issues in her neck and back. On physical examination, he noted
tenderness and mild swelling in her left wrist and some tenderness over the tuberosity of her right
shoulder. Dr. Johnson indicated that appellant had a chronic condition that may have been
exacerbated through her primary care.
Appellant resigned from the employing establishment, effective March 13, 2015.
In a letter dated May 12, 2015, the employing establishment controverted appellant’s claim
alleging that she had not submitted medical evidence of the alleged injury. It also noted that she
had previous fall injuries in 2013 and 2014.
In statements dated October 22, 2014 and May 2, 2015, appellant explained that she was
diagnosed with degenerative disc disease before she began working for the employing
establishment in 2012. She reported that she was exposed to constant sitting, staring at screens,
and inputting data at work and experienced painful, cramping hands, eye strain, headaches, and
back pain.
By decision dated June 16, 2015, OWCP denied appellant’s occupational disease claim,
finding that she had not established that her diagnosed thoracic and lumbar spine conditions were
causally related to the accepted factors of her federal employment.

3

Docket No. 18-1280 (issued March 12, 2019).

2

On June 29, 2015 appellant requested reconsideration.
In reports dated November 6, 2014 through April 20, 2015, Dr. Rodriguez provided
examination findings and assessed right shoulder pain, cervicalgia, degenerative joint disease,
osteoarthritis, thoracic strain, cervical strain, tenosynovitis of the thumb, and right shoulder
supraspinatus tendon tear.
In a June 12, 2015 attending physician’s report (Form CA-20), Dr. Rodriguez noted
appellant’s history of lumbar degenerative joint disease and diagnosed supraspinatus tendon tear
and degeneration of the cervical, thoracic and lumbar spine. She checked a box marked “Yes”
indicating that the diagnosed conditions were caused or aggravated by appellant’s employment
and explained that appellant worked at a desk job, which placed a strain on her spine, shoulders,
and wrist.
By decision dated September 25, 2015, OWCP denied modification of the June 16, 2015
decision.
On November 20, 2015 appellant requested reconsideration.
Appellant submitted reports dated July 16 through October 29, 2015 from Dr. John M.
Baldauf, a Board-certified orthopedic surgeon, who indicated that he treated her for complaints of
right shoulder pain after a slip and fall injury approximately seven months prior. On initial
examination of the right shoulder, Dr. Baldauf observed positive Neer and Hawkins signs and no
pain or swelling. He diagnosed shoulder impingement syndrome, bilateral shoulder tendinitis, and
bilateral shoulder joint pain.
By decision dated February 9, 2016, OWCP denied modification of the September 25,
2015 decision.
On March 21, 2016 appellant requested reconsideration.
In a May 11, 2016 statement, appellant indicated that she continued to be in pain on a level
of 7 to 10 on most days. She alleged that it was common for a person with mild-to-moderate
degenerative joint disease that was previously not problematic to experience a major exacerbation
of her condition from a sedentary job and a hard fall onto cement.
By decision dated June 17, 2016, OWCP denied modification of the February 9, 2016
decision.
On September 7, 2016 appellant requested reconsideration. She contended that she had
submitted all required medical documents from her physicians. Appellant asserted that her federal
employment temporarily aggravated her preexisting degenerative joint condition and that the
October 2014 fall made the aggravation permanent.
In a February 22, 2016 report, Dr. Archie C. Perry, a Board-certified orthopedic surgeon,
indicated that he treated appellant for complaints of low back pain radiating into her bilateral legs.
He discussed her diagnostic reports and provided examination findings. Dr. Perry diagnosed
lumbar degenerative disc disease, lumbar spinal stenosis, and acquired lumbar spondylolisthesis .

3

In March 16 and 30, 2016 reports, Dr. Baldauf discussed appellant’s history of injury and
provided physical examination findings. He diagnosed right hip joint pain, lumbosacral
degenerative disc disease with radiculopathy, lumbar spinal stenosis, acquired lumbar
spondylolisthesis, and lumbago.
In an April 27, 2016 report, Dr. Willis Y. Wu, Board-certified in anesthesiology and pain
medicine, noted lumbar examination findings of mildly limited range of motion and tenderness in
the lumbosacral junction. He diagnosed lumbar intervertebral disc degeneration, lumbar
radiculopathy, lumbar spondylosis without myelopathy, and hip osteoarthritis. Dr. Wu continued
to treat appellant and provided medical reports dated May 13 and June 23, 2016.
By decision dated April 20, 2018, OWCP denied modification of the June 17, 2016
decision.
Appellant appealed to the Board. By decision dated March 12, 2019, the Board affirmed
OWCP’s April 20, 2018 decision, finding that she had not met her burden of proof to establish
causal relationship between her diagnosed medical conditions and accepted factors of her federal
employment.
On October 7, 2019 appellant requested reconsideration. She submitted various articles
about injuries that result from sitting for long periods of time.
By decision dated May 27, 2020, OWCP denied modification.
On January 22, 2021 appellant requested reconsideration. She indicated that she continued
to have pain and suffering due to sitting for six hours a day on a poorly prepared workstation.
Appellant explained that she was diagnosed with degenerative joint disease in 2000, but her
condition was not problematic until she started to work for the employing establishment. She
asserted that her sedentary job duties temporarily aggravated her degenerative joint disease and
her fall in October 2014 permanently aggravated her condition.
By decision dated February 11, 2021, OWCP denied appellant’s request for
reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his or her own motion or on application.4
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

4

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

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OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.5
A request for reconsideration must be received by OWCP within one y ear of the date of
OWCP’s decision for which review is sought. 6 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 7 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. 8
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
With her January 22, 2021 request for reconsideration, appellant submitted a statement
alleging that she did not experience problems with her degenerative joint disease until she began
to work for the employing establishment. She asserted that her sedentary job duties temporarily
aggravated her degenerative joint disease and her fall in October 2014 permanently aggravated her
condition. Appellant’s reconsideration request does not advance a new legal argument not
previously considered nor does it show that OWCP erroneously applied or interpreted a specific
point of law. Her argument is substantially similar to that which was previously considered and
discussed in OWCP’s April 20, 2018 decision. 9 Consequently, appellant is not entitled to further
review of the merits of her claim based on either the first or second above-noted requirements
under 20 C.F.R. § 10.606(b)(3). 10

5

20 C.F.R. § 10.606(b)(3); see P.M., Docket No. 20-0780 (issued November 24, 2020); J.W., Docket No. 19-1795
(issued March 13, 2010); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
6

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.
7

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

8

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

9

See T.S., Docket No. 20-0968 (issued August 17, 2021); see also J.V., Docket No. 19-1554 (issued
October 9, 2020); Eugene F. Butler, 36 ECAB 393, 398 (1984).
10

20 C.F.R. § 10.606(b)(3)(i) and (ii); P.M., Docket No. 20-0780 (issued November 24, 2020); G.Q., Docket No.
18-1697 (issued March 21, 2019); Alan G. Williams, 52 ECAB 180 (2000).

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Furthermore, the Board finds that appellant has not provided any relevant and pertinent
new evidence not previously considered. 11 Thus, appellant is also not entitled to a review of the
merits of her claim based on the third above-noted requirement under section 10.606(b)(3).12
As appellant has not met any of the regulatory requirements under 20 C.F.R.
§ 10.606(b)(3), pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.13
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the February 11, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 1, 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
11

T.H., Docket No. 20-1598 (issued June 2, 2021); F.D., Docket No. 19-0890 (issued November 8, 2019).

12

20 C.F.R. § 10.606(b)(3)(iii); J.V., Docket No. 19-1554 (issued October 9, 2020); T.M., Docket No. 19-0535
(issued July 25, 2019).
13

S.M., Docket No. 21-0392 (issued August 12, 2021); D.G., Docket No. 19-1348 (issued December 2, 2019); A.R.,
Docket No. 16-1416 (issued April 10, 2017); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006)
(when a request for reconsideration does not meet at least one of the three requirements enumerated under section
10.606(b), OWCP will deny the request for reconsideration without reopening the case for a review on the merits).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.Z., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Phoenix, AZ,
Employer
__________________________________________

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

Docket No. 16-1134
Issued: June 16, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 6, 2016 appellant filed a timely appeal from an April 18, 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 a recurrence of
disability beginning December 3, 2015 causally related to her February 17, 2015 employment
injury.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence to OWCP after the April 18, 2016 decision was
issued. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision. Therefore, the Board lacks jurisdiction to review this additional evidence. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On February 18, 2015 appellant, then a 48-year-old postal support employee (PSE) clerk,
filed a traumatic injury claim (Form CA-1) for “lower back pain” that allegedly arose on
February 17, 2015 due to offloading trays of mail into cages. On March 6, 2015 OWCP
accepted appellant’s claim for thoracic back sprain. She experienced periods of intermittent
wage-loss, and worked part-time, limited-duty beginning April 30, 2015.
Effective
August 29, 2015, appellant resumed her full-time, regular duties.3
On January 20, 2016 appellant filed a recurrence of disability claim (Form CA-2a)
alleging that on December 3, 2015 she experienced a recurrence of disability due to her
February 17, 2015 employment injury. She stated that since she had returned to work her pain
had become intense and was bothering her most of the time. Appellant awoke with pain in her
lower back after a workday and related it to her prior work injury because the pain was located in
the same area. She reported that she had sustained no intervening injuries between her original
injury on February 17, 2015 and the alleged recurrence on December 3, 2015. The employing
establishment challenged appellant’s claim for recurrence of disability as she had not reported
any pain or other issues to her supervisor and had failed to submit sufficient medical evidence
establishing causal relationship.
In a December 8, 2015 report, Dr. Adarmes asserted that appellant experienced a back
pain flare-up “[l]ast Friday while at work [when] [appellant] was bending and twisting while
sweeping.” He reported that she had great difficulty rising out of a chair and climbing up onto
the examination table. Dr. Adarmes diagnosed thoracic and lumbar sprain and took appellant off
work for 10 days. In a December 8, 2015 work excuse note, he took her off work from
December 5 to 17, 2015 due to her work-related injury.
On January 12, 2016 Dr. Adarmes reported that appellant had visited the emergency
room since her last visit. Appellant took pain medication prior to physical therapy, passed out,
and woke up in the emergency room. Dr. Adarmes noted that she had experienced increased
pain when getting out of a chair or working. He diagnosed syncopal episode and recommended
avoidance of all morphine-derived opioids. In a January 12, 2016 work excuse note,
Dr. Adarmes took appellant off work for three weeks due to her work-related back injury.
In a January 22, 2016 duty status report (Form CA-17), Dr. Adarmes advised that
appellant was still able to resume work.
In a duty status report (Form CA-17) dated February 10, 2016, Dr. Adarmes released
appellant to full-time work on February 11, 2016 with the following restrictions: standing in 30minute intervals for a total of four hours per day, walking in 30-minute intervals for a total of
two hours per day, pulling and pushing no more than 5 pounds continuously and 20 pounds
intermittently, and no bending, stooping, or twisting.

3

In a report dated August 27, 2015, Dr. Demitri A. Adarmes, a Board-certified internist and physiatrist, released
appellant to return to work without restrictions. He diagnosed both thoracic and lumbar sprains, and advised that the
latter condition should be added to appellant’s claim.

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In a March 8, 2016 letter, OWCP advised appellant of the deficiencies of her recurrence
claim. It requested additional evidence in support of the claim and afforded appellant 30 days to
respond to its inquiries.
In response, appellant submitted two reports from Dr. Adarmes dated December 17, 2015
indicating that he had administered a lumbar steroid injection that day and had taken her off
work through January 12, 2015 for her work-related injury. She further submitted a January 22,
2016 operative report from Dr. Adarmes who administered fluoroscopically-guided left L3-4,
L4-5, and L5-S1 diagnostic facet joint nerve blocks.
In a February 10, 2016 progress report, Dr. Adarmes asserted that appellant went to
physical therapy following her procedure and was dismissed because she was doing well. He
advised that she was capable of performing full-time limited duty.
On March 2, 2016 appellant accepted a job offer from the employing establishment as a
full-time modified PSE clerk with the following restrictions: sitting for an average of four hours
per day, walking/standing (while changing positions as necessary for comfort) for an average of
four hours per day, and lifting/carrying up to five pounds no more than two hours per day.
OWCP referred appellant, along with a statement of accepted facts and the medical
evidence of record, to Dr. Michael A. Steingart, a Board-certified orthopedic surgeon, for a
second opinion examination to determine the nature and extent of her accepted conditions. In his
March 14, 2016 report, Dr. Steingart diagnosed thoracic sprain and degenerative thoracic disc.
He also diagnosed lumbar sprain/strain and an annular disc tear at L3-4, which he indicated were
related to appellant’s employment injury. Dr. Steingart explained that twisting, turning, and
lifting could aggravate a preexisting issue related to the lumbar and thoracic spine. He opined
that appellant’s preexisting condition of a degenerative thoracic and lumbar spine was
temporarily aggravated by the work injury, which had resolved. Dr. Steingart concluded that she
had reached maximum medical improvement and no additional treatment was needed. He
opined that appellant was not capable of returning to her date-of-injury position “because of the
aggravation of [appellant’s] lumbar and thoracic spine, which [had] occurred on two occasions
even after she was better.” Dr. Steingart advised that she was capable of performing a sedentary
to a light-duty type of job with the following restrictions: one hour of twisting, bending, and
stooping, lifting up to 10 pounds for one to two hours per day, squatting one hour per day, and
kneeling one hour per day.
In a March 15, 2016 report, Dr. Adarmes opined that appellant was capable of full duty
for four hours per day followed by light duty for four hours per day with restrictions on lifting,
carrying, pushing, pulling, and torqueing.
On March 29, 2016 Dr. Adarmes released appellant to full-time full-duty work without
restrictions.
In an April 4, 2016 report of termination of disability and/or payment (Form CA-3), the
employing establishment indicated that appellant resumed her full duties without restrictions
effective March 29, 2016.

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By decision dated April 18, 2016, OWCP denied appellant’s recurrence claim as the
medical evidence of record was insufficient to establish that she sustained a recurrence of
disability on December 3, 2015 causally related to her February 17, 2015 employment injury.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.4 Recurrence of disability also means an inability to work that takes place
when a light-duty assignment made specifically to accommodate an employee’s physical
limitations due to his or her work-related injury or illness is withdrawn or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical
limitations.5 Generally, a withdrawal of a light-duty assignment would constitute a recurrence of
disability where the evidence established continuing injury-related disability for regular duty.6 A
recurrence of disability does not apply when a light-duty assignment is withdrawn for reasons of
misconduct, nonperformance of job duties or other downsizing or where a loss of wage-earning
capacity determination is in place.7
Absent a change or withdrawal of a light-duty assignment, a recurrence of disability
following a return to light duty may be established by showing a change in the nature and extent
of the injury-related condition such that the employee could no longer perform the light-duty
assignment.8
Where an employee claims a recurrence of disability due to an accepted employmentrelated injury, he or she has the burden of proof to establish that the recurrence is causally related
to the original injury.9 This burden includes the necessity of furnishing evidence from a
qualified physician who concludes that the condition is causally related to the employment
injury.10 The physician’s opinion must be based on a complete and accurate factual and medical
history and supported by sound medical reasoning.11

4

20 C.F.R. § 10.5(x).

5

Id.

6

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

7

20 C.F.R. §§ 10.5(x), 10.104(c) and 10.509; see Federal (FECA) Procedure Manual, id. at Chapter 2.1500.2b.

8

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

9

20 C.F.R. § 10.104(b); see Federal (FECA) Procedure Manual, supra note 6 at Chapter 2.1500.5 and 2.1500.6.

10

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

11

Id. at 319.

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ANALYSIS
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
The claimant has the burden of proof to establish her claim for compensation.
arbiter.
However, OWCP shares responsibility in the development of the evidence to see that justice is
done.13 In this instance, it referred appellant with a statement of accepted facts and the medical
evidence of record to Dr. Steingart for a second opinion examination to determine the nature and
extent of her accepted conditions.
12

Based on a review of Dr. Steingart’s March 14, 2016 report, the Board finds that he failed
to fully explain the nature and extent of appellant’s accepted conditions and related disability.
He asserted that twisting, turning, and lifting could aggravate a preexisting issue related to the
lumbar and thoracic spine and opined that appellant’s preexisting condition of a degenerative
thoracic and lumbar spine was temporarily aggravated by the work injury. Dr. Steingart
concluded that appellant’s temporary aggravation had resolved, but advised that she was not
capable of returning to her date-of-injury position and provided work restrictions. A physician’s
opinion on causal relationship must be based on a complete factual and medical background and
must be supported by medical rationale.14 Under the circumstances, additional clarification is
necessary.15 Once OWCP undertakes development of the record, it must do a complete job in
procuring medical evidence that will resolve the relevant issues in the case.16
On remand OWCP shall obtain clarification from Dr. Steingart regarding whether
appellant’s claimed recurrence of disability on or after December 3, 2015 is causally related to
her February 17, 2015 employment injury. After OWCP has further developed the record, it
shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

12

See S.L., Docket No. 16-0202 (issued August 23, 2016).

13

William J. Cantrell, 34 ECAB 1223 (1983).

14

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

15

See Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter
3.500.3f(2) (July 2011).
16

Richard F. Williams, 55 ECAB 343, 346 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the April 18, 2016 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: June 16, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, Bremerton, WA,
Employer
__________________________________________

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Appearances:
John Eiler Goodwin, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-742
Issued: August 8, 2014

Case Submitted on the Record

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

JURISDICTION
On February 19, 2014 appellant, through her representative, filed for review of a
September 10, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).1
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant’s employment injury caused disability for work.

1

Appellant timely requested oral argument, pursuant to section 501.5(b) of the Board’s Rules of Procedure. 20
C.F.R. § 501.5(b). The Board denied the request in a July 1, 2014 order, on the grounds that appellant’s arguments
could be adequately addressed based on a review of the case record. Order Denying Request for Oral Argument,
Docket No. 14-742 (issued July 1, 2014).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 1, 2008 appellant, a 67-year-old supervisory budget analyst, filed an
occupational disease claim alleging that she sustained a pulmonary injury in the performance of
duty as a result of exposure to polychlorinated biphenyls (PCBs), asbestos and mold spores.
OWCP denied her claim on September 21, 2009, finding that she failed to establish causal
relationship. It denied reconsideration on September 1, 2010.
Appellant appealed to the Board and, following oral argument, the Board issued an
October 13, 2011 decision setting aside the September 1, 2010 OWCP decision and remanding
the case for a merit review. The Board found that the June 11, 2010 report of Dr. Janette
Harbottle Hope, a Board-certified family practitioner, constituted new and relevant evidence not
previously considered. Dr. Hope stated that appellant’s exposure to a heavily damaged
workplace was the most likely cause of her mycobacterium avium intracellular (MAI) infection
and hypersensitivity pneumonitis.3
OWCP found a conflict in medical opinion and referred the case to Dr. Paul Darby,
Board-certified in occupational and environmental medicine, to determine whether appellant’s
diagnosed lung conditions were medically connected to the accepted workplace exposures. It
also asked Dr. Darby the following: “If the diagnosis is established and determined to be related
to the claimant’s employment exposure, please indicate whether she had any disability from
work.”
On June 20, 2012 Dr. Darby reported that he would answer the questions posed. He
found that appellant had diagnosed lung conditions that were directly caused by the accepted
employment activities. On the issue of disability, Dr. Darby noted: “The claimant’s level of
impairment from the work-related condition is currently severe, based upon her needing to stop
for breath after walking about 100 yards or for a few minutes on level ground.”
On July 30, 2012 OWCP accepted appellant’s claim for pulmonary infection due to other
mycobacteria, and unspecified allergic alveolitis and pneumonitis. It advised that she could
claim lost time from work using the appropriate form.
Appellant filed a claim alleging total disability for work beginning September 3, 2008.4
OWCP advised that the medical evidence received to date was insufficient to establish that the
accepted conditions disabled her for the period claimed. It requested a narrative medical report
including, among other things, a thorough explanation with objective findings as to how
appellant’s condition had worsened such that she was no longer able to perform the duties of her
position beginning September 3, 2008.
Appellant submitted an attending physician’s form report dated September 17, 2012,
from Dr. Hope who found her totally disabled beginning September 3, 2008.

3

Docket No. 11-815 (issued October 13, 2011).

4

The record indicates that appellant voluntarily retired on September 3, 2008.

2

In a decision dated January 25, 2013, OWCP denied appellant’s wage-loss claim. It
found that the form report did not explain how her condition worsened such that she could not
work beginning September 3, 2008, the date she retired from federal employment.
On September 10, 2013 an OWCP hearing representative affirmed the January 25, 2013
decision. The hearing representative found no well-reasoned medical opinion to support that
appellant was totally disabled at the time she retired. The hearing representative noted that
reports from 2007 and 2008 did not address whether appellant was disabled from any activity.
On May 2, 2008 appellant’s symptoms were noted to be fairly low grade and she was described
as “certainly not systemically ill.” Her symptoms improved through 2008.
On appeal, appellant’s representative argues that the opinion of the impartial medical
specialist requires clarification on the issue of disability.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of her duty.5 “Disability” means the incapacity,
because of an employment injury, to earn the wages the employee was receiving at the time of
injury. It may be partial or total.6
A claimant seeking benefits under FECA has the burden of proof to establish the essential
elements of his or her claim by the weight of the evidence,7 including that he or she sustained an
injury in the performance of duty and that any specific condition or disability for work for which
he or she claims compensation is causally related to that employment injury.8
OWCP is not a disinterested arbiter, however, but rather performs the role of adjudicator
on the one hand and gatherer of the relevant facts and protector of the compensation fund on the
other, a role that imposes an obligation on OWCP to see that its administrative processes are
impartially and fairly conducted.9 While the claimant has the burden to establish entitlement to
compensation, OWCP shares responsibility in the development of the evidence.10 When OWCP
undertakes to develop the medical aspects of a case, it has the responsibility to obtain an
evaluation that will resolve the issues involved.11

5

5 U.S.C. § 8102(a).

6

20 C.F.R. § 10.5(f).

7

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

8

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

9

Thomas M. Lee, 10 ECAB 175, 177 (1958).

10

Mary A. Barnett (Frederick E. Barnett), 17 ECAB 187, 189 (1965).

11

Mae Z. Hackett, 34 ECAB 1421, 1426 (1983).

3

ANALYSIS
When OWCP referred the case to Dr. Darby, the specialist in occupational and
environmental medicine, it asked him whether appellant had any disability for work. Although
Dr. Darby stated that he would answer the questions posed, he did not fully address the question
of her injury-related disability. He responded only that appellant’s level of impairment was
currently severe. It did not adequately explain, for purposes of paying wage-loss compensation,
when the injury-related disability began. Dr. Darby was not fully responsive to OWCP’s
inquiries.
As OWCP undertook development of the medical evidence on the issue of injury-related
disability, the Board finds that it has a responsibility to develop the evidence to a satisfactory
conclusion.12 Accordingly, the Board will set aside OWCP’s September 10, 2013 decision and
will remand the case for a supplemental report from Dr. Darby on the issue of injury-related
disability. After such further development as may become necessary, OWCP shall issue a
de novo decision on appellant’s entitlement to wage-loss compensation.
CONCLUSION
The Board finds that this case is not in posture for decision on whether the accepted
employment injury caused disability for work.

12

In doing so, OWCP should rephrase the question to better procure the information it requires. See William N.
Saathoff, 8 ECAB 769 (1956) (finding that the deficiency in the medical evidence adduced was attributable to
OWCP, then known as the Bureau of Employees’ Compensation).

4

ORDER
IT IS HEREBY ORDERED THAT the September 10, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action.
Issued: August 8, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, North Reading, MA,
Employer
__________________________________________

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

Docket No. 18-0074
Issued: August 1, 2019

Case Submitted on the Record

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

JURISDICTION
On October 12, 2017 appellant, through counsel, filed a timely appeal from an August 23,
2017 merit decision of the Office of Workers’ Compensation Programs. Pursuant to the Federal
Employees’ Compensation Act2 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.3
1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). No
contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a representative,
prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The record provided to the Board includes evidence received after OWCP issued its August 23, 2017 decision. The
Board’s jurisdiction is limited to the evidence in the case record that was before OWCP at the time of its final decision.
Therefore, the Board is precluded from considering this new evidence for the first time on appeal. 20 C.F.R.
§ 501.2(c)(1).

ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $289.07 for the period from April 1 through May 27,
2017; and (2) whether OWCP properly found that appellant was at fault in the creation of the
overpayment and therefore not entitled to waiver of the recovery of the overpayment.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances as set forth
in the prior decision are incorporated herein by reference. The relevant facts are set forth below.
On October 2, 1992 appellant, then a 35-year-old letter sorting machine clerk, filed an
occupational disease claim (Form CA-2) alleging an ulnar nerve injury due to factors of her federal
employment. On December 8, 1992 OWCP accepted her claim for left ulnar nerve entrapment.
Appellant subsequently filed additional claims and on August 23, 1994 OWCP also accepted that
she sustained employment-related tendinitis of the right hand.
On November 1, 1998 appellant filed an occupational disease claim alleging that she had
developed lateral epicondylitis, noting that she had missed work from October 16 to 21, 1998 due
to this condition. She stopped work on June 14, 1999 and did not return. By decision dated
August 19, 1999, OWCP accepted appellant’s claim for lateral epicondylitis and paid her wage-loss
compensation and placed her on the periodic rolls effective March 26, 2000.
On December 31, 2009 OWCP issued an updated letter outlining appellant’s entitlement to
compensation benefits. It noted that she was entitled to wage-loss compensation every 28 days in
the amount of $123.00.
In a form dated October 21, 2010, appellant enrolled in direct deposit for her compensation
payments. OWCP received her enrollment form for direct deposit on the same date.
In a record of a telephone conversation (CA-110) dated September 9, 2016, appellant stated
that she was considering selecting retirement benefits from the Office of Personnel Management
(OPM) rather than FECA benefits. An OWCP representative noted that he would send her a form
for election of benefits.
In a Form CA-1105 dated January 11, 2017, appellant elected to receive Civil Service
Retirement System/Federal Employees Retirement System (CSRS/FERS) benefits in preference to
benefits to which she may be entitled under FECA for OWCP File No. xxxxxx584, effective
April 1, 2017.
On February 23, 2017 OWCP advised OPM that appellant had elected OPM retirement
benefits in lieu of wage-loss compensation benefits under FECA for OWCP File No. xxxxxx584.
It requested that OPM commence monthly annuity payments, effective April 2, 2017, noting that
the date had been adjusted due to the periodic rolls payment ending on April 1, 2017.
4

Docket No. 08-1348 (issued July 6, 2009); Docket No. 04-1379 (issued October 29, 2004).

2

In a letter dated May 5, 2017, an OWCP representative informed appellant that her election
of benefits on January 11, 2017 had been received under a different case number, and that OWCP
would have to terminate benefits under OWCP File No. xxxxxx004 as well.
By letter dated May 9, 2017, OWCP noted that appellant was entitled to compensation
benefits in the amount of $142.00 for the period from April 2 and 29, 2017. It noted that, while
appellant had submitted an election of benefits form under File No. xxxxxx584, OWCP required
completion of an election form for each claim under which she was in receipt of wage-loss
compensation benefits. OWCP enclosed an election form for appellant to fill out for File No.
xxxxxx584.
By letter dated May 18, 2017, OWCP informed the Social Security Administration that,
while appellant had four accepted OWCP claims, her sole remaining claim upon which wage-loss
compensation was being paid was the present claim, and that an election of benefits form was
pending return from appellant.
On May 23, 2017 appellant elected OPM retirement benefits in OWCP File No. xxxxxx004,
effective April 1, 2017.
In an overpayment computer worksheet dated June 5, 2017, OWCP noted three
compensation payments paid on or subsequent to April 1, 2017, including a payment of $5.07 on
April 1, 2017, for that single day, a payment of $142.00 on April 29, 2017 for the period from
April 2 through 29, 2017, and a payment of $142.00 on May 27, 2017 for the period from April 30
through May 27, 2017.
A review of appellant’s compensation history reveals that OWCP paid appellant $142.00 on
April 1, 2017 for the period from March 5 through April 1, 2017, $142.00 on April 29, 2017 for the
period from April 2 through 29, 2017, and $142.00 on May 27, 2017 for the period from April 30
through May 27, 2017.
On June 29, 2017 OWCP issued a preliminary determination that an overpayment of
compensation was created in the amount of $289.07 for the period from April 1 through
May 27, 2017. It explained that the overpayment occurred because appellant received both FECA
benefits and OPM retirement benefits during this period, which resulted in a prohibited dual benefit
payment. Appellant was found to be at fault in the creation of the overpayment because she was
aware or should have been aware that she was not entitled to FECA compensation subsequent to the
effective date of her election of OPM retirement benefits. OWCP provided her an overpayment
action request and an overpayment recovery questionnaire (OWCP-20) and afforded her 30 days to
respond.
In a completed overpayment action request dated July 20, 2017, appellant contested that an
overpayment had occurred, as well as the finding of fault. In an attached letter, she explained that
she did not believe the overpayment was her fault, noting that she had submitted her election of
benefits and assumed that OWCP would properly administer her benefits. Appellant noted that she
had not been aware that she needed to submit a separate election of benefits form for each accepted
injury. She further explained that repayment would cause her financial hardship, as she had not yet
received retirement benefit payments from OPM.

3

By decision dated August 23, 2017, OWCP finalized the preliminary overpayment
determination finding that appellant was at fault in the receipt of an overpayment of compensation
in the amount of $289.07 and, thus, she was not entitled to waiver of recovery of the overpayment.
Repayment was requested in full.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the performance
of duty.5 Section 8116(a) states that, while an employee is receiving workers’ compensation
benefits, he or she may not receive salary, pay, or remuneration of any type from the United States,
except in return for services actually performed or for certain payments related to service in the
Armed Forces, including benefits administered by the Department of Veterans Affairs, unless such
benefits are payable for the same injury or the same death being compensated for under FECA.6
Section 10.421(a) of OWCP’s implementing regulations provides that a beneficiary may not receive
wage-loss compensation concurrently with a federal retirement or survivor annuity.7 The
beneficiary must elect the benefit that he or she wishes to receive.8 OWCP procedures also explain
that the employee must make an election between FECA benefits and OPM benefits. The employee
has the right to elect the monetary benefit which is the more advantageous. This policy also applies
to reemployed annuitants.9
ANALYSIS -- ISSUE 1
The Board finds that OWCP improperly determined that appellant received an overpayment
of compensation.
OWCP based its overpayment finding on its determination that appellant had received
prohibited dual OPM and FECA benefits for the period from April 1 through May 27, 2017. While
the record reflects that appellant received FECA benefits for this period, the Board finds that OWCP
has not established that she also received OPM benefits for this period.10
On May 18, 2017 OWCP notified OPM that appellant’s compensation would continue under
OWCP File No. xxxxxx004 pending receipt of an election of benefits form from her to receive OPM
benefits in lieu of FECA benefits. On May 23, 2017 appellant elected OPM retirement benefits,
effective April 1, 2017, for File No. xxxxxx004. However, there is no evidence of record which
establishes that she actually received OPM benefits for the period from April 1 through
5

5 U.S.C. § 8102(a).

6

Id. at § 8116(a).

7

20 C.F.R. § 10.421(a).

8

Id.

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4.a (January 1997); see also
R.S., Docket No. 11-0428 (issued September 27, 2011); Harold Weisman, Docket No. 93-1335 (issued March 30, 1994).
10

See R.R., Docket No. 18-0032 (issued May 3, 2018).

4

May 27, 2017.11 The record is also silent as to whether OPM reimbursed OWCP for FECA benefits
paid to appellant during the period in question.
The Board thus finds that OWCP improperly determined that appellant received an
overpayment of compensation in the amount of $289.07 for the period from April 1 through
May 27, 2017.12
CONCLUSION
The Board finds that OWCP improperly determined that appellant received an overpayment
of compensation in the amount of $289.07 for the period from April 1 through May 27, 2017.13
ORDER
IT IS HEREBY ORDERED THAT the August 23, 2017 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: August 1, 2019
Washington, DC

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

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

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

11

See J.M., Docket No. 15-1604 (issued May 23, 2016).

12

G.M., Docket No. 17-0784 (issued August 23, 2017); D.O., Docket No. 15-1004 (issued July 28, 2015).

13

In light of the Board’s finding in Issue 1, Issue 2 is moot.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Atlanta, GA, Employer
__________________________________________

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

Docket No. 08-1959
Issued: February 6, 2009

Case Submitted on the Record

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

JURISDICTION
On July 7, 2008 appellant filed a timely appeal of the June 24, 2008 decision of the
Office of Workers’ Compensation Programs denying her occupational disease claim on the
grounds that it was not timely filed under 5 U.S.C. § 8122. Under 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly denied appellant’s occupational disease claim on
the grounds that it was not timely filed under 5 U.S.C. § 8122.
FACTUAL HISTORY
This is the third appeal in the present case. In a July 25, 2007 order, the Board set aside
the Office decision dated February 14, 2007 and remanded the claim for further development.1
The Board instructed the Office to advise appellant of the additional evidence needed to support
1

Docket No. 07-950 (issued July 25, 2007).

her claim and allow her 30 days in which to submit such evidence in compliance with Office
regulations. In an April 23, 2008 decision, the Board affirmed a September 21, 2007 Office
decision which denied appellant’s claim on the grounds that it was not timely filed under
5 U.S.C. § 8122.2 The facts and the circumstances of the case up to that point are set forth in the
Board’s prior decision and incorporated herein by reference.3
On May 14, 2008 appellant requested reconsideration, asserting that her claim was timely
because her supervisor was aware of her work injury and accompanied her to the hospital on
December 4, 1993. She believed her supervisor was an authorized agent for the employing
establishment which permitted him to accompany her to the hospital. Appellant alleged that she
was required to prepare a follow-up report of her injury and prepared a written report; however,
she failed to sign it.
Appellant submitted emergency room records from December 4, 1993 where she was
treated by Dr. Stephen J. Kraus, a Board-certified emergency room physician, for left arm, leg
and side injury. Dr. Kraus diagnosed left hand fracture. The records noted that appellant was
accompanied by her supervisor and advised that this was a workers’ compensation injury and
that the bill would be sent to the employing establishment. An x-ray of the left wrist dated
December 4, 1993 revealed a possible but doubtful fracture of the navicular bone. An
electromyogram dated April 18, 1994, revealed right carpal tunnel syndrome.
Appellant submitted medical records from Dr. William M. Craven, a Board-certified
orthopedist, from April 1, 1996 to November 8, 2000, who treated appellant for right wrist
tendinitis, carpal tunnel syndrome and left knee pain from a twisting injury at work. On
March 10, 1999 appellant presented with neck and right shoulder pain and he diagnosed carpal
tunnel syndrome, myalgia and cervical strain. Other reports from Dr. Craven dated January 2,
2001 to March 29, 2004 noted appellant’s treatment for cervical radiculopathy, trigger thumb,
nerve impingement and degenerative disc disease. He opined that appellant reached maximum
medical improvement on January 2, 2001 and released her from his care. In a report dated
August 27, 2007, previously of record, Dr. Craven noted initially treating appellant on
December 4, 1996 for chronic tendinitis and impingement of the right shoulder. He determined
that appellant’s current diagnosis was related to her original compensation injury involving
repetitive use syndrome. In an April 17, 1997 attending physician’s report, Dr. James Blevins, a
Board-certified psychiatrist, diagnosed depression and noted that appellant sustained an accident
on the job followed by a new depression. In a March 23, 2000 report, Dr. Donald S. Orr, a
Board-certified neurologist, noted seeing appellant for right shoulder, neck and upper extremity
pain and diagnosed right shoulder girdle and right upper extremity pain, suspect muscle
contraction headaches and low back pain. Other reports from Dr. Bruce E. Atkinson, a
2

Docket No. 08-28 (issued April 23, 2008).

3

On December 14, 2006 appellant, then a 62-year-old clerk, filed an occupational disease claim alleging that she
fell at work on December 4, 1993 and developed tendinitis of the right shoulder. She indicated that she first became
aware of the condition on March 31, 1999 but also stated that she first realized the condition was aggravated by
factors of her federal employment on December 4, 1993. Appellant retired on September 20, 2005. She filed a
claim for an injury which occurred on December 4, 1993 which was accepted for bilateral carpal tunnel syndrome,
File No. xxxxxx847. Appellant also filed a claim for a left arm injury which occurred on December 4, 1993 when
she fell at work which was accepted by the Office in File No. xxxxxx417.

2

psychologist, dated May 26, 2000 and February 13, 2002, noted appellant’s treatment for
extreme anxiety and emotional liability related to a hostile work environment. An October 23,
2000 functional capacity evaluation, noted that appellant could not perform medium to heavy
work but could perform modified sedentary work. Also submitted were letters from appellant’s
attorney dated April 12, 2004 to June 8, 2005 to appellant’s physician’s requesting an
impairment rating and an opinion as to whether her condition was work related.
By decision dated June 24, 2008, the Office denied modification of the September 21,
2007 decision finding that the evidence did not demonstrate that her claim was timely filed in
accordance with 5 U.S.C. § 8122.
LEGAL PRECEDENT
Section 8122(a) of the Federal Employees’ Compensation Act states that “[a]n original
claim for compensation for disability or death must be filed within three years after the injury or
death.”4 Section 8122(b) provides that in latent disability cases, the time limitation does not
begin to run until the claimant is aware, or by the exercise of reasonable diligence should have
been aware, of the causal relationship between the employment and the compensable disability.5
The Board has held that, if an employee continues to be exposed to injurious working conditions
after such awareness, the time limitation begins to run on the last date of this exposure.6
Appellant’s claim would still be regarded as timely under section 8122(a)(1) of the Act if
her immediate supervisor had actual knowledge of her alleged employment-related injury within
30 days. The knowledge must be such as to put the immediate superior reasonably on notice of
appellant’s injury.7 An employee must show not only that her immediate superior knew that she
was injured, but also knew or reasonably should have known that it was an on-the-job injury.8
ANALYSIS
In its June 24, 2008 decision, the Office reviewed the merits of appellant’s claim but
determined that the evidence did not demonstrate that her claim was timely filed in accordance
with 5 U.S.C. § 8122. As found in the Board’s April 23, 2008 decision, she first became aware
of a connection between her shoulder condition and her employment on December 4, 1993 and
she was last exposed to the work duties that caused her condition in 1993. Since appellant did
not file a claim until December 14, 2006 her claim was filed outside the three-year time
limitation period under section 8122(b).
4

5 U.S.C. § 8122(a).

5

Id. at § 8122(b).

6

See Larry E. Young, 52 ECAB 264 (2001); Garyleane A. Williams, 44 ECAB 441 (1993); Alicia Kelly, 53
ECAB 244 (2001); Mitchell Murray, 53 ECAB 601 (2002).
7

5 U.S.C. § 8122(a)(1); see also Jose Salaz, 41 ECAB 743 (1990); Kathryn A. Bernal, 38 ECAB 470 (1987); see
also Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.3(a)(3) (March 1993).
8

Charlene B. Fenton, 36 ECAB 151 (1984).

3

On reconsideration, appellant asserted that her claim was timely because her supervisor
was informed of the work injury in a timely manner. In fact, she indicated her supervisor not
only was aware of her work injury but also accompanied her to the hospital on
December 4, 1993. Appellant alleged that her supervisor prepared a follow-up report of her
injury but failed to sign it. The record, however, contains no evidence that appellant’s supervisor
had actual knowledge of the work injury or that written notice of the injury was given within 30
days. The Board has held that unawareness of possible entitlement, lack of access to information
and ignorance of the law or of one’s rights and obligations under it do not constitute exceptional
circumstances that could excuse a failure to file a timely claim.9
Appellant submitted various medical records, such as the December 4, 1993 emergency
room records which noted that she was treated by Dr. Kraus for a left arm, leg and side injury,
including a left hand fracture. This emergency room record indicates that she was accompanied
by her supervisor and advised that this was a workers’ compensation injury and that the bill
would be sent to the employing establishment. The Board notes that this establishes that
appellant fell and injured her arm and indicates awareness of her slip and fall injury on
December 4, 1993, which was subsequently accepted by the Office for a left arm condition in
claim, File No. xxxxxx417. However, this report does not indicate supervisory knowledge of the
subsequently claimed right shoulder tendinitis which developed when she returned to work in a
modified position. Therefore, this medical record does not establish that appellant’s supervisors
were reasonably on notice of a work-related injury caused by performing her repetitive light-duty
clerk duties.10 Knowledge merely of an employee’s illness is not sufficient to establish actual
knowledge and timeliness, it must be shown that the circumstances were such as to put the
supervisor on notice that the alleged injury was actually related to the employment or that the
employee attributed it thereto.11
Other medical records submitted by appellant do not purport to show that her immediate
supervisor had actual knowledge of her alleged tendinitis of the right shoulder within 30 days.
The evidence submitted on reconsideration also does not support that timely written notice of
injury was provided within 30 days.12
Therefore, the Board finds that appellant has not established actual knowledge by her
supervisors of her work-related condition within 30 days and therefore has not established a
timely claim. The record is void of any indication that appellant’s immediate supervisors had
9

Roger W. Robinson, 53 ECAB 846, 851 (2003).

10

See Linda J. Reeves, 48 ECAB 373 (1997) (where the Board held that while appellant submitted a statement
from a former supervisor that established that he had some knowledge of appellant’s complaints, this statement is
not sufficient to establish that her immediate superior had actual knowledge of a work-related injury as the statement
only makes a vague reference to appellant’s health and does not indicate that she sustained any specific
employment-related injury, rather the knowledge must be such as to put the immediate superior reasonably on notice
of an on-the-job injury or death).
11

See id.; Roseanne S. Allexenberg, 47 ECAB 498 (1996) (where the Board held that knowledge of an
employee’s illness is not sufficient to establish actual knowledge and timeliness of a claim, it must be shown that the
circumstances were such as to put the supervisor on notice that the alleged injury was actually related to the
employment or that the employee attributed it thereto).
12

See 5 U.S.C. § 8122(a)(1) and (2).

4

written notice of the work-related injury claimed in this case within 30 days. The exceptions to
the statute have not been met, and thus, appellant has failed to establish that she filed a timely
claim on December 14, 2006.
CONCLUSION
The Board finds that the Office properly denied appellant’s compensation claim on the
grounds that she did not establish that her claim was filed within the applicable time limitation
provisions of the Act.
ORDER
IT IS HEREBY ORDERED THAT the June 24, 2008 and September 21, 2007
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: February 6, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
NATIONAL GUARD, KANSAS NATIONAL
GUARD -- JOINT FORCES HEADQUARTERS,
Topeka, KS, Employer
__________________________________________

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

Docket No. 16-1219
Issued: November 8, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 18, 2016 appellant filed a timely appeal from an April 14, 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 to
consider the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish an injury causally
related to an accepted August 8, 2013 employment incident.
On appeal, appellant alleges that he was instructed to file a Form CA-1 for payment of
his medical expenses instead of submitting the medical bills to his health insurance carrier.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 8, 2013 a traumatic injury claim (Form-CA-1) was filed on behalf of
appellant, then a 33-year-old facility plans and program management specialist, alleging that on
that date he lost consciousness twice while trying to stand up after donating blood. He was
transferred to a hospital for medical evaluation. Appellant returned to work on August 9, 2013.
An August 8, 2013 patient care report signed by a paramedic and an emergency medical
technician (EMT), revealed that appellant had a syncopal episode while donating blood. They
related that, upon their arrival at the employing establishment, appellant was resting on a cot, and
he showed some improvement enroute to the St. Francis emergency room.
Appellant was seen at St. Francis Health Center by Dr. Rebecca Hierholzer, a physician
Board-certified in emergency medicine, who noted her impression as vasovagal syncope.
Dr. Hierholzer noted that appellant stated that he was okay when the needle was placed in his
arm to draw blood, but when he pumped his arm he started feeling lightheaded and when he
started to sit up he passed out. Appellant noted that he was given a drink and cookies, but he
continued to feel lightheaded and dizzy.
Appellant submitted x-ray reports of his right ankle, right knee, and lumbosacral spine
taken on July 3, 2014 by Dr. Matthew S. Malmstrom, an osteopathic diagnostic radiologist. The
x-rays of the right ankle and right knee were interpreted as revealing normal findings. The x-ray
of the lumbosacral spine was interpreted as revealing mild L5-S1 disc degeneration.
By letter to appellant dated March 14, 2016, OWCP indicated that when appellant’s
claim was received, it appeared to be a minor injury that resulted in minimal or no lost time from
work, that the employing establishment did not controvert the claim, and that based on these
criteria, the payment of a limited amount of medical expenses was approved. However, it noted
as the medical bills now exceeded $1,500.00, further medical evidence was necessary to support
his claim. Appellant was afforded 30 days to submit evidence including a rationalized medical
report from a physician explaining how the employment incident caused a diagnosed condition.
OWCP did not receive a response.
By decision dated April 14, 2016, OWCP denied appellant’s claim as the medical
evidence did not demonstrate that a medical condition was causally related to the accepted
employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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 timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged,
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury. These are the essential elements of each and every

2

compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.2
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components, which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident or exposure, which is alleged to have occurred.3
In order to meet his or her burden of proof to establish the fact that he or she sustained an injury
in the performance of duty, an employee must submit sufficient evidence to establish that he or
she actually experienced the employment injury or exposure at the time, place, and in the manner
alleged.4
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.5 The medical evidence required to
establish causal relationship is usually rationalized medical evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on the
issue of whether there is a causal relationship between the claimant’s diagnosed condition and
the implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.6
ANALYSIS
There is no dispute that the incident occurred as alleged, i.e., that appellant donated blood
on August 8, 2013, and that he has established a medical diagnosis, i.e., vasovagal syncope. He
has also submitted x-ray evidence of mild L5-S1 disc degeneration. OWCP denied appellant’s
claim as he failed to provide a rationalized medical opinion establishing causal relationship
between the accepted employment incident and the medical diagnoses.
Appellant submitted a note from the paramedic and EMT who responded on
August 8, 2013. However, this report does not constitute medical evidence as neither a
paramedic nor an EMT are qualified to provide a medical opinion under FECA.7
2

Jussara L. Arcanjo, 55 ECAB 281, 283 (2004).

3

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (August 2012).

4

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

5

John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

6

Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994).

7

5 U.S.C. § 8101(2) of FECA provides as follows: a physician includes surgeons, podiatrist, dentists, clinical
psychologists, optometrist, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. Lay individuals are not competent to render a medical opinion under FECA. See David P. Sawchuk,
57 ECAB 316, 320 n.11 (2006).

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The August 8, 2013 report of Dr. Hierholzer noted the employment incident and related
that appellant had a vasovagal syncope, but failed to provide a well-rationalized opinion
explaining causal relationship between the accepted employment incident and the medical
diagnosis.8
The July 3, 2014 x-rays from Dr. Malmstrom noted an impression of mild L5-S1 disc
degenerative disease, but offered no medical opinion regarding the cause of this diagnosed
condition. Medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.9
In a similar case, Michael John Zenker,10 the claimant fainted while donating blood and
allegedly sustained tailbone and neck injuries. The Board found that the claimant had not met
his burden of proof as he has not submitted a report containing a physician’s opinion, supported
by medical rationale and based on a complete history, explaining how and why donating blood at
work resulted in the fainting incident which led to his lower back injury.
Similarly, in this case the record is without a well-rationalized medical opinion
establishing that the diagnosed conditions of syncope were causally related to the accepted
August 8, 2013 employment incident. OWCP advised appellant that it was his responsibility to
provide a comprehensive medical report explaining how the diagnosed medical condition was
caused by the accepted employment incident. Appellant failed to submit appropriate medical
documentation in response to OWCP’s request.11
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference of causal relation.12 An award of compensation may not
be based on surmise, conjecture, speculation, or upon appellant’s own belief that there was a
causal relationship between his or her condition and his or her employment.13 Causal
relationship must be based on rationalized medical opinion evidence.14 As appellant did not
submit a rationalized medical opinion supporting that his medical conditions were causally
related to the accepted August 8, 2013 employment incident, he did not meet his burden of proof
to establish an employment-related traumatic injury.

8

Supra note 6.

9

L.L., Docket No. 16-0896 (issued September 13, 2016).

10

Docket No. 93-1363 (issued September 8, 1994).

11

See T.H., Docket No. 15-0772 (issued May 12, 2016).

12

L.D., Docket No. 09-1503 (issued April 15, 2010); D.I., 59 ECAB 158 (2007); Daniel O. Vasquez, 57 ECAB
559 (2006).
13

Patricia J. Glenn, 53 ECAB 159, 160 (2001).

14

M.E., Docket No. 14-1064 (issued September 29, 2014).

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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 an injury
causally related to an accepted August 8, 2013 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 14, 2016 is affirmed.
Issued: November 8, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Melville, NY, Employer
__________________________________________
Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 19-0763
Issued: November 26, 2019

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

On February 22, 2019 appellant, through counsel, filed a timely appeal from a January 24,
2019 decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards assigned Docket No. 19-0763.2
On September 30, 2017 appellant, then a 55-year-old truck trailer operator, filed a
traumatic injury claim (Form CA-1) alleging that on September 23, 2017 he sustained head, neck,
back, and left shoulder injuries when his vehicle was rear ended at a traffic light. He stopped work
and sought treatment for his medical condition. Appellant was released to full-time full-duty work
1

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

The Board notes that following the January 24, 2019 decision, OWCP received additional evidence. 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.

on October 9, 2017. By decision dated November 22, 2017, OWCP accepted the claim for cervical
strain.
On November 30, 2017 appellant filed a recurrence claim (Form CA-2a) alleging a
recurrence of disability on November 28, 2017 due to his accepted September 23, 2017
employment injury, resulting in his work stoppage on November 29, 2017. He indicated that his
conditions never fully resolved. Appellant further reported that, since returning to work, he found
himself working at a much slower pace when pushing the post cons in and out of the trailers and
that he would experience neck pain and headache. On the reverse side of the claim form
appellant’s supervisor indicated that there were no adjustments or accommodations made to
appellant’s work assignment as his physician released him to full-duty work on October 9, 2017.
However, appellant continued to complain of pain and issues from his accepted employment
injury.
In a development letter dated December 28, 2017, OWCP requested that appellant submit
additional evidence in support of his claim, including a physician’s opinion supported by a medical
explanation as to how his accepted employment-related medical condition materially
changed/worsened to the extent that he was disabled from work. It provided him a questionnaire
for completion and afforded him 30 days to submit a response.
In support of his claim, appellant submitted additional medical and diagnostic reports.
By decision dated January 29, 2018, OWCP denied appellant’s claim for a recurrence of
disability. It found that the medical evidence of record was insufficient to establish that he was
disabled from work due to a material change/worsening of his accepted work-related conditions.
On October 29, 2018 appellant, through counsel, requested reconsideration. By decision
dated January 24, 2019, OWCP denied modification of the January 29, 2018 decision. It found
that appellant had not submitted rationalized medical opinion establishing a recurrence causally
related to the accepted employment injury.
The Board, having reviewed the case record submitted by OWCP, finds that this case is
not in posture for decision.3
OWCP’s procedures require that, in cases where recurrent disability from work is claimed
within 90 days or less from the first return to duty, the claimant is not required to produce the same
evidence as for a recurrence claimed long after apparent recovery and return to work.4 Therefore,
in cases where recurring disability from work is claimed within 90 days or less from the first return
to duty, the focus is on disability rather than causal relationship.5 The attending physician should

3

See T.Z., Docket No. 17-0679 (issued May 9, 2019).

4

R.W., Docket No. 17-0720 (issued May 21, 2018).

5

K.R., Docket No. 19-0413 (issued August 7, 2019).

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describe the duties which the employee cannot perform and the demonstrated objective medical
findings that form the basis for the renewed disability from work.6
In this instance, appellant stopped work following the September 23, 2017 work-related
motor vehicle accident. He was released to full-duty work on October 9, 2017. Appellant filed a
Form CA-2a and alleged a recurrence of disability on November 28, 2017, resulting in his work
stoppage on November 29, 2017. As he claimed a recurrence of disability within 90 days of his
first return to duty, OWCP should have developed and decided the claim under the proper
recurrence standard, emphasizing disability rather than causal relationship.7 However, the
December 28, 2017 OWCP development letter improperly instructed appellant to provide medical
evidence in accordance with the standard for a recurrence of disability claim after 90 days of his
return to duty.8 OWCP’s January 29, 2018 and January 24, 2019 decisions did not deny his
recurrence claim acknowledging that appellant’s alleged recurrence occurred within 90 days of
return to work.
OWCP procedures provide that OWCP is responsible for requesting evidence.9 The
procedures further provide that the claims examiner should contact the claimant in writing to
obtain evidence and should specifically request the information needed, tailored to the specifics of
the individual case.10 In this instance, OWCP improperly developed appellant’s claim under the
standard for a recurrence of disability claim after 90 days from return to duty.11 As appellant failed
to receive the proper guidance from OWCP regarding the specific evidence required to establish a
recurrence claim within 90 days of his return to duty, the Board finds that this case must be
remanded for further development.12 Following such further development as it deems necessary,
OWCP shall issue an appropriate merit decision.13

6

A.C., Docket No. 17-0384 (issued September 11, 2017); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Recurrences, Chapter 2.1500.5 (June 2013).
7

Id. at Chapter 2.1500.6.

8

See A.D., Docket No. 17-1984 (issued March 19, 2018).

9

FECA Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.4.c(2) (June 2011).

10

Id. at Chapter 2.800.5. See also V.R., Docket No. 16-1167 (issued December 22, 2016).

11

See J.W., Docket No. 17-0715 (issued May 29, 2018).

12

See S.S., Docket No. 17-0871 (issued November 6, 2017).

13
See generally B.N., Docket No. 17-0787 (issued July 6, 2018); C.D., Docket No. 17-1074 (issued
August 28, 2017).

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IT IS HEREBY ORDERED THAT the January 24, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this order.
Issued: November 26, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.S., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATIONS,
Sioux Falls, SD, Employer
__________________________________________

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

Docket No. 14-1678
Issued: November 19, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On July 29, 2014 appellant filed a timely appeal of a June 30, 2014 Office of Workers’
Compensation Programs’ (OWCP) merit decision denying her traumatic injury claim. Pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof to establish that she sustained
a traumatic injury on March 19, 2014 in the performance of duty.
FACTUAL HISTORY
On March 19, 2014 appellant, then a 47-year-old victim specialist, filed a traumatic
injury claim alleging that on that date she fell on black ice walking to work injuring her lower
back, ribs and right side. Dr. Timothy P. Donelan, a Board-certified family practitioner,
1

5 U.S.C. § 8101 et seq.

diagnosed thoracic muscle injury and low back pain on March 19, 2014. He prescribed physical
therapy on March 19, 2014, which appellant attended. In a note dated March 27, 2014,
Dr. Donelan indicated that she could return to work on March 31, 2014. Appellant sought
medical treatment with a medical assistant, Kathleen A. Wayen, on March 19, 2014 due to back
pain following a fall. On March 20, 2014 Dr. Christopher Fischer, a Board-certified radiologist,
performed x-rays due to right-sided rib and back pain incurred after a motor vehicle accident.2
He found thoracic spondylosis without fracture or listhesis. Appellant attended additional
physical therapy. Thereafter, she returned to full duty on March 31, 2014.
OWCP requested from appellant, additional factual and medical evidence in support of
her claim in a letter dated May 29, 2014. Appellant did not respond within the time allotted.
By decision dated June 30, 2014, OWCP denied appellant’s claim on the grounds that she
had not submitted sufficient medical evidence to establish that a diagnosed condition resulted
from her accepted employment injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative and substantial evidence,
including the fact that the individual is an “employee of the United States” within the meaning of
FECA and that the claim was timely filed within the applicable time limitation period of FECA,
that an injury was sustained in the performance of duty as alleged and that any disability or
specific condition for which compensation is claimed is causally related to the employment
injury.4 These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated upon a traumatic injury or an occupational disease.5
OWCP defines a traumatic injury as, “[a] condition of the body caused by a specific
event or incident, or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain which is identifiable as to
time and place of occurrence and member or function of the body affected.”6 To determine
whether a federal employee has sustained a traumatic injury in the performance of duty, it must
first be determined whether “fact of injury” has been established. 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

2

The radiology report indicates that appellant reports right-sided rib and back pain after motor vehicle accident.
There is no other evidence she was involved in a motor vehicle accident. Appellant was referred to the radiologist
for x-rays by Dr. Donelan who was treating her for her fall on ice. As such, the radiologist’s reference to a motor
vehicle accident appears to be a scrivener’s error.
3

5 U.S.C. §§ 8101-8193.

4

Kathryn Haggerty, 45 ECAB 383, 388 (1994); Elaine Pendleton, 41 ECAB 1143 (1989).

5

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

6

20 C.F.R. § 10.5(ee).

7

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

2

sufficient evidence, generally only in the form a medical evidence, to establish that the
employment incident caused a personal injury.8
A medical report is of limited probative value on a given medical question if it is
unsupported by medical rationale.9 Medical rationale includes a physician’s reasoned opinion on
the issue of whether these is a causal relationship between the claimant’s diagnosed condition
and the implicated employment activity. The opinion of the physician must be based on a
complete factual and medical background of the claim, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and specific employment activity or factors identified by the
claimant.10
ANALYSIS
OWCP accepted that on March 19, 2014 appellant filed a claim alleging that she slipped
in the performance of duty and fell injuring her back. In support of her claim, appellant
submitted medical evidence from Drs. Donelan and Fischer.
Dr. Donelan completed a report dated March 19, 2014 and diagnosed thoracic muscle
injury and low back pain. He did not further describe appellant’s thoracic muscle injury and did
not offer any explanation of how her March 19, 2014 fall resulted in this condition. With regard
to Dr. Donelan’s diagnosis of low back pain, the Board has held that the mere diagnosis of
“pain” does not constitute the basis for payment of compensation.11 As Dr. Donelan did not
provide a clear opinion that appellant’s thoracic muscle injury resulted from her accepted
employment incident of a fall and did not explain how her fall caused this injury, his report is not
sufficient to meet appellant’s burden of proof and establish a traumatic injury on
March 19, 2014.
In a report dated March 20, 2014, Dr. Fischer stated that he performed x-rays due to
appellant’s right-sided rib and back pain after a motor vehicle accident. He found thoracic
spondylosis without fracture or listhesis. Dr. Fischer indicated that appellant’s rib and back pain
occurred after a motor vehicle accident rather than following a fall on March 19, 2014. Such
history is dubious as previously discussed herein. Dr. Fischer’s report does not suggest that
appellant sustained a diagnosed condition as a result of her accepted employment incident and is
not sufficient to establish appellant’s claim for a traumatic injury occurring in the performance of
duty.
As neither Dr. Donelan nor Dr. Fischer provide a supportive medical opinion for a
diagnosis from the work incident of March 19, 2014, the finding of OWCP must be affirmed.

8

J.Z., 58 ECAB 529 (2007).

9

T.F., 58 ECAB 128 (2006).

10

A.D., 58 ECAB 149 (2006).

11

Robert Broome, 55 ECAB 339 (2004).

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Appellant also submitted a report from a medical assistant and physical therapy notes.
As neither a medical assistant12 nor a physical therapist13 is a physician as defined by FECA,14
these records cannot establish a diagnosed condition resulting from appellant’s accepted
employment-related fall on March 19, 2014.15
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.
CONCLUSION
The Board finds that appellant has not submitted sufficient medical opinion evidence to
establish that a diagnosed condition resulted from her accepted March 19, 2014 employment
incident. Appellant has therefore failed to meet her burden of proof in establishing a traumatic
injury in the performance of duty on that date.

12

D.F., Docket No. 12-347 (issued June 18, 2012).

13

G.G., 58 ECAB 389 (2007).

14

5 U.S.C. § 8101(2).

15

Merton J. Sills, 39 ECAB 572 (1988).

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ORDER
IT IS HEREBY ORDERED THAT the June 30, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 19, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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