United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Nekoosa, WI, Employer
__________________________________________

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

Docket No. 07-1858
Issued: November 27, 2007

Case Submitted on the Record

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

JURISDICTION
On June 26, 2007 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ merit decision dated June 20, 2007. Under 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that she sustained an injury to her lower
back on March 9, 2007 in the performance of duty.
FACTUAL HISTORY
Appellant, a 47-year-old rural route mail carrier, filed a Form CA-1 claim for benefits on
March 21, 2007, alleging that she fell and fractured bones in her lower back on March 9, 2007
while in the performance of duty. The record establishes that appellant was required to drive her

truck to and from work and for mail delivery. In a statement attached to the form, appellant
asserted:
“On the morning of March 9, 2007, I took my dogs outside and started my truck
for work as I do every other day. I put the dogs back in the house and went out to
get in my truck for work. I opened the door to my truck and instead of watching
where I was going I was looking at my dogs in our dining room window, slipped
on some ice and fell on my left knee, then landed on my butt. I got up and
proceeded on my way to work. My back pain got continuously worse at work.
[My supervisor] was able to find a relief for my route and I was able to see a
doctor at 10.00 a.m.”
On the form, appellant’s husband submitted a witness statement, dated March 20, 2007,
in which he asserted:
“I watched my wife fall as she was leaving for work. She was getting in the truck
to go to work when she slipped and fell. Her truck was running and warmed up
ready to go. I opened the front door and asked her if she was all right. She
looked at me and said that [she was hurting]. Then she headed off to work.”
The record contains a March 9, 2007 statement from Vickie Scholze-Parker, appellant’s
coworker, who stated:
“[I] do n[o]t know the exact words [appellant] used, but [she said she] had let
[the] dogs out and slipped on ice.”
Appellant submitted a March 13, 2007 report from Riverview Hospital, which diagnosed
an L4 bilateral facet fracture at the anterior and posterior approach.
Appellant’s coworker, J. Greening, submitted a March 28, 2007 statement in which he
asserted, “I asked [appellant] what was wrong. She said that she had fallen when she took the
dogs out. It was icy.” Gerald Hooper, another of appellant’s coworkers, submitted a March 28,
2007 statement in which indicated, “I overheard [appellant] saying that she slipped and fell on
ice when letting dogs out in [the] morning.”
Appellant’s supervisor, Postmaster Gary Gukenberger, also submitted a March 28, 2007
statement. He stated:
“When I arrived at the [employing establishment] on Friday, March 9, 2007,
[appellant] informed me she slipped on ice at home when she took her dogs out in
the morning. She stated [that] her back hurt and would need a substitute to work
so [that] she could go to [the] doctor. [Appellant] worked from 7:00 a.m. to about
9:00 a.m. when a substitute came in. She called back later that afternoon [and
stated that] the doctor needed her in immediately for surgery, that her back was
broke. In talking with [appellant] on Monday, she then said she fell when she was
getting into her truck to come to work. Tuesday, when she called about the Form
CA-1 that was sent to her she was not sure if she should fill it out, if the claim
would be turned down because she was not in the truck.”
2

By letter dated April 2, 2007, the Office advised appellant that it required factual and
medical evidence to determine whether she was eligible for compensation benefits. The Office
asked appellant to submit a report from her treating physician containing a diagnosis of her
condition and an opinion as to whether her claimed condition was causally related to her federal
employment. The Office requested that appellant submit this evidence within 30 days.
In a March 9, 2007 report from Riverview Hospital, Dr. Richard E. Simpson, a specialist
in diagnostic radiology, interpreted the results of the March 9, 2007 magnetic resonance imaging
(MRI) scan. He diagnosed severe disc space narrowing with endplate degenerative changes at
L4-5, which appeared to be caused by facet fracture of the inferior facets at L4.
In a March 28, 2007 report, Dr. James A. Wilkes, Board-certified in orthopedic surgery,
indicated that appellant was completely incapacitated.
In an April 5, 2007 statement, appellant asserted:
“On March 9, 2007 I was halfway into my truck to go to work at the [employing
establishment]. My right foot was already in my truck when my left foot slipped
out on ice and I fell back out of my truck. I landed on my left knee then fell on
my butt. I got up, got back into my truck and went to work. I would not have
been outside getting into my truck if I wouldn’t have been going to work.”
By decision dated May 10, 2007, the Office denied the claim. It accepted that the March 9,
2007 incident had occurred, but found that appellant failed to submit sufficient medical evidence
to establish that the claimed medical condition resulted from the accepted event.
On May 24, 2007 appellant requested reconsideration.
Appellant submitted an April 13, 2007 report from Dr. Douglas P. Galuk, Board-certified
in orthopedic surgery, who performed lower back surgery on appellant on March 10, 2007.
Dr. Galuk stated:
“[Appellant] is a 47-year-old white female who had an acute L4-5
spondylolisthesis. She was taken to the operating room on the morning of
March 10, [2007] and underwent an anterior inner body distraction, discectomy
and fusion, followed by posterior instrumentation from L4-5. [Appellant]
tolerated the procedure well, and was discharged to the recovery room and back to
the floor in stable condition.”
Dr. Galuk advised that appellant progressed well through physical therapy and was in
sufficiently good condition to be discharged from the hospital on March 13, 2007.
In a report dated May 17, 2007, Dr. Wilkes reiterated that appellant was completely
incapacitated.
By decision dated June 20, 2007, the Office denied appellant’s claim but modified its
May 10, 2007 decision by finding that appellant’s injuries were not sustained while she was in
the performance of duty and that the evidence was insufficient to establish that her injury
occurred in the manner she had alleged.

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LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing that the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained in
the performance of duty as alleged, and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.2 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.3
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.
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.4 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.5
The Office cannot accept fact of injury if there are such inconsistencies in the evidence as
to seriously question whether the specific event or incident occurred at the time, place and in the
manner alleged, or whether the alleged injury was in the performance of duty,6 nor can the Office
find fact of injury if the evidence fails to establish that the employee sustained an “injury” within
the meaning of the Act. An injury does not have to be confirmed by eyewitnesses in order to
establish the fact that an employee sustained an injury in the performance of duty, as alleged, but
the employee’s statements must be consistent with surrounding facts and circumstances and her
subsequent course of action.7 Such circumstances as late notification of injury, lack of
confirmation of injury, continuing to work without apparent difficulty following the alleged injury
and failure to obtain medical treatment may case doubt on an employee’s statements in
determining whether he or she has established his or her claim.8

1

5 U.S.C. § 8101 et seq.

2

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

3

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

4

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

5

Id. For a definition of the term “injury,” see 20 C.F.R. § 10.5(e).

6

Elaine Pendleton, supra note 2.

7

See Gene A. McCracken, Docket No. 93-2227 (issued March 9, 1995); Joseph H. Surgener, 42 ECAB 541,
547 (1991).
8

See Constance G. Patterson, 42 ECAB 206 (1989).

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ANALYSIS
In this case, appellant has not established fact of injury because of inconsistencies in the
evidence that cast serious doubt as to whether the specific event or incident occurred at the time,
place and in the manner alleged. She alleged in her March 21, 2007 statement that she fell and
injured her lower back on the morning of March 9, 2007 while getting into her truck, on her way
to work. Appellant stated that her injury occurred when she opened the door to her truck, slipped
on some ice and fell on her lower back. Her husband submitted a witness statement which
corroborated appellant’s account of how her injury occurred. These statements, however, were
contradicted by the statements submitted by appellant’s supervisor and two of her coworkers.
These employees asserted that appellant told them that her injury occurred when she slipped on
some ice while she was out walking her dogs, before she set out for work. Appellant’s
supervisor, Gary Gukenberger, stated that appellant initially told him on Friday, March 9, 2007
that her injury occurred while she was walking her dogs; however, he indicated that she changed
her story on Monday, March 12, 2007, when she said she fell when she was getting into her truck
to come to work. He related that, on Tuesday, March 13, 2007, appellant called and told him she
was not sure if she should fill out the Form CA-1 because she feared her claim would be denied
because she was not in her truck when she was injured.
Appellant can be reasonably imputed to have knowledge of when she sustained an injury
that caused her to be medically released from work.9 However, the record contains conflicting
accounts of how appellant actually sustained her injury on March 9, 2007. In addition, she did not
submit any medical evidence which attributed her lower back fractures to the March 9, 2007
incident. This contradictory evidence created an uncertainty as to the time, place and the manner
in which appellant sustained her alleged lower back injury.
Therefore, given the inconsistencies in the evidence regarding how appellant sustained her
injury, the Board finds that there is insufficient evidence to establish that appellant sustained an
injury in the performance of duty as alleged.10 Accordingly, the Board affirms the June 20, 2007
Office decision.11

9

The evidence submitted by an employing establishment on the basis of their records will prevail over the
assertions from the claimant unless such assertions are supported by documentary evidence. See generally Sue A.
Sedgwick, 45 ECAB 211, 218 n.4 (1993); Federal (FECA) Procedure Manual, Part 2 -- Claims, Computation of
Compensation, Chapter 2.900(b)(3) (September 1990).
10

See Mary Joan Coppolino, 43 ECAB 988 (1992) (where the Board found that discrepancies and inconsistencies in
appellant’s statements describing the injury created serious doubts that the injury was sustained in the performance of
duty).
11

As the Board has affirmed the Office’s June 20, 2007 decision on the basis of its finding that appellant’s injury
did not occur in the manner alleged, it need not consider the Office’s additional finding that her March 9, 2007
injury did not occur while she was in the performance of duty.

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CONCLUSION
The Board finds that the Office properly found that appellant failed to meet her burden of
proof to establish that she sustained a lower back injury in the performance of duty on
March 9, 2007.
ORDER
IT IS HEREBY ORDERED THAT the June 20, 2007 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: November 27, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
U.S. POSTAL SERVICE, MITCHELL POST
OFFICE, Mitchell, SD, Employer
__________________________________________

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Appearances:
Larissa Ann Parde, for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0908
Issued: March 4, 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 May 26, 2021 appellant, through his representative, filed a timely appeal from a
March 24, 2021 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a right hip condition
causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On July 11, 2018 appellant, then a 57-year-old city letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he sustained right hip osteoarthritis as a result of factors
of his federal employment including standing, walking, lifting, twisting, and turning. He noted
that he first became aware of his claimed condition and that it was cause d or aggravated by his
federal employment on May 9, 2018. Appellant did not stop work.
In a development letter dated July 17, 2018, OWCP advised appellant of the deficiencies
of the claim. It advised him of the type of factual and medical evidence necessary to establish his
claim and afforded him 30 days for the submission of additional evidence.
An x-ray of appellant’s right hip obtained on May 9, 2018 demonstrated advancement of
severe degenerative joint disease with bone-on-bone acetabular osteophytes.
In a note dated June 18, 2018, Dr. Chris Krouse, an osteopath Board-certified in orthopedic
surgery, diagnosed severe degenerative change of the right hip. He recommended a total hip
arthroplasty. Dr. Krouse noted that appellant had a long-standing history of extensive use of the
right hip as a result of his federal employment, including factors such as ambulation, lifting of mail
tubs, pushing/pulling, and bending/twisting. He opined within a reasonable degree of certainty
that appellant’s right hip degenerative change was beyond a reasonable doubt directly related to
appellant’s occupation and 35 years of federal service.
By decision dated October 9, 2018, OWCP denied appellant’s claim as the medical
evidence of record was insufficient to establish a causal relationship between the diagnosed
conditions and factors of his federal employment.
OWCP continued to receive medical evidence. In a report dated September 5, 2013,
Dr. John Swisher, an osteopath Board-certified in sports medicine, examined appellant for
complaints of right hip and leg pain. He diagnosed right low back pain with right lower extremity
pain resembling potential radiculopathy, right lateral hip pain, either secondary to radiculopathy
or trochanteric syndrome, right proximal hamstring pain consistent with probable tendinosis,
intermittent right knee pain with evidence of degenerative joint disease , and right groin/deep
gluteal pain with femoral acetabular impingement. In a report dated September 25, 2013,
Dr. Swisher diagnosed localized osteoarthritis of the pelvis, lumbosacral spondylosis, and
trochanteric bursitis.
An x-ray of appellant’s right hip obtained on September 5, 2013 demonstrated moderate
narrowing involving the superior hip joint space with osteophytes off the superior and inferior
aspects of the acetabulum and inferior aspect of the femoral head. A magnetic resonance imaging
scan of the hip and pelvis obtained on September 6, 2013 demonstrated degenerative changes

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including flattening of the inferior articular surface of the femoral head, osteophyte formation, and
moderate narrowing medially.
On April 11, 2014 appellant underwent right hip arthroscopic labral repair, arthroscopic
acetabuloplasty and arthroscopic femoral neck osteochondroplasty.
In a report dated September 17, 2014, Dr. Swisher examined appellant for complaints of
progressively more painful right hip. He diagnosed right greater trochanteric syndrome and
administered an injection.
In a report dated February 8, 2016, Dr. Krouse examined appellant for complaints of right
hip pain. He diagnosed right hip pain, likely bursitis versus degenerative change. Dr. Krouse
administrated an injection.
On July 20, 2016 Dr. Krouse examined appellant for right hip and left knee pain. On
physical examination of the right hip, he observed a positive grind test. Dr. Krouse diagnosed left
knee and right hip degenerative joint disease. He administered an injection.
Dr. Krouse reported on May 9, 2018 that he had examined appellant for severe right hip
pain, interfering with walking and sleeping. On physical examination, he observed a severely
antalgic gait with positive grind testing and minimal internal/external rotation. Dr. Krouse
diagnosed bone-on-bone degenerative joint disease of the right hip and recommended right hip
arthroplasty.
In a note dated May 23, 2018, Dr. Krouse diagnosed right hip advanced degenerative
change and opined that, after reviewing appellant’s work duties, his diagnosis was beyond a
reasonable doubt directly related to appellant’s occupation of over 35 years. He explained that the
amount of ambulation and positional changes appellant performed were the direct cause of
aggravation and acceleration of cartilage wear of the right hip, leading to advanced osteoarthritis
necessitating total hip arthroplasty.
OWCP received a note from Dr. Krouse dated July 5, 2018, which was substantially similar
to his note of June 18, 2018.
In a letter dated January 16, 2019, Dr. Krouse diagnosed degenerative joint disease. He
noted that appellant’s overall degenerative decline, based on physical examination and
radiographic findings, continued to progress despite conservative treatment. Dr. Krouse reviewed
appellant’s employment duties and opined that they had contributed to acceleration of appellant’s
degenerative joint disease.
On June 7, 2019 appellant requested reconsideration of the October 9, 2018 decision.
By decision dated August 27, 2019, OWCP denied modification.
In a letter dated January 29, 2020, Dr. Krouse stated that he had reviewed all medical
documentation and agreed with his previous narrative.
On March 10, 2020 appellant requested reconsideration.

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By decision dated May 5, 2020, OWCP denied modification.
In a letter dated October 28, 2020, Dr. Krouse explained that, as stated previously, it
appeared that appellant’s degenerative changes had been exacerbated by appellant’s work duties,
which included ambulating for long distances and on uneven surfaces, climbing stairs, carrying a
weighted satchel, and entering/exiting his work vehicle several times per day while delivering mail
for over 39 years. He opined that the duties of appellant’s employment, including an excessive
amount of walking, was likely a contributing factor to appellant’s arthritis. Dr. Krouse explained
that appellant was on his feet for upwards of 10 hours per day for five to six days per week and
that appellant’s duties would contribute to progressive degenerative changes to the hip joint, which
over time would be viewed as degenerative arthritis. He opined that there was a causal relationship
between appellant’s duties and his medical findings on examination. Dr. Krouse further explained
that working for 39 years and averaging many miles of walking in various terrains with repetitive
movement, up and down stairs, on uneven ground, in and out of mail trucks, twisting, and changing
directions would contribute to appellant’s osteoarthritis findings. He opined within a reasonable
medical certainty that appellant’s repetitive walking and duties of appellant’s federal employment
over the past 39 years was a contributing factor to his medical findings of hip osteoarthritis.
Dr. Krouse further opined that appellant’s work duties had aggravated his diagnosed appellant’s
osteoarthritis, that it was beyond a reasonable double that years of repetitive movement and
excessive loading/movements were well beyond a normal course of natural aging to the joints. He
opined that it was his medical judgment that this process was a contributing factor to acceleration
of hip osteoarthritis.
On December 29, 2020 appellant requested reconsideration.
By decision dated March 24, 2021, OWCP denied modification.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed with in the applicable
time limitation of FECA, 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. 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.
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence o f the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or co ndition for which

3

Id.

4

C.K., Docket No. 19-1549 (issued June 30, 2020); R.G., Docket No. 19-0233 (issued July 16, 2019); Elaine
Pendleton, 40 ECAB 1143 (1989).

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compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the identified employment factors.5
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 6 The opinion of the physician must be based on a complete factual
and medical background, 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. 7
ANALYSIS
The Board finds that this case is not in posture for decision.
In a note dated May 23, 2018, Dr. Krouse diagnosed right hip advanced degenerative
change and after reviewing appellant’s work duties, opined that his diagnosis was directly related
to appellant’s occupation of over 35 years. He explained that the amount of ambulation and
positional changes were the direct cause of aggravation and acceleration of cartilage wear of the
right hip, leading to advanced osteoarthritis necessitating total hip arthroplasty.
In a letter dated October 28, 2020, Dr. Krouse explained that, as stated previously, it
appeared that appellant’s degenerative changes had been exacerbated by appellant’s work duties,
which included ambulating for long distances and on uneven surfaces, climbing stairs, carrying a
weighted satchel, and entering/exiting his work vehicle several times per day while delivering mail
for over 39 years. He opined that the duties of appellant’s employment, including an excessive
amount of walking, was likely a contributing factor to appellant’s arthritis. Dr. Krouse explained
that appellant was on his feet for upwards of 10 hours per day for five to six days per week and
that appellant’s duties would contribute to progressive degenerative changes to the hip joint, which
over time would be viewed as degenerative arthritis. He opined that there was a causal relationship
between appellant’s duties and medical findings on examination. Dr. Krouse further explained
that appellant’s work for 39 years, averaging many miles of walking in various terrains with
repetitive movement, up and down stairs, on uneven ground, in and out of m ail trucks, twisting,
and changing directions would contribute to appellant’s osteoarthritis findings. He further opined
that appellant’s work duties had aggravated his diagnosed his osteoarthritis, as years of repetitive
movement and excessive loading/movements were well beyond a normal course of natural aging
to the joints. Dr. Krouse opined that it was his medical judgment that this process was a
contributing factor to acceleration of hip osteoarthritis.
The Board finds that, taken together, Dr. Krouse’s reports are sufficient to require further
development of the medical evidence. Dr. Krouse provided a comprehensive understanding of the

5

L.D., Docket No. 19-1301 (issued January 29, 2020); S.C., Docket No. 18-1242 (issued March 13, 2019); Victor J.
Woodhams, 41 ECAB 345, 352 (1989).
6

I.J., Docket No. 19-1343 (issued February 26, 2020); T.H., 59 ECAB 388 (2008); Robert G. Morris, 48 ECAB
238 (1996).
7

D.J., Docket No. 19-1301 (issued January 29, 2020).

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medical record and case history. He provided explanation as to how appellant’s work duties
resulted in his diagnosed right hip condition.
The Board has long held that it is unnecessary that the evidence of record in a case be so
conclusive as to suggest causal connection beyond all possible doubt. Rather, the evidence
required is only that necessary to convince the adjudicator that the conclusion drawn is rational,
sound, and logical. 8 Dr. Krouse’s reports, while insufficient to meet appellant’s burden of proof
to establish his claim, raise an uncontroverted inference between his diagnosed right hip condition
and the accepted factors of appellant’s federal employment. Accordingly, his medical opinion is
sufficiently to require further development of appellant’s claim.9
It is well established that, proceedings under FECA are not adversarial in nature and, while
appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.10 OWCP has an obligation to see that justice is
done.11
On remand, OWCP shall refer appellant to a physician in the appropriate field of medicine,
along with the case record and a statement of accepted facts, for an examination and a rationalized
medical opinion as to whether the accepted employment factors either caused or aggravated h is
diagnosed right hip conditions. 12 If the second opinion physician disagrees with the opinion of
Dr. Krouse, he or she must provide a fully-rationalized explanation explaining why the accepted
employment factors were insufficient to have caused or aggravated appellant’s right hip condition.
After this and other such further development as deemed necessary, OWCP shall issue a de novo
decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

8

B.H., Docket No. 20-0734 (issued November 13, 2020); W.M., Docket No. 17-1244 (issued November 7, 2017);
E.M., Docket No. 11-1106 (issued December 28, 2011); Kenneth J. Deerman, 34 ECAB 641, 645 (1983) and cases
cited therein.
9

D.S., Docket No. 17-1359 (issued May 3, 2019); X.V., Docket No. 18-1360 (issued April 12, 2019); C.M., Docket
No. 17-1977 (issued January 29, 2019); William J. Cantrell, 34 ECAB 1223 (1983).
10

See id. See also A.P., Docket No. 17-0813 (issued January 3, 2018); Jimmy A. Hammons, 51 ECAB 219,
223 (1999).
11

See B.C., Docket No. 15-1853 (issued January 19, 2016); E.J., Docket No. 09-1481 (issued February 19, 2010);
John J. Carlone, 41 ECAB 354 (1989).
12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
C.C., Docket No. 19-1631 (issued February 12, 2020).

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ORDER
IT IS HEREBY ORDERED THAT the March 24, 2021 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: March 4, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
DUBLIN VA MEDICAL CENTER, Dublin, GA,
Employer
__________________________________________

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

Docket No. 21-0720
Issued: February 4, 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 April 12, 2021 appellant filed a timely appeal from an April 7, 2021 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed
from the last merit decision on the recurrence issue, dated October 22, 2019, 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 following the April 7, 2021 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.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her recurrence claim, finding that it was untimely filed and failed to demonstrate clear
evidence of error.
FACTUAL HISTORY
On October 23, 2018 appellant, then a 45-year-old licensed practical nurse, filed a
traumatic injury claim (Form CA-1) alleging that on September 26, 2018 she sustained bilateral
arm and shoulder pain, and back pain radiating to her lower extremities while assisting a co-worker
prepare a patient for care. She stopped work and returned on November 8, 2018. OWCP accepted
the claim for lower back muscle, fascia, and tendon strain.
The record contains a duty status form (Form CA-17) dated December 28, 2018 from
Dr. Harvey Jones, a physician Board-certified in general surgery and internal medicine.
Dr. Harvey diagnosed L4-5 herniated disc with sciatica. He provided work restrictions which
included no lifting.
On January 2, 2019 appellant accepted a transitional limited-duty practical nurse
assignment, which was based on the lifting restriction provided by Dr. Jones.
The record contains a Form CA-17 and a narrative report dated July 29, 2019 from
Dr. Jones. In the July 29, 2019 narrative report, Dr. Jones noted appellant’s history of injury and
medical treatment. He related appellant’s physical examination findings and diagnosed sciatica,
obesity, L5-S1 bulging disc, lumbar intervertebral disorders with myelopathy, lumbosacral
intervertebral disc displacement, bilateral sciatica, and L4-5 herniated disc. In a Form CA-17 of
even date, Dr. Jones provided work restrictions of no lifting and up to one-half hour of sitting,
standing, walking, climbing, bending/stooping, twisting, pulsing/pushing, simple grasping,
reaching above the shoulder, and fine manipulation.
On August 19, 2019 appellant filed a claim for compensation (Form CA-7) for disability
from work for the period July 29 through August 9, 2019.
In an August 22, 2019 development letter, OWCP provided a definition of a recurrence of
disability. It advised appellant of the factual and medical evidence necessary to establish her claim,
provided a questionnaire for her completion, and afforded her 30 days to submit additional
evidence.
On August 27, 2019 appellant was seen by Dr. Daniel W. Moore, a Board-certified
neurological surgeon. Dr. Moore related that appellant was seen for complaints of leg and low
back pain, and difficulty walking. He noted appellant’s physical and magnetic resonance imaging
(MRI) scan examination findings and diagnosed lumbar radiculopathy, and bilateral sciatica.
By decision dated October 22, 2019, OWCP denied appellant’s recurrence claim, finding
that the evidence of record was insufficient to establish causal relationship between her claimed
disability and the accepted lower back muscle, fascia, and tendon strain. It explained that appellant

2

had not established that she was disabled due to a material change/worsening of the accepted
employment-related conditions.
In a May 6, 2020 letter, Anslie Prudhome, a certified nurse practitioner, related that
appellant was evaluated that day for a September 26, 2018 employment injury. On examination,
she reported bilateral L1-5 paraspinal tenderness on palpation along the iliac crests, lumbar pain
with range of motion (ROM), bilateral greater trochanters, and bilateral piriformis. Ms. Prudhome
indicated that appellant was temporarily totally disabled from work.
OWCP thereafter received a number of reports from treating physician , Dr. Victor
Osisanya, Board-certified in physical medicine and rehabilitation. In reports dated May 6, June 9,
July 15, August 17, September 17, October 10, November 24, and December 28, 2020,
Dr. Osisanya noted that appellant injured her neck and low back on September 26, 2018 while
performing her work duties. He provided examination findings and reviewed the results of
diagnostic testing. In addition to the accepted condition of lumbar strain, Dr. Osisanya listed as
upgraded diagnoses cervical strain, cervical radiculopathy, lumbar region intervertebral disc
displacement lumbosacral intervertebral disc displacement, and lumbar radiculopathy. He related:
“[W]ith reasonable degree of medical certainty, the injuries that patient sustained
are traumatic in nature as they are a direct result of her work-related accident and
happened acutely within one shift. The nature of patient’s job makes her
susceptible to joint, muscle, and ligament issues…. More specifically, cervical and
lumbar spine joints, paraspinal muscles, ligaments and soft tissues were stretched
beyond normal muscle strength when patient reached outwards to push the patient
over to her coworker. This led to a cervical strain (S16.1XXA-Cervical strain) and
lumbar strain which are common from this mechanism. Also, leaning patient to
help push him on his side, placed her spine at an anatomical disadvantage which
put unnatural stress on her spine which led to increased loading forces on the
cervical and lumbar spine which has caused inflammatory reaction in the cervical
and lumbar paraspinals muscles, tendons and discs, and increasing intra discal
pressure which led to bulging/herniated discs in her cervical and lumbar spine.”
Dr. Osisanya also completed CA-17 forms on the same dates indicating that appellant was
unable to return to work.
On December 15, 2020 OWCP referred the case record to District Medical Adviser,
Dr. Arthur S. Harris, a Board-certified orthopedic surgeon, and requested that he provide an
opinion as to whether the accepted employment incident was competent to cause the additional
diagnoses reported by Dr. Osisanya. In a December 16, 2020 report, Dr. Harris, reviewed
appellant’s medical records and recommended that OWCP expand acceptance of the claim to
include lumbar intervertebral disc displacement and lumbar radiculopathy. He also related that
the medical evidence of record did not document that appellant sustained injury to her cervical
spine or had treatment for her cervical spine prior to the evaluation by Dr. Osisanya on
November 24, 2020. Dr. Harris explained that while Dr. Osisanya provided a diagnosis of cervical

3

strain, his reports did not document any ongoing problems with the cervical spine other than
complaints of cervical spine pain during examination. 3
On March 10, 2021 appellant requested reconsideration of the October 22, 2019 decision,
contending that she returned to work on November 8, 2018 not November 8, 2019 and that she did
not return to a full-duty shift as noted in the decision, that her paperwork had been misplaced by
the employing establishment, and at no point did she return to her date-of-injury job. She further
noted that her work schedule was amended to light-duty work following her submission of a work
excuse from her chiropractor. Appellant also submitted: a September 7, 2018 employing
establishment incident report; a Form CA-17 dated September 27, 2018; a September 30, 2018
report of employee’s emergency treatment; an October 19, 2018 MRI scan by Dr. Jack M.
Considine, a Board-certified diagnostic radiologist diagnosing L5-S1 moderate bilateral forminal
narrowing and L4-5 mild bilateral recess and mild bilateral f oraminal narrowing; work excuse
notes dated October 3 and 22, 2018 from Dr. Stacey Ashley, a chiropractor; e-mail correspondence
dated October 26, 2018 noting her OWCP claim number; and a duplicate copy of limited-duty job
offer which she accepted on January 2, 2019.
OWCP also received a March 1, 2021 report from Dr. Dominic Seymour, a specialist in
physical medicine and rehabilitation, documenting that he had examined appellant as a new patient
on that date.
By decision dated April 7, 2021, OWCP denied appellant’s March 10, 2021 request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.
It included a list of the evidence that appellant submitted, with the receipt date, and discussed each
document in reaching its determination that appellant did not demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for f urther
merit review.4 This discretionary authority, however, is subject to certain restrictions. A request
for reconsideration must be received within one year of the date of OWCP’s decision for which
review is sought. 5 Timeliness is determined by the document receipt date (i.e., the “received date”
in OWCP’s Integrated Federal Employees’ Compensation System (iFECS)). 6 Imposition of this
one-year filing limitation does not constitute an abuse of discretion. 7

3

On January 28, 2021 OWCP expanded the acceptance of appellant’s claim to include L4-5, L5-S1 lumbar
radiculopathy and L4-5, L5-S1 other intervertebral lumbar region disc displacement.
4

5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued
March 16, 2009).
5

20 C.F.R. § 10.607(a).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (February 2016).

7

G.G., Docket No. 18-1074 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).

4

When a request for reconsideration is untimely, OWCP undertakes a limited review to
determine whether the request demonstrates clear evidence that OWCP’s most recent merit
decision was in error. 8 OWCP’s procedures provide that it will reopen a claimant’s case for merit
review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the
claimant’s request for reconsideration demonstrates clear evidence of error on the part of OWCP. 9
In this regard, OWCP will limit its focus to a review of how the newly submitted evidence bears
on the prior evidence of record. 10
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP. 11 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error. Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate
clear evidence of error. It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP. To demonstrate clear evidence
of error, the evidence submitted must not only be of sufficient probative value to create a conflict
in medical opinion or establish a clear procedural error, but must be of sufficient probative value
to shift the weight of the evidence in favor of the claimant and raise a substantial question as to
the correctness of OWCP’s decision. The Board makes an independent determination as to
whether a claimant has demonstrated clear evidence of error on the part of OWCP.12
ANALYSIS
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed.
OWCP’s regulations13 and procedures 14 establish a one-year time limit for requesting
reconsideration, which begins on the date of the last merit decision issued in the case. A right to

8

See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB
499, 501-02 (1990).
9

L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See
also id. at § 10.607(b); supra note 6 at Chapter 2.1602.5 (February 2016).
10

J.M., Docket No. 19-1842 (issued April 23, 2020); J.W., Docket No. 18-0703 (issued November 14, 2018);
Robert G. Burns, 57 ECAB 657 (2006).
11

S.C., Docket No. 18-0126 (issued May 14, 2016); supra note 6 at Chapter 2.1602.5(a) (February 2016).

12

U.C., Docket No. 19-1753 (issued June 10, 2020).

13

20 C.F.R. § 10.607(a); see F.N., Docket No. 18-1543 (issued March 6, 2019); Alberta Dukes, 56 ECAB
247 (2005).
14

Supra note 6 at Chapter 2.1602.4 (February 2016); see L.A., Docket No. 19-0471 (issued October 29, 2019);
Veletta C. Coleman, 48 ECAB 367, 370 (1997).

5

reconsideration within one year also accompanies any subsequent merit decision on the issues. 15
The most recent merit decision pertaining to appellant’s recurrence claim was dated
October 22, 2019. As OWCP received her request for reconsideration on March 10, 2021, more
than one year after the October 22, 2019 decision, the Board finds that it was untimely filed.
Consequently, appellant must demonstrate clear evidence of error on the part of OWCP in denying
her recurrence claim.
The Board further finds that the case is not in posture for decision with regard to whether
appellant has demonstrated clear evidence of error.
On reconsideration, appellant submitted a March 1, 2021 report from Dr. Seymour,
documenting that he had examined appellant as a new patient on that date. The Board, having
duly considered the matter, notes that in denying appellant’s reconsideration request, OWCP failed
to consider Dr. Seymour’s March 1, 2021 report. OWCP listed the evidence submitted by
appellant, including receipt dates, and reviewed them, but neither included nor discussed
Dr. Seymour’s report. Because Board decisions are final with regard to the subject matter
appealed,16 it is crucial that OWCP address all of the relevant evidence received prior to the
issuance of its final decision. 17 As OWCP did not review Dr. Seymour’s March 1, 2021 report in
its April 7, 2021 decision, the Board finds that this case is not in posture for decision. 18 On remand,
OWCP shall review all of the evidence that was of record at the time of its April 7, 2021decision.
Following this and other such further development as deemed necessary, it shall issue an
appropriate decision.
CONCLUSION
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed.
The Board further finds that the case is not in posture for decision with regard to whether
appellant failed to demonstrate clear evidence of error.

15

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

16

Id. at § 501.6(d).

17

See B.C., Docket No. 15-1222 (issued October 20, 2015); William A. Couch, 41 ECAB 548, 553 (1990).

18

See M.N., Docket No. 20-0110 (issued July 7, 2020); Y.B., Docket No. 20-0205 (issued July 7, 2020); H.H.,
Docket No. 14-1985 (issued June 26, 2015).

6

ORDER
IT IS HEREBY ORDERED THAT the April 7, 2021 decision of the Office of Workers’
Compensation Programs is affirmed in part and set aside in part. The case is remanded to OWCP
for further proceedings consistent with this decision of the Board.
Issued: February 4, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Brooklyn, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-765
Issued: June 13, 2013

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 February 1, 2013 appellant filed a timely appeal from a September 13, 2012 decision
of the Office of Workers’ Compensation Programs (OWCP) denying his traumatic injury claim
and a December 31, 2012 nonmerit decision denying his request for an oral hearing. 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.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that his
cervical and right shoulder conditions were causally related to the April 18, 2012 employment
incident; and (2) whether OWCP properly denied appellant’s request for an oral hearing as
untimely filed under 5 U.S.C. § 8124.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 15, 2012 appellant, then a 61-year-old motor vehicle operator, filed a traumatic
injury claim alleging that on April 18, 2012 he sustained an injury to his right shoulder rotator
cuff. He pushed a cage to unload a truck when it stopped suddenly. Appellant stopped work on
May 15, 2012.2
In a May 12, 2012 return to work slip, Dr. Philippe Noel, a Board-certified internist,
stated that appellant was under his care since May 14, 2012 for severe rotator cuff syndrome. He
noted that appellant was able to return to work on May 29, 2012 with no restrictions.
In an undated return to work slip, Dr. Noel stated that appellant was under his care since
May 14, 2012 for severe rotator cuff syndrome. Appellant was unable to return to work until
further notice. In another undated note, Dr. Noel authorized appellant to return to work on
May 29, 2012 without restrictions.
In a May 14, 2012 form report, Dr. Noel diagnosed cervical sprain and radiculopathy and
right shoulder rotator cuff syndrome. He checked boxes indicating that appellant complained of
numbness, tingling, pain and stiffness. Examination revealed abnormal and restricted range of
motion of the right shoulder and spasm upon palpation. Dr. Noel marked “yes” that the incident
appellant described was the medical cause of the injury or illness. He noted that appellant could
not return to work due to pain and limited range of motion of the upper extremity.
In a June 5, 2012 report, Dr. Robert F. Carter, a Board-certified orthopedic surgeon,
related that appellant sustained injuries to his neck and right shoulder at work last month when
he pushed a cage and jammed his arm. Appellant complained of neck pain and stiffness, right
shoulder pain and stiffness, radicular and right arm pain with paresthesias in the right hand.
Dr. Carter reported no prior history or pain or injury to the cervical spine or right shoulder.
Upon examination of the cervical spine, he observed restricted right range of motion with mild
pain and mild right trapezius tenderness. Spurling’s test was negative. Examination of the right
shoulder revealed full motion with pain and lateral subacromial tenderness. Neer and Hawkins
tests were positive. Dr. Carter noted good rotator cuff and deltoid strain. He reported that x-rays
of the cervical spine revealed mild lower cervical degenerative disc disease. Dr. Carter
diagnosed acute sprain to the cervical spine and right shoulder and right rotator cuff tendinitis.
In a July 12, 2012 progress note, Dr. Noel examined appellant following an accident that
occurred on April 18, 2012. He diagnosed cervical sprain and radiculopathy and right rotator
cuff syndrome.
In a July 12, 2012 attending physician’s report, Dr. Noel stated that on April 18, 2012
appellant sustained injuries to his neck and right shoulder after lifting an object at work. He
noted tenderness of appellant’s right rotator cuff and cervical spine. Dr. Noel diagnosed cervical
sprain and right rotator cuff syndrome. He checked “yes” that appellant’s condition was caused

2

The record reveals that appellant filed a previous traumatic injury claim for an alleged February 2, 2005 injury.
(File No. xxxxxx069).

2

or aggravated by an employment activity. Dr. Noel noted that appellant was totally disabled
since May 14, 2012 and that he was able to resume regular duty on September 1, 2012.
In a July 30, 2012 report, Dr. Carter stated that appellant’s right shoulder was much better
after a cortisone shot and physical therapy; but he continued to have significant cervical spine
and radicular pain of the right arm and numbness of the right forearm. Examination of the
cervical spine revealed restricted rotation on the right side and tenderness. Spurling’s test was
positive. Dr. Carter ruled out cervical herniated nucleus pulposus (HNP).
Appellant filed various claims for disability compensation for the period June 29 to
August 10, 2012.
On August 9, 2012 OWCP advised appellant that the evidence submitted was insufficient
to establish his claim. It requested additional evidence to establish that the April 18, 2012
incident occurred as alleged and medical evidence to support that he sustained a diagnosed
condition as a result of the alleged incident.
In an August 6, 2012 duty status report, a provider with an illegible signature noted that
on March 26, 2012 appellant sustained cervical spondylosis as a result of pushing a cage at work.
Appellant was not authorized to return to work.
In an August 6, 2012 report, Dr. Noel stated that appellant was examined following an
accident on April 18, 2012 when he lifted a heavy object. Examination revealed decreased range
of motion and tenderness of the cervical spine. Dr. Noel diagnosed cervical spine radiculopathy
and right rotator cuff syndrome.
In an August 9, 2012 nerve conduction study (NCV) and electrodiagnostic (EMG) report,
Dr. Carter related appellant’s complaints of neck pain and tingling in the right upper extremity.
Examination revealed decreased sensation in the right thumb and index fingers. Dr. Carter
reported that the NCV studies were within normal limits. The EMG revealed mild denervating
potentials in the right pronator teres and extensor carpi radicalis muscles. Paraspinal
musculature was normal. Dr. Carter stated that there was potential for acute radiculopathy, but
there were not enough supportive findings to regard his condition as acute in nature. He
concluded that the NCV was a normal study with no indication of peripheral neuropathy but the
EMG was an abnormal study with potential for right side radiculopathy most probable at C6-7.
In an August 25, 2012 statement, appellant explained that on the day of the accident he
was unloading his truck at the general mail facility (GMF). While pushing one of the cages the
pin dropped down which caused the cage to stop suddenly and sent a jolt through his body.
Appellant reported the incident to his immediate supervisors.
In an August 27, 2012 report, Dr. Carter stated that appellant’s neck and shoulder were
much better since his physical therapy treatment. Appellant had mild right paracervical stiffness
and minimal numbness to the right arm but no weakness. Upon examination of the cervical
spine, Dr. Carter observed full motion with minimal pain on rotation and minimal trapezius
tenderness. Motor, sensory and reflexes were intact. Dr. Carter noted that an EMG/NCV of the
cervical spine and right upper extremity revealed minimal right C6-7 radiculopathy with no
peripheral neuropathy. He authorized appellant to return to work and continue physical therapy.
3

In an August 27, 2012 return to work slip, Dr. Carter diagnosed displacement of a
thoracic/lumbar intervertebral disc and disorders of bursae tendon in his shoulder. He authorized
appellant to return to work full duty on September 1, 2012. Disability notes from an unknown
provider were also submitted to the record.
In a decision dated September 13, 2012, OWCP denied appellant’s claim finding
insufficient medical evidence to establish his claim. It accepted that the April 18, 2012 incident
occurred as alleged but found that the medical evidence failed to establish that his cervical
condition was causally related to the accepted incident.
In an appeal form dated October 26, 2012 and postmarked October 30, 2012, appellant
requested an oral hearing. He stated that Dr. Carter reported that his injuries were causally
related to the May 2012 work injury. Appellant resubmitted medical reports from Dr. Noel and
Dr. Carter.
By decision dated December 31, 2012, an OWCP hearing representative denied
appellant’s request for a hearing as untimely under section 8124. She found that appellant’s
request for an oral hearing was dated and signed October 26, 2012, which was more than 30 days
after the September 13, 2012 decision. The hearing representative exercised discretion to
determine that the issue of whether appellant sustained a traumatic injury as a result of the
April 18, 2012 employment incident could be equally well addressed by requesting
reconsideration before OWCP and submitting evidence not previously considered.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence4 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.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether “fact of injury” has been established.6
There are two components involved in establishing the fact of injury. 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
evidence, generally only in the form of probative medical evidence, to establish that the

3

5 U.S.C. §§ 8101-8193.

4

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

5

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

6

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

7

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

4

employment incident caused a personal injury.8 An employee may establish that the
employment incident occurred as alleged but fail to show that his or her disability or condition
relates to the employment incident.9
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence.10 The opinion of the physician must be
based on a complete factual and medical background of the employee, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.11 The weight of the medical evidence is determined by its reliability, its probative
value, its convincing quality, the care of analysis manifested and the medical rationale expressed
in support of the physician’s opinion.12
ANALYSIS -- ISSUE 1
Appellant alleged that on April 18, 2012 he sustained cervical and right shoulder
conditions as a result of stopping suddenly when a pin dropped down causing the cage he was
pushing to stop suddenly. OWCP accepted that the April 18, 2012 incident occurred. It denied
appellant’s claim finding insufficient medical evidence to establish that his cervical or shoulder
conditions were causally related to the accepted incident. The Board finds that he did not meet
his burden of proof to establish that his cervical and right shoulder conditions were causally
related to the April 18, 2012 employment incident.
Appellant was initially treated by Dr. Noel on May 12, 2012, approximately one month
after the incident, for complaints of numbness, tingling, pain and stiffness in his neck and right
shoulder. Upon examination, Dr. Noel noted abnormal and restricted range of motion of the
right shoulder and spasm upon palpation. He diagnosed cervical sprain and radiculopathy and
severe right shoulder rotator cuff syndrome. In July 12 and August 6, 2012 reports, Dr. Noel
stated that on April 18, 2012 appellant injured his neck and right shoulder when he lifted a heavy
object at work. Appellant, however, explained that he sustained an injury when a pin dropped
causing the cage he was pushing to stop suddenly, which caused him to jam his shoulder. It is
well established that medical reports must be based on a complete and accurate factual and
medical background. The Board has held that medical opinions based on an incomplete or
inaccurate history are of diminished probative value.13 Dr. Noel also checked “yes” that
appellant’s condition was caused or aggravated by the described employment activity. The
Board has held that when a physician’s opinion on causal relationship consists only of checking
“yes” to a form question, without explanation or rationale, that opinion is of diminished
8

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

9

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

10

See J.Z., 58 ECAB 529 (2007); Paul E. Thams, 56 ECAB 503 (2005).

11

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

12

James Mack, 43 ECAB 321 (1991).

13

J.R., Docket No. 12-1099 (issued November 7, 2012); Douglas M. McQuaid, 52 ECAB 382 (2001).

5

probative value and is insufficient to establish a claim.14 Dr. Noel failed to provide an accurate
history of appellant’s injury or adequate rationale explaining how appellant’s cervical and right
shoulder conditions were causally related to the April 18, 2012 employment incident. For these
reasons, the Board finds that his reports are insufficient to establish appellant’s claim.
Dr. Carter related appellant’s complaints of pain and numbness in his neck and right
shoulder when he pushed a cage and jammed his arm at work. Upon examination, he observed
restricted range of motion with mild pain of the cervical spine and mild right trapezius
tenderness. Spurling’s test was negative. Examination of the right shoulder revealed full motion
with pain and lateral subacromial tenderness. In an August 9, 2012 report, Dr. Carter concluded
that the NCV studies were normal but the EMG revealed potential for right side radiculopathy
most probable at C6-7. He diagnosed acute sprain to the cervical spine and right shoulder and
right rotator cuff tendinitis. While Dr. Carter had an accurate history of the accepted April 18,
2012 employment incident and provided a diagnosis based on examination findings, he did not
provide any opinion on whether appellant’s diagnosed conditions were causally related to the
accepted incident. The Board has found that medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of
causal relationship.15 Dr. Carter’s reports, therefore, also fail to establish causal relationship.
Appellant also submitted disability slips by an unknown provider with an illegible
signature which indicated that he sustained an injury at work and was able to return to full duty
on September 1, 2012. The Board has held that reports that are unsigned or that bear illegible
signatures cannot be considered as probative medical evidence because they lack proper
identification.16 These reports, therefore, are insufficient to establish appellant’s claim.
On appeal, appellant contends that his physicians supported his injury as work related.
As noted, however, the medical evidence on the record is insufficient to establish that his
cervical and right shoulder conditions were causally related to the accepted April 18, 2012
employment incident. The issue of causal relationship is a medical question that must be
established by probative medical opinion from a physician.17 Accordingly, 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 10.607.18

14

D.D., 57 ECAB 734, 738 (2006); Deborah L. Beatty, 54 ECAB 340 (2003).

15

R.E., Docket No. 10-679 (issued November 16, 2010); K.W., 59 ECAB 271 (2007).

16

Thomas L. Agee, 56 ECAB 465 (2005); Richard F. Williams, 55 ECAB 343 (2004).

17

W.W., Docket No. 09-1619 (issued June 2, 2010); David Apgar, supra note 8.

18

The Board notes that appellant filed various claims for disability compensation for the period June 29 to
August 10, 2012. Because his traumatic injury claim was denied, appellant is not entitled to compensation for total
disability.

6

LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides that a claimant for compensation not satisfied with
a decision of the Secretary is entitled, on request made within 30 days after the date of the
issuance of the decision, to a hearing on his claim before a representative of the Secretary.19
Sections 10.617 and 10.618 of the federal regulations implementing this section of FECA
provide that a claimant shall be afforded a choice of an oral hearing or a review of the written
record by a representative of the Secretary.20 A claimant is entitled to a hearing or review of the
written record as a matter of right only if the request is filed within the requisite 30 days as
determined by postmark or other carrier’s date marking and before the claimant has requested
reconsideration.21 Although there is no right to a review of the written record or an oral hearing
if not requested within the 30-day time period, OWCP may within its discretionary powers grant
or deny appellant’s request and must exercise its discretion.22 OWCP procedures require that it
exercise its discretion to grant or deny a hearing when the request is untimely or made after
reconsideration under section 8128(a).23
ANALYSIS -- ISSUE 2
On September 13, 2012 OWCP denied appellant’s traumatic injury claim. Appellant
requested an oral hearing in an appeal form dated October 26, 2012 and postmarked
October 30, 2012. The Board notes that his request for an oral hearing was submitted more than
30 days after the September 13, 2012 decision. Section 8124(b)(1) is unequivocal on the time
limitation for requesting a hearing.24 The Board finds that OWCP properly determined that
appellant’s request for an oral hearing was not timely and, thus, he was not entitled to a hearing
as a matter of statutory right under section 8124(b)(1) of FECA.
Although appellant’s request for a hearing was untimely, OWCP has the discretionary
authority to grant the request and it must exercise such discretion. In a December 31, 2012
decision, the hearing representative properly exercised her discretion by notifying him that she
had considered the matter in relation to the issue involved and indicated that additional argument
and evidence could be submitted with a request for reconsideration. The Board has held that the
only limitation on OWCP’s authority is reasonableness and an abuse of discretion is generally
shown through proof of manifest error, a clearly unreasonable exercise of judgment or actions
taken which are contrary to both logic and probable deductions from established facts.25 In this
19

5 U.S.C. § 8124(b)(1).

20

20 C.F.R. §§ 10.616, 10.617.

21

Id. at § 10.616(a).

22

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

23

See R.T., Docket No. 08-408 (issued December 16, 2008); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Hearings and Review of the Written Record, Chapter 2.1601.2(a) (October 2011).
24

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

25

Samuel R. Johnson, 51 ECAB 612 (2000).

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case, the hearing representative did not abuse her discretion in denying appellant’s hearing
request. Accordingly, the Board finds that OWCP properly denied his request for an oral
hearing.
CONCLUSION
The Board finds that appellant did not establish that his cervical and right shoulder
conditions were causally related to the April 18, 2012 employment incident. The Board also
finds that OWCP properly denied his request for an oral hearing pursuant to 5 U.S.C.
§ 8124(b)(1).
ORDER
IT IS HEREBY ORDERED THAT the December 31 and September 13, 2012
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: June 13, 2013
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Savannah, GA, Employer
__________________________________________

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

Docket No. 06-1915
Issued: January 22, 2007

Case Submitted on the Record

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

JURISDICTION
On August 17, 2006 appellant filed a timely appeal from Office of Workers’
Compensation Programs’ decisions dated January 13 and March 20, 2006 which denied
appellant’s reconsideration requests on the grounds that they were untimely filed and failed to
establish clear evidence of error. Because more than one year has elapsed between the last merit
decision dated July 11, 1989 and the filing of this appeal, the Board lacks jurisdiction to review
the merits of appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).
ISSUE
The issue is whether the Office properly determined that appellant’s requests for
reconsideration were untimely filed and did not demonstrate clear evidence of error.
FACTUAL HISTORY
This is the second appeal before the Board. Appellant, a 33-year-old letter sorting
machine operator, filed a claim for benefits on December 10, 1986, alleging that he sustained a
tendinitis condition in the performance of duty. By decision dated August 3, 1987, the Office

denied appellant’s claim on the grounds that he failed to establish that his disability was causally
related to employment factors. By decision dated December 17, 1987, the Office denied
appellant’s claim on the grounds that it was not timely filed under section 8122. The Office
hearing representative affirmed the December 17, 1987 decision on May 17, 1988, and the
Office denied modification of the 1987 decision by decision dated July 11, 1989. In a July 19,
1990 decision,1 the Board affirmed the Office’s decisions. The Board found that: (1) appellant’s
claim for compensation was not timely filed within the three-year time limitation provision of the
Federal Employees’ Compensation Act; and (2) the employing establishment did not have timely
actual knowledge that appellant alleged that he had developed an arm condition casually related
to his job. The complete facts of this case are set forth in the Board’s July 19, 1990 decision and
are herein incorporated by reference.
By nonmerit decision dated July 22, 1999, the Office denied appellant’s claim for
reconsideration.
On March 18, 2005 appellant requested reconsideration. Appellant submitted medical
evidence from 1979, which he asserted, indicated that he had bilateral carpal tunnel syndrome
and that his supervisors had actual knowledge of his condition, which constituted a timely filing
of his claim. He submitted a February 7, 1997 affidavit from his union steward, Anthony
Gadson, who worked with appellant at the time he was employed with the employing
establishment. Mr. Gadson asserted in the affidavit that management was aware that appellant’s
carpal tunnel condition was work related. Appellant also submitted an undated, unsigned
typewritten statement which asserted that the medical evidence from 1979 and 1996 indicated
that appellant experienced severe tendinitis in his hands, primarily on the right, with limitation of
movement.2
By decision dated January 13, 2006, the Office denied appellant’s request for
reconsideration without a merit review, finding that appellant had not timely requested
reconsideration and had failed to submit factual or medical evidence sufficient to establish clear
evidence of error. The Office stated that appellant was required to present evidence which
showed that the Office made an error, and that there was no evidence submitted that showed that
its final merit decision was in error.
On March 3, 2006 appellant requested reconsideration.
Appellant submitted a
September 17, 1979 letter from postmaster Charles S. Dubberly who informed appellant in his
letter that he had received correspondence regarding his claim and that such correspondence
should be submitted to the Office for adjudication.
By decision dated March 20, 2006, the Office denied appellant’s request for
reconsideration without a merit review, finding that appellant had not timely requested
reconsideration and had failed to submit factual or medical evidence sufficient to establish clear
evidence of error. The Office stated that appellant was required to present evidence which
1

Docket No. 06-340 (issued June 19, 2006).

2

The Office noted that appellant visited the district Office on January 9, 2006 and informed the claims examiner
that the Office had misconstrued appellant’s March 18, 2005 request for reconsideration as a petition for review.

2

showed that the Office made an error, and that there was no evidence submitted that showed that
its final merit decision was in error.
LEGAL PRECEDENT
Section 8128(a) of the Act3 does not entitle an employee to a review of an Office decision
as a matter of right.4 This section, vesting the Office with discretionary authority to determine
whether it will review an award for or against compensation, provides:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may-(1) end, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”
The Office, through its regulations, has imposed limitations on the exercise of its
discretionary authority under 5 U.S.C. § 8128(a).5 As one such limitation, the Office has stated
that it will not review a decision denying or terminating a benefit unless the application for
review is filed within one year of the date of that decision.6 The Board has found that the
imposition of this one-year time limitation does not constitute an abuse of the discretionary
authority granted by the Office under 5 U.S.C. § 8128(a).7
In those cases where a request for reconsideration is not timely filed, the Board had held
however that the Office must nevertheless undertake a limited review of the case to determine
whether there is clear evidence of error pursuant to the untimely request.8 Office procedures
state that the Office will reopen an appellant’s case for merit review, notwithstanding the oneyear filing limitation set forth in 20 C.F.R. § 10.607(b), if appellant’s application for review
shows “clear evidence of error” on the part of the Office.9

3

5 U.S.C. § 8128(a).

4

Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989), petition for recon. denied,
41 ECAB 458 (1990).
5

Thus, although it is a matter of discretion on the part of the Office whether to review an award for or against
payment of compensation, the Office has stated that a claimant may obtain review of the merits of a claim by:
(1) showing that the Office erroneously applied or interpreted a point of law; or (2) advances a relevant legal
argument not previously considered by the Office; or (3) submitting relevant and pertinent new evidence not
previously considered by the Office. See 20 C.F.R. § 10.606(b).
6

20 C.F.R. § 10.607(b).

7

See cases cited supra note 4.

8

Rex L. Weaver, 44 ECAB 535 (1993).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b) (May 1991).

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To establish clear evidence of error, an appellant must submit evidence relevant to the
issue which was decided by the Office.10 The evidence must be positive, precise and explicit and
must be manifested on its face that the Office committed an error.11 Evidence which does not
raise a substantial question concerning the correctness of the Office’s decision is insufficient to
establish clear evidence of error.12 It is not enough merely to show that the evidence could be
construed so as to produce a contrary conclusion.13 This entails a limited review by the Office of
how the evidence submitted with the reconsideration request bears on the evidence previously of
record and whether the new evidence demonstrates clear error on the part of the Office.14 To
show clear evidence of error, the evidence submitted must not only be of sufficient probative
value to create a conflict in medical opinion or establish a clear procedural error, but must be of
sufficient probative value to prima facie shift the weight of the evidence in favor of the claimant
and raise a substantial question as to the correctness of the Office’s decision.15 The Board makes
an independent determination of whether an appellant has submitted clear evidence of error on
the part of the Office such that the Office abused its discretion in denying merit review in the
face of such evidence.16
ANALYSIS
The Office properly determined in this case that appellant failed to file a timely
application for review. The Office issued its last merit decision in this case on July 11, 1989.17
Appellant requested reconsideration on March 18, 2005 and March 3, 2006; thus, appellant’s
reconsideration request is untimely as it was outside the one-year time limit.
The Board finds that appellant’s March 18, 2005 request for reconsideration failed to
show clear evidence of error. The medical reports from 1979 are of limited probative value as
they were previously considered and rejected by the Office and the Board in previous decisions.
The February 7, 1997 affidavit from his union steward has limited probative value as he is
purporting to speak for employing establishment management without any documentary
evidence as to their knowledge of appellant’s claimed carpal tunnel condition. Appellant’s
March 3, 2006 request for reconsideration similarly failed to show clear evidence of error. The
September 17, 1979 letter from Postmaster Charles S. Dubberly does not support his claim.
10

See Dean D. Beets, 43 ECAB 1153 (1992).

11

See Leona N. Travis, 43 ECAB 227 (1991).

12

See Jesus D. Sanchez, supra note 4.

13

See Leona N. Travis, supra note 11.

14

See Nelson T. Thompson, 43 ECAB 919 (1992).

15

Leon D. Faidley, Jr., supra note 4.

16

Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458 (1990).

17

The Office stated in its January 13, 2006 decision that the most recent merit decision was issued on
May 17, 1988. In its March 20, 2006 decision, it stated that the last merit decision was dated June 19, 1990. As the
Office properly found that appellant’s requests for reconsideration were untimely, any error is harmless.

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Mr. Dubberly merely advised appellant that he needed to submit correspondence regarding his
claim to the Office; thus, his letter has no probative value.
The Office reviewed the evidence and properly found it to be insufficient to prima facie
shift the weight of the evidence in favor of appellant. Consequently, the evidence submitted by
appellant on reconsideration is insufficient to establish clear evidence of error on the part of the
Office such that the Office abused its discretion in denying merit review. The Board finds that
the Office did not abuse its discretion in denying further merit review in its January 13 and
March 20, 2006 decisions.
CONCLUSION
The Board finds that appellant has failed to submit evidence establishing clear error on
the part of the Office in his March 18, 2005 and March 3, 2006 reconsideration requests.
Inasmuch as appellant’s reconsideration requests were untimely filed and failed to establish clear
evidence of error, the Office properly denied further review on January 13 and March 20, 2006.
ORDER
IT IS HEREBY ORDERED THAT the March 20 and January 13, 2006 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: January 22, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Seattle, WA, Employer
__________________________________________

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

Docket No. 12-644
Issued: June 25, 2012

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 January 30, 2012 appellant filed a timely appeal from a December 6, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her occupational
disease claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.2
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained
bilateral carpal tunnel syndrome and right medial neuritis causally related to factors of her
federal employment.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the December 6, 2011 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1). Appellant may resubmit this evidence, together with a written request
for reconsideration to OWCP, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.

FACTUAL HISTORY
On October 4, 2011 appellant, then a 63-year-old physician, filed an occupational disease
claim (Form CA-2) alleging probable bilateral carpal tunnel syndrome and right medial nerve
neuritis due to her repetitive work on a keyboard and mouse. She first became aware of her
condition and attributed it to her federal employment on August 8, 2011, after experiencing
tingling and burning sensation with griping and squeezing motions.
By letter dated October 20, 2011, OWCP requested that appellant submit medical
evidence from a treating physician that included dates of examination and treatment, history of
injury, examination findings, diagnosis, and the physician’s opinion supported by a medical
explanation as to how the reported work conditions caused her medical condition.
Appellant did not submit any medical evidence.
By decision dated December 6, 2011, OWCP denied appellant’s claim.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden to establish the essential
elements of his 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, 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.4
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.5
ANALYSIS
The Board finds that appellant failed to meet her burden of proof. While appellant
alleged that she sustained probable carpal tunnel syndrome right medial nerve neuritis due to
repetitive work on the keyboard and mouse, she did not submit the requisite medical evidence to
establish her claim.
It is appellant’s burden to submit a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition.
It is also her burden to submit medical evidence from a treating physician to establish a diagnosis
3

5 U.S.C. §§ 8101-8193.

4

Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

5

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

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of the disease or condition for which compensation is claimed and that the diagnosed condition is
causally related to the implicated employment factors. The Board finds that appellant failed to
submit any medical evidence to establish a firm medical diagnosis or the causal relationship
between her claimed condition and factors of her federal employment. Although OWCP
informed appellant of the deficiencies in the evidence, she did not submit sufficient factual and
medical evidence to establish her claim. Appellant did not meet her burden of proof to establish
that she sustained an employment-related injury.6
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 failed to meet her burden of proof to establish that she
sustained a medical condition in the performance of duty causally related to factors of her federal
employment.
ORDER
IT IS HEREBY ORDERED THAT the December 6, 2011 decision of Office of
Workers’ Compensation Programs is affirmed.
Issued: June 25, 2012
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

6

See Donald W. Wenzel, 56 ECAB 390 (2005).

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