United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Des Moines, IA, Employer
__________________________________________

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Appearances:
Linda Temple, for the appellant
Office of Solicitor, for the Director

Docket No. 08-441
Issued: June 6, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 28, 2007 appellant timely appealed the October 30, 2007 nonmerit
decision of the Office of Workers’ Compensation Programs, which denied his September 13,
2007 request for reconsideration. He also timely appealed the October 26, 2007 merit decision
denying wage-loss compensation on or after June 7, 2007. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3(d), the Board has jurisdiction over the merits of appellant’s claim for wage-loss
compensation beginning June 7, 2007.1

1

The record on appeal includes additional medical evidence received after the Office issued its October 26, 2007
merit decision. Although this evidence is relevant to appellant’s claim for wage-loss compensation beginning
June 7, 2007, the Board cannot consider evidence for the first time on appeal. The review of a case shall be limited
to the evidence in the case record which was before the Office at the time of its final decision. 20 C.F.R.
§ 10.501.2(c).

ISSUES
The issues are: (1) whether the Office properly denied appellant’s September 13, 2007
request for reconsideration under 5 U.S.C. § 8128(a); and (2) whether appellant was disabled
from June 7 to July 7, 2007 due to his September 20, 1996 employment injury.
FACTUAL HISTORY
Appellant, a 48-year-old letter carrier, has an accepted occupational disease claim for
bilateral carpal tunnel syndrome and left lunotriquetral ligament tear, which arose on or about
September 20, 1996. In 2003 he underwent three surgical procedures involving his left upper
extremity. The Office approved all three procedures. Appellant returned to his regular duties on
February 25, 2004. However, this was short-lived. Appellant filed a notice of recurrence on
March 24, 2004. He claimed he had not fully recovered from his injuries when he returned to his
regular duties on February 25, 2004. Nonetheless, appellant attempted to perform his regular
duties until March 16, 2004, when he could no longer continue. The employing establishment
provided appellant light-duty work effective March 17, 2004. On May 26, 2004 the Office
accepted appellant’s recurrence of disability beginning February 25, 2004.
In a decision dated August 19, 2005, the Office terminated appellant’s entitlement to
continuing disability on the basis that he was no longer disabled from performing his date-ofinjury position. However, he remained eligible for medical benefits.2 The decision was based on
the December 9, 2004 and February 15, 2005 reports of Dr. Peter D. Wirtz, a Board-certified
orthopedic surgeon and impartial medical examiner.3
Appellant subsequently requested an oral hearing, which was held on June 27, 2006. No
additional medical evidence was admitted into the record. By decision dated September 12,
2006, the Office hearing representative affirmed the termination of compensation benefits
effective August 19, 2005. Appellant remained eligible for medical benefits.
In February 2007, the Office received a request for authorization for a right carpal tunnel
release from Dr. John G. Piper, a Board-certified neurosurgeon. The Office granted Dr. Piper’s
request on March 15, 2007.
On July 16, 2007 appellant filed a claim for compensation (Form CA-7) for the period
June 7 to July 7, 2007. The employing establishment certified that appellant had stopped work
on June 7, 2007 and returned to limited duty effective July 10, 2007. The Office initially
received a June 7, 2007 preoperative electrocardiogram and a July 6, 2007 duty status report
(Form CA-17).

2

The Office issued a corrected copy of the decision on August 29, 2005. The August 19, 2005 decision
incorrectly identified the date of injury and the position appellant held at the time of injury.
3

The Office found a conflict of medical opinion between appellant’s treating physician, Dr. Timothy M.
Schurman, a Board-certified plastic surgeon, with a subspecialty in hand surgery and Dr. Keith W. Riggins, a Boardcertified orthopedic surgeon and Office referral physician.

2

By letter dated July 26, 2007, the Office advised appellant that there was no evidence to
support his absence from work for the period June 7 to July 7, 2007. The Office further
explained that, while surgery had been authorized, there was no evidence, such as an operative
report, to establish that the surgery had occurred. Appellant was afforded 30 days to submit the
requisite evidence to support his claimed disability for work due to his accepted employment
injury.
The Office subsequently received a July 23, 2007 duty status report, a July 23, 2007
referral for physical therapy, and physical therapy treatment records for the period July 25 to
August 24, 2007. The physical therapy records indicated, among other things, that appellant had
undergone a carpal tunnel surgery on June 6, 2007. Appellant was released to resume his fulltime regular duties effective September 12, 2007.
On September 13, 2007 the Office received an undated request for reconsideration of the
hearing representative’s September 12, 2006 decision affirming the termination of compensation
effective August 19, 2005. Appellant stated that he was submitting additional pertinent evidence
not previously considered. The request was accompanied by a September 6, 2007 report from
Dr. Douglas S. Reagan, a Board-certified orthopedic hand surgeon, who had been treating
appellant since October 2006. Dr. Reagan noted that appellant’s primary pain had been over the
dorsal ulnar wrist area, however, he did not specify whether it was the left wrist, right wrist or
both. He also discussed various surgical procedures that might alleviate appellant’s ongoing
symptoms, which he considered to be employment related.
In a decision dated October 26, 2007, the Office denied appellant’s claim for wage-loss
compensation for the period June 7 to July 7, 2007. The Office noted that there was no medical
evidence explaining appellant’s month-long absence from work beginning June 7, 2007.
By decision dated October 30, 2007, the Office denied reconsideration of the hearing
representative’s September 12, 2006 decision.4 The Office found that appellant failed to provide
any evidence demonstrating his inability to perform his date-of-injury job. Consequently, there
was no basis to review the Office’s decision terminating appellant’s entitlement to continuing
disability effective August 19, 2005.
LEGAL PRECEDENT -- ISSUE 1
The Office has the discretion to reopen a case for review on the merits.5 Section
10.606(b)(2) of Title 20 of the Code of Federal Regulations provides that the application for
reconsideration, including all supporting documents, must set forth arguments and contain
evidence that either: (i) shows that the Office erroneously applied or interpreted a specific point
of law; (ii) advances a relevant legal argument not previously considered by the Office; or
(iii) constitutes relevant and pertinent new evidence not previously considered by the Office.6
4

The Office mistakenly identified the prior decision as having been issued September 13, 2007.

5

5 U.S.C. § 8128(a) (2000).

6

20 C.F.R. § 10.606(b)(2).

3

Section 10.608(b) provides that, when an application for reconsideration does not meet at least
one of the three requirements enumerated under section 10.606(b)(2), the Office will deny the
application for reconsideration without reopening the case for a review on the merits.7
ANALYSIS -- ISSUE 1
Appellant’s request for reconsideration, which the Office received on September 13,
2007, neither alleged nor demonstrated that the Office erroneously applied or interpreted a
specific point of law. Additionally, he did not advance a relevant legal argument not previously
considered by the Office. Therefore, appellant is not entitled to a review of the merits of his
claim based on the first and second above-noted requirements under section 10.606(b)(2).8
Appellant also failed to satisfy the third requirement under section 10.606(b)(2).
Although he claimed to have submitted pertinent evidence not previously considered by the
Office, Dr. Reagan’s September 6, 2007 report did not provide a basis for reopening the claim
for merit review. Dr. Reagan did not specifically address appellant’s ability to perform his fulltime regular duties as a letter carrier. Thus, while his report was new to the record, it was not
relevant to the issue of whether appellant was disabled from performing his date-of-injury job.
Dr. Reagan identified specific upper extremity symptoms, which he related to appellant’s
employment injury. He also discussed various surgical procedures he believed could possibly
resolve appellant’s symptoms. But Dr. Reagan offered no opinion on the pertinent issue of
whether appellant was capable of performing his date-of-injury job duties. Because his
September 6, 2007 opinion is not relevant to the issue on reconsideration, appellant is not
entitled to a review of the merits of his claim based on the third requirement under section
10.606(b)(2).9 As appellant was not entitled to a review of the merits of his claim pursuant to
any of the three requirements under section 10.606(b)(2), the Office properly denied the
September 13, 2007 request for reconsideration.
LEGAL PRECEDENT -- ISSUE 2
A claimant has the burden of establishing the essential elements of his claim, including
that the medical condition for which compensation is claimed is causally related to the claimed
employment injury.10 For wage-loss benefits, the claimant must submit medical evidence
showing that the condition claimed is disabling.11 The evidence submitted must be reliable,
probative and substantial.12

7

Id. at § 10.608(b).

8

Id. at § 10.606(b)(2)(i) and (ii).

9

Id. at § 10.606(b)(2)(iii).

10

Id. at § 10.115(e) (2007); see Tammy L. Medley, 55 ECAB 182, 184 (2003).

11

20 C.F.R. § 10.115(f).

12

Id. at § 10.115.

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ANALYSIS -- ISSUE 2
Appellant claimed that from June 7 to July 7, 2007 he was recuperating from recent
carpal tunnel surgery. The Office authorized a right carpal tunnel release in March 2007 and his
July 25, 2007 physical therapy records indicated that he had undergone a carpal tunnel release on
June 6, 2007. This evidence, however, is insufficient to establish that appellant was disabled
from June 7 to July 7, 2007 due to his September 20, 1996 employment injury. The Office
advised him on July 26, 2007 that the record was insufficient to establish entitlement to wageloss compensation for the period June 7 to July 7, 2007. Appellant was afforded 30 days to
submit evidence in support of the claimed period of disability, however, he did not respond in a
timely fashion. On October 26, 2007 the Office denied wage-loss compensation because there
was no medical evidence explaining appellant’s month-long absence from work beginning
June 7, 2007. Because the record before the Office at that time did not support his claim to wage
loss for the period June 7 to July 7, 2007, the Board must affirm the October 26, 2007 decision.13
CONCLUSION
Appellant did not establish entitlement to wage-loss compensation for the period June 7
to July 7, 2007. The Board further finds that the Office properly denied appellant’s
September 13, 2007 request for reconsideration.

13

The information the Office had previously requested was received just a few days after it issued the October 26,
2007 decision denying wage-loss compensation. The Board, however, is not permitted to consider new evidence on
appeal. 20 C.F.R. § 10.501.2(c). Appellant may file a request for reconsideration with the Office in order for this
additional evidence to be properly considered. 20 C.F.R. § 10.606(b)(2).

5

ORDER
IT IS HEREBY ORDERED THAT the October 30 and 26, 2007 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: June 6, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Phoenix, AZ, Employer
__________________________________________
Appearances:
John Eiler Goodwin, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 12-174
Issued: June 25, 2012

Case Submitted on the Record

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

On November 7, 2011 appellant, through his attorney, filed a timely appeal from a
September 21, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP).
The Board docketed the appeal as No. 12-174.
The Board has considered the matter and finds that OWCP’s September 21, 2011
decision must be set aside. On appeal appellant’s attorney contends that he did not receive a
copy of the September 21, 2011 decision. By letter dated March 23, 2000, OWCP
acknowledged John Eiler Goodwin, Esq., as appellant’s authorized representative. In a decision
dated September 21, 2011, OWCP denied appellant’s claim for an increased schedule award. A
copy of that decision was not sent to appellant’s authorized representative.
OWCP’s regulations and Board case law require OWCP to send a copy of its decision to
the authorized representative.1 The Board has held that a decision under the Federal Employees’
Compensation Act2 is not properly issued unless both appellant and the authorized representative
1

20 C.F.R. § 10.127 provides, “A copy of the decision shall be mailed to the employee’s last known address. If
the employee has a designated representative before OWCP, a copy of the decision will also be mailed to the
representative.” See also M.R., Docket No. 11-632 (issued September 28, 2011).
2

5 U.S.C. § 8101 et seq.

have been sent copies of the decision.3 As the September 21, 2011 decision was not sent to
appellant’s representative, the Board concludes that the decision was not properly issued. The
Board will set aside the decision and remand the case for an appropriate and properly issued
merit decision on the relevant issues. Accordingly,
IT IS HEREBY ORDERED THAT the September 21, 2011 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: June 25, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

3

See Travis L. Chambers, 55 ECAB 138 (2003).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Trenton, NJ, Employer
__________________________________________

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

Docket No. 14-10
Issued: February 25, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 3, 2013 appellant filed a timely appeal from a September 4, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his claim for
compensation. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish a traumatic injury in
the performance of duty on July 10, 2013.
FACTUAL HISTORY
On July 11, 2013 appellant, then a 52-year-old custodian, filed a traumatic injury claim
(Form CA-1) alleging that he sustained an injury to the lower back in the performance of duty on
July 10, 2013. He stated that between 9:00 a.m. and 2:30 p.m. he had performed heavy lifting
1

5 U.S.C. § 8101 et seq.

work, filling in numerous holes with dirt, continuously for six hours in hot conditions and that
this work had caused his injury.2 The employing establishment controverted appellant’s claim,
contending that his injury resulted from willful misconduct, writing that he had not taken breaks
and hydrated as instructed.
In a note dated July 15, 2013, Dr. William Gessler, a chiropractor, requested a work
restriction of no more than 10 pounds of lifting due to an acute exacerbation of lower back pain.
He also requested a work restriction of staying indoors away from heat, explaining that the
humidity caused appellant’s disc injury to exacerbate. Dr. Gessler noted that appellant’s lower
back would take until July 29, 2013 to stabilize.
By letter dated July 29, 2013, OWCP informed appellant that the evidence of record was
insufficient to support his claim. It afforded him 30 days to submit additional evidence and
respond to its inquiries, noting that chiropractors do not qualify as physicians under FECA unless
there is a diagnosed spinal subluxation, demonstrated by x-ray. OWCP also requested that
appellant’s employing establishment submit a statement identifying the particular safety
regulations which was allegedly violated, along with the number of times and the manner in
which the employee and coworkers were informed of the rule, as well as the manner in which the
rule had been enforced.
In a diagnostic report dated July 12, 2013, Dr. James Callahan, a Board-certified
radiologist, noted that appellant had bone destruction or a compression fracture and that arthritis
was present, but that there had not been a significant change since a prior examination on
May 25, 2010. The report, sent by facsimile, was badly degraded and partially illegible.
In a narrative statement dated August 5, 2013, appellant clarified that his claim was for
an injury to his back, not his head. He stated that on July 10, 2013, his manager instructed him
and another custodian to go outside and fill dirt in numerous holes for approximately six hours in
weather that was warmer than 90 degrees Fahrenheit. Appellant noted that this was not his daily
work routine and contacted his union president at approximately 12:30 p.m. His union president
referred him to a safety coordinator, who informed him that there were guidelines from the
Occupational Health and Safety Administration regarding how to work in hot conditions.
Appellant’s union president faxed the guidelines to appellant’s manager. At 2:50 p.m., a
supervisor read the guidelines to appellant and his coworker. After his shift, appellant felt pain
in his back. He asserted that he had not been notified of the guidelines regarding working in hot
conditions until he had already been working in those conditions.
By letter dated August 6, 2013, Dr. Gessler stated that appellant could return to work
with no restrictions as of that date, noting that the recent exacerbation of his previous disc injury
had resolved.

2

Appellant submitted two front pages with his Form CA-1, one of which appears to have been completed by the
employing establishment, as it described the cause of his injury as, “employee was raking top soil dirt and did not
take breaks as instructed resulting in dehydration and heat exhaustion,” and the nature of his injury as a traumatic
injury to the skull or head.

2

By decision dated September 4, 2013, OWCP denied appellant’s claim. It found that he
had not submitted any medical evidence containing a diagnosis from a qualified physician.
OWCP stated that the medical evidence of record was from a chiropractor, who had not
diagnosed a subluxation of the spine as demonstrated by x-ray. OWCP found that appellant had
filed a timely claim and that the evidence supported that the incident of July 10, 2013 had
occurred as described. It noted that it had received lumbar spine x-ray results dated
July 12, 2013.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury4 was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.5
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.
A fact of injury determination is based on two elements. 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. 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. An employee may establish that the employment incident
occurred as alleged but fail to show that his or her condition relates to the employment incident.6
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence.7 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.8 The weight of the medical evidence is determined by its reliability, its probative

3

5 U.S.C. §§ 8101-8193.

4

OWCP’s regulations define a traumatic injury as a condition of the body caused by a specific event or incident,
or series of events of 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. 20 C.F.R. § 10.5(ee).
5

T.H., 59 ECAB 388, 393 (2008); see Steven S. Saleh, 55 ECAB 169, 171-72 (2003); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
6

Id. See Shirley A. Temple, 48 ECAB 404, 407 (1997); John J. Carlone 41 ECAB 354, 356-57 (1989).

7

See J.Z., 58 ECAB 529, 531 (2007); Paul E. Thams, 56 ECAB 503, 511 (2005).

8

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

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value, its convincing quality, the care of analysis manifested and the medical rationale expressed
in support of the physician’s opinion.9
ANALYSIS
Appellant alleged that on July 10, 2013, he sustained an injury to his lower back in the
performance of duty. OWCP determined by decision dated September 4, 2013 that the incident
occurred as alleged, but he had not submitted sufficient medical evidence to establish a
diagnosis, causally related to the incident, from a qualified physician.10 The Board finds that
appellant submitted sufficient evidence to establish a diagnosis from a qualified physician, but
that he did not submit sufficient evidence to establish that this diagnosis resulted from a
traumatic incident on July 10, 2013.
Appellant submitted a diagnostic report dated July 12, 2013 from Dr. Callahan, which
stated that appellant had bone destruction or a compression fracture and that arthritis was
present, but there had not been a significant change since a prior examination on May 25, 2010.
The report, sent by facsimile, was badly degraded and partially illegible, but the legible portion
of the report contained a diagnosis of bone destruction or a compression fracture. Thus,
appellant submitted medical evidence containing a diagnosis from a qualified physician.
However, this report contained no opinion as to the provenance of appellant’s diagnosis.
The Board has held that medical evidence that does not opine as to the causal relationship
between appellant’s injury and specified work-related factors is of diminished probative value on
the issue of causal relationship.11 To establish causal relationship, a physician must provide an
opinion on whether the employment incident described caused or contributed to claimant’s
diagnosed medical condition and support that opinion with medical reasoning to demonstrate that
the conclusion reached is sound, logical and rational.12 As Dr. Callahan’s report contained no
opinion as to the causal relationship between the July 10, 2013 employment incident and the
diagnosis of bone destruction or a compression fracture, it is not sufficient to establish
appellant’s claim.
Appellant also submitted reports from Dr. Gessler, a chiropractor. Section 8101(2) of
FECA provides that the term physician, as used therein, includes chiropractors only to the
extent that their reimbursable services are limited to treatment consisting of manual manipulation
of the spine to correct a subluxation as demonstrated by x-ray to exist and subject to regulations
by the Secretary.14 Dr. Gessler did not diagnose a spinal subluxation. Without a diagnosis of a
13

9

James Mack, 43 ECAB 321, 329 (1991).

10

The letter of decision was dated August 30, 2013; however, there was hand-written note indicating that the
decision was not released until September 4, 2013. The Board finds that the effective date of this decision was
September 4, 2013.
11

J.F., Docket No. 09-1061 (issued November 17, 2009); S.E., Docket No. 08-2214 (issued May 6, 2009).

12

See John W. Montoya, 54 ECAB 306, 309 (2003); see also H.D., Docket No. 07-1026 (issued October 1, 2007).

13

5 U.S.C. § 8101(2).

14

See 20 C.F.R. § 10.311.

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spinal subluxation from x-ray, a chiropractor is not a physician under FECA and his opinion does
not constitute competent medical evidence.15 Therefore, Dr. Gessler’s reports are of no
probative value on the issue of whether appellant has been diagnosed with a medical condition in
connection with the incident of July 10, 2013.
As appellant did not submit a medical report from a qualified physician containing a
rationalized opinion as to the causal relationship between the traumatic incident of July 10, 2013
and his diagnosis, he has not submitted sufficient evidence to establish his claim for
compensation.
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, although appellant did establish a diagnosis, he did not meet his
burden of proof to establish that the claimed traumatic injury is causally related to the incident of
July 10, 2013.
ORDER
IT IS HEREBY ORDERED THAT the September 4, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 25, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
15

See Jay K. Tomokiyo, 51 ECAB 361, 367-68 (2000).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL PROTECTIVE SERVICE,
Chicago, IL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 22-0500
Issued: March 22, 2022

Case Submitted on the Record

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

On February 14, 2022 appellant filed an appeal from a July 14, 2021 merit decision of the
Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 22-0500.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation
Act.1 For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s
review authority is limited to appeals which are filed within 180 days from the date of issuance
of OWCP’s decision.2
The 180 th day following the July 14, 2021 decision was January 10, 2022. As appellant
did not file an appeal with the Board until February 14, 2022, more than 180 days after the
July 14, 2021 OWCP decision, the Board finds that the appeal docketed as No. 22-0500 is
untimely filed. The Board is without jurisdiction to review the appeal. Appellant has not
explained his failure to timely file an appeal with supporting documentation sufficient to
1

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

2

Id. at § 501.3(e).

establish compelling circumstances. Because there is no final adverse decision issued by OWCP
within 180 days of the filing of the instant appeal, the Board concludes that the ap peal docketed
as No. 22-0500, must be dismissed.3 Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 22-0500 is dismissed.
Issued: March 22, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

The Board’s decisions and orders are “final upon the expiration of 30 days from the d ate o f t h eir issu an ce. ”
20 C.F.R. § 501.6(d).
3

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Phoenix, AZ, Employer
__________________________________________

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Appearances:
Coby Jones, for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0962
Issued: September 8, 2017

Case Submitted on the Record

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

JURISDICTION
On March 31, 2017 appellant, through her representative, filed a timely appeal from an
October 6, 2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
As more than 180 days elapsed from the last merit decision, dated July 20, 2015, to the filing of
this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks 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.

Appellant timely requested an oral argument before the Board pursuant to section 501.5(b) of the Board’s Rules
of Procedure, 20 C.F.R. § 501.5(b). After exercising its discretion, by order dated July 27, 2017, the Board denied
the request for oral argument as the issue on appeal could be fully addressed on the record. Order Denying Request
for Oral Argument, Docket No. 17-0962 (issued July 27, 2017).

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits of her claim under 5 U.S.C. § 8128(a).
On appeal appellant, through her representative, argued that OWCP erroneously failed to
provide a merit review based on the new opinion of appellant’s physician. He alleged that
appellant submitted new evidence and argument, that her physician explained the mechanism of
the injury, and that OWCP was improperly playing doctor. Appellant’s representative also
contended that OWCP only seemed to accept the magnetic resonance imaging (MRI) scan
findings and ignored other objective medical findings.
FACTUAL HISTORY
On October 31, 2014 appellant, then a 48-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on October 14, 2014, she stepped in a hole and jarred her back
while delivering mail. She did not report that she had stopped work. The employing
establishment controverted the claim.
In support of her claim, appellant submitted medical evidence, including reports from her
treating Board-certified orthopedic surgeon, Dr. Michael A. Seivert.
By decision dated January 12, 2015, OWCP accepted that the employment incident
occurred as alleged, but denied appellant’s claim because she had not submitted evidence of a
medical diagnosis in connection with the employment incident. Thus appellant failed to
establish an injury as defined by FECA.
On February 10, 2015 appellant requested review of the written record by an OWCP
hearing representative.
In a January 28, 2015 MRI scan report, Dr. Anita Rich, a Board-certified radiologist,
diagnosed mild multilevel spondylitic change in the lumbar spine, without evidence of nerve root
impingement. She also found that at L4-L5, there was a mild broad-based disc bulge which
showed a subtle right foraminal to extra foraminal protrusion, as well as mild-to-moderate facet
and ligamentum flavum hypertrophy. Dr. Rich noted that these factors caused mild bilateral
neural foraminal narrowing, right greater than left.
In a February 4, 2015 note, Dr. Seivert stated that on October 14, 2014 appellant stepped
in a hole while delivering mail for the employing establishment. He indicated that when
appellant stepped into the hole, her right leg was jammed into her right hip, causing her lumbar
spine to pop, leading to broad-based disc bulges at L2-L3, L3-L4, and L4-L5 and a subtle right
foraminal to extra foraminal protrusion, as well as mild-to-moderate facet and ligament flavum
hypertrophy at L4-L5. Dr. Seivert stated that because of this on-the-job injury, appellant now
had a condition involving multiple level disc bulges, which caused mid-back and low-back pain.
He noted that an MRI scan on January 28, 2015 proved appellant’s condition.
On July 20, 2015 the hearing representative affirmed the January 12, 2015 decision with
modification. She found that appellant had established a medical diagnosis, but failed to
2

establish that her diagnosed medical condition was causally related to the accepted employment
incident. The hearing representative noted that, although Dr. Seivert opined that appellant’s disc
bulges were the result of her work incident and caused her back pain, he attributed the condition
to the claimant’s jamming her right leg into the hole when she delivered mail. However, she
noted that the MRI scan indicated that the changes were mild multilevel spondylitic changes
without evidence of nerve root impingement or disc herniation. Accordingly, the hearing
representative found that Dr. Seivert’s February 4, 2015 report was insufficiently rationalized to
establish a finding of causal relationship.
On July 18, 2016 appellant, through her representative, requested reconsideration. In
support thereof, appellant submitted a January 14, 2016 report wherein Dr. Seivert diagnosed
“[t]horacic, lumbosacral, and sacroiliac and pelvic and hip somatic dysfunction and pain.”
Dr. Seivert reiterated that appellant jammed her leg into her socket and it threw off her pelvis,
which created problems with her thoracic, lumbar, sacroiliac, and pelvic areas. He opined that
this incident occurred on the job. Dr. Seivert explained the biomechanical process as that she
stepped into a hole and landed hard, which jammed her hip up into the socket. This caused a
shift in the pelvis which, in turn, caused an injury to the sacroiliac joints, the pubic symphysis,
the lumbar spine, and then up the thoracic spine.
By decision dated October 6, 2016, OWCP denied appellant’s request for
reconsideration. It noted that Dr. Seivert’s report was cumulative and substantially similar to
evidence already of record. OWCP noted that Dr. Seivert’s report still did not make it clear
whether the accepted employment incident resulted in the mild multilevel spondylitic changes
without evidence of nerve root impingement or disc herniation as shown on the MRI scan.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.5 When a claimant fails to meet one
of the above standards, OWCP will deny the application for reconsideration without reopening
the case for review on the merits.6
ANALYSIS
On January 12, 2015 OWCP denied appellant’s claim as she failed to establish a causal
relationship between the accepted employment incident and her diagnosed medical condition.
This decision was affirmed, as modified, by the hearing representative on July 20, 2015.

4

5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.606(b)(3).

6

Id. at § 10.608(b).

3

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).
OWCP reviewed appellant’s request for reconsideration under the appropriate criteria for
timely filed reconsideration petitions. In her request for reconsideration appellant did not show
that OWCP erroneously applied or interpreted a specific point of law, nor did she advance a
relevant legal argument not previously considered by OWCP.7
Appellant also did not submit relevant and pertinent new evidence not previously
considered by OWCP. The underlying issue in this case is whether appellant established that she
sustained an injury causally related to her accepted employment incident. On reconsideration,
appellant submitted a new report, dated January 14, 2016, by Dr. Seivert. In this report,
Dr. Seivert indicated that appellant stepped into the hole on October 14, 2014, which jammed her
hip up into her socket. This caused a shift in the pelvis, which in turn caused injury to the
sacroiliac joints, the pubic symphysis, the lumbar spine, and then up the thoracic spine. This
report, however, contains language that is substantially the same as that found in Dr. Seivert’s
earlier reports, most notably his February 4, 2015 report. OWCP had previously determined that
Dr. Seivert’s reports were not well rationalized when considered in conjunction with the MRI
scan report which indicated that the changes evidenced were mild multilevel spondylitic changes
without evidence of nerve root impingement or disc herniation. Evidence which is duplicative,
cumulative, or repetitive in nature is insufficient to warrant reopening a claim for merit review.8
Accordingly, as appellant has not met any of the criteria warranting reopening her claim
for further merit review, pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of her claim under 5 U.S.C. § 8128(a).

7

See J.F., Docket No. 16-1233 (issued November 23, 2016).

8

Denis M. Dupor, 51 ECAB 482 (2000).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 6, 2016 is affirmed.
Issued: September 8, 2017
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Camden, NJ, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-241
Issued: September 22, 2011

Case Submitted on the Record

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

JURISDICTION
On November 8, 2010 appellant filed a timely appeal from a July 22, 2010 schedule
award decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of the schedule award decision.
ISSUE
The issue is whether appellant has more than a five percent impairment of the right lower
extremity.
On appeal appellant’s attorney asserts that the report of the referee physician is vague,
speculative, incomplete and unrationalized, and that a new conflict in medical evidence has been
established.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On January 4, 1996 appellant, then a 37-year-old letter carrier, filed a traumatic injury
claim, alleging that she injured her back, right hip and leg when she slipped on ice while
delivering mail on January 3, 1996. The claim was accepted for low back strain with sciatica
and herniated nucleus pulposus (HNP) at L3-4.
On January 7, 2002 appellant, through her attorney, requested a schedule award. In an
October 19, 2001 report, Dr. David Weiss, an osteopath, advised that he examined appellant on
October 1, 2001 when she reached maximum medical improvement. He provided an impairment
rating, finding that, under the fifth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (hereinafter A.M.A., Guides),2 appellant had a 19 percent
impairment of the right lower extremity.
By decision dated January 23, 2002, OWCP denied the claim, and in a December 9, 2002
decision, an OWCP hearing representative set aside the January 23, 2002 decision and remanded
the case for further development.
By decision dated April 1, 2003, appellant was granted a schedule award for a five
percent impairment of the right lower extremity. In a January 30, 2004 decision, OWCP’s
hearing representative found that a conflict in medical opinion arose between Dr. Weiss and
OWCP’s medical adviser regarding the extent of permanent impairment and remanded the case
for an impartial evaluation.
OWCP referred appellant to Dr. Norman H. Eckbold, a Board-certified orthopedic
surgeon, for an impartial medical examination. In a May 13, 2004 report, Dr. Eckbold advised
that appellant had no objective functional deficits on physical examination and, based on a
diagnosis of an HNP at L3-4, under the A.M.A., Guides, she had a diagnosis-related estimate of
lumbosacral impairment of five percent of the whole person. An OWCP medical adviser
reviewed Dr. Eckbold’s report and found no right lower extremity impairment.
In a May 26, 2004 decision, OWCP denied appellant’s claim for an additional schedule
award. By decision dated January 11, 2005, an OWCP hearing representative found
Dr. Eckbold’s conclusion deficient because he based his impairment on the spine and whole
person. The case was remanded to obtain a supplementary report from the physician. In letters
dated March 15, 2007 and June 30, 2009, OWCP requested a supplementary opinion from
Dr. Eckbold but received no response.
Appellant was subsequently referred to Dr. George P. Glenn, Jr., a Board-certified
orthopedic surgeon, for an impartial evaluation. On October 27, 2009 Dr. Glenn noted his
review of the record, including a statement of accepted facts. He described appellant’s
complaints of constant deep pain in the right buttock with intermittent pain on the left, a stabbing
pain behind the right knee, muscle spasms in the calf area, right foot numbness not associated
with pain and back stiffening. Dr. Glenn noted appellant’s report that she began a limited-duty
position in 1998 but recently had begun delivering mail again, and advised that she walked about
2

A.M.A., Guides (5th ed. 2001).

2

the examination room without difficulty, showing no evidence of limp, demonstrated a normal
heel/toe reciprocal gait, and could easily heel and toe walk. Physical examination demonstrated
no evidence of paralumbar muscle spasm and no tenderness on examination of the spinous
processes from the base of the skull down to the L5 vertebra and into the lumbosacral joint or in
the sacrum, coccyx, or sacroiliac region and no tenderness in the paravertebral musculature.
Bending forward elicited back pain. Sitting, straight leg raising and hip flexion and rotation
maneuvers were negative for pain. Appellant reported that supine straight leg raising caused
severe pulling in the back part of the legs bilaterally but no pain. Thigh and calf circumferences
were equal bilaterally, and sensory examination to gross touch, fine touch, and pinprick appeared
intact, although appellant reported that she perceived an alteration in pinprick sensation
involving the entire right lower extremity which, Dr. Glenn advised, did not follow any
dermatomal distribution. Dr. Glenn could not find any sensory deficit involving the right L3, L4
or S1 distribution. He opined that appellant had reached maximum medical improvement in
2003, that her physical examination was basically normal, and that she showed nothing to
substantiate the presence of a herniated disc with nerve root compromise. Dr. Glenn noted that
the sixth edition of the A.M.A., Guides advised that a positive imaging study, in and of itself, did
not make a diagnosis, and for imaging studies to be of diagnostic value, clinical symptoms and
signs must be consistent with the imaging findings and that subjective complaints without
physical findings or significant clinical abnormalities were generally assigned Class 0 and had no
ratable impairment.3 Dr. Glenn acknowledged that FECA did not accept spinal impairments, per
se, but that purely as an exercise, he would utilize Table 17-4, Lumbar Spine Regional Grid, for
a disc herniation, and found that appellant did not have an ratable impairment under Table 17-4.
On December 22, 2009 Dr. Morley Slutsky, OWCP’s medical adviser Board-certified in
occupational medicine, reviewed the medical record including Dr. Glenn’s report. He identified
October 27, 2009 as the date of maximum medical improvement. As neither Dr. Eckbold nor
Dr. Glenn found lower extremity deficits related to the accepted low back condition, there was
no basis for any lower extremity impairment.
By decision dated January 22, 2010, OWCP found that appellant was not entitled to an
additional schedule award.
Appellant, through her attorney, timely requested a hearing. On May 15, 2010 she
described constant pain and that she had adjusted her life and routine to deal with it. Appellant
was not present at the hearing, held on May 18, 2010. Counsel contended that a conflict existed
between Dr. Glenn’s opinion and that of Dr. Weiss. Appellant thereafter submitted Dr. Weiss’
October 19, 2001 report, revised on May 10, 2010 to comport with the sixth edition of the
A.M.A., Guides. Dr. Weiss advised that, under Table 16-12 of the sixth edition, appellant had
Class 1 sensory deficits of the right L3 and L4 (femoral) nerve root, and the right S1 (sciatic)
nerve roots that yielded impairments of two percent and nine percent respectively. He further
found that appellant also had a Class 1 motor strength deficit of right hip flexors under Table 1512 for a nine percent impairment. Dr. Weiss then combined the three impairments, for a
combined 18 percent impairment of the right lower extremity.

3

A.M.A., Guides (6th ed. 2008).

3

By decision dated July 22, 2010, OWCP’s hearing representative found that the weight of
the medical evidence rested with the opinion of Dr. Glenn, who provided an impartial evaluation,
and affirmed the April 1, 2003 decision.
LEGAL PRECEDENT
The schedule award provision of FECA,4 and its implementing federal regulations,5 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.6 For decisions after
February 1, 2001, the fifth edition of the A.M.A., Guides is used to calculate schedule awards.7
For decisions issued after May 1, 2009, the sixth edition will be used.8
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).9 Under the sixth edition, for lower extremity impairments the evaluator
identifies the impairment class for the diagnosed condition (CDX), which is then adjusted by
grade modifiers based on Functional History (GMFH), Physical Examination (GMPE) and
Clinical Studies (GMCS).10 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) +
(GMCS-CDX).11 Under Chapter 2.3, evaluators are directed to provide reasons for their
impairment rating choices, including choices of diagnoses from regional grids and calculations
of modifier scores.12
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under FECA for injury to the spine.13 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. at § 10.404(a).

7

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

8

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

9

A.M.A., Guides, supra note 3 at 3, section 1.3, “The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.”
10

Id. at 494-531.

11

Id. at 521.

12

Id. at 23-28.

13

Pamela J. Darling, 49 ECAB 286 (1998).

4

the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.14
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.15 When the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.16 OWCP procedures indicate that referral to OWCP’s medical adviser is
appropriate when a detailed description of the impairment from the attending physician is
obtained. Where a medical conflict is present, to properly resolve the conflict, it is the impartial
medical specialist who should provide a reasoned opinion as to a permanent impairment to a
scheduled member of the body in accordance with the A.M.A., Guides. OWCP’s medical
adviser may review the opinion, but the resolution of the conflict is the responsibility of the
impartial medical specialist.17
ANALYSIS
OWCP accepted that appellant sustained a low back sprain and HNP at L3-4 when she
slipped on ice while delivering mail on January 3, 1996. By decision dated April 1, 2003,
appellant was granted a schedule award for a five percent impairment of the right lower
extremity. She was referred to Dr. Glenn for an impartial evaluation.
The Board finds that appellant has not established that she has greater than a five percent
impairment of the right lower extremity. In a comprehensive report dated October 27, 2009,
Dr. Glenn reviewed the record and noted that appellant walked without difficulty, demonstrated
a normal gait and could easily heel and toe walk. He provided extensive physical findings on
examination, noting that there was no evidence of paralumbar muscle spasm or tenderness, and
no tenderness on examination of the spinous processes from the base of the skull down to L5 and
including the lumbosacral joint, sacrum, coccyx and sacroiliac region. Thigh and calf
circumferences were equal bilaterally, and Dr. Glenn advised that he could not demonstrate a
sensory deficit involving the right L3, L4 or S1 distribution. He concluded that appellant’s
physical examination was basically normal. Dr. Glenn properly noted that a schedule award is
not payable under FECA for injury to the spine,18 and found no ratable impairment of the right
lower extremity. Dr. Slutsky, OWCP’s medical adviser, reviewed Dr. Glenn’s report on

14

Thomas J. Engelhart, 50 ECAB 319 (1999).

15

5 U.S.C. § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).

16

Manuel Gill, 52 ECAB 282 (2001).

17

Thomas J. Fragale, 55 ECAB 619 (2004).

18

Pamela J. Darling, supra note 13.

5

December 22, 2009 and agreed with his conclusion that appellant had no ratable right lower
extremity impairment.
While appellant submitted a report dated May 15, 2010 in which Dr. Weiss updated his
October 19, 2001 report to comport with the sixth edition of the A.M.A., Guides, Dr. Weiss did
not reexamine appellant and based his physical findings on an October 1, 2001 physical
examination. His October 19, 2001 report created the conflict in medical evidence. An
additional report from a claimant’s physician, which essentially repeats earlier findings and
conclusions, is insufficient to overcome the weight accorded to an impartial medical specialist’s
report.19 Furthermore, Dr. Weiss’ October 2001 physical examination findings constitute stale
medical evidence.20 His May 15, 2010 report is therefore insufficient to establish a new conflict
in medical evidence.
Dr. Glenn provided examination findings and rationale for his opinions and conclusions
that appellant had no right lower extremity impairment that would entitle her to an increased
schedule award under the sixth edition of the A.M.A., Guides. Contrary to appellant’s assertion
on appeal, his report is entitled to the special weight accorded an impartial examiner and
therefore constitutes the weight of the medical evidence.21 Appellant therefore did not establish
entitlement to a schedule award for her right lower extremity greater than the five percent
previously awarded.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant did not establish that she has more than a five percent
impairment of the right lower extremity.

19

Roger G. Payne, 55 ECAB 535 (2004).

20

See Keith Hanselman, 42 ECAB 680 (1991).

21

See Sharyn D. Bannick, 54 ECAB 537 (2003).

6

ORDER
IT IS HEREBY ORDERED THAT the July 22, 2010 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: September 22, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cincinnati, OH, Employer
__________________________________________

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

Docket No. 06-633
Issued: February 5, 2007

Case Submitted on the Record

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

JURISDICTION
On January 23, 2006 appellant filed a timely appeal from an October 20, 2005 merit
decision of the Office of Workers’ Compensation Programs’ hearing representative who
affirmed the denial of his claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained an emotional condition in the performance of his federal duties during the period
July 2000 through March 2001; and (2) whether the Office abused its discretion in denying his
request for subpoenas.

FACTUAL HISTORY
On May 8, 2000 appellant, then a 45-year-old mail handler, filed an occupational disease
claim alleging that he sustained stress as a result of factors of his federal employment.1 He
alleged that he was subjected to retaliation after he brought forth confidential information
concerning fraud. Appellant noted that an arbitrator found that the employing establishment
acted improperly in an attempt to remove him on October 1, 1999. A copy of an April 24, 2000
arbitration decision stated, in pertinent part, “that the [employing establishment] has [not]
established the basis for a removal in this case.” Appellant returned to full-time employment in
July 2000 and retired in March 2001.
The claim was initially denied. However, in an October 4, 2001 decision, an Office
hearing representative accepted the claim for a temporary aggravation of preexisting depression
for the period May to July 2000. The compensable employment factor was identified as the
October 1, 1999 improper removal of appellant due to a sexual misconduct charge with respect
to a female coworker, Becky Walden. The Office hearing representative noted that “it had not
been accepted as factual that subsequent factors of employment after [his] return to work have
impacted on [appellant’s] emotional condition.” The case was remanded to the Office for further
development of whether employment factors after appellant’s return to work in July 2000
through his retirement in March 2001 aggravated his emotional condition.
In a letter dated November 27, 2001, appellant alleged that he returned to a hostile work
environment after he was absolved of the sexual harassment charges. He stated that Ms. Walden
was given a lucrative position on the inbound docks, which was usually afforded for senior
personnel. Ms. Walden was allowed to stay in that position after he left in March 2001.
Appellant stated that he was put on restrictions even though he was not found guilty of any
wrongdoing. He stated that he chose not to converse with anyone and was cut off from people
on the inbound docks who were his close acquaintances because of his restrictions. Appellant
alleged that everyone was watching him, his restrictions were without basis, he was unable to see
his friends because of the restrictions and he had to work directly for the person who tried to
unjustly fire him. He alleged that he was considered a “mole” and he was always going to be
guilty for exposing management’s fraud.
In a letter dated May 21, 2002, Richard P. Hohenstatt, manager, responded to appellant’s
allegations. He stated that Ms. Walden’s assignment on the inbound dock was that of a mail
handler and was the same as the other mail handlers in that location. Mr. Hohenstatt also stated
that Ms. Walden was kept on the inbound dock until appellant’s disability retirement was
approved as management did not know if he was returning. He noted that appellant was found
guilty as to his conduct regarding Ms. Walden, but was not removed as proposed.
Mr. Hohenstatt stated that appellant was free to socialize with his peers, but was advised on
several occasions that he should refrain from going into Ms. Walden’s work area.

1

The record reflects that appellant filed two other stress-related claims on April 26, 1996 and October 21, 1997,
which the Office assigned File No. 090415717 and File No. 090434200, respectively.

2

By decision dated September 8, 2004, the Office denied appellant’s claim on the basis
that he failed to establish any compensable factors of employment. It found that the factual
evidence of record failed to establish appellant’s allegations of ongoing harassment.
On September 10, 2004 appellant requested an oral hearing before an Office hearing
representative. In a November 26, 2004 letter, he requested subpoenas for certain individuals he
alleged were responsible for mail fraud in 1997. In a February 4, 2005 letter, the Office hearing
representative denied appellant’s request for subpoenas on the basis that the issue presented dealt
only with incidents occurring after July 2000. He noted that appellant alleged that he needed to
subpoena certain individuals concerning incidents which allegedly occurred in 1997 and, thus,
were not relevant to the present claim. Appellant could appeal the denial of his subpoena request
following the decision on the hearing.
An oral hearing was held March 23, 2005. Appellant explained the history of his prior
claim and the investigation that ensued. After he returned to work in July 2000, he believed
there was ongoing falsification of mail counts and he continued to report the problem. Appellant
stated that management wanted him out and his disability retirement was approved very quickly.
He also discussed the investigation that occurred after he was accused of sexually assaulting
Ms. Walden and its effect on his life.
With respect to the alleged fraudulent mail counts, appellant submitted an August 7, 2001
congressional correspondence requesting an investigation, copies of media coverage and
newspaper articles, a copy of the employing establishment’s policy on whistle-blowers, a
September 30, 1998 letter from the Office of Inspector General and a February 2, 1999 letter
from his former attorney. He also submitted statements regarding the investigation into the
allegations against him for a sexual assault of Ms. Walden. In a June 10, 2004 medical report,
Robert R. Nestheide, Ph.D., a clinical psychologist, opined that appellant’s current psychiatric
disability appeared to be attributable to events experienced at the employing establishment.
By decision dated October 20, 2005, an Office hearing representative affirmed the
September 8, 2004 decision. He found that there was no evidence to support that appellant was
retaliated or harassed against during the period July 2000 to March 2001.
LEGAL PRECEDENT -- ISSUE 1
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.2 On the other hand, the disability is not covered where it results from such factors as an

2

5 U.S.C. §§ 8101-8193; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

3

employee’s fear of a reduction-in-force or his frustration from not being permitted to work in a
particular environment or to hold a particular position.3
For harassment or discrimination to give rise to a compensable disability under the Act,
there must be evidence introduced which establishes that the acts alleged or implicated by the
employee did, in fact, occur. Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred.4 A claimant must
establish a factual basis for his or her allegations with probative and reliable evidence.
Grievances and Equal Employment Opportunity complaints, by themselves, do not establish that
workplace harassment or unfair treatment occurred.5 The issue is whether the claimant has
submitted sufficient evidence under the Act to establish a factual basis for the claim by
supporting his or her allegations with probative and reliable evidence.6 The primary reason for
requiring factual evidence from the claimant in support of his or her allegations of stress in the
workplace is to establish a basis in fact for the contentions made, as opposed to mere perceptions
of the claimant, which in turn may be fully examined and evaluated by the Office and the
Board.7
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.8 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.9
ANALYSIS -- ISSUE 1
Appellant alleged that his emotional condition was aggravated by retaliation and a hostile
work environment after he returned to work in July 2000. His claim was accepted for a
temporary aggravation of depression based on his removal in 1999 arising from a prior incident
concerning Ms. Walden. As previously noted, for harassment to give rise to a compensable
3

Gregorio E. Conde, 52 ECAB 410 (2001).

4

See Michael Ewanichak, 48 ECAB 364 (1997).

5

See Charles D. Edwards, 55 ECAB 258 (2004); Parley A. Clement, 48 ECAB 302 (1997).

6

See James E. Norris, 52 ECAB 93 (2000).

7

Beverly R. Jones, 55 ECAB 411 (2004).

8

Dennis J. Balogh, 52 ECAB 232 (2001).

9

Id.

4

disability under the Act, there must be evidence that harassment did in fact occur.
perceptions of harassment are not compensable under the Act.10

Mere

The factual evidence fails to support appellant’s claims regarding harassment, retaliation
or that he was subjected to a hostile work environment upon his return to work in July 2000.
Appellant asserted that there was an ongoing falsification of mail counts which he reported. The
evidence reflects that an investigation into mail count reporting was initiated or continued.
However, an investigation alone does not substantiate appellant’s allegations that he was
retaliated against or subject to a hostile work environment because of his previous whistleblower activities. The Board notes that investigations are administrative functions of the
employer and are not duties of the employee and, unless the evidence discloses error or abuse on
the part of the employing establishment, is not a compensable employment factor.11 Appellant
has not submitted any evidence supporting that the actions taken by the employing establishment
in continuing to investigate any alleged fraudulent mail count constituted error or abuse in an
administrative or personnel matter. The material he submitted either predates the period in
question (July 2000 to March 2001) or supports that there was an investigation into the alleged
fraudulent mail count issue. While appellant’s reports may have lead to the employing
establishment’s investigation of the issue there is no evidence to support any claim of retaliation
or harassment on the part of management. Appellant stated that he was considered to be a
“mole” based on his prior claims. He alleged being scrutinized by management and that
management wanted him out.12 However, there is insufficient evidence to support appellant’s
allegations of harassment or retaliation. Thus, he has not established a compensable employment
factor.
The factual evidence fails to support that appellant was subject to harassment as a result
of a previous incident concerning Ms. Walden. His statements regarding the allegations against
him for sexual assault of Ms. Walden are not relevant to the current claim as it occurred prior to
the time period in question. While the employing establishment acknowledged that appellant
was advised not to go into Ms. Walden’s work area, it denied that he was restricted from
interacting with his coworkers. Appellant has failed to submit any evidence of harassment or
retaliation. In his November 27, 2001 statement, appellant advised that he chose not to interact
with people. It appears that his isolation from his coworkers was self-generated. Appellant has
not presented corroborating evidence that he was harassed or retaliated against by his coworkers
or Ms. Walden. Thus, he has not established a compensable employment factor with regard to
these allegations.
To the extent that appellant attributed his emotional condition to dissatisfaction with his
job assignment after he returned to work in July 2000, the Board notes that assignment of work is
an administrative function of the employer and would not be compensable absent error or abuse
by the employing establishment.13 The Board has held that the disability is not covered where it
10

Jack Hopkins, Jr., 42 ECAB 818 (1991).

11

See generally Bobbie D. Daly, 53 ECAB 691 (2002); James E. Norris, 52 ECAB 93 (2000).

12

See Lillian Cutler, 28 ECAB 125 (1976).

13

See Donney T. Drennon-Gala, 56 ECAB ___ (Docket No. 04-2190, issued April 26, 2005).

5

results from frustration from not being permitted to work in a particular environment or to hold a
particular position. The employing establishment explained the reasons for its staffing
assignments. The Board finds that appellant has not established that the employing
establishment erred or acted abusively in its assignment of work. His frustration arose from his
desire to work in a particular environment.
For the foregoing reasons, the Board finds that appellant has not established any
compensable employment factors under the Act and, therefore, has not met his burden of proof
in establishing that he sustained an emotional condition in the performance of duty.14
LEGAL PRECEDENT -- ISSUE 2
Section 8126 of the Act provides that the Secretary of Labor, on any matter within her
jurisdiction under this subchapter, may issue subpoenas for and compel the attendance of
witnesses within a radius of 100 miles.15 The implementing regulation provides that a claimant
may request a subpoena, but the decision to grant or deny such a request is within the discretion
of the hearing representative, who may issue subpoenas for the attendance and testimony of
witnesses and for the production of books, records, correspondence, papers or other relevant
documents. Subpoenas are issued for documents only if they are relevant and cannot be obtained
by other means and for witnesses only where oral testimony is the best way to ascertain the facts.
In requesting a subpoena, a claimant must explain why the testimony is relevant to the issues in
the case and why a subpoena is the best method or opportunity to obtain such evidence because
there is no other means by which the testimony could have been obtained.16 Section 10.619(a)(l)
of the implementing regulations provides that a claimant may request a subpoena only as part of
the hearings process and no subpoena will be issued under any other part of the claims process.
To request a subpoena, the requestor must submit the request in writing and send it to the
hearing representative as early as possible, but no later than 60 days (as evidenced by postmark,
electronic marker or other objective date mark) after the date of the original hearing request.17
The Office hearing representative retains discretion on whether to issue a subpoena.
The function of the Board on appeal is to determine whether there has been an abuse of
discretion.18 Abuse of discretion is generally shown through proof of manifest error, a clearly
unreasonable exercise of judgment or actions taken which are clearly contrary to logic and
probable deductions from established facts.19
14

As appellant has not established any compensable employment factors after his return to work in July 2000, the
Board need not consider the medical evidence of record. Karen K. Levene, 54 ECAB 671 (2003).
15

5 U.S.C. § 8126.

16

20 C.F.R. § 10.619; Gregorio E. Conde, 52 ECAB 410 (2001).

17

20 C.F.R. § 10.619(a)(l).

18

See Gregorio E. Conde, supra note 16.

19

Claudio Vazquez, 52 ECAB 496 (2001); Martha A. McConnell, 50 ECAB 128 (1998).

6

ANALYSIS -- ISSUE 2
Appellant requested that subpoenas be issued to certain individuals with regard to
incidents that occurred in 1997. He did not clearly explain why a subpoena was the best method
to obtain this evidence. The hearing representative properly noted that the incidents referred to
in 1997 were not relevant to the present claim which concerned incidents arising after his return
to work in July 2000. There was no evidence submitted as to why such individuals should be
present at an oral hearing in the present claim. The Board reviews the hearing representative’s
decision to determine if there was an abuse of discretion. The Board finds that the evidence of
record does not establish that the hearing representative abused his discretion by denying the
subpoena request.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
sustained an emotional condition in the performance of duty for the period July 2000 through
March 2001. The Board further finds no abuse of discretion in the denial of appellant’s
subpoena request.
ORDER
IT IS HEREBY ORDERED THAT the October 20, 2005 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 5, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Trenton, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Jason S. Lomax, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-616
Issued: June 12, 2015

Case Submitted on the Record

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

JURISDICTION
On January 26, 2015 appellant, through counsel, filed a timely appeal from an Office of
Workers’ Compensation Programs’ (OWCP) merit decision dated August 1, 2014. Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish that he sustained a
bilateral knee condition in the performance of duty.
FACTUAL HISTORY
On July 10, 2013 appellant, a 53-year-old retired letter carrier, filed a Form CA-2 claim for
benefits, alleging that he developed a bilateral knee condition causally related to factors of his
employment.
1

5 U.S.C. § 8101 et seq.

In a statement dated September 16, 2013, appellant asserted that he worked for
approximately 23 years as a letter carrier for the employing establishment. He stated that his duties
as a letter carrier required him to work 8- to 10-hour shifts per day, depending on overtime. Six to
seven hours each day were spent walking on concrete or asphalt surfaces which were occasionally
not level. Appellant was required to stand on his feet for most of his shift, and was frequently
required to walk up and down stairs. He related that he carried a mail satchel that typically
weighed up to 35 pounds and occasionally up to 50 pounds.
By letter dated October 3, 2013, OWCP advised appellant that it required additional
information to determine whether he was eligible for compensation benefits. It asked him to
submit a comprehensive medical report from his treating physician describing his symptoms and
the medical reasons for his condition, and an opinion as to whether his claimed condition was
causally related to his federal employment. OWCP requested that appellant submit the additional
evidence within 30 days.
In a July 3, 2013 report, Dr. Laura E. Ross, an osteopath, stated that she initially examined
appellant for evaluation of his bilateral knee pain on April 16, 2013. She related that he sustained a
work-related cumulative trauma to his right knee in May 1999, which included a medial meniscal
tear and medial collateral ligament (MCL) strain. Appellant underwent an arthroscopic partial
medial meniscectomy and patellofemoral chondroplasty of the right knee on June 1, 1999, a
procedure that was performed by Dr. William Gomez, Board-certified in orthopedic surgery.
Dr. Ross stated that appellant experienced some intermittent pain following his surgery, but had no
further complaints of knee pain until July 2010, when he began to have sporadic medial right knee
pain, especially when bearing weight on the knee. Appellant underwent several injections into his
right knee and Dr. Gomez diagnosed mild patellofemoral medial compartment arthritis. He had
continued complaints of anterior right knee pain and he underwent a magnetic resonance imaging
(MRI) scan on February 24, 2011 which showed a complex tear involving the posterior horn and
body of the medial meniscus. Dr. Gomez performed an arthroscopic partial medial meniscectomy
and a trochlear chondroplasty on the right knee on March 8, 2011. Appellant underwent a course
of physical therapy and was released to full duty with no restrictions on April 19, 2011. However,
he began to experience worsening right knee pain and sought treatment on September 15 and
October 3, 2011, at which time Dr. Gomez administered injections into his right knee.
Dr. Ross related that Dr. Gomez reevaluated appellant on December 15, 2011. He noted
that appellant continued to have complaints of right knee pain with weight bearing. Dr. Gomez
recommended that appellant perform limited duties at work to decrease the time he would be on
his feet. He administered another intraarticular injection into appellant’s right knee on February 6,
2012 and opined that it would not get to the point where he could continue his duties with the
employing establishment. Dr. Gomez advised that he would submit a letter recommending that
appellant be limited to performing only sedentary duties. On March 15, 2012 appellant returned to
Dr. Gomez and stated that he could no longer walk or work. Dr. Gomez advised that, if appellant
was not able to perform sedentary work, he should not work at all. He recommended that appellant
undergo a total right knee replacement procedure in light of the fact that his right knee symptoms
had not improved with conservative treatment.
Dr. Ross further related that on December 14, 2012 appellant was evaluated by
Dr. Thomas J. Capotosta, Board-certified in orthopedic surgery and Dr. Gomez’ associate, for

2

evaluation of his left knee. Appellant stated that his left knee had become severely painful and
swollen over the previous few days. Dr. Capotosta had appellant undergo x-ray tests of his left
knee, the results of which were normal, and administered injections to his right knee. Appellant
also underwent an MRI scan of his left knee on January 2, 2013, which showed linear surface tear
posterior horn medial meniscus, mild medial collateral bursitis, possible mild MCL sprain, and
mild patellofemoral chondrosis. He underwent arthroscopic surgery to his left knee on
March 27, 2013.
Dr. Ross stated that appellant was unable to bend or squat at the time of his April 16, 2013
examination. She related that he had lost power and strength in his legs, particularly in the right
knee, and had gained 20 to 30 pounds. Appellant had been out of work since February 6, 2012.
Dr. Ross advised that on examination his knees revealed crepitus with range of motion of both
knees, especially the right knee, and had tenderness along the joint lines, bilaterally, with no gross
instability or significant varus or valgus malalignment in his knees. She stated that her
examination of the left knee was limited due to its postoperative state. Dr. Ross recommended that
appellant undergo a new MRI scan of his right knee. With regard to his left knee, she stated that
she would consider further treatment options at a subsequent examination. Dr. Ross advised that
appellant underwent an MRI scan on May 1, 2013, which showed a partial tear of the anterior
cruciate ligament and a bucket handle medial meniscus tear with popliteal cyst, chondromalacia
patella, partial tear of the medial patella retinaculum, tendinopathy of the patella and quadriceps
tendon, and lateral collateral ligament (LCL) sprain. Dr. Ross recommended that appellant
undergo Orthovise for both knees and continue to use a brace for his right knee.
Dr. Ross issued the following diagnoses: articular collateral ligament (ACL) tear of the
right knee with medial meniscus tear, exacerbation of underlying degenerative joint disease, and
left knee, status post arthroscopic surgery on March 27, 2013; linear surface tear posterior horn
medial meniscus, mild medial collateral bursitis, possible mild MCL sprain, and mild
patellofemoral chondrosis. She opined, after reviewing objective medical evidence which included
multiple diagnostic studies and consultation reports from the Trenton Orthopedic Group, that the
injuries appellant sustained to his knees were directly and causally related to the cumulative trauma
caused by his position as a letter carrier for the employing establishment. Dr. Ross related that
appellant was required to walk 6 to 7 hours out of an 8- to 10-hour shift, on asphalt or concrete. In
addition to the force of weight bearing on his bilateral knees, appellant was required to carry a mail
satchel that could weigh between 35 to 50 pounds. Dr. Ross stated that, after reviewing appellant’s
account of his job duties, his bilateral knee condition had developed as a result of cumulative
trauma and was not attributable to one single, identifiable event.
Dr. Ross concluded that, as a result of his injuries, appellant had been out of work and
unable to return since February 6, 2012. Appellant required further medical treatment for his left
knee, which might include visco-supplementation injections and/or physical therapy, and
additional medical treatment for his right knee, which could include visco-supplementation
injections and possible surgical intervention, including total right knee arthroplasty as
recommended by the physicians from Trenton Orthopedic Group.
By decision dated December 12, 2013, OWCP denied appellant’s claim, finding that he
failed to submit factual and medical evidence sufficient to establish that he sustained the claimed
bilateral knee condition in the performance of duty. It found that he did not establish fact of

3

injury, as the evidence did not support that the injury or event(s) occurred as he described.
OWCP further found that appellant did not submit medical evidence sufficient to establish that
he sustained a diagnosed medical condition causally related to the work injury or event.
On December 23, 2013 appellant requested an oral hearing, which was held on
June 23, 2014.
In a follow-up report dated June 20, 2014, Dr. Ross stated that appellant returned to her
office on July 29, 2013 to undergo injections into his right knee, which he also underwent on
August 5 and 12, 2013. She advised that he did quite well upon receiving the injections and
returned to her office on October 7, 2013 for further evaluation. Dr. Ross stated that appellant had
crepitus with range of motion of the bilateral knees and tenderness along the joint lines; she
advised that she would obtain new x-rays of both knees in four months, at which time she would
reevaluate him. She reiterated her previous findings, diagnoses, and conclusions regarding
whether his bilateral knee condition was causally related to employment factors.
On June 30, 2014 OWCP also received a copy of a March 8, 2011 surgical report from
Dr. Gomez, and a copy of a March 27, 2013 surgical report from Dr. Capotosta. In his report
Dr. Gomez related that appellant had a retear of the right medial meniscus, and had undergone
arthroscopic partial medial menisectomy of the right knee with trochlear chondroplasty.
Dr. Capotosta related in his March 27, 2013 report that appellant had undergone arthroscopy and
partial meniscectomy of the left knee.
By decision dated August 1, 2014, an OWCP hearing representative modified and
affirmed the December 12, 2013 decision. He modified the December 12, 2013 decision in part,
finding that appellant had established fact of injury by presenting factors of employment, which
showed that the claimed injury or event(s) had occurred as he described. OWCP found,
however, that appellant failed to submit medical evidence sufficient to establish that he sustained
a diagnosed medical condition causally related to the described factors of employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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 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.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 establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
2

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

3

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

4

presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed, or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
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.4
Appellant has the burden of establishing by the weight of the substantial, reliable, and
probative evidence, a causal relationship between his claimed right shoulder condition, and his
federal employment. This burden includes providing medical evidence from a physician who
concludes that the disabling condition is causally related to employment factors and supports that
conclusion with sound medical reasoning.5
ANALYSIS
In the instant case, appellant has failed to submit sufficient medical opinion containing a
rationalized, probative report which relates his claimed bilateral knee condition to factors of his
employment. For this reason, he has not met his burden of proof to establish his claim that this
condition was sustained in the performance of duty.
Appellant submitted reports dated July 3, 2013 and June 20, 2014 from Dr. Ross, who
related a series of his complaints of bilateral knee pain and presented diagnoses of ACL tear of
the right knee with medial meniscus tear, exacerbation of underlying degenerative joint disease,
and left knee, status post arthroscopic surgery on March 27, 2013, linear surface tear posterior horn
medial meniscus, mild medial collateral bursitis, possible mild MCL sprain, and mild
patellofemoral chondrosis, but did not provide a rationalized medical opinion that these
conditions were causally related to factors of his employment.
In her July 3, 2013 report, Dr. Ross stated that appellant’s bilateral knee symptoms were
due to work-related cumulative trauma which began with his May 1999 work injury, including a
medial meniscal tear and MCL strain. Following the arthroscopic partial medial meniscectomy
and patellofemoral chondroplasty of the right knee appellant underwent on June 1, 1999, he did not
have significant right knee pain until July 2010, when he began to experience sporadic medial right
knee pain, especially with weight bearing. Dr. Ross noted that Dr. Gomez had diagnosed mild
patellofemoral medial compartment arthritis and advised that the results of a February 24, 2011
4

Id.

5

See Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

5

right knee MRI scan showed a tear of the right medial meniscus. Dr. Gomez performed an
arthroscopic partial medial meniscectomy and a trochlear chondroplasty on the right knee on
March 8, 2011; however, appellant continued to have complaints of right knee pain with weight
bearing. On February 6, 2012 he took appellant off work and opined on March 15, 2012 that, if he
could not perform sedentary work, he should not work at all. Dr. Gomez recommended that
appellant undergo a total right knee replacement procedure in light of the fact that his right knee
symptoms had not improved with conservative treatment. After Dr. Capotosta, Dr. Gomez’
associate, diagnosed a torn posterior horn medial meniscus, mild medial collateral bursitis, possible
mild MCL sprain and mild patellofemoral chondrosis, as indicated by a left knee MRI scan,
appellant underwent arthroscopic surgery to his left knee on March 27, 2013. Dr. Ross advised
that appellant underwent an MRI scan of the left knee on May 1, 2013 which showed a partial tear
of the anterior cruciate ligament and a bucket handle medial meniscus tear with popliteal cyst,
chondromalacia patella, partial tear of the medial patella retinaculum, and tendinopathy of the
patella and quadriceps tendon, and lateral collateral ligament sprain. She opined, after reviewing a
description of his job duties and the objective medical evidence from Drs. Gomez and Capotosta,
that the injuries appellant sustained to his knees were directly and causally related to cumulative
trauma caused by his position as a letter carrier for the employing establishment and were not due
to one single, identifiable event. Dr. Ross stated that, as a result of his injuries, appellant had been
out of work and unable to return since February 6, 2012. She essentially reiterated these findings
and conclusions in her June 20, 2014 report.
Dr. Ross’ reports did not provide a probative, rationalized medical opinion that the
claimed conditions or disability were causally related to employment factors. Her opinion on
causal relationship is of limited probative value as it does not contain any medical rationale how
or why appellant’s claimed bilateral knee condition was currently affected by or related to factors
of employment.6 The weight of medical opinion is determined by the opportunity for
and thoroughness of examination, the accuracy, and completeness of physician’s knowledge of
the facts of the case, the medical history provided, the care of analysis manifested and the
medical rationale expressed in support of stated conclusions.7 Dr. Ross noted that appellant’s job
duties included walking while carrying a mail satchel, but she did not explain the medical
process through which such duties would have been competent to cause the claimed condition.
Her opinion is of limited probative value as it does not contain any medical rationale explaining
how his job duties physiologically caused the diagnosed bilateral knee condition. A rationalized
opinion is especially important in this case as appellant’s knee condition is long standing and
complicated in nature. Dr. Ross’ reports thus did not constitute sufficient medical evidence to
establish that his claimed bilateral knee condition was causally related to his employment.
While appellant also submitted surgical reports from Dr. Gomez and Dr. Capotosta,
neither of these reports address the cause of appellant’s bilateral knee conditions.
On appeal, appellant’s counsel argues that appellant submitted factual and medical
evidence sufficient to establish that his bilateral knee condition was causally related to
employment factors and that he therefore is entitled to compensation for this condition, as it was
6

William C. Thomas, 45 ECAB 591 (1994).

7

See Anna C. Leanza, 48 ECAB 115 (1996).

6

sustained in the performance of duty. He contends that appellant clearly outlined his work duties
as letter carrier and that Dr. Ross thoroughly explained the manner in which his claimed bilateral
knee condition developed as the long term, cumulative result of these work duties. Counsel
argues that, given the length of appellant’s career and the rigors associated with his job over that
time, it would be implausible to suggest that his job duties did not play a role in the deterioration
of his knees. Counsel therefore contends that OWCP’s August 1, 2014 decision should be
reversed and that appellant’s bilateral knee conditions be accepted or alternatively, that the
decision be set aside, and remanded for further development of the medical evidence, as
Dr. Ross’ opinion on causation is uncontroverted. The Board does not accept counsel’s
contentions. For the reasons set forth above, the August 1, 2014 decision of OWCP’s hearing
representative is affirmed.
An award of compensation may not be based on surmise, conjecture, or speculation.
Neither, the fact that appellant’s condition became apparent during a period of employment nor
the belief that his condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.8 Causal relationship must be established by
rationalized medical opinion evidence and he failed to submit such evidence.
OWCP advised appellant of the evidence required to establish his claim, however, he
failed to submit such evidence. Consequently, appellant has not met his burden of proof in
establishing that his claimed bilateral knee condition was causally related to his employment.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to meet his burden of proof to establish that he
sustained a bilateral knee condition in the performance of duty.

8

Id.

7

ORDER
IT IS HEREBY ORDERED THAT the August 1, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 12, 2015
Washington, DC

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

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

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

8