United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.D., claiming as widow of S.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Spring Valley, CA, Employer
__________________________________________

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

Docket No. 18-1528
Issued: April 10, 2019

Case Submitted on the Record

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

JURISDICTION
On August 7, 2018 appellant filed a timely appeal from a June 8, 2018 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). The most recent merit decision was
a Board decision dated August 19, 2016, which became final after 30 days and is not subject to
further review.1 As there was no merit decision issued by OWCP within 180 days of 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 to review the merits of this case.3

1

20 C.F.R. § 501.6(d); see P.S., Docket No. 18-0718 (issued October 26, 2018); T.B., Docket No. 15-0001 (issued
July 1, 2015); C.M., Docket No. 15-0471 (issued April 27, 2015); D.A., Docket No. 08-1217 (issued October 6, 2008).
2
3

5 U.S.C. § 8101 et seq.

Together with her appeal request, appellant submitted a timely request for oral argument, pursuant to 20 C.F.R.
§ 501.5(b). By order dated December 6, 2018, the Board exercised its discretion and denied the request as appellant’s
arguments on appeal could be adequately addressed in a decision based on a review of the case as submitted on the
record. Order Denying Request for Oral Argument, Docket No. 18-1528 (issued December 6, 2018).

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances as set forth
in the prior decisions of the Board are incorporated herein by reference. The relevant facts are as
follows.
On July 12, 1997 the employee, then a 46-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging an emotional condition due to factors of his federal
employment. OWCP accepted the claim on August 13, 2001 for adjustment disorder with mixed
anxiety and depressed mood and paid the employee wage-loss compensation and medical benefits
from July 12 until October 23, 1997, the date the conditions were found to have resolved.
The employee died on April 12, 2001 and appellant, the employee’s widow, filed a claim
for survivor benefits (Form CA-5) on September 3, 2003 alleging that the employee’s death was
causally related to his accepted employment injury.
By decision dated August 26, 2013, the Board set aside an August 23, 2012 OWCP
decision which had found that the employee’s death had not been established as causally related
to his employment injury. The Board found that the reports by Dr. Shamoon Ahmad, a Boardcertified internist with a subspecialty in oncology, who served as an impartial medical specialist,
were insufficient to resolve the conflict in the medical opinion evidence as to whether the
employee’s death was causally related to his accepted employment injury. The Board instructed
OWCP to refer the employee’s case record to another impartial medical specialist to resolve the
remaining conflict in the medical opinion evidence.
In the most recent Board decision in this case, dated August 19, 2016, the Board affirmed
a May 11, 2015 OWCP decision which denied appellant’s claim for survivor benefits.5 The Board
found that the reports of the impartial medical specialist, Dr. Vandana Agarwal, a Board-certified
internist with subspecialty certifications in medical oncology and hematology, sufficient to resolve
the conflict in the medical opinion evidence on the issue of whether the employee’s death due to
colon cancer was causally related to his accepted employment injury.
On August 9, 2017 OWCP received appellant’s request for reconsideration. In support of
her request, appellant submitted medical literature addressing the impact of stress on the spread of
cancer. She asserted that contrary to Dr. Agarwal’s opinion, medical studies and literature support
a link between cancer and stress.
4

Docket No. 13-0235 (issued August 26, 2013); Docket No. 10-1719 (issued February 22, 2011); Docket No.
08-2109 (September 24, 2009); Docket No. 06-1937 (issued March 9, 2007); Docket No. 99-1439 (issued
January 24, 2000).
5

Docket No. 16-1049 (issued August 19, 2016).

2

By decision dated June 8, 2018, OWCP denied reconsideration pursuant to 5 U.S.C.
§ 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.6 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.7 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.8
OWCP’s regulations provide that the evidence or argument submitted by a claimant in
support of a timely request for reconsideration 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.9 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.10
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
On reconsideration, appellant argued that contrary to the opinion of the impartial medical
specialist, Dr. Agarwal, recent medical literature supported a connection between stress and the
progression of cancer.
Appellant did not show that OWCP erroneously applied or interpreted a specific point of
law or advance a relevant legal argument not previously considered by OWCP. Consequently, she
is not entitled to further review of the merits of her claim based on the first and second abovenoted requirements under 20 C.F.R. § 10.606(b)(3).
The Board further finds that appellant did not submit relevant or pertinent new evidence
not previously considered by OWCP. In support of her request for reconsideration, appellant
submitted medical literature addressing the impact of stress on the progression of cancer. The
6
This section provides in pertinent part: the Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
7

20 C.F.R. § 10.607.

8

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the integrated Federal
Employees’ Compensation System (iFECS). Chapter 2.1602.4b.
9

20 C.F.R. § 10.606(b)(3).

10

Id. at § 10.608(b); C.C., Docket No. 18-0316 (issued March 14, 2019); see K.H., 59 ECAB 495, 499 (2008).

3

Board has held that medical literature from publications are of no evidentiary value in establishing
causal relationship between a claimed condition and employment factors because such materials
are of general application and are not determinative of whether the specifically claimed condition
is related to the particular employment factors alleged by the employee.11 A claimant may be
entitled to a merit review by submitting relevant and pertinent new evidence. Appellant did not
do so in this case.
The Board, accordingly, finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted
a specific point of law, advance a relevant legal argument not previously considered by OWCP, or
submit relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the June 8, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 10, 2019
Washington, DC

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

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

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
11

A.S., Docket No. 18-0376 (issued July 18, 2018); William C. Bush, 40 ECAB 1064, 1075 (1989).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
City of Industry, CA, Employer
__________________________________________

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

Docket No. 18-1668
Issued: April 25, 2019

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 September 4, 2018 appellant filed a timely appeal from a May 18, 2018 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated May 11, 2017, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

2
Following the issuance of OWCP’s May 11, 2017 decision, appellant submitted new evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of the case is limited to the evidence that was in the case
record at the time of OWCP’s final decision. Evidence not before OWCP will not be considered by the Board for the
first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence
for the first time on appeal. Id.

FACTUAL HISTORY
On March 6, 2015 appellant, then a 58-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that her repetitive and load-bearing motions performed while in the
performance of duty, caused increasing pain and discomfort in her left hip and both feet. She noted
that she first became aware of her claimed condition and realized its relation to her federal
employment on January 14, 2015.
In an attached statement dated March 5, 2015, appellant noted that she had felt increasing
pain and discomfort in her left hip and both feet over the course of her 14 years of employment as
a letter carrier. The specific employment activities she identified as having caused her injuries
were standing, talking, carrying, pushing a hand truck and hamper, and climbing stairs and ramps,
which she contended she performed six to eight hours per day.
In a development letter dated March 17, 2015, OWCP advised appellant that the evidence
received was insufficient to establish her claim. It informed her of the type of factual and medical
evidence needed to establish her claim and provided a questionnaire for her completion. OWCP
afforded appellant 30 days to submit further evidence.
In a March 31, 2015 statement, appellant responded and detailed the work activities that
affected her hip and feet and described the development of the claimed condition.
Along with her statement, appellant included a February 4, 2015 report by Dr. Hosea
Brown, III, a Board-certified internal medicine specialist, who diagnosed bilateral hallux valgus
deformities (permanent aggravation), left trochanteric bursitis, left gluteus medius/minimus
tendinitis, and left hip degenerative joint disease and attributed these conditions to appellant’s
performance of her duties as a letter carrier throughout her 14-year career. She also submitted a
magnetic resonance imaging (MRI) scan of the left hip, performed on January 15, 2015 and
interpreted by Dr. Vikram Hatti, a Board-certified radiologist, which revealed no avascular
neurosis or osseous contusion or tendinitis of gluteus versus trochanteric bursitis of the left hip.
On May 14, 2015 OWCP referred appellant for a second opinion examination with
Dr. Steven Ma, a Board-certified orthopedic surgeon. In a June 11, 2015 report, Dr. Ma indicated
that Dr. Brown had diagnosed conditions that were not revealed by his examination. He concluded
that Dr. Brown erroneously diagnosed some conditions and there “is nothing at her place of
employment that would cause” others.
By decision dated June 22, 2015, OWCP denied appellant’s claim finding that the medical
evidence of record was insufficient to establish that her diagnosed medical conditions were
causally related to the accepted factors of her federal employment. It noted that the weight of
medical evidence rested with Dr. Ma’s second opinion report.
Appellant subsequently requested reconsideration and submitted additional evidence. By
decisions dated April 14, August 31, and October 21, 2016 and May 11, 2017, OWCP reviewed
the merits of the claim, but denied modification. It found that the evidence of record was
insufficient to establish that her diagnosed medical conditions were causally related to the accepted
factors of her federal employment.

2

Appellant again requested reconsideration on October 9, 2015 and submitted additional
information. In a March 31, 2015 report, Dr. Charles Herring, a Board-certified orthopedic
surgery specialist, diagnosed partial tear of gluteus medius and fluteus minimus, left hip; left hip
trochanteric bursitis; and left hip chondromalacia. He noted that appellant’s work activities,
including walking long distances, ascending and descending stairs, and entering and exiting a
vehicle could cause injuries to the gluteus medius and minimus region.
In a September 24, 2015 follow-up evaluation report, Dr. Stephen Wan, a Board-certified
podiatrist, diagnosed hallux valgus deformity, both feet, tailor’s bunion deformity, both feet, and
joint pain both feet. He opined that, while appellant’s diagnoses represent an underlying and
progressive condition and that there had been no history of trauma related to the onset of her
symptoms, her work duties exacerbated her underlying conditions and pathologies. Dr. Wan
further explained that her job duties would considerably increase her weight-load stress and that it
was of a high medical probability that these work-related activities significantly exacerbated her
underlying pathologies.
In a September 30, 2015 letter, Dr. Brown detailed medical conditions that “were clearly
documented on the patient’s MRI scan studies contrary to the opinion of Dr. Ma,” including
“cumulative trauma and irritation to the structure in the left hip including, but not limited to the
bursae, tendons, and muscles thereby causing the production of left trochanteric bursitis as well as
left hip tendinitis and left gluteus medius and minimum tendinitis.” He contended that Dr. Ma
“entirely ignored these employment-related factors in his medical report.” Dr. Brown described
appellant’s job duties, including repetitive standing and carrying of weight loads up to 30 pounds,
navigating steps, and climbing in and out of her work vehicle. He concluded that these activities
would all considerably increase her mechanical weight-load stress and that it was of a high medical
probability that these work-related activities significantly exacerbated underlying preexisting
pathologies.
By decision dated April 14, 2016, OWCP reviewed the merits of appellant’s claim, but
denied modification of its decision. It found that Dr. Ma’s opinion was entitled to greater weight
because he provided a thorough and well-rationalized medical report with an accurate history,
whereas Drs. Wan and Brown failed to provide an accurate history of appellant’s work duties
because the general description they provided did not take into account that she was on limited
duty. OWCP noted evidence that the claimed conditions were present, but not related to
appellant’s employment duties.
On May 19, 2016 appellant requested reconsideration and submitted additional evidence.
In a letter dated May 11, 2016, Dr. Brown took issue with Dr. Ma’s findings, disagreed with the
rationale justifying the denial of the claim, and contended that OWCP misread or ignored medical
evidence in its decision of April 4, 2016. He asked OWCP to accept the following conditions:
bilateral hallux valgus deformities (permanent aggravation), left trochanteric bursitis; left gluteus
medius/minimus tendinitis; left trochanteric degenerative joint disease (permanent aggravation);
and tailor’s bunion deformity and he requested a referee examination to resolve the conflict of
medical opinion in the event OWCP did not accept the additional conditions.
In a letter dated July 21, 2016, Dr. Wan contended that OWCP’s April 14, 2016 decision
inappropriately implied that his account had not accurately described appellant’s situation because
it provided a “general description” of a letter carrier’s duties that did not take her “light duty” into
consideration. He also disputed the weight given to Dr. Ma’s opinion.
3

By decision dated August 31, 2016, OWCP again reviewed the merits of appellant’s claim,
but denied modification of its April 14, 2016 decision. It found that a referee review was not
warranted because the medical report submitted on reconsideration did not support a conflict in
medical opinion, it contained no new objective medical examination findings, and only referred to
medical reports that had been reviewed and considered in Dr. Ma’s report or on reconsideration.
On October 4, 2016 appellant requested reconsideration and submitted additional evidence
that included a duty status form report (Form CA-17) dated October 4, 2016 that diagnosed a left
hip bursitis condition.
By decision dated October 12, 2016, OWCP again reviewed the merits of appellant’s
claim, but denied modification, finding that the evidence submitted in support of the request did
not provide sufficient rationale to establish causal relationship.
On February 24, 2017 OWCP received copies of physician reports and diagnostic tests
dated January 14, 2015 to October 24, 2016 from Drs. Wan, Herring, Brown, and Edward
Mittleman, a Board-certified family practitioner, which mostly reiterated prior diagnoses and
opined that they were caused by appellant’s federal employment.
By decision dated May 11, 2017, OWCP again reviewed the merits of appellant’s claim,
but denied modification, finding that the newly submitted evidence failed to adequately address
the issue of causal relationship and did not distinguish between appellant’s preexisting conditions
and the effects of employment-related injury or disease.
On May 3, 2018 appellant requested reconsideration and submitted additional evidence.
She submitted an April 17, 2018 report from Dr. Brown again disputing Dr. Ma’s finding that
“there is nothing at her place of employment that would cause” the medical conditions he
diagnosed and challenged OWCP’s May 11, 2017 decision that determined that the weight of
medical evidence rested with Dr. Ma’s report. Dr. Brown further questioned why OWCP accorded
determinative weight to Dr. Ma’s findings when he had failed to explain why the weight-bearing
activities appellant performed on a daily basis, while in the performance of duty, had not affected
her conditions.
Additionally, appellant submitted medical reports and diagnostic test interpretations from
Drs. Herring, Brown, and Wan dated March 31, 2015; July 6 and 11, and November 14, 2017; and
February 12 and April 9, 2018 that note the same general diagnoses that Dr. Brown had previously
identified in his February 4, 2015 report. In the March 31, 2015 report, Dr. Herring noted that
appellant’s job required walking long distances, going up and down stairs, and getting in and out
of a vehicle. He again opined that these activities could cause injuries to the gluteus medius and
minimus region.
In the July 6 and 11, 2017 reports, Drs. Herring and Wan, respectively, reiterated prior
diagnoses. Dr. Herring recommended cortisone injection, but indicated that he could not provide
it without authorization from OWCP. Dr. Wan recommended palliative care and certain types of
footwear.
In the November 14, 2017 report, Yung Ho Cho, a Board-certified radiologist, interpreted
an MRI scan study of appellant’s hips conducted on October 26, 2017. He noted moderate grade
tendinopathy of the right gluteus minimum tendon at its insertion, mild tendinopathy of the left
4

gluteus minimum tendon at its insertion, partial tear at the musculotendinous junction of the left
gluteus maximus and small tear of the left gluteus maximus and small partial tear of the left gluteus
medius tendon at its insertion, and small bilateral hip joint effusions. In the February 12 and
April 9, 2018 reports, Dr. Brown reviewed the MRI scan study findings and reiterated prior
diagnoses.
By decision dated May 18, 2018, OWCP denied appellant’s request for reconsideration
without conducting further merit review.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.3
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a
claimant also must file his or her application for review within one year of the date of that
decision.4 When a claimant fails to meet one of the above standards, OWCP will deny the
application for reconsideration without reopening the case for review on the merits.5
Evidence or argument that repeats or duplicates evidence previously of record has no
evidentiary value and does not constitute a basis for reopening a case.6 Likewise, the submission
of evidence that does not address the particular issue involved does not constitute a basis for
reopening a case.7
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
The Board finds that appellant has not established that OWCP erroneously applied or
interpreted a specific point of law. Moreover, appellant did not advance a new and relevant legal
argument not previously considered. Thus, she is not entitled to a review of the merits of the claim
based on the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).8
On reconsideration appellant submitted Dr. Brown’s April 17, 2018 report in which he
contended that OWCP had improperly accorded determinative weight to Dr. Ma’s findings as the
3

20 C.F.R. § 10.606(b)(3).

4

Id. at § 10.607(a).

5

Id. at § 10.608(b).

6

J.P., 58 ECAB 289 (2007).

7

L.H., 59 ECAB 253 (2007).

8

20 C.F.R. § 10.606(b)(3); see also B.H., Docket No. 18-0889 (issued November 21, 2018).

5

basis for denying appellant’s occupational disease claim. However, while this report is new,
OWCP had previously considered this same argument of Dr. Brown as he had articulated in his
prior reports in its April 14, August 31, and October 12, 2016 decisions. Additionally, it
previously considered this argument and denied modification of earlier decisions in its May 18,
2018 decision, noting that appellant had not submitted any new legal argument after he requested
reconsideration of its last decision. The Board has found that evidence or argument that repeats
or duplicates evidence previously of record has no evidentiary value and does not constitute a basis
for reopening a case.9 Therefore, Dr. Brown’s report is insufficient to require OWCP to conduct
a merit review.
Appellant also submitted medical and diagnostic reports from Drs. Herring, Brown, and
Wan dated March 31, 2015 to April 9, 2018. The Board notes that these reports are substantially
similar to reports previously of record, which had previously been considered by OWCP and found
insufficient to establish that appellant’s diagnosed medical conditions were causally related to the
accepted factors of her federal employment.10 As previously noted, evidence which is duplicative
of that already contained in the case record does not constitute a basis for reopening a case.11 In
addition appellant submitted a November 14, 2017 report of Dr. Cho interpreting the October 26,
2017 MRI scan. However, this report is irrelevant to the issue of causal relationship as diagnostic
studies lack probative value as they do not address whether the employment incident caused any
of the diagnosed conditions.12 Thus, appellant is not entitled to a review of the merits of the claim
based on the third above-noted requirement under 20 C.F.R. § 10.606(b)(3).
The Board accordingly finds that appellant has not met any of the requirements of
20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.13
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

9

J.P., 58 ECAB 289 (2007).

10
This evidence is cumulative and substantially similar to evidence that was already contained in the case file and
previously considered. A.L., Docket No. 08-1730 (issued March 16, 2009).
11

See Kenneth R. Mroczkowski, 40 ECAB 855 (1989).

12

See J.S., Docket No. 17-1039 (issued October 6, 2017).

13
See A.R., Docket No. 16-1416 (issued April 10, 2017); A.M., Docket No. 16-0499 (issued June 28, 2016); A.K.,
Docket No. 09-2032 (issued August 3, 2010); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006);
(when an application for reconsideration does not meet at least one of the three requirements enumerated under section
10.606(b), OWCP will deny the application for reconsideration without reopening the case for a review on the merits).

6

ORDER
IT IS HEREBY ORDERED THAT the May 18, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 25, 2019
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.S., Appellant
and
DEPARTMENT OF LABOR, MINE SAFETY &
HEALTH ADMINISTRATION, Pikesville, KY,
Employer
__________________________________________

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

Docket No. 17-1769
Issued: July 26, 2018

Case Submitted on the Record

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

JURISDICTION
On August 14, 2017 appellant filed a timely appeal from a July 21, 2017 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the claim.2
ISSUE
The issue is whether appellant has met his burden of proof to establish an injury causally
related to the accepted factors of his federal employment.

1
2

5 U.S.C. § 8101 et seq.

On appeal appellant submitted additional evidence. The Board’s jurisdiction is limited to the evidence that was
before OWCP at the time of its final decision. Therefore, the Board is precluded from reviewing this additional
evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On September 1, 2016 appellant, then a 54-year-old assistant district manager, filed an
occupational disease claim (Form CA-2) alleging that his lumbosacral disc disease and
polyneuropathy conditions were caused and or aggravated by walking and crawling activities he
performed in confined spaces in the performance of his federal employment duties. He indicated
that he first became aware of his claimed condition and its relation to his federal employment on
January 18, 2008. Appellant retired on January 29, 2016.
In an undated statement, appellant stated that he worked for the employing establishment
from April 2000 until January 2016 in various positions. For the first five years, he performed
daily mine inspection work. For the next 11 years, appellant performed mine inspections and
accident investigations. This was initially done in the capacity as a supervisor and then as an
assistant district manager. For the last three years, appellant worked as the lead accident
investigator. He asserted that his work entailed sustained physical exertion, carrying heavy
equipment, and working in close confinement underground. Appellant also walked long distances
and frequently walked in a stopped/squatting position or crawled on his hands and knees while
visiting mines. He indicated that his numbness in his right leg and foot and some numbness in his
left foot first occurred in 2008 while conducting mine inspections. Appellant stated that the
diagnostic testing revealed degenerative joint disease, disc herniation, and radiculopathy. He
alleged that he retired because he could no longer do his job. Appellant attributed his low back
condition and numbness in his feet and legs to carrying equipment weighing in excess of 40 pounds
during inspections and walking long distances while in stooped/squatting and crawling positions.
In a September 1, 2016 letter, F.B., OWCP Coordinator for the employing establishment,
indicated that appellant’s description of his working conditions and job duties was accurate. He
noted that, on average, appellant would have been exposed to those conditions four to eight hours
a day, four to five days a week with less exposure in his role as a supervisor and assistant district
manager.
In a July 28, 2016 report, Dr. Warren Chumley, a Board-certified neurologist, noted that
appellant was an underground mine inspector who walked long distances in steel-toed boots as
part of his job. Appellant had an unsteady gait due to a moderately-severe neuropathy and was
now falling. Dr. Chumley indicated that appellant had been followed through 2012 for a mild-tomoderate mixed polyneuropathy, mild right L5 radiculopathy, moderate right S1 radiculopathy (as
seen on electromyogram/nerve conduction velocity (EMG/NCV) study of December 18, 2012),
migraine headaches, degenerative disc disease of the cervical spine (as seen on a magnetic
resonance imaging (MRI) scan of the cervical spine dated October 21, 2011), stroke (as
documented on August 5, 2011 MRI scan), and a low vitamin D. He indicated that a January 16,
2016 EMG/NCV study showed a moderate worsening of the polyneuropathy, improvement of the
right S1 radiculopathy, a right L5 radiculopathy, and moderate left L5 and S1 radiculopathies.
Dr. Chumley provided an assessment of idiopathic peripheral neuropathy, radiculopathy,
migraine, and neck pain. He opined that appellant was totally disabled from work due to the severe
neuropathy and lumbosacral radiculopathies and explained how appellant was physically
incapable of performing his underground mine inspector work.
An August 4, 2016 MRI scan lumbar spine indicated disc herniation at L4-5 and L2-3.

2

In an August 23, 2016 report, Dr. Van S. Breeding, a Board-certified family practitioner,
noted that appellant worked as a mine inspector for the last 16 years and crawled extensive
distances carrying a 50-pound pack around mining equipment and worked in environments that
were difficult to ambulate and move in. Dr. Breeding indicated that, since his employment,
appellant developed severe back pain. He noted that an August 4, 2016 MRI scan indicated
herniated discs at L4-5 and L2-3, EMG/NCV testing revealed right L5 radiculopathy and S1
radiculopathy, and an October 21, 2011 cervical spine MRI scan showed degenerative disc disease
of the cervical spine. Dr. Breeding reported that appellant had failed physical therapy and
conservative treatment and was not a neurosurgeon candidate for correction for his persistent
polyneuropathy with the right S1 and right L5 radiculopathy. He opined that appellant’s
neuropathy, lumbosacral disc disease, and bilateral knee replacement were related to the type and
duration of his work and the severity of his working conditions.
In an October 28, 2016 development letter, OWCP requested additional factual and
medical evidence in support of appellant’s occupational disease claim. This included a
rationalized medical report from a physician explaining how his employment activities caused,
contributed to, or aggravated any diagnosed medical condition. OWCP afforded appellant 30 days
for a response.
By letter also dated October 28, 2016, the employing establishment was requested to
provide a copy of appellant’s job description and physical requirements of the job. OWCP
received a November 14, 2016 letter from C.S., District Manager, which agreed that appellant’s
actual duties were consistent with the position descriptions.
In a November 20, 2016 letter, appellant asserted that Dr. Breeding’s August 23, 2016
report contained a comprehensive medical opinion that established causal relation with his
diagnosed conditions. Copies of an August 23, 2016 letter from Dr. Breeding, patient information
and referral information forms, and a November 18, 2016 patient plan was submitted.
In a January 6, 2016 report, Dr. Chumley provided an assessment of idiopathic peripheral
neuropathy, radiculopathy, common migraine, and neck pain. He noted that appellant reported
that his work had become difficult due to his lumbar conditions, and his symptoms had worsened.
By decision dated February 3, 2017, OWCP denied appellant’s claim, finding that the
medical evidence of record did not contain a well-reasoned medical opinion explaining how
appellant’s work factors either directly caused or aggravated the diagnosed conditions. It further
noted that there was no medical discussion of appellant’s underlying degenerative condition.
Appellant requested reconsideration on April 24, 2017 and submitted diagnostic testing
dated September 21 and December 18, 2012 and January 6, 2016.
The discussion/summary portion of Dr. Chumley’s March 30, 2017 report was provided
with several paragraphs redacted. He indicated that appellant’s main symptoms were low back
pain and numbness of the lateral aspect of the right lower leg and the ulnar aspect of the right arm.
Dr. Chumley noted that appellant was seen in Dr. Ebbs’ clinic in 2016 and surgery was not
recommended. He reported that an August 14, 2016 MRI scan of lumbar spine showed disc
herniations at L2-3 (left-sided) and L4-5 (right-sided). Dr. Chumley opined that the severe

3

neuropathy and lumbosacral radiculopathies disabled appellant and explained that he could not
perform his federal employment duties. He further opined that given appellant’s prior duties as an
underground mine inspector, the degenerative changes and disc herniations in his lumbar spine led
to multiple bilateral radiculopathies and were almost definitely work related.
In an April 5, 2017 report, Dr. Breeding opined that appellant’s conditions were directly
related to his 16 years of mine inspector work in an underground mining environment. He noted
that Dr. Chumley diagnosed appellant with bilateral lumbosacral disc disease, cervical disc
disease, peripheral neuropathy, and bilateral radiculopathy. Dr. Breeding noted that those
conditions provided by Dr. Chumley arose from appellant’s work environment of crawling and
walking stooped over for up to four miles a day on a daily basis, as well as his work in confined
spaces while working as an inspector. He explained that appellant had persistent repetitive trauma
to his lumbar spine, cervical spine, and to the nerves related to those areas due to repetitive actions
of lifting heavy lids off of equipment for proper inspection. Dr. Breeding indicated that the 16
years appellant spent as a mine inspector doing heavy type of work activity and the environment
of work and injuries over a repetitive amount of time damaged his body and left him with persistent
permanent pain, muscle, and nerve-related injuries to the lumbar and cervical areas of his spine.
He concluded that diagnostic testing confirmed this and there were no other sources of injury to
appellant’s spine or nerves other than his work relationship.
By decision dated July 21, 2017, OWCP denied modification of its prior decision. It found
that the evidence submitted failed to contain a rationalized opinion based on an accurate
employment and medical history explaining how appellant’s diagnosed conditions were
attributable to his accepted employment factors. OWCP further noted that it did not have all of
appellant’s medical records from 2000 to the present.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence, 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
or specific condition for which compensation is claimed is causally related to the employment
injury.4
OWCP’s regulations define an occupational disease as a condition produced by the work
environment over a period longer than a single workday or shift.5 To establish that an injury was
sustained in the performance of duty in an occupational disease claim, a claimant must submit the
following: (1) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; (2) a factual statement identifying employment factors alleged
3

Supra note 1.

4

Kathryn Haggerty, 45 ECAB 383, 388 (1994).

5

20 C.F.R. § 10.5(q).

4

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.6
A medical report is of limited probative value if it is unsupported by medical rationale.7
Medical rationale includes a physician’s detailed opinion on the issue of whether there is causal
relationship between the claimant’s diagnosed condition and the implicated employment activity.
The opinion of the physician must be based on a complete factual and medical background of the
claim, must be one of reasonable medical certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and specific employment
activity or factors identified by the claimant.8 The weight of medical evidence is determined by
its reliability, its probative value, its convincing quality, the care of analysis manifested, and the
medical rationale expressed in support of the physician’s opinion.9 The belief of a claimant that a
condition was caused or aggravated by the employment is insufficient to establish causal relation.10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that his
diagnosed conditions were causally related to the accepted employment factors.
In support of his claim, appellant provided reports from Dr. Chumley. In his July 28, 2016
report, Dr. Chumley noted appellant’s medical history and that he was an underground mine
inspector who walked long distances in steel-toed boots as part of his job. He diagnosed idiopathic
peripheral neuropathy, radiculopathy, migraine, and neck pain and opined that appellant was
disabled due to the severe neuropathy and lumbosacral radiculopathies. However, Dr. Chumley
failed to offer an opinion regarding the cause of appellant’s diagnosed conditions. Similarly, in
his January 6, 2016 report, he offered no opinion regarding the cause of appellant’s diagnosed
conditions. The Board has held that medical evidence that does not offer any opinion regarding
the cause of an employee’s condition is of limited probative value.11 Furthermore, while
Dr. Chumley reported that a January 16, 2016 EMG/NCV study showed a moderate worsening of
the polyneuropathy, improvement of the right S1 radiculopathy, a right L5 radiculopathy, and
moderate left L5 and S1 radiculopathies, he failed to provide a medically sound explanation of

6

Victor J. Woodhams, 41 ECAB 345 (1989); see also J.H., Docket No. 17-1643 (issued June 23, 2017).

7

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

8

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

9

James Mack, 43 ECAB 321 (1991).

10

Lourdes Harris, 45 ECAB 545, 547 (1994).

11

S.E., Docket No. 08-2214 (issued May 6, 2009); see also C.B., Docket No. 09-2027 (issued May 12, 2010).

5

how the specific employment factors, physiologically, caused or aggravated appellant’s
conditions.12 As such his reports are insufficient to establish appellant’s claim.
In his March 30, 2017 report, Dr. Chumley opined that given appellant’s prior duties as an
underground mine inspector, the degenerative changes and disc herniations in his lumbar spine led
to multiple bilateral radiculopathies and were almost definitely work related. However,
Dr. Chumley’s opinion in this report is also insufficiently rationalized. His opinion on causation
is speculative as he generally noted that the conditions were “almost definitely work related”
without a firm conclusion that the employment factors did in fact cause or aggravate his
conditions.13 The opinion of a physician supporting causal relationship must not be speculative or
equivocal.14 Dr. Chumley’s statement on causation also failed to provide a sufficient explanation
as to the mechanism of injury pertaining to this occupational disease claim as alleged by appellant,
namely, how the duties of a mine inspector in the first 5 years and the lesser duties in the remaining
11 years would cause and or aggravate the degenerative changes and disc herniations in appellant’s
lumbar spine as opposed to the natural progression of the preexisting conditions.15 As he failed to
provide a medically-sound explanation of how the specific employment factors, in particular
physiologically, caused or aggravated appellant’s back conditions, this report is also insufficient
to establish his claim.16
In an August 23, 2016 report, Dr. Breeding opined that appellant’s neuropathy,
lumbosacral disc disease, and bilateral knee replacement were related to the type of work he
performed, the duration of his work, and the severity of the conditions under which he was required
to work. While he noted that appellant had worked as a mine inspector for the last 16 years and
noted his work duties, the Board finds that this report is conclusory in nature. Dr. Breeding offered
no supporting medical rationale to explain how those diagnosed conditions were caused or
aggravated by his work duties. Furthermore, he failed to provide any discussion of the underlying
degenerative condition and how such condition worsened as a result of appellant’s work activities.
As Dr. Breeding’s opinion was conclusory and without sufficient rationale, his report is
insufficient to establish causal relationship.17
In his April 5, 2017 report, Dr. Breeding opined that appellant’s medical conditions of
bilateral lumbosacral disc disease, cervical disc disease, peripheral neuropathy, and bilateral
radiculopathy, as provided by Dr. Chumley, were directly related to 16 years of work he did as a
mine inspector, which included crawling, walking stooped over for up to four miles a day on a
daily basis, and his work in confined spaces. He noted that appellant had persistent repetitive
trauma to his lumbar spine, cervical spine, and to the nerves related to those areas due to repetitive
12

T.G., Docket No. 14-0751 (issued October 20, 2014).

13

See Michael R. Shaffer, 55 ECAB 339 (2004).

14

D.D., 57 ECAB 734 (2006).

15

S.W., Docket 08-2538 (issued May 21, 2009).

16

See T.G., supra note 12.

17
J.F., Docket No. 09-1061 (issued November 17, 2009); A.D., 58 ECAB 149 (2006); Roma A. MortensonKindschi, 57 ECAB 418 (2006).

6

actions of lifting heavy lids off of equipment for proper inspection and the above work
environment. Dr. Breeding explained that the injuries over a repetitive amount of time damaged
appellant’s body and left him with persistent permanent pain, muscle and nerve-related injuries to
his lumbar and cervical areas. He noted that this has been confirmed by diagnostic testing and
there were no other sources of injury to appellant’s spine or nerves other than his work relationship.
While Dr. Breeding also noted that appellant performed repetitive work crawling and stooping in
confined spaces, he offered no medical explanation as to how these repetitive work duties would
have physiologically caused the diagnosed conditions.18 Furthermore, he again failed to provide
any discussion of the underlying degenerative condition and how such conditions worsened as a
result of appellant’s work activities. As such, Dr. Breeding’s opinion is conclusory and his report
is insufficient to establish causal relationship.19
Appellant also provided copies of multiple diagnostic tests, which confirmed his
conditions. However the diagnostic reports are insufficient to establish appellant’s claim as they
fail to offer any opinion regarding causal relationship.20
As appellant has not submitted medical opinion evidence sufficient to establish his claim,21
he has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an injury
causally related to the accepted factors of his federal employment.

18

B.A., Docket No. 15-1277 (issued September 7, 2016).

19

Id.

20

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

21

See P.M., Docket No. 17-1320 (issued October 16, 2017).

7

ORDER
IT IS HEREBY ORDERED THAT the July 21, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: July 26, 2018
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.I., Appellant
and
DEPARTMENT OF THE NAVY, JOINT BASE
ANACOSTIA-BOLLING, Washington, DC,
Employer
_________________________________________
Appearances:
Paul H. Felser, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-1365
Issued: March 22, 2022

Case Submitted on the Record

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

On September 16, 2021 appellant through counsel, filed a timely appeal from an
August 16, 2021, merit decision of the Office of Workers’ Compensation Programs (OWCP).
The Clerk of the Appellate Boards assigned Docket No. 21-1365.
In a letter dated February 10, 2022, counsel requested that the appeal be withdrawn.
The Board has duly considered the matter and concludes that counsel ’s request f or the
withdrawal of the appeal should be granted. Accordingly,

1

In all cases in which a representative has been authorized in a matter before the Board, no cla im f or a f ee f or
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 b y t he B oard .
Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeano r,
subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment o f
fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

IT IS HEREBY ORDERED THAT the request for the withdrawal of the appeal is
granted. The appeal docketed as No. 21-1365 is dismissed.
Issued: March 22, 2022
Washington, DC

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

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

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

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S., Appellant
and
DEPARTMENT OF THE ARMY, MILITARY
OCEAN TERMINAL SUNNY POINT,
Southport, NC, Employer
__________________________________________

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

Docket No. 14-1278
Issued: September 12, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On May 12, 2014 appellant timely appealed the March 28, 2014 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant sustained an injury in the performance of duty on
January 30, 2014.

1
2

5 U.S.C. §§ 8101-8193 (2006).

The record on appeal contains evidence received after OWCP issued its March 28, 2014 decision. The Board is
precluded from considering evidence that was not in the case record at the time OWCP issued its final decision. 20
C.F.R. § 501.2(c)(1) (2012).

FACTUAL HISTORY
Appellant, a 38-year-old security guard, filed a traumatic injury claim (Form CA-1)
alleging that she slipped on icy asphalt in the performance of duty on January 30, 2014. The
alleged incident occurred under the truck search canopy. Appellant claimed to have slipped and
caught herself before falling. She twisted awkwardly, which caused pain in her right knee and
mid-upper back. The employing establishment challenged the claim, noting that prior to the
alleged injury appellant reported back pain from moving. Additionally, there were no witnesses,
and appellant did not immediately seek medical attention.3
OWCP received February 6, 2014 treatment notes from Dr. John A. Azzato, a Boardcertified orthopedic surgeon, who saw appellant for follow-up regarding a work-related knee and
back injury. Dr. Azzato noted that her knee was still somewhat sensitive and she had
intermittent upper back pain. Physical examination of the back revealed no significant
tenderness, and appellant’s reflexes and strength were normal. Dr. Azzato also noted that
appellant’s bruise had decreased. He diagnosed right knee contusion and low back strain, both
improved. Dr. Azzato advised appellant to continue with her exercises and return to work as of
February 7, 2014.
On February 24, 2014 OWCP advised appellant of the need for additional factual and
medical evidence in support of her claimed injury. It explained that the evidence previously
received was insufficient to establish that the January 30, 2014 employment incident occurred as
alleged. OWCP requested a detailed description of how the injury occurred. Additionally, it
advised appellant to submit a narrative medical report from her attending physician. Appellant
was afforded 30 days to submit the requested factual and medical information.
OWCP subsequently received a series of x-rays taken on February 16, 2014. Dr. Gail M.
Capel, a Board-certified diagnostic radiologist, found no evidence of fracture in the thoracic
spine, a normal right knee and normal right tibia and fibula.
In a March 28, 2014 decision, OWCP denied appellant’s traumatic injury claim because
she failed to establish fact of injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence, including that an injury was sustained in the performance of duty as alleged and that
any specific condition or disability claimed is causally related to the employment injury.4
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether “fact of injury” has been established. Generally, fact
of injury consists of two components that must be considered in conjunction with one another.
The first component is whether the employee actually experienced the employment incident that
3

The employing establishment indicated that appellant did not seek medical attention until the following
Monday, February 3, 2014.
4

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

2

allegedly occurred.5
personal injury.6

The second component is whether the employment incident caused a
ANALYSIS

On January 30, 2014, appellant allegedly slipped on icy asphalt and was able to catch
herself and avoid falling, but in the process, she reportedly twisted awkwardly injuring her right
knee and mid-upper back. On February 24, 2014 OWCP requested additional factual and
medical evidence in support of appellant’s claimed injury. Specifically, it requested a detailed
description of how the January 30, 2014 injury occurred. Appellant failed to submit the
requested statement within the allotted time frame. OWCP also requested a narrative medical
report from appellant’s attending physician, which also was not received in a timely fashion.
CONCLUSION
Appellant failed to establish that she sustained an injury in the performance of duty on
January 30, 2014.
ORDER
IT IS HEREBY ORDERED THAT the March 28, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 12, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board
5

Elaine Pendleton, 40 ECAB 1143 (1989).

6

John J. Carlone, 41 ECAB 354 (1989). Causal relationship is a medical question which generally requires
rationalized medical opinion evidence to resolve the issue.

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cincinnati, OH, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 19-1686
Issued: March 30, 2021

Case Submitted on the Record

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

On August 6, 2019 appellant filed a timely appeal from a July 15, 2019 decision of the
Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as No. 19-1686.2
On August 15, 2007 appellant, then a 49-year-old letter carrier, filed a notice of
occupational disease (Form CA-2) alleging that she injured her right shoulder due to factors of her
federal employment including shelving stock boxes with her hands held above her head. She
indicated that she first became aware of the condition and that it was causally related to her
1

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

The Board notes that following the July 15, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence for
the first time on appeal. Id.

employment on December 6, 2006. Appellant did not initially stop work. OWCP accepted the
claim for right shoulder impingement syndrome, right rotator cuff tear, and right shoulder
osteoarthritis. It paid appellant intermittent compensation on the supplemental rolls beginning
June 6, 2007. Appellant received compensation on the periodic rolls as of August 13, 2015.
On June 26, 2018 OWCP issued a preliminary determination that appellant was overpaid
compensation benefits in the amount of $15,970.58 for the period February 1, 2015 to March 31,
2018, for which she was not at fault. It explained that the overpayment was a result of her receipt
of dual benefits from OWCP and Social Security Administration (SSA) age-related retirement
benefits attributable to federal service, without offset, which was a prohibited dual benefit. A
breakdown and calculation of how the overpayment was calculated was also attached. OWCP
provided appellant with an overpayment recovery questionnaire (Form OWCP-20) and informed
her of her appeal rights.
On July 6, 2018 appellant requested a prerecoupment hearing. By decision dated
October 4, 2018, an OWCP hearing representative determined that appellant’s case was not in
posture for a hearing as OWCP calculated that appellant was overpaid compensation benefits in
the amount of $15,970.58 for the period February 1, 2015 to March 31, 2018, however, she did
not start receiving compensation benefits until April 25, 2015.
On October 9, 2018 OWCP issued a preliminary determination that appellant was overpaid
compensation benefits in the amount of $14,844.06 for the period April 25, 2015 to March 31,
2018, for which she was not at fault. It explained that the overpayment was a result of her receipt
of dual benefits from OWCP and SSA age-related retirement benefits attributable to federal
service, without offset, which was a prohibited dual benefit. A breakdown and calculation of the
overpayment was attached. OWCP provided appellant with an overpayment recovery
questionnaire (Form OWCP-20) and informed her of her appeal rights.
On October 24, 2018 appellant requested a prerecoupment hearing. By decision dated
January 23, 2019, an OWCP hearing representative found that appellant’s case was not in posture
for a hearing. The representative determined that the record contained two different sets of figures
from SSA regarding the FERS offset, and that it was unclear why OWCP relied on the figures
from March 26, 2018. The representative also determined that while OWCP calculated the
overpayment of compensation benefits to appellant for the period April 25, 2015 to March 31,
2018, appellant did not receive any wage-loss compensation from May 10 to July 2, 2015.
Additionally, the representative found that appellant was put on notice that her compensation
would be reduced by her SSA benefits by letters from OWCP dated July 11, 2014 and
August 25, 2015.
On May 22, 2019 OWCP issued a preliminary determination that appellant was overpaid
compensation benefits in the amount of $13,946.98 for the period April 25 to May 9, 2015 and the
period July 3, 2015 to March 31, 2018. It explained that the overpayment was a result of her
receipt of dual benefits from OWCP and SSA age-related retirement benefits attributable to federal
service, without offset, which was a prohibited dual benefit. OWCP advised appellant that she

2

was at fault3in the creation of the overpayment because she accepted a payment that she knew or
reasonably should have known to be incorrect. A breakdown and calculation of the overpayment
was also attached. OWCP provided appellant with an overpayment recovery questionnaire (Form
OWCP-20) and informed her of her appeal rights.
On June 17, 2019 OWCP received appellant’s overpayment recovery questionnaire (Form
OWCP-20), and her request to contest the overpayment. Appellant submitted an SSA-1099 form
for 2015, a 2016 SSA form 1099, a March 12, 2015 social security benefits statement, a July 7,
2016 benefits statement which reflected that appellant did not receive any SSA benefits from
January through June 2016, and May 5 and 28, 2019 documents stating that appellant’s Form 1099
social security benefits statement was unable to be processed due to no benefits paid or repaid
during 2017.
By decision dated July 15, 2019, OWCP found an overpayment of compensation in the
amount $13,946.98 for the period April 25 through May 9, 2015 and the period July 3, 2015
through March 31, 2018, as OWCP had failed to offset appellant’s compensation payments for the
portion of her age-related SSA benefits that were attributable to her federal service. It further
determined that appellant was at fault in the creation of the overpayment and was therefore not
entitled to waiver of recovery of the overpayment. OWCP determined that it would recover the
overpayment by deducting $805.00 every 28 days from appellant’s continuing compensation
payments beginning July 21, 2019.
The Board has duly considered the matter and finds that the case is not in posture for
decision and must be remanded to OWCP. In the case of William A. Couch4 the Board held that
when adjudicating a claim, OWCP is obligated to consider all evidence properly submitted by a
claimant and received by OWCP before the final decision is issued.
In its July 15, 2019 decision, OWCP listed evidence received since the issuance of its
May 22, 2019 preliminary overpayment determination, but OWCP did not reference appellant’s
2016 form 1099, the July 2, 2016 social security benefits statement which related that appellant
had not received benefits from January 2016, or the document indicating that appellant received
no social security benefits in 2017. These documents constitute new evidence not previously
considered by OWCP.
As the Board’s decisions are final as to the subject matter appealed, it is crucial that all
evidence relevant to the subject matter of the claim properly submitted to OWCP be reviewed and
addressed.5 For this reason, the case will be remanded to OWCP to enable it to properly consider
all the evidence submitted at the time of the July 15, 2019 decision. Should the overpayment
amount increase, OWCP shall issue a new preliminary overpayment decision affording appellant
appeal rights including a prerecoupment hearing and the opportunity to provide an updated Form

3

See Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.300.4, Initial Determinations in an Overpayment, Fault Determinations (September 2018)
4

41 ECAB 548, 553 (1990); see also L.T., Docket No. 19-0145 (issued June 3, 2019).

5

R.M., Docket No. 19-1406 (issued February 11, 2020); M.J, Docket No. 18-0605 (issued April 12, 2019).

3

OWCP-20. Following such further development as OWCP deems necessary, it shall issue a
de novo decision on the claim. Accordingly,
IT IS HEREBY ORDERED THAT the July 15, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further action consistent with
this order of the Board.
Issued: March 30, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.W., Appellant
and
DEPARTMENT OF THE TREASURY,
BUREAU OF ENGRAVING & PRINTING,
Washington, DC, Employer
__________________________________________

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

Docket No. 19-1412
Issued: February 3, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 17, 2019 appellant, through counsel, filed a timely appeal from an April 18, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a right shoulder
condition causally related to the accepted November 30, 2016 employment incident.
FACTUAL HISTORY
On November 30, 2016 appellant, then a 56-year-old counter/sheet examiner, filed a
traumatic injury claim (Form CA-1) alleging that he experienced pain in his arm, shoulder, and
neck earlier that same day when moving packs of currency from a rack to a skid while in the
performance of duty. On the reverse side of the claim form the employing establishment indicated
that he stopped work on November 30, 2016. It also indicated that appellant was injured in the
performance of duty and had sought medical treatment at the employee health unit.
In a November 30, 2016 work excuse note, Lynette R. Sandoval, a physician assistant,
stated that appellant had been seen and treated at the hospital emergency department that day and
“may return to work after cleared by physician.”
A November 30, 2016 right shoulder x-ray was read as negative/unremarkable. There was
no evidence of soft tissue injury, acute fracture, or subluxation.3
In a December 22, 2016 development letter, OWCP informed appellant that he had not
submitted sufficient evidence to support his claim. It noted that he had not submitted a physician’s
opinion as to how his claimed injury had resulted in a diagnosed condition. OWCP afforded
appellant at least 30 days to submit the requested evidence.
Additional November 30, 2016 emergency department treatment records indicated that
appellant was seen by Dr. Brian M. Krieger, Board-certified in emergency medicine, who
diagnosed right shoulder strain. Appellant was prescribed a muscle relaxant and pain medication
and referred to an orthopedist.
In a December 28, 2016 work/school status note, Dr. Nadim L. Hallal, a Board-certified
orthopedic surgeon, diagnosed right rotator cuff tear. He stated that appellant should be off work
for the next four weeks and that a magnetic resonance imaging (MRI) scan should be obtained to
rule out a traumatic rotator cuff tear.
By decision dated January 25, 2017, OWCP denied appellant’s claim because he failed to
establish a causal relationship between the accepted work incident of November 30, 2016 and his
diagnosed right shoulder condition(s). It explained that the medical evidence received did not state
how his diagnosed rotator cuff tear and/or shoulder strain occurred.
Appellant timely requested a review of the written record by a representative of OWCP’s
Branch of Hearings and Review. OWCP also received additional evidence.

3
Dr. William J. Dunwoody, a Board-certified diagnostic radiologist, interpreted the November 30, 2016 right
shoulder x-ray.

2

In a report dated December 2, 2016, Dr. Scott L. Whittaker, a Board-certified internist,
examined appellant for complaints of right shoulder pain. Appellant told Dr. Whittaker that he
experienced pain from the neck to the right elbow after lifting a large crate of money at work. On
examination Dr. Whittaker noted tenderness in the right shoulder region with poor range of motion
due to pain. He assessed appellant with arthralgia of the right shoulder region. In a follow-up
report dated December 16, 2016, Dr. Whittaker noted that appellant continued to have neck and
right shoulder pain, which had not gotten any better despite two weeks’ rest and use of pain
medication. He diagnosed intervertebral cervicothoracic disc disorder with radiculopathy and
recommended an MRI scan.
On December 28, 2016 Dr. Hallal ordered a right shoulder MRI scan. He reported his
reason for the MRI scan request was “acute traumatic rotator cuff tear” and “marked weakness.”
In a February 1, 2017 attending physician’s report (Form CA-20), Dr. Whittaker diagnosed
right rotator cuff tear. He reported a November 30, 2016 date of injury. Dr. Whittaker noted that,
after lifting a heavy crate of money, appellant developed severe, sharp right shoulder pain while
at work, which remained ongoing for greater than two months. He checked a box marked “Yes”
indicating that he believed that the condition was caused or aggravated by an employment activity
and included the notation “clearly!!!” (Emphasis in the original.) Dr. Whittaker noted that
appellant needed a right shoulder MRI scan, and might need surgery pending the results. He also
advised that appellant had been totally disabled since November 30, 2016 and presently remained
disabled.
By decision dated July 14, 2017, an OWCP hearing representative affirmed OWCP’s
January 25, 2017 decision. He noted that there was no objective evidence to support the diagnosed
rotator cuff tear. The hearing representative further noted that even if there was an MRI scan to
support the diagnosis, the medical evidence failed to establish a causal relationship between lifting
packs of currency and the diagnosed right rotator cuff tear.
On December 4, 2017 appellant, through counsel, requested reconsideration and submitted
additional medical evidence.
In a report dated December 28, 2016, Dr. Hallal examined appellant for complaints of right
shoulder pain and weakness. Appellant told Dr. Hallal that, nearly a month before, while lifting
large, heavy sheets of money, his arm turned downward and he experienced marked pain over the
lateral aspect of the shoulder and up to the neck. On examination of the right shoulder Dr. Hallal
noted reduced strength in forward elevation, positive impingement testing, diffuse tenderness to
palpation over the paraspinal musculature of the cervical spine, and mild tenderness to palpation
over the biceps and acromioclavicular joint. He stated that, given the mechanism, he was
concerned about the possibility of a traumatic rotator cuff repair. Dr. Hallal stated an impression
of right shoulder pain and weakness and recommended an MRI scan.
A November 4, 2017 right shoulder MRI scan revealed a full-thickness tear in the
supraspinatus, mild tendinosis in the infraspinatus, tendinosis in the subscapularis, and a strain of
the subscapularis muscle. There was also evidence of moderate degenerative changes with
associated focal bony spur in the acromioclavicular joint. Additionally, a November 4, 2017
cervical MRI scan revealed multilevel cervical spondylosis, significant neural foramen narrowing

3

at C2-3 through C4-5, with bilateral nerve root compression, and C6-7 canal stenosis, with
associated stenosis of the neural foramen and bilateral nerve root compression.
In a November 9, 2017 letter, Dr. Whittaker noted that he had treated appellant as a patient
for 10 years and that appellant had no prior history of shoulder complaints or injuries before a
work-related incident on November 30, 2016 and that he began having severe right-sided
neck/shoulder pain after lifting a large crate of money at work on that date. He concluded that
appellant had a full-thickness rotator cuff tear, as demonstrated by MRI scan. Dr. Whittaker
opined that appellant sustained this injury on November 30, 2016 while at work, noting that
appellant continued to have shoulder pain and loss of range of motion.
In February 1, 2017 treatment notes, Dr. Whittaker examined appellant and noted that he
continued to have right shoulder pain, radiating into the neck, and down into the right elbow. He
noted that appellant had not yet undergone an MRI scan because “they are not covering it.”
Dr. Whittaker stated that appellant’s condition was clearly related to a work injury two months
prior. On examination he noted decreased range of motion of the right shoulder. Dr. Whittaker
assessed appellant with arthralgia of the right shoulder. He further noted that the severe shoulder
pain, ongoing for two months, was clearly related to work and heavy lifting.
By decision dated March 1, 2018, OWCP denied modification of its decision of
July 14, 2017. It noted that appellant had submitted numerous medical reports that did not address
causal relationship. With regard to Dr. Whittaker’s November 9, 2017 letter, OWCP stated that
he had not provided a specific mechanism of injury or rationalize how a full-thickness tear of the
rotator cuff tendons correlated with appellant’s claimed mechanism of injury.
On April 23, 2018 appellant, through counsel, appealed the March 1, 2018 decision to the
Board. By order dated January 18, 2019, the Board dismissed the appeal at the request of counsel.4
By letter dated January 23, 2019, appellant, through counsel, requested reconsideration of
OWCP’s March 1, 2018 decision. Accompanying the request, appellant submitted the results of a
fitness-for-duty examination dated October 31, 2018 from Dr. Chalonda K. Hill, an occupational
medicine specialist and medical director at the employing establishment. Dr. Hill noted that
appellant stated that he suffered a work-related right shoulder injury on November 30, 2016 after
lifting a heavy stack of paper currency. On examination of the right upper extremity she observed
tenderness to palpation along the lateral surface of the shoulder/deltoid muscle, limited forward
flexion to approximately 20 degrees, limited abduction to approximately 20 degrees, decreased
external rotation, and internal rotation limited to the right hip. Dr. Hill opined that, within a
reasonable degree of medical certainty, appellant was functionally impaired due to a right rotator
cuff tear. She recommended work restrictions of no lifting, carrying, pushing, pulling, reaching
overhead with the right upper extremity, crawling, or climbing ladders.
By decision dated April 18, 2019, OWCP denied modification of the March 1, 2018
decision.

4

Order Dismissing Appeal, Docket No. 18-1023 (issued January 18, 2019).

4

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA, that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.7 The second component is whether the employment incident caused a personal injury.8
Causal relationship is a medical question that generally requires rationalized medical
opinion evidence to resolve the issue. A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment incident must be based on a
complete factual and medical background. Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty and must be supported by medical
rationale that explains the nature of the relationship between the diagnosed condition and
appellant’s employment incident.9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a right shoulder
condition causally related to the accepted November 30, 2016 employment incident.
In November 30, 2016 emergency department treatment records, Dr. Krieger diagnosed
right shoulder strain. In a follow-up report dated December 16, 2016, Dr. Whittaker diagnosed
intervertebral cervicothoracic disc disorder with radiculopathy. In a work/school status note dated
December 28, 2016, Dr. Hallal diagnosed a right rotator cuff tear. In an order for an MRI scan on
appellant’s right shoulder, dated December 28, 2016, he stated that the reason for the examination
was an acute traumatic rotator cuff tear. The Board has found that medical evidence offering no
opinion about the cause of an employee’s condition is of no probative value on the issue of causal
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

Elaine Pendleton, 40 ECAB 1143 (1989).

8

M.H., Docket No. 18-1737 (issued March 13, 2019); John J. Carlone, 41 ECAB 354 (1989).

9

S.S., Docket No. 18-1488 (issued March 11, 2019).

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relationship.10 As such, the November 30 and December 16 and 28, 2016 notes and reports from
Drs. Krieger, Whittaker, and Hallal are insufficient to establish appellant’s claim for
compensation.
The record includes diagnostic reports dated November 30, 2016 and November 4, 2017.
Diagnostic testing reports lack probative value on the issue of causal relationship as they do not
provide an opinion regarding the cause of the diagnosed conditions.11
The record also contains a November 30, 2016 note from a physician assistant. Certain
healthcare providers such as physician assistants, nurse practitioners, physical therapists, and
social workers are not considered “physician[s]” as defined under FECA.12 Consequently, their
medical findings and/or opinions will not suffice for purposes of establishing entitlement to FECA
benefits.13
On December 2, 2016 Dr. Whittaker assessed appellant with arthralgia of the right shoulder
region. In a report dated December 28, 2016, Dr. Hallal stated an impression of right shoulder
pain and weakness. In February 1, 2017 treatment notes, Dr. Whittaker assessed appellant with
arthralgia. The Board has held that under FECA the assessment of pain, of which arthralgia is a
type, is not considered a diagnosis, as pain merely refers to a symptom of an underlying
condition.14
In a February 1, 2017 Form CA-20, Dr. Whittaker diagnosed a right rotator cuff tear. He
stated that appellant told him that, after lifting a heavy crate of money, appellant developed severe
and sharp right shoulder pain while at work. Dr. Whittaker checked a box marked “Yes” indicating
that he believed that the condition was caused or aggravated by an employment activity and noted
“clearly” as an explanation. When a physician’s opinion on causal relationship consists only of
checking “yes” to a form question, without explanation or rationale, that opinion has little
probative value and is insufficient to establish a claim.15
A November 9, 2017 letter from Dr. Whittaker noted that he had treated appellant as a
patient for 10 years and that appellant had no prior history of shoulder complaints or injuries before
a work-related incident on November 30, 2016. Dr. Whittaker further noted that appellant began
to have severe right-sided neck/shoulder pain after lifting a large crate of money at work on
10

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

11

See Z.G., Docket No. 19-0967 (issued October 21, 2019).

12

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

13

See M.F., Docket No. 17-1973 (issued December 31, 2018); K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk,
57 ECAB 316, 320 n.11 (2006). A report from a physician assistant or certified nurse practitioner will be considered
medical evidence if countersigned by a qualified physician. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Causal Relationship, Chapter 2.805.3a(1) (January 2013).
14

See M.V., Docket No. 18-0884 (issued December 28, 2018); P.S., Docket No. 12-1601 (issued January 2, 2013);
C.F., Docket No. 08-1102 (issued October 10, 2008).
15

Deborah L. Beatty, 54 ECAB 340 (2003).

6

November 30, 2016. Neither the mere fact that a disease or condition manifests itself during a
period of employment nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.16 As such, noting
that the right-sided neck/shoulder pain began after lifting a large crate of money at work on
November 30, 2016 is insufficient to establish a causal relationship between that incident and
appellant’s diagnosed shoulder conditions. Dr. Whittaker expressed an opinion on causal
relationship, but did not support his opinion with medical rationale explaining how the specific
incident of November 30, 2016 physiologically caused appellant’s condition. As such, his opinion
as expressed in the November 9, 2017 letter is of limited probative value on the issue of causal
relationship.17
Dr. Hill opined in an October 31, 2018 report that, within a reasonable degree of medical
certainty, appellant was functionally impaired due to a right rotator cuff tear. The October 31,
2018 report from her does not offer any opinion on the cause of the diagnosed right shoulder
conditions, but instead provides an opinion as to his functional impairment. As noted above,
medical evidence offering no opinion about the cause of an employee’s condition is of no probative
value on the issue of causal relationship.18 As such, the October 31, 2018 report of Dr. Hill is
insufficient to establish appellant’s claim.
The Board finds that because appellant has not submitted medical evidence providing a
rationalized medical opinion that his diagnosed right shoulder condition is causally related to the
accepted November 30, 2016 employment incident, he has not met his burden of proof to establish
his claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a right shoulder
condition causally related to the accepted November 30, 2016 employment incident.

16

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

17

See A.D., Docket No. 17-1136 (issued November 9, 2017).

18

Supra note 10.

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ORDER
IT IS HEREBY ORDERED THAT the April 18, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 3, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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