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

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

Docket No. 14-1938
Issued: February 6, 2015

Case Submitted on the Record

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

JURISDICTION
On September 8, 2014 appellant filed a timely appeal from an August 22, 2014 Office of
Workers’ Compensation Programs’ (OWCP) decision which denied appellant’s reconsideration
request on the grounds that it was untimely filed and failed to present clear evidence of error.
Because more than 180 days has elapsed between the most recent OWCP merit decision, dated
May 2, 2013 and the filing of this appeal on September 8, 2014, the Board lacks jurisdiction to
review the merits of appellant’s claim pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was not timely filed and failed to present clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 5, 2012 appellant, then a 49-year-old letter carrier, filed a Form CA-2,
occupational disease claim, alleging that he developed an emotional condition at his workplace.
He first became aware of his condition on September 27, 2012 and realized it was causally
related to his employment on the same day. Appellant stopped work on November 1, 2012.
Appellant submitted reports from Dr. Nancy A. Folks, a Board-certified psychiatrist, and
Dr. Arnold Markman, a Board-certified psychiatrist, dated November 2 to 30, 2014. The
physicians treated appellant for stress reaction causing mixed disturbance, anxiety, obsessive
compulsive disorder, and generalized anxiety disorder. Appellant submitted a letter of warning
from the employing establishment dated August 11, 2010 for unacceptable work performance
and a September 17, 2012 letter of warning for failure to follow instructions. Also submitted
was an Office of the Inspector General report dated December 17, 2012 which noted that
appellant received disciplinary action due to performance-related issues and filed an Equal
Employment Opportunity (EEO) complaint alleging harassment and mistreatment by
management.
On March 7, 2013 OWCP asked appellant to submit additional evidence including a
detailed description of the employment incidents that contributed to his claimed illness.
In a statement dated April 12, 2013, appellant indicated that his supervisors yelled at him
during the period January 18 to November 1, 2012. He asserted that he worked in a hostile and
toxic work environment. Appellant alleged that he received numerous investigative interviews
which were unjustified and unwarranted and which were subsequently rescinded through the
grievance process. He alleged that he was treated unfairly and disparately and was harassed,
retaliated against, and discriminated against by management. Appellant alleged that his
supervisors monitored his daily activity and he was shadowed on his route by up to three
supervisors who sometimes yelled and screamed at him. He alleged that he was given
conflicting instructions from his supervisors who always found fault with him, invaded his
personal space, threatened and intimidated him, made false statements and false accusations, and
questioned his character, ethics, and integrity.
In a May 2, 2013 decision, OWCP denied appellant’s claim for an emotional condition as
the evidence did not support that the events occurred as alleged. The decision was sent to
appellant’s address of record.
In an appeal request form dated September 25, 2013 and postmarked September 26,
2013, appellant requested a review of the written record. In a letter dated September 25, 2013,
he indicated that he did not timely file a request for a review of the written record because he
never received the May 2, 2013 OWCP decision. Appellant noted contacting OWCP and it then
resent the decision on September 4, 2013.2 He reasserted that his claim should be accepted for
2

The record contains a September 3, 2013 telephone memorandum in which appellant indicated that he never
received the May 2, 2013 decision. OWCP confirmed with him that the decision was sent to the correct address. In
a September 4, 2013 telephone memorandum, it noted that appellant read from a prepared statement indicating that
he never received the decision and wanted the decision resent to him. OWCP noted that it again confirmed his
address and advised him that it would send him a copy of the decision.

2

job-related stress and his condition was the direct result of harassment and retaliation at the
employing establishment in the form of management shadowing his work, excessive observation,
harassment, discrimination, and disciplinary actions. Appellant submitted grievance settlement
agreement forms dated November 8, 2006 to October 26, 2012. He was treated by Dr. Lori
Magnusson, a psychologist, from April 12, 2012 to October 23, 2013, for generalized anxiety
disorder and opined that appellant was disabled from work. Appellant submitted medical records
from Dr. Markman dated April 23 to May 9, 2013 who treated him for obsessive compulsive
disorder and occupational problems. On September 25, 2013 he was treated by Dr. David
Aycock, a psychologist, for anxiety disorder caused by his work injury of September 27, 2012.
Appellant submitted a statement from Ralph Ramsey, a coworker, dated June 11, 2013, who
witnessed management harassing appellant. In a September 17, 2013 statement, Betty Cameron,
a union representative, stated that she witnessed appellant being harassed by management and
singled out in meetings. In an October 1, 2013 statement, Ricardo Guzman, a union steward,
noted that appellant was harassed and intimidated by management throughout his career which
intensified in 2006. Similarly, a witness statement from Emilie Kothe, a coworker, dated
October 3, 2013, noted witnessing management finding fault with appellant’s work.
In a decision dated November 29, 2013, OWCP denied appellant’s request for a review of
the written record. It found that the request was not timely filed. Appellant was informed that
his case had been considered in relation to the issues involved, and that the request was further
denied for the reason that the issues in this case could be addressed by requesting reconsideration
from OWCP and submitting evidence not previously considered.
Appellant submitted a letter dated December 13, 2013 and disagreed with the
November 29, 2013 decision. He alleged that he did not receive the May 2, 2013 OWCP
decision denying his claim. Appellant indicated that on September 3, 2013 he learned his claim
was denied when he looked at OWCP portal. He contacted OWCP and they resent the decision
which he received on September 7, 2013. Appellant indicated that the May 2, 2013 decision had
a handwritten note above the decision date noting “resent September 4, 2013.” He contends that
since the letter stated “resent” on September 4, 2013, this was the new date of the decision and
he had 30 additional days to request a review of the written record. Appellant further indicated
that when he submitted the appeal request form he incorrectly noted the decision date as
May 2, 2013. He asserts that his claim should not be denied as untimely because he did not
receive the decision letter of May 2, 2013 until September 7, 2013. Appellant submitted a copy
of OWCP decisions dated May 2 and November 29, 2013, a copy of an OWCP decision dated
May 2, 2013 resent on September 4, 2013, a September 25, 2013 letter requesting a review of the
written record, a September 25, 2013 appeal request form, all previously of record.
In a letter dated May 6, 2014, OWCP indicated that a decision was issued on
November 29, 2013 noting appellant’s request for a review of the record was untimely and he
was provided with appeal rights. It advised that, if he disagreed with the decision he should
follow his appeal rights.
In an appeal request form dated May 23, 2014 and received by OWCP on May 28, 2014,
appellant requested reconsideration. On May 26, 2014 he requested reconsideration and asserted
that there had been clear evidence of error in his case. Appellant indicated that he did not
receive the May 2, 2013 decision which denied his claim and only learned that his claim was

3

denied when he accessed an OWCP portal on September 3, 2013. He indicated that he contacted
OWCP and spoke to his claims examiner on September 4, 2013. Appellant informed her that he
did not receive the May 2, 2013 decision and she resent the decision to him. He noted receiving
the May 2, 2013 decision on September 7, 2013 which had a handwritten note over the date
stating “resent September 4, 2013.” Appellant believed the new time frame for his appeal rights
was September 4, 2013. He submitted a notarized statement dated May 23, 2014 which stated
that he did not receive the letter from OWCP dated May 2, 2013 until he called his claims
examiner on September 3, 2013. Appellant submitted a copy of OWCP’s decision dated
November 29, 2013, and a copy of OWCP’s letter dated May 6, 2014, previously of record.
By decision dated August 22, 2014, OWCP denied appellant’s request for reconsideration
as it was untimely and did not establish clear evidence of error.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, decrease or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”3
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a). As one such limitation, section 10.607(a) of the
implementing regulations provide that an application for reconsideration must be received within
one year of the date of OWCP’s decision for which review is sought.4 However, OWCP will
reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation, if the
claimant’s application for review shows clear evidence of error on the part of OWCP in its most
recent merit decision. To establish clear evidence of error, a claimant must submit evidence
relevant to the issue that was decided by OWCP. The evidence must be positive, precise and
explicit and must be manifest on its face that OWCP committed an error.5
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflicting medical opinion or establish a clear procedural error, but
must be of sufficient probative value to shift the weight of the evidence in favor of the claimant
and raise a substantial question as to the correctness of OWCP’s decision.6 Evidence that does
3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.607(a).

5

Id. at § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997).

6

Annie L. Billingsley, 50 ECAB 210 (1998).

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not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to
establish clear evidence of error.7 It is not enough merely to show that the evidence could be
construed so as to produce a contrary conclusion.8 This entails a limited review by OWCP of the
evidence previously of record and whether the new evidence demonstrates clear error on the part
of OWCP.9 The Board makes an independent determination as to whether a claimant has
submitted clear evidence of error on the part of OWCP.10
ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
application for review. As noted, an application for reconsideration must be received within one
year of the date of OWCP’s decision for which review is sought.11 As appellant’s request for
reconsideration was not received by OWCP until May 28, 2014, more than one year after
issuance of the May 2, 2013 merit decision, it was untimely. Consequently, he must demonstrate
clear evidence of error by OWCP in its May 2, 2013 decision denying his claim for an emotional
condition.
The Board further notes that appellant has alleged that he never received OWCP’s May 2,
2013 decision denying his claim for an emotional condition and that the first time he received the
decision was when OWCP resent it to him on September 7, 2013. However, the record supports
that OWCP’s May 2, 2013 decision was sent to appellant at the address of record and does not
indicate that it was returned as undeliverable. Under the “mailbox rule,” it is presumed, absent
evidence to the contrary, that a notice mailed to an individual in the ordinary course of business
was received by that individual.12 Thus, it is presumed that appellant received the May 2, 2013
decision. Furthermore, while the record supports that OWCP resent the May 2, 2013 decision to
appellant on or about September 4, 2013, there is no indication in the record that OWCP reissued
the decision on or about that date.
The Board finds that appellant has not established clear evidence of error on the part of
OWCP. On May 26, 2014 appellant requested reconsideration and asserted that there has been
clear evidence of error. He indicated that he did not receive the May 2, 2013 decision which
denied his claim and only learned that his claim was denied when he accessed OWCP’s portal on
September 3, 2013. Appellant indicated that his claims examiner contacted him on September 4,
2013 and he informed her that he did not receive the May 2, 2013 decision and she resent the
decision to him. He noted receiving the May 2, 2013 decision on September 7, 2013 which had
a handwritten note over the date stating “resent September 4, 2013.” Appellant believed the new
7

Jimmy L. Day, 48 ECAB 652 (1997).

8

Id.

9

Id.

10

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, 44 ECAB 765, 770 (1993).

11

Supra note 4.

12

A.C. Clyburn, 47 ECAB 153 (1995).

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time frame for his appeal rights was September 4, 2013. There is no evidence that OWCP
reissued the May 2, 2013 decision at a later date. While appellant addressed his disagreement
with OWCP’s decision which found his reconsideration request untimely filed, his allegations
about the receipt of the May 2, 2013 decision do not raise a substantial question as to the
correctness of OWCP’s decision denying his claim for an emotional condition.
In support of his reconsideration request, appellant also submitted evidence. He
submitted a notarized statement dated May 23, 2014 which stated that he did not receive the
letter from OWCP dated May 2, 2013 until he called his claims examiner on September 3, 2013.
However, this evidence is insufficient to raise a substantial question as to the correctness of
OWCP’s decision. The Board notes that appellant’s claim for an emotional condition was
denied because he had not attributed his claimed emotional condition to any compensable
employment factors. This notarized statement does not address the deficiency in appellant’s
claim, specifically that he did not attribute his condition to a compensable employment factor.
Therefore, this evidence is insufficient to raise a substantial question as to the correctness of
OWCP’s decision. This evidence is not so positive, precise, and explicit that it manifests on its
face that OWCP committed an error. The Board notes that clear evidence of error is intended to
represent a difficult standard. The submission of a detailed well-rationalized medical report
which, if submitted before the denial was issued, would have created a conflict in medical
opinion requiring further development, is not clear evidence of error.13
Appellant submitted a copy of OWCP decisions dated May 2 and November 29, 2013, a
copy of OWCP’s decision dated May 2, 2013 resent on September 4, 2013, a September 25,
2013 letter requesting a review of the written record, a September 25, 2013 appeal request form,
a copy of OWCP’s letter dated May 6, 2014, all previously of record. OWCP had previously
considered this evidence and appellant, in submitting these documents, did not explain how this
evidence was positive, precise, and explicit in manifesting on its face that OWCP committed an
error in denying his claim for compensation. Resubmission of this evidence is not sufficient to
raise a substantial question as to the correctness of OWCP’s decision. Thus, this resubmitted
evidence is insufficient to show clear evidence of error.
Thus, appellant has not established clear evidence of error by OWCP in its August 6,
2010 decision.
On appeal, appellant reiterated assertions that he made before OWCP indicating that he
did not receive the May 2, 2013 decision, that he timely pursued his review rights, and that he
established that he developed an emotional condition in the performance of duty. However, as
noted, the Board does not have jurisdiction over the merits of the claim. As explained above
appellant has not established clear evidence of error by OWCP.
CONCLUSION
The Board finds that appellant’s request for reconsideration was untimely filed and did
not demonstrate clear evidence of error.
13

D.G., 59 ECAB 455 (2008).

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ORDER
IT IS HEREBY ORDERED THAT the August 22, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 6, 2015
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
South Euclid, OH, Employer
__________________________________________

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

Docket No. 18-1092
Issued: January 7, 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 May 7, 2018 appellant, through counsel, filed a timely appeal from a March 23, 2018
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 her burden of proof to establish that her right wrist
de Quervain’s tenosynovitis was causally related to the accepted September 27, 2017 employment
incident.
FACTUAL HISTORY
On September 27, 2017 appellant, then a 35-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that, on that date, she developed burning in her right wrist, as well as
cramping and swelling of her hand after delivering mail. She stopped work on that day.
In a September 27, 2017 authorization for examination and/or treatment (Form CA-16),
received by OWCP on October 6, 2017, the employing establishment authorized treatment for
appellant’s right wrist.
A September 27, 2017 duty status report (Form CA-17) diagnosed de Quervain’s
tenosynovitis and noted an injury date of September 27, 2017.3 The report noted that appellant
developed right wrist pain and burning and hand cramping while delivering mail and that she could
not perform her usual employment duties.
By development letter dated October 18, 2017, OWCP advised appellant that the evidence
of record was insufficient to support her claim. It indicated that a physician’s opinion supported
by a medical explanation as to how the reported work incident caused or aggravated the claimed
injury was needed. OWCP afforded appellant 30 days to submit the requested information.
Dr. Timothy J. Nice, a treating Board-certified orthopedic surgeon, related in an
October 10, 2017 report that appellant was diagnosed with de Quervain’s tendinitis at an Urgent
Care Center. Appellant attributed her right wrist pain to delivering and sorting mail. Physical
examination findings included positive Finkelstein and tenderness over the first dorsal right wrist
compartment. In an October 10, 2017 Form CA-17, Dr. Nice diagnosed right wrist de Quervain’s
tendinitis and noted an injury date of September 27, 2017. On October 30, 2017 Dr. Nice observed
that appellant continued to have first dorsal compartment tendinitis. He placed her off work until
the condition improved.
Appellant subsequently submitted physical therapy reports dated October 25, 26, and 31
and November 2, 6, and 8, 2017.
By decision dated November 27, 2017, OWCP denied appellant’s traumatic injury claim.
It found that the September 27, 2017 incident occurred as alleged and a medical condition was
diagnosed. However, OWCP found that the medical evidence of record was insufficient to
establish an injury or condition causally related to the accepted September 27, 2017 employment
incident.

3

The signature on the form is illegible.

2

In a letter dated December 29, 2017, appellant requested reconsideration and submitted
additional evidence, including physical therapy reports.
In a December 17, 2017 report, Dr. Nice noted the physical findings supported a diagnosis
of de Quervain’s tendinitis based on appellant exhibiting the signs of this condition. He explained
that this condition typically occurs from overuse or percussion on the wrist as found in a traumatic
event and comes from sorting mail and putting mail into boxes.
Dr. Nice, in progress notes dated December 28, 2017, reported that appellant continued to
exhibit tenderness and weakly positive right wrist Finkelstein. Appellant related that she felt
unable to handle mail.
By decision dated March 23, 2018, OWCP denied modification of its prior decision,
finding that the medical evidence remained insufficient to establish causal relationship between
the accepted September 27, 2017 work incident and the diagnosed right de Quervain’s tendinitis.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury5 was sustained while 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.6 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.8 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.9 Second, the employee must

4

Supra note 2.

5
OWCP regulations define a traumatic injury as a condition of the body caused by a specific event or incident, or
series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the body
affected. 20 C.F.R. § 10.5(ee).
6
N.C., Docket No. 17-0425 (issued June 21, 2018); C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A.
Contreras, 57 ECAB 364 (2006).
7

N.C., id.; S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

8

B.F., Docket No. 09-0060 (issued March 17, 2009); Bonnie A. Contreras, supra note 6.

9

S.F., Docket No. 18-0296 (issued July 26, 2018); D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

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submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.10
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.11 This medical opinion must include an accurate
history of the employee’s employment injury and must explain how the condition is related to the
injury. 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.12
ANALYSIS
The Board finds that appellant has not established that her right wrist de Quervain’s
tenosynovitis was causally related to the accepted September 27, 2017 employment incident.
Appellant submitted a series of reports from her attending physician, Dr. Nice. In a
December 17, 2017 report, Dr. Nice explained that her physical findings supported the diagnosis
of de Quervain’s tendinitis in that typically de Quervain’s syndrome occurs due to percussion or
overuse of the wrist as found in a traumatic event such as sorting mail and placing mail into boxes.
The Board has long held that a mere conclusion, without the necessary medical rationale
explaining how and why the physician believes that a claimant’s accepted exposure could result
in a diagnosed condition, is insufficient to meet the claimant s burden of proof.13 Dr. Nice offered
no rationalized medical explanation as to how, appellant’s delivering mail on September 27, 2017
would have caused her diagnosed condition. Without explaining how, physiologically, the
movements involved in the employment incident caused or contributed de Quervain’s
tenosynovitis, Dr. Nice’s opinion is of limited probative value.
In his other previous reports, Dr. Nice diagnosed de Quervain’s tendinitis, provided
examination findings, and noted an injury date of September 27, 2017. He however, offered no
opinion as to whether the diagnosed condition was causally related to the accepted employment
incident of September 27, 2017. Medical evidence that does not offer an opinion regarding the

10
A.D., Docket No. 17-1855 (issued February 26, 2018); C.B., Docket No. 08-1583 (issued December 9, 2008);
D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra note 6.
11

A.D., id.; I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

12

S.H., Docket No. 17-1660 (issued March 27, 2018); James Mack, 43 ECAB 321 (1991).

13
See D.A., Docket No. 18-0525 (issued November 2, 2018); A.B., Docket No. 16-0864 (issued November 16,
2016); Beverly A. Spencer, 55 ECAB 501 (2004).

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cause of an employee s condition is of no probative value on the issue of causal relationship.14 For
the reasons set forth above, Dr. Nice’s reports are insufficient to establish appellant’s claim.
The record also contains a September 27, 2017 Form CA-17 with an illegible signature
diagnosing de Quervain’s tenosynovitis and that appellant developed hand cramping and right
wrist pain while delivering mail on September 27, 2017. The Board has held that a report that
bears an illegible signature cannot be considered probative medical evidence because it lacks
proper identification.15 Thus, this report is of no probative value.16
Appellant also submitted evidence from physical therapists. These documents do not
constitute competent medical evidence because physical therapists are not considered “physicians”
as defined under FECA.17 As such, this evidence is of no probative and is insufficient to meet
appellant’s burden of proof.18
On appeal counsel alleges that OWCP’s decision was wrong as causation was established.
As discussed above, the record contains no medical evidence explaining how the diagnosed
condition had been caused or aggravated by the accepted September 27, 2017 employment
incident.
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 10.607.19

14

L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018); Ellen L.
Noble, 55 ECAB 530 (2004).
15
See S.W., Docket No. 18-0721 (issued November 6, 2018); R.M., 59 ECAB 690 (2008); D.D., 57 ECAB 734
(2006); Richard J. Charot, 43 ECAB 357 (1991).
16

Id.

17

5 U.S.C. § 8101(2); N.C., Docket No. 17-0425 (issued June 21, 2018); Jennifer L. Sharp, 48 ECAB 209 (1996)
(physical therapists). See also Gloria J. McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 2 ECAB 208, 211
(1949) (a medical issue such as causal relationship can only be resolved through the submission of probative medical
evidence from a physician).
18

C.N., Docket No. 17-1321 (issued January 16, 2018); A.C., Docket No. 08-1453 (issued November 18, 2008)
(records from a physical therapist do not constitute competent medical opinion in support of causal relation, as physical
therapists are not considered physicians as defined under FECA).
19

The record contains a Form CA-16 signed by the employing establishment official on September 27, 2017. When
the employing establishment properly executes a CA-16 form which authorizes medical treatment as a result of an
employee’s claim for an employment-related injury, the CA-16 form creates a contractual obligation, which does not
involve the employee directly, to pay for the cost of the examination or treatment regardless of the action taken on the
claim. The period for which treatment is authorized by CA-16 form is limited to 60 days from the date of issuance,
unless terminated earlier by OWCP. See 20 C.F.R. § 10.300(c); Tracy P. Spillane, 54 ECAB 608 (2003). The record
is silent as to whether OWCP paid for the cost of appellant’s examination or treatment for the period noted on the
form.

5

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her right
wrist de Quervain’s tenosynovitis was causally related to the accepted September 27, 2017
employment incident.
ORDER
IT IS HEREBY ORDERED THAT the March 23, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 7, 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

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

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

Docket No. 21-0828
Issued: December 22, 2021

Case Submitted on the Record

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

JURISDICTION
On May 7, 2021 appellant filed a timely appeal from a March 15, 2021 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 case.
ISSUE
The issue is whether appellant has met her burden of proof to establish that a traumatic
incident occurred in the performance of duty on January 19, 2021, as alleged.
FACTUAL HISTORY
On January 20, 2021 appellant, than a 25-year-old city carrier assistant, filed a traumatic
injury claim (Form CA1-) alleging that on January 19, 2021 she twisted her left ankle as she was
walking down steps at 1:00 p.m. while in the performance of duty. She explained that she finished
1

5 U.S.C. § 8101 et seq.

her relay and then called her supervisor. On the reverse side of the claim form appellant’s
supervisor acknowledged that appellant was injured in the performance of duty and indicated that
she stopped work on the alleged date of injury.
In a narrative statement dated January 19, 2021, appellant explained that as she walked
down steps she twisted her ankle and heard it pop. She finished her relay, but could not apply too
much pressure to the left foot. After she finished her relay, appellant reported her injury to her
manager and requested medical treatment.
Appellant submitted a duty status report (Form CA-17) dated January 19, 2021 from
Dr. Francis Aona, a Board-certified family practitioner, wherein he related that appellant was seen
for a left ankle sprain, which occurred that day as she was descending stairs.
In a development letter dated January 26, 2021, OWCP informed appellant that additional
evidence was necessary to establish her claim. It advised her of the type of factual and medical
evidence needed and provided a questionnaire for her completion. OWCP afforded appellant 30
days to submit the necessary evidence.
OWCP received medical reports dated January 21 and February 4 and 17, 2021 from
Dr. Kevin J. Kolovich, a Board-certified orthopedic surgeon. Dr. Kolovich related that appellant
twisted her ankle on a step when delivering mail on January 19, 2021. He explained that she was
treated at a hospital emergency room on January 19, 2021 and was placed in an Ace wrap and air
cast for support.
OWCP also received letters dated January 21 and February 4, 2021 from Michael W.
Koening, a physician assistant, which stated that appellant was seen at the clinic and excused from
work.
In a letter dated February 2, 2021, appellant’s supervisor, Postmaster K.L., controverted
appellant’s claim. She related that she had observed appellant on her route until 1:52 p.m. While
appellant related that she twisted her ankle at approximately 1:00 p.m., she did not deliver mail to
that address until 2:17 p.m. K.L. noted that appellant called the employing establishment at 2:40
p.m. to report that she twisted her ankle. She related that she took photographs of appellant’s ankle
and that appellant did not have any difficulty twisting her ankle for the photographs. K.L. also
related that the resident did not see appellant limp nor use the steps. She submitted photographs
of several homes with steps and pictures of appellant’s ankle.
Appellant submitted a response to OWCP’s development questionnaire, which was
received on February 6, 2021. She attested that on January 19, 2021, after she delivered mail, and
as she descended stairs, she twisted her ankle on the second to last step. Appellant explained that
she limped the rest of her relay and when she got back to her truck she used her telephone to call
her supervisor, she also explained that, as she was in training, she was not allowed to carry her cell
phone on her route. She related that she sought treatment at the hospital after her supervisor arrived
and took pictures.
By decision dated March 15, 2021, OWCP denied appellant’s claim, finding that appellant
had not established that the January 19, 2021 incident occurred, as alleged. It concluded, therefore,
that the requirements had not been met to establish an injury as defined by FECA.
2

LEGAL PRECEDENT
An employee seeking benefits under FECA 2 has the burden of proof to establish the
essential elements of his or her claim, including 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, 3 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time and place, and in the manner alleged. The second component is whether the em ployment
incident caused a personal injury. 6
An injury does not have to be confirmed by eyewitnesses in order to establish the fact that
an employee sustained an injury in the performance of duty, but the employee’s statements must
be consistent with the surrounding facts and circumstances and his or her subsequent course of
action.7 The employee has not met his or her burden of proof of establishing the occurrence of an
injury when there are such inconsistencies in the evidence as to cast serious doubt upon the validity
of the claim. Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury, and failure to obtain
medical treatment may, if otherwise unexplained, cast serious doubt on an employee’s statements
in determining whether a case has been established. An employee’s statement alleging that an
injury occurred at a given time and in a given manner is of great probative value and will stand
unless refuted by strong or persuasive evidence. 8

2

Id.

3

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
4

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
5

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
7

See J.M., Docket No. 19-1024 (issued October 18, 2019); M.F., Docket No. 18-1162 (issued April 9, 2019).

8

See M.C., Docket No. 18-1278 (issued March 7, 2019); D.B., 58 ECAB 464, 466-67 (2007).

3

ANALYSIS
The Board finds that appellant has met her burden of proof to establish that a traumatic
incident occurred in the performance of duty on January 19, 2021, as alleged.
Appellant has consistently reported that on January 19, 2021 she twisted her left ankle as
she walked down steps while in the performance of duty. She has explained that she finished her
relay and then called her supervisor to inform her of the injury. Appellant stated that she did not
call right away because she was not allowed to carry her cell phone on her route as a trainee and
her telephone was in her truck. She submitted a detailed account of the January 19, 2021
employment incident in her response to OWCP’s development questionnaire, received on
February 6, 2021, which was consistent with the account she provided on her claim form. The
evidence of record also establishes that appellant thereafter sought immediate medical care on
January 19, 2021 for her left ankle.
The injuries appellant claimed are consistent with the facts and circumstances she set forth,
her course of action, and the medical evidence she submitted regarding her care on January 19,
2021 and thereafter. An employee’s statements alleging that an injury occurred at a given time
and in a given manner is of great probative value and will stand unless refuted by strong or
persuasive evidence.9 The Board, thus, finds that appellant has met her burden of proof to establish
that the January 19, 2021 employment incident occurred in the performance of duty, as alleged.
As appellant has established that the January 19, 2021 employment incident factually
occurred as alleged, the question becomes whether the incident caused an injury. 10 Since OWCP
found that appellant had not established fact of injury, it did not evaluate the medical evidence.
The Board, therefore, will set aside OWCP’s March 15, 2021 decision and remand the case for
consideration of the medical evidence of record. 11 After such further development as deemed
necessary, OWCP shall issue a de novo decision addressing whether appellant has met her burden
of proof to establish an injury causally related to the accepted January 19, 2021 employment
incident.
CONCLUSION
The Board finds that appellant has met her burden of proo f to establish that a traumatic
incident occurred in the performance of duty on January 19, 2021, as alleged. The Board further
finds that this case is not in posture for decision regarding whether she has established an injury
causally related to the accepted January 19, 2021 employment incident.

9

See supra note 8.

10

See M.A., Docket No. 19-0616 (issued April 10, 2020); C.M., Docket No. 19-0009 (issued May 24, 2019).

11

S.M., Docket No. 16-0875 (issued December 12, 2017).

4

ORDER
IT IS HEREBY ORDERED THAT the March 15, 2021 decision of the Office of
Workers’ Compensation Programs is reversed in part and set aside in part. The case is remanded
for further proceedings consistent with this decision of the Board.
Issued: December 22, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
COMPUTER & TELECOMMUNICATIONS
AREA MASTER STATION, PACIFIC,
Wahiawa, HI, Employer
__________________________________________

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

Docket No. 13-1861
Issued: January 13, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 5, 2013 appellant filed a timely appeal from the June 12, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP), which denied his traumatic injury
claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that the work incident on April 13, 2012
caused a low back injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 16, 2012 appellant, a 54-year-old custodial worker, filed a traumatic injury
claim alleging that he injured his low back on April 13, 2012 while operating an electric pallet
jack to make a turn.
OWCP received physical therapy notes and medical requests for authorization.
Dr. Clive I. Otsuka, an internist,2 advised on March 17, 2012 that appellant had a history of
lower back pain; therefore, he recommended that appellant be evaluated by a physiatrist to
determine his lifting capabilities. An imaging study of the lumbar spine on April 17, 2012
showed mild multilevel disc degeneration, slightly progressed at L3-4. Dr. Otsuka released
appellant to light duty.
OWCP informed appellant that it had received no diagnosis of any medical condition
resulting from the April 13, 2012 work incident, nor any physician’s opinion as to how the
incident caused any diagnosed condition. It emphasized that the medical evidence on causal
relationship was critical to his claim. OWCP extended him 30 days to submit the information
requested.
In an October 24, 2012 decision, OWCP denied appellant’s claim. It accepted that the
April 13, 2012 work incident occurred as alleged, but found that the medical evidence of record
was insufficient to establish causal relation.
On December 8, 2012 Dr. Otsuka advised: “This is to confirm that I have been treating
[appellant] for his back, shoulder and leg pain, which he sustained from work injuries on the
dates shown above.”3 He provided his medical records. On April 17, 2012 Dr. Otsuka related
what happened at work on April 13, 2012. He described appellant’s complaints and his findings
on examination. Dr. Otsuka diagnosed lower back pain. “The patient probably has a muscle
strain and spasms.” On August 18, 2012 he diagnosed sprain of unspecified site of back. “The
patient still has lower back pains that [are] probably due to muscle strain and spasm.” On
September 22, 2012 Dr. Otsuka diagnosed lumbago. “The patient still has lower back pains.”
On October 29, 2012 he advised that appellant did not feel that he could return to work.
In a decision dated June 12, 2013, an OWCP hearing representative affirmed the
October 24, 2012 decision. He found that the record contained no medical opinion establishing
the relationship between the work duties performed on April 13, 2012 and any low back
condition.
On appeal, appellant contends that he sustained a back injury that hinders his ability to do
motor vehicle warehousing work with the Federal Government. He referenced his physician’s
numerous attempts to transfer his care to a physiatrist.

2

The Board is unable to determine whether Dr. Otsuka is Board-certified.

3

Dates of injury were listed as April 13 and August 23, 2012.

2

LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.4 An employee seeking benefits under FECA
has the burden of proof to establish the essential elements of his or her claim. When an
employee claims that he or she sustained an injury in the performance of duty, he or she must
submit sufficient evidence to establish that he or she experienced a specific event, incident or
exposure occurring at the time, place and in the manner alleged. He or she must also establish
that such event, incident or exposure caused an injury.5
Causal relationship is a medical issue,6 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the claimant,7 must be
one of reasonable medical certainty,8 and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the established incident or factor
of employment.9
ANALYSIS
OWCP accepts that the April 13, 2012 work incident occurred as alleged. Appellant has
therefore met his burden to establish that he experienced a specific event, incident or exposure
occurring at the time, place and in the manner alleged. The question that remains is whether this
incident caused an injury.
The element of causal relationship is a medical issue, one that requires the physician to
discuss the work incident and explain how it caused a firmly diagnosed medical condition. The
soundness of this explanation is critical. The term “probably” is less speculative and should be
viewed in the context of the rest of the medical report and the factual evidence, since sometimes
this could mean that the physician is expressing an opinion based on reasonable medical
certainty, as opposed to absolute medical certainty. If the physician’s meaning is in question, he
should be asked to explain the basis for any doubt and to state with reasonable certainty whether
the disability is related to employment.10

4

5 U.S.C. § 8102(a).

5

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

6

Mary J. Briggs, 37 ECAB 578 (1986).

7

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

8

See Morris Scanlon, 11 ECAB 384, 385 (1960).

9

See William E. Enright, 31 ECAB 426, 430 (1980).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.6.a(5) (September 2010).

3

Dr. Otsuka, the attending internist, commented that appellant “probably” had a muscle
strain and spasms. He later stated that appellant’s lower back pain was “probably” due to muscle
strain and spasm. It is unclear whether Dr. Otsuka was expressing doubt about appellant’s
diagnosis or doubt about the etiology of appellant’s lower back pain or both. He did not state to
a reasonable degree of medical certainty whether the April 13, 2012 work incident caused
appellant’s back condition.
Medical conclusions unsupported by rationale are of diminished probative value.11
Dr. Otsuka did not adequately explain how the April 13, 2012 incident caused a firmly diagnosed
medical condition or cite to the findings supporting his conclusion. He did not directly address
the issue of causal relationship. This is necessary given appellant’s history of preexisting lower
back pain, as well as the clinical findings of mild multilevel disc degeneration, slightly
progressed at L3-4 and the change in diagnosis to lumbago. Dr. Otsuka did not submit a
narrative report discussing what happened on April 13, 2012 or how the accepted incident caused
or contributed to appellant’s medical condition.
The Board finds that the medical opinion evidence is insufficient to establish the critical
element of causal relationship. Accordingly, the Board finds that appellant has not met his
burden of proof. The Board will affirm OWCP’s June 12, 2013 decision.
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.
Appellant states on appeal that his back injury is work related; but this must be
established by a well-reasoned medical opinion. OWCP will not pay or reimburse any expense
associated with his medical treatment or evaluation, including a transfer of care, because
appellant has not yet established that he is entitled to benefits under FECA. It has not accepted
his claim that he sustained a work injury on April 13, 2013. Should appellant establish the
critical element of causal relationship, OWCP may consider authorizing medical treatment.12
CONCLUSION
The Board finds that appellant has not met his burden to establish that the work incident
on April 13, 2013 caused a specific low back injury.

11

Ceferino L. Gonzales, 32 ECAB 1591 (1981); George Randolph Taylor, 6 ECAB 968 (1954). See generally
Melvina Jackson, 38 ECAB 443, 450 (1987) (addressing factors that bear on the probative value of medical opinions).
12

5 U.S.C. § 8103(a).

4

ORDER
IT IS HEREBY ORDERED THAT the June 12, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 13, 2014
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
WEST LOS ANGELES VETERANS
ADMINISTRATION MEDICAL CENTER,
Los Angeles, CA, Employer
_________________________________________

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

Docket No. 17-0720
Issued: May 21, 2018

Case Submitted on the Record

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

JURISDICTION
On February 13, 2017 appellant, through counsel, filed a timely appeal from a
December 27, 2016 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 the claim.

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 met her burden of proof to establish a recurrence of disability
commencing October 15, 2015 causally related to the accepted September 14, 2015 employment
injury.
FACTUAL HISTORY
On September 18, 2015 appellant, then a 47-year-old food service worker, filed a traumatic
injury claim (Form CA-1) alleging that on September 14, 2015 her right foot and ankle were struck
by an electric cart while in the performance of duty. She stopped work on September 16, 2015.
On September 22, 2015 Dr. David Webb, a critical care specialist, noted that her right ankle strain
had resolved. Appellant returned to full-duty work on September 22, 2015.
OWCP accepted that appellant sustained a right ankle ligament sprain and a contusion of
her foot and ankle as a result of the September 14, 2015 employment incident. The record
substantiates that as of October 12, 2015 appellant’s claim was accepted for medical treatment.
On December 9, 2015 appellant filed a notice of recurrence (Form CA-2a) alleging a
recurrence of disability due to her September 14, 2015 work injury on October 14, 2015. She
related that she stopped work on October 15, 2015. Appellant explained that she thought that she
would be able to perform her work duties when she returned to work, but she was unable to do so.
She also noted that she was using crutches and that her left knee had given out.
Appellant filed several claims for compensation (Form CA-7) claiming compensation for
time lost from work beginning November 18, 2015.
In a January 4, 2015 development letter, OWCP informed appellant that the evidence of
record was insufficient to support her recurrence claim. Appellant was advised of the medical and
factual evidence needed and was afforded 30 days to submit the necessary evidence.
Medical evidence from Dr. William C. Kim, a Board-certified orthopedic surgeon, was
received. In a November 11, 2015 report, he noted his examination findings and diagnosed
contusion strain, right lateral ankle, with strain of the calf. Dr. Kim recommended a right calf and
ankle magnetic resonance imaging (MRI) scan. He opined that due to painful guarding of her
ankle, appellant had aggravated her previous left knee condition. Dr. Kim held her off work until
December 16, 2015 for right lower extremity pain. In a November 11, 2015 attending physician’s
report (Form CA-20), he indicated that he first examined appellant on November 11, 2015.
Dr. Kim advised that she was totally disabled for the period October 15 through
December 16, 2015.
In a December 15, 2015 treatment note, Dr. Kim opined that appellant had right foot
plantar pain consistent with plantar fasciitis, for which he recommended stretching. He indicated
that the ankle MRI scan demonstrated osteochondral defect in the talus, for which he recommended
a podiatry consultation. Dr. Kim held appellant off work for six weeks.

2

In a January 26, 2016 treatment note and attending physician’s report, Dr. Kim diagnosed
contusion strain right ankle. He noted that appellant had an osteochondral defect and referred her
to podiatry. Dr. Kim continued to hold her off work due to increased pain.
By decision dated February 5, 2016, OWCP denied appellant’s recurrence of disability
claim as of October 15, 2015 because the medical evidence of record failed to establish disability
due to a material change/worsening of her accepted work-related conditions. It noted that she did
not answer the questions in the questionnaire regarding the recurrence. OWCP also noted that the
medical reports from Dr. Kim held no weight, as he was not her authorized physician. It noted
that appellant was advised in its October 30, 2015 acceptance letter that the medical reports of
Dr. Webb had established that the accepted right ankle condition had resolved and that the claim
was considered closed at the time of acceptance.
On February 24, 2016 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative, which was held on October 13, 2016. Appellant testified that she
had to return to regular-duty work as the employing establishment did not have work available
within the restrictions recommended by her physician. She further stated that she could not
perform her duties and was out of work for approximately seven months. Counsel argued that
appellant was out of work within weeks of her initial injury and stopped work when she was unable
to perform her assigned duties.
In a January 25, 2016 claim for compensation (Form CA-7), appellant claimed wage loss
for the period November 18, 2015 through January 21, 2016.
In a March 15, 2016 report, Dr. Kim recommended that appellant have a podiatry
consultation regarding her right foot. He indicated that she could return to modified duties. In a
November 8, 2016 report, Dr. Kim reported that appellant had decreased right calf and ankle/foot
pain. Referrals to podiatry for the right foot and neurology for a lumbar condition were
recommended.
By decision dated December 27, 2016, an OWCP hearing representative affirmed OWCP’s
February 5, 2016 decision. The hearing representative found that Dr. Kim had not provided
objective findings to support a recurrence of disability commencing October 15, 2015.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.4 The term disability is
defined as incapacity, because of employment injury, to earn the wages that the employee was
receiving at the time of injury.5
3

Id.

4

G.T., 59 ECAB 447 (2008).

5

See Prince E. Wallace, 52 ECAB 357 (2001).

3

Whether a particular injury causes an employee to be disabled and the duration of that
disability are medical issues which must be proven by a preponderance of the reliable, probative,
and substantial medical evidence.6 Findings on examination are generally needed to support a
physician’s opinion that an employee is disabled from work. When a physician’s statements
consist only of a repetition of the employee’s complaints that excessive pain caused an inability to
work, without making an objective finding of disability, the physician has not presented a medical
opinion on the issue of disability or a basis for payment of compensation.7 The Board will not
require OWCP to pay compensation for disability in the absence of any medical evidence directly
addressing the specific dates of disability for which compensation is claimed. To do so would
essentially allow employees to self-certify their disability and entitlement to compensation.8
OWCP’s implementing regulations define a recurrence of disability as an inability to work
after an employee has returned to work, caused by a spontaneous change in a medical condition,
which resulted from a previous injury or illness without an intervening injury or new exposure to
the work environment.9
OWCP’s procedures require that, in cases where recurrent disability from work is claimed
within 90 days or less from the first return to duty, the claimant is not required to produce the same
evidence as for a recurrence claimed long after apparent recovery and return to work. Therefore,
in cases where recurring disability from work is claimed within 90 days or less from the first return
to duty, the focus is on disability rather than causal relationship. The attending physician should
describe the duties which the employee cannot perform and the demonstrated objective medical
findings that form the basis for the renewed disability from work.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that she
sustained a recurrence of disability commencing October 15, 2015 causally related to her
September 14, 2015 employment injury.
OWCP accepted appellant’s claim for right ankle ligament sprain and a contusion of her
foot and ankle as a result of the September 14, 2015 employment incident. On September 22, 2015
Dr. Webb noted that her right ankle strain had resolved. Appellant was released to full duty
without restrictions on September 22, 2015. She subsequently filed a claim for recurrence of
disability commencing October 15, 2015.

6

See Fereidoon Kharabi, 52 ECAB 291, 293 (2001); Edward H. Horton, 41 ECAB 301, 303 (1989).

7

William A. Archer, 55 ECAB 674 (2004).

8

S.P., Docket No. 16-1384 (issued February 1, 2017).

9

20 C.F.R. § 10.5(x).

10
A.C., Docket No. 17-0384 (issued September 11, 2017); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Recurrences, Chapter 2.1500.5 (June 2013).

4

The record reflects that appellant sought treatment from Dr. Kim on November 11, 2015.
In a November 11, 2015 report, Dr. Kim diagnosed contusion strain, right lateral ankle, and a calf
strain. He opined that appellant had aggravated her previous left knee condition due to guarding
of her ankle. Dr. Kim held her off work through December 16, 2015 for right lower extremity
pain, noting that the disability had started on October 15, 2015. In his December 15, 2015
treatment note, he noted that appellant had right foot plantar pain consistent with plantar fasciitis,
for which he recommended stretching. Dr. Kim noted that the ankle MRI scan demonstrated
osteochondral defect in the talus and recommended a podiatry consultation. He continued to hold
appellant out of work due to increased pain, but released her to modified work on March 15, 2016.
Dr. Kim continued to report on her right calf and ankle/foot pain.
At the time of his November 11, 2015 examination, Dr. Kim related that appellant was
totally disabled from October 15, 2015, the claimed recurrence date. While he noted right lower
extremity pain in his November and December 2015 treatment notes and diagnosed other
conditions such as plantar fasciitis and an osteochondral defect in the talus. Dr. Kim’s reports are
insufficient to establish appellant’s claim for recurrence of disability as he failed to provide
medical rationale, explaining with objective findings, why the accepted conditions prevented her
from performing her specific employment duties. As previously noted, findings on examination
are necessary to support a physician’s opinion that an employee is disabled from work. When a
physician’s statements consist only of a repetition of the employee’s complaints that excessive
pain caused an inability to work, without making an objective finding of disability, the physician
has not presented a sufficiently rationalized medical opinion to establish disability.
Additionally, the Board notes that OWCP had not accepted the other conditions diagnosed
by Dr. Kim.11 Dr. Kim has not provided any medical explanation as to how these other conditions
were causally related to the accepted employment injury. Thus, his reports are insufficiently
rationalized to establish appellant’s claim for a recurrence.12
For each period of disability claimed, the employee must establish that she was disabled
for work as a result of the accepted employment injury. Dr. Kim’s reports did not establish with
objective findings that appellant was disabled from working from October 15, 2015 due to workrelated conditions.13 Accordingly, the Board finds that she has not met her burden of proof.14
On appeal, counsel argues that “claimant should have been awarded compensation.”
However, as discussed above, Dr. Kim’s reports are insufficient to establish that the accepted
conditions prevented appellant from working commencing October 15, 2015.

11
T.M., Docket No. 08-0975 (issued February 6, 2009) (where a claimant claims that a condition not accepted or
approved by OWCP was due to an employment injury, the claimant bears the burden of proof to establish that the
condition is causally related to the employment injury through the submission of rationalized medical evidence).
12

L.G., Docket No. 11-0142 (issued August 12, 2011).

13

R.A., Docket No. 14-1327 (issued October 10, 2014).

14

L.L., Docket No. 13-2146 (issued March 12, 2014). See also William A. Archer 55 ECAB 674, 679 (2004).

5

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish a recurrence
of disability commencing October 15, 2015 causally related to the accepted September 14, 2015
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the December 27, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 21, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
DEPARTMENT OF THE NAVY, FLEET
READINESS CENTER SOUTHWEST,
San Diego, CA, Employer
__________________________________________

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

Docket No. 21-1307
Issued: March 22, 2022

Case Submitted on the Record

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

JURISDICTION
On August 30, 2021 appellant, through counsel, filed a timely appeal from an August 20,
2021 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a medical condition
causally related to the accepted January 29, 2021 employment incident.
FACTUAL HISTORY
On February 18, 2021 appellant, then a 50-year-old aircraft mechanic, filed a traumatic
injury claim (Form CA-1) alleging that on January 29, 2021 he overstretched the ligaments in his
neck and left arm when torquing drone shafts while in the performance of duty. He asserted that
he experienced extreme pain from the base of his cranium to the tips of the fingers on his left hand.
On the reverse side of the claim form, C.S., an employing establishment supervisor, contended
that appellant’s condition may not have been the result of a traumatic incident. Appellant did not
stop work.
In an attached statement, C.S. further explained that appellant called out of work on
January 28 and 29, 2021 due to shoulder pain and was advised to return to work with a physician’s
note indicating that it was safe for him to return to his regular duties. The following day, appellant
reported that his physician held him out of work February 1 through 5, 2021. On February 8, 2021
he returned to work with a physician’s note releasing him to full duty. However, later that day, at
2:50 p.m., appellant asserted that he reinjured his shoulder and stopped work.
In February 23, 2021 development letter, OWCP informed appellant of the deficiencies of
his claim. It advised him of the type of factual and medical evidence needed to establish his claim
and requested a narrative medical report from his treating physician containing a detailed
description of findings and a diagnosis, explaining how his work incident caused or aggravated a
medical condition. OWCP afforded appellant 30 days to submit the necessary evidence.
In an undated statement, appellant explained that on January 28, 2021 he was installing a
right-sided engine driveshaft, which required him to contort the left side of his body and lean into
the engine in order to reach the bolts and nuts. He related that he felt a click in his neck and
shoulder, followed by a sharp pain in his left arm, shoulder, and neck. Appellant sought emergency
treatment that night and notified his supervisor the following morning. He noted that he attempted
to return to work one week later and experienced excruciating pain while completing another drive
shaft. Appellant recounted that he immediately notified his supervisor and sought additional
medical care.
In a return to work note, Sherri McCarty, a nurse practitioner, indicated that she held
appellant off from work until further notice.
By decision dated April 1, 2021, OWCP accepted that the January 29, 2021 employment
incident occurred, as alleged. However, it denied appellant’s traumatic injury claim, finding that
he had not submitted medical evidence containing a medical diagnosis in connection with the
accepted employment incident. Consequently, OWCP found that he had not met the requirements
to establish an injury as defined by FECA.

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On April 8, 2021 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
OWCP continued to receive evidence. On April 7, 2021 appellant sought treatment with
Dr. Maxsimo Torres, a family medicine specialist, with complaints of left shoulder and neck pain
with numbness related to a work injury he sustained while installing a drive shaft. Dr. Torres
performed a physical examination and documented tenderness of the left acromioclavicular (AC)
and glenohumeral joints, bicipital groove, and shoulder. He diagnosed joint pain, osteoarthritis,
adhesive capsulitis, and articular cartilage disorder of the left sh oulder and recommended an
orthopedic evaluation, medication, an x-ray of the cervical spine, magnetic resonance imaging
(MRI) scan of the left shoulder, and a rheumatology panel.
In an attending physician’s report (Form CA-20) also dated April 7, 2021, Dr. Torres noted
that appellant sustained an injury to his left shoulder on January 29, 2021. He checked a box
marked “Yes” indicating that the condition was caused or aggravated by an employment activity.
By decision dated August 20, 2021, OWCP’s hearing representative modified the April 1,
2021 decision, finding that appellant had established a medical diagnosis in connection with the
accepted January 29, 2021 employment incident. However, the claim remained denied, because
the evidence of record was insufficient to establish causal relationship between the accepted
January 29, 2021 employment incident and his diagnosed left shoulder conditions.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including 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, 4 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 whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. The first component is that 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. The second component is
3

Id.

4

F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).

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whether the employment incident caused a personal injury and can be established only by medical
evidence.7
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 8 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 incident
identified by the claimant.9
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition. 10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted January 29, 2021 employment incident.
In his narrative report dated April 7, 2021, Dr. Torres noted that appellant related a history
of an injury to his left shoulder while installing a drive shaft at work on the date of the alleged
injury. He diagnosed joint pain, osteoarthritis, adhesive capsulitis, and articular cartilage disorder
of the left shoulder. Dr. Torres did not, however, offer an opinion as to whether these diagnosed
conditions were causally related to the accepted employment injury. The Board has held that
medical evidence that does not offer an opinion regarding the cause of an employee’s condition is
of no probative value on the issue of causal relationship. 11 Therefore, Dr. Torres’ April 7, 2021
report is insufficient to establish appellant’s claim.
In a Form CA-20 dated April 7, 2021, Dr. Torres noted appellant’s January 29, 2021 left
shoulder injury. He checked a box marked “Yes” to indicate that the condition was caused or
aggravated by an employment activity. While the Form CA-20 provided an affirmative opinion
which supported causal relationship, Dr. Torres did not provide a pathophysiological explanation

7

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
9

A.S., Docket No. 19-1955 (issued April 9, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
M.B., Docket No. 20-1275 (issued January 29, 2021); see R.D., Docket No. 18-1551 (issued March 1, 2019).
11

See S.S., Docket No. 21-0837 (issued November 23, 2021); J.M., Docket No. 19-1926 (issued March 19, 2021);
L.D., Docket No. 20-0894 (issued January 26, 2021); T.F., Docket No. 18-0447 (issued February 5, 2020); L.B.,
Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

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as to how the accepted incident either caused or contributed to appellant’s diagnosed conditions. 12
The Board has held that when a physician’s opinion as to the cause of a condition consists only of
a checkmark on a form, without further explanation or rationale, that opinion is of diminished
probative value and is insufficient to establish a claim. 13 Therefore, the April 7, 2021 Form CA20 is also insufficient to establish appellant’s claim.
The remaining medical evidence of record consists of a return-to-work note signed by a
nurse practitioner. Nurse practitioners are not considered “physician[s]” as defined under FECA
and thus their reports do not constitute competent medical opinion evidence.14
As appellant has not submitted rationalized medical evidence establishing a medical
condition causally related to the accepted January 29, 2021 employment incident, the Board finds
that 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 medical
condition causally related to the accepted January 29, 2021 employment incident.

12

Id.; J.G., Docket No. 20-0009 (issued September 28, 2020).

13

See A.C., Docket No. 21-0087 (issued November 9, 2021); O.M., Docket No. 18-1055 (issued April 15, 2020);
Gary J. Watling, 52 ECAB 278 (2001).
14

Section 8101(2) provides that physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.
See 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See supra note 10 at Chapter 2.805.3a(1) (January 2013); David P.
Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and physical therapists
are not competent to render a medical opinion under FECA); see also D.S., Docket No. 19-1657 (issued July 20, 2020)
(nurse practitioners and registered nurses are not considered physicians under FECA).

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ORDER
IT IS HEREBY ORDERED THAT the August 20, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.H., Appellant
and
U.S. POSTAL SERVICE, SHAKER HEIGHTS
POST OFFICE, Cleveland, OH, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-1141
Issued: March 10, 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 July 20, 2021 appellant, through counsel, sought an appeal from a purported July 20,
2021 decision of the Office of Workers’ Compensation Programs (OWCP). 2 The Clerk of the
Appellate Boards assigned Docket No. 21-1141.
The Board has duly considered the matter and notes that the Board has jurisdiction to the
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act
(FECA).3 This jurisdiction encompasses any final decision issued by OWCP within 180 days of
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

Counsel did not appeal from OWCP’s June 7, 2021 merit decision, which affirmed OWCP’s November 30, 2020
forfeiture decision. He identified only the purported July 20, 2021 decision on the application for review (AB-1
Form). Therefore, the Board will not consider the June 7, 2021 OWCP decision in this appeal. See 20 C.F.R. § 501.3;
see also D.E., Docket No. 21-0531 (issued June 16, 2021).
3

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

the date appellant filed her appeal. 4 While there is correspondence dated July 20, 2021, that letter
is purely informational in nature and does not constitute a final adverse decision of OWCP from
which she may properly appeal.5 As there is no final adverse decision issued by OWCP that
counsel has appealed from over which the Board may properly exercise jurisdiction, the Board
lacks jurisdiction over the appeal. Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-1141 is dismissed. 6
Issued: March 10, 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

Id. at § 501.3(e) provides in pertinent part: “Any notice of appeal must be filed within 180 days from the date of
issuance of a decision of OWCP.”
4

5

See Order Dismissing Appeal, K.S., Docket No. 20-1401 (issued March 17, 2021); Order Dismissing Appeal,
S.U., Docket No. 20-0636 (issued December 3, 2020).
6

The Board’s decisions and orders are final upon the expiration of 30 days from the date of their issuance. 20
C.F.R. § 501.6(d).

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