United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Washington, DC, Employer
__________________________________________

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

Docket No. 11-430
Issued: September 21, 2011

Case Submitted on the Record

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

JURISDICTION
On December 14, 2010 appellant filed a timely appeal from a September 16, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her traumatic
injury claim and a December 3, 2010 nonmerit decision denying her request for reconsideration.
Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she
sustained an emotional condition in the performance of duty; and (2) whether OWCP properly
denied her request for further merit review under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 22, 2010 appellant, then a 34-year-old mail clerk, filed a traumatic injury claim
(Form CA-1) alleging that she sustained headaches and dizziness on that same date from the
stress of constantly being harassed by her manager, Ethyl Taylor. The employing establishment
controverted the claim stating that appellant was angry because she was going to receive
administrative action for attendance issues.
By letter dated August 2, 2010, the employing establishment asserted the supervisor’s
actions were routine for employees with the same irregular attendance issues. It further stated
that, though appellant might have experienced stress and hypertension because of her supervisor,
those reactions were self-imposed and not compensable.
Appellant submitted treatment notes from Physical Medicine Rehabilitation Center dated
July 14 to 21, 2010.
By letter dated August 16, 2010, OWCP informed appellant that the evidence of record
was insufficient to support her claim. It requested additional factual and medical evidence and
asked her to respond to the provided questions which was to be submitted within 30 days. No
further evidence was submitted.
By decision dated September 16, 2010, OWCP denied appellant’s claim finding that the
evidence did not establish that the incident occurred as alleged. It specifically noted that she
failed to provide a sufficient explanation of the incident that supported her claim of stress.
On November 17, 2010 appellant requested reconsideration of OWCP’s decision.
Appellant’s physician provided disability certificates dated July 16 and August 12, 2010,
which found her totality incapacitated from employment stress.
Appellant submitted July 23 and August 5, 2010 postal service predisciplinary interview
(PDI) letters informing her of her PDI appointments.
By letter dated August 25, 2010, appellant stated that she called in sick on August 23,
2010 and asked for three days off. Her supervisor informed her that she would need
documentation for all three days. Appellant also reported that she underwent emergency surgery
on August 24, 2010 and informed her supervisor that it would take three weeks to recover. She
expected to return on September 20, 2010.
By letter dated August 31, 2010, appellant stated that she began working for her
supervisor, Ms. Taylor, on May 24, 2010. When she first started her employment under
Ms. Taylor, she had an accepted OWCP claim which required her to have doctor’s appointments
and physical therapy in claim No. xxxxxx949. Appellant alleged that her supervisor had
threatened to suspend her many times for poor attendance even though the problem was due to
her injury. She also stated that her supervisor would yell in her face, beat her fist against the
palm of her hand and change her report times when she was angry. Appellant stated that the
stress and harassment from her employment caused her to develop migraine headaches and
depression.
2

In a September 17, 2010 medical note, Dr. Archana G. Leon-Guerrero, a Board-certified
psychiatrist and Chief of Psychiatry, reported that appellant had been under his care since
September 3, 2010 for major depression and anxiety disorder. He stated that the cause of her
condition was a result of the stressful work situation. Dr. Leon-Guerrero reported that appellant
had worked for the postal service for many years with good attendance at first. At some point
she began to miss work frequently and built a reputation for poor attendance. As a result,
appellant’s supervisors did not take her doctor’s medical recommendations for time off work
seriously. This resulted in escalating tensions between her and her supervisor, which caused her
depression and anxiety.
In a September 21, 2010 medical note, Dr. Rehana Hussain, a treating physician,
diagnosed appellant with major depression, migraine and tension headaches.
In a September 22, 2010 treatment note, Dr. Leon-Guerrero stated that appellant’s
psychiatric condition was likely to recur if she was not transferred from her position at Landover
Hills, MD.
By decision dated December 3, 2010, OWCP denied appellant’s request for
reconsideration finding that she neither raised substantive legal questions nor included new and
relevant evidence establishing fact of injury. It specifically noted that she failed to submit any
evidence which established that an event occurred on July 22, 2010.
LEGAL PRECEDENT -- ISSUE 1
To establish that an emotional condition was sustained in the performance of duty there
must be factual evidence identifying and corroborating employment factors or incidents alleged
to have caused or contributed to the condition, medical evidence establishing that the employee
has an emotional condition and rationalized medical opinion establishing that compensable
employment factors are causally related to the claimed emotional condition.2 There must be
evidence that implicated acts of harassment or discrimination did, in fact, occur supported by
specific, substantive, reliable and probative evidence.3
Where the disability results from an emotional reaction to regular or specially assigned
work duties or a requirement imposed by the employment, the disability comes within the
coverage of FECA.4 On the other hand, disability is not covered where it results from an
employee’s fear of a reduction-in-force, frustration from not being permitted to work in a
particular environment or to hold a particular position, or to secure a promotion. Disabling
conditions resulting from an employee’s feeling of job insecurity or the desire for a different job
do not constitute a personal injury sustained while in the performance of duty within the meaning
of FECA.5
2

See Debbie J. Hobbs, 43 ECAB 135 (1991).

3

See Ruth C. Borden, 43 ECAB 146 (1991).

4

Lillian Cutler, 28 ECAB 125 (1976).

5

Id.

3

Workers’ compensation does not cover an emotional reaction to an administrative or
personnel action unless the evidence shows error or abuse on the part of the employing
establishment.6 As a rule, however, a claimant’s allegations alone are insufficient to establish a
factual basis for an emotional condition claim.7 Mere perceptions and feelings of harassment or
discrimination will not support an award of compensation. The claimant must substantiate such
allegations with probative and reliable evidence.8 The primary reason for requiring factual
evidence of allegations of stress in the workplace is to establish a basis in fact for the contentions
made, as opposed to mere perceptions of the claimant, which in turn may be fully examined and
evaluated by OWCP and the Board.9
The Board has recognized the compensability of verbal altercations or abuse when
sufficiently detailed by the claimant and supported by the record. This does not imply, however,
that every statement uttered in the workplace will give rise to compensability.10
ANALYSIS -- ISSUE 1
Appellant did not attribute her emotional condition to her regular or specially assigned
duties under Cutler.11 In this case, she attributed her condition to an incident alleged to have
occurred on July 22, 2010. When describing the cause of her injury, appellant stated stress from
constantly being harassed by management. She indicated a traumatic injury by filing a Form
CA-1 but described an occupational disease. Under the circumstances of the case, the Board will
treat this case as an occupational disease claim as it appears that appellant is alleging an injury
produced by her work environment over a period longer than a single workday or shift.12
The initial question is whether appellant has alleged compensable employment factors as
a cause of her condition.13 Thus, part of her burden of proof includes the submission of a

6

Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon, 42 ECAB 566, 572-73 (1991).

7

See Arthur F. Hougens, 42 ECAB 455 (1991); Ruthie M. Evans, 41 ECAB 416 (1990) (in each case the Board
looked beyond the claimant’s allegations of unfair treatment to determine if the evidence corroborated such
allegations).
8

Joel Parker, Sr., 43 ECAB 220, 225 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990) (for harassment to
give rise to a compensable disability, there must be some evidence that harassment or discrimination did in fact
occur); Pamela R. Rice, 38 ECAB 838 (1987) (claimant failed to establish that the incidents or actions which she
characterized as harassment actually occurred).
9

Paul Trotman-Hall, 45 ECAB 229 (1993) (concurring opinion of Michael E. Groom, Alternate Member).

10

See David C. Lindsey, 56 ECAB 263 (2005). The mere fact that a supervisor or employee may raise his or her
voice during the course of an argument does not warrant a finding of verbal abuse. Joe M. Hagewood, 56 ECAB
479 (2005).
11

See supra at note 4.

12

20 C.F.R. § 10.5(x). The Board finds no evidence in this claim of events or circumstances which would make
this a traumatic injury claim.
13

Wanda G. Bailey, 45 ECAB 835, 838 (1994).

4

detailed description of the specific employment factors or incidents which caused or aggravated
the condition for which she claims compensation.14
The evidence received does not provide any details establishing that the events occurred
as alleged. Appellant submitted a Form CA-1 which stated that she developed headaches and
dizziness on July 22, 2010 from the stress of constantly being harassed by her manager,
Ms. Taylor. She also submitted date of treatment notes from July 14 to 21, 2010. By letter dated
August 16, 2010, OWCP informed appellant of detailed medical and factual evidence needed to
support her claim and provided her with a series of questions; however, she did not respond to
OWCP’s request.
While the employing establishment controverted the claim by asserting that the actions
taken towards appellant were in keeping with postal service guidelines, appellant has not
supported her claim in the first instance. Other than an unsubstantiated claim that management
harassed her, she has not established that any administrative or personnel action constituted error
or abuse by her employer. Therefore these alleged events are not factors of employment.
Appellant failed to describe the circumstances of her injury in detail and did not explain how or
when she was harassed during the course of her employment.15 No witness statements were
submitted, she failed to establish the events alleged to have occurred and did not provide OWCP
with the additional factual evidence requested.16 The Board again notes that mere perceptions of
harassment or discrimination are not compensable; an appellant must establish a basis in fact for
the claim by supporting her allegations with probative and reliable evidence.17 Rather, appellant
has provided generally stated assertions of dissatisfaction with a certain superior at work and
these do not establish her allegations.18 As she failed to provide evidence to establish a
compensable factor of employment, her claim was properly denied.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under FECA section 8128(a), OWCP
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.19 Section 10.608(b) of OWCP regulations
provide that, when an application for reconsideration does not meet at least one of the three

14

Jimmy Gilbreath, 44 ECAB 555, 558 (1993).

15

N.G., 111 LRP 9066 (2011).

16

See Joel Parker, Sr., supra note 8 (the Board held that a claimant must substantiate allegations of harassment or
discrimination with probative and reliable evidence).
17

Curtis Hall, 45 ECAB 316 (1994); Margaret S. Krzycki, 43 ECAB 496 (1992).

18

Supra note 2.

19

D.K., 59 ECAB 141 (2007).

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requirements enumerated under section 10.606(b)(2), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.20
ANALYSIS -- ISSUE 2
The Board finds that OWCP improperly denied appellant’s December 3, 2010 request for
review, pursuant to 5 U.S.C. § 8128(a).
The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the claim.
In support of her reconsideration request, appellant submitted July 23 and August 5, 2010 postal
service PDI letters informing her of her PDI appointments. By letter dated August 25, 2010, she
stated that she called in sick on August 23, 2010 and her supervisor informed her that she would
need documentation. Appellant also reported that she had emergency surgery on August 24,
2010 and informed her supervisor that she would need three weeks to recover and would return
to work on September 20, 2010. By letter dated August 31, 2010, she stated that Ms. Taylor
threatened to suspend her many times, would yell in her face, beat her fist against the palm of her
hand and change her report times when she was angry. Appellant stated that the stress and
harassment from her employment caused her to develop migraine headaches and depression.
In a September 17 and 22, 2010 medical note, Dr. Leon-Guerrero reported that appellant
was under his care for major depression and anxiety disorder caused by her stressful work
situation and tensions with her supervisor. He further stated that appellant’s psychiatric
condition was likely to recur if she was not transferred from her current position.
As previously stated, the Board will treat this claim as an occupational disease case as it
appears that appellant is alleging an injury produced by her work environment over a period
longer than a single workday or shift. Therefore, the underlying issue in this case is whether
appellant has alleged compensable employment factors as contributing to her condition. This is
a factual issue which must be addressed by relevant corroborating evidence or witness statements
to establish that the actions actually occurred or statements were actually made. As appellant has
provided evidence regarding the claimed occupational exposure, the Board finds her statements,
medical notes and PDI letters to be relevant and pertinent new evidence not previously
considered by OWCP and, therefore, sufficient to warrant further review of the case on the
merits.21
The case will be remanded to OWCP for a decision on the merits of appellant’s claim.
On remand, OWCP should consider the new and relevant evidence, together with the previously
submitted evidence of record, to determine if she has established that she developed an
emotional condition in the performance of duty causally related to factors of her federal
employment as a mail clerk.

20

K.H., 59 ECAB 495 (2008).

21

See Donald T. Pippin, 54 ECAB 631 (2003); E.R., Docket No. 09-1655 (issued March 18, 2010); R.M., Docket
No. 08-734 (issued September 5, 2008).

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CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an emotional condition causally related to factors of her employment as a mail clerk.
OWCP however, improperly denied her request for a merit review pursuant to section 8128(a) of
FECA. The case is remanded to OWCP to consider the additional evidence submitted and,
following any necessary further development, issue an appropriate decision on the merits of the
case.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated September 16, 2010 is affirmed but the December 3, 2010 decision is set aside
and the case is remanded for further action consistent with this decision.
Issued: September 21, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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U.S. POSTAL SERVICE, SOUTHERN
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MARYLAND PROCESSING & DISTRIBUTION )
CENTER, Capital Heights, MD, Employer
)
__________________________________________ )
D.M., Appellant

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

Docket No. 09-845
Issued: January 19, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 10, 2009 appellant filed a timely appeal of the January 12, 2009 merit
decision of the Office of Workers’ Compensation Programs denying her claim for a recurrence
of disability. Pursuant to 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 she sustained a recurrence of disability on
August 17, 2007 causally related to her March 3, 1998 employment injury.
FACTUAL HISTORY
On May 6, 1998 appellant, then a 40-year-old clerk, filed a traumatic injury claim
alleging that she sustained a cervical strain in the performance of duty on March 3, 1998 when
she was hit in the head by a shelf. The Office accepted her claim for contusion to the face, scalp
and neck and a neck sprain.

Dr. Stuart J. Goodman, an attending physician, supported appellant’s disability for work
due to persistent headaches. On August 10, 1998 he stated that she sustained significant blunt
head trauma and cervical strain and was disabled due to persistent headaches. On September 3,
1998 Dr. Goodman diagnosed chronic musculoskeletal-related headaches secondary to
appellant’s May 3, 1998 work injury, which were aggravated by her work environment. He
diagnosed closed head trauma, cervical sprain and musculoskeletal headaches. On June 16, 1999
appellant stated that she experienced severe headaches and pressure due to her employment
injury. The Office authorized compensation for intermittent periods of disability from 1999
through 2003. Dr. Goodman submitted reports every few months from 1998 through 2006.
The Office requested additional evidence on August 30, 2005 regarding appellant’s
temporary work stoppage on October 30, 2003. Dr. Goodman completed a narrative report on
September 13, 2005 and described her history of injury. He noted that he examined appellant on
a regular basis due to exacerbations of her chronic problem. Dr. Goodman stated that she
experienced occasions during which her headaches and neck pain would suddenly become very
severe and render her disabled for work. He noted that appellant’s disability generally lasted for
two to three days and that she was then able to return to her light-duty work. Dr. Goodman
stated, “Having this chronic condition makes her prone to these exacerbations by even an
innocent move on her part.”
The record contains short reports from Dr. Goodman dated throughout 2006 and on
January 31, April 25, May 23, June 27 and August 1, 2007 diagnosing chronic post-traumatic
headaches and pain syndrome with noise intolerance. Dr. Goodman submitted a note dated
August 20, 2007 and stated that he examined appellant on “an urgent basis on August 17, 2007.”
He stated that she called on August 16, 2007 and was tearful and in severe distress.
Dr. Goodman found that appellant was in distress from a headache with tenderness and spasm of
the cervical spine. He diagnosed a recurrence of post-traumatic migraine headaches with a
musculoskeletal component and noise intolerance. Dr. Goodman advised that appellant was
totally disabled. On August 29, 2007 he stated that she was much improved but unable to return
to work. Dr. Goodman noted that after August 20, 2007 appellant had remained in bed for
several days.
Appellant filed a claim for compensation and requested wage-loss compensation from
August 17 to September 11, 2007. In a letter dated September 26, 2007, the Office requested
additional medical evidence regarding her claimed disability. It requested that Dr. Goodman
provide objective findings and medical reasoning to establish that appellant’s chronic headaches
and noise intolerance was due to her May 3, 1998 employment injury. The Office allowed
30 days for a response.
On October 16, 2007 Dr. Goodman noted appellant’s history of injury and diagnosed
post-traumatic musculoskeletal headaches and noise intolerance. He stated, “These are chronic
permanent problems. It is quite common for there not be to any localizing neurological findings
or positive diagnostic testing.” Dr. Goodman opined that appellant’s problems were due to her
accepted employment injury of May 3, 1998 and that there were occasions in which there was an
exacerbation of her symptoms causing her to be out of work for a time.

2

On October 31, 2007 Dr. Goodman diagnosed chronic post-traumatic headaches, pain
and noise intolerances. In reports dated October 16 and November 16, 2007, he noted that he
had treated appellant since May 6, 1998 due to her March 3, 1998 employment injury.
Dr. Goodman stated that she experienced an acute exacerbation of her post-traumatic migraine
headaches and a new medication had allowed her to return to full-time light-duty work. He
diagnosed closed head trauma with post-traumatic musculoskeletal and vascular (migraine)
headaches and noise intolerance. On November 29, 2007 Dr. Goodman noted that appellant had
returned to full-time work.
On May 20, 2008 appellant filed a recurrence of disability claim alleging on August 17,
2007 she sustained disability causally related to her May 3, 1998 employment injury. In
August 2007, she developed severe disabling headaches and was unable to work for two weeks
due to the noisy environment. Appellant contended that this was a continuation but sudden
worsening of her employment-related condition. Dr. Goodman submitted additional reports
diagnosing chronic post-traumatic headaches and noise intolerance throughout 2008. In a note
dated September 25, 2008, he stated that appellant suffered from a head trauma and experienced
residual musculoskeletal headaches with a vascular/migraine component as well as chronic noise
intolerance.
By decision issued January 12, 2009, the Office denied appellant’s claim for recurrence
finding that she had not submitted sufficient evidence including bridging medical evidence to
establish that she sustained a recurrence of disability on August 17, 2007 causally related to her
accepted May 3, 1998 employment injury. It noted that she did not present evidence of a
precipitating factor or change in her medical condition and found that the medical evidence was
not sufficient to establish a causal relationship between her diagnosed condition and her claimed
period of disability.
LEGAL PRECEDENT
Where an employee claims a recurrence of disability due to an accepted employmentrelated injury, he or she has the burden of establishing by the weight of reliable, probative and
substantial evidence that the recurrence of disability is causally related to the original injury.
The burden includes the necessity of furnishing evidence from a qualified physician who, on the
basis of a complete and accurate factual and medical history, concluded that the condition is
causally related to the employment injury. Moreover, sound medical reasoning must support the
physician’s conclusion.1
The medical evidence must demonstrate that the claimed recurrence was caused,
precipitated, accelerated or aggravated by the accepted injury. In this regard, medical evidence
of bridging symptoms between the recurrence of the accepted injury must support the
physician’s conclusion of a causal relationship. While the opinion of a physician supporting
causal relationship need not be one of absolute medical certainty, the opinion must not be

1

Ricky S. Storms, 52 ECAB 349 351-52 (2001).

3

speculative or equivocal. The opinion should be expressed in terms of a reasonable degree of
medical certainty.2
ANALYSIS
Appellant filed a recurrence of disability claim on May 20, 2008 alleging on August 17,
2007 that she sustained a recurrence of total disability due to her March 3, 1998 employment
injury. She filed a claim for compensation and requested wage-loss compensation from
August 17 to September 11, 2007.
In support of her claim, appellant submitted a series of reports from Dr. Goodman
detailing her history of headaches following her March 3, 1998 employment injury through
August 2007. Dr. Goodman attributed her musculoskeletal headaches to her work injury. On
August 20, 2007 he stated that he examined appellant on August 17, 2007 finding that she was in
distress from a headache with tenderness and spasm of the cervical spine. Dr. Goodman
diagnosed a recurrence of post-traumatic migraine headaches with a musculoskeletal component
and noise intolerance and found that she was totally disabled. On September 25, 2008 he stated
that appellant suffered from a head trauma and experienced residual musculoskeletal headaches
with a vascular/migraine component as well as chronic noise intolerance. In a report dated
October 16, 2007, Dr. Goodman noted appellant’s history of injury and diagnosed post-traumatic
musculoskeletal headaches and noise intolerance. He stated, “These are chronic permanent
problems. It is quite common for there not be to any localizing neurological findings or positive
diagnostic testing.” Dr. Goodman opined that appellant’s problems were due to her accepted
employment injury of May 3, 1998 and that there were occasions in which there was an
exacerbation of her symptoms causing her to be out of work for a time. In reports dated
October 16 and November 16, 2007, he stated that he had treated her since May 6, 1998 due to
her March 3, 1998 employment injury. Dr. Goodman diagnosed closed head trauma with posttraumatic musculoskeletal and vascular (migraine) headaches and noise intolerance.
Dr. Goodman initially diagnosed headaches as a result of appellant’s March 3, 1998
employment injury in 1998. He continued to examine and treat her for headaches at least three
or four times a year from 1998 through 2007. Dr Goodman clearly attributed appellant’s
recurrence of disability in August 2007 to an exacerbation of her headaches. He opined that her
headaches were due to her accepted employment injury and stated that her lack of neurological
findings was common. These reports contain a diagnosis and an opinion that appellant’s
condition was caused by the accepted employment injury. While Dr. Goodman’s reports are not
sufficient to meet her burden of proof, the reports do raise an uncontroverted inference of causal
relation between her accepted employment injury of contusion of the face, scalp and neck as well
as sprain of the neck and her diagnosed post-traumatic headaches and are sufficient to require the
Office to undertake further development of appellant’s claim.3
On remand, the Office should refer appellant for a second opinion evaluation to
determine whether her current condition is related to her accepted employment injuries. After
2

Id.

3

John J. Carlone, 41 ECAB 354, 358-60 (1989).

4

this and such other development as it deems necessary, the Office should issue an appropriate
decision.
CONCLUSION
The Board finds that the case is not in posture for a decision. The Office should
undertake additional development of the medical evidence and issue an appropriate decision.
ORDER
IT IS HEREBY ORDERED THAT January 12, 2009 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for additional development
consistent with this opinion of the Board.
Issued: January 19, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


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

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)

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

Docket No. 13-557
Issued: June 17, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 15, 2013 appellant filed a timely appeal from a December 6, 2012 nonmerit
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, as more than 180
days has elapsed between the last merit decision, May 18, 2012, and the filing of this appeal on
January 15, 2013, the Board lacks jurisdiction to review the merits of this case.2
ISSUE
The issue is whether OWCP abused its discretion to deny appellant’s request for an oral
hearing.

1
2

5 U.S.C. § 8101 et seq.

For decisions issued prior to November 19, 2008, a claimant had up to one year to file an appeal. An appeal of
OWCP decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 501.3(e).

FACTUAL HISTORY
On February 7, 1997 appellant, then a 36-year-old mail carrier, filed an occupational
disease claim alleging that he sustained injury to his neck as a result of casing and carrying mail.
OWCP accepted the claim for neck strain on April 18, 1997.
By letter dated November 8, 2011, appellant requested that his claim be reopened due to
a need for additional medical care for his accepted work condition.
OWCP notified appellant of the deficiencies of his claim, by letter dated January 6, 2012,
and requested that he submit further medical evidence in support of his claim. No medical
evidence was received.
In a May 18, 2012 decision, OWCP denied appellant’s recurrence claim on the grounds
that he had submitted insufficient medical evidence to establish that he required further medical
care due to a worsening of his accepted condition.
On November 5, 2012 appellant requested a hearing before the Branch of Hearings and
Review. He submitted several medical reports to the record including a December 5, 2011 report
from Dr. Doan-Trang Shirley, Board-certified in internal medicine; a December 12, 2011 report
from Maria Castell, Ph.D., a registered nurse practitioner; and a December 30, 2011 report from
Dr. Albert Liang, a Board-certified internist.
In a December 6, 2012 decision, OWCP denied appellant’s oral hearing request, finding
that his hearing request was untimely made. It also advised that he could request reconsideration
of his claim and submit new evidence in support of the recurrence of disability.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides that before review under section 8128(a) of this
title, a claimant for compensation not satisfied with a decision of the Secretary is entitled, on
request made within 30 days after the date of the issuance of the decision, to a hearing on his
claim before a representative of the Secretary.3 Section 10.615 of the federal regulations
implementing this section of FECA provides that a claimant shall be afforded a choice of an oral
hearing or a review of the written record.4 OWCP’s regulations provide that the request must be
sent within 30 days of the date of the decision for which a hearing is sought and also that the
claimant must not have previously submitted a reconsideration request (whether or not it was
granted) on the same decision.5
Additionally, the Board has held that OWCP, in its broad discretionary authority in the
administration of FECA,6 has the power to hold hearings in certain circumstances where no
3

5 U.S.C. § 8124(b)(1).

4

20 C.F.R. § 10.615.

5

Id. at § 10.616(a).

6

5 U.S.C. §§ 8101-8193.

2

legal provision was made for such hearings and that OWCP must exercise this discretionary
authority in deciding whether to grant a hearing.7 OWCP procedures, which require it to
exercise its discretion to grant or deny a hearing when the request is untimely or made after
reconsideration, are a proper interpretation of FECA and Board precedent.8
ANALYSIS
In its May 18, 2012 decision, OWCP denied appellant’s recurrence claim. On
November 8, 2012 appellant requested an oral hearing before the Branch of Hearings and
Review. His request for a hearing was made more than 30 days after the May 18, 2012 decision.
Consequently, appellant’s hearing request was untimely and he was not entitled to an oral
hearing as a matter of right.9
OWCP has the discretionary authority to grant a hearing even though a claimant is not
entitled to such as a matter of right. In its December 6, 2012 decision, it properly exercised its
discretion by notifying appellant that it had considered the matter in relation to the issue involved
and determined that additional argument and evidence could be submitted with a request for
reconsideration. The Board has held that the only limitation on OWCP’s authority is
reasonableness. Abuse of discretion is generally shown through proof of manifest error, clearly
unreasonable exercise of judgment or actions taken which are contrary to both logic and probable
deduction from established facts.10 The Board finds that OWCP did not abuse its discretion in
this case by denying a discretionary hearing.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for an oral hearing as
untimely under section 8124.

7

Marilyn F. Wilson, 52 ECAB 347 (2001).

8

Teresa M. Valle, 57 ECAB 542 (2006). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and
Reviews of the Written Record, Chapter 2.1601.4(b)(3) (October 1992).
9

Supra note 5.

10

See Daniel J. Perea, 42 ECAB 214 (1990).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 6, 2012 is affirmed.
Issued: June 17, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

4


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

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

Docket No. 17-0427
Issued: June 20, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On December 19, 2016 appellant, through counsel, filed a timely appeal from an
August 24, 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 to consider the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s claim for a schedule award.

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.

FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances of the case
are set forth in the Board’s prior decision and incorporated herein by reference. The facts
relevant to the present appeal are set forth below.4
On March 15, 2004 appellant, then a 44-year-old letter carrier filed a traumatic injury
claim alleging that on March 10, 2004, she slipped and fell while delivering mail, injuring her
low back, left hip, knee, and elbow. OWCP accepted the claim for left hip contusion, back
contusion, lumbosacral strain, left elbow contusion, and left knee sprain. Appellant stopped
work on March 10, 2004 and returned to a light-duty position on May 24, 2004.
On June 15, 2006 OWCP referred appellant to Dr. Sheldon Kaffen, a Board-certified
orthopedist, for a second opinion. In an August 24, 2006 report, Dr. Kaffen diagnosed contusion
of the back resolved, lumbosacral strain resolved, contusion of the left elbow resolved, sprain of
the left knee resolved, and left hip contusion resolved. He opined that there were no objective
physical findings to indicate that appellant continued to have residuals of the accepted conditions
of left hip contusion, back contusion, lumbosacral sprain, left elbow contusion, and left knee
sprain. Dr. Kaffen further opined that appellant was medically capable of performing her regular
job duties as a letter carrier and noted that any work restrictions were due to a nonwork-related
condition of osteoarthritis of the patellofemoral joint of the left knee. He prepared a work
capacity evaluation and indicated that appellant was capable of performing her usual job and
identified restrictions which were attributed to her diagnosed nonwork-related conditions of
osteoarthritis of the patellofemoral joint of the left knee. In a report dated October 10, 2006,
Dr. Daniel Breitenbach, a Board-certified internist and appellant’s treating physician, reviewed
Dr. Kaffen’s report and advised that he could not dispute his reasoning and findings. He opined
that appellant’s back discomfort, left knee pain, and osteoarthritis of the patellofemoral joint
were most likely due to excessive weight and not to the contusion of her knee.
On November 28, 2006 OWCP issued a notice of proposed termination of compensation
and medical benefits, finding that Dr. Kaffen’s August 24, 2006 report and Dr. Breitenbach’s
October 10, 2006 report established no residuals of the work-related conditions. In a January 5,
2007 decision, it terminated all compensation benefits effective that date, as the weight of the
medical evidence established that appellant had no continuing disability or residuals of her
accepted injury.

3

Docket No. 08-65 (issued April 23, 2008).

4

The record reveals that appellant sustained a traumatic injury on August 6, 2007 which was accepted for right
ankle and knee sprain, right foot contusion, and a tear of the right medial meniscus under claim number xxxxxx729.
Additionally, on March 11, 2008 appellant sustained a traumatic injury which was accepted for sprain of the left
ankle, left knee, neck, back, bilateral hips, bilateral shoulders, and upper arms, and left ankle instability under claim
number xxxxxx004. At the time of the August 24, 2016 decision, these cases were not combined with the current
claim before the Board.

2

Appellant filed an appeal with the Board. By decision dated April 23, 2008, the Board
affirmed the termination and found no continuing disability after January 8, 2007.5
On June 3, 2010 appellant filed a claim for a schedule award (Form CA-7). She
submitted a report from Dr. William N. Grant, a Board-certified internist, dated May 8, 2010,
who noted that appellant was employed with the postal service, and on the date of injury she had
slipped on mud and injured her left hip, lower back, left elbow, and left knee. Dr. Grant noted
that appellant underwent physical therapy, but reported intermittent painful discomfort to her left
hip, elbow and knee. He indicated that appellant had reached maximum medical improvement
(MMI) on April 30, 2010. Dr. Grant noted findings on examination for the left knee, using the
range of motion (ROM) method of flexion contracture of 7 degrees for 10 percent lower
extremity mild impairment and flexion of 80 degrees for 10 percent lower extremity mild
impairment. He combined these values under the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides),6 appellant had 19 percent impairment of
the left lower extremity.7 Dr. Grant diagnosed left hip contusion, back contusion, lumbosacral
sprain, left elbow contusion, and left knee sprain. He opined that appellant had 19 percent left
leg impairment based on her history, physical examination and the A.M.A., Guides.
On June 29, 2010 OWCP informed appellant that her claim was not in posture for a
schedule award as her case was in closed status. It noted that appellant’s benefits had been
formally terminated on January 5, 2007.
On August 31, 2015 appellant filed a claim for a schedule award.
On September 2, 2015 OWCP requested that appellant submit a detailed report from her
treating physician which provided an impairment evaluation pursuant to the A.M.A., Guides.8 It
specifically requested an opinion as to whether she had reached MMI, a diagnosis upon which
the impairment was based, a detailed description of objective findings and subjective complaints,
and a detailed description of any permanent impairment under the applicable criteria and tables
in the A.M.A., Guides.
In a statement dated July 29, 2015, Dr. Todd S. Hochman, a Board-certified internist,
indicated that appellant reached MMI.
On October 26, 2015 OWCP denied appellant’s claim for a schedule award as the
evidence of record was not sufficient to establish permanent impairment to a scheduled member
due to the accepted work injury.
On October 29, 2015 appellant, through counsel, requested a telephonic hearing which
was held on June 29, 2016.
5

Supra note 3.

6

A.M.A., Guides (6th ed. 2009).

7

Id. at 604.

8

Id.

3

Appellant submitted a June 2, 2015 impairment rating from Dr. Catherine Watkins
Campbell, a Board-certified family practitioner. Dr. Campbell noted examining appellant on
March 1, 2016 and that her claim had been accepted for contusion left hip, contusion of back,
lumbosacral sprain, contusion left elbow and forearm, and sprain unspecified sites of the left
knee. She indicated that appellant was injured when she slipped in mud while performing her
letter carrier duties. Dr. Campbell noted that appellant’s history was significant for a workrelated injury in 2008 in which she underwent surgery of the left ankle and left knee and a workrelated injury in 2007 where she injured her right knee and ankle. Appellant reported constant
pain in both knees and nearly constant pain in the left hip and left forearm. Her pain disability
index score was 55 out of 70. Dr. Campbell noted a wide waddling gait, bilateral difficulty with
heel and toe walk, inability to squat, normal strength, intact reflexes in the legs, tenderness and
mild laxity of the left medial joint, and asymmetric popliteal fullness with medial and lateral
popliteal tenderness in the left knee. She noted left knee ROM measured 100, 96, 90 degrees of
flexion and zero degrees of extension. Dr. Campbell noted that the condition to be rated was the
left knee sprain. She found pursuant to Table 16-3 of the A.M.A., Guides, a diagnosis of
cruciate or collateral ligament injury, appellant was a class 1, with mild laxity. Dr. Campbell
noted a grade modifier of 1 pursuant to Table 16-6 of the A.M.A., Guides for functional history
based on an antalgic gait without the use of an assistive device. The grade modifier for physical
examination was 1 pursuant to Table 16-7 of the A.M.A., Guides based on mild palpatory and
mild ROM deficit for left knee flexion findings. The grade modifier for clinical studies was 1
based on magnetic resonance imaging scan findings of medial collateral ligament injury. Using
the net adjustment formula, Dr. Campbell calculated a net adjustment of zero, for a default grade
C, 10 percent impairment of the left lower extremity. She opined that, based upon the allowed
conditions in the claim, appellant’s history, the provided records, physical examination, and her
professional evaluation, appellant sustained permanent partial impairment of 10 percent
permanent impairment of the left leg under to the A.M.A., Guides.
Dr. Campbell also submitted a June 3, 2016 permanent impairment worksheet
summarizing the rating.
By decision dated August 24, 2016, an OWCP hearing representative affirmed the
October 26, 2015 decision.
LEGAL PRECEDENT
The schedule award provision of FECA9 and its implementing regulations10 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to

9

5 U.S.C. § 8107.

10

20 C.F.R. § 10.404.

4

all claimants. The A.M.A., Guides,11 has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.12
Not all medical conditions accepted by OWCP result in permanent impairment to a
scheduled member.13 The Board notes that, before applying the A.M.A., Guides, OWCP must
determine whether the claimed impairment of a scheduled member is causally related to the
accepted work injury.14 The claimant has the burden of proving that the condition for which a
schedule award is sought is causally related to his or her employment.15
OWCP procedures provide:
“Schedule Awards after Termination of Compensation and Medical Benefits.
ECAB has held that termination of a claim for all benefits due to a finding of no
residuals of the accepted condition(s) does not bar a subsequent schedule award;
rather, the claims examiner should consider the schedule award matter separately
from the termination of benefits.
If a claimant applies for a schedule award after termination, and submits
prima facie medical evidence reflecting permanent impairment as a result
of the work-related injury or exposure, the claims examiner should
develop the claim further, even if a finding of no residuals has previously
been made.”16
ANALYSIS
OWCP accepted that appellant sustained a left hip contusion, back contusion,
lumbosacral strain, left elbow contusion, and left knee sprain while in the performance of duty
on March 10, 2004. The Board previously affirmed OWCP’s termination of appellant’s
compensation benefits effective January 5, 2007 as the weight of the medical evidence reflected
that the accepted conditions had resolved and appellant’s current symptoms were due to her
nonwork-related osteoarthritis of the patellofemoral joint of the left knee and obesity.

11

A.M.A., Guides (6th ed. 2009).

12

See 20 C.F.R. § 10.404.

13

Thomas P. Lavin, 57 ECAB 353 (2006).

14

Michael S. Mina, 57 ECAB 379, 385 (2006).

15

Veronica Williams, 56 ECAB 367 (2005) (a schedule award can be paid only for a condition related to an
employment injury; the claimant has the burden of proving that the condition for which a schedule award is sought
is causally related to his or her employment).
16

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.11 (February 2013).

5

Appellant requested schedule award compensation. She has the burden of proof to
establish that the condition for which a schedule award is being sought is causally related to her
employment.17
The Board finds that the medical evidence of record is insufficient to establish permanent
impairment to appellant’s left knee causally related to the accepted work injury.
In support of her claim for a schedule award appellant initially submitted a May 8, 2010
report from Dr. Grant who noted appellant’s March 10, 2004 work injury and found 19 percent
left leg permanent impairment due to lost ROM. However, this report is of limited probative
value as Dr. Grant failed to provide a medical explanation as to how appellant’s examination
findings were causally related to her accepted March 10, 2004 work injury.18
Appellant also submitted a June 2, 2015 report from Dr. Campbell who noted a history of
injury and the accepted conditions. Dr. Campbell rated appellant’s left leg under Table 16-3 of
the A.M.A., Guides, cruciate or collateral ligament injury. She opined that based upon the
allowed conditions in the claim, appellant’s history, the provided records, physical examination
and her professional evaluation, appellant had 10 percent permanent impairment of the left leg
under to the A.M.A., Guides. However, Dr. Campbell also provided insufficient explanation or
medical rationale as to how this condition and impairment was causally related to the resolved
employment injury and not due to preexisting osteoarthritis of the left knee and obesity.19 The
Board finds that Dr. Campbell’s reports failed to sufficiently explain how the claimed
impairment arose from the accepted work injury of March 10, 2004. The need for detailed
medical rationale is particularly important in a situation such as this where OWCP found, and the
Board previously affirmed, that all residuals of the accepted conditions had ceased.20
The medical evidence submitted does not establish that appellant has permanent
impairment to a scheduled member of the body causally related to her accepted injury.
Consequently appellant has not established entitlement to a schedule award. Appellant did not
submit any other medical evidence sufficient to establish a work-related condition that caused
physical impairment to a scheduled body member.
Appellant may request a schedule award or increased schedule award at any time based
on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.

17

Supra note 14.

18

See F.S., Docket No. 15-1884 (issued February 16, 2016) (appellant’s physician did not explain that appellant
had permanent impairment of a scheduled member as a result of the employment injury).
19

Alice J. Tysinger, 51 ECAB 638 (2000).

20

See W.J., Docket No. 2011-0495 (issued October 7, 2011 (where the Board noted after OWCP terminated
appellant’s compensation benefits appellant filed a claim for a schedule award and submitted an impairment rating.
The Board affirmed OWCP’s decision denying a schedule award because the physician failed to sufficiently explain
how the claimed impairment arose from the accepted work injury which had resolved).

6

CONCLUSION
The Board finds that appellant failed to establish permanent impairment warranting a
schedule award for the left leg.
ORDER
IT IS HEREBY ORDERED THAT the August 24, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 20, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, FCI MEMPHIS,
Memphis, TN, Employer
__________________________________________

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Appearances:
Daniel DeCiccio, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 21-0301
Issued: March 3, 2022

Case Submitted on the Record

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

JURISDICTION
On December 24, 2020 appellant, through counsel, filed a timely appeal from a
December 3, 2020 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
ISSUES
The issues are: (1) whether appellant has met his burden of proof to expand the acceptance
of the claim to include additional conditions of left knee primary osteoarthritis and a right medial
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the December 3, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

meniscus tear causally related to the accepted August 23, 2019 employment injury; and
(2) whether OWCP abused its discretion by denying appellant’s requests for authorization of a left
knee injection and right knee surgery.
FACTUAL HISTORY
On August 23, 2019 appellant, then a 49-year-old corrections officer, filed a traumatic
injury claim (Form CA-1) alleging that on that date he sustained injuries to his knees as a result of
a partial floor cave-in while in the performance of duty. OWCP accepted the claim for bilateral
knee contusions.
In a report dated September 5, 2019, Dr. Robert H. Miller, a Board-certified orthopedic
surgeon, diagnosed bilateral knee contusions. He noted that on August 23, 2019 appellant was
walking on an elevated floor when his right leg fell through the floor. Appellant landed on his
kneecaps. Since that time, he had significant pain in both knees, left worse than right. Appellant
told Dr. Miller that he had previous intermittent pain and swelling in the left knee requiring him
to use a cane and that he had been given a cane several years prior “for preexisting knee arthritis.”
A magnetic resonance imaging (MRI) scan of the left knee obtained on September 26, 2019
demonstrated a small free edge tear in the body of the lateral meniscus and mild and moderate
patellofemoral compartment osteoarthritis.
In a follow-up report dated January 30, 2020, Dr. Miller noted that an MRI scan of the left
knee demonstrated a small free edge tear in the body of the lateral meniscus and low -grade
chondral loss in the lateral compartment. He advised that appellant should treat his arthritis with
continued therapy, anti-inflammatories, a cortisone injection, and he would attempt to obtain
approval for a hyaluronic acid injection.
An MRI scan of appellant’s right knee obtained on February 13, 2020 demonstrated a
horizontal tear of the posterior horn and body of the medial meniscus and mild tricompartmental
osteoarthritis. It was also noted that the medial collateral ligament was thickened proximally
consistent with a remote injury.
In a follow-up report dated March 5, 2020, Dr. Miller noted that the MRI scan of
appellant’s right knee demonstrated a horizontal tear of the posterior horn body of the medial
meniscus and mild tricompartmental osteoarthritis. He recommended right knee surgery and a
hyaluronic acid injection to the left knee, to which appellant agreed.
On March 9, 2020 appellant requested authorization for right knee surgery.
In a development letter dated March 11, 2020, OWCP advised appellant that, at that time,
the proposed right knee surgery could not be approved. It found that the request for surgery did
not match his approved condition of right knee contusion. OWCP requested that appellant submit
a narrative report from his physician explaining how the new diagnosis of right knee meniscus tear
was causally related to the accepted traumatic injury. It afforded him 30 days to submit the
requested evidence.
On April 2, 2020 appellant requested authorization for a left knee injection.
2

In a development letter dated April 8, 2020, OWCP advised appellant that, at that time the
proposed left knee injections could not be approved. It found that the request for a left knee
injection did not match his approved condition of left knee contusion. OWCP requested that
appellant submit a narrative report from his physician explaining how the new diagnosis of left
knee osteoarthritis was causally related to the accepted traumatic injury. It afforded him 30 days
to submit the requested evidence. No response was received within the time allotted.
By decision dated May 18, 2020, OWCP denied appellant’s request to expand the
acceptance of his claim to include left knee primary osteoarthritis as causally related to the
accepted August 23, 2019 employment injury and denied his request for authorization for a left
knee injection.
By separate decision also dated May 18, 2020, OWCP denied appellant’s request to expand
the acceptance of his claim to include a right knee medial meniscus tear as causally related to the
accepted employment injury and denied his request for authorization for right knee surgery.
On June 2, 2020 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review.
On October 5, 2020, counsel submitted the results of a May 12, 2015 MRI scan, which
demonstrated minimal lateral compartment chondromalacia and minimal chondromalacia of the
patella and minimal signal in the posterior horn of the medial meniscus, likely reflecting
intrasubstance degeneration. He also enclosed a note dated September 30, 2020 from Dr. Miller
in which he described the results of the May 12, 2015 MRI scan.
A hearing was held on October 8, 2020. The hearing representative afforded appellant 30
days to submit additional medical evidence.
In a narrative report dated November 5, 2020, Dr. Miller noted that appellant’s claim was
currently accepted for bilateral knee contusions. He opined that the acceptance of the claim should
be expanded to include an aggravation of left knee primary osteoarthritis and a left la teral meniscus
tear, as well as a right horizontal tear of the posterior horn and body of the medial meniscus, which
was “possibly caused by the accident” and right knee osteoarthritis “possibly aggravated by the
accident.” Dr. Miller noted that, when appellant fell on August 23, 2019, he twisted his knees and
slammed into the floor, which due to appellant’s height and weight could have created sufficient
torque and force to tear the menisci in his knees and possibly aggravate his preexisting
degenerative arthritis. He noted that an MRI scan from 2015 did not show any tears in the menisci,
though there was a minimal signal in the posterior horn of the right medial meniscus. Dr. Miller
noted that there were no injuries between the 2015 MRI scan and the August 23, 2019 incident,
and no injuries after that incident. He stated that medical literature supported that trauma like the
type appellant experienced could make preexisting arthritis worse. Dr. Miller opined that the left
knee injections were necessary to avoid surgery.
By decision dated December 3, 2020, the hearing representative affirmed the May 18, 2020
decisions.

3

LEGAL PRECEDENT -- ISSUE 1
When an employee claims that a condition not accepted or approved by OWCP was due to
an employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury.3
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 4 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and an accepted injury must be based on a complete factual and
medical background. 5 Additionally, the physician’s opinion must be expressed in terms of a
reasonable degree of medical certainty and must be supported by medical rationale which, explains
the nature of the relationship between the diagnosed condition and the accepted employment
injury.6
Section 8103 of FECA provides that the United States shall furnish to an employee who is
injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree, or the period of disability, or aid in lessening the amount of the monthly compensation. 7
In interpreting this section of FECA, the Board has recognized that OWCP has broad discretion in
approving services provided under FECA. 8 OWCP has the general objective of ensuring that an
employee recovers from his or her injury to the fullest extent possible in the shortest amount of
time. It, therefore, has broad administrative discretion in choosing means to achieve this goal.
The only limitation on OWCP’s authority is that of reasonableness.9 Abuse of discretion is
generally shown through proof of manifest error, clearly unreasonable exercise of judgment, or
actions taken which are contrary to both logic and probable deductions from established facts. It
is not enough to merely show that the evidence could be construed so as to produce a contrary
factual conclusion.10

3

A.A., Docket No. 19-1165 (issued December 16, 2019); M.B., Docket No. 19-0485 (issued August 22, 2019); R.J.,
Docket No. 17-1365 (issued May 8, 2019); Jaja K. Asaramo, 55 ECAB 200 (2004).
4

E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

5

M.V., Docket No. 18-0884 (issued December 28, 2018); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

6

Id.

7

5 U.S.C. § 8103.

8

M.C., Docket No. 17-1615 (issued August 23, 2018).

9

Id.

10

Id.

4

ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to expand the acceptance of
the claim to include additional conditions of left knee primary osteoarthritis and a right medial
meniscus tear as causally related to the accepted August 23, 2019 employment injury.
In his September 5, 2019 report, Dr. Miller diagnosed bilateral knee contusions, and noted
that appellant had related he had been given a cane some years prior for preexisting left knee
arthritis. This report merely diagnosed the accepted bilateral knee contusions, but did not offer
Dr. Miller’s diagnosis of any other bilateral knee conditions. The Board has held that a medical
report lacking a firm diagnosis and a rationalized medical opinion that the medical condition is
causally related to the employment incident is of no probative value. 11 Therefore, Dr. Miller’s
report is insufficient to establish appellant’s request for expansion of the claim.
In a narrative report dated November 5, 2020, Dr. Miller noted that appellant’s claim was
currently approved for bilateral knee contusions. He opined that the acceptance of the case should
be expanded to include an aggravation of left knee primary osteoarthritis and a left lateral meniscus
tear, as well as a right horizontal tear of the posterior horn and body of the medial meniscus, which
was “possibly caused by the accident” and right knee osteoarthritis “possibly aggravated by the
accident.” Dr. Miller noted that, when appellant fell on August 23, 2019, he twisted his knees and
slammed into the floor, which due to appellant’s height and weight could have created sufficient
torque and force to tear the menisci in his knees and possibly aggravate his preexisting
degenerative arthritis. He noted that an MRI scan from 2015 did not show any tears in the menisci,
though there was a minimal signal in the posterior horn of the right medial meniscus. Dr. Miller
noted that there were no injuries between the 2015 MRI scan and the August 23, 2019 incident,
and no injuries after that incident. He stated that medical literature supported that trauma like the
type appellant experienced could make preexisting arthritis worse. Dr. Miller opined that the left
knee injections were necessary and could avoid surgery. The Board finds that Dr. Miller’s
November 5, 2020 report is insufficient to establish appellant’s request for expansion of the claim.
Dr. Miller’s explanation that appellant’s left knee osteoarthritis and right knee meniscal tear were
“possibly” secondary to the August 23, 2019 incident is speculative in nature. The Board has held
that medical opinions that are speculative or equivocal are of diminished probative value. 12 While
Dr. Miller provided a possible explanation as to how the incident of August 23, 2019 caused or
aggravated appellant’s left knee primary osteoarthritis and a right medial meniscus tear, his
opinion was couched in speculative terms, and did not fully address appellant’s history and
preexisting bilateral knee conditions. 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

11

J.P., Docket No. 20-0381 (issued July 28, 2020); R.L., Docket No. 20-0284 (issued June 30, 2020).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.5(c)(3); D.S., Docket No. 20-0384 (issued October 8, 2020); H.A., Docket No. 18-1455 (issued
August 23, 2019).

5

condition.13 In addition, while Dr. Miller noted that medical literature supported a finding that
appellant’s diagnosed conditions could have been caused by the type of trauma he experienced,
the Board has held that reliance on medical literature has little probative value in resolving medical
questions unless a physician shows the applicability of the general medical principles discussed in
the articles to the specific factual situation at issue in the case. 14 Therefore, Dr. Miller’s
November 5, 2020 report is insufficient to meet appellant’s burden of proof. 15
OWCP also received MRI scan reports. The Board, however, has held that diagnostic tests,
standing alone, lack probative value as they do not provide a physician’s opinion on whether there
is a causal relationship between appellant’s accepted employment incident/exposure and a
diagnosed condition.16 This evidence is, therefore, insufficient to establish expansion of his claim.
As the evidence of record is insufficient to establish causal relationship between his
additional diagnosed medical conditions and the accepted employment injury, appellant has not
met his burden of proof to expand the acceptance of his claim.
LEGAL PRECEDENT -- ISSUE 2
Section 8103(a) of FECA 17 provides that the United States shall furnish to an employee
who is injured while in the performance of duty, the services, appliances, and supplies prescribed
by or recommended by a qualified physician, which OWCP considers likely to cure, give relief,
reduce the degree or the period of disability, or aid in lessening the amount of the monthly
compensation. 18 While OWCP is obligated to pay for treatment of employment-related conditions,
the employee has the burden of proof to establish that the expenditure is incurred for treatment of
the effects of an employment-related injury or condition. 19
Section 10.310(a) of OWCP’s implementing regulations provide that an employee is
entitled to receive all medical services, appliances, or supplies which a qualified physician
prescribes or recommends and which OWCP considers necessary to treat the work-related injury.20
13

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).
14

S.J., Docket No. 20-0896 (issued January 11, 2021); R.G., Docket No. 18-0917 (issued March 9, 2020); T.S.,
Docket No. 18-1518 (issued April 17, 2019); K.U., Docket No. 15-1771 (issued August 26, 2016); Roger D. Payne,
55 ECAB 535 (2004).
15

See C.B., Docket No. 20-0464 (issued July 21, 2020).

16

See P.A., Docket No. 18-0559 (issued January 29, 2020); A.P., Docket No. 18-1690 (issued December 12, 2019);
R.M., Docket No. 18-0976 (issued January 3, 2019).
17

Supra note 1 at § 8103(a).

18

Id.; see D.S., Docket No. 18-0353 (issued May 18, 2020); L.D., 59 ECAB 648 (2008); Thomas W. Stevens, 50
ECAB 288 (1999).
19

M.P., Docket No. 19-1557 (issued February 24, 2020); M.B., 58 ECAB 588 (2007).

20

20 C.F.R. § 10.310(a); see D.W., Docket No. 19-0402 (issued November 13, 2019).

6

In interpreting section 8103 of FECA, the Board has recognized that OWCP has broad
discretion in approving services provided, with the only limitation on OWCP’s authority being
that of reasonableness.21 OWCP has the general objective of ensuring that an employee recovers
from his or her injury to the fullest extent possible, in the shortest amount of time. It therefore has
broad administrative discretion in choosing means to achieve this goal. 22
Abuse of discretion is shown through proof of manifest error, clearly unreasonable exercise
of judgment, or actions taken which are contrary to both logic and probable deductions from
established facts. It is not enough to merely show that the evidence could be construed so as to
produce a contrary factual conclusion.23
ANALYSIS -- ISSUE 2
The Board finds that OWCP did not abuse its discretion by denying appellant’s request
for authorization for a left knee injection and right knee surgery.
On March 9, 2020 appellant requested authorization for right knee surgery. On April 2,
2020 appellant requested authorization for a left knee injection.
In a January 30, 2020 report, Dr. Miller noted that an MRI scan of the left knee
demonstrated a small free edge tear in the body of the lateral meniscus and low-grade chondral
loss in the lateral compartment. He advised that appellant should treat his arthritis with continued
therapy, anti-inflammatories, a cortisone injection, and he would attempt to obtain approval for a
hyaluronic acid injection.
In a follow-up report dated March 5, 2020, Dr. Miller noted that the MRI scan of
appellant’s right knee demonstrated a horizontal tear of the posterior horn body of the medial
meniscus and mild tricompartmental osteoarthritis. He recommended right knee surgery and a
hyaluronic acid injection to the left knee, to which appellant agreed.
In a narrative report dated November 5, 2020, Dr. Miller opined that the left knee
injections were necessary to avoid surgery.
As noted, the only restriction on OWCP’s authority to authorize medical treatment is one
of reasonableness. 24 In the instant case, appellant did not submit evidence to support that the
requested left knee injection and right knee surgery were medically necessary to treat his accepted
conditions. The Board thus finds that OWCP did not abuse its discretion by denying her request
21

B.I., Docket No. 18-0988 (issued March 13, 2020); see also Daniel J. Perea, 42 ECAB 214, 221 (1990) (holding
that abuse of discretion by OWCP is generally shown through proof of manifest error, clearly unreasonable exercise
of judgment, or administrative actions which are contrary to both logic, and probable deductions from established
facts).
22

D.S., Docket No. 18-0353 (issued May 18, 2020).

23

Id.; P.L., Docket No. 18-0260 (issued April 14, 2020); L.W., 59 ECAB 471 (2008).

24

Supra note 22; see also A.W., Docket No. 14-0708 (issued January 2, 2015).

7

for authorization for physical therapy. 25 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 expand the acceptance of
the claim to include additional conditions of left knee primary osteoarthritis a nd a right medial
meniscus tear as causally related to the accepted August 23, 2019 employment injury. The Board
further finds that OWCP did not abuse its discretion by denying appellant’s requests for
authorization of a left knee injection and right knee surgery.
ORDER
IT IS HEREBY ORDERED THAT the December 3, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 3, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

25

D.C., Docket No. 18-0080 (issued May 22, 2018); B.J., Docket No. 17-1825 (issued February 23, 2018).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
MINNEAPOLIS VA MEDICAL CENTER,
Minneapolis, MN, Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 21-1159
Issued: March 7, 2022

Case Submitted on the Record

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

JURISDICTION
On June 7, 2021 appellant, through counsel, filed a timely appeal from a May 26, 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.

1

ISSUE
The issue is whether appellant has met his burden of proof to establish a right elbow
condition causally related to the accepted March 2, 2020 employment incident.
FACTUAL HISTORY
On March 4, 2020 appellant, then a 48-year-old supply technician, filed a traumatic injury
claim (Form CA-1) alleging that on March 2, 2020 he was maneuvering a cart, which was difficult
to push and steer, when he experienced a shooting pain from his elbow to his fingers, while in the
performance of duty. He stopped work on March 2, 2020 and returned to work on March 4, 2020.
On the reverse side of the claim form appellant’s supervisor acknowledged that appellant was
injured while in the performance of duty.
Appellant submitted a form dated March 6, 2020 from Dr. Fardows Omar Salim, a family
medicine specialist, who noted a March 2, 2020 date of injury and provided work restrictions.
OWCP also received an imaging report dated March 10, 2020 from Dr. Kyle Shipley, a
Board-certified diagnostic radiologist, which related an impression of mild distal biceps and
common extensor tendinopathy.
Appellant submitted a work capacity form dated March 11, 2020 from Dr. Elizabeth
Moorhead, a Board-certified internist. Dr. Moorhead related that appellant was injured on
March 2, 2020 and diagnosed right ulnar neuropathy and right lateral epicondylitis. He noted
appellant’s work restrictions and limited him to four hours of work a day.
In a development letter dated March 23, 2020, OWCP informed appellant of the
deficiencies of his claim. It informed him of the type of factual and medical evidence needed and
provided him with a questionnaire. OWCP afforded appellant 30 days to submit the necessary
evidence.
In response, appellant submitted a medical report dated March 4, 2020 from Dr. Salim.
Dr. Salim related that appellant was pushing and steering a crash cart with bad wheels at work and
reinjured his right elbow. She related that appellant had previously injured the same elbow at work
in April 2019 when he struck his elbow on metal shelving.3 Dr. Salim provided an assessment of
right elbow pain and noted that there concern regarding a fracture versus a nerve injury; therefore,
appellant would undergo an x-ray and magnetic resonance imaging (MRI) scan.
By decision dated May 6, 2020, OWCP accepted that the March 2, 2020 employment
incident occurred, as alleged. However, it denied appellant’s claim, finding that he had not
submitted medical evidence containing a medical diagnosis in connection with his accepted

3

Appellant has a prior claim under OWCP File No. xxxxxx929 alleging that on April 11, 2019 he was stocking a
storeroom, lifting heavy boxes and putting them on shelves, when he struck his elbow against the metal shelves.
OWCP denied that claim by decisions dated August 29 and December 17, 2019. Appellant’s claims have not been
administratively combined by OWCP.

2

employment incident. It concluded, therefore, that the requirements had not been met to establish
an injury as defined by FECA.
On April 13, 2021 appellant, through counsel, requested reconsideration of OWCP’s
May 6, 2020.
In a letter dated March 30, 2021, Dr. Moorhead related that, on April 11, 2019, appellant
was carrying boxes when he struck the posterior side of his elbow on a shelf. She noted that an
electromyogram (EMG) performed on September 3, 2019 showed a mild right ulnar sensory
mononeuropathy, and an MRI scan performed on December 9, 2019 showed mild lateral
epicondylitis. Dr. Moorhead diagnosed lateral epicondylitis, ulnar neuropathy, and right elbow
pain.
By decision dated May 26, 2021, OWCP modified its May 6, 2020 decision and found that
appellant had established a diagnosed medical condition, but denied appellant’s claim as causal
relationship had not been established between the diagnosed right elbow condition and the
accepted employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA 4 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, 5 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. 6 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.7
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 and place, and in the manner alleged. The second component is
whether the employment incident caused a personal injury. 8

4

Supra note 2.

5

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).
6

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).
7

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).
8

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).

3

The medical evidence required to establish a causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 9 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 specific employment factors
identified by the employee. 10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a right elbow
condition causally related to the accepted March 2, 2020 employment incident.
Appellant was initially seen by Dr. Salim on March 4, 2020 who related appellant’s history
of the alleged March 2, 2020 injury, and noted that appellant had previously injured his right elbow
at work in April 2019 when he struck his elbow on metal shelving. Dr. Salim assessed right elbow
pain. The Board has held that pain is a description of a symptom, not a firm diagnosis of a medical
condition.11 Moreover, Dr. Salim did not provide an opinion with regard to causal relationship.
In a form report dated March 6, 2021, she noted appellant’s work restrictions, but again did not
provide a firm diagnosis or an opinion regarding causal relationship. The Board has held that a
medical report lacking a firm diagnosis or an opinion on causal relationship is of no probative
value.12 As such, these reports are insufficient to meet appellant’s burden of proof.
In a report dated March 11, 2020, Dr. Moorhead related that appellant was injured on
March 2, 2020. She diagnosed right ulnar neuropathy and right lateral epicondylitis. However,
Dr. Moorhead merely repeated the history of injury as reported by appellant without providing her
own opinion regarding whether appellant’s condition was work related. OWCP also received a
March 30, 2021 report wherein Dr. Moorhead related that on April 11, 2019 appellant was
carrying boxes when he struck the posterior side of his elbow on a shelf. Dr. Moorhead related
diagnoses of lateral epicondylitis, ulnar neuropathy, but did not provide an opinion on causal
relationship. As noted, the Board has held that a medical report lacking an opinion on causal
relationship is of no probative value. 13 As such, this evidence is also insufficient to establish the
claim.

9

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).
10

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
11

D.R., Docket No. 18-1408 (issued March 1, 2019); D.A., Docket No. 18-0783 (issued November 8, 2018).

12

See J.P., Docket No. 20-0381 (issued July 28, 2020); R.L., Docket No. 20-0284 (issued June 30, 2020); L.B.,
Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
13

Id.

4

Appellant also submitted diagnostic studies. The Board has long held that diagnostic
studies, standing alone, lack probative value on the issue of causal relationship as they do not
address whether the employment incident caused a diagnosed condition. 14
As the medical evidence of record is insufficient to establish causal relationship between a
diagnosed right elbow condition and the accepted employment incident, the Board finds that
appellant 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. 15
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a right elbow
condition causally related to the March 2, 2020 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the May 26, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 7, 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

14

J.P., Docket No. 19-0216 (issued December 13, 2019); A.B., Docket No. 17-0301 (issued May 19, 2017).

15

Upon return of the case record, OWCP should consider administratively combining this case record with the prior
record for OWCP File No. xxxxxx929.

5