United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Antonio, TX, Employer
__________________________________________

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

Docket No. 18-1049
Issued: December 31, 2018

Case Submitted on the Record

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

JURISDICTION
On April 26, 2018 appellant filed a timely appeal from February 15 and April 2, 2018 merit
decisions 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

1
2

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether appellant has met her burden of proof to establish permanent
impairment of a scheduled member, due to her accepted bilateral carpal tunnel syndrome,
warranting a schedule award.
FACTUAL HISTORY
On March 7, 2013 appellant, then a 42-year-old rural carrier, filed an occupational disease
claim (Form CA-2) alleging that she suffered from carpal tunnel syndrome and other tenosynovitis
of the hand and wrist as a result of sorting, casing, loading, and delivering mail at work. She noted
that she first became aware of her condition on February 21, 2013 and realized that it resulted from
factors of her federal employment on October 29, 2012. Appellant stopped work on
March 7, 2013. OWCP accepted her claim for bilateral carpal tunnel syndrome. It paid wage-loss
compensation beginning March 7, 2013.
On August 11, 2014 appellant returned to modified-duty work for four hours per day. She
returned to full-time modified-duty work on March 13, 2015.
On August 10, 2017 appellant filed a claim for a schedule award (Form CA-7).3
By development letter dated August 24, 2017, OWCP advised appellant of the type of
evidence needed to establish her schedule award claim. It requested that she provide an
impairment rating in accordance with the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).4 It afforded appellant 30
days to submit the requested information.
In a September 22, 2017 report, Dr. Paul Chubb, an osteopathic physician who specializes
in orthopedic hand surgery, discussed appellant’s history of injury and related that she still
complained of pain and occasional numbness going down the left elbow into her hand. Upon
physical examination of appellant’s left arm, he observed tenderness over the lateral condyle and
proximal forearm over the radial tunnel. Range of motion was slow. Neurological and sensory
examinations were intact. Dr. Chubb diagnosed bilateral elbow ulnar nerve entrapment and
bilateral carpal tunnel syndrome. He completed duty status reports (CA-17 forms) dated
August 25 and September 22, 2017 which indicated that appellant could work light duty.
Appellant continued to seek treatment from Dr. Chubb. In reports dated October 31, 2017
to January 19, 2018, he related appellant’s complaints of continued numbness and tingling on the
dorsum of her forearms and hands. Upon physical examination of appellant’s bilateral hands,
Dr. Chubb observed full range of motion of the digits and elbows. Neurological and sensory
examinations were intact. Dr. Chubb diagnosed bilateral elbow ulnar nerve entrapment and
bilateral carpal tunnel syndrome. In a November 28, 2017 report, he explained that he believed

3

Appellant filed additional claims for a schedule award on November 6 and December 1, 2017.

4

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

2

appellant’s carpal and cubital tunnel symptoms were resolved. Dr. Chubb opined that appellant’s
forearm pain and tingling may be related to her spinal stenosis.
Dr. Chubb also completed an October 31, 2017 Form CA-17, which indicated that
appellant could work light duty. In CA-17 forms dated November 28 and December 22, 2017, he
related that appellant could work with no restrictions.
OWCP received hospital records and operative reports dated March 20, 2017, which
indicated that appellant underwent a right carpal tunnel release repair and cubital tunnel
decompression surgery.
A January 9, 2018 electromyography (EMG) and nerve conduction velocity (NCV) study
report showed an essentially normal electrodiagnostic study of the left upper extremity.
By decision dated February 15, 2018, OWCP denied appellant’s schedule award claim. It
found that the medical evidence of record was insufficient to establish permanent impairment of a
scheduled member as a result of her accepted bilateral carpal tunnel syndrome. OWCP noted that
appellant did not submit evidence showing a measurable permanent impairment due to her
accepted condition.
On March 5, 2018 appellant requested reconsideration. She related that she had a total of
eight surgeries on her hands and noted that she was submitting a new EMG study.
In a March 20, 2018 report, Dr. Chubb related that appellant still had symptoms of her
fingertips and numbness throughout the left cubital tunnel. He reviewed appellant’s history and
conducted an examination of appellant’s bilateral upper extremities. Dr. Chubb noted full range
of motion and intact neurological examination. He diagnosed left arm numbness and tingling,
bilateral ulnar nerve entrapment, and bilateral carpal tunnel syndrome. Dr. Chubb reported that
appellant had recovered from her bilateral carpal tunnel syndrome, but still had work restrictions
with regard to her back condition.
OWCP also received several reports previously of record.
In a December 17, 2014 report, Dr. Hung Q. Vu, an orthopedic surgeon, indicated that
appellant sustained a work-related injury of bilateral carpal tunnel syndrome and reviewed her
history. Dr. Vu reported physical examination findings of decreased weakness in appellant’s right
wrist. Neurological examination demonstrated decreased sensation and grip strength of both
hands. Dr. Vu related that appellant could work with restrictions and completed a work capacity
evaluation form (Form OWCP-5c).
Appellant submitted health records and an operative report dated June 26, 2017, which
indicated that appellant underwent left carpal tunnel release repair and left cubital tunnel
decompression surgery.
By decision dated April 2, 2018, OWCP denied modification of is February 15, 2018
schedule award decision. It found that appellant had not submitted sufficient medical evidence to
establish permanent impairment due to her accepted bilateral carpal tunnel condition.

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LEGAL PRECEDENT
The schedule award provisions of FECA5 and its implementing regulations 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. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. The method
used in making such determination is a matter which rests in the sound discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. The A.M.A., Guides has
been adopted by OWCP as a standard for evaluation of schedule losses and the Board has
concurred in such adoption.6 For schedule awards after May 1, 2009, the impairment is evaluated
under the sixth edition of the A.M.A., Guides, published in 2009.7
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).8 In addressing impairment for the upper extremities, the sixth edition of the
A.M.A., Guides requires identifying the impairment class of diagnosis (CDX) condition, which is
then adjusted by grade modifiers based on functional history (GMFH), physical examination
(GMPE), and clinical studies (GMCS).9 The net adjustment formula is (GMFH-CDX) + (GMPECDX) + (GMCS-CDX).10
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in
Table 15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant
text.11 In Table 15-23, grade modifier levels (ranging from zero to four) are described for the
categories of test findings, history, and physical findings. The grade modifier levels are averaged
to arrive at the appropriate overall grade modifier level and to identify a default rating value. The
default rating value may be modified up or down based on functional scale, an assessment of
impact on daily living activities.12

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404 (1999); see also Jacqueline S. Harris, 54 ECAB 139 (2002).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.806.6.6a (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2
and Exhibit 1 (January 2010).
8

A.M.A., Guides 3, section 1.3, The International Classification of Functioning, Disability and Health (ICF): A
Contemporary Model of Disablement (6th ed. 2009).
9

A.M.A., Guides 385-419; see M.P., Docket No. 13-2087 (issued April 8, 2014).

10

Id. at 411.

11

Id. at 449.

12

Id. at 448-449.

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It is the claimant’s burden of proof to establish permanent impairment of the scheduled
member or function of the body as a result of an employment injury.13 OWCP procedures provide
that, to support a schedule award, the file must contain competent medical evidence which shows
that the impairment has reached a permanent and fixed state and indicates the date on which this
occurred (date of MMI), describes the impairment in sufficient detail so that it can be visualized
on review, and computes the percentage of impairment in accordance with the A.M.A., Guides.14
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member, due to her accepted bilateral carpal tunnel syndrome,
warranting a schedule award.
In support of her claim, appellant submitted several reports by Dr. Chubb dated
September 22, 2017 to March 20, 2018. Dr. Chubb reviewed appellant’s history of injury and
provided physical examination findings. He diagnosed left arm numbness and tingling, bilateral
ulnar nerve entrapment, and bilateral carpal tunnel syndrome. In a November 28, 2017 report,
Dr. Chubb opined that appellant’s carpal and cubital tunnel symptoms had resolved and indicated
that appellant could work full duty. He, however, did not provide a date of maximum medical
improvement nor address permanent impairment pursuant to the A.M.A., Guides. Dr. Chubb did
not reach a conclusion with regard to appellant’s permanent impairment due to her accepted
bilateral carpal tunnel condition. These reports, therefore, do not establish permanent impairment
of a scheduled member or function of the body causally related to her accepted bilateral carpal
tunnel syndrome.15 Likewise, the January 9, 2018 EMG/NCV study report and hospital records
and operative reports dated March 20 and June 26, 2017 also do not contain a conclusion or an
opinion with regard to appellant’s permanent impairment. As none of these physicians provided
an estimate of impairment to appellant’s upper extremities, their reports are insufficient to establish
appellant’s schedule award claim.16
As noted above, OWCP procedures provide that to support a schedule award, the file must
contain medical evidence which shows that the impairment has reached a permanent and fixed
state, indicates the date on which this occurred, describes the impairment in sufficient detail so
that it can be visualized on review, and computes the percentage of permanent impairment in
accordance with the A.M.A., Guides.17 The Board finds that in this case there is no current medical
report of record that provides an impairment rating. Accordingly, there is no medical evidence
warranting a schedule award.

13

Tammy L. Meehan, 53 ECAB 229 (2001).

14
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5 (March 2017).
15

See M.M., Docket No. 18-0292 (issued July 9, 2018).

16

20 C.F.R. § 10.404 (1999); see also Jacqueline S. Harris, 54 ECAB 139 (2002).

17

Supra note 14.

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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 employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member, due to her accepted bilateral carpal tunnel syndrome,
warranting a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the April 2 and February 15, 2018 merit decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: December 31, 2018
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lancaster, PA, Employer
__________________________________________

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Appearances:
Gordon Reiselt, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-2002
Issued: June 16, 2009

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 July 14, 2008 appellant filed a timely appeal from a June 23, 2008 decision of an
Office of Workers’ Compensation Programs’ hearing representative who affirmed the
termination of her compensation benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether the Office met its burden of proof to terminate appellant’s
compensation benefits effective January 25, 2008.
FACTUAL HISTORY
On June 10, 2000 appellant, then a 49-year-old letter carrier, filed an occupational disease
claim alleging a low back and right knee condition as a result of her federal duties, which
included walking, driving, lifting, pulling and pushing. The Office accepted that she sustained
an aggravation of her underlying spondylosis and osteoarthrosis of the right knee. On June 24,

2000 appellant stopped work for a nonwork-related medical condition. On August 21, 2001 she
returned to work as a letter carrier in a modified position with physical restrictions.
In a decision dated May 31, 2005, the Office denied appellant’s claim for a recurrence of
total disability from April 4 through 8, 2005. Appellant returned to her modified position on
April 8, 2005. By decision dated December 21, 2005, an Office hearing representative affirmed
the denial of the recurrence claims. However, the case was remanded for further development
with regard to appellant’s claim for medical treatment of the accepted conditions.
In a November 1, 2006 report, Dr. Robert A. Smith, a Board-certified orthopedic surgeon
and Office referral physician, noted the history of injury, reviewed the medical record and
presented findings on examination. He noted x-rays of the lumbar spine showed extensive
degenerative disease and spondylosis in the spine, particularly at L4-5 with degenerative
spondylolisthesis at that level. Dr. Smith also noted x-rays of the right knee showed severe
triocompartmental arthritis which was consistent with her prior nonindustrial injuries, chronic
instability of the knee and multiple surgeries. He noted that appellant’s claim was accepted for
aggravation of underlying spondylosis and arthrosis of the right knee, which he described as a
limited and temporary aggravation related to her work activity. Dr. Smith stated that there was
nothing on clinical examination or on diagnostic studies to establish that appellant sustained a
permanent aggravation of her back or knee arthritis. He advised that appellant required no
further treatment or diagnostic testing related to the temporary aggravation of her arthritis.
Appellant’s current symptoms were related to her preexisting spondylosis and arthritis.
Dr. Smith recommended restricted duty on a permanent basis, but noted such restrictions were
related to appellant’s preexisting arthrosis and spondylosis and not due to her federal
employment.
On November 8, 2006 the Office proposed terminating appellant’s compensation
benefits, finding that the weight of the medical evidence established that appellant no longer had
any continuing disability or residuals of the accepted employment factors.
In a December 5, 2006 report, Dr. Douglas S. Tase, a Board-certified orthopedic surgeon
and treating physician, opined that appellant continued to have work-related aggravation of her
underlying degenerative disease of the spine and right knee. He had treated her since May 31,
2000 for degenerative spondylolisthesis, a common finding in women of middle age, but which
was rendered symptomatic by lifting and standing at work. Dr. Tase stated that appellant had an
anterior cruciate ligament (ACL) injury, which led to the development of degenerative arthritis in
her knee. He advised that the walking and standing in her work caused her arthritis to become
symptomatic. Dr. Tase explained that her normal work duties aggravated her underlying back
and knee conditions and that her symptoms were more than likely permanent. Any return to
normal duty would reaggravate her symptoms such that work would become intolerable.
Dr. Tase noted that appellant was placed on a light-duty restriction and advised that it was only
because of her restrictions that she was able to work. He found it unlikely that surgery would
offer any relief or return her to regular duty.
By decision dated December 12, 2006, the Office terminated appellant’s medical and
wage-loss benefits effective December 12, 2006.

2

By letter dated December 27, 2006, appellant disagreed with the Office’s December 12,
2006 decision and requested an oral hearing, which was held telephonically on April 13, 2007.
By decision dated July 19, 2007, an Office hearing representative found that there was a conflict
in medical opinion between Dr. Smith and Dr. Tase as to whether appellant’s work duties caused
a temporary or permanent aggravation of her preexisting low back and right knee conditions.
The case was remanded for development of the factual and medical evidence. The hearing
representative noted that the record did not list a permanent aggravation of preexisting conditions
as being an accepted condition and instructed the Office to clarify the statement of accepted
facts.
In an updated July 30, 2007 statement of accepted facts, the Office indicated that it
accepted that appellant sustained a permanent aggravation of her underlying spondylosis and
osteoarthrosis of the right knee.1 Thereafter, on October 24, 2007, it referred appellant to
Dr. John F. Perry, a Board-certified orthopedic surgeon, for an impartial medical examination to
resolve the conflict in medical evidence as to whether she sustained an aggravation of her
underlying conditions of spondylosis and right knee osteoarthritis. In its questions to the
impartial specialist, the Office requested that the referee physician: establish the diagnosis of the
back and right knee; determine whether the diagnosed conditions were medically connected to
the factors of employment as described in the statement of accepted facts either by direct cause,
aggravation, precipitation or acceleration; if aggravation was indicated, to explain with medical
rationale whether it was temporary or permanent; and, if appellant still had an aggravation of her
underlying conditions, to describe the limitations resulting from the work-related disability as
well as any restrictions attributable to preexisting conditions.
In a November 19, 2007 report, Dr. Perry reviewed appellant’s history and medical
records and noted the results of his examination. He diagnosed status post failed anterior
cruciate ligament reconstruction of the right knee with posterior and anterior cruciate
insufficiency and chronic instability, osteoarthritis of the right knee and osteoarthritis of the
lumbar spine. Based on the history of no trauma and the physical examination, Dr. Perry found
that appellant’s problems were not caused by her work but rather due to progressive degeneration
in the lumbar spine while the anterior cruciate deficiency of her right knee developed into severe
osteoarthritis. He explained that an actual history of anterior cruciate deficient knees is to tear
the menisci and develop degenerative arthritis. Dr. Perry stated that this happens to every
anterior cruciate deficient knee eventually and appellant had gone through that process. There
was no evidence that anything appellant did accelerated or changed the natural history of her
problem. Dr. Perry opined that appellant’s right knee condition was related to her previous
anterior cruciate ligament surgery, which was a failure. He stated that a chronic posterior
cruciate ligament could produce some arthritis but an anterior cruciate ligament insufficiency
always did. Dr. Perry stated that appellant’s lumbar spine condition was not caused by lifting,
carrying or other occupational activities. He noted studies had been conducted to try to correlate
radiologic changes of degeneration of the spine, which are indicators of arthritis, with work
activities and no correlation had been identified. Dr. Perry stated that individuals with arthritis
may have an increase in their symptoms while active; however, he advised this did not result in
1

The Office’s August 14, 2006 statement of accepted facts listed the accepted conditions as an aggravation of
underlying spondylosis and osteoarthrosis of the right knee.

3

permanent impairment. It simply was a symptomatic response to increased activity in
conjunction with progressive wearing of the joints. Dr. Perry concluded that there was no
evidence of any permanent aggravation of the accepted conditions due to appellant’s
employment.
On December 26, 2007 the Office issued a notice of proposed termination of appellant’s
compensation benefits based on Dr. Perry’s opinion. In a January 14, 2008 letter, appellant’s
attorney contested the medical evidence.
By decision dated January 25, 2008, the Office terminated appellant’s compensation
benefits effective January 25, 2008. On January 31, 2008 appellant requested a review of the
written record.
By decision dated June 23, 2008, an Office hearing representative affirmed the Office’s
January 25, 2008 termination decision.
LEGAL PRECEDENT
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.2 After it has determined that an
employee has disability causally related to his federal employment, the Office may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.3 The Office’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.4 The right to
medical benefits for an accepted condition is not limited to the period of entitlement to
compensation for disability.5 To terminate authorization for medical treatment, the Office must
establish that appellant no longer has residuals of an employment-related condition, which
require further medical treatment.6
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee of the Secretary shall
appoint a third physician who shall make an examination.7 It is well established that, when a
case is referred to an impartial medical specialist for the purpose of resolving a conflict, the

2

Paul L. Stewart, 54 ECAB 824 (2003).

3

Elsie L. Price, 54 ECAB 734 (2003).

4

See Del K. Rykert, 40 ECAB 284 (1988).

5

Jaja K. Asaramo, 55 ECAB 200 (2004); Furman G. Peake, 41 ECAB 361 (1990).

6

T.P., 58 ECAB __ (Docket No. 07-60, issued May 10, 2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

7

F.R., 58 ECAB __ (Docket No. 05-15, issued July 10, 2007); Regina T. Pellecchia, 53 ECAB 155 (2001);
5 U.S.C. § 8123(a).

4

opinion of such specialist, if sufficiently well rationalized and based on a proper factual and
medical background, must be given special weight.8
ANALYSIS
The Office accepted appellant’s claim for an aggravation of her underlying spondylosis
and osteoarthrosis of the right knee causally related to her letter carrier duties. Appellant has
worked in a modified position with restrictions since August 21, 2001. The Office referred her
for a second opinion evaluation. Dr. Smith, in a November 1, 2006 report, opined that appellant
had recovered from the effects of the aggravation of her underlying spondylosis and arthrosis of
the right knee, which he advised was temporary. Dr. Tase, appellant’s treating physician, opined
that she continued to experience work-related aggravation of her underlying degenerative spine
disease and right knee osteoarthritis. He opined that the aggravation was likely permanent in
nature. The Office hearing representative, on July 19, 2007, properly found that there was a
conflict between appellant’s treating physician and the second opinion physician regarding
whether the aggravation of appellant’s accepted conditions was temporary or permanent. The
Board finds the Office properly referred appellant’s case to Dr. Perry, for an impartial medical
examination.9
Dr. Perry was provided a list of questions as well an amended statement of accepted
facts. The Board notes that the claims examiner inadvertently modified the statement of
accepted facts on July 30, 2007 to reflect that appellant had sustained a permanent aggravation of
the accepted conditions. Chapter 2.809.4(c) of the Office’s procedure manual states:
“[T]he [statement of accepted facts] is the means by which factual findings, which
are the sole responsibility of the [claims examiner], are separated from medical
findings and opinions, which are the province of the medical professional. This
separation of functions will ensure that the [claims examiner] does not
inadvertently make medical decisions.”10
Since the question to be resolved by the impartial medical examiner was whether the workrelated aggravation of the accepted conditions was temporary or permanent, it was an error for
the claims examiner to make such a medical determination in the statement of accepted facts.
However, the Board finds this error in the statement of accepted facts was harmless as Dr. Perry,
the impartial medical specialist, was clearly apprised in the list of questions that the nature of the
conflict to be resolved was whether the accepted aggravation of underlying spondylosis or
osteoarthritis of the right knee was temporary or permanent. Specifically, the Office requested
that the referee physician determine whether the diagnosed conditions were medically connected
to the factors of employment either by direct cause, aggravation, precipitation or acceleration

8

Darlene R. Kennedy, 57 ECAB 414 (2006).

9

Id.

10

Federal (FECA) Procedural Manual, Part 2 -- Claims, Statement of Accepted Facts, Chapter 2.809.4(c)
(June 1995).

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and, if aggravation was indicated, to explain with medical rationale whether the aggravation was
temporary or permanent.
The Board finds that Dr. Perry, the impartial medical specialist and Board-certified
orthopedic surgeon, based his opinion on a proper factual and medical background. The Office
provided him with appellant’s medical record, a statement of accepted facts and questions to be
addressed in resolving the conflict of medical opinion between Dr. Smith and Dr. Tase.
Dr. Perry reviewed appellant’s history, noted her current complaints, set forth findings on
examination of appellant and addressed the questions presented.
Dr. Perry opined that the progressive degenerative condition in appellant’s lumbar spine
and her right knee, which had gone on to severe osteoarthritis, were not caused or permanently
aggravated by her federal employment. He explained that an anterior cruciate deficient knee was
one in which the menisci was torn and where degenerative arthritis typically develops. Dr. Perry
stated that appellant had gone through the degenerative arthritis process and there was no
indication anything she did accelerated or changed the nature of her condition. He stated that
appellant’s right knee was related to her previous anterior cruciate ligament surgery, which he
characterized as a failure. Dr. Perry found that appellant’s lumbar spine problem was not caused
by her occupational activities. He stated that there was no evidence that appellant sustained a
permanent aggravation due to employment factors and the increase in symptoms while she was
active was simply a symptomatic response to increased activity in conjunction with progressive
wearing of the joints. Dr. Perry addressed medical studies that did not correlate arthritis of the
spine to work activities. He found no basis on which to attribute any continuing condition or
symptoms to appellant’s work.
Dr. Perry offered a medical opinion that is sound, rational and logical. Because the
opinion of the impartial medical specialist is based on a proper history and is sufficiently
rationalized, the Board finds that it must be accorded special weight in resolving the conflict. As
the weight of the medical opinion evidence supports that the employment-related aggravation of
appellant’s accepted conditions resolved, the Board finds that the Office met its burden of proof
in terminating appellant’s compensation benefits effective January 25, 2008.
CONCLUSION
The Board finds that the Office met its burden of proof in terminating appellant’s
compensation benefits effective January 25, 2008.

6

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs
decision dated June 23, 2008 is affirmed.
Issued: June 16, 2009
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.O., Appellant
and
DEPARTMENT OF TRANSPORTATION,
U.S. MERCHANT MARINE ACADEMY,
Kings Point, NY, Employer
__________________________________________

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

Docket No. 20-0360
Issued: November 5, 2020

Case Submitted on the Record

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

JURISDICTION
On December 3, 2019 appellant filed a timely appeal from a November 7, 2019 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP).1 The most recent merit
decision in this case was an October 10, 2018 Board decision.2 As there was no merit decision
issued by OWCP within 180 from the filing of this appeal, pursuant to the Federal Employees’

1
Appellant timely requested oral argument before the Board. 20 C.F.R. § 501.5(b). By order dated November 2,
2020, the Board exercised its discretion and denied the request, finding that the arguments on appeal could adequately
be addressed based on the case record. Order Denying Request for Oral Argument, Docket No. 19-0665 (issued
November 2, 2020). The Board’s Rules of Procedure provides that an appeal in which a request for oral argument is
denied by the Board will proceed to a decision based on the case record and the pleadings submitted. 20 C.F.R.
§ 501.5(b).
2
The decision of the Board became final after 30 days of issuance, and is not subject to further review. 20 C.F.R.
§ 501.6(d).

Compensation Act (FECA)3 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction
over the merits of this case.4
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board.5 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On May 1, 2017 appellant, then a 59-year-old security officer, filed an occupational disease
claim (Form CA-2) alleging that exposure to toxic substances at the site of the World Trade Center
(“Ground Zero”) shortly after the September 11, 2001 terrorist attacks caused a malignant
neoplasm of the right choroid. He noted that he was first diagnosed with cancer on November 25,
2014 by Dr. Paul T. Finger, a Board-certified ophthalmologist.
Appellant was separated from employment, effective August 30, 2008. OWCP paid his
wage-loss compensation and medical benefits on the periodic rolls under OWCP File No.
xxxxxx614, for injuries sustained on December 3, 2004 while arresting a suspect.
In statements dated June 14, 2017, appellant asserted that it was his duty to report to Ground
Zero immediately after the September 11, 2001 attacks. He provided an undated employing
establishment award to unspecified personnel for their actions from September 11 to 19, 2001.
Appellant also provided his official position description, and medical literature regarding cancer
diagnoses following exposures to various toxins at Ground Zero.
The employing establishment provided several supervisory statements contending that
appellant did not participate in official operations at Ground Zero following the September 11,
2001 attacks.
By decision dated August 10, 2017, OWCP denied appellant’s claim, finding that fact of
injury had not been established.
On August 22, 2017 appellant requested reconsideration. He submitted statements dated
from September 21 to November 10, 2017 contending that he was officially authorized to visit
3

5 U.S.C. § 8101 et seq.

4
The Board notes that, following the issuance of the November 7, 2019 decision, OWCP received additional
evidence. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence
in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be
considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from
reviewing this additional evidence for the first time on appeal. Id.
5
Docket No. 18-0558 (issued October 10, 2018), petition for reconsideration denied, Docket No. 18-0558 (issued
August 12, 2019); Order Dismissing Appeal, Docket No. 18-0355 (issued January 31, 2018).

2

One Police Plaza following the September 11, 2001 attacks as part of assigned intelligence
gathering activities. Appellant asserted that the employing establishment officials who
controverted his claim were not in his chain of command. He alleged that he frequently
communicated with state and federal law enforcement officials as part of his official duties, and
that he was in charge of communicating with the governor’s office to establish a federally staffed
security perimeter for the employing establishment following the September 11, 2001 attacks.
Appellant also provided an April 6, 2016 affidavit from K.V., an emergency management
technician, who recalled that during a telephone call on September 11, 2001, appellant advised
that he was at Ground Zero. In a September 22, 2015 affidavit, M.M., appellant’s former partner
in the New York Police Department (NYPD), recalled that on several occasions between
September 15 and October 30, 2001, appellant met him at Ground Zero “in his capacity as police
chief of a federal agency.”
The employing establishment provided additional supervisory statements. Supervisor J.J.
contended in a September 6, 2017 statement that appellant would have had to have been on an
official participation record sheet of personnel authorized to be part of any of the trips to Ground
Zero, which he could not confirm. Supervisor E.W. provided a September 12, 2017 statement
emphasizing that he had no recollection that appellant was a part of any official waterborne or onsite support activities. In a letter dated September 13, 2017, the employing establishment
contended that there were no records, which indicated that appellant participated in any official
activities at or near Ground Zero. Human Resources Specialist R.V. noted in an October 16, 2017
e-mail that appellant was not assigned to gather or share intelligence with any law enforcement
agency after the September 11, 2001 attacks.
By decision dated November 21, 2017, OWCP denied modification of its prior decision.6
In a letter dated and received by OWCP on November 28, 2017, appellant requested an
oral hearing or a review of the written record by OWCP’s Branch of Hearings and Review. He
submitted a September 25, 2001 U.S. Marshals Service special deputation, which appointed him
to patrol roadways in and adjacent to the employing establishment. Appellant also provided
documentation of his law enforcement training.
By decision dated January 11, 2018, OWCP denied appellant’s request for an oral hearing
as he had previously requested reconsideration. After exercising discretion, it further denied the
request, finding that the issue could be equally well addressed through a request for reconsideration
before OWCP’s district office. Appellant appealed to the Board.
By decision dated October 10, 2018,7 the Board affirmed OWCP’s November 21, 2017
and January 11, 2018 decisions, finding that the factual evidence of record was insufficient to
6
On December 11, 2017 appellant filed an appeal from the November 21, 2017 decision. By order dated
January 31, 2018, the Board dismissed the appeal at appellant’s request. Order Dismissing Appeal, Docket No.
18-0355 (issued January 31, 2018).
7
Supra note 5. On October 24, 2018 appellant filed a petition for reconsideration. By order dated August 12, 2019,
the Board denied the petition for reconsideration as no error of law or fact had been cited warranting further
consideration by the Board. Order Denying Petition for Reconsideration Docket No. 18-0558 (issued
August 12, 2019).

3

establish that appellant was present at the site of the World Trade Center attacks while in the
performance of duty. The Board further found that OWCP properly denied appellant’s request for
an oral hearing.
On October 10, 2019 appellant requested reconsideration. He submitted a February 12,
2018 statement contending that he reported to Ground Zero on September 11, 2001 as a first
responder under an emergency legal provision. Appellant contended that OWCP should extend
FECA benefits to him as the Governor of New York had extended sick leave to 9/11 first
responders in February 2018.
Appellant also provided a copy of his official position description, training and award
certificates, and reports from a chiropractor and a physical therapist addressing conditions accepted
under OWCP File No. xxxxxx614.
The employing establishment responded by October 29, 2019 statement, contending that
there was no evidence establishing that appellant was present at Ground Zero in the performance
of duty. It also provided statements dated February 15 and 16, 2018 reiterating that appellant was
not authorized to travel to Ground Zero.
By decision dated November 7, 2019, OWCP denied appellant’s request for
reconsideration.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.8
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted a
specific point of law; (2) advances a relevant legal argument not previously considered by OWCP;
or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP.9
A request for reconsideration must also be received by OWCP within one year of the date
of OWCP’s decision for which review is sought.10 If OWCP chooses to grant reconsideration, it
reopens and reviews the case on its merits.11 If the request is timely, but fails to meet at least one
8

5 U.S.C. § 8128(a); see also D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

9

20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
10
Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
11

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

4

of the requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.12
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Appellant has not asserted that OWCP erroneously applied or interpreted a specific point
of law or advanced a new and relevant legal argument not previously considered. Thus, he is not
entitled to a review of the merits of his claim based on the first and second above-noted
requirements under 20 C.F.R. § 10.606(b)(3).
With his October 10, 2019 request for reconsideration, appellant provided a February 12,
2018 statement asserting that he had reported to Ground Zero in the performance of duty.
Appellant also submitted training and award certificates, and reports addressing conditions
accepted under OWCP File No. xxxxxx614. This evidence is irrelevant to the factual issue of
whether appellant traveled to Ground Zero in the performance of duty. The Board notes that the
submission of evidence that does not address the particular underlying issue involved does not
constitute a basis for reopening a case.13 Appellant also submitted a copy of his official position
description, which was previously of record as of June 20, 2017 and considered by the Board in
its October 10, 2018 decision. The Board has held that the submission of evidence or argument
which repeats or duplicates evidence or argument already in the case record does not constitute a
basis for reopening a case.14
The Board accordingly finds that OWCP properly determined that appellant was not
entitled to further review of the merits of his claim pursuant to any of the three requirements under
20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.15
On appeal appellant contends that his official position description established his authority
to travel to Ground Zero. As explained above, cumulative evidence is insufficient to warrant a
review of the merits of the claim.

12

Id. at § 10.608(b); L.C., Docket No. 18-0787 (issued September 26, 2019); E.R., Docket No. 09-1655 (issued
March 18, 2010).
13

L.C., Docket No. 19-0503 (issued February 7, 2020); Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M.
Nixon-Steward, 52 ECAB 140 (2000).
14
L.C., id.; J.B., Docket No. 18-1531 (issued April 11, 2019); see L.R., Docket No. 18-0400 (issued August 24,
2018); Candace A. Karkoff, 56 ECAB 622 (2005).
15

A.F., Docket No. 18-1154 (issued January 17, 2019); see A.R., Docket No. 16-1416 (issued April 10, 2017); A.M.,
Docket No. 16-0499 (issued June 28, 2016); A.K., Docket No. 09-2032 (issued August 3, 2010); M.E., 58 ECAB 694
(2007); Susan A. Filkins, 57 ECAB 630 (2006) (when a request for reconsideration does not meet at least one of the
three requirements enumerated under section 10.606(b), OWCP will deny the request for reconsideration without
reopening the case for a review on the merits).

5

CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the November 7, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 5, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket No. 21-0908
Issued: March 4, 2022

Case Submitted on the Record

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

JURISDICTION
On May 26, 2021 appellant, through his representative, filed a timely appeal from a
March 24, 2021 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

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

2

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

3

By decision dated May 5, 2020, OWCP denied modification.
In a letter dated October 28, 2020, Dr. Krouse explained that, as stated previously, it
appeared that appellant’s degenerative changes had been exacerbated by appellant’s work duties,
which included ambulating for long distances and on uneven surfaces, climbing stairs, carrying a
weighted satchel, and entering/exiting his work vehicle several times per day while delivering mail
for over 39 years. He opined that the duties of appellant’s employment, including an excessive
amount of walking, was likely a contributing factor to appellant’s arthritis. Dr. Krouse explained
that appellant was on his feet for upwards of 10 hours per day for five to six days per week and
that appellant’s duties would contribute to progressive degenerative changes to the hip joint, which
over time would be viewed as degenerative arthritis. He opined that there was a causal relationship
between appellant’s duties and his medical findings on examination. Dr. Krouse further explained
that working for 39 years and averaging many miles of walking in various terrains with repetitive
movement, up and down stairs, on uneven ground, in and out of mail trucks, twisting, and changing
directions would contribute to appellant’s osteoarthritis findings. He opined within a reasonable
medical certainty that appellant’s repetitive walking and duties of appellant’s federal employment
over the past 39 years was a contributing factor to his medical findings of hip osteoarthritis.
Dr. Krouse further opined that appellant’s work duties had aggravated his diagnosed appellant’s
osteoarthritis, that it was beyond a reasonable double that years of repetitive movement and
excessive loading/movements were well beyond a normal course of natural aging to the joints. He
opined that it was his medical judgment that this process was a contributing factor to acceleration
of hip osteoarthritis.
On December 29, 2020 appellant requested reconsideration.
By decision dated March 24, 2021, OWCP denied modification.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed with in the applicable
time limitation of FECA, that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury. 4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence o f the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or co ndition for which

3

Id.

4

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

4

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

5

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

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

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

5

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

8

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

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

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

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

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

6

ORDER
IT IS HEREBY ORDERED THAT the March 24, 2021 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: March 4, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

7


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

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

Docket No. 10-150
Issued: September 27, 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 October 20, 2009 appellant filed a timely appeal from the June 30, 2009 decision of
the Office of Workers’ Compensation Programs which denied his reconsideration request on the
grounds that it was untimely filed and failed to present clear evidence of error. As the most
recent merit Office decision was issued on June 13, 2006 the Board lacks jurisdiction to review
the merits of this case pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.1
ISSUE
The issue is whether the Office properly determined that appellant’s reconsideration
request was not timely filed and failed to present clear evidence of error.

1

For Office decisions dated November 19, 2008 or later, a claimant has 180 days to file an appeal with the Board.
20 C.F.R. § 501.3(e) (2009); 73 Fed. Reg. 62,190 (October 20, 2008). For Office decisions issued before
November 19, 2008, a claimant had one year in which to file an appeal. See 20 C.F.R. § 501.3(d)(2) (2008).

FACTUAL HISTORY
On December 10, 2005 appellant, then a 43-year-old mail carrier, filed an occupational
disease claim alleging that she developed an emotional condition as a result of not being able to
perform her work duties due to a work-related elbow injury. She became aware of her condition
and realized it was related to her employment on October 13, 2005. Appellant stopped work on
October 12, 2005 and did not return.
Appellant submitted an undated statement noting that she sustained a work-related right
elbow injury and underwent surgery on May 15, 2005. She returned to a light-duty position and
then to full-time duty but she experienced pain such that she was unable to perform her job.
Appellant requested a light-duty position and contended that her supervisor did not accommodate
her restrictions and could only provide work for two hours per day. She further alleged that she
failed a functional capacity evaluation and became depressed and suicidal. Appellant submitted
an October 15, 2005 hospital discharge summary prepared by Dr. Iqbal Dhanani, a Boardcertified psychiatrist, who diagnosed major depressive disorder and status post elbow injury.
In a December 14, 2005 letter, Robert Thompson, supervisor of customer service,
controverted the claim noting that appellant was released to full-time work as a letter carrier by
her physician but did not return to full duty. He advised that appropriate light duty was available
when indicated.
Appellant submitted an October 21, 2005 verification of treatment from Dr. Seeme V.
Ahmad, a Board-certified psychiatrist, who noted appellant was admitted to a psychiatric
hospital and was unable to work beginning October 12, 2005. She also submitted documents
from therapists and records of her psychiatric treatment.
In a November 24, 2005 discharge summary, Dr. Roy Johnston, a Board-certified
psychiatrist, diagnosed major depression, recurrent, with work and health stressors. Appellant
reported that, after she underwent right elbow surgery for a work injury, she was unable to return
to work. An October 22, 2005 report from Dr. Ravinder Kurl, a Board-certified cardiologist,
noted treatment for shortness of breath. He diagnosed atypical chest pain and pain in the elbow.
On January 26, 2006 appellant was treated by Dr. Narendra Nagareddy, a Board-certified
psychiatrist, who diagnosed major depression, recurrent, tendinitis and moderate to severe work,
financial and health stressors. She submitted statements from several coworkers who noted that
appellant was a hard working and dependable employee.
In a decision dated June 13, 2006, the Office denied appellant’s claim for an emotional
condition on the grounds that the evidence was insufficient to establish that her injury occurred
in the performance of duty. It found that no compensable employment factors were established.
On December 21, 2006 appellant called the Office to request the status of her appeal.
The Office advised her that there was no appeal of record. In correspondence dated
December 22 2006, it verified appellant’s mailing address and sent a copy of the June 13, 2006
decision. The Office informed her that, if she disagreed with the Office’s decision, she could
follow the appeal rights included with the decision. In Office telephone logs dated April 18 to

2

July 20, 2007, appellant inquired as to the status of her appeal and was again advised that no
request was of record.
On August 13, 2007 the Office received a letter dated June 29, 2006 from an attorney
who requested a hearing and medical documents of record. An August 12, 2006 cover letter
from the attorney requested a status of the request for production of documents. These
documents were not signed by appellant or counsel.
In an August 23, 2007 telephone call memorandum, the Office noted that appellant
inquired as to the status of her claim. It noted that the initial request for a hearing was addressed
to the claims examiner but sent to the employer’s address. The Office did not receive the request
and the Branch of Hearings and Review also did not receive the request.
In a letter dated September 12, 2007, the Office advised the attorney that the record did
not contain a signed release from appellant authorizing him to have access to her file. It
requested that he forward a signed release from appellant authorizing his representation.
In a March 23, 2009 statement, appellant noted that her lawyer had not responded to the
Office’s correspondence and, upon further investigation, she learned his license to practice law
was recently suspended. She reiterated that her mental breakdown was related to her workrelated elbow injury and that she had to work in pain.
In a March 31, 2009 letter, the Office acknowledged receipt of appellant’s March 23,
2009 letter and inquired as to which appeal right she was requesting. It resent her a copy of the
June 13, 2006 decision and instructed her to indicate which appeal right she wanted to pursue.
In an appeal request form dated April 9, 2009, appellant requested reconsideration. She
submitted a December 15, 2006 report from Dr. Ahmad who noted treating appellant since
October 12, 2005 for depression. Appellant reported feeling depressed and suicidal after
returning to her job following a work-related injury and surgery. Appellant was voluntarily
admitted to a psychiatric hospital on October 12, 2005 and discharged on October 15, 2005. On
October 21, 2005 Dr. Ahmad noted that appellant reported wanting to shoot to death four people
in her workplace and was involuntary committed and released on October 25, 2005. In an
August 27, 2007 report, Dr. Jim W. Roderique, a Board-certified orthopedic surgeon, treated her
for right elbow pain. He diagnosed status post lateral epicondylitis surgery with no current
evidence of pathology and advised that appellant could continue to function normally.
In a June 30, 2009 decision, the Office denied appellant’s reconsideration request finding
that it was not timely filed and did not present clear evidence of error.

3

LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act vests the Office 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.”2
The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607(a)
provides that the Office will not review a decision unless the application for review is filed
within one year of the date of that decision.3 However, it 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 the Office 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 the Office. The evidence must be positive, precise and explicit and must be manifest
on its face that the Office committed an error.4
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 prima facie shift the weight of the evidence in favor of
the claimant and raise a substantial question as to the correctness of the Office’s decision.5
Evidence that does not raise a substantial question concerning the correctness of the Office’s
decision is insufficient to establish clear evidence of error.6 It is not enough merely to show that
the evidence could be construed so as to produce a contrary conclusion.7 This entails a limited
review by the Office of the evidence previously of record and whether the new evidence
demonstrates clear error on the part of the Office.8 The Board makes an independent
determination as to whether a claimant has submitted clear evidence of error on the part of the
Office.9
2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.607(b); Annie L. Billingsley, 50 ECAB 210 (1998).

4

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

5

Annie L. Billingsley, supra note 3.

6

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

7

Id.

8

Id.

9

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

4

ANALYSIS
In its June 30, 2009 decision, the Office properly determined that appellant failed to file a
timely application for review. The most recent decision was issued June 13, 2006 when the
Office denied appellant’s claim for an emotional condition. Appellant’s April 9, 2009 request
for reconsideration was more than one year after June 13, 2006. This reconsideration request
was not timely filed.
On appeal appellant contends that she was unaware that the attorney did not submit an
appeal request in a timely manner until the Office advised her that he did not respond to
correspondence dated September 12, 2007. The Board notes that as of December 21, 2006,
appellant was advised that there was no appeal of record when she contacted the Office by
telephone. On December 22, 2006 the Office sent appellant a copy of the June 13, 2006 decision
with attached appeal rights and informed her to follow the appeal right form if she disagreed with
the decision. Although Mr. Kimbrough submitted a June 29, 2006 hearing request, it was not
received by the Office until August 13, 2007.
Moreover, there is no evidence that
Mr. Kimbrough was ever authorized to represent appellant. Section 10.700(a) of the Office’s
regulations regarding the representation of claimants clearly provides that for a representative to
be recognized by the Office, a written notice, signed by the claimant appointing the
representative must be submitted to the Office.10 Pursuant to this regulation and Board case
law,11 the attorney’s June 29, 2006 hearing request was not valid as he was not appellant’s
authorized representative.12 Appellant did not submit evidence that counsel was authorized to
act as her representative. On September 12, 2007 the Office requested that counsel provide
authorization but he did not respond. There was no authorization for the attorney to represent
appellant or other correspondence from appellant within one year of the merit decision that
would qualify as a reconsideration request.13
The Board finds that appellant has not established clear evidence of error on the part of
the Office in its June 30, 2009 decision denying her emotional condition claim. Her claim was
denied because the evidence did not establish a compensable employment factor. The evidence
submitted on reconsideration must not only address compensable employment factors but must
be so positive, precise and explicit as to shift the weight of the evidence in appellant’s favor.
Appellant’s reconsideration request was accompanied by the October 21, 2005 and
December 15, 2006 reports from Dr. Ahmad who treated her for depression. She also submitted
an August 27, 2007 report from Dr. Roderique who treated her for right elbow pain. This
evidence is insufficient to raise a substantial question as to the correctness of the Office’s
decision as these reports address appellant’s medical treatment. They do not purport to establish
10

20 C.F.R. § 10.700.

11

See also Nancy Marcano, 50 ECAB 110 (1998) (the Board found that the Office’s regulations regarding the
representation of claimants clearly requires that a written notice, signed by the claimant, appointing a representative
be sent to the Office authorizing representation for the purpose of filing a reconsideration request).
12

See Ira D. Gray, 45 ECAB 445, 447 (1994).

13

See 20 C.F.R. § 10.606.

5

a compensable employment factor. As noted, the underlying deficiency in the claim was her
failure to submit factual evidence to establish that her supervisor erred in accommodating her
medical restrictions. Evidence that is not relevant to the issue on which the claim was denied is
insufficient to demonstrate clear evidence of error.14 The Board notes that clear evidence of
error is intended to represent a difficult standard.15 This evidence is insufficient to establish clear
evidence of error.
The Board finds that the evidence submitted by appellant on reconsideration does not
raise a substantial question as to the correctness of the Office’s prior decision. Appellant has not
provided any argument or evidence of sufficient probative value to shift the weight of the
evidence in her favor.
CONCLUSION
The Board finds that appellant’s request for reconsideration dated April 9, 2009 was
untimely filed and did not demonstrate clear evidence of error.

14

F.R., 61 ECAB ___ (Docket No. 09-575, issued January 4, 2010).

15

D.G., 59 ECAB ___ (Docket No. 08-137, issued April 14, 2008); Federal (FECA) Procedure Manual, Part 2 -Claims, Reconsiderations, Chapter 2.1602.3c (January 2004).

6

ORDER
IT IS HEREBY ORDERED THAT the June 30, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 27, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Cleveland, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 17-0532
Issued: April 17, 2017

Case Submitted on the Record

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

JURISDICTION
On January 10, 2017 appellant, through counsel, filed a timely appeal from a
November 16, 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 this case.
ISSUE
The issue is whether appellant met her burden of proof to establish injuries to her neck
and left upper extremity causally related to factors of her federal employment.
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
On January 23, 2015 appellant, then a 63-year-old secretary, filed an occupational disease
claim (Form CA-2) alleging that she sustained injuries to her neck and left upper extremity due
to constant, repetitious use of the telephone and computer in the performance of duty.3 She
indicated that as a secretary she was constantly on the telephone providing service to various
individuals and that the number of incoming calls was always high. Appellant further explained
that she noticed increased left-side neck, shoulder, and upper extremity pain when she held the
telephone between her left ear and shoulder, while simultaneously working on the computer.
She identified April 8, 2013 as the date she first became aware of her claimed conditions. It was
also the date appellant first realized her conditions were employment related. On the claim form,
appellant’s immediate supervisor advised that the employing establishment controverted the
claim because there was no medical evidence to support the existence of a work-related
condition.4 Appellant did not stop work.5
In a letter dated February 18, 2015, OWCP requested that appellant submit additional
factual and medical evidence in support of her claim, including a physician’s opinion supported
by a medical explanation as to how her work activities caused or aggravated her claimed medical
conditions.
Appellant submitted the findings of November 4, 2011 x-ray testing of her left shoulder,
which contained an impression of degenerative changes of the left acromioclavicular joint.
In a report dated November 4, 2011, Dr. Elizabeth Mease, an attending Board-certified
internist, noted that appellant reported having neck pain for the prior five or six months and that
she had a habit of holding the telephone receiver at work between her left shoulder and head.
She diagnosed left shoulder pain, possible impingement syndrome, possible bursitis, neck pain,
and probable degenerative joint disease. On May 25, 2012 Dr. Mease diagnosed left shoulder
pain, impingement syndrome, degeneration of the left acromioclavicular joint, and cervical pain
(without excluding degenerative cervical spine disease). On December 4, 2014 she diagnosed
cervalgia and pain of the left shoulder and intermittent left arm dysesthesias.
In a decision dated March 20, 2015, OWCP denied appellant’s claim for a work-related
occupational disease. It accepted her employment factors as alleged, but denied her claim
because she failed to submit adequate medical evidence to establish a diagnosis in connection
with the accepted employment exposure.
3

Appellant advised that x-rays showed that she had a pinched nerve in her neck which caused “electrical current
to go to my elbow.”
4

The record contains a March 13, 2015 letter in which appellant’s immediate supervisor further discussed the
employing establishment’s challenge of appellant’s claim.
5

The record reveals that, under a separate claim filed on November 10, 2011 (OWCP File No. xxxxxx839),
appellant alleged that she sustained a left shoulder condition alleged to have occurred on July 21, 2010 due to
operating a telephone device at work. Under another claim (OWCP File No. xxxxxx531), appellant filed an
occupational disease claim on June 15, 2012 alleging that she sustained neck and left shoulder injuries due to using a
telephone receiver at work. Appellant indicated that she first became aware of this claimed occupational disease on
October 7, 2010. OWCP denied both claims, and they are not the subject of the present appeal before the Board.

2

Appellant submitted the findings of x-ray testing of her cervical spine obtained on
January 19, 2015 and a magnetic resonance imaging (MRI) scan of her cervical spine obtained
on February 27, 2015. The studies showed degenerative changes between the C2-3 and C6-7
levels.
In a report dated May 6, 2015, Dr. Nicholas Ahn, an attending Board-certified orthopedic
surgeon, diagnosed left cervical radiculopathy with cervical stenosis with cord compression and
discussed the findings of diagnostic testing and physical examination which he felt supported
these diagnoses. He also diagnosed several lumbar spine conditions.
In a report dated May 19, 2015, Dr. John H. Paul, an attending Board-certified orthopedic
surgeon, noted that appellant reported acute neck pain radiating into her left upper extremity with
numbness, tingling sensation, and weakness of the left upper extremity. He diagnosed
“complicated medical care injury” and indicated that he would conduct a review of the medical
evidence of record.
In a report dated December 2, 2015, Dr. Al-Amin Khalil, an attending Board-certified
anesthesiologist, diagnosed lower back pain and lumbar stenosis with neurogenic claudication.
In a letter dated March 8, 2016 received by OWCP on that date, appellant, through
counsel, requested reconsideration of the March 20, 2015 decision.
Appellant submitted additional medical evidence, which was received by OWCP on
March 15, 2016.
In a report dated September 21, 2010, Dr. Ahn described the lumbar spine surgery he
performed on that date. In a report dated December 13, 2013, he indicated that appellant
continued to complain of low back pain. In reports dated January 19 and October 1, 2015,
Dr. Ahn diagnosed various conditions including cervical pain and cervical stenosis with cord
compression.
By decision dated November 16, 2016, OWCP found that the newly submitted medical
evidence from Dr. Ahn established a diagnosis of cervical radiculopathy and stenosis. However,
the medical evidence of record was insufficient to establish causal relationship between
appellant’s accepted employment factors and the diagnosed cervical conditions.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that the injury was sustained while in the performance of duty as
alleged, and that any disability and/or specific condition for which compensation is claimed are
causally related to the employment injury.6 To establish fact of injury, an employee must submit
sufficient evidence to establish that he or she experienced a specific event, incident, or exposure

6

5 U.S.C. § 8101(1); B.B., 59 ECAB 234 (2007); Elaine Pendleton, 40 ECAB 1143 (1989).

3

occurring at the time, place, and in the manner alleged.7 An employee must also establish that
such event, incident, or exposure caused an injury.8 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.9
OWCP regulations define the term “[o]ccupational disease or illness” as a condition
produced by the work environment over a period longer than a single workday or shift.10 To
establish that an injury was sustained in the performance of duty in an occupational disease
claim, an employee must submit the following: (1) medical evidence establishing the presence
or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.11
The medical evidence required to establish causal relationship generally is rationalized
medical opinion evidence.12 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 established employment factors.13
ANALYSIS
Appellant filed an occupational disease claim alleging injuries to her neck and left upper
extremity as a result of performing her secretarial duties. Specifically, she attributed her neck
and left shoulder/arm conditions to using the telephone at work, including cradling the unit
between her head and left shoulder, while she simultaneously worked on the computer. OWCP
accepted appellant’s employment factors as alleged, but denied her claim because she failed to
submit sufficient medical evidence to establish a causal relationship between her diagnosed
cervical condition(s) and the accepted occupational exposure.
The Board finds that appellant did not submit sufficient medical evidence to establish a
work-related occupational disease to her neck, left shoulder, and/or left upper extremity.
Appellant submitted reports from several attending physicians in support of her claim. In
reports dated November 4, 2011, May 25, 2012, and December 4, 2014, Dr. Mease diagnosed
7

J.C., Docket No. 16-0057 (issued February 10, 2016); E.A., 58 ECAB 677 (2007).

8

Id.

9

R.H., 59 ECAB 382 (2008); Ellen L. Noble, 55 ECAB 530 (2004).

10

20 C.F.R. § 10.5(q); see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of
Claims, Chapter 2.800.2b (June 2011).
11

D.H., Docket No. 15-1876 (issued January 29, 2016); D.I., 59 ECAB 158 (2007); Victor J. Woodhams, 41
ECAB 345 (1989).
12

F.S., Docket No. 15-1052 (issued July 17, 2015); Tomas Martinez, 54 ECAB 623 (2003).

13

P.K., Docket No. 08-2551 (issued June 2, 2009); John W. Montoya, 54 ECAB 306 (2003).

4

conditions such as left shoulder impingement syndrome, degeneration of the left
acromioclavicular joint, possible bursitis, neck pain, and probable degenerative cervical joint
disease. Dr. Mease noted that appellant reported having neck pain for the prior five or six
months and that she had a habit of holding the telephone receiver at work between her left
shoulder and head. However, Dr. Mease did not provide an opinion of whether the diagnosed
conditions were related to such employment factors. The Board has held that medical evidence
that does not offer a clear opinion regarding the cause of an employee’s condition is of limited
probative value on the issue of causal relationship.14 Therefore, Dr. Mease’s reports fail to
establish appellant’s claim for occupational diseases of the neck, left shoulder, and left upper
extremity.
In reports dated January 19, May 6, and October 1, 2015, Dr. Ahn diagnosed conditions
such as left cervical radiculopathy with cervical stenosis with cord compression and discussed
the findings of diagnostic testing and physical examination which he felt supported these
diagnoses. The reports of Dr. Ahn are insufficient to establish appellant’s claim because they do
not contain an opinion that the diagnosed conditions were related to the accepted employment
factors.15
In a report dated May 19, 2015, Dr. Paul noted that appellant reported acute neck pain
radiating into her left upper extremity with numbness, tingling sensation, and weakness of the
left upper extremity. He diagnosed “complicated medical care injury,” but did not provide any
other diagnosis or offer an opinion that appellant suffered an occupational disease due to
employment factors.16
Appellant submitted reports of other attending physicians, but these reports did not
discuss the condition of her neck, left shoulder, or left upper extremity. For example, in a report
dated December 2, 2015, Dr. Khalil diagnosed lower back pain and lumbar stenosis with
neurogenic claudication. Such reports provide no indication that the diagnosed conditions were
related to employment factors.17
For these reasons, appellant did not submit sufficient medical evidence to establish a
work-related occupational disease of her neck, left shoulder, or left upper extremity and OWCP
properly denied her claim.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish injuries to
her neck and left upper extremity causally related to factors of her federal employment.

14

See Charles H. Tomaszewski, 39 ECAB 461 (1988).

15

Id.

16

Id.

17

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the November 16, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 17, 2017
Washington, DC

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

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

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

6