United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Ogden, UT, Employer
__________________________________________

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

Docket No. 20-0074
Issued: June 4, 2020

Case Submitted on the Record

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

JURISDICTION
On October 9, 2019 appellant filed a timely appeal from an October 3, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a diagnosed medical
condition causally related to the accepted July 11, 2019 employment incident.
FACTUAL HISTORY
On July 12, 2019 appellant, then a 40-year-old city carrier assistant, filed a traumatic injury
claim (Form CA-1) alleging that on July 11, 2019 he suffered heat exhaustion which resulted in
vomiting due to exposure to temperatures of greater than 90 degrees while in the performance of
1

5 U.S.C. § 8101 et seq.

duty. On the reverse side of the claim form, the employing establishment acknowledged that he
was injured in the performance of duty. Appellant did not stop work.
In a July 11, 2019 report, an emergency medical technician noted that appellant was
experiencing chest pain and nausea. The report includes a diagnosis of nausea and hyperglycemia
and indicates that intravenous fluids were administered while appellant was transported to the
hospital.
In a July 11, 2019 report, Dr. Rory Carrera, a Board-certified specialist in internal
medicine, noted that appellant, a type 2 diabetic, was experiencing increased weakness and nausea
after working longer walking routes as a mail carrier. He reviewed laboratory testing results and
diagnosed an acute kidney injury, a combination of prerenal azotemia and medication toxicity,
hyperkalemia, and metabolic acidosis.
A July 12, 2019 electrocardiogram revealed occasional premature ventricular complexes.
In a July 12, 2019 work excuse note, a physician with an illegible signature noted that
appellant could return to work without restrictions on July 17, 2019.
Hospital emergency records dated July 13, 2019, reported by a nurse, detailed appellant’s
procedures and physical assessments. Appellant’s diagnoses were listed as acute kidney injury,
hyperglycemia due to type 2 diabetes mellitus, dehydration, and hyperkalemia.
On July 15, 2019 appellant submitted a job position description which detailed the duties
and responsibilities of a city carrier assistant.
In an August 30, 2019 development letter, OWCP indicated that when appellant’s claim
was first received it appeared to be a minor injury that resulted in minimal or no lost time from
work and, based on these criteria and because the employing establishment did not controvert
continuation of pay or otherwise challenge the case, payment of a limited amount of medical
expenses was administratively approved. It explained that it had reopened the claim for
consideration because his medical expenses had exceeded $1,500.00. OWCP requested additional
factual and medical evidence in support of his claim and provided a questionnaire for his
completion. It afforded appellant 30 days to submit the necessary evidence. No additional
evidence was received.
By decision dated October 3, 2019, OWCP denied appellant’s traumatic injury claim,
finding that although he established that the July 11, 2019 employment incident occurred as
alleged, the medical evidence of record was insufficient to establish a medical diagnosis in
connection with the accepted employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 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
2

Id.

2

United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,3 that an injury was sustained in the performance of duty, as
alleged, and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.4 These are the essential elements of each and every
compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.5
To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred. The second component is whether the employment incident caused a personal injury.6
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.7 The opinion of the physician must be based on a complete factual
and medical background of the claimant, must be one of reasonable medical certainty, and must
be supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment incident identified by the claimant.8
ANALYSIS
The Board finds that this case is not in posture for decision.
In support of his claim, appellant submitted several medical reports, including a July 11,
2019 report from Dr. Carrera. Dr. Carrera noted that appellant worked as a mail carrier on a
walking route that had been getting longer. He reviewed laboratory testing results and diagnosed
an acute kidney injury a combination of prerenal azotemia and medication toxicity, hyperkalemia,
and metabolic acidosis. The Board finds that this assessment from Dr. Carrera establishes a
medical diagnosis in association with the accepted July 11, 2019 employment incident.

3

Y.W., Docket No. 19-1877 (issued April 30, 2020); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

C.B., Docket No. 20-0250 (issued April 28, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB
312 (1988).
5
20 C.F.R. § 10.115; H.A., Docket No. 18-1253 (issued April 23, 2020); L.M., Docket No. 13-1402 (issued
February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
6

T.H., Docket No. 19-1891 (issued April 3, 2020); John J. Carlone, 41 ECAB 354 (1989); Elaine Pendleton, 40
ECAB 1143 (1989).
7

L.P., Docket No. 19-1812 (issued April 16, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

8

C.B., supra note 4; Leslie C. Moore, 52 ECAB 132 (2000).

3

As the medical evidence of record establishes a diagnosed condition, the case must be
remanded for consideration of the medical evidence with regard to the issue of causal relationship.
Following such further development as deemed necessary, OWCP shall issue a de novo decision.9
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the October 3, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: June 4, 2020
Washington, DC

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

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

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

9

Y.W., supra note 3.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
U.S. POSTAL SERVICE, CHICAGO CENTRAL
CARRIER ANNEX, Chicago, IL, Employer
__________________________________________

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

Docket No. 21-0446
Issued: January 12, 2022

Case Submitted on the Record

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

JURISDICTION
On February 3, 2021 appellant filed a timely appeal from a December 7, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). 1 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. 3

1

The Board notes that appellant’s appeal form notes that she was requesting an appeal from a purported February 3,
2021 decision. However, no decision of that date is found in the case record. The Board ’s jurisdiction is limited to
final adverse decisions of OWCP issued within 180 days of the appeal. The only final adverse decision within the
Board’s jurisdiction is December 7, 2020 decision regarding the denial of continuation of pay (COP). See 20 C.F.R.
§§ 501.2(c) and 501.3.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the December 7, 2020 decision, appellant submitted additional evidence to
OWCP. 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.

ISSUE
The issue is whether appellant has met her burden of proof to establish entitlement to
continuation of pay (COP) for the period March 11 through April 24, 2020.
FACTUAL HISTORY
On March 11, 2020 appellant, then a 52-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on March 10, 2020 she injured both arms when answering telephones
and typing forms while in the performance of duty. Regarding the nature of the claimed injury,
she indicated, “[a]ll other occupational illnesses[,] [b]oth lower arms.” Appellant checked a box
on the form indicating that she was requesting COP. She stopped work on March 11, 2020.
In an accompanying statement, appellant asserted that she felt a tingling sensation in her
arms on March 10, 2020 after she completed forms. She submitted a March 24, 2020 duty status
report (Form CA-17) from Dr. Richard Morgenstern, an attending Board-certified orthopedic
surgeon, who diagnosed bilateral carpal tunnel syndrome and right shoulder tendinitis.
In an April 1, 2020 development letter, OWCP requested that appellant clarify whether she
was claiming a traumatic injury or an occupational disease, and explained that a traumatic injury
referred to an injury caused by a specific event or incident or series of incidents occurring within a
single workday or work shift, whereas an occupational disease referred to an injury produced by
employment over a period longer than a single workday or shift.4 It afforded her 30 days to submit
the requested evidence.
On April 3, 2020 OWCP received a statement, dated March 26, 2020, in which appellant
discussed her interactions with OWCP officials and her attempts to have her claim approved.
Appellant submitted additional medical evidence.
By decision dated May 4, 2020, OWCP denied appellant’s claim, finding that the evidence
of record was insufficient to establish the factual component of fact of injury. It concluded,
therefore, that the requirements had not been met to establish an injury as defined by FECA. 5
On May 12, 2020 OWCP received a statement, dated April 16, 2020, in which appellant
asserted that her claimed upper extremity conditions were caused by performing her work duties
over a period of time. Appellant explained that these work duties included preparing mail in the
cage for other carriers, delivering mail on a P.O. Box loop, assisting clerks at the front window,
answering telephones and customer complaints, answering online customer inquiries/complaints,
and typing on the computer to assist customers in resolving their issues. She indicated that on

4

See 20 C.F.R. §§ 10.5(q), (ee); R.V., Docket No. 18-1037 (issued March 26, 2019); Brady L. Fowler, 44 ECAB 343,
351 (1992).
5

In a May 11, 2020 letter, the employing establishment advised appellant that the COP she received would be
changed to annual leave or leave without pay.

2

February 27, 2019 she had experienced upper extremity symptoms, which were similar to those
she experienced on March 1, 2020, i.e., numbness and tingling in her arms, hands, and fingers.
On May 13, 2020 OWCP received a statement, dated May 8, 2020, in which appellant
provided additional details of the work duties she performed over time, noting that she believed
they contributed to her claimed condition.
On May 13, 2020 appellant requested reconsideration of the May 4, 2020 decision. She
submitted additional medical evidence, including an April 27, 2020 report from Dr. Morgenstern
who diagnosed right shoulder bicipital tendinitis, right shoulder sprain, bilateral wrist sprains, and
bilateral carpal tunnel syndrome. Dr. Morgenstern discussed the work duties that appellant had
performed over time and opined that her diagnosed upper extremity conditions were related to
these work duties.
By decision dated July 14, 2020, OWCP accepted employment factors in the form of the
work duties appellant performed over time, including handling mail and performing clerical duties.
It denied her claim for an employment-related condition, noting that it was modifying its May 4,
2020 decision to reflect that the basis for the denial was her failure to submit medical evidence
establishing causal relationship between the diagnosed conditions and the accepted employment
factors.
On July 29, 2020 appellant requested reconsideration of the July 14, 2020 decision and
submitted additional medical evidence.
By decision dated December 7, 2020, OWCP vacated its July 14, 2020 decision.
By separate decision of even date, OWCP accepted appellant’s occupational disease claim
for right shoulder bicipital tendinitis, right shoulder joint sprain, bilateral wrist sprains, and
aggravation of preexisting carpal tunnel syndrome. It found that she was not eligible for COP
because her claim had been converted from a traumatic injury claim to an occupational disease
claim. OWCP advised that a separate COP decision would be issued with appeal rights.
By a third decision dated December 7, 2020, OWCP denied appellant’s request for COP.
It noted, “Your claim has been converted from a traumatic injury claim to an occupational disease
claim. As a result, you are not eligible for [COP].”
LEGAL PRECEDENT
Section 8118(a) of FECA authorizes COP, not to exceed 45 days, to an employee who has
filed a claim for a period of wage loss due to a traumatic injury with his or her immediate superior
on a form approved by the Secretary of Labor within the time specified in section 8122(a)(2) of

3

this title.6 This latter section provides that written notice of injury must be given within 30 days.7
The context of section 8122 makes clear that this means within 30 days of the injury. 8
OWCP’s regulations provide, in pertinent part, that to be eligible for COP, an employee
must: (1) have a traumatic injury which is job related and the cause of the disability and/or the
cause of lost time due to the need for medical examination and treatment; (2) file a Form CA-1
within 30 days of the date of the injury; and (3) begin losing time from work due to the traumatic
injury within 45 days of the injury. 9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish entitlement to
COP for the period March 11 through April 24, 2020.
Appellant initially filed a Form CA-1 for a traumatic injury, but she later explained in
several statements that her claimed upper extremity injury was caused by performing work duties,
including typing, over a period of time. As her injuries occurred over more than a single workday
or shift, the Board finds that OWCP properly determined that appellant’s claim was one for an
occupational disease rather than a traumatic injury. 10 Consequently, appellant is not eligible for
COP.11
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish entitlement to
COP for the period March 11 through April 24, 2020.

6

Supra note 2 at § 8118.

7

Id.

8

D.P., Docket No. 21-0596 (issued August 31, 2021; C.C., Docket No. 18-0912 (issued July 11, 2019); J.S., Docket
No. 18-1086 (issued January 17, 2019); Robert M. Kimzey, 40 ECAB 762, 763-64 (1989); Myra Lenburg, 36 ECAB
487, 489 (1985).
9

20 C.F.R. § 10.205(a). See also T.A., Docket No. 21-0041 (issued May 3, 2021); T.S., Docket No. 19-1228 (issued
December 9, 2019); J.M., Docket No. 09-1563 (issued February 26, 2010).
10

20 C.F.R. §§ 10.5(q), 10.5(ee); see also A.B., Docket No. 19-0842 (issued September 17, 2019); J.F., Docket No.
10-2134 (issued July 6, 2011).
11

See S.G., Docket No. 20-0538 (issued December 9, 2020); C.C., Docket No. 18-0912 (issued July 11, 2019);
J.V., Docket No. 15-0942 (issued March 8, 2016).

4

ORDER
IT IS HEREBY ORDERED THAT the December 7, 2020 decision of the Office of
Workers’ Compensation Programs regarding the denial of COP is affirmed.
Issued: January 12, 2022
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.Z., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Albuquerque, NM, Employer
__________________________________________

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

Docket No. 12-784
Issued: August 27, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 27, 2012 appellant filed a timely appeal from the October 26, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which found her at fault in
an overpayment. 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. The Board also
has jurisdiction to review OWCP’s August 8, 2011 decision finding the forfeiture of
compensation that led to the declared overpayment.2
ISSUES
The issues are: (1) whether appellant forfeited her entitlement to compensation from
May 25, 2010 to April 15, 2011; and (2) whether she was at fault in creating the resulting
overpayment of compensation.

1

5 U.S.C. § 8101 et seq.

2

Lucille A. Pettaway, 55 ECAB 228 (2004).

FACTUAL HISTORY
On March 6, 2010 appellant, then a 36-year-old rural carrier associate, sustained a
traumatic back injury in the performance of duty when she lifted a tray of mail. OWCP accepted
her claim for lumbar sprain. Appellant returned to work at reduced hours and received
compensation for intermittent wage loss.
Appellant completed numerous Forms CA-7 to claim compensation. Each form asked
her to respond to the following:
“You must report all earnings from employment (outside your federal job);
include any employment for which you received a salary, wages, income, sales
commissions, piecework, or payment of any kind during the period(s) claimed in
Section 2. Include self-employment, involvement in business enterprises, as well
as service with the military forces. Fraudulent concealment of employment or
failure to report income may result in forfeiture of compensation benefits and/or
criminal prosecution. Have you worked outside your federal job for the
period(s) claimed in Section 2?” (Emphasis in the original.)
If she had worked outside her federal job, the form asked appellant to provide the name
and address of the business, the dates worked and the type of work performed. On each form she
answered “No.”
Appellant informed the U.S. Postal Service, Office of the Inspector General (OIG) that
after her injury she shopped at discount stores for merchandise to sell on eBay™ to supplement
her income. The OIG found that she conducted business transactions, which included
purchasing a fine fabric tagging gun and a postal scale, making website payments to a firm and
routinely purchasing PayPal™ shipping labels. The records showed that appellant frequently
purchased and shipped items since May 2010.
In an August 8, 2011 decision, OWCP found that appellant forfeited all wage-loss
compensation paid from May 25, 2010 through April 15, 2011. It noted that she had bought and
sold items online to supplement her income, that she had received commissions from online
sales, yet she claimed on her CA-7 forms that she did not work outside her federal job during the
periods claimed and did not have any other earnings. OWCP found that appellant knowingly
omitted or understated earnings under 5 U.S.C. § 8106(b).
As a result of the forfeiture, OWCP found that appellant received an overpayment of
$9,522.91 during the same period. It also found that she was at fault in the creation of the
overpayment because she knowingly accepted compensation to which she was not entitled.
Appellant explained: “I honestly did not know that the $50.00 - $150.00 a month money
my hobby provided was supposed to be on the CA-7.”3 She stated that she had no idea that she
was withholding any information. “I would’ve reported every penny if I thought for one second
I was doing something wrong.”
3

It appears appellant earned $520.00 over the last six months of 2010.

2

In an October 26, 2011 decision, OWCP found appellant at fault in creating the
overpayment on the grounds that she knowingly accepted wage-loss compensation to which she
was not entitled. It asked her to forward a check for the full amount.
On appeal, appellant states that she truly did not know that she had to disclose her hobby.
She explains that she enjoyed doing it as a hobby, not as any means to make a living. Appellant
was used to being very busy working two jobs and when she hurt her back she became bored. “I
by no means tried to be deceitful in this.”
LEGAL PRECEDENT -- ISSUE 1
The Secretary of Labor may require a partially disabled employee to report her earnings
from employment or self-employment, by affidavit or otherwise, in the manner and at the time
the Secretary specifies. An employee who knowingly omits or understates any part of her
earnings forfeits her right to compensation with respect to any period for which the affidavit or
report was required.4
The employee, however, can only be subjected to the forfeiture provision of 5 U.S.C.
§ 8106 if she knowingly failed to report employment or earnings. It is not enough merely to
establish that there were unreported earnings. The Board has recognized that forfeiture is a
penalty and thus must be narrowly construed.5 The term “knowingly” is defined by regulations
as “with knowledge, consciously, willfully or intentionally.”6
ANALYSIS -- ISSUE 1
The Board finds that the plain language of Form CA-7, section 3, was sufficient to put
appellant on notice that she was required to report all earnings outside her federal job.7
Appellant was, of course, fully aware that she had earnings from reselling merchandise online.
But she answered “No” to section 3 because she believed that she had good reason not to report
those earnings: It was only a hobby, an enjoyable activity to help break the boredom brought on
by her disabling injury.
The Board believes that appellant has been genuine and forthright about her reasons for
answering “No” to section 3. The Board does not wish to imply or leave the impression that she
attempted to be deceitful. But appellant’s claim that she had no idea that she was withholding
any information appears factually incorrect. Clearly, she did not provide OWCP with
information about her earnings. Appellant had earnings, but she did not report them because she
4

5 U.S.C. § 8106(b)(2).

5

Anthony A. Nobile, 44 ECAB 268, 271-72 (1992).

6

20 C.F.R. § 10.5(n).

7

Cf. Kenneth T. Truhlar, Docket No. 05-1500 (issued January 12, 2006) (“Have you worked outside your federal
job during the period(s) claimed in [s]ection 2?) (Include salaried, self-employed, commissioned, volunteer, etc.”);
Karen Spurling, 56 ECAB 189 (2004); Billy J. McCamey, Docket No. 00-2725 (issued June 11, 2002) (finding that
the Form CA-8s that the claimant completed were insufficient to support a forfeiture of compensation).

3

thought she did not have to under the circumstances. She did not think she was doing anything
wrong. Appellant felt she answered the question properly.
But the language of section 3 did not instruct appellant to report all earnings outside her
federal job unless the earnings were insufficient to earn a living or unless they derived from what
might be considered a hobby. Those were qualifications that she herself supplied. The actual
language was far more inclusive: all earnings, whether from employment or self-employment or
involvement in a business enterprise and not just salary or wages, but income, sales
commissions, piecework or “payment of any kind.” (Emphasis in the original.) The purpose
was one of full disclosure so that OWCP could determine whether the earnings, under the
circumstances, made any difference to the amount of compensation appellant should receive. It
might be that the earnings would have no effect on compensation. OWCP cannot leave that
determination to the claimant who is receiving compensation. Claimants must report all earnings
outside their federal jobs, no matter the source.
The forfeiture standard requires that the employee knowingly omit or understate any part
of her earnings. Appellant did not report her earnings and she knowingly did not report them.
That she was mistaken in her assumptions is immaterial. Accordingly, the Board finds that
appellant knowingly omitted her earnings from reselling merchandise and thereby forfeited her
entitlement to compensation for the period in question.
LEGAL PRECEDENT -- ISSUE 2
OWCP may consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of compensation
benefits is responsible for taking all reasonable measures to ensure that payments she received
from OWCP are proper. The recipient must show good faith and exercise a high degree of care
in reporting events which may affect entitlement to or the amount of benefits. A recipient who
has done any of the following will be found to be at fault with respect to creating an
overpayment: (1) Made an incorrect statement as to a material fact which she knew or should
have known to be incorrect; (2) Failed to provide information which she knew or should have
known to be material; or (3) Accepted a payment which she knew or should have known to be
incorrect (this provision applies only to the overpaid individual).8
Whether or not OWCP determines that an individual was at fault with respect to the
creation of an overpayment depends on the circumstances of the overpayment. The degree of
care expected may vary with the complexity of those circumstances and the individual’s capacity
to realize that she is being overpaid.9
ANALYSIS -- ISSUE 2
Fact and amount of overpayment are not in dispute. The forfeiture of compensation from
May 25, 2010 through April 15, 2011 created an overpayment of all wage-loss compensation
8

20 C.F.R. § 10.433(a).

9

Id. § 10.433(b).

4

appellant received for that period. The Board will therefore affirm OWCP’s October 26, 2011
decision on the issues of fact and amount of overpayment.
OWCP found that appellant was at fault in the creation of this overpayment because she
knowingly accepted wage-loss compensation to which she was not entitled. To be precise, the
standard is whether appellant accepted a payment which she knew or should have known to be
incorrect.
The record shows that appellant received direct payments of compensation for wage loss
throughout the period. The question that, remains under the fault standard is whether, at the time
she accepted each of the compensation payments in question, she knew or should have known
they were incorrect.10
The Board has carefully reviewed OWCP’s overpayment decision, both preliminary and
final and can find no convincing argument that appellant should have known that she was being
overpaid at the time she accepted the checks. It appears that OWCP found appellant at fault
because she knowingly omitted earnings. But that is the standard for forfeiture under section
8106(b)(2) of FECA, not the standard for fault under section 10.433(a) of the regulations.
As noted earlier, whether an individual was at fault with respect to the creation of an
overpayment depends on the circumstances of the overpayment. The degree of care expected
may vary with the complexity of those circumstances and the individual’s capacity to realize that
she is being overpaid. The circumstances here do not support OWCP’s fault finding. The
finding presupposes that insubstantial earnings from a hobby would necessarily reduce
appellant’s entitlement to compensation and that she should have known this or that failure to
report such earnings would necessarily result in forfeiture and that she should have known this.
In fact, the language of CA-7 form, section 3, advised that fraudulent concealment of
employment or failure to report income “may result in forfeiture” of compensation benefits, not
that it would. It admitted only to the possibility.
Appellant should have known that she was required to report all earnings outside her
federal job, but OWCP has not made the case that, when she received compensation checks after
May 25, 2010, she should have realized that she was not entitled to them. Accordingly, the
Board finds that OWCP has failed to establish fault in the creation of the overpayment. The
Board will set aside OWCP’s October 26, 2011 decision on the issue of fault and will remand the
case for consideration of waiver. After such further development as may be necessary, OWCP
shall issue an appropriate final decision on whether appellant is entitled to waiver of the
overpayment.
CONCLUSION
The Board finds that appellant forfeited her entitlement to compensation from May 25,
2010 to April 15, 2011. The Board also finds that OWCP has failed to establish that she was at
fault in creating the resulting overpayment of compensation.
10

T.C., Docket No. 05-249 (issued July 24, 2006) (the regulations define fault by what the claimant knew or
should have known at the time of acceptance, not by what she later learned).

5

ORDER
IT IS HEREBY ORDERED THAT the October 26, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
for further action.
Issued: August 27, 2012
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.F., Appellant
and
U.S. POSTAL SERVICE, JAMAICA MAIN
POST OFFICE, Jamaica, NY, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 20-0354
Issued: August 4, 2020

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On December 3, 2019 appellant, through counsel, filed a timely appeal from an October 23,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of
the Appellate Boards docketed the appeal as No. 20-0354.
On February 11, 2019 appellant, then a 39-year-old mail carrier, filed an occupational
disease claim (Form CA-2)2 alleging that she aggravated her preexisting left shoulder condition
which initially occurred from a slip and fall at work in 2015, and developed bursitis of the left
shoulder due to factors of federal employment, including driving long periods on February 8, 2019.

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
Appellant originally filed an occupational disease claim on February 11, 2019, but at an oral hearing held on
September 4, 2019 she clarified that she sustained a new traumatic injury on February 8, 2019.

By decision dated May 16, 2019, OWCP denied this claim finding that she had not
established the factual component and therefore the requirements had not been met to establish an
injury as defined by FECA. On May 29. 2019 appellant, through counsel, requested an oral hearing
before a representative of OWCP’s Branch of Hearings and Review.
By decision dated October 23, 2019, OWCP’s hearing representative affirmed the denial
of the February 8, 2019 claim with modification noting that appellant had previously filed a series
of claims for left shoulder injuries. The hearing representative indicated that OWCP File Nos.
xxxxxx948, xxxxxx550, xxxxxx521, and xxxxxxx299 should be administratively combined.
The Board has duly considered the matter and concludes that this case is not in posture for
decision. OWCP’s procedures provide that cases should be administratively combined when
correct adjudication of the issue(s) depends on frequent cross-referencing between files.3 For
example, if a new injury is reported for an employee who previously filed a claim for a similar
condition or the same part of the body, doubling is required.4 OWCP’s hearing representative
indicated in the October 23, 2019 decision in the current file, OWCP File No. xxxxxx948, that she
reviewed OWCP File No. xxxxxx550 in which appellant claimed a left shoulder injury, OWCP
File No. xxxxxx521 which appellant claimed a left shoulder sprain, and OWCP File No.
xxxxxxx299 in which appellant claimed a traumatic shoulder injury on May 19, 2016 in reaching
her decision and recommending that the claims be combined. However, the claims were not
combined at the time of the hearing and have yet to be combined. Therefore, the Board is unable
to review the necessary information upon which the hearing representative relied.5
For a full and fair adjudication, the case must be returned to OWCP to administratively
combine File Nos. Nos. xxxxxx948, xxxxxx550, xxxxxx521, and xxxxxxx299. Following this
and such further development as it deems necessary, OWCP shall issue a de novo decision.
Accordingly,

3
Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000); R.S., Docket No. 19-0416 (issued November 26, 2019).
4

Id.; E.P., Docket No. 18-1333 (issued March 22, 2019); K.T., Docket No. 17-0432 (issued August 17, 2018).

5

Decisions on claims are based on the written record, which may include forms, reports, letters, and other evidence
of various types such as photographs, videotapes or drawings. Evidence may not be incorporated by reference, nor
may evidence from another individual’s case file be used. Evidence contained in another of the claimant’s case file(s)
may be used, but a copy of that evidence should be placed into the case file being adjudicated. All evidence that forms
the basis of a decision must be in that claimant’s case record. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Initial Development of Claims, Chapter 2.800.5a (June 2011).

2

IT IS HEREBY ORDERED THAT the October 23, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further
proceedings consistent with this order of the Board.
Issued: August 4, 2020
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cordova, TN, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket Nos. 19-1964 and
17-1537
Issued: September 23, 2020

Case Submitted on the Record

ORDER REMANDING CASE IN DOCKET NO. 19-1964 AND DISMISSING
PETITION FOR RECONSIDERATION IN DOCKET NO. 17-1537
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge

On September 25, 2019 appellant filed a timely appeal from an April 2, 2019 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate
Boards docketed the appeal as No. 19-1964.1
On December 2, 2015 appellant, then a 41-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that, while delivering mail on November 12, 2015, she tore her right
shoulder rotator cuff when reaching behind to get a package while in the performance of duty. She
stopped work on November 16, 2015 and returned on December 1, 2015.
By decision dated January 12, 2016, OWCP denied appellant’s claim. It accepted that the
November 12, 2015 incident occurred as alleged, but found that the evidence submitted in support

1

The Board notes that appellant submitted additional evidence on appeal. 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.

of her claim was insufficient to establish that her medical condition was caused by the
November 12, 2015 employment incident.
On March 29, 2016 and March 1, 2017 appellant requested reconsideration. By decisions
dated June 27, 2016 and May 19, 2017, OWCP denied modification.
On July 6, 2017 appellant, through counsel, filed a timely appeal with the Board from the
May 19, 2017 decision. By decision dated December 1, 2017, the Board affirmed the May 19,
2017 decision, finding that appellant had not met her burden of proof to establish a right shoulder
injury causally related to the accepted November 12, 2015 employment incident.2
On December 13, 2018 appellant requested reconsideration.3 In support thereof appellant
submitted a number of medical reports dated from November 16, 2015 to December 12, 2018.
By decision dated April 2, 2019, OWCP denied appellant’s reconsideration request, finding
that it was untimely filed and failed to demonstrate clear evidence of error.
The Board finds that this case is not in posture for decision. OWCP summarily denied
appellant’s request for reconsideration without complying with the review requirements of the
Federal Employees’ Compensation Act4 (FECA) and its implementing regulations.5 Section 8124
of FECA provides that OWCP shall determine and make a finding of fact and make an award for
or against payment of compensation.6 Its regulations at 20 C.F.R. § 10.126 provide that the
decision of the Director of OWCP shall contain findings of fact and a statement of reasons.7 As
well, OWCP’s procedures provide that the reasoning behind OWCP’s evaluation should be clear
enough for the reader to understand the precise defect of the claim and the kind of evidence which
would overcome it.8
The Board finds that OWCP failed to properly explain the findings with respect to the issue
presented so that appellant could understand the basis for the decision, i.e., whether she had
demonstrated clear evidence that OWCP’s last merit decision was incorrect. The Board will
therefore set aside OWCP’s April 2, 2019 decision and remand the case for findings of fact and a
statement of reasons, to be followed by an appropriate decision.

2

Id.

OWCP’s April 2, 2019 decision notes that appellant’s request for reconsideration was received on
December 4, 2018. This, however, appears to be a typographical error as the record establishes that it was received
on December 13, 2018.
3

4

5 U.S.C. § 8101 et seq.

5

C.D., Docket No. 20-0450; see also 20 C.F.R. § 10.607.

6

5 U.S.C. § 8124(a).

7

20 C.F.R. § 10.126.

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013).

2

The Board notes that appellant also indicated on her appeal form that she was appealing
from the Board’s December 1, 2017 decision in Docket No. 17-1537. However, that decision
became final upon the expiration of 30 days from the date of issuance.9 As appellant did not file
her disagreement with the Board’s December 1, 2017 decision until September 25, 2019 this
submission may not be deemed as a timely petition for reconsideration as it was filed in excess of
30 days from the date of issuance.10 Thus the petition for reconsideration of the December 1, 2017
Board decision must be dismissed as untimely filed. Accordingly,
IT IS HEREBY ORDERED THAT the April 2, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this order of the Board.
IT IS FURTHER ORDERED THAT the petition for reconsideration in Docket No.
17-1537 is dismissed as untimely filed.
Issued: September 23, 2020
Washington, DC

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

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

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

9

20 C.F.R. § 501.6(d).

10

Id. at § 501.7(a).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Farmer City, IL, Employer
__________________________________________

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

Docket No. 09-941
Issued: November 13, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 26, 2009 appellant filed a timely appeal of the January 12, 2009 merit
decision of the Office of Workers’ Compensation Programs finding that he did not sustain an
injury in the performance of duty. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained carpal tunnel syndrome in the performance of
duty.
FACTUAL HISTORY
On November 4, 2008 appellant, then a 49-year-old letter carrier, filed an occupational
disease claim. On October 20, 2007 he first realized that his carpal tunnel syndrome was caused
by his federal employment, which included carrying bundles of mail for over 27 years.
Appellant stated that his hands fell asleep during the workday and at night.

By letter dated November 19, 2008, the Office advised appellant that the evidence
submitted was insufficient to establish his claim. It requested a rationalized medical report from
an attending physician which described appellant’s symptoms, results of examination and tests,
diagnosis, treatment provided, the effect of treatment and opinion with medical reasons on
whether the work activities in his federal employment contributed to his condition. Appellant
was allowed 30 days to submit such evidence. He did not respond.
By decision dated January 12, 2009, the Office denied appellant’s claim. It found the
factual evidence was sufficient to establish that he cased mail as a letter carrier, but found that
appellant failed to submit any medical evidence establishing carpal tunnel syndrome causally
related to his accepted work-related duties.1
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his claim including the fact that the individual is
an “employee of the United States” within the meaning of the Act, that the claim was timely filed
within the applicable time limitation period of the Act, that an injury was sustained in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.3 These are the essential
elements of each compensation claim regardless of whether the claim is predicated upon a
traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in a claim for an
occupational disease claim, an employee must submit the following: (1) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; (2) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.5 Causal relationship is a medical issue and the medical evidence
generally required to establish causal relationship is rationalized medical evidence. Rationalized
medical opinion evidence is medical evidence, which includes a physician’s rationalized opinion
on whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. 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
1

Following the issuance of the Office’s January 12, 2009 decision, it received additional evidence. The Board
may not consider evidence for the first time on appeal, which was not before the Office at the time, it issued the final
decision in the case. 20 C.F.R. § 501.2(c). Appellant can submit this evidence to the Office, with a formal written
request for reconsideration. 5 U.S.C. § 8128; 20 C.F.R. § 10.606.
2

5 U.S.C. §§ 8101-8193.

3

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

See Delores C. Ellyett, 41 ECAB 992, 994 (1990); Ruthie M. Evans, 41 ECAB 416, 423-25 (1990).

5

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

2

and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.6
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief that his condition was aggravated by his employment is sufficient to
establish causal relationship.7
ANALYSIS
The Board finds that appellant has failed to establish a causal relationship between his
carpal tunnel syndrome and his accepted work-related duties. The Office’s November 19, 2008
developmental letter specifically requested that appellant submit a rationalized medical opinion
from his attending physician as to whether his federal employment contributed to the claimed
carpal tunnel syndrome. Appellant did not submit such evidence. The Board finds, therefore,
that he failed to meet his burden of proof.
On appeal, appellant contended that his delay in submitting the requested medical
evidence was due to medical insurance procedures and that an attending physician had to
examine him a second time to be referred for diagnostic testing to confirm his carpal tunnel
syndrome. He can submit any new evidence to the Office and request reconsideration.8
CONCLUSION
The Board finds that appellant has failed to establish that he sustained carpal tunnel
syndrome in the performance of duty.

6

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
7

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

8

5 U.S.C. § 8128; 20 C.F.R. § 10.606.

3

ORDER
IT IS HEREBY ORDERED THAT the January 12, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 13, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.R., Appellant
and
DEPARTMENT OF COMMERCE, U.S.
CENSUS BUREAU, Philadelphia, PA, Employer
__________________________________________
Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 15-583
Issued: December 9, 2015

Case Submitted on the Record

ORDER VACATING PRIOR BOARD DECISION
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

On August 26, 2015 the Board issued a decision and order in the above-entitled case. By
that decision and order, the Board found in the “CONCLUSION” portion that appellant had not
established that she sustained bilateral carpal tunnel syndrome causally related to her March 14,
2002 employment injury and also had not established that she was disabled from March 20 to
July 15, 2003 due to her accepted work injury. However, in the “ORDER” portion the Board
stated in pertinent part, “the November 5, 2014 decision of the Office of Workers’ Compensation
Programs [OWCP] is set aside and the case is affirmed.” The Board notes that the
aforementioned language was inadvertently included in the August 26, 2015 decision and order
as the Board intended to affirm OWCP’s November 5, 2014 decision in its entirety.
The Board has duly considered the matter and concludes that, since the Board’s
conclusion reflected its intention to affirm OWCP’s November 5, 2014 decision in its entirety,
but the order reflected that OWCP’s decision was “set aside and the case is affirmed,” the
August 26, 2015 decision order was issued in error. As such, the decision and order was void
ab initio, that is, void from its inception and of no force and effect.1 Consequently, the Board
1

Cf. Donald E. Buckles, 43 ECAB 707 (1992), in which the Board found that its prior order remanding case was
void ab initio where the Board had no authority, due to lack of jurisdiction, to issue the order at the time of issuance.
In the instant case, the Board issued the August 26, 2015 decision and order with a conflicting order that was not
indicative of the Board’s conclusion and supporting analysis.

will reissue the decision and order to reflect the proper disposition of the case, which is to affirm
OWCP’s November 5, 2014 decision in its entirety. Accordingly,
IT IS HEREBY ORDERED THAT the August 26, 2015 decision and order of the
Board is set aside.2
Issued: December 9, 2015
Washington, DC

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

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

2

James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the
Board effective November 16, 2015 and did not participate in the preparation of this order

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.B., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Miami, FL, Employer
__________________________________________

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

Docket No. 09-874
Issued: December 1, 2009

Case Submitted on the Record

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

JURISDICTION
On February 12, 2009 appellant filed a timely appeal of an October 27, 2008 decision of
the Office of Workers’ Compensation Programs denying his request for reconsideration on the
grounds that it was untimely filed and failed to establish clear evidence of error. Because more
than one year has elapsed from the last merit decision dated October 23, 2006 to the filing of this
appeal on February 12, 2009, the Board lacks jurisdiction to review the merits of this case
pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration on
the grounds that it was untimely filed and failed to establish clear evidence of error.
FACTUAL HISTORY
On February 16, 2006 appellant, then a 52-year-old customs and border patrol officer,
filed a traumatic injury claim alleging that on January 17, 2006 he sustained lung failure due to

exposure to lung irritants consisting of cold air temperatures and internal air conditioning airflow
currents. He stopped work on January 17, 2006 and returned to work on February 16, 2006. The
employing establishment controverted the claim.
In a February 16, 2006 statement, appellant noted that, 11 days before the date of injury,
he had conjunctivitis and a flu viral infection, for which he took sick leave to avoid the extreme
cold temperatures and changing weather conditions at work. He further noted returning to work
on January 13, 2006 with no flu symptoms. Appellant indicated that on January 17, 2006 he
worked in an interior and exterior area with cold temperatures. His supervisor advised that he
remove his jacket as it violated the uniform regulation. Appellant reported subsequently feeling
cold in his chest whereby he sustained “bronchospasms” and began coughing, choking and had
difficulty breathing. He reported being taken to the hospital where he was diagnosed with lung
failure from taking off his jacket and exposure to cold air at work. Appellant also submitted
several witness statements verifying the January 17, 2006 work incident and supporting that he
experienced cold working conditions.
Hospital reports dated January 17, 20 and 24, 2006 noted appellant’s complaint of chest
congestion and chest pain. The reports also found bronchopulmonary infection, fever and
bronchio spasm. In a January 18, 2006 report, Dr. Teresa Alfonso, an internist, noted appellant’s
complaint of chest pressure and burning while in a cold area at work. She diagnosed chest pain
syndrome possibly related to respiratory issues, hypertension, hyperlipidemia, obesity and
seizure disorder.
The Office advised appellant of the factual and medical evidence necessary to establish
his claim and allowed him 30 days to submit additional evidence. In an undated statement,
appellant noted that the employing establishment and the Office mishandled his claim and
violated the Federal Employees’ Compensation Act and its implementing regulations. He also
submitted diagnostic test results and several treatment notes dated between January 19 and 27,
2006 from Dr. Jose M. Birriel, a pulmonary specialist, who diagnosed asthmatic bronchitis,
bronchopulmonary infection, high blood pressure and obesity.
In a June 21, 2006 decision, the Office denied appellant’s claim finding that he did not
demonstrate that the claimed medical condition related to established work-related events.
In a July 19, 2006 statement, appellant requested a review of the written record. He also
noted that he had been approved for continuation of pay but had not been paid or informed about
it. Appellant reiterated his belief that the Office mishandled his claim. He stated that other
coworkers had documented claims of having the flu from working in extremely cold
temperatures. Appellant further reiterated that exposure to cold caused his claimed lung
condition and that the medical evidence sufficiently established causal relationship.
In an October 23, 2006 decision, an Office hearing representative affirmed the June 21,
2006 decision finding the medical evidence insufficient to establish causal relationship between
appellant’s employment environment and his diagnosis.
In January 2007, appellant submitted several medical reports pertaining to a 2003 head
injury and seizure disorder.

2

On October 31, 2007 the Office received an undated reconsideration request from
appellant, who listed medical documents he was attaching. No envelope bearing a postmark for
the request is in the record. With this request, appellant submitted an October 31, 2006 report
from Dr. Birriel who noted treating appellant since January 20, 2006 for acute bronchial asthma
secondary to exposure to 40-degree weather temperatures without a jacket. Dr. Birriel opined
that it was medically proven that changing weather conditions could trigger asthma attacks.
Appellant also submitted work restriction notes dated October 20 and November 7, 2006.
In subsequent telephone conversation memoranda, the Office noted that appellant
indicated that he had requested reconsideration in October 2007. It notified him through both
letter and telephone that there was no reconsideration request of record.
In a letter dated October 24, 2007 and received by the Office on October 2, 2008,
appellant requested reconsideration. He also indicated that previous denials of his claim were an
abuse of discretion as there was “more than enough medical evidence” to establish causal
relationship. Appellant further indicated that exposure to cold temperatures at work without a
jacket caused his lung failure. He reiterated that the Office mishandled his claim and violated
the Act and U.S. laws. Appellant also noted that, due to the stress of the claim, he decided to
forget about it and allow it to go inactive. He further noted that, days before the one-year time
limitation elapsed, he decided to file for reconsideration. Appellant stated that the claims
examiner demonstrated bias against him and increased his burden of proof for submission of
evidence. He also asserted that he had previously submitted a reconsideration request and
supported his assertion by attaching a return receipt showing that the Office received a mailing
from him on October 30, 2007. Appellant also submitted a certified mail receipt addressed to the
Office’s address for reconsideration requests with an October 24, 2007 postmark.
In an October 27, 2008 decision, the Office denied appellant’s reconsideration request as
untimely filed. It further found that there was no evidence or arguments submitted that showed
clear evidence of error.
LEGAL PRECEDENT
The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a) of the Act.1 It will not review a decision denying
or terminating a benefit unless the application for review is filed within one year of the date of
that decision.2 In implementing the one-year time limitation, the Office’s procedures provide
that the one-year time limitation period for requesting reconsideration begins on the date of the
original Office decision. However, a right to reconsideration within one year accompanies any
subsequent merit decision on the issues.3

1

5 U.S.C. § 8128(a).

2

20 C.F.R. § 10.607; see also D.K., 59 ECAB ___ (Docket No. 07-1441, issued October 22, 2007).

3

Veletta C. Coleman, 48 ECAB 367 (1997).

3

When an application for review is untimely, the Office undertakes a limited review to
determine whether the application presents clear evidence that the Office’s final merit decision
was in error.4 Its procedures state that the Office will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if the claimant’s
application for review shows clear evidence of error on the part of the Office.5 In this regard, the
Office will limit its focus to a review of how the newly submitted evidence bears on the prior
evidence of record.6
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office. The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error. Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error. It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office. To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to raise a substantial question as to the correctness of the Office’s decision. The
Board makes an independent determination of whether a claimant has submitted clear evidence
of error on the part of the Office, such that the Office abused its discretion in denying merit
review in the face of such evidence.7
ANALYSIS
The Board finds that the Office properly found that appellant filed an untimely request
for reconsideration. The one-year period for requesting reconsideration begins on the date of the
original decision. A right to reconsideration within one year accompanies any subsequent merit
decision on the issues. This includes any hearing or review of the written record decision, any
denial of modification following reconsideration, any merit decision by the Board and any merit
decision following action by the Board, but does not include prerecoupment hearing decisions.8
The Board notes that the Office’s procedures, at Chapter 2.1602.3(b)(1), provides that timeliness
for a reconsideration request is determined not by the date the Office receives the request, but by
the postmark on the envelope. The Office’s procedures provide that timeliness is determined by

4

A.F., 59 ECAB ___ (Docket No. 08-977, issued September 12, 2008).

5

E.R., 60 ECAB ___ (Docket No. 09-599, issued June 3, 2009).

6

D.G., 59 ECAB ___ (Docket No. 08-137, issued April 14, 2008).

7

Id.

8

Leon D. Faidley, 41 ECAB 104, 111 (1989). Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.3.b(1) (January 2004).

4

the postmark on the envelope, if available. Otherwise, the date of the letter itself should be
used.9
The envelope containing appellant’s initial reconsideration request was not retained in the
record. Also, the initial request was undated and not received by the Office until
October 31, 2007. This is more than one year after the October 23, 2006 decision. Appellant
contacted the Office about the status of his reconsideration request when the Office did not
acknowledge the request. In documents received by the Office on October 2, 2008, he submitted
what appears to be a more complete version of the reconsideration request that the Office
previously received on October 31, 2007. This request was dated October 24, 2007 and
appellant submitted a certified mail receipt with an October 24, 2007 postmark for a document
mailed to the Office to support the date of mailing of his request. While his submissions that
were received by the Office on October 2, 2008 are consistent with mailing his reconsideration
request on October 24, 2007 and are consistent with the reconsideration request received on
October 31, 2007, they are insufficient to establish that the reconsideration was timely filed.
Even assuming, consistent with the evidence submitted by appellant, that his reconsideration
request was dated and postmarked on October 24, 2007, his request was untimely as it was not
submitted within one year of the October 23, 2006 decision.10
In computing a time period, the date of the event from which the designated period of
time begins to run shall not be included while the last day of the period so computed shall be
included unless it is a Saturday, Sunday or a legal holiday.11 Therefore, the one-year time period
following the October 23, 2006 decision began to run on the day after the decision, on
October 24, 2006 and ran through October 23, 2007.12 Consequently, appellant’s October 24,
2007 reconsideration request was not submitted within one year of the October 23, 2006
decision.
The Board also finds that appellant did not submit any evidence with his reconsideration
request that raises a substantial question concerning the correctness of the Office’s October 27,
2008 decision and establishes clear evidence of error. In an October 24, 2007 statement,
appellant noted that working in cold temperatures caused his diagnosed condition and that he
submitted “more than enough” medical evidence to establish causal relationship. Additionally,
he asserted that the Office mishandled his claim and that the claims examiner demonstrated bias
against him and increased his burden of proof. However, these are broad and general statements
that do not specifically address the relevant issue, which is medical in nature, regarding whether
appellant sustained a traumatic injury on January 17, 2006 due to exposure to cold temperatures.
9

20 C.F.R. § 10.607(a); Federal (FECA) Procedure Manual, supra note 8.

10

An application for reconsideration must be sent within one year of the date of the Office decision for which
review is sought. If submitted by mail, the application will be deemed timely if postmarked by the U.S. Postal
Service within the time period allowed. If there is no such postmark or it is not legible, other evidence such as (but
not limited to) certified mail receipts, certificate of service and affidavits, may be used to establish the mailing date.
20 C.F.R. § 10.607(a).
11

John B. Montoya, 43 ECAB 1148 (1992).

12

October 23, 2007 fell on a Tuesday and was not a legal holiday.

5

Moreover, appellant’s arguments are not supported by any additional evidence submitted to the
record. Thus, his statement does not raise a substantial question as to the correctness of the
Office’s decision
In an October 31, 2006 report, Dr. Birriel diagnosed acute bronchial asthma secondary to
exposure to 40-degree weather temperatures without a jacket. He opined that it was medically
proven that changing weather conditions could trigger asthma attacks. Although Dr. Birriel’s
October 31, 2006 report supports causal relationship, it does not establish clear evidence of error
as the physician’s opinion generally relating asthma to changing weather conditions did not
explain how this specifically applied to appellant’s asthma condition. The Board notes that the
term clear evidence of error is intended to represent a difficult standard. The submission of a
detailed well-rationalized medical report which, if submitted before the denial was issued, would
have created a conflict in medical opinion requiring further development, is not clear evidence of
error.13 Additionally, the work restriction forms dated October 20 and November 7, 2006 as well
as the treatment notes pertaining to appellant’s 2003 head injury do not raise any substantial
questions as to the correctness of the October 23, 2006 merit decision as none address the issue
of causal relationship for the claimed January 17, 2006 injury.
On appeal, appellant asserts that the Office’s October 27, 2008 decision is an abuse of
discretion and error of law as he had timely filed his reconsideration request. As noted, the
evidence demonstrates that his reconsideration request was filed after the one-year time period
had elapsed. Appellant also asserted that, due to his health problems, he required additional time
to file all required documents and exhibits to the Board for the current appeal. However, the
Board may only review evidence that was in the record at the time the Office issued its final
decision.14
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration on
the grounds that it was untimely filed and failed to establish clear evidence of error.

13

Supra note 4.

14

20 C.F.R. § 501.2(c).

6

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated October 27, 2008 is affirmed.
Issued: December 1, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Brooklyn Center, MN, Employer
__________________________________________

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

Docket No. 14-935
Issued: July 25, 2014

Case Submitted on the Record

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

JURISDICTION
On March 18, 2014 appellant filed a timely appeal from a December 12, 2013 decision of
the Office of Workers’ Compensation Programs (OWCP) denying his reconsideration request.
Because more than 180 days elapsed from the most recent OWCP merit decision dated
February 13, 2012, to the filing of this appeal, the Board lacks jurisdiction to review the merits of
appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c), 501.3.
ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was not timely filed and failed to present clear evidence of error.
FACTUAL HISTORY
On September 13, 1988 appellant, then a 36-year-old letter carrier, was involved in a
rear-end motor vehicle collision and sustained a neck injury. OWCP accepted his claim for
cervical strain and herniated disc at C6-7. Appellant stopped work on September 15, 1988 and
was eventually placed on the periodic rolls.

On September 15 and 19, 1988 appellant came under the treatment of Dr. Thomas C.
Jetzer, a Board-certified physiatrist, for a neck and shoulder injury. Dr. Jetzer diagnosed
resolving cervical strain and returned appellant to work full-time light duty. In reports dated
July 30, 1990 and April 30, 1991, he treated appellant for neck pain and diagnosed C5-6 and
C6-7 disc herniation and cervical degenerative disc disease. On April 30, 1991 Dr. Jetzer noted
that appellant had reached maximum medical improvement and recommended a functional
capacity evaluation. In a report dated January 8, 2001, he diagnosed preexisting degenerative
disc disease without evidence of ongoing, progressive or lasting pathology from the 1988 work
injury, other than the natural aging process. Dr. Jetzer opined that appellant was functioning
normally and capable of returning to work at regular duty as a letter carrier without restrictions
Appellant submitted a November 25, 1988 report from Dr. Daniel C. Randa, a Boardcertified neurologist, who treated him for cervical pain radiating into the left arm after a
work-related motor vehicle accident. Dr. Randa noted that a magnetic resonance imaging (MRI)
scan revealed central disc herniation at C6-7 and C5-6. On January 20, 1989 he treated appellant
for cervical pain radiating into the left arm after a motor vehicle accident in September 1988.
Dr. Randa diagnosed cervical spondylosis with C5-6 and C6-7 disc herniation with cord
encroachment. In a February 16, 1989 report, Dr. John Gfrerer, a Board-certified family
practitioner, treated appellant for neck pain after the work injury on September 13, 1988. He
opined that the neck injury and cord compression occurred as a result of appellant’s motor
vehicle accident. Appellant submitted a January 16, 1990 report from Dr. Sean P. Flood, a
physiatrist, who treated him for neck pain, numbness and weakness. Dr. Flood diagnosed
chronic degenerative disc disease in the neck, herniated disc at C5-6 and continued appellant’s
work restrictions.
OWCP referred appellant for a second opinion evaluation to Dr. E. Harvey O’Phelan, a
Board-certified orthopedic surgeon. In a June 11, 2004 report, Dr. O’Phelan found that appellant
had severe osteoarthritis of the cervical spine which was not causally related to the work injury
of September 13, 1988. Further, appellant had no residuals of the work-related injury.
OWCP found a conflict of opinion between appellant’s treating physician and
Dr. O’Phelan and referred him to a referee to resolve the conflict. In a September 22, 2010
report, Dr. Gary Wyard, a Board-certified orthopedic surgeon and referee physician, diagnosed
longstanding cervical degenerative disc disease and severe osteoarthritis of the cervical spine.
He opined that appellant’s cervical condition was not causally related to the September 13, 1988
work injury and determined that he did not have work-related residuals.
On October 7, 2010 OWCP issued a notice of proposed termination of compensation
benefits based on Dr. Wyard’s September 22, 2010 report.
In a statement dated November 4, 2010, appellant disagreed with the proposed
termination and submitted reports from Dr. Jetzer dated October 29, 1990 and
November 5, 1991, previously of record.
By decision dated December 3, 2010, OWCP terminated appellant’s compensation
benefits effective that day. It found that the weight of the medical evidence established that
residuals of his work-related injury had ceased.

2

On November 28, 2011 appellant requested reconsideration.
He submitted a
November 14, 2011 report from Dr. Paul J. Crowe, a Board-certified orthopedic surgeon, who
diagnosed advanced degenerative disc disease of the cervical spine worsened by the rear-end
automobile injury. Based on appellant’s history, the 1988 accident resulted in a significant
permanent aggravation of his preexisting problem. In a November 28, 2011 report, Dr. L.L.
Lira, a Board-certified orthopedic surgeon, reviewed a history of the 1988 car accident and
subsequent medical treatment. He opined that the probability was 51 percent or greater that the
aggravation and progression of appellant’s preexisting degenerative disc disease was directly
connected to the accident of September 13, 1988.
In a decision dated February 13, 2012, OWCP denied modification of the
December 3, 2010 decision.
On February 4, 2013 appellant requested reconsideration. He submitted a myelogram
dated March 20, 1989; reports from Dr. Jetzer dated October 29, 1990 to February 10, 1992; a
functional capacity report dated 1991; a second opinion report from Dr. O’Phelan dated
June 11, 2004; a January 16, 2009 report from Dr. Flood; a referee report from Dr. Wyard dated
September 22, 2010; a November 14, 2011 report from Dr. Crowe and a report from Dr. Lira
dated November 28, 2011, all previously of record. Appellant also submitted a recent MRI scan
of the cervical spine dated October 15, 2012.
In a decision dated March 21, 2013, OWCP denied appellant’s reconsideration request on
the grounds that the evidence submitted was insufficient to warrant further merit review.
In an appeal request form dated October 2, 2013, appellant requested reconsideration. He
disagreed with OWCP’s decision to terminate his compensation and asserted that the opinions of
the second opinion physician, Dr. O’Phelan and the referee physician, Dr. Wyard should be
dismissed. Appellant asserted that Dr. O’Phelan failed to base his diagnosis on the accepted
claim of herniated disc but on degenerative disc disease. As a result, no true conflict of medical
opinion arose and he should not have been referred to Dr. Wyard. Appellant contented that
Dr. Wyard circumvented the accepted facts and that Dr. Crowe’s November 14, 2011 report
supported that his accepted motor vehicle accident resulted in a permanent aggravation of his
cervical condition. He submitted evidence previously of record. Appellant also submitted duty
status reports from Dr. Lira dated February 15 and December 10, 2012 which diagnosed
herniated C6-7, C3-4 and cervical strain. Dr. Lira noted that appellant could resume work on
February 15, 2012 with permanent restrictions. A February 4, 2013 electromyogram (EMG)
revealed changes in the bilateral nerve distributions seen in carpal tunnel syndrome. Also
submitted was a list of appellant’s treating physicians and a list of OWCP physicians.
By decision dated December 12, 2013, OWCP denied appellant’s request for
reconsideration finding that it was untimely and did not establish clear evidence of error.

3

LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, decrease or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”1
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a). As one such limitation, section 10.607(a) of the
implementing regulations provide that an application for reconsideration must be received within
one year of the date of OWCP’s decision for which review is sought.2 However, OWCP will
reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation, if the
claimant’s application for review shows clear evidence of error on the part of OWCP in its most
recent merit decision. To establish clear evidence of error, a claimant must submit evidence
relevant to the issue that was decided by OWCP. The evidence must be positive, precise and
explicit and must be manifest on its face that OWCP committed an error.3
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 OWCP’s decision.4
Evidence that does not raise a substantial question concerning the correctness of OWCP’s
decision is insufficient to establish clear evidence of error.5 It is not enough merely to show that
the evidence could be construed so as to produce a contrary conclusion.6 This entails a limited
review by OWCP of the evidence previously of record and whether the new evidence
demonstrates clear error on the part of OWCP.7 The Board makes an independent determination
as to whether a claimant has submitted clear evidence of error on the part of OWCP.8

1

5 U.S.C. § 8128(a).

2

20 C.F.R. § 10.607(a).

3

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

4

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

5

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

6

Id.

7

Id.

8

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

4

ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
application for review. OWCP’s procedures provide that the one-year time limitation period for
requesting reconsideration begins on the date of the original OWCP decision.9 A right to
reconsideration within one year also accompanies any subsequent merit decision on the issues.
Appellant’s October 2, 2013 request for reconsideration was not received within one year after
the most recent merit decision of February 13, 2012. Therefore, it was untimely. Consequently,
appellant must demonstrate clear evidence of error by OWCP in denying his claim for
compensation.
The Board further finds that appellant has not established clear evidence of error on the
part of OWCP in denying his claim. Appellant’s October 2, 2013 letter disagreed with OWCP’s
decision to terminate his compensation and asserted that the opinions of OWCP’s referral
physicians should be dismissed. He asserted that Dr. O’Phelan failed to base his diagnosis on the
accepted claim of herniated disc but based his opinion on his degenerative disc disease and
Dr. Wyard circumvented the accepted facts by omission and deception. Appellant asserts that
Dr. Crowe’s November 14, 2011 report supports a continuing work-related condition. While he
addressed his disagreement with OWCP’s termination of his medical and compensation benefits,
appellant’s general allegations do not raise a substantial question as to the correctness of
OWCP’s decision.
In support of his reconsideration request, appellant also submitted additional evidence,
but much of it was previously of record and previously considered by OWCP. He did not
explain how this evidence was positive, precise and explicit in manifesting on its face that
OWCP committed an error in denying his claim for compensation. The resubmission of this
evidence is not sufficient to raise a substantial question as to the correctness of OWCP’s decision
or show clear evidence of error.
Appellant submitted duty status reports from Dr. Lira dated February 15 and
December 10, 2012 which diagnosed herniated C6-7, C3-4 and cervical strain. Dr. Lira noted
that appellant could resume work on February 15, 2012 with permanent restrictions. Also
submitted was a February 4, 2013 EMG report. The reports do not explain how appellant’s
continuing condition or disability is causally related to his employment. The Board notes that
clear evidence of error is intended to represent a difficult standard. The submission of a detailed
well-rationalized medical report which, if submitted before the denial was issued, would have
created a conflict in medical opinion requiring further development, is not sufficient to establish
clear evidence of error.10 Appellant has not established clear evidence of error by OWCP in its
December 12, 2013 decision.
On appeal, appellant asserts that his reconsideration request should be deemed timely
because he sought to correct deficiencies in his February 4, 2013 reconsideration request. He
cited no authority for his contention that the time period for requesting reconsideration should be
9

20 C.F.R. § 10.607(a).

10

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

5

extended under such circumstances. Appellant also reiterated assertions that he made before
OWCP that the termination of his benefits was improper. As noted, the Board does not have
jurisdiction over the merits of the claim.
CONCLUSION
The Board finds that appellant’s request for reconsideration was untimely filed and did
not demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the December 12, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 25, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


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

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

Docket No. 12-397
Issued: January 25, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 13, 2011 appellant, through her attorney, filed a timely appeal from the
July 20, 2011 merit decision of the Office of Workers’ Compensation Programs. Pursuant to the
Federal Employees’ Compensation Act (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of the appeal.1
ISSUE
The issue is whether appellant established that she sustained an injury on December 12,
2008, as alleged.
FACTUAL HISTORY
On August 6, 2009 appellant, then a 35-year-old retail sales associate, filed a claim
alleging an iliosacral disc herniation on December 12, 2008 after lifting a large package.

1

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

Appellant’s supervisor controverted the claim, noting that she was unaware of any injury until
reported to her on August 6, 2009. Appellant did not stop work.
On August 5, 2009 Dr. Alia Mesh, a Board-certified neurologist, completed a note
certifying that appellant had been under her care since February 3, 2009. She noted that
appellant had severe neck and low back pain radiating down the left arm and leg. Appellant
underwent a March 31, 2009 magnetic resonance imaging (MRI) scan of the low back that
revealed left iliosacral disc herniation inflammation. Dr. Mesh recommended physical
limitations, noting no more than three hours of continuous walking with lifting and pushing
limited to 15 pounds.
In an August 31, 2009 letter, OWCP advised appellant that the evidence of record was
not sufficient to establish her claim. It requested that she submit additional medical evidence
within 30 days. In response, appellant submitted two treatment notes from Dr. Mesh dated
September 23, 2009 that noted her work restrictions.
In an October 1, 2009 decision, OWCP denied appellant’s claim. It found that she failed
to establish that the December 12, 2008 incident occurred at the time, place and in the manner
alleged. Further, the medical evidence was not sufficient to establish causal relation.
In a statement received October 1, 2009, appellant noted that her injury did not occur on
December 12, 2008. Rather, she stated that the date of injury was November 26, 2008, as it
occurred three days prior to her mother’s birthday. Appellant submitted a November 25, 2009
request for reconsideration and submitted additional medical records.
In a September 29, 2009 report, Dr. David V. Inslicht, a Board-certified internist, noted
that appellant was examined for the first time that day. Appellant reported a history of a neck
injury at work on December 12, 2008 when she lifted a heavy box. Dr. Inslicht stated that an
MRI scan of March 31, 2009 revealed a C4-5 herniated disc with spinal cord impingement.
Appellant continued to experience neck pain with left hand numbness. Dr. Inslicht advised that
she could work with restrictions and that the duration of disability was unclear.
Appellant submitted a December 2, 2008 report from Susan Cronk, a nurse, who reported
a history of the onset of right leg pain and numbness three days prior. She also submitted
treatment notes dated February 3 and April 28, 2009 from Dr. Mesh, who noted that appellant
had complained of numbness in her hands, which might be carpal tunnel syndrome. A cervical
MRI scan was recommended. Physical examination of the lumbar spine revealed tenderness.
On November 5, 2009 Dr. Apostolos P. Tambakis, a Board-certified orthopedic surgeon,
obtained a history of injury on November 26, 2008 while appellant carried a heavy box at work.
He noted her complaint of pain at the base of her neck and left upper extremity, which gradually
increased. Appellant was examined by a neurologist in February 2009 and diagnosed with a
herniated disc. In July, her position change to a letter carrier which aggravated her symptoms of
neck and low back pain. Dr. Tambakis stated that appellant’s work duties aggravated her
cervical and low back condition and she stopped work on September 23, 2009. He diagnosed a
cervical sprain, C4-5 herniated disc and low back sprain.

2

In a January 13, 2010 report, Dr. Mathew Lefkowitz, a specialist in pain medicine, noted
that appellant was originally seen on October 19, 2009 for left-sided neck pain, low back pain
and bilateral leg pain. He administered a cervical facet joint injection. On November 11, 2009
appellant reported relief from the neck pain and Dr. Lefkowitz administered an injection in the
left superior trapeziums musculature. On December 1 and 22, 2009 she complained primarily of
low back pain, left greater than right side, radiating into the buttocks bilaterally. Dr. Lefkowitz
performed a transforaminal lumbar selective epidural nerve root block and steroid injections. He
noted that on January 13, 2010 appellant informed him that the pain she experienced was the
result of a work-related accident on November 26, 2008 while carrying heavy boxes.
Dr. Lefkowitz noted that she obtained temporary pain relief from previous diagnostic injections
and recommended bilateral lumbar facet joint radio frequency ablations with physical therapy.
By decision dated February 12, 2010, OWCP denied modification of the October 1, 2009
denial of her claim. It accepted that the November 26, 2008 incident took place at work as
alleged; but found that the medical evidence of record was not sufficient to establish causal
relationship with her cervical or low back conditions.
On April 14, 2011 appellant, through her attorney, requested reconsideration of her claim.
She submitted medical reports previously of record and additional treatment notes from
Dr. Tambakis, physical therapy records and nursing reports.
In a July 20, 2011 decision, OWCP denied modification of its prior decisions. It found
that the medical evidence did not sufficiently address the issue of causal relation.
LEGAL PRECEDENT
An employee seeking benefits under the FECA has the burden of establishing the
essential elements of her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA; that the claim was filed within applicable time
limitations; that an injury was sustained in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.2 These are the essential elements of each claim regardless of whether it is
premised on a traumatic injury or an occupational disease.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether fact of injury has been established.4
The employee must submit sufficient evidence to establish that he or she actually experienced
the employment incident at the time, place and in the manner alleged.5 The employee must also

2

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006); Paul Foster,
56 ECAB 208 (2004).
3

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

4

A.S., 59 ECAB 246 (2007); Louise F. Garnett, 47 ECAB 639 (1996).

5

V.O., 59 ECAB 500 (2008); Julie B. Hawkins, 38 ECAB 393 (1987).

3

submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.6
Causal relationship is a medical question to be resolved by probative evidence from a
physician.7 A rationalized medical opinion must be based on a complete and accurate medical
history of the employee, an accurate factual history of the alleged injury or history of
occupational exposure, must be one expressed to a reasonable degree of medical certainty and
supported by an explanation of the relationship between the diagnosed condition and the specific
employment factors identified by the employee.8
ANALYSIS
The Board notes that appellant originally claimed traumatic injury on December 12, 2008
after lifting a large package in the performance of duty. Appellant subsequently clarified in
statements to the record that the employment incident occurred on November 26, 2008. OWCP
accepted the lifting incident of November 26, 2008 but denied the claim as the medical evidence
was insufficient to establish causal relation.
The Board finds that appellant did not submit a sufficient medical opinion to address the
causal relationship between the accepted lifting incident at work and her claimed back condition.
Appellant originally claimed an iliosacral disc herniation. The August 5, 2009 report of
Dr. Mesh, an attending neurologist, advised that she had treated appellant since
February 3, 2009. She noted appellant’s complaint of neck and low back pain radiating into the
extremities and commented that diagnostic testing showed inflammation of a left iliosacral disc.
Dr. Mesh did not address, however, the November 26, 2008 employment incident or the issue of
casual relationship. She provided physical limitations.
The September 29, 9009 report of Dr. Inslicht, an attending internist, listed a history of
injury on December 12, 2008 as originally claimed. He noted that an MRI scan of March 31,
2009 revealed a C4-5 cervical disc. Dr. Inslicht noted work restrictions and that appellant’s
duration of disability was unclear. He did not record an accurate history of the November 26,
2008 incident accepted by OWCP or address how the cervical disc found on testing in
March 2009 would relate back to appellant’s work activities of that date.9 It is well-established
that medical opinions based on an incomplete history or which are speculative or equivocal are
of diminished probative value.10

6

C.B., Docket No. 08-1583 (issued December 9, 2008); Barbara R. Middleton, 56 ECAB 634 (2005).

7

See M.D., 59 ECAB 211 (2007); Donald W. Wenzel, 56 ECAB 390 (2005).

8

See Larry D. Dunkin, 56 ECAB 220 (2004); Thomas L. Hogan, 47 ECAB 323 (1996).

9

The Board has held that a delay in obtaining diagnostic testing may diminish the probative value of a medical
opinion. See Linda L. Mendenhall, 41 ECAB 532 (1990).
10

See Cecelia M. Corley, 56 ECAB 662 (2005).

4

On November 5, 2009 Dr. Tambakis obtained an accurate history of the November 26,
2008 lifting incident. He noted appellant’s complaint of pain at the base of her neck and the left
upper extremity. Dr. Tambakis referred generally to the neurosurgical evaluation and the
diagnosis of a herniated disc and stated that a change in appellant’s work in July 2009 had
aggravated her symptoms. He diagnosed a cervical sprain, C4-5 herniated disc and low back
pain. The Board notes that, while Dr. Tambakis generally supported appellant’s claim, he did
not provide adequate medical opinion addressing causal relationship between the diagnosed
conditions and the accepted employment incident of November 2008. Further, Dr. Tambakis’
report addresses employment factors from July 2009 presently not implicated in this claim. This
may form the basis for an occupational disease claim rather than one of traumatic injury.11
Dr. Lefkowitz provided treatment notes stating that he first saw appellant on October 19,
2009 for left sided neck and low back pain. His records reflect that he provided a series of facet
joint and epidural injections to her cervical and lumbar spine. Dr. Lefkowitz recorded that
appellant told him on January 13, 2010 that her pain was a result of work incident of
November 26, 2008 while carrying heavy boxes. While he listed the history of injury related to
him by appellant, he did not provide an independent medical opinion addressing causal
relationship. Dr. Lefkowitz’ treatment records do not adequately explain how the injections he
administered to appellant were caused or necessitated by the traumatic incident accepted in this
case. Finally, the records submitted by Ms. Cronk, a nurse, are not probative on the issue of
causal relationship as a nurse is not a physician as defined under FECA.12
For these reasons, the Board finds that appellant has not submitted sufficient medical
evidence to support that the November 26, 2008 incident caused or contributed to her cervical or
lumbar condition. Appellant did not meet her burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a back injury on November 26, 2008.

11

See 20 C.F.R. § 10.5(ee).

12

See Paul Foster, 56 ECAB 208 (2004).

5

ORDER
IT IS HEREBY ORDERED THAT the July 20, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 25, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

6