United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.M., Appellant
and
U.S. POSTAL SERVICE, DULLES
PROCESSING & DISTRIBUTION CENTER,
Dulles, VA, Employer
__________________________________________

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

Docket No. 12-938
Issued: October 15, 2012

Case Submitted on the Record

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

JURISDICTION
On March 6, 2012 appellant filed a timely appeal of the September 9, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for
reconsideration.1 Because more than 180 days elapsed from the most recent merit decision dated
December 9, 2010 to the filing of this appeal, the Board lacks jurisdiction to review the merits of
the case pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3.

1

Under the Board’s Rules of Procedure, the 180-day time period for determining jurisdiction is computed
beginning on the day following the date of OWCP’s decision. See 20 C.F.R. § 501.3(f)(2). As OWCP’s nonmerit
decision was issued on September 9, 2011, the 180-day computation begins September 10, 2011. One hundred and
eighty days from September 10, 2011 was March 7, 2012. Since using March 13, 2012, the date the appeal was
received by the Clerk of the Board, would result in the loss of appeal rights, the date of the postmark is considered
the date of filing. The date of the U.S. Postal Service postmark is March 6, 2012, which renders the appeal timely
filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for further merit review
of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On June 22, 2010 appellant, then a 52-year-old plant manager, filed an occupational
disease claim alleging that on October 31, 2009 she first became aware of her psychological
stress with physical ailments. She alleged that on June 1, 2010 she first realized that her
conditions were caused by her personal relationship with Jerry D. Lane, vice president of area
operations. Appellant’s employment and career advancement were impacted after she attempted
to end the relationship.
In an October 6, 2010 letter, appellant described the development of her professional and
social relationship with Mr. Lane. She described his reaction to her termination of their social
relationship, which included verbal and physical abuse and threats on June 1, 2010. Appellant
filed an assault charge against Mr. Lane who was found guilty.
A June 21, 2010 unsigned medical report from Dr. Holly C. Harris, a Board-certified
family practitioner, advised that appellant was unable to work due to a medical condition.
Dr. Holly could return to work after being cleared by a medical doctor.
In a June 25, 2010 letter, the employing establishment contended that the evidence
submitted by appellant was insufficient to support her allegations regarding the June 1, 2010
incident.
By letter dated October 18, 2010, OWCP addressed the factual evidence that the
employing establishment and appellant needed to submit regarding the claim.
In a November 5, 2010 letter, Michael S. Furey, a district manager, stated that appellant
reported directly to Edward McAteer, a senior plant manager, who reported directly to Mr. Lane.
He related that appellant was not required to have daily contact with Mr. Lane. Mr. Furey noted
that on June 3, 2010 appellant had been separated from the employing establishment.
Appellant submitted a June 2, 2010 misdemeanor arrest warrant for assault that was
issued to Mr. Lane regarding the June 1, 2010 threatening incident.
In a December 9, 2010 decision, OWCP denied appellant’s claim for an emotional
condition, finding that she did not establish a compensable employment factors.
By letter dated June 27, 2011, appellant requested reconsideration. She contended that
her relationship with a senior management official became a condition of her employment and
career advancement after she attempted to end the relationship. Appellant stated that an
October 12, 2010 Equal Employment Opportunity (EEO) Commission settlement agreement
between herself and the employing establishment accompanied her reconsideration request.

2

In an August 25, 2011 letter, Phyllis J. Parks, a human resource management analyst,
contended that appellant had not established any employment factors showing that her injury
occurred in the performance of duty. She further contended that there was no medical evidence
to establish a causal relationship between the claimed injury and medical condition.
In a September 9, 2011 decision, OWCP denied appellant’s request for reconsideration,
finding that she neither raised substantive legal questions nor included new and relevant
evidence sufficient to warrant merit review of its prior decision.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128 of FECA,3
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.4 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.5 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review of the merits.
ANALYSIS
Appellant disagreed with OWCP’s December 9, 2010 decision which denied her claim
for an emotional condition on the grounds that she did not establish any compensable
employment factors. Thus, the issue presented on appeal is whether appellant’s June 27, 2011
request for reconsideration met any of the conditions of 20 C.F.R. § 10.606(b)(2), requiring
OWCP to reopen the case for further review of the merits.
On reconsideration, appellant contended that the relationship she had with a senior
management official became a condition of her employment and career advancement after she
attempted to end the relationship. The Board notes that this allegation is a restatement of her
previous assertion regarding the cause of her emotional condition. This contention does not
show that OWCP erroneously applied or interpreted a specific point of law and it does not
advance a relevant legal argument not previously considered by OWCP. The submission of
evidence which repeats or duplicates evidence that is already in the case record does not
constitute a basis for reopening a case for merit review.6

3

5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, the Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
4

20 C.F.R. § 10.606(b)(1)-(2).

5

Id. at § 10.607(a).

6

See A.K., Docket No. 09-2032 (issued August 3, 2010); M.E., 58 ECAB 694 (2007); Betty A. Butler, 56 ECAB
545 (2005).

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The Board notes that appellant also did not submit relevant and pertinent new evidence
with her request for reconsideration. Appellant stated that a copy of an October 12, 2010 EEO
Commission settlement agreement was attached to her reconsideration request. The Board,
however, notes that the settlement agreement did not accompany the reconsideration request.
The Board finds that OWCP properly determined that appellant was not entitled to
further review of the merits of her claim pursuant to any of the three requirements under section
10.606(b)(2) and properly denied her June 27, 2011 request for reconsideration.7
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for further merit review
of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the September 9, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 15, 2012
Washington, DC

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

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

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

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M.E., 58 ECAB 694 (2007) (when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(2), OWCP will deny the application for reconsideration without
reopening the case for a review on the merits).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Navarre, FL, Employer
__________________________________________

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Appearances:
Capp Taylor, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-1812
Issued: June 10, 2011

Case Submitted on the Record

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

JURISDICTION
On July 1, 2010 appellant, through counsel, filed a timely appeal from a February 22,
2010 merit decision of the Office of Workers’ Compensation Programs denying the expansion of
her claim to include additional conditions. Pursuant to the Federal Employees’ Compensation
Act1 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 her burden of proof to establish that her left
shoulder complete rotator cuff tear and left shoulder impingement syndrome were causally
related to the accepted October 30, 2008 employment injury. On appeal, appellant contends the
evidence is sufficient to warrant further development of the record.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 1, 2008 appellant, then a 47-year-old rural carrier, filed a traumatic injury
claim alleging that on October 30, 2008 she sustained a stiff neck, headache and injuries to her
right foot and left arm, leg and hip as a result of her automobile being rear ended on her way to
work.
By letter dated November 12, 2008, the Office informed appellant that the evidence of
record was insufficient to support her claim. It advised her as to the medical and factual
evidence required to support her claim and gave her 30 days to provide the requested
information.
In a November 28, 2008 progress note, Erin M. Zeh, physician’s assistant, reported that
appellant was seen for a follow-up examination following her October 30, 2008 motor vehicle
accident. X-ray interpretations taken on November 3, 2008 revealed cervical spine, hip and
shoulder degeneration and that a November 17, 2008 x-ray showed a C4-5 subluxation and
further degeneration at C5-6. A physical examination indicated neck muscle spasms, cervical
tenderness on palpitation and lack of full cervical range of motion. Diagnoses included
cervicalgia, left shoulder joint pain, foot pain and hip joint pain.
The record also contains x-ray interpretations of the cervical spine, foot and hip. A hip
x-ray interpretation taken on November 3, 2008 revealed normal hip and sacroiliac joints. The
report also noted “irregular and indistinct focus of sclerosis in the left proximal femoral
metaphysics of indeterminate significance.” A left shoulder November 3, 2008 x-ray
interpretation demonstrated degenerative acromioclavicular joint. A November 17, 2008
cervical spine x-ray interpretation showed a slight subluxation at C4 and C5 without a fracture
which could be degenerative in nature and C5-6 degenerative changes. A November 25, 2008
x-ray interpretation of the left foot revealed a dislocation fracture and left heel spur.
By decision dated December 22, 2008, the Office denied appellant’s claim on the
grounds that the evidence was insufficient to establish a medical condition causally related to the
October 30, 2008 motor vehicle accident.
On January 13, 2009 appellant requested a telephonic oral hearing before an Office
hearing representative, which was held on May 1, 2009.
Following her oral hearing request, appellant submitted additional medical evidence
including an October 30, 2008 emergency room report and reports dated March 12 and April 7,
2009 from Dr. Thomas J. Manski, a treating Board-certified neurologist. On March 12, 2009
Dr. Manski based upon a history of the injury, medical history and physical examination,
diagnosed left posterior neck pain, left trapezius pain, left scapular pain, left shoulder pain, left
upper extremity pain, left interscapular pain, left elbow pain, paresthesias and weakness, C6-7
disc bulge, C3-4 disc osteophyte complex, left shoulder small partial thickness tear and left
acromioclavicular joint degenerative changes. He noted that appellant has had the pain in her
neck, left shoulder and left upper extremity since the October 30, 2008 motor vehicle accident.
Dr. Manski reiterated his findings in his April 7, 2009 report. He also reported that appellant has

2

had lower back pain and intermittent lower extremity parethesias and pain since the October 30,
2008 injury.
By decision dated June 25, 2009, the Office hearing representative found the medical
evidence sufficient to establish a left shoulder strain, but insufficient to establish that appellant’s
right foot and neck conditions were causally related to the accepted October 30, 2008 motor
vehicle accident.
On June 25, 2009 the Office accepted appellant’s claim for a left shoulder strain. It
subsequently expanded acceptance to include complete left shoulder rotator cuff tear and left
shoulder impingement syndrome. The Office authorized left shoulder rotator cuff tear surgery,
which was performed on December 8, 2009. By letter dated January 22, 2010, it placed
appellant on the periodic rolls for temporary total disability.
In a letter dated August 5, 2009, appellant’s counsel requested reconsideration and
submitted medical and factual evidence in support of appellant’s claim.
In an August 12, 2009 report, Dr. Leo C. Chen, a treating Board-certified orthopedic
surgeon, reported reviewing appellant’s medical history and noting that a November 2008 x-ray
interpretation revealed a right foot fracture. A physical examination revealed current range of
motion for the right foot was normal.
By decision dated October 5, 2009, the Office denied modification.
On December 30, 2009 appellant’s attorney requested reconsideration and submitted an
October 20, 2009 report by Dr. O. Farrett Jones, who noted that appellant had been treated for
injuries sustained on October 30, 2008 as a result of the motor vehicle at the emergency room of
Eglin Air Force Base and subsequently treated for her continuing injuries at Eglin Family Health
Clinic. Dr. Jones diagnosed C5-6 bulging disc, cervical neck strain, left trapezius muscle strain,
left rotator cuff tear and axial spine instability with loss of disc height and normal cervical
lordosis. He attributed appellant’s left posterior neck pain, left trapezius, scapular and
interscapular pain due to the October 30, 2008 motor vehicle accident. In support of this
conclusion, Dr. Jones noted that her car was hit so hard that the car went into the air, flipped
twice, landed upside down and then flipped upright. He related “[t]his inevitably would result in
jarring and thrusting of her neck in multiple directions” and had enough force to cause a left
shoulder rotator cuff tear. The objective testing revealed a subluxation and disc bulge/protrusion
at C6-7. Dr. Jones stated that appellant’s symptoms were “very typical of cervical strain or
hyperextension-flexion neck injury.”
On January 14, 2010 the Office received two pages of a May 20, 2009 report by
Dr. Manski, who noted that appellant has had objective and physical findings of a cervical spine
problem since her October 30, 2008 motor vehicle accident. An x-ray interpretation at the time
revealed a fracture of the right foot in the area of the great and second toe, which Dr. Manski
attributed to the automobile accident. In support of this conclusion, Dr. Manski noted that
appellant had no right foot symptoms prior to the accident and the injury was consistent with
“applying hard pressure with her right foot and ankle against the brake pedal upon impact.” As
to appellant’s lower back pain, he opines that she may well have sustained a lower back injury as

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a result of the automobile accident given the findings of an April 10, 2009 magnetic resonance
imaging (MRI) scan showing herniated nucleus pulposus at L3-4 and L4-5, which injuries would
be consistent with a motor vehicle accident. In concluding, Dr. Manski opined that she sustained
left shoulder, left upper extremity, left neck and cervical spine injuries as a result of the
October 30, 2008 motor vehicle accident.
By decision dated February 22, 2010, the Office denied modification.
LEGAL PRECEDENT
Where an employee claims that a condition not accepted or approved by the Office was
due to an employment injury, she bears the burden of proof to establish that the condition is
causally related to the employment injury.2 To establish a causal relationship between the
condition was well as any attendant disability claimed and the employment injury, an employee
must submit rationalized medical evidence based on a complete medical and factual background
supporting such a casual relationship.3 Causal relationship is a medical issue and the medical
evidence required to establish a causal relationship is rationalized medical evidence.4
Rationalized medical evidence is evidence which includes a physician’s rationalized medical
opinion on the issue of whether there is a causal relationship between the diagnosed condition
and the specific employment factors identified by the claimant.5 Neither the mere fact that a
disease or condition manifests itself during a period of employment, nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.6
ANALYSIS
The Office accepted that the employment incident occurred on October 30, 2008, as
alleged and that appellant sustained a left shoulder strain, which was subsequently expanded to
include left shoulder complete rotator cuff tear and left shoulder impingement syndrome. The
issue on appeal is whether appellant has met her burden of proof to establish that her diagnosed
cervical condition, left foot condition and left hip condition are causally related to the
October 30, 2008 employment injury. The Board finds that further development of the medical
evidence is required.
In his reports dated March 12 and April 7, 2009, Dr. Manski diagnosed left posterior neck
pain, left trapezius pain, left scapular pain, left shoulder pain, left upper extremity pain, left
interscapular pain, left elbow pain, paresthesias and weakness, C6-7 disc bulge, C3-4 disc
osteophyte complex, left shoulder small partial thickness tear and left acromioclavicular joint
2

Jaja K. Asaramo, 55 ECAB 200 (2004).

3

M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB 465 (2004).

4

D.E., 58 ECAB 448 (2007); Mary J. Summers, 55 ECAB 730 (2004).

5

Phillip L. Barnes 55 ECAB 426 (2004); Leslie C. Moore, 52 ECAB 132 (2000).

6

V.W., 58 ECAB 428 (2007); Ernest St. Pierre, 51 ECAB 623 (2000).

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degenerative changes. In his May 20, 2009 report, he attributed appellant’s cervical spine
problem and right foot fracture to the October 30, 2008 employment injury. In support of his
conclusion, Dr. Manski noted an x-ray interpretation at the time revealed a fracture of the right
foot in the area of the great and second toe and this injury was consistent with the manner in
which the accident occurred. With respect to her lower back pain, he opined that appellant’s
lower back injury might be due to the October 30, 2008 employment injury as herniated nucleus
pulposus at L3-4 and L4-5 seen on an April 10, 2009 MRI scan were consistent with a motor
vehicle accidents.
In an October 20, 2009 report, Dr. Jones diagnosed left posterior neck pain, left trapezius,
scapular and interscapular pain and concluded that the resulted from the October 30, 2008
employment-related motor vehicle accident. In support of this conclusion, he noted that her
injuries were consistent with the history of the motor vehicle. In addition, objective testing
revealed a subluxation and disc bulge/protrusion at C6-7and her symptoms were “very typical of
cervical strain or hyperextension-flexion neck injury.”
Proceedings under the Act are not adversarial in nature, nor is the Office a disinterested
arbiter.7 While the claimant has the burden to establish entitlement to compensation, the Office
shares responsibility in the development of the evidence to see that justice is done.8 The Board
has reviewed the reports from Drs. Manski and Jones and finds that they provided a clear opinion
that appellant had cervical, lumbar and a foot fracture due to her October 30, 2008 employment
injury. The physicians based their diagnoses on the objective findings found on x-ray
interpretations obtained shortly after her October 30, 2008 employment-related motor vehicle
accident and the corresponding findings on examination and subjective complaints. Drs. Manski
and Jones’ opinions are supportive, unequivocal, bolstered by objective findings and based on a
firm diagnosis and an accurate history.
While none of these reports are completely rationalized, Drs. Manski and Jones are
consistent in indicating that appellant’s sustained additional medical conditions as a result of the
October 30, 2008 employment-related motor vehicle accident. Their opinions are not
contradicted by any substantial medical or factual evidence of record. While the reports are not
sufficient to meet appellant’s burden of proof to establish her claim, Drs. Manski and Jones raise
an uncontroverted inference between her claimed conditions and the accepted employment
incident and are sufficient to require the Office to further develop the medical evidence and the
case record.9
CONCLUSION
The Board finds that the case is not in posture for a decision.

7

Rebecca O. Bolte, 57 ECAB 687 (2006); J.B., Docket No. 08-1735 (issued January 27, 2009).

8

A.A., 59 ECAB 726 (2008); Phillip L. Barnes, 55 ECAB 426 (2004).

9

See Virginia Richard (Lionel F. Richard), 53 ECAB 430 (2002); see also Jimmy A. Hammons, 51 ECAB 219
(1999); John J. Carlone, 41 ECAB 354 (1989).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 22, 2010 is set aside and the case remanded for further
proceedings consistent with the above opinion
Issued: June 10, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

6


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

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Appearances:
Douglas Sughrue, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0755
Issued: August 1, 2017

Case Submitted on the Record

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

JURISDICTION
On February 17, 2017 appellant, through counsel, filed a timely appeal from a
December 12, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish an occupational
disease causally related to factors of her federal employment.
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The facts relevant to the
present appeal are set forth below.
On August 4, 2008 appellant, then a 42-year-old letter carrier, filed an occupational
disease claim (Form CA-2), alleging that her preexisting pinched nerve developed into five
herniated discs as a result of performing her letter carrier duties. She first became aware of her
condition and realized that it was causally related to her employment on December 19, 2006.
Appellant did not stop work at that time.
On August 29, 2007 appellant was treated by Dr. Chandler Mann, a Board-certified
anesthesiologist, for chronic back pain since 1995. She related that she was working as a letter
carrier in December when she bent over and felt an acute searing low back pain with radiation
into her right buttock. In an October 25, 2007 report, Dr. Mann noted appellant’s long history of
lumbar degenerative disc disease, spondylosis, and low back syndrome. He noted that appellant
had several medial branch blocks and radiofrequency ablation of the right L5-S1, but her pain
recurred.
In a September 29, 2008 decision, OWCP denied appellant’s claim as the evidence was
insufficient to establish the events occurred as alleged. It noted that she had failed to provide a
factual statement of what factors of employment she claimed had caused her injury.
Appellant requested a review of the written record by an OWCP hearing representative.
She submitted reports from Dr. Leonard Trahan, a Board-certified orthopedist, who administered
facet blocks and diagnosed lower back syndrome with spondylosis and facet joint dysfunction.
On March 20, 2008 Dr. Trahan noted that the computerized tomography (CT) scan showed
degenerative disc disease at L5-S1. On June 2, 2008 Dr. Mann noted appellant’s long history of
lumbar degenerative disc disease, spondylosis, and low back syndrome. He also noted that
appellant underwent several medial branch blocks at L3-4, L4-5, L5-S1 and radiofrequency
ablation of the right L5-S1, but her pain recurred.
An August 7, 2008 report from Dr. Stefan Pribil, a Board-certified neurosurgeon, noted
that appellant was status post back surgery4 with minimal pain and spasm. In an undated
addendum, Dr. Pribil noted the discogram CT showed disruption at L5-Sl and L4-5,
delamination and fragmentation of the disc at the L5-Sl with central extravasation. He
recommended a microdiscectomy.
In an April 8, 2009 decision, an OWCP hearing representative found that appellant had
established the factual element of her claim, but denied the claim because she had not submitted
sufficient medical evidence to establish causal relationship. On July 13, 2009 appellant

3

Docket No. 11-1749 (issued April 12, 2012).

4

The record does not contain an operative report regarding the referenced surgery.

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requested reconsideration. In a decision dated July 27, 2009, OWCP denied modification of the
April 8, 2009 decision.
On November 12, 2009 appellant requested reconsideration. She provided a June 25,
2009 report from Dr. Curtis Fandrich, an osteopath, who noted treating appellant for a condition
directly related to her work duties. Appellant reported that her work duties consisted of
repetitive bending, twisting, lifting, and carrying more than 10 pounds daily. Dr. Fandrich noted
that the National Institutes of Health and Occupational Safety and Health Administration studies
revealed that these daily activities can result in work-related injuries.
In a decision dated November 27, 2009, OWCP denied modification of the prior decision.
On December 14, 2009 appellant requested reconsideration. In a December 29, 2009 decision,
OWCP denied her request for reconsideration because the evidence submitted was insufficient to
warrant a merit review.
Appellant requested reconsideration on November 29, 2010. Evidence submitted
included a July 7, 2010 report from Dr. Fandrich who noted appellant’s July 2008 L5-S1
discectomy. Appellant reported working for the employing establishment for 12 years and that
she had been hired with a pinched nerve in her lower back from a prior lifting injury.
Dr. Fandrich diagnosed right low back pain, right leg radiculopathy, right sciatica, and hamstring
somatic dysfunction. Appellant submitted a December 6, 2010 duty status report from
Dr. Michael J. Leahy, a Board-certified orthopedist.
On February 14, 2011 OWCP denied appellant’s request for reconsideration as the
evidence submitted was insufficient to warrant a merit review. On July 26, 2011 appellant
appealed to the Board. In an April 12, 2012 order, the Board set aside OWCP’s February 14,
2011 decision.5 The Board noted that OWCP did not review Dr. Leahy’s December 6, 2010
report before issuing its February 14, 2011 decision. The Board remanded the case so that
OWCP could properly consider all evidence submitted at the time of the February 14, 2011
decision. In an August 7, 2012 decision, OWCP noted reviewing Dr. Leahy’s December 6, 2010
report and denied modification of the November 27, 2009 decision.
On July 24, 2013 appellant requested reconsideration. She submitted a June 26, 2013
report from Dr. Frank L. Barnes, a Board-certified orthopedist, who treated her for radiating
lumbar pain. Dr. Barnes noted that appellant initially injured her back in 1996 when she lifted an
obese person. Despite surgery, appellant’s pain persisted with numbness of her feet. Dr. Barnes
diagnosed herniated lumbar disc at L4-5 and L5-S1 and L2-3 herniated disc. He noted
appellant’s work as a letter carrier required repeated lifting which placed stress on her lumbar
spine and caused the herniated discs and current symptoms. Dr. Barnes opined that appellant
could perform sedentary work with lifting restrictions. In a decision dated October 2, 2013,
OWCP denied modification of the prior decision.
On June 16, 2014 appellant, through counsel, requested reconsideration. In an April 10,
2014 report, Dr. Barnes noted appellant’s history and advised that she reported reinjuring her
5

Docket 11-1749 (issued April 12, 2012).

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back at work on December 19, 2006 when she bent over and got a “pinch in the back.” He
opined that appellant’s work injury aggravated the 1996 injury. Dr. Barnes reviewed his
treatment of appellant and advised that she could return to sedentary work. A February 4, 2013
electromyogram (EMG) and nerve conduction velocity (NCV) studies report revealed no
abnormalities and no evidence of lumbosacral radiculopathy.
In a decision dated August 25, 2014, OWCP denied modification of the prior decision.
Appellant appealed to the Board. In its September 22, 2015 decision, the Board affirmed the
August 25, 2014 OWCP decision finding that appellant had submitted insufficient medical
evidence to establish causal relationship.6
On September 14, 2016 appellant, through counsel, requested reconsideration. Appellant
noted that OWCP’s reason for denying her claim for disability compensation and medical
benefits was that she failed to show that her December 19, 2006 injury at work caused her to be
disabled. She asserted that she submitted sufficient evidence to meet her burden of proof.
Appellant referenced Dr. Fandrich’s report dated July 1, 2016 in which he provided a history of
appellant’s injury, medical care, and analyzed her condition. She indicated that he had provided
a diagnosis and the details of work factors and the specific work-related event on December 19,
2006 in which she alleged her preexisting injury became aggravated. Appellant argued that
Dr. Fandrich opined that work factors (specifically bending and lifting heavy objects) caused the
preexisting herniated discs at L2-3, L4-5, and L5-S1 to become aggravated. She contended that
she had shown a significant contribution by factors of employment which had aggravated her
preexisting low back condition.
Appellant submitted a July 1, 2016 report from Dr. Fandrich who provided a summary of
his recent treatment. Dr. Fandrich evaluated her on April 5, 2016 for persistent low back pain
since lumbar laminectomy surgical fusions in “2010.” Appellant indicated that from 2012 to
2013 she had right leg pain and dysfunction with inability to sleep. She had osteopathic
manipulative therapy and prolotherapy for her low back and S1 joint ligaments and high
absorption magnesium. On April 26, 2016 appellant presented with shingles. Her back was a bit
better after her prolotherapy which was repeated. On May 17, June 7 and 27, 2016 appellant
presented with persistent low back pain worsening and right leg radiculopathy. Dr. Fandrich
noted a February 2016 magnetic resonance imaging (MRI) scan of the low back revealed
intrathecal clumping consistent with arachnoiditis. He noted that appellant worked for the
employing establishment for 12 years and her work activities included repetitive
bending/twisting, turning, walking, lifting and carrying more than 10 pounds daily for 5 to 6 days
a week, and up to 8 to 10 hours daily. Dr. Fandrich opined that this work activity certainly
caused appellant’s diagnosed herniated discs at L2-3, L4-5 and L5-S1. He further indicated that
the conditions resulted in surgical treatments of the same lumbar levels. Dr. Fandrich indicated
that ongoing care and management of appellant’s work-related injury was required as the
conditions were permanent.
In a decision dated December 12, 2016, OWCP denied modification of the September 22,
2015 decision.
6

Docket No. 15-0622 (issued September 22, 2015).

4

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim. When an employee claims that he or she sustained an
injury in the performance of duty, he or she must submit sufficient evidence to establish a
specific event, incident, or exposure occurring at the time, place, and in the manner alleged. The
employee must also establish that such event, incident, or exposure caused an injury.7
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.8 To establish fact of injury in an
occupational disease claim, an employee must submit: (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.9
The medical evidence required to establish causal relationship is generally rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. 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 factors identified by the claimant.10
ANALYSIS
It is undisputed that appellant’s work duties as a letter carrier included repetitive bending,
twisting, turning, walking, and lifting. However, the Board finds that appellant has failed to
submit sufficient medical evidence to establish an injury causally related to specific factors of
her federal employment.
Appellant submitted a July 1, 2016 report from Dr. Fandrich who noted that appellant
worked for the employing establishment for 12 years and that her work activities included
repetitive bending/twisting, turning, walking, lifting and carrying more than 10 pounds daily for
5 to 6 days a week, and up to 8 to 10 hours daily. He opined that this work activity certainly
caused appellant’s diagnosed herniated discs at L2-3, L4-5 and L5-Sl and the need for surgery.
Dr. Fandrich summarized his treatment of appellant noting that she had persistent low back pain
7

See Walter D. Morehead, 31 ECAB 188, 194 (1979) (occupational disease or illness); Max Haber, 19 ECAB
243, 247 (1967) (traumatic injury). See generally John J. Carlone, 41 ECAB 354 (1989); Elaine Pendleton, 40
ECAB 1143 (1989).
8

S.P., 59 ECAB 184, 188 (2007).

9

R.R., Docket No. 08-2010 (issued April 3, 2009); Roy L. Humphrey, 57 ECAB 238, 241 (2005).

10

Solomon Polen, 51 ECAB 341 (2000).

5

since lumbar laminectomy surgical fusions in “2010.” Appellant reported that since 2012 to
2013 she had right leg pain and dysfunction with an inability to sleep. Dr. Fandrich noted an
MRI scan of the low back from February 2016 revealed intrathecal clumping consistent with
arachnoiditis. He indicated that ongoing care and management of the appellant’s permanent
work injury was required. The Board finds that, although Dr. Fandrich supported causal
relationship, he did not provide medical rationale explaining the basis of his conclusory opinion
that appellant’s diagnosed herniated discs at L2-3, L4-5 and L5-S1 were caused or aggravated by
factors of employment.11
Dr. Fandrich did not explain the process by which daily
bending/twisting, turning, walking, lifting and carrying at work caused or aggravated the
diagnosed conditions.12 Therefore, these reports are insufficient to meet appellant’s burden of
proof.
On appeal, counsel provides a detailed summary of appellant’s injury, subsequent
medical treatment, and the procedural history of the instant claim. He asserts that reports from
Dr. Barnes provide ample evidence that her repetitive work duties cumulatively resulted in the
permanent aggravation of her herniated discs. Counsel cited Henry Klaus, 9 ECAB 333 (1957)
noting that “Where a person has a preexisting condition which is not disabling but which
becomes disabling because of aggravation causally related to the employment, then regardless of
the degree of such aggravation, the resulting disability is compensable.” However, the primary
issue on appeal is whether appellant has established that an aggravation of her preexisting
condition was causally related to her employment. As found above, Dr. Fandrich provided a
conclusory opinion on causal relationship and did not provide medical rationale explaining how
repetitive bending/twisting, turning, walking, lifting and carrying more than 10 pounds daily
caused or aggravated the diagnosed conditions.
Appellant also cited Beth P. Chaput, 37 ECAB 158, 161 (1985) noting, “It is not
necessary to prove a significant contribution of factors of employment to a condition for the
purpose of establishing causal relationship. If the medical evidence revealed that the fumes to
which appellant was exposed during the course of her federal employment contributed in any
way to her disabling obstructive pulmonary condition, such condition would be considered
employment related for the purpose of compensation benefits under [FECA].” Again, as found,
appellant has not established, through a rationalized medical opinion, that her diagnosed
conditions were caused or aggravated by factors of employment.13 Dr. Fandrich did not
sufficiently explain how particular work factors caused or aggravated the diagnosed conditions.
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.
11

See T.M., Docket No. 08-0975 (issued February 6, 2009) (a medical report is of limited probative value on the
issue of causal relationship if it contains a conclusion regarding causal relationship which is unsupported by medical
rationale).
12

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).
13

See supra note 11.

6

CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish an
occupational disease causally related to factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the December 12, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 1, 2017
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.O., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CITIZENSHIP & IMMIGRATION SERVICES,
Miami, FL, Employer
__________________________________________

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

Docket No. 20-0307
Issued: June 26, 2020

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 November 25, 2019 appellant filed a timely appeal from a June 4, 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 her burden of proof to establish a left hip condition
causally related to the accepted December 6, 2018 employment incident.
FACTUAL HISTORY
On December 18, 2018 appellant, then a 45-year-old immigration officer, filed a traumatic
injury claim (Form CA-1) alleging that on December 6, 2018 she suffered a left hip fracture when
entering her government vehicle while in the performance of duty. She noted that she felt a
1

5 U.S.C. § 8101 et seq.

snap/pulling sensation in her left hip and felt excruciating pain immediately. On the reverse side
of the claim form, the employing establishment acknowledged that appellant was injured in the
performance of duty. Appellant stopped work on December 7, 2018.
An after-visit summary, dated December 7, 2018, indicated that appellant saw Dr. Dalia
McCoy, a Board-certified family practitioner, for left hip pain that day.
A magnetic resonance imaging (MRI) scan of appellant’s left hip, dated December 14,
2018, revealed a closed fracture of the left hip and a suspected bone lesion.
In a December 14, 2018 after-visit summary, Dr. Leonardo Oliveira, a Board-certified
specialist in sports medicine, diagnosed left hip pain and a closed fracture of the left hip.
In a December 18, 2018 witness statement, L.W., appellant’s coworker, noted that on
December 6, 2018 while working together she saw appellant enter the driver side of her work
vehicle. She indicated that appellant was in pain when she arrived at the office and was limping
while attempting to walk.
In a December 28, 2018 development letter, OWCP informed appellant that when her 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 now reopened the claim for
consideration because she had not returned to work in a full-time capacity. OWCP requested that
appellant provide additional medical evidence in support of her claim, including a physician’s
opinion supported by a medical explanation as to how the reported employment incident caused
or aggravated the claimed injury. It afforded her 30 days to submit the necessary evidence.
In a December 18, 2018 authorization for examination and/or treatment (Form CA-16), the
employing establishing authorized appellant to seek medical care. In a December 28, 2018
attending physician’s report, Part B of the Form CA-16, Dr. Oliveira reported that appellant felt a
pop in her left hip after getting into a vehicle. He diagnosed tensor fascia lata syndrome and
checked a box marked “Yes” indicating that the condition was caused or aggravated by the
described employment activity. Dr. Oliveira advised that appellant could resume light-duty work
on December 19, 2018.
In a December 28, 2018 duty status report (Form CA-17), Dr. Oliveira diagnosed left tensor
fascia lata avulsion tear and checked a box marked “Yes” indicating that the condition
corresponded to appellant entering her work vehicle after a site visit. He noted that she could
return to work with restrictions on December 28, 2018.
An after-visit summary, dated December 28, 2018, Dr. Oliveira indicated that he treated
appellant for tensor fascia lata syndrome. He referred her for physical therapy treatment.
OWCP received physical therapy treatment notes dated January 10, 2019.
In a January 21, 2019 attending physician’s report (Form CA-20), Dr. Oliveira diagnosed
tensor fascia lata syndrome and checked a box marked “Yes” to indicate that the condition was

2

caused or aggravated by an employment activity. He noted that she was able to resume regular
work on February 21, 2019.
By decision dated January 30, 2019, OWCP denied appellant’s traumatic injury claim,
finding that the medical evidence of record was insufficient to establish causal relationship
between her diagnosed conditions and the accepted December 6, 2018 employment incident.
X-rays of appellant’s pelvis and hips, dated December 7, 2018, revealed no significant
abnormalities.
In a December 14, 2018 report, Dr. Oliveira noted that appellant presented with left hip
pain that had lasted for approximately one week. He related her history of injury of experiencing
a snap in her hip as she was getting into her vehicle. Dr. Oliveira reviewed an MRI scan of
appellant’s left hip and diagnosed left hip pain and a closed fracture of the left hip.
An MRI scan of appellant’s left hip, dated December 15, 2018, revealed high-grade and
suspected full-thickness tear/avulsion of the left tensor fascia tendon, possible left gluteus minimus
and medius tendon strains, left-sided greater trochanteric bursitis, small tear of the anterior labrum
of the left hip, and possible uterine adenomyosis.
In a December 28, 2018 report, Dr. Oliveira noted that appellant was experiencing
continued left hip pain. He reviewed MRI scans of her left hip and diagnosed tensor fascia lata
syndrome and tensor fascia lata avulsion tear.
In a February 26, 2019 report, Dr. Oliveira recounted appellant’s history of injury on
December 6, 2018. He opined that she developed a full-thickness tear of the left tensor fascia lata
tendon, strain of the gluteus maximus muscle, left hip trochanteric bursitis, and a labral tear.
Dr. Oliveira noted that treatment consisted of weight-bearing restrictions, physical therapy
treatment, and bursa and hip injections. He indicated that recovery could take up to six months
and would require extensive rehabilitation and work modification.
On February 28, 2019 appellant requested a review of the written record before an OWCP
hearing representative.
An after-visit summary, dated December 19, 2018, showed that appellant saw Dr. Farah
Tejpar, a Board-certified specialist in sports medicine, for a rupture of the tendon of the hip and a
strain of the gluteus maximus.
In a February 15, 2019 report, Dr. Oliveira noted that appellant reported mild improvement
in her left hip symptoms. He examined her and diagnosed trochanteric bursitis of the left hip and
tensor fascia lata syndrome. Dr. Oliveira recommended a left greater trochanteric bursa injection.
By decision dated June 4, 2019, OWCP’s hearing representative affirmed the January 30,
2019 decision.

3

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
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.6 The second component is whether the employment incident caused a personal injury.7
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.8 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.9
Under section 8101(2) of FECA, chiropractors are only considered physicians to the extent
that they treat spinal subluxations as demonstrated by x-ray to exist.10 OWCP’s implementing
regulations provide that reimbursable chiropractic services are limited to physical examinations
(and related laboratory tests), x-rays performed to diagnose a subluxation of the spine, and
treatment consisting of manual manipulation of the spine to correct a subluxation.11

2

Id.

3
G.L., Docket No. 18-1057 (issued April 14, 2020); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

M.G., Docket No. 18-1616 (issued April 9, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB
312 (1988).
5

20 C.F.R. § 10.115; A.S., Docket No. 19-1955 (issued April 9, 2020); L.M., Docket No. 13-1402 (issued
February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
6

R.K., Docket No. 19-0904 (issued April 10, 2020); Elaine Pendleton, 40 ECAB 1143 (1989).

7

Y.D., Docket No. 19-1200 (issued April 6, 2020); John J. Carlone, 41 ECAB 354 (1989).

8

L.F., Docket No. 19-1905 (issued April 10, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

9

A.S., supra note 5; Leslie C. Moore, 52 ECAB 132 (2000).

10

5 U.S.C. § 8101(2); see D.J., Docket No. 19-1494 (issued March 11, 2020).

11

20 C.F.R. § 10.5(o).

4

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a left hip
condition causally related to the accepted December 6, 2018 employment incident.
OWCP received a series of after-visit summaries from Dr. McCoy, Dr. Tejpar and
Dr. Oliveira, dated From December 7 to 28, 2018. While these summaries provided diagnoses of
appellant’s left hip condition, they did not provide an opinion on the issue of causal relationship.
The Board has held that medical evidence that does not include an opinion regarding the cause of
an employee’s condition is of no probative value on the issue of causal relationship.12 As such,
these reports are insufficient to establish appellant’s claim.
Appellant submitted medical reports from Dr. Oliveira dated December 14, 2018 through
February 26, 2019. Dr. Oliveira diagnosed left hip pain, closed fracture of the left hip, tensor
fascia lata syndrome, a full-thickness tear of the left tensor fascia lata tendon, strain of the gluteus
maximus muscle, left hip trochanteric bursitis, and a labral tear. While he noted appellant’s history
of injury, he failed to address causal relationship in his reports. As noted, the Board has held that
medical evidence that does not include an opinion regarding the cause of an employee’s condition
is of no probative value on the issue of causal relationship.13 As such, these reports from
Dr. Oliveira are insufficient to establish appellant’s claim.
Appellant also submitted Part B of a December 28, 2018 Form CA-16 report, a
December 28, 2018, and a January 21, 2019 Form CA-20 report all from Dr. Oliveira. In these
reports, Dr. Oliveira diagnosed tensor fascia lata syndrome and left tensor fascia lata avulsion tear.
He checked a box marked “Yes” indicating that the conditions were caused or aggravated by
appellant entering her work vehicle. However, the Board has held that when a physician’s opinion
on causal relationship consists only of checking “Yes” to a form question, without explanation or
medical rationale, that opinion is of diminished probative value.14 Accordingly, these reports are
also insufficient to establish appellant’s claim.
Appellant also submitted a Form CA-17 completed by Dr. Oliveira. However, this is
merely a form report and does not contain a clear opinion on whether the accepted employment
injury caused disability from employment for the claimed period; consequently, it is of no
probative value on the issue of causal relationship.15 The Board has held that medical evidence
that does not offer an opinion regarding the cause of an employee’s condition or disability is of no
probative value on the issue of causal relationship.16 Therefore, this form report is insufficient to
establish appellant’s claim.

12

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

13

Id.

14

W.M., Docket No. 19-1853 (issued May 13, 2020).

15

Supra note 12.

16

A.A., Docket No. 19-0957 (issued October 22, 2019); L.D., Docket No. 19-0263 (issued June 19, 2019).

5

Appellant submitted physical therapy treatment notes dated January 10, 2019. The Board
has held that medical notes signed solely by physical therapists are of no probative value as such
healthcare providers are not considered physicians as defined under FECA.17 These notes are
therefore insufficient to establish appellant’s claim.
The record also contains x-rays and MRI scans of appellant’s pelvis and hips. The Board
has held, however, that diagnostic tests standing alone lack probative value as they do not provide
an opinion on causal relationship between an employment incident and a diagnosed condition.18
As appellant has not submitted rationalized medical evidence establishing causal
relationship between her diagnosed left hip conditions and the accepted December 6, 2018
employment incident, the Board finds that she has not met her burden of proof.19
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 a left hip
condition causally related to the accepted December 6, 2018 employment incident.

17
Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
5 U.S.C. § 8101(2). See also David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician
assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA); S.K., Docket
No. 18-1414 (issued April 29, 2020) (physical therapists are not considered physicians under FECA).
18

L.F., supra note 8.

19

The Board notes that the employing establishment issued a Form CA-16. A completed Form CA-16 authorization
may constitute a contract for payment of medical expenses to a medical facility or physician, when properly executed.
The form creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the
examination or treatment regardless of the action taken on the claim. See 20 C.F.R. § 10.300(c); J.G., Docket No.
17-1062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).

6

ORDER
IT IS HEREBY ORDERED THAT the June 4, 2019 of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 26, 2020
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

7


United States Department of Labor
Employees’ Compensation Appeals Board

__________________________________________
P.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cincinnati, OH, Employer
__________________________________________

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

Docket No. 14-1403
Issued: November 6, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 4, 2014 appellant filed a timely appeal from a December 6, 2013 merit decision of
the Office of Workers’ Compensation Programs (OWCP), which finalized an overpayment of
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $2,404.38, because postretirement life insurance premiums were not deducted from
her compensation payments from March 24, 2012 to October 19, 2013; and (2) whether OWCP
properly denied waiver of the overpayment; and (3) whether OWCP properly determined to
recover the overpayment at the rate of $120.00 from her continuing compensation payments.
FACTUAL HISTORY
On August 10, 2011 OWCP accepted that appellant, then a 39-year-old mail processing
clerk, had employment-related cervical spinal stenosis and degeneration of a cervical

intervertebral disc. On May 9 and August 3, 2012 it accepted cellulitis, other specified local
infection of skin and subcutaneous tissues, streptococcus group A infection, exacerbation of
thoracic degenerative disc disease, exacerbation of lumbar degenerative disc disease, cervicitis
and endocervicitis. Appellant last worked for the employing establishment on January 29, 2011.
She was placed on the periodic rolls and received wage-loss compensation benefits.
Postretirement life insurance premiums were not deducted from her payments.
On July 2, 2013 the Office of Personnel Management (OPM) Retirement Operations
Center, informed OWCP that as a compensationer, appellant was eligible to continue the Federal
Employees’ Group Life Insurance (FEGLI). The final base salary on which FEGLI was based
was $53,102.00. The postretirement election was no reduction and the commencement date for
postretirement deductions was March 24, 2012. OWCP began making deductions as of
October 20 to November 16, 2013 payment.
On October 22, 2013 OWCP issued a preliminary determination finding that appellant had
been overpaid in the amount of $2,404.38, because postretirement life insurance premiums were
not paid from March 24, 2012 to October 19, 2013. It made a preliminary finding that appellant
was without fault in creating an overpayment. OWCP calculated the overpayment, noting that
appellant’s postretirement life insurance premium was $117.08 per pay period. For the period
March 24, 2012 to October 19, 2013, appellant received $74,921.06 as she did not have the
postretirement life insurance premiums deducted. OWCP calculated that she should have been
paid $72,517.36, after the postretirement life insurance premiums were deducted. It subtracted
$72,517.36 from the amount she received $74,921.06 to determine that she received an
overpayment in the amount of $2,404.38. OWCP informed appellant of her right to challenge
the fact or amount of the overpayment or request a waiver of the overpayment. If appellant
wished a waiver of the overpayment, she was directed to submit financial information by
completing an overpayment recovery questionnaire. She was afforded 30 days to respond. The
record reflects that appellant did not respond.
By decision dated December 6, 2013, OWCP finalized that appellant received an
overpayment of compensation in the amount of $2,404.38, for which she was not at fault.
Appellant was not entitled to waiver of recovery of the overpayment. It directed recovery from
her continuing compensation payments at the rate of $120.00 per month.
LEGAL PRECEDENT -- ISSUE 1
Under the Federal Employees’ Group Life Insurance Program (FEGLI),1 most civilian
employees of the Federal Government are eligible to participate in basic life insurance and one
or more of the options. The coverage for basic life insurance is effective unless waived and the
premiums for basic and optional life coverage are withheld from the employee’s pay. At
separation from the employing establishment, the FEGLI insurance will either terminate or be
continued under “compensationer’ status. If the compensationer chooses to continue basic and
optional life insurance coverage, the schedule of deductions made will be used to withhold
premiums from his or her compensation payments. When an underwithholding of life insurance
1

The law governing life insurance for federal employees is found at 5 U.S.C. §§ 8701-8716.

2

premiums occurs, the entire amount is deemed an overpayment of compensation because OWCP
must pay the full premium to OPM upon discovery of the error.2
ANALYSIS -- ISSUE 1
OWCP found that appellant received a $2,404.38 overpayment of compensation because
postretirement insurance premiums were not deducted from her compensation payments from
March 24, 2012 to October 19, 2013.
The record reflects that OPM informed OWCP that the commencement date for the
postretirement deductions was March 24, 2012. The record reflects that no deductions for
postretirement life insurance were made until October 20, 2013. OWCP determined that, during
this period, the amount of deductions for the postretirement basic life insurance should have been
$2,404.38. The record contains OWCP payment records and worksheets documenting this
calculation. Appellant did not respond to the preliminary notice or contest the fact or amount of
the overpayment. The Board finds that she received an overpayment in the amount of $2,404.38.
LEGAL PRECEDENT -- ISSUE 2 & 3
Section 8129 of FECA provides that an individual who is without fault in creating or
accepting an overpayment is still subject to recovery of the overpayment unless adjustment or
recovery would defeat the purpose of FECA or would be against equity and good conscience.3
Thus, a finding that appellant was without fault is not sufficient, in and of itself, for OWCP to
waive the overpayment.4 OWCP must exercise its discretion to determine whether recovery of
the overpayment would defeat the purpose of FECA or would be against equity and good
conscience, pursuant to the guidelines provided in the implementing federal regulations.5
Recovery of an overpayment will defeat the purpose of FECA if such recovery would
cause hardship to a currently or formerly entitled beneficiary because the beneficiary from whom
OWCP seeks recovery needs substantially all of his or her current income, including
compensation benefits, to meet current ordinary and necessary living expenses, and the
beneficiary’s assets do not exceed a specified amount as determined by OWCP.6 Additionally
2

Id. at § 8707(d); Keith H. Mapes, 56 ECAB 130 (2004). An underwithholding of premiums results in a twotiered liability: The claimant owes the agency the underwithheld funds, and similarly the agency owes the insurance
fund/OPM. If this occurs, OWCP must make OPM whole and remit the entire amount of the underwithholding,
even if the debt is eventually waived. Federal (FECA) Procedure Manual, Part 5 -- Benefit Payments, Life
Insurance, Chapter 5.401.11.b(2) (August 2004).
3

Id. at § 8129(b); 20 C.F.R. §§ 10.433, 10.434, 10.436 and 10.437.

4

James Lloyd Otte, 48 ECAB 334 (19970; see William J. Murphy, 40 ECAB 569 (1989).

5

20 C.F.R. §§ 10.434 and 10.437.

6

Id. at § 10.436(a)(b). For an individual with no eligible dependents the asset base is $4,800.00. The base
increases to $8,000.00 for an individual with a spouse or one dependent, plus $960.00 for each additional dependent.
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6(a)(1)(b) (June 2009).

3

recovery of an overpayment is considered to be against equity and good conscience when any
individual who received an overpayment would experience severe financial hardship in
attempting to repay the debt or when any individual, in reliance on such payment or on notice
that such payments would be made, gives up a valuable right or changes his or her position for
the worse.7
The individual who received the overpayment is responsible for providing information
about income, expenses and assets as specified by OWCP. This information is needed to
determine whether or not recovery of an overpayment would defeat the purpose of FECA or be
against equity and good conscience. This information will also be used to determine the
repayment schedule, if necessary.8
When an overpayment has been made to an individual who is entitled to further payments
and no refund is made, OWCP shall decrease later payments of compensation, taking into
account the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual and any other relevant factors so as to minimize any hardship.9
ANALYSIS -- ISSUE 2 & 3
OWCP advised appellant on October 22, 2013 of its preliminary determination of the
$2,404.38 overpayment and that she was found not at fault in the creation of the overpayment.
Although appellant was without fault, she nonetheless bears responsibility for providing the
financial information necessary to support the request for waiver. OWCP properly requested that
she submit information regarding her income, assets, and expenses by completing a
questionnaire and providing supporting documentation. However, appellant did not respond to
the request for financial information or documentation. In the absence of the information
requested, OWCP could not determine whether or not recovery of the overpayment would defeat
the purpose of FECA or be against equity and good conscience. Therefore, the Board finds that
OWCP properly denied waiver of recovery in conformance with its implementing regulations at
20 C.F.R. § 10.438(b).10
The Board also finds that OWCP properly determined to recover the overpayment at the
rate of $120.00 from her continuing compensation payments. Appellant did not provide any
financial information or documentation, as requested. The Board finds that in directing recovery
of the overpayment from her continuing compensation, OWCP followed its regulations at 20
C.F.R. § 10.441(a).
On appeal, appellant argued that, if she was aware the premiums were so high, she would
have canceled the insurance until her return to work. She stated that the overpayment would
7

Id. at § 10.437(a)(b).

8

Id. at § 10.438(a); Ralph P. Beachum, Sr., 55 ECAB 442 (2004).

9

Id. at § 10.441(a).

10

See C.A., Docket No. 14-86 (issued April 14, 2014).

4

cause her undue hardship. As noted, the fact that she was without fault in the creation of the
overpayment is insufficient to warrant waiver of recovery of the overpayment. Appellant must
demonstrate that recovery would defeat the purpose of FECA or would be against equity and
good conscience.11 In this case, she failed to provide a Form OWCP-20 or any financial
information or documentation to establish that recovery of her overpayment would defeat the
purpose of FECA or be against equity and good conscience. Accordingly, appellant is not
entitled to waiver of recovery.
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
$2,404.3, because postretirement life insurance premiums were not deducted from her
compensation payments from March 24, 2012 to October 19, 2013. The Board also finds that
OWCP properly denied waiver of the overpayment and properly determined to recover the
overpayment at the rate of $120.00 from her continuing compensation payments.
ORDER
IT IS HEREBY ORDERED THAT the December 6, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 6, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

11

See James Lloyd Otte, supra note 4; see William J. Murphy, 40 ECAB 569 (1989); 20 C.F.R. §§ 10.434 and
10.437.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.K., Appellant
and
TENNESSEE VALLEY AUTHORITY,
JOHNSONVILLE FOSSIL PLANT,
Chattanooga, TN, Employer
__________________________________________

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

Docket No. 09-998
Issued: January 8, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 6, 2009 appellant filed a timely appeal from the January 14, 2009 merit
decision of the Office of Workers’ Compensation Programs denying his occupational disease
claim and from a February 9, 2009 decision denying his request for reconsideration of the merits.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of
this case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained adenocarcinoma causally related to factors of his federal employment; and (2) whether
the Office properly denied appellant’s request for reconsideration of the merits of the case
pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant contends that his employment contributed to his carcinoma.

FACTUAL HISTORY
On November 20, 2008 appellant, then a 67-year-old retired pipefitter welder, filed an
occupational disease claim alleging adenocarcinoma in the ampulla of Vater as a result of his
federal employment. He noted that he had memory loss caused by the cancer but, “My memory
finally came back and made me realize this cancer was probably caused by my employment.”
Appellant listed the date of injury as January 5, 1996 and the date he first realized a relationship
to his employment as January 1, 2008. The employing establishment listed his last exposure date
as July 14, 1978. By letter dated January 2, 2009, the employing establishment controverted the
claim.
In a surgical pathology report dated January 12, 1996, Dr. Christopher Mixon, a
Board-certified family practitioner, diagnosed ampulla of Vater, biopsy, adenocarcinoma, welldifferentiated, invasive and arising within severe dysplasia.
In a December 15, 1995 report, Dr. George D. Wright, a Board-certified family
practitioner, assessed appellant with a few small erosions seen at the gastroeunostomy orifice,
simple lower esophageal erosion, possibly abnormal ampulla ofacer and biopsies pending. He
also noted that none of the abnormalities provide a satisfying explanation of recent gross malena
and hematochezia and wondered about the possibility of a colic lesion.
In a note dated February 28, 1996, Dr. Patrick A. Brighton, a Board-certified surgeon,
noted that appellant had biopsy proven adenocarcinoma of the ampulla of Vater. He performed
an exploratory laprotomy, pancreatic duodenectomy, spelectomy and pancreatic exclusion.
Dr. Brighton listed his final diagnoses as ampullary cancer and idiopathy thrombocytopenia
purpura (ITP). The surgery pathology report found differentiated adenocarcinoma involving the
duodenal mucosa and ampulla of Vater, covering a maximum region of approximately
five millimeters (mm) diameter. It invades into the muscularis mucosa but no invasion below the
pancreatic duct or of the common bile duct was identified. The duodenal mucosa immediately
adjacent to the carcinoma showed severe dysplasia, extending from up to one to two mm from
the carcinoma.
In a November 22, 1996 report, Dr. Robert M. Johnson, a Board-certified family
practitioner, noted that he could not provide any opinion as an expert, but stated that there was
no question that some of the chemicals appellant handled in the past had the potential for causing
harm, even cancer. He noted the principal culprits were by-products of burning coal, xylene,
coal tar, sulphur dioxide, benzene, hydrocarbon fuels, paint, asbestos, carbon tetrachloride,
uranium and formaldehyde. Dr. Johnson then noted that none of these had a causal relationship
with ITP, although benzene is a potent marrow toxin. He noted that the problem with ITP is
immunologic and not a production or marrow problem.

2

On December 12, 1996 Dr. Brighton performed an exploratory laparaotomy, pancreactico
duodenectomy, splenoectomy and pancreastic exclusion. His postoperative diagnoses were
ampullary cancer and ITP.1
In an April 25, 2000 report, Dr. Sally J. Killian, a Board-certified internist, summarized
appellant’s medical history. She noted that he had been treated for chronic back pain from 1978
as a result of a work-related injury for which he was found disabled. Appellant still experienced
chronic back pain and was chronically dependent on narcotic medications. In 1995, he was
diagnosed with ITP and had a subsequent splenectomy. Dr. Killian also noted a history of
rheumatoid arthritis and a remote history of peptic ulcer disease and is status post plyloroplasty,
vagotomy and Billroth 2 procedure. Appellant also had gastroesophageal reflux with a history of
cancer of the ampulla of Vater, diagnoses in 1996. He underwent a modified Whipple procedure
performed by Dr. Brighton, from which he had remained free of recurrent disease. Dr. Killian
listed a history of hypothyroidism and asbestosis as well as bilateral hearing loss and chronic
depression and was post cholecystectomy. She noted that appellant recently had been
complaining of respiratory infections.
In a January 10, 2002 report, Dr. Johnson noted that appellant asked him to comment on
the possible relationship between asbestosis and carcinoma of the ampulla of Vater. He noted
that there was general agreement that long-term asbestos exposure predisposes one to
gastrointestinal tract malignancies. Dr. Johnson noted that appellant’s diagnosis of pulmonary
asbestos was not established until 1999. At the time of the diagnosis and surgical treatment of
appellant’s ampullary carcinoma in 1996, it was known that he had been exposed to asbestos but
it was not known that he had asbestosis.
In an October 30, 2008 note, appellant contended that his carcinoma was related to his
employment because he was exposed to many different chemicals, including carbon tetrachloride
and asbestos.
In a report dated November 25, 2008, Dr. Kerry W. Ross, a Board-certified internist,
indicated that appellant’s ProAir inhaler was related to a separate claim regarding asbestosis and
should be covered.
In a December 1, 2008 statement, appellant reiterated his cancer of the ampulla of Vater
was related to his work as an apprentice, journeyman pipefitter, welder, foreman and supervisor.
During his employment much of what he breathed had the potential to cause his type of cancer.
Appellant also submitted internet articles with regard to cancer and asbestos.

1

The surgical pathology report from the operation of February 12, 1996 showed pancreas, duodenum and distal
common bile duct (pancreatico duodenectomy/Whipple’s Procured): Approximately 5 mm maximum diameter
moderately differentiated adenocarcinoma involving duodenal mucoa an ampulla of Vater with: (a) invasion into
the muscularis mucosa; no deeper invasion identified; severe dysplasia or ampullary mucosa and periampulary
duodena mucosa immediately adjacent to tumor; bile duct margin, pancreatic margins, duodenal and gastric margin
all negative for neoplasia; minimal nonspecific duodenitis and mild nonspecific chronic gastritis (nonatrophic).
Dr. Brighton also noted spleen, splenectomy -- 259 gram spleen with two small syalinized and calcified odules
compatible with remote granulomas and no other histological abnormalities.

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By decision dated January 14, 2009, the Office denied appellant’s claim, finding that the
medical evidence was not sufficient to establish his cancer as causally related to factors of his
federal employment.
By letter dated January 21, 2009, appellant requested reconsideration. He discussed a
study on poisons and pollutants taken by and for the city of Bloomington, Indiana and the effects
of various pollutants, including carbon monoxide, lead, nitrogen dioxide, sulfur dioxide, benzene
and formaldehyde.
By decision dated February 9, 2009, the Office denied appellant’s request for
reconsideration. It found that he did not submit relevant argument or new medical evidence with
his request for reconsideration.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking compensation under the Federal Employees’ Compensation Act2
has the burden of establishing the essential elements of his claim by the weight of the reliable,
probative and substantial evidence,3 including that he is an “employee” within the meaning of
the Act4 and that he filed his claim within the applicable time limitation.5 The employee must
also establish that he sustained an injury in the performance of duty as alleged and that his
disability for work, if any, was causally related to the employment injury.6 These are the
essential elements of each and every compensation claim regardless of whether the claim is
predicated on a traumatic injury or an occupational disease.7
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (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.8

2

5 U.S.C. §§ 8101-8193.

3

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
57 (1968).
4

See M.H., 59 ECAB ___ (Docket No. 08-120, issued April 17, 2008); Emiliana de Guzman (Mother of Elpedio
Mercado), 4 ECAB 357, 359 (1951); see 5 U.S.C. § 8101(1).
5

R.C., 59 ECAB ___ (Docket No. 07-1731, issued April 7, 2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954);
see 5 U.S.C. § 8122.
6

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

7

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

8

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

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Causal relationship is a medical issue9 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion of the physician must be based on a complete
factual and medical background of the claimant,10 must be one of reasonable medical certainty11
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the established incident or factor of employment.12
ANALYSIS -- ISSUE 1
The Board finds that appellant failed to establish a causal relationship between his
exposure to various chemicals during his federal employment and his adenocarcinoma in the
ampulla of Vater.
The medical evidence of record is not sufficient to establish that appellant’s cancer is
causally related to factors of his federal employment. In a November 25, 2008 report, Dr. Ross
discussed appellant’s medications in other claims. Accordingly, this report is irrelevant to the
current claim for adenocarcinoma in the ampulla of Vater. Drs. Mixon, Wright, Killian and
Brighton discussed appellant’s medical conditions but did not address any causal connection to
his employment. Dr. Johnson opined on November 22, 1996 that some of the chemicals
appellant handled in the past had the potential for causing harm, even cancer. He mentioned
burning coal, xylene, coal tar, sulphur dioxide, benzene, hydrocarbon fuels, paint, asbestos,
carbon tetrachloride, uranium and formaldehyde. However, Dr. Johnson’s opinion is speculative
as he merely noted that the chemicals had the potential to cause cancer. Furthermore, he noted
that none of these chemicals had a causal relationship with ITP, noting that, although benzene
was a potent marrow toxin, it was immunologic and not a production or marrow problem.
Dr. Johnson’s January 10, 2002 opinion also lacks the specificity necessary to establish that
appellant’s carcinoma of the ampulla of Vater as causally related to his employment. He never
discussed appellant’s employment in this brief note or whether the specific exposures alleged by
appellant caused his carcinoma; he merely discusses the potential relationship between asbestosis
and gastrointestinal malignancies.
With regard to the remaining evidence, the Board notes that Kerry Sturgis is not a
medical physician but rather an industrial hygienist. Accordingly, Ms. Sturgis’ report cannot
establish a medical correlation between appellant’s employment and his carcinoma.13
Appellant’s contentions as to why he believes his condition is employment related are not
sufficient to establish a causal relationship. The Board has held that laypersons are not
9

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

10

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

11

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

12

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

13

See 5 U.S.C. § 8101(2) for the definition of “physician.”

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competent to render medical opinion.14 Finally, with regard to the material submitted from the
Internet, the Board has held that newspaper clippings, medical text and excerpts from
publications are of no evidentiary value in establishing the causal relationship between a claimed
condition and an employee’s federal employment. Such materials are of general application and
are not determinative of whether the specific condition claimed is related to the particular
employment factors alleged by the employee.15
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 the condition was caused by his employment is sufficient to
establish causal relationship.16 The Board has held that the fact that a condition manifests itself
or worsens during a period of employment17 or that the work activities produce symptoms
revelatory of an underlying condition18 does not raise an inference of causal relationship between
the two. Appellant failed to provide medical evidence establishing the causal relationship
between his factors of employment and a medical condition. The Office properly denied his
claim for compensation.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Act,19 the Office’s regulations provide that the evidence or argument submitted by a claimant
must: (1) show that the Office erroneously applied or interpreted a specific point of law;
(2) advance a relevant legal argument not previously considered by the Office; or (3) constitute
relevant and pertinent new evidence not previously considered by the Office.20 To be entitled to
a merit review of an Office decision denying or terminating a benefit, a claimant also must file
his or her application for review within one year of the date of that decision.21 When a claimant
fails to meet one of the above standards, the Office will deny the application for reconsideration
without reopening the case for review on the merits.22

14

James A. Long, 40 ECAB 538, 542 (1989).

15

See Joe T. Williams, 44 ECAB 518, 521 (1993).

16

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Ruth R. Price, 16 ECAB 688,
691 (1965).
17

E.A., 58 ECAB 677, (2007); Albert C. Haygard, 11 ECAB 393, 395 (1960).

18

D.E., 58 ECAB 448, (2007); Fabian Nelson, 12 ECAB 155, 157 (1960).

19

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
20

20 C.F.R. § 10.606(b)(2).

21

Id. at § 10.607(a).

22

Id. at § 10.608(b).

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ANALYSIS -- ISSUE 2
The Office denied appellant’s claim as he failed to submit sufficient medical evidence to
establish a causal relationship between his adeoncarcinoma in the ampulla of Vater and factors of
his federal employment. Appellant did not meet any of the criteria in his request for
reconsideration for the Office to conduct a merit review of his claim. He did not submit any new
evidence in support of his claim. Nor did appellant advance or show that the Office improperly
interpreted a specific point of law or advanced a relevant legal argument not previously
considered.
Appellant’s arguments on reconsideration do not warrant merit review. His discussion of
a study with regard to pollutants in Bloomington, Indiana is irrelevant, to the underlying medical
cause in his case. As noted above, general articles in the newspaper and internet are of general
application and are not determinative of a claimant’s entitlement to benefits under the Act.23
Consequently, appellant has not established that he is entitled to review of the merits of his
claim.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained adenocarcinoma in the ampulla of Vater causally related to factors of his federal
employment. The Board further finds that the Office properly denied appellant’s request for
reconsideration pursuant to 5 U.S.C. § 8128(a).

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Joe T. Williams, supra note 15.

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 9 and January 14, 2009 are affirmed.
Issued: January 8, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.P., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Washington, DC, Employer
__________________________________________
Appearances:
David G. Jennings, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 11-438
Issued: September 15, 2011

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On December 14, 2010 appellant filed a timely appeal from a July 13, 2010 decision of
the Office of Workers’ Compensation Programs (OWCP) which found that his claim was not
filed in a timely manner. The Board docketed the appeal as No. 11-438.
Having reviewed the case record submitted by OWCP, the Board finds that this case is
not in posture for a decision. By decision dated July 13, 2010, OWCP denied appellant’s claim
for being untimely filed. On August 2, 2010 appellant, through his attorney, requested
reconsideration of the OWCP decision. Counsel argued that appellant’s supervisor had actual
knowledge of his hearing loss. In support of his argument, appellant submitted new factual and
medical evidence. OWCP did not respond to appellant’s reconsideration request.
Consequently, the case will be remanded to OWCP for a decision on the merits of
appellant’s claim.1 On remand, OWCP should consider new factual and medical evidence
1

It is the obligation of OWCP not to delay the claimant’s reconsideration request unnecessarily and thereby,
jeopardize his right to appeal the merit decision to the Board. The Board directs OWCP to perform a review of the
merits of appellant’s claim to preserve appellant’s right to appeal the merits of the denial of his claim to the Board.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.9 (March 2010).

submitted, together with the previously submitted evidence of record, to determine if appellant’s
claim for hearing loss is barred by the applicable time limitation provisions of the Federal
Employees’ Compensation Act.
IT IS HEREBY ORDERED THAT the case is remanded to the Office of Workers’
Compensation Programs to issue an appropriate decision on the merits of the case.
Issued: September 15, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

2