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

)
)
)
)
)
)
)
)

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

Docket No. 07-1776
Issued: February 14, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 21, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ August 2, 2006 and March 29, 2007 merit decisions denying her
recurrence of disability claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
recurrence of total disability on or after April 17, 1996 due to her accepted employment injuries.
FACTUAL HISTORY
In September 1993 the Office accepted that appellant, then a 33-year-old mail carrier,
sustained cervical and lumbar subluxations due to lifting parcels and mailbags weighing up to 70

pounds over the course of two weeks in August 1993.1 She received Office compensation for
periods of disability.
In December 1994 the Office referred appellant to Dr. Michael C. Bidgood and
Dr. George P. Delyanis, a Board-certified orthopedic surgeon and neurologist, respectively, for
evaluation of her employment-related condition. In a January 6, 1995 joint report, Drs. Bidgood
and Delyanis diagnosed marked functional overlay on examination, historical cervicodorsal
strain and documented degenerative disc disease of the lumbar spine, preexisting and unrelated
to the industrial injury of August 30, 1993. They noted that the findings on examination were
primarily functional without objective correlation and represented a normal neuromuscular
examination. Drs. Bidgood and Delyanis indicated that, given the nature of appellant’s injury,
ample time had elapsed for it to resolve itself. They noted that appellant did not require any
particular work restrictions.
In February 1995 appellant returned to limited-duty work for the employing
establishment on a part-time basis. The job involved sorting mail and inputting data on a
keyboard and required lifting up to 35 pounds.2
In a March 1, 1995 decision, the Office terminated appellant’s compensation effective
that date on the grounds that she had no disability after that date due to her accepted employment
injuries. The Office based its opinion on the January 6, 1995 report of Dr. Bidgood and
Dr. Delyanis. In a November 9, 1995 decision, the Office affirmed its March 1, 1995 decision.3
On April 4, 1996 Dr. Kenneth Bakken, an attending osteopath, indicated that appellant
complained of wide-spread pain, sleep disturbance, fatigue, morning stiffness, anxiety, irritable
bowel and bladder, headaches, cold hand and feet, dry mouth and eyes, depression, numbness,
tingling, adverse effect of heat, cold and weather changes, cognitive dysfunction, decreased
short-term memory, and “recurring family symptoms.” Appellant indicated that these symptoms
began after she sustained an injury due to lifting and twisting at work on August 30, 1993 and
became progressively worse since about November 1995. Dr. Bakken stated that on examination
appellant had tenderness in the lower quadrants bilaterally and tenderness in the iliopsoas
muscles upon deep palpation. Range of motion in the cervical and lumbar spines was normal
although straight leg raising elicited pain in the hips and external rotation of the hips also caused
hip pain. Dr. Bakken stated that appellant exhibited multiple areas of “extraordinarily tender
+4/4 trigger points” including the suboccipitals, sternocleidomastoids, trapezius, infraspinatus,
rhomboids, levator scapula, pectoralis major and minor, deltoids, triceps, upper and lower
sacroiliacs, glutus medius, minimus and maximus, tensor fascia lata, medial collateral knee
ligaments, medial and lateral gastrocnemius, soleus, mid extensor mass, and bicipital grooves.
1

Appellant initially indicated that her injury occurred on August 30, 1993 but she clarified that her injury was
caused by performing her work duties during a two-week period around that time.
2

Appellant initially worked two hours per day for five days per week and within about month began working five
hours per day for five days per week. It appears that at some point in 1997 she began to perform limited-duty work
for the employing establishment on a full-time basis.
3

On January 1998 the Office reissued its November 9, 1995 decision in order to preserve appellant’s appeal
rights. In a March 24, 2006 decision, the Office denied appellant’s request for merit review of her claim.

2

He diagnosed fibromyalgia and chronic myofascial pain syndrome and indicated that appellant
was “an obvious classic case of post-traumatic fibromyalgia.”
On April 17, 1996 Dr. Patrick J. Hogan, an attending osteopath, indicated that appellant
had cervical dystonia characterized by dystonic contractions which produced tremors and
retrocollis (i.e., backwards) movement of her neck. He indicated that appellant also had
akathisias or chorea in her legs and stated, “Although cervical dystonia due to cervical trauma is
well recognized, the association with her previous spinal strain syndrome and fibromyalgia is
less clear. The association would be considered possible rather than probable in this
circumstance.”
On July 19, 1996 Dr. Hogan indicated that appellant reported that in August 1993 she
began to have increased back pain after repetitively lifting mail packages at work over “a matter
of days.” Appellant indicated that this pain progressed such that she had pain throughout her
entire spine and that she later began to have “involuntary muscle activity” which produced
involuntary positions of the neck. Dr. Hogan indicated that when he saw appellant on April 17,
1996 she demonstrated an irregular dystonic tremor of predominantly retrocollis nature and that
palpation of her cervical spine revealed dystonic activity in the upper trapezius, latissimus and
splenius capitis. He indicated that cervical dystonia disorder does arise sporadically without any
apparent provocation and stated:
“However, it has been well recognized that trauma can activate a cervical
dystonia disorder. It is felt that a person would have to have a predisposition
toward the development of this type of disorder which is a disturbance in the
circuitry in the movement control centers of the brain. The disturbed feedback
from an injured spine is then felt to activate this underlying dystonic disorder.
Thus, on a more probable than not basis, her trauma is related to her current
condition by an underlying dystonic disorder.”
On August 2, 1996 Dr. Bakken stated that appellant’s work-related injury in
August 1993 precipitated post-traumatic fibromyalgia syndrome, a nervous condition affecting
the limbic, hypothalamic, neurological, immune, endocrine, and psycho-emotional systems
which is characterized by areas of inflammation and spasm called tender or trigger points. He
indicated that appellant could be “observed objectively” with lower extremity akathisias, cervical
dystonia, weakness, multiple areas of trigger point tenderness, myofascial pain, decreased range
of motion, and biomechanical dysfunction including poor movement and posture. Dr. Bakken
stated:
“It is clear that she had no symptoms of fibromyalgia or the cervical dystonia as
diagnosed by Dr. Patrick Hogan prior to the incident in August 1993. On a moreprobable-than-not basis there is a clear correlation between the patient’s injury
and the subsequent medical problems which she has experienced. These are
exacerbated by on-going work. The patient has two clear post-traumatic
diagnoses: (1) fibromyalgia syndrome, (2) cervical dystonia, producing dystonic
tremor and retrocillis.”

3

In numerous reports, dated between August 1996 and July 1997, Dr. Hogan described his
treatment of appellant’s medical condition which included period injections of Botox in her
cervical spine. He indicated that appellant continued to have symptoms of cervical dystonia as
well as involuntary muscle activity in the rest of her spine and legs. Dr. Hogan generally
indicated that the Botox treatments seemed to produce good results until the medication wore
off.
On November 11, 1996 Dr. Bakken indicated that appellant continued to complain of
tenderness in various muscles, including the upper and lower sacroiliac, gluteus medius and
minimus, right quadratus lumborum, and bilateral suboccipitals, trapezius, levator scapula and
rhomboids. On June 29, 1997 Dr. Karl J. May, a Board-certified surgeon who served as an
Office medical adviser, stated that Dr. Bakken did not present sufficient objective findings to
show that appellant had fibromyalgia syndrome and cervical dystonia.4
In late 1996 appellant claimed that she sustained fibromyalgia syndrome and cervical
dystonia due to her accepted employment injuries which caused continuing disability, but it does
not appear that she filed a formal claim for these conditions at that time.5
On May 23, 1997 Dr. Hogan stated that appellant reported that she was initially injured in
August 1993 when she frequently lifted mailbags and boxes weighing in excess of 70 pounds for
a two-week period. Appellant began to have progressive back pain which eventually involved
the entire spine and months after the initial injury she began to experience involuntary extension
movements and tremors of her cervical muscles. Dr. Hogan stated that appellant was diagnosed
with cervical dystonia and treated with Botox injections. He indicated that appellant could
perform limited-duty work with no lifting more than 30 pounds and noted, “It can be stated that
on a more probable than not basis the consequence of the injuries in August 1993 did result in
her chronic pain state and movement disorder.”
In an August 4, 1997 decision, the Office affirmed its prior decisions. The Office found
that the medical evidence appellant submitted after March 1, 1995 did not show that she had
residuals of her accepted employment injuries after that date. It also found that she had not
shown that she sustained employment-related fibromyalgia or cervical dystonia.6
On August 8, 1997 Dr. Bakken discussed medical literature regarding fibromyalgia
syndrome and cervical dystonia and stated that there is a “clear and consistent correlation in the
literature and medical research regarding a work-related injury and the diagnosis of post4

Dr. May indicated that the diagnosis of fibromyalgia syndrome was frequently associated with cases of
secondary gain.
5

Appellant had filed occupational disease claims on July 10, 1996 and July 11, 1997 asserting that her
fibromyalgia and cervical dystonia conditions were “triggered” by the performance of her work duties around
August 30, 1993. The Office determined that these claims were actually claims for continuing disability due to her
accepted employment injuries and combined the files for these claims with the present case record. Appellant filed a
claim for an employment-related emotional condition but this claim was denied by the Office on April 28, 1998.
6

In a December 10, 1998 decision, the Board reversed the Office’s termination of appellant’s compensation
effective March 1, 1995. In a July 24, 2000 decision, the Board found that the Office had justified its termination of
appellant’s compensation effective March 1, 1995.

4

traumatic fibromyalgia syndrome and/or cervical dystonia. He indicated that appellant did not
have the symptoms described in his previous reports prior to “the injury which she reported on
August 30, 1993.”
Dr. Hogan continued to produce, reports dated between August 1997 and February 2006,
in which he discussed his treatment of appellant’s cervical condition.
On February 10, 2006 appellant filed a claim alleging that she sustained a recurrence of
total disability for periods beginning April 17, 1996 due to her accepted employment injuries.7
She indicated that after she returned to limited-duty work for the employing establishment in
February 1995 she experienced extreme neck and back pain, headaches, and “violent shaking
and numbness in my face and arms.”8
On February 24, 2006 Dr. Hogan stated that appellant was being treated for a posttraumatic type of cervical dystonia which “arose associated with an industrial injury in 1993.”
He indicated that appellant reported that in 1993 she engaged in repetitive turning and lifting in
order to move mail and that she developed the onset of cervical pain through this process.
Appellant reported that within two weeks she developed involuntary cervical extension and
tremors.
In an August 2, 2006 decision, the Office denied appellant’s claim on the grounds that
she did not submit sufficient medical evidence to establish that she sustained a recurrence of
disability on or after April 17, 1996 due to her accepted employment injuries.
Appellant requested a hearing before an Office hearing representative. At the
December 20, 2006 hearing, Dr. Hogan testified that appellant sustained a cervical
subluxation/strain in at work in 1993 and that she developed cervical dystonia due to this injury.
He stated that post-traumatic cervical dystonia occurs when the brain receives impulses from the
injury site and then responds by sending excessive impulses back to the neck. Dr. Hogan
indicated that there was “no chemical or scan test” which could show that this type of abnormal
activity comes from the basal ganglia of the brain.
In a March 29, 2007 decision, the Office hearing representative affirmed the Office’s
August 2, 2006 decision.9
LEGAL PRECEDENT
When an employee, who is disabled from the job she held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence of record
7

The Office had only accepted that appellant sustained employment-related cervical and lumbar subluxations
around August 1993.
8

It appears that appellant regularly performed limited-duty work since February 2005 and only periodically
stopped work for brief periods.
9

Appellant submitted additional evidence after the Office’s March 29, 2007 decision, but the Board cannot consider
such evidence for the first time on appeal. See 20 C.F.R. § 501.2(c).

5

establishes that she can perform the light-duty position, the employee has the burden to establish
by the weight of the reliable, probative, and substantial evidence a recurrence of total disability and
show that she cannot perform such light duty. As part of this burden the employee must show a
change in the nature and extent of the injury-related condition or a change in the nature and extent
of the light-duty job requirements.10
ANALYSIS
The Office accepted that appellant sustained cervical and lumbar subluxations due to
lifting parcels and mailbags weighing up to 70 pounds over the course of two weeks in
August 1993. In February 1995 appellant returned to limited-duty work for the employing
establishment on a part-time basis. The job involved sorting mail and inputting data on a
keyboard and required lifting up to 35 pounds.11 On February 10, 2006 appellant filed a claim
alleging that she sustained a recurrence of total disability for periods beginning April 17, 1996
due to her accepted employment injuries.12
The Board finds that appellant did not submit sufficient medical evidence to show that
she sustained a recurrence of total disability on or after April 17, 1996 due to her accepted
employment injuries. In support of her claim, appellant submitted numerous reports of
Dr. Bakken and Dr. Hogan, both attending osteopaths. Dr. Bakken and Dr. Hogan collectively
determined that appellant had a fibromyalgia syndrome and cervical dystonia related to the
employment injuries she sustained in August 1993.13 The reports of Dr. Bakken and Dr. Hogan,
however, are of limited probative value on the relevant issue of the present case in that they did not
provide adequate medical rationale in support of their conclusions on causal relationship.14
On April 4, 1996 Dr. Bakken indicated that appellant complained of experiencing
numerous symptoms, including wide-spread pain, fatigue, morning stiffness, numbness, tingling,
cognitive dysfunction and emotional problems. He noted that appellant indicated that these
symptoms began after she sustained an injury due to lifting and twisting at work on August 30,
1993 and became progressively worse since about November 1995. Dr. Bakken stated that on
examination appellant exhibited areas of “extraordinarily tender +4/4 trigger points” in numerous
muscle groups throughout her body. Dr. Bakken diagnosed fibromyalgia and chronic

10

Cynthia M. Judd, 42 ECAB 246, 250 (1990); Terry R. Hedman, 38 ECAB 222, 227 (1986).

11

Appellant soon began working five hours per day for five days per week. It appears that at some point in 1997
she began to perform limited-duty work on a full-time basis.
12

Appellant regularly performed limited-duty work since February 2005 and only periodically stopped work for
brief periods after April 17, 1996.
13

Dr. Bakken primarily treated appellant for fibromyalgia and Dr. Hogan primarily treated her for cervical
dystonia.
14

See Leon Harris Ford, 31 ECAB 514, 518 (1980) (finding that 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).

6

myofascial pain syndrome and indicated that appellant was “an obvious classic case of posttraumatic fibromyalgia.”
Although Dr. Bakken suggested that appellant had fibromyalgia which was related to the
employment injuries she sustained in August 1993 he did not provide adequate medical rationale
supporting this conclusion. He did not describe appellant’s employment injuries or her job
duties in August 1993 in any detail, nor did Dr. Bakken explain the mechanism through which
appellant could have sustained fibromyalgia due to the accepted employment factors such that
she experienced a recurrence of total disability on or after April 17, 1996.
On August 2, 1996 Dr. Bakken stated that appellant’s employment injury in August 1993
precipitated post-traumatic fibromyalgia syndrome and cervical dystonia and indicated that she
could be “observed objectively” with various symptoms including cervical dystonia, lower
extremity akathisias, weakness, multiple areas of trigger point tenderness, myofascial pain,
decreased range of motion, and biomechanical dysfunction including poor movement and
posture. Dr. Bakken stated that it was clear that appellant had no symptoms of fibromyalgia or
cervical dystonia prior to August 1993 and noted on a more-probable-than-not basis that there is
a clear correlation between appellant’s employment injury and these two conditions. On
August 8, 1997 Dr. Bakken discussed medical literature regarding fibromyalgia syndrome and
cervical dystonia and stated that there is a “clear and consistent correlation in the literature and
medical research regarding a work-related injury and the diagnosis of post-traumatic
fibromyalgia syndrome and/or cervical dystonia. He indicated that appellant did not have the
symptoms described in his previous reports prior to “the injury which she reported on
August 30, 1993.”
These reports would not establish that appellant had fibromyalgia or cervical dystonia
related to her accepted employment injuries which caused total disability on or after April 17,
1996 because the Board has held that the fact that a condition manifests itself or worsens during a
period of employment15 or that work activities produce symptoms revelatory of an underlying
condition16 does not raise an inference of causal relationship between a claimed condition and
employment factors. Moreover, Dr. Bakken did not provide any opinion regarding appellant’s
ability to work for any period on or after April 17, 1996. Therefore, the reports of Dr. Bakken do
not show that appellant sustained employment-related total disability as alleged.
On July 19, 1996 Dr. Hogan, an attending osteopath, indicated that appellant reported
that in August 1993 she began to have increased back pain after repetitively lifting mail packages
at work over “a matter of days.” Appellant indicated that this pain progressed such that she had
pain throughout her entire spine and that she later began to have “involuntary muscle activity”
which produced involuntary positions of the neck. Dr. Hogan stated that when he saw appellant
on April 17, 1996 she demonstrated an irregular dystonic tremor of predominantly retrocollis
nature and that palpation of her cervical spine revealed dystonic activity in the upper trapezius,
latissimus and splenius capitis. He indicated that cervical dystonia disorder does arise
15

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

16

Richard B. Cissel, 32 ECAB 1910, 1917 (1981).

7

sporadically without any apparent provocation and stated that it had been recognized that trauma
can activate a cervical dystonia disorder.17
Dr, Hogan concluded that on a more-probable-than-not basis that appellant’s
August 1993 “trauma” was related to her current condition of cervical dystonia. However,
Dr. Hogan did not provide adequate medical rationale in support of his conclusion. He did not
describe the nature of appellant’s August 1993 “trauma” in any detail or explain the mechanism
through which she could have sustained cervical dystonia due to the accepted employment
factors such that she experienced a recurrence of total disability on or after April 17, 1996.
Dr. Hogan indicated that cervical dystonia involved impulses sent between the brain and the
neck but he did not provide an adequate basis, such as the results of diagnostic testing or clinical
findings, to explain why this process had occurred in appellant’s case.
On May 23, 1997 Dr. Hogan stated that appellant reported that she was initially injured in
August 1993 when she frequently lifted mailbags and boxes weighing in excess of 70 pounds for
a two-week period. He noted that appellant reported that months after the initial injury she
began to experience involuntary extension movements and tremors of her cervical muscles.
Dr. Hogan indicated that appellant could perform limited-duty work with no lifting more than 30
pounds and noted, “It can be stated that on a more probable than not basis the consequence of the
injuries in August 1993 did result in her chronic pain state and movement disorder.” The Board
notes that Dr. Hogan did not provide any additional explanation of why he felt that appellant
sustained cervical dystonia in August 1993 that caused a recurrence of total disability on or after
April 17, 1996.18 It should be noted that this report contains the only instance that Dr. Hogan
discussed appellant’s ability to work and that the restriction he recommended was within the
limited-duty work appellant performed on and after April 17, 1996. Therefore, the reports of
Dr. Hogan do not show that appellant sustained employment-related total disability as alleged.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a recurrence of total disability on or after April 17, 1996 due to her accepted
employment injuries.

17

Dr. Hogan stated that a person would have to have a predisposition toward the development of cervical disorder
which was a disturbance in the circuitry in the movement control centers of the brain.
18

In a February 24, 2006 report and in testimony at a December 20, 2006 hearing, Dr. Hogan provided a similar
discussion of his belief that appellant sustained cervical dystonia due to her accepted employment injuries.
However, he did not provide medical rationale explaining the basis for this opinion.

8

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
March 29, 2007 and August 2, 2006 decisions are affirmed.
Issued: February 14, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.S., Appellant
and
DEPARTMENT OF THE INTERIOR, BUREAU
OF RECLAMATION, Socorro, NM, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 09-172
Issued: July 17, 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 October 22, 2008 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ schedule award decision dated September 12, 2008 finding that he had
six percent monaural hearing loss of the left ear. 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’s claim for an occupational hearing loss was timely filed
pursuant to 5 U.S.C. § 8122(a).
FACTUAL HISTORY
On November 8, 2007 appellant, then a 72-year-old engineering equipment operator,
filed an occupational disease claim alleging that he sustained hearing loss due to exposure to
high noise levels while operating heavy equipment. He first became aware of his condition in
October 1984 and first realized that his condition was caused by his federal employment in

November 1989. Appellant also noticed that his hearing loss became progressively worse. An
employing establishment supervisor noted that it was unknown when appellant stopped work.
Appellant submitted an audiogram of July 31, 2007. In a statement dated October 11,
2007, he noted that he was employed at the employing establishment from January 25, 1967 to
August 4, 1991.1 Appellant noted difficulty hearing normal speech when conversing, which
progressed over the years from working at the employing establishment. He stated that he had
been given yearly audiograms due to the employing establishment’s hearing conservation
program. Appellant advised that he filed a hearing loss claim in May 1992 that was rejected on
the basis that he did not have a ratable hearing loss.2 He also noted undergoing an audiogram in
July 2007 finding that he needed hearing aids.
On December 5, 2007 the Office requested additional evidence. Subsequently, appellant
submitted evidence verifying his employment at the employing establishment between
January 25, 1967 and August 4, 1991. He also provided a statement describing the type of
positions he held at the employing establishment and the noise exposure of each position. The
employing establishment also submitted a statement indicating that there was “no present
supervisor knowledgeable about the occurrences regarding exposure to noise” concerning
appellant. The employing establishment advised that, as appellant had been retired for
approximately 20 years and was not on the employment rolls, it had no employment records or
personnel files for him.
On January 10, 2008 the Office referred appellant to Dr. Peter Bailey, a Board-certified
otolaryngologist, for a second opinion evaluation. In a February 11, 2008 report, Dr. Bailey
opined that appellant’s workplace noise exposure was sufficient to cause hearing loss. He found
24 percent hearing loss in each ear, which totaled 29 percent binaural hearing loss inclusive of
5 percent tinnitus impairment. On March 5, 2008 an Office medical adviser reviewed
Dr. Bailey’s report and a January 28, 2008 audiogram obtained on his behalf. He opined that
appellant had six percent monaural hearing loss in the left ear and no ratable hearing loss in the
right ear. The medical adviser recommended that Dr. Bailey provide a supplemental opinion. In
an April 14, 2008 report, Dr. Bailey acknowledged that he had miscalculated appellant’s hearing
loss. He agreed with the Office medical adviser’s calculation of 6 percent monaural hearing loss
in the left ear but found 10 percent binaural impairment based on 5 percent for tinnitus.
Dr. Bailey did not recommend hearing aids.
On April 22, 2008 the Office accepted appellant’s claim for bilateral hearing loss.
On May 5, 2008 an Office medical adviser opined that there was no basis for impairment
for tinnitus, as the record did not show that tinnitus had adversely affected appellant’s activities
of daily living. On May 23, 2008 appellant filed a claim for a schedule award.

1

The record reflects that appellant’s employment was terminated due to disability.

2

The Board notes that the record on appeal contains no evidence of any prior hearing loss claim filed with the
Office.

2

By decision dated September 12, 2008, the Office granted a schedule award for a six
percent monaural hearing loss in the left ear. The period of the award ran for 3.12 weeks from
January 28 to February 18, 2008.3
LEGAL PRECEDENT
The issue of whether a claim was timely filed is a preliminary jurisdictional issue that
precedes any determination on the merits of the claim. The Board may raise the issue on appeal
even if the Office did not base its decision on the time limitation provisions of the Federal
Employees’ Compensation Act.4
In cases of injury on or after September 7, 1974, section 8122(a) of the Act provides that
an original claim for compensation for disability or death must be filed within three years after
the injury or death. Compensation for disability or death, including medical care in disability
cases, may not be allowed if a claim is not filed within that time unless:
“(1) the immediate superior had actual knowledge of the injury or death within 30
days. The knowledge must be such as to put the immediate superior reasonably on
notice of an on-the-job injury or death; or
“(2) written notice of injury or death as specified in section 8119 was given within
30 days.”5
The three-year time period begins to run from the time the employee is aware or by the
exercise of reasonable diligence should have been aware, that his or her condition is causally
related to the employment. For actual knowledge of a supervisor to be regarded as timely filing,
an employee must show not only that the immediate superior knew that he or she was injured,
but also knew or reasonably should have known that it was an on-the-job injury.6
Even if an original claim for compensation for disability or death is not filed within three
years after the injury or death, compensation for disability or death may be allowed if written
notice of injury or death as specified in section 8119 was given within 30 days. Section 8119
provides that a notice of injury or death shall be given within 30 days after the injury or death; be
given to the immediate superior of the employee by personal delivery or by depositing it in the
mail properly stamped and addressed; be in writing; state the name and address of the employee;
state the year, month, day and hour when and the particular locality where the injury or death
occurred; state the cause and nature of the injury or in the case of death, the employment factors
believed to be the cause; and be signed by and contain the address of the individual giving the
3

The Board notes that the award of compensation states “[six] percent-binaural hearing loss-left” but the number
of weeks of compensation and the amount of money awarded reflects that the award was for a left ear monaural
hearing loss.
4

David R. Morey, 55 ECAB 642 (2004).

5

5 U.S.C. § 8122(a).

6

Morey, supra note 4.

3

notice. Actual knowledge and written notice of injury under section 8119 serve to satisfy the
statutory period for filing an original claim for compensation.7
In a case of occupational disease, the time for filing a claim begins to run when the
employee first becomes aware or reasonably should have been aware, of a possible relationship
between his condition and his employment. When an employee becomes aware or reasonably
should have been aware that he has a condition which has been adversely affected by factors of
his federal employment, such awareness is competent to start the limitation period even though
the employee does not know the precise nature of the impairment or whether the ultimate result
of such affect would be temporary or permanent. Where the employee continues in the same
employment after he or she reasonably should have been aware that he or she has a condition
which has been adversely affected by factors of the federal employment awareness, the time
limitation begins to run on the date of the last exposure to the implicated factors. The
requirement to file a claim within three years is the claimant’s burden and not that of the
employing establishment.8
ANALYSIS
Appellant indicated on his Form CA-2 that he first realized his condition was caused by
his federal employment in November 1989. His exposure to the contributing employment
factors ceased on August 4, 1991, his last date of employment with the employing establishment.
Appellant stated his belief that the noise exposure at the employing establishment caused his
hearing loss and continued through his last date of work on August 4, 1991. Therefore, the time
limitation to file a claim began to run on August 4, 1991. However, appellant did not file a claim
until November 8, 2007, which was beyond the three-year time limitation period.9
As noted, appellant’s claim would still be considered timely if his immediate supervisor
had actual knowledge of his injury within 30 days from his last exposure.10 His claim would also
be timely if he had provided written notice of the injury within 30 days pursuant to section 8119
of the Act.11 However, the record does not reflect that appellant provided written notice of injury
prior to filing the present claim. The employing establishment advised that, due to the passage of
time, no current supervisor had any knowledge regarding appellant’s noise exposure and that it
no longer had any records regarding appellant’s employment.
Appellant also asserts that he was given audiograms on a yearly basis as a part of the
employing establishment’s hearing conservation program. The Board has held that a program of
annual audiometric examinations conducted by an employing establishment in conjunction with
an employee testing program is sufficient to constructively establish actual knowledge of a
7

Id.

8

W.L., 59 ECAB ___ (Docket No. 07-1913, issued February 22, 2008).

9

See supra note 2.

10

5 U.S.C. § 8122(a)(1).

11

Id. at §§ 8122(a)(2), 8119.

4

hearing loss such as to put the immediate supervisor on notice of an on-the-job injury.12
However, the record does not contain the results of any audiograms performed during the period
of appellant’s employment. The only audiograms of record were not conducted on behalf of the
employing establishment but were administered many years after he stopped work at the
employing establishment. Therefore, appellant has not established that the employing
establishment had constructive actual knowledge of his hearing loss.
CONCLUSION
The Board finds that appellant’s claim is barred by the applicable time limitation
provisions of the Act.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
September 12, 2008 schedule award be reversed. Appellant’s claim is barred by the time
limitation provisions of the Act.
Issued: July 17, 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

12

James A. Sheppard, 55 ECAB 515 (2004). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Time,
Chapter 2.801.3(a)(3)(c) (March 1993).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-652
Issued: October 17, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 19, 2011 appellant filed a timely appeal from an October 19, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a nine percent permanent impairment of her
left upper extremity.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that appellant sustained a triangular fibrocartilage complex (TFCC) tear
of the left wrist in the performance of duty on February 19, 1988.2 Appellant underwent left
wrist surgery on April 15, 1988.
On November 6, 2009 OWCP received a report dated January 23, 2003 from Dr. David
Weiss, a Board-certified orthopedic surgeon. The report included a handwritten heading,
“revised sixth edition.” Dr. Weiss provided a history of lifting heavy sacks on February 19,
1988, noting that an arthrogram revealed a TFCC tear. He also noted a July 11, 1995 right wrist
injury. Dr. Weiss provided results on examination, noting focal point tenderness over the TFCC
on the left wrist. With respect to a permanent impairment, he indicated that under Table 15-3 of
the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides) appellant had a class 1 impairment, with a default impairment of eight percent to the left
arm. Dr. Weiss found that grade modifiers for Functional History (GMFH), Physical
Examination (GMPE) and Clinical Studies (GMCS) were a two (moderate problem) and
concluded that appellant had a 10 percent impairment. He also referred to an entrapment
neuropathy at the left median wrist and found appellant had a three percent impairment under
Table 15-23.
The case was referred to OWCP’s medical adviser for evaluation. In a report dated
June 8, 2010, the medical adviser concurred that Table 15-3 provided an eight percent
impairment for a class 1 impairment due to an TFCC tear. OWCP’s medical adviser explained,
however, that the findings of Dr. Weiss did not support his use of grade modifier 2 for GMPE
and GMCS. The medical adviser noted that the examination findings reported only some
tenderness over TFCC and Extensor Carpi Ulnar tendon, which constituted minimal palpatory
findings that result in a grade modifier of one under Table 15-8. For GMCS, the arthrogram
confirmed the mild pathology of a TFCC tear and OWCP’s medical adviser found this also
resulted in one for a grade modifier. OWCP’s medical adviser concluded that appellant had a
nine percent left arm impairment. The date of maximum medical improvement was reported as
January 23, 2003.
By decision dated June 16, 2010, OWCP issued a schedule award for a nine percent
permanent impairment to the left arm. The period of the award was 28.08 weeks of
compensation from January 23, 2003.
Appellant requested a review of the written record. By decision dated October 19, 2010,
OWCP’s hearing representative affirmed the June 16, 2010 decision.

2

OWCP form CA-800 (nonfatal summary) also indicated a left wrist sprain was an accepted condition.

2

LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants.5 The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.6 Office procedures provide that, effective
May 1, 2009, all schedule awards are to be calculated under the sixth edition of the A.M.A.,
Guides.7
With respect to a wrist impairment, the A.M.A., Guides provides a regional grid at Table
15-3.8 The class of impairment Diagnosed Condition (CDX) is determined based on specific
diagnosis and then the default value for the identified CDX is determined. The default value
(grade C) may be adjusted by using grade modifiers for GMFH, Table 15-7, GMPE, Table 15-8
and GMCS, Table 15-9. The adjustment formula is GMFH - CDX + GMPE - CDX + GMCS CDX.9
ANALYSIS
In this case, appellant submitted a report dated January 23, 2003 from Dr. Weiss. It
appears that this was a “revised” report with an impairment calculation under the sixth edition of
the A.M.A., Guides, although the revision date is not provided. The Board notes that while
Dr. Weiss referred to entrapment neuropathy impairment, the accepted condition for the
February 18, 1988 injury in this case was a TFCC tear. OWCP has not accepted an entrapment
neuropathy, nor was any evidence submitted on causal relationship with employment.
As to the accepted TFCC tear of the left wrist, both Dr. Weiss and OWCP’s medical
adviser applied Table 15-3. The default value (grade C) for a TFCC tear with residual findings is
eight percent.10
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404 (1999).

5

See Ronald R. Kraynak, 53 ECAB 130 (2001); August M. Buffa, 12 ECAB 324 (1961).

6

20 C.F.R. § 10.404.

7

FECA Bulletin No. 09-03 (March 15, 2009); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700 (January 2010).
8

A.M.A., Guides 391-94, Table 15-3.

9

The net adjustment is up to +2 (grade E) or -2 (grade A).

10

A.M.A., Guides 396, Table 15-3.

3

There was, however, a disagreement between Dr. Weiss and OWCP’s medical adviser as
to how the grade modifiers should be applied. Dr. Weiss found a grade modifier of two for
GMPE under Table 15-8, stating “observed and palpatory.” A grade modifier two is for
moderate palpatory findings.11 OWCP’s medical adviser disagreed, opining that the physical
findings reported would constitute minimal palpatory findings, which under Table 15-8 is
classified as a grade modifier 1. For GMCS, Dr. Weiss also found a grade modifier two pursuant
to Table 15-9, stating “arthrogram.” Under Table 15-9, GMCS that confirm a moderate
pathology is a grade modifier two. OWCP’s medical adviser indicated that the arthrogram
simply confirmed the diagnosis of a mild pathology, which is a grade modifier one under Table
15-9.12
Since there is a disagreement between the attending physician and OWCP’s medical
adviser, the Board finds a conflict under 5 U.S.C. § 8123(a) has occurred.13 The case will be
remanded to OWCP for proper resolution of the conflict. After such development as is deemed
necessary, OWCP should issue an appropriate decision.
On appeal, appellant argues she was deprived of a property right as OWCP failed to issue
a decision under the fifth edition of the A.M.A., Guides. The Board notes that appellant did not
submit Dr. Weiss’ report until after May 1, 2009, when all schedule award decisions must be
based on the sixth edition.
In Harry D. Butler,14 the Board noted that Congress delegated authority to the Director
regarding the specific methods by which permanent impairment is to be rated. Pursuant to this
authority, the Director adopted the A.M.A., Guides as a uniform standard applicable to all
claimants and the Board has concurred in the adoption.15 On March 15, 2009 the Director
exercised authority to advise that as of May 1, 2009 all schedule award decisions of OWCP
should reflect use of the sixth edition of the A.M.A., Guides.16 The applicable date of the sixth
edition is as of the schedule award decision reached. It is not determined by either the date of
maximum medical improvement or when the claim for such award was filed.

11

Id. at 408, Table 15-8.

12

Grade modifier one is described as “GMCS confirm diagnosis, mild pathology.”

13

FECA provides that, if there is a disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall make the
examination. 5 U.S.C. § 8123(a). The implementing regulations state that if a conflict exists between the medical
opinion of the employee’s physician and the medical opinion of either a second opinion physician or OWCP’s
medical adviser, OWCP shall appoint a third physician to make an examination. This is called a referee
examination and OWCP will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case. 20 C.F.R. § 10.321 (1999).
14

43 ECAB 859 (1992).

15

Id. at 866.

16

FECA Bulletin No. 09-03 (issued March 15, 2009). The FECA Bulletin was incorporated in the Federal
(FECA) Procedure Manual, supra note 7, Chapter 2.808.6(a) (January 2010).

4

CONCLUSION
The Board finds there is an unresolved conflict and the case is remanded for referral to a
referee physician.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 19, 2010 is set aside. The case is remanded for further
action consistent with this decision of the Board.
Issued: October 17, 2011
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.L., Appellant
and
DEPARTMENT OF THE NAVY, PEARL
HARBOR NAVAL SHIPYARD,
Pearl Harbor, HI, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 18-0102
Issued: May 8, 2018

Case Submitted on the Record

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

JURISDICTION
On October 11, 20171 appellant filed a timely appeal from an April 17, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of this case.3

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from April 17, 2017, the date of OWCP’s last decision was October 14,
2017, a Saturday; consequently, the period for filing the appeal ran to the next business day, Monday,
October 16, 2017. See 20 C.F.R. § 501.3(f)(2). Since using October 17, 2017, the date the appeal was received by
the Clerk of the Appellate Boards 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 October 11, 2017, rendering the appeal timely filed.
See 20 C.F.R. § 501.3(f)(1).
2
3

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence with his appeal to the Board. However, the Board’s
jurisdiction is limited to the evidence that was in the record at the time of OWCP’s final decision. Thus, the Board is

ISSUE
The issue is whether appellant has met his burden of proof to establish bilateral knee
injuries causally related to the accepted February 24, 2017 employment incident.
FACTUAL HISTORY
On March 3, 2017 appellant, then a 60-year-old police instructor, filed a traumatic injury
claim (Form CA-1) alleging that, on February 24, 2017, he sustained bilateral knee injuries when
demonstrating M4 rifle practical shooting positions to new recruits. He did not stop working.
Accompanying appellant’s claim was a February 24, 2017 employing establishment
medical referral note by Dr. Frederick Landro, an examining physician Board-certified in public
health and general preventive medicine. He noted that appellant had injured himself on
February 24, 2017 at work while demonstrating shooting positions. Dr. Landro recommended
restricted activity until April 24, 2017.
By development letter dated March 15, 2017, OWCP informed appellant that the evidence
of record was insufficient to establish his traumatic injury claim. It advised him of the type of
medical and factual evidence needed and afforded him 30 days to submit the requested evidence.
In response to the March 15, 2017 letter, appellant submitted progress notes dated May 26,
November 21, and December 19, 2016 and January 23 and March 16, 2017 from Frederick J.
Puleo, a Board-certified acute care nurse practitioner. He provided physical examination findings
and noted a history of bilateral knee pain. Mr. Puleo diagnosed bilateral knee pain and bilateral
chondromalacia on November 21 and December 19, 2016 and March 16, 2017.
By decision dated April 17, 2017, OWCP denied appellant’s claim. It found that the
medical evidence of record was insufficient to establish a diagnosed condition causally related to
the accepted February 24, 2017 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the

precluded from reviewing this additional evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1); M.B.,
Docket No. 09-0176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R.
Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
4

Supra note 1.

2

employment injury.5 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.6
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.7 First,
the employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time, place, and in the manner alleged.8 Second, the employee must
submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.9
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.10 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is causal relationship between the employee’s diagnosed condition and the
compensable employment factors.11 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty, and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.12
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish bilateral knee
injuries causally related to the accepted February 24, 2017 employment incident.
In support of his claim, appellant submitted a February 24, 2017 medical referral note from
Dr. Landro which referenced the February 24, 2017 accepted employment incident and
recommended that appellant be placed on restricted duty until April 24, 2017. However,
Dr. Landro’s note is insufficient to establish the claim as it does not specifically address whether
appellant’s employment incident was sufficient to have caused or aggravated a diagnosed medical
condition.13 Lacking a firm diagnosis and medical rationale on the issue of causal relationship,
5

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

6

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

7

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 5.

8

D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

9

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra
note 5.
10

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).
11

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).

12

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

13

D.G., Docket No. 17-0704 (issued January 24, 2018); A.D., 58 ECAB 149 (2006); Docket No. 06-1183 (issued
November 14, 2006) (medical evidence which does not offer any opinion regarding the cause of an employee’s

3

Dr. Landro’s report is insufficient to establish that appellant sustained an employment-related
injury.14
Appellant also submitted reports from Mr. Puleo, a Board-certified acute care nurse
practitioner, dated May 26, November 21, and December 19, 2016 and January 23 and
March 16, 2017. The Board has held that notes signed by nurse practitioners15 lack probative value
as these healthcare providers are not considered physicians under FECA.16
In a letter dated March 15, 2017, OWCP requested that appellant submit a comprehensive
report from his treating physician which included a reasoned explanation as to how the accepted
work incident had caused his claimed injury. It did not receive the necessary medical evidence.
An award of compensation may not be based on surmise, conjecture, speculation, or on the
employee’s own belief of causal relation.17 Appellant’s honest belief that his employment duties
caused a medical injury, however sincerely held, does not constitute medical evidence sufficient
to establish causal relationship.18
Because appellant has not submitted reasoned medical evidence explaining how a
diagnosed medical condition was caused by his accepted employment incident, he has not met his
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 his burden of proof to establish bilateral knee
injuries causally related to the accepted February 24, 2017 employment incident.

condition is of limited probative value on the issue of causal relationship).
14

See R.S., Docket No. 17-1139 (issued November 16, 2017).

15
M.E., Docket No. 17-1857 (issued February 2, 2018); Paul Foster, 56 ECAB 208 (2004) (where the Board found
that a nurse practitioner is not considered a physician pursuant to FECA).
16

See 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); L.D., 59 ECAB 648 (2008) (a nurse
practitioner is not considered a physician as defined under FECA). 5 U.S.C. § 8101(2) (this subsection defines a
physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic
practitioners within the scope of their practice as defined by State law).
17

D.D., 57 ECAB 734 (2006).

18

See J.S., Docket No. 17-0967 (issued August 23, 2017).

19

Supra note 10.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated April 17, 2017 is affirmed.
Issued: May 8, 2018
Washington, DC

Patricia H. Fitzgerald, Deputy 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.F., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS LOGISTICS, Barstow, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 21-1221
Issued: March 28, 2022

Case Submitted on the Record

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

JURISDICTION
On August 9, 2021 appellant filed a timely appeal from an April 6, 2021 merit decision
and a May 5, 2021 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish a recurrence
of medical treatment causally related to his accepted May 5, 2009 employment injury; and
(2) whether OWCP properly denied appellant’s request for reconsideration of the merits of his
claim, pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 8, 2009 appellant, then a 24-year-old materials expediter, filed a traumatic injury
claim (Form CA-1) alleging that on May 5, 2009 he injured his left knee when moving pallets of
material with the use of a pallet jack while in the performance of duty. Following a request for
surgery, OWCP formally adjudicated the claim and accepted left knee sprain, lateral collateral
ligament; old bucket handle tear of left medial meniscus and left knee contusion. Appellant
underwent OWCP-authorized left knee arthroscopic surgeries on July 23, 2009 and
October 27, 2016. OWCP paid him intermittent wage-loss compensation on the supplemental rolls
through November 21, 2016.
In a report dated May 17, 2017, Dr. Paul A. Stanton, an osteopath Board-certified in
orthopedic surgery, related that a final medical evaluation was performed at the request of
appellant. He related appellant’s medical history and physical examination findings. Dr. Stanton
noted that appellant had returned to full-duty work and that future medical care was not anticipated.
He concluded that appellant had reached a permanent and stationary level of disability.
Appellant’s last medical examination of record prior to his notice of recurrence of medical
treatment was conducted on December 1, 2017. In a report of even date, Dr. Amarilda
Christensen, a Board-certified occupational medicine specialist, performed a permanent
impairment evaluation and concluded that appellant had two percent permanent impairment of the
left lower extremity.2
On January 26, 2021 appellant filed a Form CA-2a alleging that he sustained a recurrence
of the need for medical treatment, commencing December 2, 2020 causally related to his accepted
left knee employment conditions. He asserted that it was difficult to bend, stoop, and climb stairs.
Appellant also noted that since he returned to work he could not seek medical treatment as his case
was closed.
In a development letter dated February 16, 2021, OWCP informed appellant of the
definition of a recurrence of a work-related medical condition for medical treatment and requested
that he submit additional evidence in support of his claim, including a physician’s opinion
supported by a medical explanation as to the relationship between h is current need for medical
treatment and the accepted employment conditions. It provided a questionnaire for his completion,
which posed questions regarding his medical treatment. 3 OWCP afforded appellant 30 days to
respond.
In a March 17, 2021 statement, appellant reported that he had experienced issues with his
left knee since his original injury, which had progressively worsened following the second surgery.

2
By decisions dated February 17, 2010 and Ma rch 6, 2018, OWCP granted appellant schedule award for one
percent permanent impairment of the left lower extremity, and an additional schedule award for two percent permanent
left lower extremity, respectively, for a total three percent permanent impairment of the left lower extremity.
3

OWCP advised appellant that, if a new traumatic work injury or occupational disease (Form CA-2) produced by
the work environment occurred, a new claim might need to be filed. This was true even if the new incident or exposure
involved the same part of the body as previously affected.

2

He noted that recent x-rays showed his knee was arthritic and narrowing as a result of his
arthroscopic surgeries and meniscus tear repair.
Appellant submitted reports from Dr. Benjamin M. Woodhead, an orthopedic surgeon,
dated February 19 and March 10, 2021. In his February 19, 2021 report, Dr. Woodhead noted that
appellant was seen for follow up six weeks’ status postsurgery, and his left knee. With regard to
the left knee, he noted appellant’s medical history, presented examination findings, and diagnosed
left knee patellofemoral syndrome and left knee mild arthritis. Dr. Woodhead indicated that
appellant had some irritation in the knee, but that it was difficult to say if his patellofemoral
symptoms stemmed from his prior surgeries or work-related injuries without having all the records.
In the March 10, 2021 report, he indicated that appellant had anterior knee pain, patellofemoral
symptoms; mild-to-moderate degenerative changes on x-rays; left knee patellofemoral syndrome,
mild arthritis. Dr. Woodhead reiterated that he was unable to answer questions regarding causal
relationship as he did not have all of appellant’s records.
By decision dated April 6, 2021, OWCP denied appellant’s recurrence claim, finding that
the medical evidence of record was insufficient to establish a recurrence of the need for medical
treatment due to a worsening of his accepted employment injuries. It found that there was no
medical evidence to support that the claimed recurrence was due to the accepted work -related
injury of May 5, 2009.
On April 26, 2021 appellant requested reconsideration. He indicated that he was never
notified by OWCP that his case was closed for medical treatment and argued that it should not
have been closed. Appellant requested that his case be reopened, and that the acceptance of his
claim be expanded to include osteoarthritis and patellofemoral injuries and medical treatment for
such conditions. Duplicative copies of evidence previously of record was submitted.4
By decision dated May 5, 2021, OWCP denied appellant’s request for reconsideration. 5
LEGAL PRECEDENT -- ISSUE 1
A recurrence of a medical condition means a documented need for further medical
treatment after release from treatment f or the accepted condition or injury when there is no
accompanying work stoppage. 6 An employee has the burden of proof to establish that he or she

4

This included June 2, 2012 and August 13, 2016 magnetic resonance imaging (MRI) scans of the left knee and
Dr. Woodhead’s February 19 and March 10, 2021 reports.
OWCP explained why an “October 26, 2020” medical report from Dr. Louis C. Redix, Jr., an orthopedic surgery
specialist, supported case closure. The Board notes that the medical report from Dr. Redix OWCP referenced is dated
October 26, 2009, not October 26, 2020. In his October 26, 2009 report, Dr. Redix, indicated, “The patient will not
require any additional medical treatment or follow up. The patient is not a surgical candidate nor is he likely to become
one. There is no need for continued medication or physical therapy. No further intervention will be needed or
anticipated.” This report was used in the calculation of appellant’s February 17, 2010 schedule award. See supra
note 2.
5

6

20 C.F.R. § 10.5(y).

3

sustained a recurrence of a medical condition that is causally related to his or her accepted
employment injury without intervening cause. 7
If a claim for recurrence of medical condition is made more than 90 days after release from
medical care, a claimant is responsible for submitting a medical report supporting a causal
relationship between the employee’s current condition and the original injury in order to meet his
or her burden. 8 To meet this burden, the employee must submit medical evidence from a physician
who, on the basis of a complete and accurate factual and medical history , supports that the
condition is causally related and supports his or her conclusion with sound medical rationale. 9
Where no such rationale is present, medical evidence is of diminished probative value. 10
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish a recurrence of
the need for medical treatment on or after December 2, 2020 causally related to his accepted
May 5, 2009 employment injury.
In a report dated May 17, 2017, Dr. Stanton, appellant’s treating physician, related that a
final medical evaluation was performed at appellant’s request. He noted that appellant had
returned to full-duty work and that future medical care was not anticipated. Following this report,
the other medical evidence received of record prior to appellant’s request for further medical
treatment did not document further medical treatment, but evaluated appellant for schedule award
purposes. The Board therefore finds that appellant’s claim for recurrence of medical condition
was made more than 90 days after release from medical care by Dr. Stanton, and therefore his
claim for recurrence of medical treatment must be supported by medical evidence of a causal
relationship between his current condition and the accepted May 5, 2009 employment injury. 11
In his February 19, 2021 report, Dr. Woodhead noted the medical history of appellant’s
left knee, presented examination findings, and diagnosed left knee patellofemoral syndrome and
left knee mild arthritis. He indicated that appellant had some irritation in the knee, but opined that
it was difficult to say if appellant’s patellofemoral symptoms stemmed from his prior surgeries or
work-related injuries without having all the records. In the March 10, 2021 report, Dr. Woodhead
reiterated that he was unable to answer the causal relationship of appellant’s anterior knee pain,
patellofemoral symptoms; mild-to-moderate degenerative changes on x-rays; left knee
patellofemoral syndrome, mild arthritis as he did not have all of appellant’s records and films. His
reports are of limited probative value as he was unable to offer an opinion on the issue of causal
relationship. The Board has held that a medical report is of no probative value on a given medical
7

M.P., Docket No. 19-0161 (issued August 16, 2019); E.R., Docket No. 18-0202 (issued June 5, 2018).

8

Federal (FECA) Procedural Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.4b (June 2013); see also
J.M., Docket No. 09-2041 (issued May 6, 2010).
9

S.P., Docket No. 19-0573 (issued May 6, 2021); A.C., Docket No. 17-0521 (issued April 24, 2018); O.H., Docket
No. 15-0778 (issued June 25, 2015).
10

M.P., supra note 7; Michael Stockert, 39 ECAB 1186 (1988).

11

Supra note 9.

4

matter if it does not contain an opinion on that matter. 12 Thus, these reports are insufficient to
establish appellant’s recurrence claim.
As the medical evidence of record does not contain a rationalized medical opinion
establishing that appellant required further medical care on or after December 2, 2020 causally
related to his accepted employment conditions, the Board finds that appellant has not met his
burden of proof to establish his recurrence claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 13
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.14
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 15 If the request is timely, but fails to meet at least
one of the requirements for reconsideration, OWCP will deny the request for reconsideration
without reopening the case for review on the merits. 16

12

See S.P., Docket No. 19-0573 (issued May 6, 2021); T.H., Docket No. 18-0704 (issued September 6, 2018);
Charles H. Tomaszewski, 39 ECAB 461 (1988).
13

5 U.S.C. § 8128(a); T.T., Docket No. 19-0319 (issued October 26, 2020); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
14

20 C.F.R. § 10.606(b)(3); see V.D., Docket No. 20-0569 (issued December 7, 2020); B.R., Docket No. 19-0372
(issued February 20, 2020); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
15

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2020). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
16

Id. at § 10.608(b); see M.E., Docket No. 20-0067 (issued October 15, 2020); E.R., Docket No. 09-1655 (issued
March 18, 2010).

5

ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Appellant argued that OWCP prematurely closed his case as he was not released from
medical care. However as previously discussed, Dr. Stanton in his May 17, 2017 report released
appellant from medical care. Appellant’s allegations that he was not released from medical care
do not demonstrate that OWCP erroneously applied or interpreted a specific point of law and do
not constitute a valid new legal argument. Consequently, the Board finds that appellant was not
entitled to a review of the merits based on the first or second above -noted requirements under
20 C.F.R. § 10.606(b)(3).17
Appellant also failed to submit relevant and pertinent new evidence in support of his
reconsideration request. He submitted duplicative evidence previously of record. Evidence which
repeats or duplicates evidence already of record has no evidentiary value and does not constitute a
basis for reopening a case.18 Therefore, appellant also failed to satisfy the third requirement under
20 C.F.R. § 10.606(b)(3).
The Board, accordingly, finds that appellant has not met any of the requirements of
20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a recurrence of
the need for medical treatment on or after December 2, 2020 causally related to his accepted
May 5, 2009 employment injury. The Board further finds that OWCP properly denied appellant’s
request for reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

17

D.B., Docket No. 19-1963 (issued July 1, 2020); M.O., Docket No. 19-1677 (issued February 25, 2020); C.B.,
Docket No. 18-1108 (issued January 22, 2019).
18

R.B., Docket No. 21-0035 (issued May 13, 2021); V.L., Docket No. 19-0069 (issued February 10, 2020); A.K.,
Docket No. 19-1210 (issued November 20, 2019); R.S., Docket No. 19-0312 (issued June 18, 2019); Richard Yadron,
57 ECAB 207 (2005); Eugene F. Butler, 36 ECAB 393, 398 (1984).

6

ORDER
IT IS HEREBY ORDERED THAT the April 6 and May 5, 2021 decisions of the Office
of Workers’ Compensation Programs are affirmed.
Issued: March 28, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.S., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Philadelphia, PA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 08-2065
Issued: April 1, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 21, 2008 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ merit decision dated November 26, 2007, finding that he did not sustain an injury
while in the performance of duty and April 30, 2008 nonmerit decision, finding that he
abandoned his request for an oral hearing. 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 has established that he sustained a hernia on
September 19, 2007, as alleged; and (2) whether the Office properly found that he abandoned his
request for a hearing.
FACTUAL HISTORY
On September 19, 2007 appellant, then a 33-year-old mail handler, filed a traumatic
injury claim alleging that he felt a sharp pain in his stomach on that date as a result of lifting a

tray of mail. A September 19, 2007 medical report of Dr. Wayne Henschel, an osteopath, stated
that appellant sustained an abdominal hernia. He referred him to a surgeon for repair of the
hernia.
A September 19, 2007 e-mail message from the employing establishment stated that
appellant was seen in the health unit on that date. Subsequently, he was referred to a health care
facility and was seen by Dr. Henschel who opined that his current condition was not work
related.
By letter dated October 26, 2007, the Office advised appellant that the evidence
submitted was insufficient to establish his claim. It requested additional factual and medical
evidence, including a rationalized medical report from an attending physician which described
his symptoms, results of examination and tests, diagnosis, treatment provided, the effect of
treatment and opinion with medical reasons on whether exposure or incidents in appellant’s
federal employment contributed to his condition. Appellant was afforded 30 days to submit the
requested evidence. He did not respond.
By decision dated November 26, 2007, the Office denied appellant’s claim. It found the
evidence sufficient to establish that the September 19, 2007 incident occurred at the time, place
and in the manner alleged. However, the medical evidence was insufficient to establish an injury
causally related to the accepted employment incident.
An April 25, 2007 report of Dr. John E. Meilahn, a Board-certified surgeon, stated that
appellant experienced occasional discomfort in his left lower abdomen that was related to his
bowel movements. He reported that an upper midline incision had healed. Dr. Meilahn did not
detect any herniation in that area. In a September 12, 2007 report, he stated that nearly one year
had passed since appellant’s gastric bypass surgery. Dr. Meilahn noted an upper midline incision
that had a reducible incisional hernia at its base along the right side. On November 19, 2007 he
surgically repaired the incisional hernia. In a November 21, 2007 discharge summary,
Dr. Meilahn reiterated his prior diagnosis of incisional hernia.
On December 21, 2007 appellant requested an oral hearing before an Office hearing
representative regarding the November 26, 2007 decision. In a February 7, 2007 report,
Dr. Meilahn stated that the sinus tract of the interior tract of his incision was shallow, but did not
require repacking. He found no evidence of any discharge or cellulitis. In a November 30, 2007
report, Dr. Meilahn stated that appellant was status post incisional hernia repair. Appellant’s
midline incision was healing well, without infection, discharge, herniation or seroma. On
December 12, 2007 Dr. Meilahn stated that appellant’s prior open gastric bypass and subsequent
wound infection may have predisposed him to an incisional hernia. He further stated that the
repetitive nature of lifting at work could well have aggravated his hernia to the point where it
required repair. In an October 18, 2007 report, Dr. Henschel stated that he could not conclude
that appellant’s abdominal hernia was work related since he had experienced abdominal pain for
which he sought treatment from a surgeon prior to his initial examination.
On January 17, 2008 appellant informed the Office that he no longer wished to have an
oral hearing. Instead, he wished to seek reconsideration. The Office advised him to submit a
statement indicating that he wished to withdraw his request for a hearing and requesting

2

reconsideration. There is no evidence of record demonstrating that appellant submitted a request
to withdraw his hearing.
By letter dated March 5, 2008, the Office informed appellant that an oral hearing would
be held on April 10, 2008 at 1:00 p.m. It was mailed to his address of record. Appellant did not
appear for his scheduled hearing.
By decision dated April 30, 2008, the Office found that appellant had abandoned his
request for a hearing.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act1 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.2 These are the essential
elements of each compensation claim regardless of whether the claim is predicated upon a
traumatic injury or an occupational disease.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish a causal relationship is 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.4 Neither the fact that appellant’s condition became apparent during a

1

5 U.S.C. §§ 8101-8193.

2

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

3

Gary J. Watling, 52 ECAB 357 (2001).

4

Solomon Polen, 51 ECAB 341 (2000).

3

period of employment nor his belief that the condition was caused by his employment, is
sufficient to establish a causal relationship.5
ANALYSIS -- ISSUE 1
The Office accepted that appellant lifted a tray of mail on September 19, 2007 while
working as a mail handler at the employing establishment. The Board finds, however, that the
medical evidence submitted is insufficient to establish that his diagnosed hernia was caused or
aggravated by the September 19, 2007 employment incident.
Dr. Henschel’s September 19, 2007 report stated that appellant sustained an abdominal
hernia that required surgical repair. Dr. Meilahn’s February 7, 2007 report stated that the sinus
tract of the interior tract of appellant’s incision was shallow, but did not require repacking. He
found no evidence of any discharge or cellulitis. In a September 12, 2007 report, Dr. Meilahn
stated that appellant was nearly one year after gastric bypass surgery, when he developed an
upper midline incision that had a reducible incisional hernia at its base along the right side. In a
November 19, 2007 surgical report, he stated that he repaired the incisional hernia. A
November 21, 2007 discharge summary reiterated the diagnosis of incisional hernia.
Dr. Meilahn’s November 30, 2007 report stated that appellant was status post incisional hernia
repair and that his midline incision was healing well, without infection, discharge, herniation or
seroma. This evidence, however, is insufficient to establish appellant’s claim. Neither
Dr. Henschel nor Dr. Meilahn addressed how the diagnosed condition was caused or contributed
to by the accepted September 19, 2007 employment incident. Rather, Dr. Meilahn noted that the
hernia was located at the base of an incision related to prior gastric bypass surgery.
Dr. Meilahn’s April 25, 2007 report stated that appellant’s occasional discomfort in his
left lower abdomen was related to his bowel movements. He further stated that an upper midline
incision had healed and no herniation was detected in that area. Dr. Henschel’s October 18,
2007 report stated that he could not opine whether appellant’s abdominal hernia was work
related since appellant had experienced abdominal pain and sought treatment from a surgeon
prior to his initial examination. Neither, Dr. Meilahn nor Dr. Henschel opined that appellant
sustained an incisional hernia caused or contributed to by the accepted employment incident.
Dr. Meilahn’s December 12, 2007 report stated that appellant’s prior open gastric bypass
and subsequent wound infection may have predisposed him to an incisional hernia. He also
stated that the repetitive nature of lifting by appellant at work “could” well have aggravated the
hernia to the point where it required repair. The Board finds that Dr. Meilahn’s opinion
regarding causal relation is speculative in nature and, thus, insufficient to establish appellant’s
claim.6

5

See Dennis M. Mascarenas, 49 ECAB 215 (1997).

6

L.R. (E.R.), 58 ECAB ___ (Docket No. 06-1942, issued February 20, 2007); D.D., 57 ECAB 734 (2006);
Cecelia M. Corley, 56 ECAB 662 (2005); Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and
Evaluating Medical Evidence, Chapter 2.810.3(g) (April 1993).

4

The Board finds that there is insufficient rationalized medical evidence of record to
establish that appellant sustained a hernia causally related to the accepted September 19, 2007
employment incident. Appellant did not meet his burden of proof.
LEGAL PRECEDENT -- ISSUE 2
The statutory right to a hearing under the Act, 5 U.S.C. § 8124(b)(1), follows the initial
final merit decision of the Office. Section 8124(b)(1) provides as follows:
“Before review under section 8128(a) of this title, a claimant for compensation
not satisfied with a decision of the Secretary [of Labor] under subsection (a) of
this section is entitled, on request made within 30 days after the date of the
issuance of the decision, to a hearing on his claim before a representative of the
Secretary.”
With respect to abandonment of hearing requests, Chapter 2.1601.6(e) of the Office’s
procedure manual provides in relevant part:
“(1) A hearing can be considered abandoned only under very limited
circumstances. All three of the following conditions must be present: the
claimant has not requested a postponement; the claimant has failed to appear at a
scheduled hearing; and the claimant has failed to provide any notification for such
failure within 10 days of the scheduled date of the hearing. Under these
circumstances, [the Branch of Hearings and Review] will issue a formal decision
finding that the claimant has abandoned his or her request for a hearing and return
the case to the [district Office].”7
ANALYIS -- ISSUE 2
Appellant requested an oral hearing within 30 days of the Office’s November 26, 2007
decision denying his claim for compensation. His request was timely and entitled him to a
hearing as a matter of right. On March 5, 2008 the Office notified appellant that an oral hearing
would be held on April 10, 2008 at 1:00 p.m. The record shows that the Office mailed the notice
to his address of record. On appeal, appellant stated that he failed to attend the scheduled
hearing due to personal family problems. The record shows that appellant did not request
postponement, he failed to appear at the scheduled hearing and, he failed to provide any
notification for such failure within 10 days of the scheduled date of the hearing. As appellant did
not meet any of the requirements specified in the Office procedure manual, the Board finds that
he abandoned his request for an oral hearing before an Office hearing representative in this case.

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(e) (January 1999); see also G.J., 58 ECAB ___ (Docket No. 07-1028, issued August 16, 2007); see also
Claudia J. Whitten, 52 ECAB 483 (2001).

5

CONCLUSION
The Board finds that appellant has failed to establish that he sustained a hernia while in
the performance of duty on September 19, 2007, as alleged. The Board further finds that he
abandoned his request for an oral hearing.
ORDER
IT IS HEREBY ORDERED THAT the April 30, 2008 and November 26, 2007
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: April 1, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, 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
__________________________________________
P.S., Appellant
and
DEPARTMENT OF STATE, DIPLOMATIC
SECURITY SERVICE, Dunn Loring, VA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 11-1715
Issued: March 2, 2012

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 18, 2011 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ (OWCP) May 12, 2011 merit decision denying his traumatic injury claim and a
July 11, 2011 nonmerit decision denying his request for reconsideration. 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.
ISSUES
The issues are: (1) whether appellant established that he sustained a left knee injury on
June 19, 2010 as alleged; and (2) whether OWCP properly denied his request for further merit
review of his claim pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant submitted new medical evidence and contended that it established
that he sustained an employment-related left knee injury.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 25, 2010 appellant, then a 36-year-old special agent, filed a traumatic injury
claim (Form CA-1) alleging that on June 19, 2010 he twisted his left knee as he was getting out
of an armored vehicle at work.
By letter dated April 5, 2011, OWCP advised appellant that the evidence submitted was
insufficient to establish his claim. It requested that he submit medical evidence, including a
rationalized medical opinion from an attending physician describing a history of injury and
provided dates of examination and treatment, findings, test results, a diagnosis together with an
explanation as to why the diagnosed condition was caused or aggravated by the June 19, 2010
incident. Appellant was afforded 30 days to submit the requested evidence. He did not respond.
In a May 12, 2011 decision, OWCP denied appellant’s claim. It found that the evidence
established that the June 19, 2010 incident occurred as alleged. OWCP, however, found that
appellant failed to submit any medical evidence establishing a causal relationship between a
medical condition and the accepted employment-related incident.
In an undated letter received by OWCP on June 27, 2011, appellant requested
reconsideration. He stated that, after several unsuccessful attempts, his Form CA-1 was finally
submitted to OWCP in May 2011. However, appellant was unable to schedule an appointment
with a physician until late May 2011. He stated that his claim was denied before he could be
evaluated by a physician and thus, he was unable to submit the requested evidence. Appellant
stated that he had been seen by a physician and undergone a magnetic resonance imaging scan.
He contended that the physician’s medical report had been submitted.
In a July 11, 2011 decision, OWCP denied appellant’s request for reconsideration
finding, that he did not submit any new legal argument or relevant medical evidence not
previously considered and, thus, it was insufficient to warrant a merit review of his claim.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury of an occupational disease.4

2

5 U.S.C. §§ 8101-8193.

3

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

4

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999); Elaine Pendleton, supra
note 3.

2

In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components, which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident or exposure, which is alleged to have occurred.5
In order to meet his burden of proof to establish the fact that he sustained an injury in the
performance of duty, an employee must submit sufficient evidence to establish that he actually
experienced the employment injury or exposure at the time, place and in the manner alleged.6
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.7 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing a causal relationship between the claimed condition and the
identified factors.8 The belief of the claimant that a condition was caused or aggravated by the
employment is insufficient to establish a causal relationship.9
ANALYSIS -- ISSUE 1
In a May 12, 2011 decision, OWCP accepted as factual that appellant exited an armored
vehicle on June 19, 2010 while working as a special agent. While the work incident is
established, the Board finds that appellant failed to establish a causal relationship between the
claimed left knee injury and accepted employment incident. OWCP’s April 5, 2011
developmental letter specifically requested that he submit a rationalized medical opinion from
his attending physician addressing whether the accepted work incident caused or aggravated the
claimed injury. Appellant did not submit any medical evidence in response to OWCP’s request
prior to the issuance of the May 12, 2011 decision. The Board finds, therefore, that he failed to
meet his burden of proof.10
On appeal, appellant submitted new medical evidence and contended that it established
that he sustained an employment-related left knee injury. However, evidence submitted by him
after issuance of the final OWCP decision cannot be considered by the Board. The Board’s
jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its
decision.11 Appellant may submit additional evidence, together with a written request for
5

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (June 1995).

6

Linda S. Jackson, 49 ECAB 486 (1998).

7

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined, respectively).
8

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

9

Charles E. Evans, 48 ECAB 692 (1997).

10

See Donald W. Wenzel, 56 ECAB 390 (2005).

11

See 20 C.F.R. § 501(c)(1); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57
ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

3

reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128 of FECA,12
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.13 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.14 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 -- ISSUE 2
On May 12, 2011 OWCP denied appellant’s traumatic injury claim on the grounds that
he failed to submit any medical evidence establishing that he sustained an injury causally related
to the accepted June 19, 2010 employment incident. Appellant requested reconsideration in an
undated letter received by OWCP on June 27, 2011, stating that relevant new medical evidence
was submitted by his attending physician. The evidence, however, was not contained in the case
record prior to OWCP’s issuance of its July 11, 2011 decision denying his request for
reconsideration.
The Board finds that OWCP properly determined that appellant was not entitled to
further review of the merits of his claim pursuant to any of the three requirements under section
10.606(b)(2) and properly denied his June 27, 2011 request for reconsideration.15
CONCLUSION
The Board finds that appellant has failed to establish that he sustained a left knee injury
on June 19, 2010, as alleged. The Board further finds that OWCP properly denied his request for
further merit review of his claim pursuant to 5 U.S.C. § 8128(a).

12

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).
13

20 C.F.R. § 10.606(b)(1)-(2).

14

Id. at § 10.607(a).

15

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

ORDER
IT IS HEREBY ORDERED THAT the July 11 and May 12, 2011 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 2, 2012
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

5