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

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

Docket No. 15-0620
Issued: March 15, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 26, 2015 appellant timely appealed from a September 29, 2014 merit decision
and a January 7, 2015 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 sustained an injury in the performance of duty on
or about February 20, 2014; and (2) whether the Branch of Hearings & Review properly denied
appellant’s December 4, 2014 request for review of the written record.
FACTUAL HISTORY
Appellant, a 41-year-old rural carrier, filed an occupational disease claim (Form CA-2)
for a right shoulder injury that she attributed to casing mail. She explained that casing required
1

5 U.S.C. § 8101 et seq.

reaching above her head on a daily basis. Appellant identified February 20, 2014 as the date she
first realized her right shoulder condition was caused or aggravated by her work for the
employing establishment.2 She did not submit any medical evidence with her June 30, 2014 CA2 form.
By letter dated August 27, 2014, OWCP advised appellant of the five basic elements to
establish a claim under FECA. It further explained that the evidence of record was insufficient
to establish her claimed occupational exposure. OWCP provided a questionnaire that appellant
was to complete and return. It requested that she describe in detail the employment-related
activities she believed contributed to her condition, including information regarding the
frequency and duration of various implicated activities. OWCP also requested appellant to
provide information regarding all activities outside her federal employment. Additionally, it
noted that no medical evidence had been received. OWCP afforded appellant 30 days to submit
the necessary factual information and medical evidence in support of her claimed right shoulder
injury.
OWCP subsequently received a September 22, 2014 work excuse form signed by Dr. T.
Bradley Edwards, a Board-certified orthopedic surgeon, who advised that appellant had
recovered sufficiently to return to light-duty work. Dr. Edwards imposed restrictions of no
pulling, no pushing, no overhead work, and no lifting more than five pounds. However,
Dr. Edwards did not provide a specific diagnosis.
In a September 29, 2014 merit decision, OWCP denied appellant’s occupational disease
claim as she failed to establish fact of injury because the evidence did not support that the injury
occurred as alleged.
On December 4, 2014 appellant requested a review of the written record by the Branch of
Hearings & Review. She signed and returned OWCP’s August 27, 2014 activities questionnaire,
but neglected to provide the requested information.
In a report dated September 24, 2014, Dr. Emile Mathurin Jr., a Board-certified
physiatrist, diagnosed right shoulder impingement syndrome.3 He described appellant as a
carrier who does a lot of repetitive motion with the shoulder. Dr. Mathurin noted a prior history
of work-related left shoulder problems. Appellant described her current right shoulder
symptoms as being very similar to the left shoulder. She denied any history of falls or trauma to
the shoulder. Appellant also indicated that her pain seemed to be aggravated with motion and
with certain activities, especially above the head movement. On physical examination
Dr. Mathurin noted that her shoulders were symmetrical. Appellant had undergone left shoulder
surgery 4 to 5 months ago and exhibited limited range of motion. Examination of the right
shoulder revealed no instability and fairly good range of motion. Dr. Mathurin noted some
tenderness in the suprascapular region. He also reported good scapulohumeral movement of the
right shoulder and good external and internal range of motion. Additionally, Dr. Mathurin noted
that there was a little discomfort on internal rotation of the right shoulder. Also, appellant’s
2

Appellant has an accepted claim for a left shoulder traumatic injury sustained on August 21, 2012 (xxxxxx763).

3

OWCP received Dr. Mathurin’s report on October 6, 2014.

2

Hawkins test was negative. Dr. Mathurin ordered plain x-rays of the left shoulder. He noted that
appellant stated that she had been doing exercises especially working with the left shoulder,
which apparently helped.
By decision dated January 7, 2015, OWCP’s Branch of Hearings and Review denied
appellant’s request for review of the written record as untimely. The hearing representative also
denied a discretionary hearing, noting that appellant could instead request reconsideration before
OWCP.
LEGAL PRECEDENT -- ISSUE 1
A claimant seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.4
To establish that an injury was sustained in the performance of duty, a claimant must
submit: (1) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; (2) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
and (3) medical evidence establishing that the diagnosed condition is causally related to the
identified employment factors.5
ANALYSIS -- ISSUE 1
When appellant initially filed her Form CA-2 she did not provide any medical evidence
in support of her claimed right shoulder injury. She also did not provide a detailed account of
the employment duties she believed either caused or contributed to her claimed injury. On
August 27, 2014 OWCP advised appellant of the above-noted deficiencies within her claim and
afforded her at least 30-days to submit additional evidence. However, appellant did not submit
the requested factual information.
Dr. Edwards’ September 22, 2014 work excuse, which was of record, did not include a
medical diagnosis, date of injury, or explanation as to the cause of injury. OWCP denied her
occupational disease claim because she failed to establish fact of injury. The Board finds that
appellant has not met her burden to prove she sustained an injury in the performance of duty on

4

20 C.F.R. § 10.115(e), (f) (2014); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996). Causal relationship is
a medical question, which generally requires rationalized medical opinion evidence to resolve the issue. See
Robert G. Morris, 48 ECAB 238 (1996). A physician’s opinion on whether there is a causal relationship between
the diagnosed condition and the implicated employment factors must be based on a complete factual and medical
background. Victor J. Woodhams, 41 ECAB 345, 352 (1989). Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical rationale,
explaining the nature of the relationship between the diagnosed condition and appellant’s specific employment
factors. Id.
5

Victor J. Woodhams, id.

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or about February 20, 2014 as she has not provided the factual information necessary to evaluate
her 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
A claimant, injured on or after July 4, 1966, who has received a final adverse decision by
OWCP, may obtain a hearing by writing to the address specified in the decision.6 The hearing
request must be sent within 30 days (as determined by postmark or other carrier’s date marking)
of the date of the decision for which a hearing is sought.7 The claimant must not have previously
submitted a reconsideration request (whether or not it was granted) on the same decision.8 If the
request is not made within 30 days, a claimant is not entitled to a hearing as a matter of right.
However, the Branch of Hearings and Review may exercise its discretion to either grant or deny
a hearing.9
ANALYSIS -- ISSUE 2
OWCP issued its merit decision on September 29, 2014. Appellant had 30 days to
request a hearing, but she waited more than two months before filing her request. The hearing
request was postmarked December 4, 2014. The regulations clearly state that “[t]he hearing
request must be sent within 30 days ... of the date of the decision for which a hearing is
sought.”10 The Board, therefore, finds that appellant’s December 4, 2014 request was untimely
and she was not entitled to a review of the written record as a matter of right. The Branch of
Hearings & Review also denied her request on the basis that her occupational disease claim
could be equally well-addressed by requesting reconsideration before OWCP.
The Board finds that the hearing representative properly exercised appellant’s
discretionary authority in denying her request for review of the written record.11

6

20 C.F.R. § 10.616(a).

7

Id.

8

Id.

9

5 U.S.C. §§ 8124(b)(1) and 8128(a); Hubert Jones Jr., 57 ECAB 467, 472-73 (2006); Herbert C. Holley, 33
ECAB 140 (1981).
10

20 C.F.R. § 10.616(a).

11

Mary B. Moss, 40 ECAB 640, 647 (1989). Abuse of discretion is generally shown through proof of manifest
error, clearly unreasonable exercise of judgment or actions taken which are contrary to both logic and probable
deductions from known facts. See André Thyratron, 54 ECAB 257, 261 (2002).

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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
Appellant failed to establish that she sustained an injury in the performance of duty on or
about February 20, 2014. The Board also finds that the Branch of Hearings & Review properly
denied appellant’s request for review of the written record.
ORDER
IT IS HEREBY ORDERED THAT the January 7, 2015 and September 29, 2014
decisions of the Office of Workers’ Compensation Programs are affirmed.12
Issued: March 15, 2016
Washington, DC

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

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

12

James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the
Board effective November 16, 2015.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.D., Appellant
and
DEPARTMENT OF THE ARMY, JOINT
MUNITIONS & LETHALITY COMMAND,
Chambersburg, PA, Employer
__________________________________________

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

Docket No. 18-0195
Issued: September 13, 2018

Case Submitted on the Record

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

JURISDICTION
On November 6, 2017 appellant, through counsel, filed a timely appeal from a
September 15, 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 over the merits of the claim.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The record on appeal includes evidence received after OWCP issued its September 15, 2017 decision. The
Board’s review of a case is limited to the evidence that was before OWCP at the time of its final decision. Therefore,
the Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

ISSUE
The issue is whether appellant has met his burden of proof to establish an injury causally
related to the accepted factors of his federal employment
FACTUAL HISTORY
On July 10, 2017 appellant, then a 54-year-old ordnance equipment mechanic, filed an
occupational disease claim (Form CA-2) alleging that he sustained bilateral hand/arm conditions
caused by factors of his federal employment. He noted that he first became aware of his claimed
condition and its relationship to his federal employment on July 19, 2016 when his hands and arms
became numb while scraping sealant from missile pods. Appellant did not stop work. On the
reverse side of the claim form the employing establishment noted that he first reported his claimed
injury to a supervisor on June 26, 2017.
In a June 27, 2017 medical report, Dr. Stephen J. Milback, a Board-certified family
practitioner, advised that appellant was seen for bilateral upper extremities numbness which he
reported occurred as a result of repetitive work of scraping sealant off missile tubes. Appellant
reported a one-year history of sensory disturbance and reduced grip strength in the bilateral upper
extremities, with the left upper extremity more affected than the right upper extremity, with
progressive symptoms especially with use of hand tools and vibrating power tools. He was noted
to have a prior history of bilateral carpal tunnel surgery in 2003 and repair of bicep tendon left arm
in 2014/2015. Dr. Milback diagnosed probable carpal tunnel syndrome. He recommended light
duty for six weeks. Appellant was referred for diagnostic studies of his bilateral upper extremities.
In a June 27, 2017 return to work slip, Dr. Milback diagnosed “bilateral hand/arm pain
numbness.” He also checked a box marked “yes” indicating that the injury was work related.
By development letter dated July 31, 2017, OWCP advised appellant that it required
additional factual and medical evidence to determine whether he was eligible for FECA benefits.
It requested that he respond to its questionnaire and submit medical evidence which contained a
firm diagnosis and a physician’s opinion supported by a medical explanation as to how work
activities in his federal employment caused, contributed to, or aggravated his medical condition.
Appellant was afforded 30 days to submit the requested evidence.
In response, OWCP received a March 19, 2017 notification of personnel action for a
general adjustment in pay, a position description, and appellant’s responses to OWCP’s
questionnaire signed on August 23, 2017. It also received an August 23, 2017 e-mail response
from appellant’s supervisor indicating that his work required the use of his hands and arms.
Appellant’s duties were described as driving a forklift, truck, or van, cleaning, rebuilding,
repacking, refurbishment, and scraping, sanding and sealing material with the use of power tools.
In a July 24, 2017 report, Dr. Robert J. Maurer, a Board-certified orthopedic hand surgeon,
reported the history of appellant’s symptoms, which stemmed from his federal employment as a
mechanic. Examination and July 24, 2017 x-ray findings of appellant’s hands and of the cervical
spine were provided. Dr. Maurer provided an assessment of probable recurrent bilateral carpal

2

tunnel syndrome versus ulnar neuritis. In an August 25, 2017 return to work form, he indicated
that appellant could continue to work with medium work restrictions.
In an August 28, 2017 return to work form, Dr. Milback diagnosed bilateral arm numbness
and indicated that appellant could work restricted/modified duty. He checked a box marked “yes”
indicating that the diagnosed condition was work related.
Dr. Jeffrey Finn, Board-certified in emergency medicine, related that appellant’s
August 14, 2017 electromyogram and nerve conduction velocity (EMG/NCV) study was
abnormal. He noted that the findings were suggestive of, though not diagnostic for, bilateral midto-lower cervical radiculopathies. Dr. Finn also suspected, based on appellant’s description,
bilateral ulnar neuritis at the elbow.
By decision dated September 15, 2017, OWCP denied appellant’s claim. It accepted that
the claimed employment events occurred as alleged, but found that he failed to establish the
medical component of fact of injury.
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, and that any disability or
specific condition for which compensation is claimed is causally related to the 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
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 which is alleged to have occurred.7 The second component is whether the
employment incident caused a personal injury and generally can be established only by medical
evidence.
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
4

Supra note 2.

5

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

6

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB 153 (1989).

7

Elaine Pendleton, supra note 5.

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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.8
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish an injury
causally related to the accepted factors of his federal employment.
OWCP received medical evidence from Dr. Milback. In a June 27, 2017 report,
Dr. Milback noted appellant’s past medical history involving his hands and arms and his current
complaints stemming from his work duties. He diagnosed probable carpal tunnel syndrome. The
Board has held that medical opinions that are speculative or equivocal in character are of
diminished probative value.9 Thus, this is not a firm diagnosis. In a June 27, 2017 return to work
slip, Dr. Milback diagnosed “bilateral hand/arm pain numbness” and, in an August 28, 2017 return
to work form, he diagnosed bilateral arm numbness. However, pain and numbness are considered
symptoms rather than a clear diagnosis of a medical condition. Furthermore, Dr. Milback
indicated by checkmark on a form report that appellant’s injury was causally related to his federal
employment duties. The Board has held that a physician’s opinion on causal relationship which
consists only of checking a box marked “yes” to a form question, without explanation or rationale,
is of diminished probative value and is insufficient to establish a claim.10 As such, Dr. Milback’s
reports are insufficient to establish a valid medical diagnosis in connection with the accepted work
factors.
In his July 24, 2017 medical report, Dr. Maurer reported that appellant’s symptoms
stemmed from his job as a mechanic. In his medical and radiology reports, he provided an
assessment of probable recurrent bilateral carpal tunnel syndrome versus ulnar neuritis. However,
Dr. Maurer did not provide a firm diagnosis of a medical condition and therefore it is speculative
and equivocal in nature.11 He did not provide any diagnosis in his August 25, 2017 return to work
form. Accordingly, the reports of Dr. Maurer are insufficient to establish the medical component
of fact of injury.
On the August 14, 2017 EMG/NCV study, Dr. Finn noted findings suggestive of bilateral
mid-to-lower cervical radiculopathies. He also indicated that, based on appellant’s description,
bilateral ulnar neuritis at the elbow was suspected. While a medical opinion need not be of absolute
medical certainty, it cannot be speculative.12 Moreover, Dr. Finn merely interpreted the
8

See generally John J. Carlone, 41 ECAB 354 (1989); see also 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R.
§ 10.5(q) and (ee) (1999) (occupational disease or illness and traumatic injury defined). See Victor J. Woodhams,
supra note 6 regarding a claimant’s burden of proof in an occupational disease claim. See also Roy L. Humphrey,
57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).
9

D.D., 57 ECAB 734, 738 (2006); Kathy A. Kelley, 55 ECAB 206 (2004).

10

See M.W., Docket No. 17-1063 (issued November 2, 2017).

11

See supra note 8.

12

See J.J., Docket No. 13-0021 (issued May 8, 2013).

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EMG/NCV study. He failed to provide an opinion causally relating a firm diagnosed condition to
the accepted employment activities.13 Accordingly, the EMG/NCV study is of limited probative
value and insufficient to meet appellant’s burden of proof.
For these reasons, the Board finds that there is no medical evidence of record establishing
that appellant sustained an injury causally related to his accepted employment activities.
Accordingly, the medical component of fact of injury is not established.
On appeal counsel alleges that OWCP failed to adjudicate the claim in accordance with the
standard of causation. As discussed above, appellant failed to establish the medical component of
fact of injury. As such, he has not met his burden of proof to establish an injury causally related
to his accepted federal employment duties.
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 an injury
causally related to the accepted factors of his federal employment.

13

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an employee’s
condition is of limited probative value on the issue of causal relationship).

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ORDER
IT IS HEREBY ORDERED THAT the September 15, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 13, 2018
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Memphis, TN, Employer
__________________________________________

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

Docket No. 10-751
Issued: November 26, 2010

Case Submitted on the Record

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

JURISDICTION
On January 27, 2010 appellant filed a timely appeal from the January 5, 2010 merit
decision of the Office of Workers’ Compensation Program determining his wage-earning
capacity. 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 the Office properly reduced appellant’s compensation effective
June 11, 2009 based on his capacity to earn wages as a check cashier.
FACTUAL HISTORY
The Office accepted that on December 19, 2004 appellant, then a 56-year-old security
screener, sustained a right inguinal hernia while helping to install a feed belt. Appellant
underwent surgical repair on March 18, 2005 and was released to return to full duty on

April 21, 2005. He sustained a recurrence of disability on September 14, 2005. On October 30,
2005 appellant returned to limited duty for four hours per day.
On June 29, 2006 appellant underwent a second opinion examination with Dr. Davidson
Curwen, a physical medicine and rehabilitation specialist, who recommended that he undergo a
functional capacity evaluation. The evaluation was performed on July 20, 2006 which indicated
that he should restrict lifting to 30 pounds with occasional lifting of no more than six to eight
times per hour. Dr. Curwen had no restrictions for sitting, walking or standing. In a July 30,
2006 work restriction form, he placed limitations on lifting more than 30 pounds (no more than
six to eight times per hour) and pushing or pulling more than 50 pounds.
In September 2006, the employing establishment indicated that it did not have a full-time
light-duty job to offer appellant. Thereafter, the Office referred him for vocational rehabilitation
services. In December 2006, the employing establishment withdrew appellant’s part-time lightduty work and the Office commenced payment of compensation for total disability.
In a June 12, 2007 decision, the Office reduced appellant’s compensation to reflect his
wage-earning capacity in the selected position of security guard under 5 U.S.C. § 8113(b) and 5
U.S.C. § 8104 based on his failure to cooperate with vocational rehabilitation. In a May 28,
2008 decision, an Office hearing representative reversed the June 12, 2007 decision and
remanded the case for further development with regard to vocational rehabilitation services and a
determination of appellant’s wage-earning capacity.
In an April 7, 2008 report, Dr. Melvin P. Payne, III, an attending Board-certified general
surgeon, indicated that appellant could work eight hours per day, lift up to 30 pounds and lift this
weight for six to eight times per hour.
On August 28, 2008 appellant was again referred for vocational rehabilitation services.
On October 3, 2008 the employing establishment advised him that it was unable to provide
employment accommodating his lifting limitations. Appellant’s vocational rehabilitation
counselor, Gregory Price, made recommendations for job placement and the Office approved a
job search for the period December 21, 2008 to April 3, 2009. Mr. Price submitted reports
stating that appellant indicated that he already had a job with the employing establishment and
would not cooperate with placement efforts. In December 2008, he found that based upon
appellant’s experience, education, medical restrictions and a labor market survey, he was
employable as a check cashier with earnings of $370.00 per week. The position was deemed
reasonably available in appellant’s commuting area. It required lifting, carrying and pushing up
to 10 pounds on an occasional basis and was primarily sedentary in nature.
In an April 29, 2009 letter, the Office advised appellant that it proposed to reduce his
compensation based on the fact that he was no longer totally disabled, but rather was only
partially disabled with the capacity to earn wages in the constructed position of check cashier at
the rate of $370.00 per week. It provided him 30 days from the date of the letter to submit
evidence and argument challenging the proposed action.
In a May 15, 2009 letter, appellant objected to the proposed reduction of monetary
compensation benefits. He questioned why he was being pressured to take another job when he

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had not been terminated from the employing establishment and that he was also concerned about
the fringe benefits which he would lose if he took employment outside of federal service.
Appellant contended that the Office failed to provide any answers to his concerns. He indicated
that the employing establishment could charge him with abandonment of his position and he
would lose his entitlement to his retirement benefits. Appellant asserted that the employing
establishment did not have a program in place for full-time light-duty employment.
In a June 17, 2009 decision, the Office reduced appellant’s compensation effective
June 11, 2009 on the basis that the position of check cashier represented his capacity to earn
wages.
Appellant requested a hearing before an Office hearing representative. At the
October 21, 2009 hearing, he contended that the Office still had not answered the questions he
had raised regarding his claim. Appellant was still employed by the employing establishment
and had serious reservations about taking full-time employment because he had been advised by
counsel that this could be construed as abandonment of his employment with the employing
establishment. He noted that he did not know why the employing establishment stopped offering
him limited duty. Appellant also noted that the Office, in its June 17, 2009 decision, stated that
his benefits were going to be reduced to $1,412.00 per month, but it then started sending him
checks for $1,200.00 per month without explanation. He spoke about the difficulty of getting
and maintaining employment in the current recession and indicated that he had been working as
a check cashier in 2007 for $10.00 an hour. Appellant noted that this was a part-time position as
the employer would not hire any full-time employees and he indicated that he lost the position
after seven or eight months when the employer hired someone else for $8.00 an hour. He stated
that he is 61 years old and had physical limitations due to his work injury. Appellant indicated
that his age and physical condition made it very difficult to find employment in the present labor
market.
In a January 5, 2010 decision, the Office hearing representative affirmed the June 17,
2009 wage-earning capacity determination, as modified to reflect a correction of his pay rate. He
determined that the evidence showed that appellant was physically and vocationally capable of
working as a check cashier and that the position was reasonably available in his commuting area.
With respect to appellant’s pay rate, the Office hearing representative found that the Office had
improperly used his date-of-injury pay rate of $784.57 instead of his recurrence of disability pay
rate of $818.67. He then applied the principles set forth in the Shadrick decision to determine
the percentage of appellant’s loss of wage-earning capacity.1
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of proving that the disability has
ceased or lessened in order to justify termination or modification of compensation benefits.2 Its

1

See infra note 7.

2

Bettye F. Wade, 37 ECAB 556, 565 (1986); Ella M. Gardner, 36 ECAB 238, 241 (1984).

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burden of proof includes the necessity of furnishing rationalized medical opinion evidence based
on a proper factual and medical background.3
Under section 8115(a) of the Federal Employees’ Compensation Act, wage-earning
capacity is determined by the actual wages received by an employee if the earnings fairly and
reasonably represent his wage-earning capacity. If the actual earnings do not fairly and
reasonably represent wage-earning capacity or if the employee has no actual earnings, his wageearning capacity is determined with due regard to the nature of his injury, his degree of physical
impairment, his usual employment, his age, his qualifications for other employment, the
availability of suitable employment and other factors and circumstances which may affect his
wage-earning capacity in his disabled condition.4 Wage-earning capacity is a measure of the
employee’s ability to earn wages in the open labor market under normal employment
conditions.5 The job selected for determining wage-earning capacity must be a job reasonably
available in the general labor market in the commuting area in which the employee lives.
When the Office makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by the Office or to an Office wage-earning capacity specialist for selection of a position, listed in
the Department of Labor, Dictionary of Occupational Titles or otherwise available in the open
labor market, that fits that employee’s capabilities with regard to his physical limitations,
education, age and prior experience. Once this selection is made, a determination of wage rate
and availability in the open labor market should be made through contact with the state
employment service or other applicable service. Finally, application of the principles set forth in
the Shadrick decision will result in the percentage of the employee’s loss of wage-earning
capacity.6
ANALYSIS
The Office accepted that on December 19, 2004 appellant sustained a right inguinal
hernia while helping to install a feed belt. Appellant received surgical repair of this condition on
March 18, 2005 and was released to return to full duty on April 21, 2005. He sustained a
recurrence of disability on September 14, 2005 and continued to receive compensation for
periods of partial and total disability.
The Office received information from Dr. Curwen, a physical medicine and rehabilitation
physician serving as an Office referral physician, who found that appellant was not totally
disabled for work and had a partial capacity to perform work for eight hours per day subject to
specified work restrictions. On July 30, 2006 Dr. Curwen completed a work restriction form for
appellant indicating that he could lift up to 30 pounds (no more than six to eight times per hour)
3

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

4

See Pope D. Cox, 39 ECAB 143, 148 (1988); 5 U.S.C. § 8115(a).

5

Albert L. Poe, 37 ECAB 684, 690 (1986); David Smith, 34 ECAB 409, 411 (1982).

6

See Dennis D. Owen, 44 ECAB 475, 479-80 (1993); Wilson L. Clow, Jr., 44 ECAB 157, 171-75 (1992);
Albert C. Shadrick, 5 ECAB 376 (1953).

4

and push or pull up to 50 pounds. He did not place any other restrictions of appellant.7 On
April 7, 2008 Dr. Payne, an attending Board-certified general surgeon, indicated that appellant
could work eight hours per day, lift up to 30 pounds and lift this weight for six to eight times per
hour.
In December 2008, appellant’s vocational rehabilitation counselor then determined that
appellant was able to perform the position of check cashier and that state employment services
showed the position was available in sufficient numbers so as to make it reasonably available
within his commuting area. The Office properly relied on the opinion of the rehabilitation
counselor that appellant was vocationally capable of performing the check cashier position and a
review of the evidence reveals that he is physically capable of performing the position.8
Appellant did not submit any evidence or argument showing that he could not vocationally or
physically perform the check cashier position.9
The Office considered the proper factors, such as availability of suitable employment and
appellant’s physical limitations, usual employment, age and employment qualifications, in
determining that the position of check cashier represented appellant’s wage-earning capacity.10
The weight of the evidence of record establishes that appellant had the requisite physical ability,
skill and experience to perform the position of check cashier and that such a position was
reasonably available within the general labor market of his commuting area.
Appellant argued that the adjustment of his compensation was improper because due to
his age and the slow job market he would have difficulty in finding work. The Board notes that
the fact that an employee is unsuccessful in obtaining work in the selected position does not
establish that the work is not reasonably available in his commuting area.11 On appeal, appellant
indicated that he had been advised that taking full-time work would be construed as
abandonment of his employment with the employing establishment. Before the Office, he also
expressed concerns about losing benefits if he took full-time employment. However, appellant
did not explain how these concerns related to the adjustment of his compensation based on his
capacity to earn wages as a check cashier.
For these reasons, the Office properly reduced appellant’s compensation effective
June 11, 2009 based on his capacity to earn wages as a check cashier.12
7

Dr. Curwen had recommended that appellant undergo a functional capacity evaluation. It was determined
during the July 20, 2006 evaluation that appellant should restrict lifting to 30 pounds with occasional lifting of no
more than six to eight times per hour.
8

The position only required lifting, carrying and pushing up to 10 pounds on an occasional basis.

9

Moreover, appellant testified that he worked on a part-time basis as a check cashier for seven or eight months
in 2007. The part-time nature of the job was due to availability rather than any work restrictions.
10

See Clayton Varner, 37 ECAB 248, 256 (1985).

11

See Leo A. Chartier, 32 ECAB 652, 657 (1981).

12

It should be noted that appellant has not challenged the Office hearing representative’s favorable adjustment of
his pay rate and the matter is not currently before the Board.

5

CONCLUSION
The Board finds that the Office properly reduced appellant’s compensation effective
June 11, 2009 based on his capacity to earn wages as a check cashier.
ORDER
IT IS HEREBY ORDERED THAT the January 5, 2010 decision of the Office of
Workers’ Compensation Program is affirmed.
Issued: November 26, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.K., Appellant
and
U.S. POSTAL SERVICE, MANAGEMENT
SECTION CENTER, Baltimore, MD, Employer
__________________________________________

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

Docket No. 12-1487
Issued: January 23, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 2, 2012 appellant filed a timely appeal from nonmerit decisions of the Office of
Workers’ Compensation Programs (OWCP) dated March 30 and June 18, 2012 denying her
requests for reconsideration. Because more than 180 days has elapsed between the last merit
decision dated July 8, 2011 to the filing of this appeal, the Board lacks jurisdiction to review the
merits of appellant’s claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the March 30 and June 18,
2012 nonmerit decisions.
ISSUE
The issue is: (1) whether OWCP properly determined on March 30 and June 18, 2012
that appellant’s application for reconsideration was insufficient to warrant merit review pursuant
to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been on appeal to the Board. On February 7, 2003 the Board
affirmed an October 8, 2002 decision denying appellant’s claim for wage-loss compensation for
the period March 2 to 12, 2002 due to the lack of competent medical evidence supporting her
disability claim.2 In the second appeal on March 11, 2010, the Board found an unresolved
conflict in the medical evidence between Dr. Robert W. Macht, an examining Board-certified
surgeon, and Dr. Arnold T. Berman, OWCP’s medical adviser and Board-certified orthopedic
surgeon, regarding the extent of appellant’s left leg impairment.3 Thus, the Board set aside the
March 14 and October 6, 2008 OWCP decisions and remanded the case for resolution of the
unresolved conflict in the medical opinion evidence as to whether appellant had any permanent
impairment. The Board, in a third appeal issued on July 8, 2011, affirmed a May 14, 2010
schedule award decision based on the opinion of Dr. Barry J. Waldman, a Board-certified
orthopedic surgeon.4 It also affirmed a July 1, 2010 decision denying her request for a merit
review. The facts and the circumstances of the case are set forth in the Board’s prior decisions
and are incorporated herein by reference.
Subsequent to the Board’s July 8, 2011 decision appellant submitted a copy of a
December 9, 2010 New York State Board for Professional Misconduct statement of charges
which Dr. Waldman had been reprimanded by the State of Maryland. It alleged that
Dr. Waldman had been placed on probation for one year on or about December 16, 2009 for
failing to meet the standard of care in the case of two patients. In her October 9, 2011 letter,
appellant argued that as Dr. Waldman had been on probation at the time of his examination of
her that he was not appropriate to act as an impartial medical examiner.
On December 22, 2011 appellant requested reconsideration. She noted that she had been
diagnosed with Piriformis Syndrome of the buttocks which she attributed to her employment
injury.
By decision dated March 30, 2012, OWCP denied appellant’s reconsideration request.
In an April 5, 2012 letter, appellant requested reconsideration of her schedule award
claim. In support of her request, she submitted medical evidence including a December 22, 2011
report from Dr. Morvarid Yousefi, an examining physician; a February 18, 2002 report from
Kenneth Miller, a physical therapist; a page from an April 30, 2003 functional capacity
evaluation; an upper extremity diagram; and a May 15, 2003 office note from Family practice.
Dr. Yousefi provided physical findings and diagnosed left sided Piriformis syndrome.

2

Docket No. 03-139 (issued February 7, 2003). On May 9, 2002 appellant, then a 46-year-old mail processor,
filed a traumatic injury claim alleging that she injured her lower back on January 26, 2002 while bending over to
pull a full tray of mail. OWCP accepted the claim for a lumbar strain/sprain on September 24, 2002. Appellant
resigned from the employing establishment effective June 14, 2003.
3

Docket No. 09-1142 (issued March 11, 2010).

4

Docket No. 10-1926 (issued July 8, 2011).

2

By decision dated June 18, 2012, OWCP denied appellant’s reconsideration request.5
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,6
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.7 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.8 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review on the
merits.9
ANALYSIS
Appellant requested reconsideration in letters dated December 22, 2011 and
April 5, 2012. She contended that OWCP erred in its schedule award determination and
requested OWCP to accept the condition of Piriformis Syndrome of the buttocks. By decisions
dated March 30 and June 18, 2012, OWCP denied appellant’s request for a merit review. The
question is whether appellant’s requests met one of the three criteria for obtaining a merit review
of her case.
Appellant did not establish that OWCP erroneously applied or interpreted a specific point
of law not previously considered. She continued to contend that her impairment rating should be
based on the rating provided by Dr. Macht in both her December 22, 2011 and April 5, 2012
reconsideration requests. This argument has previously been considered by both the Board and
OWCP.10 Thus, it is insufficient to reopen the case for further merit review.

5

Appellant requested OWCP to accept the additional condition, Piriformis Syndrome of the buttocks as causally
related to her accepted employment injury. The Board’s jurisdiction is limited to reviewing final decisions of
OWCP issued under FECA. 20 C.F.R. § 501.2(c). OWCP has not formally adjudicated whether it should expand
acceptance of the claim to include Piriformis Syndrome of the buttocks and thus the issue is not before the Board at
this time. Id.
6

5 U.S.C. §§ 8101-8193. Section 8128(a) of FECA provides that the Secretary of Labor may review an award
for or against payment of compensation at anytime on her own motion or on application.
7

20 C.F.R. § 10.606(b)(3). See J.M., Docket No. 09-218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB
630 (2006).
8

Id. at § 10.607(a). See S.J., Docket No. 08-2048 (issued July 9, 2009); Robert G. Burns, 57 ECAB 657 (2006).

9

Id. at § 10.608(b). See Y.S., Docket No. 08-440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB
598 (2006).
10

Evidence which repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a case on its merits. See Eugene F. Butler, 36 ECAB 393 (1984).

3

In her December 22, 2011 request for reconsideration, appellant contended Dr. Waldman
to be an inappropriate physician to act as an impartial medical adviser since he had allegedly
been placed on probation for one year by the Maryland Physician Board. In support of her
contention, she submitted a December 9, 2010 statement of charges by the New York Bureau of
Professional Misconduct. This statement of charges, however, does not establish the underlying
facts. This document does not establish that Dr. Waldman had been put on probation for one
year beginning December 19, 2009. The record does not contain a copy of any disciplinary
action by the State of Maryland against Dr. Waldman. Thus, there is no probative evidence,
concerning Dr. Waldman that would be relevant to the underlying issue of permanent
impairment. Consequently, the argument does not have a reasonable color of validity such that it
would warrant reopening her case for merit review.11
Appellant did not submit any pertinent new and relevant medical evidence with her
requests for reconsideration which was relevant to her schedule award claim. None of the
medical evidence submitted by appellant discusses an impairment rating. Although the
December 22, 2011 report by Dr. Yousefi was new to the record, it did not address the issue of
lower extremity impairment under the American Medical Association’s Guides to the Evaluation
of Permanent Impairment, A.M.A., Guides (6th ed. 2009).12 Appellant did not provide any new
medical evidence relevant to the issue of impairment to her left leg impairment. Consequently,
she is not entitled to a review of the merits based on the third requirement under section
10.606(b)(2).13
The Board finds that OWCP properly determined that appellant was not entitled to
further consideration of the merits of her claim pursuant to any of the three criteria under 20
C.F.R. § 10.606(b)(2), and thus OWCP properly denied her December 22, 2011 and April 5,
2012 requests for reconsideration.
CONCLUSION
The Board finds that, as appellant did not meet the criteria of 20 C.F.R. § 10.606(b)(2),
OWCP properly refused to reopen the case for merit review.

11

M.E., 58 ECAB 694 (2007); Elaine M. Borghini, 57 ECAB 549 (2006).

12

L.T., Docket No. 09-1798 (issued August 5, 2010); R.M., 59 ECAB 690 (2008); Dwayne Avila, 57 ECAB 642
(2006) (evidence which does not address the particular issue involved in a case does not constitute a basis for
reopening the claim).
13

20 C.F.R. § 10.606(b)(2)(1) and (2).

4

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 18 and March 30, 2012 are affirmed.
Issued: January 23, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Denver, CO, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 18-0771
Issued: January 31, 2019

Case Submitted on the Record

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

On February 28, 2018 appellant filed a timely appeal from a September 20, 2017 merit
decision and a December 19, 2017 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP).1 The Board assigned Docket No. 18-0771. OWCP adjudicated the claim
under OWCP File No. xxxxxx900.2
On February 10, 1997 appellant, then a 46-year old nurse, filed an occupational disease
claim (Form CA-2) alleging that her exposure to fumes from paints, cleaning materials, and a
construction environment, while in the performance of duty, caused respiratory problems. On
June 9, 2001 OWCP accepted appellant’s claim for allergic rhinitis and chronic sinusitis. It later
expanded acceptance of the claim to include extrinsic asthma; other diseases of vocal cords;
1

Appellant timely requested oral argument before the Board. 20 C.F.R. § 501.5(b). By order dated July 19, 2018,
the Board exercised its discretion and denied the request, finding that the arguments on appeal could adequately be
addressed based on the case record. Order Denying Request for Oral Argument, Docket No. 18-0771 (issued
July 19, 2018).
2

In a subsidiary file adjudicated under File No. xxxxxx600, OWCP accepted aggravation of preexisting manic
depressive illness and post-traumatic stress disorder. Under that claim appellant received medical benefits and wageloss compensation commencing September 1, 1999.

chronic asthma; chronic frontal, ethmoidal, and sphenoidal sinusitis; other chronic sinusitis;
chronic obstructive asthma; and other diseases of nasal cavity and sinuses.
On August 25, 2015 appellant filed a claim for a schedule award (Form CA-7). She
submitted an October 19, 2015 report in which Dr. Douglas A. Swift, Board-certified in
occupational medicine, described his review of medical records including test results dating from
November 14, 2008 to November 17, 2014. Dr. Swift advised that, in accordance with the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(hereinafter A.M.A., Guides),3 under Table 5-5, Asthma, appellant had a class 2 whole person
permanent impairment of 17 percent.
OWCP referred the claim to a district medical adviser (DMA) to review the schedule award
claim. In a January 24, 2016 report, Dr. Albert A. Rizzo, Board-certified in internal medicine and
pulmonary disease serving as a DMA, noted his review of the record, including a November 18,
2015 statement of accepted facts, test results, and Dr. Swift’s report. Dr. Rizzo reported that
appellant was maintained on chronic-inhaled corticosteroids and had a post-bronchodilator forced
expiratory volume in one second (FEV1) of 85 percent, as shown in a November 2014 pulmonary
function study. He advised that treatment had normalized her pulmonary function and indicated
that, based on Table 5-4 and Table 5-5, the FEV1 result placed her in class 0. The DMA also
indicated that Table 5-5 could not be used to determine impairment in the absence of airflow
limitation which, he indicated, described appellant, finding that although she was hyperresponsive, she had normal pulmonary function with treatment as shown on a on a November 17,
2014 post-bronchodilator which demonstrated FEV1 of 85 percent predicted. He found that
appellant had a class 0 impairment for her respiratory status. Therefore, the DMA concluded that
appellant had a total of zero percent respiratory permanent impairment.
By decision dated April 19, 2016, OWCP denied appellant’s schedule award claim, finding
that the medical evidence of record was insufficient to establish permanent impairment of a
scheduled member or function of the body.
On May 13, 2016 appellant requested a hearing before an OWCP hearing representative
and submitted additional medical evidence. By decision dated March 29, 2017, the hearing
representative affirmed the denial of appellant’s schedule award claim, finding that the weight of
the medical evidence rested with the opinion of Dr. Rizzo.
On April 12 and September 11, 2017 appellant requested reconsideration. By merit
decisions dated July 5 and September 20, 2017, OWCP denied modification of the prior decisions.
Appellant again requested reconsideration on October 12, 2017 and submitted additional
medical evidence. By nonmerit decision dated December 19, 2017, OWCP denied review of the
merits of her claim. It found the evidence submitted was irrelevant or immaterial and of no bearing
on the issue of whether she established permanent impairment to a scheduled member.
The Board finds this case is not in posture for decision. Pursuant to 20 C.F.R.
§ 501.2(c)(1), the Board’s review of a case is limited to the evidence in the case record that was
3

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

2

before OWCP at the time of its final decision. Decisions on claims are based on the written record,
which may include forms, reports, letters, and other evidence of various types such as photographs,
videotapes, or drawings.4 Evidence may not be incorporated by reference, and evidence from
another claimant’s case file may not be used.5 All evidence that forms the basis of a decision must
be in that claimant’s case record.6
Both Dr. Swift, who provided an October 19, 2015 impairment evaluation for appellant
and Dr. Rizzo, an OWCP medical adviser, referenced a November 17, 2014 pulmonary function
study. In his March 29, 2017 decision, the hearing representative also referenced a November 17,
2014 pulmonary function study. He relied on this medical evidence in affirming the denial of
appellant’s schedule award claim. A report summarizing the findings of the November 17, 2014
pulmonary function study is not found in the case record before the Board in this appeal. Due to
this oversight, the Board is not in a position to make an informed decision regarding appellant’s
schedule award claim.7
As the record lacks sufficient evidence for the Board to render an informed decision, the
case shall be remanded to OWCP for further development. As noted, all evidence that forms the
basis of a decision must be included in the case record.8 After OWCP has developed the record
consistent with the above-noted directive, it shall issue a de novo decision regarding appellant’s
schedule award claim.9

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.5a
(June 2011).
5

Id.

6

Id.

7

See L.W., Docket No. 17-0526 (issued May 12, 2017).

8

Id.

9

See D.G., Docket No. 17-1098 (issued October 26, 2017).

3

IT IS HEREBY ORDERED THAT the December 19 and September 20, 2017 decisions
of the Office of Workers’ Compensation Programs are set aside and the case remanded to OWCP
for further proceedings consistent with this order of the Board.
Issued: January 31, 2019
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
DEPARTMENT OF DEFENSE, JOINT TASK
FORCE NATIONAL CAPITAL REGION
MEDICAL COMMAND, Arlington, VA,
Employer
__________________________________________

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

Docket No. 13-192
Issued: March 25, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 5, 2012 appellant filed a timely appeal of June 1 and September 17, 2012
decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she
sustained a traumatic injury while in the performance of duty on September 23, 2011; and
(2) whether OWCP properly denied appellant’s request for reconsideration under 5 U.S.C.
§ 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 4, 2011 appellant, then a 59-year-old dental assistant, filed a traumatic
injury claim alleging that she slipped and fell at work on September 23, 2011 due to a wet floor.
In a November 10, 2011 job status note, Dr. Kate B. Deisseroth, a Board-certified orthopedic
surgeon, indicated that appellant underwent left knee arthroscopy on November 7, 2011.
OWCP informed appellant in an April 25, 2012 letter that additional evidence was
needed to establish her claim. It gave her 30 days to submit a report from a qualified physician
explaining how the September 23, 2011 fall caused or contributed to a diagnosed condition.
In an April 12, 2012 report, Dr. Deisseroth detailed that appellant experienced left knee
pain as early as 2004. A magnetic resonance imaging scan obtained in 2008 exhibited a
meniscal tear and degenerative changes. Appellant underwent left knee arthroscopy in or around
2008. She underwent a second surgery on November 7, 2011 following the September 23, 2011
fall. Dr. Deisseroth advised that appellant was scheduled for left knee arthroplasty on
April 17, 2012.2
By decision dated June 1, 2012, OWCP denied appellant’s claim, finding the medical
evidence insufficient to establish that the accepted September 23, 2011 employment incident
caused or contributed to a left knee condition.
Appellant filed a request for reconsideration on June 15, 2012 and submitted new
evidence. In September 23, 2011 health records, Dr. Linda R. Holifield-Kennedy, an internist,
related that appellant injured her left knee when she slipped and fell at work. On examination,
she observed prepatellar swelling and tenderness to palpation. An x-ray confirmed degenerative
changes, but did not show any evidence of fracture. Dr. Holifield-Kennedy diagnosed left knee
contusion and recommended modified assignment.
By decision dated September 17, 2012, OWCP denied appellant’s request for
reconsideration on the grounds that she did not present new evidence from a qualified physician.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his or her claim by the weight of reliable, probative and substantial
evidence,3 including that he or she is an “employee” within the meaning of FECA and that he or
she filed his or her claim within the applicable time limitation.4 The employee must also

2

Appellant subsequently filed multiple claims for compensation for the combined period April 17 to
June 1, 2012.
3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

4

R.C., 59 ECAB 427 (2008).

2

establish that he or she sustained an injury in the performance of duty as alleged and that his or
her disability for work, if any, was causally related to the employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. 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. Second, the employee must submit
medical evidence to establish that the employment incident caused a personal injury.6
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.7
ANALYSIS -- ISSUE 1
The Board finds that appellant did not establish that she sustained a traumatic injury
while in the performance of duty on September 23, 2011. Although OWCP accepted that she
slipped and fell at work on this day, the medical evidence did not sufficiently demonstrate that
this employment incident caused or contributed to a diagnosed injury.
Dr. Deisseroth indicated in November 10, 2011 and April 12, 2012 records that appellant
underwent left knee arthroscopy on November 7, 2011 after the September 23, 2011 fall. She
added that appellant previously underwent left knee arthroscopy in or around 2008 on account of
degenerative changes and a torn meniscus and would undergo left knee arthroplasty on
April 17, 2012. Dr. Deisseroth, however, did not pathophysiologically explain how the
September 23, 2011 fall caused or contributed to a left knee condition.8 The need for
rationalized medical opinion evidence is particularly important because she specified a history of
preexisting injury. In the absence of such evidence, appellant failed to discharge her burden of
proof.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,9
OWCP’s regulations provide that the evidence or argument submitted by a claimant must either:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
5

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

6

T.H., 59 ECAB 388 (2008).

7

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

8

Joan R. Donovan, 54 ECAB 615, 621 (2003); Ern Reynolds, 45 ECAB 690, 696 (1994).

9

5 U.S.C. § 8128(a).

3

relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.10 Where the request for
reconsideration fails to meet at least one of these standards, OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.11
ANALYSIS -- ISSUE 2
The Board finds that OWCP improperly denied appellant’s request for reconsideration.
The underlying issue of the June 1, 2012 merit decision denying her traumatic injury claim was
whether the medical evidence sufficiently established that the accepted September 23, 2011
employment incident caused or contributed to a left knee condition. Appellant requested
reconsideration and submitted September 23, 2011 health records from Dr. Holifield-Kennedy
addressing causal relationship. These records constitute relevant and pertinent new evidence not
previously considered by OWCP. However, OWCP erroneously determined that Dr. HolifieldKennedy was not a qualified physician and denied the request. It was obligated to conduct a
merit review of the claim when appellant submitted this evidence in support of her
reconsideration request.12 Reopening a claim for merit review does not require a claimant to
submit all evidence that may be necessary to discharge her burden of proof.13 If OWCP should
determine that the new evidence submitted lacks probative value, it may deny modification of
the prior decision, but only after the case has been reviewed on the merits.14
The case shall be remanded for a merit review. After such further development as is
deemed necessary, OWCP shall issue an appropriate decision.
CONCLUSION
The Board finds that appellant did not establish that she sustained a traumatic injury
while in the performance of duty on September 23, 2011. The Board also finds that OWCP
improperly denied appellant’s request for reconsideration.

10

E.K., Docket No. 09-1827 (issued April 21, 2010). See 20 C.F.R. § 10.606(b)(2).

11

L.D., 59 ECAB 648 (2008). See 20 C.F.R. § 10.608(b).

12

D.M., Docket No. 10-1844 (issued May 10, 2011).

13

Kenneth R. Mroczkowski, 40 ECAB 855 (1989); Helen E. Tschantz, 39 ECAB 1382 (1988).

14

Dennis J. Lasanen, 41 ECAB 933 (1990).

4

ORDER
IT IS HEREBY ORDERED THAT the June 1, 2012 decision of the Office of Workers’
Compensation Programs be affirmed. IT IS FURTHER ORDERED THAT the September 17,
2012 decision of the Office of Workers’ Compensation Programs be set aside and the case
remanded for further proceedings consistent with this decision of the Board.
Issued: March 25, 2013
Washington, DC

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

Patricia Howard Fitzgerald, 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.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Houston, TX, Employer
__________________________________________

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

Docket No. 08-1252
Issued: June 17, 2009

Case Submitted on the Record

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

JURISDICTION
On March 24, 2008 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ schedule award decision dated December 17, 2007. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award decision.
ISSUE
The issue is whether appellant has more than a seven percent permanent impairment of
her left upper extremity for which she received a schedule award.
FACTUAL HISTORY
On April 9, 2002 appellant, then a 57-year-old mail handler, sustained injury to her left
thumb, wrist, forearm, shoulder and low back from heavy lifting and pulling equipment. She
stopped work on April 20, 2002. On May 14, 2002 the Office accepted appellant’s claim for left
shoulder contusion, lumbosacral strain/sprain, left wrist tenosynovitis and left wrist carpal tunnel
syndrome. On July 12, 2002 appellant underwent extensor tenosynovitis, left bursa, second

dorsal compartment and release of triggering left middle finger. She received compensation
benefits. On December 12, 2003 appellant filed a claim for a schedule award.
In a May 5, 2003 report, Dr. Howard Grant, a family practitioner, stated that appellant
had 10 percent upper extremity impairment based on the American Medical Association, Guides
to the Evaluation of Permanent Impairment, (A.M.A., Guides), 166 (5th ed. 2001). He noted that
appellant had a 30 percent strength loss index and referred generally to Tables 16-3, 16-32 and
16-3.1
Appellant returned to limited-duty work, on July 17, 2003, working in the guard shack.
A December 17, 2003 letter notified appellant that her claim was not in posture for a
schedule award as maximum medical improvement had not been reached.
On September 15, 2005 an Office medical adviser reviewed the file and determined that a
second opinion was necessary to determine appellant’s impairment.
On August 15, 2006 the Office referred appellant, together with a statement of accepted
facts, a set of questions and the medical record, to Dr. David Vanderweide, a Board-certified
orthopedic surgeon.
On September 6, 2006 Dr. Vanderweide examined appellant, reviewed her history of
injury and treatment and found that she had reached maximum medical improvement. However,
he found no permanent impairment with regard to the lumbar spine or left wrist or shoulder.
Dr. Vanderweide noted that his examination of the lumbar spine revealed a 50 percent active
range of motion with no guarding or spasm. Regarding the shoulder, he noted that appellant had
pain with lifting. Dr. Vanderweide advised that his examination of the left shoulder revealed
limited active range of motion with 120 degrees of flexion, 50 degrees of backwards elevation
and 50 degrees of extension, 130 degrees of abduction, 40 degrees of adduction, 80 degrees of
external rotation and 75 degrees of internal rotation with no evidence of adhesive capsular
complaints.
He opined that appellant reached maximum medical improvement on
December 22, 2004.
In an October 10, 2006 report, the Office medical adviser reviewed appellant’s history of
injury and treatment. Under the A.M.A., Guides, he opined that appellant sustained seven
percent impairment to the left upper extremity. The Office medical adviser referred to Figures
16-40, 16-43 and16- 46 to determine that appellant had impairment of four percent for flexion of
120 degrees, two percent for abduction of 130 degrees and one percent for internal rotation of 75
degrees.2 He added the loss of range of motion impairments to total seven percent to the left
upper extremity.

1

A.M.A., Guides 439, 509.

2

Id. at 476-79.

2

On November 17, 2006 the Office granted appellant a schedule award for seven percent
impairment of the left upper extremity. The award covered a period of 21.84 weeks from
December 22, 2004 to May 23, 2005.
On December 14, 2006 appellant requested a hearing, which was held on
October 11, 2007.
At the hearing, appellant’s representative contended that the schedule award did not take
into account appellant’s preexisting emotional condition. He referred to Veterans Administration
records, which included a favorable finding of disability and a January 27, 2006 report from
Dr. Steve Bailley, a clinical psychologist, relating to a mental status examination. Appellant’s
representative advised that appellant was in need of additional surgery and that she was entitled
to an additional three percent impairment for pain to her shoulder and hand.
Appellant submitted reports dated March 17 to July 6, 2005 from
Dr. Lubor Jarolimek, an orthopedic surgeon. On April 27, 2005 Dr. Jarolimek noted that
appellant’s left shoulder had been painful since 2002. He stated that, “if [appellant’s] left
shoulder pain persists, she will be a candidate for arthroscopic evaluation.” Dr. Jarolimek
included findings for abduction and forward elevation of the left shoulder but did not provide an
impairment rating.
By decision dated December 17, 2007, an Office hearing representative affirmed the
November 17, 2006 decision. He noted that schedule awards were not payable for emotional
conditions and that appellant’s claim was not approved for an employment-related emotional
condition. The Office hearing representative also found that appellant had not submitted
sufficient medical evidence to support an impairment rating for pain.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act3 sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.4 The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice for all claimants under the law, good administrative practice requires the use of
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
The standards for evaluating the percentage of impairment of extremities under the
A.M.A., Guides are based primarily on loss of range of motion. In determining the extent of loss
of motion, the specific functional impairments, such as loss of flexion or extension, should be
3

5 U.S.C. §§ 8101-8193.

4

5 U.S.C. § 8107.

5

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

6

A.M.A., Guides (5th ed. 2001); 20 C.F.R. § 10.404.

3

itemized and stated in terms of percentage loss of use of the member in accordance with the
tables in the A.M.A., Guides.7 However, all factors that prevent a limb from functioning
normally should be considered, together with the loss of motion, in evaluating the degree of
permanent impairment.
ANALYSIS
The Office accepted that appellant sustained a left shoulder contusion, lumbosacral
strain/sprain, left wrist tenosynovitis and left wrist carpal tunnel syndrome. On July 12, 2002
appellant underwent extensor tenosynovitis, left bursa, second dorsal compartment and release of
triggering left middle finger.
On May 5, 2003 Dr. Grant opined that appellant had 10 percent left upper extremity
impairment based on the A.M.A., Guides. However, he did not address whether she had not
reached maximum medical improvement. Office procedures provide that to support a schedule
award, the file must contain competent medical evidence which shows that the impairment has
reached a permanent and fixed state and which establishes a date of maximum medical
improvement.8
The Office referred appellant to Dr. Vanderweide for a second opinion. In a
September 6, 2006 report, Dr. Vanderweide noted appellant’s history of injury and treatment and
determined that she did not have any impairment of the lumbar spine or left wrist. He noted that
appellant had pain with lifting and provided range of motion findings for the left shoulder, which
included 120 degrees of flexion, 50 degrees of backwards elevation and 50 degrees of extension,
130 degrees of abduction, 40 degrees of adduction, 80 degrees of external rotation and 75
degrees of internal rotation with no evidence of adhesive capsular complaints. Dr. Vanderweide
found that appellant had reached maximum medical improvement on December 22, 2004. The
Office medical adviser reviewed Dr. Vanderweide’s findings on October 10, 2006. He opined
that appellant sustained seven percent impairment to the left upper extremity. Under Table 1640, page 476, 120 degrees flexion represents four percent impairment of the upper extremity and
50 degrees of extension represents zero percent impairment. Under Table 16-43, page 477, 130
degrees abduction represents two percent impairment and 40 degrees adduction represent no
impairment. Under Table 16-46, page 479, 80 degrees external rotation represents no
impairment, but 75 degrees internal rotation represents one percent impairment. The impairment
values contributed by each unit of motion are added to determine the impairment of the upper
extremity due to abnormal shoulder motion.9 The Office medical adviser found a total seven
percent impairment based on loses of range of motion.
However, the Board notes that Dr. Vanderweide also found that appellant had shoulder
pain, but offered no opinion as to whether she had impairment due to pain. This finding was
7

See William F. Simmons, 31 ECAB 1448 (1980); Richard A. Ehrlich, 20 ECAB 246, 249 (1969) and cases cited
therein.
8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Evaluation of Schedule Awards, Chapter 2.808.6(b)
(August 2002).
9

A.M.A., Guides 479.

4

also noted by Dr. Jarolimek. The Office medical adviser did not address whether appellant had
impairment due to pain. As the Office undertook development of the medical evidence and
referred appellant to Dr. Vanderweide for a second opinion evaluation, it has an obligation to
secure a report adequately addressing the extent of appellant’s left upper extremity impairment.10
The case will be remanded for the Office to obtain clarification from Dr. Vanderweide with
regard to whether appellant has additional impairment for pain in accordance with Chapter 16 of
the A.M.A., Guides.
CONCLUSION
The Board finds that this case is not in posture for decision. The case will be remanded
for further development of the medical evidence to be followed by an appropriate merit decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 17, 2007 is set aside and remanded for further
proceedings consistent with this decision of the Board.
Issued: June 17, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board
10

See Peter C. Belkind, 56 ECAB 580 (2005) (where the opinion of the Office’s second opinion physician was
unclear on whether the claimant had any permanent impairment due to his accepted employment injury, the Board
found that the Office should secure a report adequately addressing the relevant issue). See also Melvin James, 55
ECAB 406 (2004).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Juan, PR, Employer
__________________________________________

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

Docket No. 17-0742
Issued: June 26, 2017

Case Submitted on the Record

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

JURISDICTION
On February 14, 2017 appellant filed a timely appeal from an October 21, 2016 merit
decision and a January 27, 2017 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 had jurisdiction over the merits of this case.2
ISSUES
The issue are: (1) whether appellant met his burden of proof to establish a traumatic
lumbar injury in the performance of duty on August 10, 2016, as alleged; and (2) whether OWCP
properly denied appellant’s request for a telephonic oral hearing as untimely filed pursuant to 5
U.S.C. § 8124.

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted new evidence accompanying his request for appeal. The Board may not consider evidence
for the first time on appeal that was not before OWCP at the time it issued the final decision in the case. Thus, the
Board is precluded from reviewing this evidence. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On September 9, 2016 appellant, then a 54-year-old electrical technician, filed a
traumatic injury claim (Form CA-1) alleging that on August 10, 2016 he reached upward while
underneath a roller conveyor and sustained a left-sided herniated lumbar disc. On the reverse of
the form, the employing establishment controverted the claim, contending that appellant had an
unspecified preexisting condition.
In a September 16, 2016 letter, OWCP notified appellant of the type of additional factual
and medical evidence needed to establish his claim, including factual evidence supporting that
the August 10, 2016 incident occurred as alleged, and a medical report from his attending
physician explaining how and why that event would cause the claimed lumbar injury. It afforded
him 30 days to submit such evidence.
In an October 12, 2016 report, Dr. Frank Marin Negron, an attending family practitioner,
diagnosed lumbar intervertebral disc disorders with radiculopathy. He noted performing a
lumbar laminectomy and discectomy on an unspecified date.
On October 14, 2016 appellant filed a claim for compensation (Form CA-7) for the
period October 1 to 14, 2016.
By decision dated October 21, 2016, OWCP denied appellant’s traumatic injury claim
finding that he failed to establish fact of injury. It found that the factual evidence of record was
insufficient to support that the August 10, 2016 incident occurred at the time, place, and in the
manner alleged. OWCP also found that appellant did not submit medical evidence referring to
an August 10, 2016 incident or diagnosing an injury related to it.
In a November 1, 2016 appeal request form, postmarked November 23, 2016, appellant
requested a telephonic hearing before a representative of OWCP’s Branch of Hearings and
Review. He provided his November 2, 2016 letter responding to OWCP’s September 16, 2015
questions. In an August 11, 2016 accident report, appellant’s supervisor confirmed that, on
August 10, 2016, appellant had reported a low back sprain sustained when working to repair a
roller beneath an incline conveyor.3 Appellant also provided medical evidence.
By decision dated January 27, 2017, OWCP’s Branch of Hearings and Review denied
appellant’s hearing request as a matter of right, finding that his request was not timely filed
within 30 days of its October 21, 2016 decision. It exercised its discretion and performed a
limited review of the evidence following the October 21, 2016 decision. OWCP further denied
the request as the issue in the case could be addressed equally well by submitting new, relevant
evidence or argument accompanying a valid request for reconsideration.

3

Appellant filed claims for compensation (Form CA-7) for the periods October 15, 2016 to January 6, 2017, and
January 21 to February 3, 2017. He also filed claims for medical reimbursement (Form OWCP-915).

2

LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an “employee of
the United States” within the meaning of FECA, that the claim was 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.4 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.5
To determine whether an employee sustained a traumatic 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 that must be considered conjunctively. First, the
employee must submit sufficient evidence to establish that he actually experienced the
employment incident that is alleged to have occurred.6 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.7
An employee’s statement that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong or persuasive evidence.8
Moreover, an injury does not have to be confirmed by eyewitnesses. The employee’s statement,
however, must be consistent with the surrounding facts and circumstances and his subsequent
course of action. An employee has not met his or her burden of proof in establishing the
occurrence of an injury when there are such inconsistencies in the evidence as to cast serious
doubt upon the validity of the claim. Circumstances such as late notification of injury, lack of
confirmation of injury, continuing to work without apparent difficulty following the alleged
injury, and failure to obtain medical treatment may, if otherwise unexplained, cast doubt on an
employee’s statement in determining whether a prima facie case has been established.9
ANALYSIS -- ISSUE 1
Appellant claimed that he sustained a left-sided lumbar injury on August 10, 2016 when
he reached upward while underneath a roller conveyor. OWCP denied the claim on October 21,
2016, finding that appellant failed to establish that the August 10, 2016 injury occurred at the
time, place, and in the manner alleged.

4

Joe D. Cameron, 41 ECAB 153 (1989).

5

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

6

Gary J. Watling, 52 ECAB 278 (2001).

7

Deborah L. Beatty, 54 ECAB 340 (2003).

8

R.T., Docket No. 08-408 (issued December 16, 2008); Gregory J. Reser, 57 ECAB 277 (2005).

9

Betty J. Smith, 54 ECAB 174 (2002).

3

In support of his claim, appellant provided an October 12, 2016 report from Dr. Negron
who diagnosed lumbar intervertebral disc disorders with radiculopathy. Dr. Negron’s opinion is
not relevant in establishing whether or not the August 10, 2016 occurred as alleged as he does
not provide a history of the alleged injury.
OWCP notified appellant by September 16, 2016 letter of the additional evidence needed
to establish his claim, including factual evidence supporting that the August 10, 2016 incident
occurred as alleged. As he did not submit such evidence, appellant has failed to meet his burden
of proof.10
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 8124(b)(1) of FECA, concerning a claimant’s entitlement to a hearing before an
OWCP hearing representative, provides: Before review under section 8128(a) of this title, a
claimant for compensation not satisfied with a decision of the Secretary 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.11 A hearing is a
review of an adverse decision by an OWCP hearing representative. Initially, the claimant can
choose between two formats: an oral hearing or a review of the written record. In addition to the
evidence of record, the claimant may submit new evidence to the hearing representative.12 A
request for either an oral hearing or a review of the written record must be sent, in writing, within
30 days of the date of the decision for which the hearing is sought.13 A claimant is not entitled to
a hearing or a review of the written record if the request is not made within 30 days of the date of
the decision.
The Board has held that OWCP, in its broad discretionary authority in the administration
of FECA, has the power to hold hearings in certain circumstances where no legal provision was
made for such hearings and that OWCP must exercise this discretionary authority in deciding
whether to grant a hearing.14 OWCP procedures, which require it to exercise its discretion to
grant or deny a hearing when the request is untimely or made after reconsideration, are a proper
interpretation of FECA and Board precedent.15

10

Alvin V. Gadd, 57 ECAB 172 (2005).

11

5 U.S.C. § 8124(b)(1).

12

20 C.F.R. § 10.615.

13

James Smith, 53 ECAB 188 (2001); 20 C.F.R. § 10.616(a).

14

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

15

Teresa M. Valle, 57 ECAB 542 (2006).

4

ANALYSIS -- ISSUE 2
OWCP denied appellant’s traumatic injury claim by decision issued October 21, 2016,
finding that he had not established fact of injury as he provided insufficient evidence to establish
the claimed August 10, 2016 incident as factual. Appellant requested a telephonic oral hearing
by letter postmarked November 23, 2016 and received by OWCP on November 29, 2016. His
request was made more than 30 days after the date of issuance of OWCP’s prior October 21,
2016 merit decision. Therefore, OWCP properly found in its January 27, 2017 decision that
appellant had not timely requested a telephonic oral hearing because his request was not made
within 30 days of its October 21, 2016 decision.16
OWCP then properly exercised its discretion by declaring that it had considered the
matter and had denied appellant’s request for a review of the written record because the fact of
injury issue could equally well be addressed through a request for reconsideration.17 The Board
has held that the only limitation on OWCP’s authority is reasonableness and an abuse of
discretion is generally shown through proof of manifest error, clearly unreasonable exercise of
judgment, or actions taken which are contrary to both logic and probable deduction from
established facts.18 In this case, the evidence of record does not indicate that OWCP abused its
discretion in its denial of appellant’s request for a telephonic oral hearing. Accordingly, the
Board finds that OWCP properly denied his request.19
On appeal, appellant contends that the evidence he submitted between the October 21,
2016 and January 27, 2017 decisions, including the August 11, 2016 accident report from his
supervisor, was sufficient to establish the factual and medical aspects of his claim. He contends
that OWCP has not yet conducted a thorough review of this evidence. As noted, OWCP’s
January 27, 2017 decision did not address the merits of the claim. The evidence submitted after
the October 21, 2016 decision was not considered in reaching a final decision and cannot be
considered by the Board for the first time on appeal.20 However, appellant may request a merit
review and submit this or other new evidence or argument in support of his claim, if made within
one year of this decision.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish a traumatic
lumbar injury in the performance of duty on August 10, 2016, as alleged. The Board further
finds that OWCP properly denied appellant’s request for a telephonic oral hearing as untimely
filed pursuant to 5 U.S.C. § 8124.
16

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.4(a) (October 2011).
17

M.H., Docket No. 15-0774 (issued June 19, 2015).

18

Daniel J. Perea, 42 ECAB 214, 221 (1990).

19

D.P., Docket No. 14-308 (issued April 21, 2014); D.J., Docket No. 12-1332 (issued June 21, 2013).

20

See 20 C.F.R. § 501.2(c)(1); Alfred Zerega, 45 ECAB 860 (1994).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 27, 2017 and October 21, 2016 are affirmed.
Issued: June 26, 2017
Washington, DC

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

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

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

6