United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.N., Appellant
and
DEPARTMENT OF THE AIR FORCE, U.S. AIR
FORCE ACADEMY, Colorado Springs, CO,
Employer
__________________________________________

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

Docket No. 19-1986
Issued: August 27, 2020

Case Submitted on the Record

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

JURISDICTION
On September 30, 2019 appellant filed a timely appeal from an April 4, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.3

1
The Board notes that appellant also sought an appeal from a January 8, 2018 merit decision which reversed the
initial denial of his claim and remanded for further development. For final adverse decisions of OWCP issued on or
after November 19, 2008, the Board’s review authority is limited to appeals which are filed within 180 days from the
date of issuance of OWCP’s decision. See 5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009). As the
January 8, 2018 decision was not adverse, and because more than 180 days had passed from the issuance of the
decision to the filing of this appeal, the Board is without jurisdiction to review that decision.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that following the April 4, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly reduced appellant’s wage-loss compensation,
effective April 30, 2017, based upon his wage-earning capacity in the constructed position of
office clerk.
FACTUAL HISTORY
On October 15, 2002 appellant, then a 46-year-old waiter, filed an occupational disease
claim (Form CA-2) alleging that factors of his federal employment, including daily
bending/stooping while cleaning and resetting tables and pulling hot carts, caused or contributed
to the development of a back condition. OWCP initially accepted the claim for lumbar sprain. It
subsequently expanded acceptance of the claim to include the conditions of displacement of
lumbar intervertebral disc without myelopathy and degeneration lumbar intervertebral disc.
The employing establishment was initially able to accommodate appellant’s restrictions
and he returned to work as a waiter in October 2002. Appellant stopped work in May 2007 as the
employing establishment was unable to continue to accommodate his restrictions. OWCP again
paid wage-loss compensation on the supplemental rolls and placed him on the periodic
compensation rolls commencing June 10, 2007. Appellant continued to work part time for an
independent contractor performing furniture repair, upholstery work, and sign making for an
average of approximately 25 hours per week, a job he held prior to his 2002 employment injury.
On May 18, 2016 appellant underwent a second opinion evaluation with Dr. Wallace K.
Larson, a Board-certified orthopedic surgeon. In his report, Dr. Larson noted appellant’s history
of injury and medical treatment. He reviewed the statement of accepted facts (SOAF) and
presented examination findings. Dr. Larson diagnosed degenerative disc disease of the lumbar
spine without radicular symptoms and opined that appellant did not require further medical
treatment. He opined that appellant was able to work 8 hours per day with restrictions, and since
he was working 32 hours weekly he could continue that work. In an accompanying work capacity
evaluation (Form OWCP-5c), Dr. Larson opined that appellant could work 8 hours per workday
with restrictions of 4 hours per day of twisting, bending/stooping, squatting, kneeling, and
climbing and 3 hours per day of no more than 20 pounds lifting and 40 pounds pushing and pulling.
As the employing establishment could no longer accommodate appellant’s restrictions,
OWCP referred him to vocational rehabilitation services based on Dr. Larson’s May 18, 2016
opinion. In letters dated December 13, 2016 and January 9, 2017, OWCP advised appellant that
his part-time private sector employment, which he held prior to the employment injury, was
dissimilar from his date-of-injury employment. It informed appellant of his requirement to seek
part-time private sector employment.
On December 27, 2016 appellant signed a vocational rehabilitation plan development
form. On January 8, 2017 the vocational rehabilitation counselor completed a transferable skills
analysis which showed that appellant had a reasonable probability to obtain re-employment in the
entry level clerical field of office clerk and file clerk. The vocational rehabilitation counselor
indicated that appellant’s skills that were transferable to the entry level clerical/administrative
position were skills in computer operation and administrative tasks based upon current volunteer
union steward tasks and his work history prior to 2002.

2

In a January 19, 2017 report and Form OWCP-5c, appellant’s physician, Dr. Mark Fraley,
an osteopath specializing in family medicine, opined that appellant was able to work six to eight
hours per day with restrictions in his current carpenter job, which appellant held preinjury. He
provided bending/stooping restrictions, and indicated that appellant required 5- to 10-minute
breaks “as needed every hour.” Dr. Fraley further indicated that his opinion only applied to
appellant’s current carpenter position and did not apply to any other job possibility as all jobs were
different.
Appellant subsequently advised his vocational rehabilitation counselor that he disagreed
with Dr. Larson’s work restrictions and the he would only follow Dr. Fraley’s work restrictions.
On January 24, 2017 the vocational rehabilitation counselor noted in a rehabilitation action
report (Form OWCP-44) that appellant confirmed that he would not seek re-employment under
the currently accepted physical restrictions of Dr. Larson. She indicated that a transferable skills
analysis, completed on January 8, 2017, showed that appellant had a reasonable probability to
obtain re-employment in the entry level clerical field of office clerk and file clerk. The vocational
rehabilitation counselor noted that earning capacity for entry level clerical jobs in those job titles
ranged from $9.37 to $10.14 per hour.
OWCP, in a letter dated January 30, 2017, notified appellant of the penalties under 5 U.S.C.
§ 8113(b) and 20 C.F.R. § 10.519 for failure to cooperate with vocational rehabilitation without
good cause. It noted that the vocational rehabilitation counselor had advised that he would only
follow work restrictions assigned by his own physician and that he declined to participate in his
vocational rehabilitation return to work program by failing to complete his December 27, 2016
rehabilitation plan development assignments. It also noted that appellant had not provided a return
to work rehabilitation plan, which was due by March 6, 2017. OWCP advised that appellant was
obligated to use Dr. Larson’s May 18, 2016 work restrictions in his return to work activity. It
further noted that the vocational rehabilitation counselor indicated that he had the ability to obtain
entry level employment working 32 hours per week as an office clerk earning wages of $299.84
per 32-hour week in his labor market. OWCP afforded appellant 30 days to contact OWCP and
his rehabilitation counselor to make a good faith effort to participate in the rehabilitation effort
designed to return him to gainful employment. It informed him that, if he believed he had a good
reason for not participating in the rehabilitation effort, he should respond within 30 days, with
reasons for noncompliance, and submit evidence in support of his position. OWCP noted that, if
appellant did not comply with the instructions contained in the letter within 30 days, the
rehabilitation effort would be terminated and action would be taken to reduce his compensation
under 5 U.S.C. § 8113(b) and 20 C.F.R. § 10.519.
In a vocational rehabilitation progress report dated February 1, 2017, the vocational
rehabilitation counselor noted that the wage data for the selected position of office clerk was a
preliminary earnings capacity projection based upon the most recent available statistical data of
2015. She added that additional research would be needed to verify the suitability per duties, the
required physical requirements of the position, and significant availability in the local private
sector job market.
On February 21, 2017 appellant, through his representative, contested his ability to
participate in vocational rehabilitation.

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On May 2, 2017 the employing establishment indicated that appellant’s pay plan was
wage-grade (WG) 03, Step 00 with base pay rate $16.26 per hour. It advised that he was in retained
pay status and was only entitled to 50 percent of annual pay adjustments under the applicable pay
retention rules of the employing establishment. An attached spreadsheet indicated that appellant’s
pay rate was $16.26 and his current pay rate would be $17.95.
By decision dated May 4, 2017, OWCP reduced appellant’s wage-loss compensation,
effective April 30, 2017, based on his ability to earn $299.84 in a 32-hour week in wages in the
constructed position of office clerk, Dictionary of Occupational Titles (DOT) No. 209.562-010.4
It found that the physical and vocational requirements of the position conformed to his medical
restrictions and prior work experience. OWCP noted that appellant had refused to develop a
rehabilitation plan for private sector return to work based on the accepted May 18, 2016 work
restrictions of Dr. Larson. It further noted that he had been notified on several occasions that the
carpentry position he currently holds was not a fair and reasonable representation of his earning
capacity. Commencing April 30, 2017, OWCP applied the Shadrick5 formula and thereafter paid
appellant wage-loss compensation benefits at the new rate of $948.88.6
On May 5, 2017 the rehabilitation vocational counselor closed appellant’s case due to the
vocational rehabilitation sanction in place.
On May 24, 2017 appellant requested an oral hearing before an OWCP hearing
representative, which was held telephonically on October 26, 2017. He asserted that the wageearning capacity was incorrectly calculated as the correct pay rate was WG-8 instead of WG-3. A
Notice of Personnel Action (Standard Form SF-50) with an effective date of March 31, 2002
indicated that appellant’s job changed from wood crafter to waiter and that he was entitled to retain
a WG-8 pay rate until March 30, 2004.
By decision dated January 8, 2018, an OWCP hearing representative vacated OWCP’s
May 4, 2007 decision based on the pay rates used to calculate the loss of wage-earning capacity
(LWEC) payments. The hearing representative found that OWCP properly determined that since
appellant had not fully participated in vocational rehabilitation efforts, he would have been capable
of earning the wages of an office clerk. However, based on the SF-50 provided, additional
development was needed as to appellant’s correct pay rate.
In a November 15, 2017 letter, Dr. Fraley indicated that appellant could work light duty
and that stretch breaks must be taken to reduce symptoms caused by work activity. He indicated
that his previous restrictions and narratives stand, but clarified that those restrictions would apply
to any position, not just to appellant’s current carpenter position. Dr. Fraley opined that “any
position would undoubtedly require numerous accommodations as appellant’s current employer
allows and provides however.” He continued to disagree with the work restrictions of Dr. Larson.
A copy of his previously submitted Form OWCP-5c was submitted.

4
The physical requirements of the office clerk position involved light exertion level, with a negligible amount of
force constantly, up to 10 pounds of force frequently, and no more than 20 pounds of force occasionally.
5

5 ECAB 376 (1953).

6

This was based on appellant’s date of recurrence pay rate.

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In a March 28, 2018 letter, the employing establishment provided pay rate information
which demonstrated that appellant’s recurrence pay rate was correct, but that the current wage of
WG 03, Step 00, had he not been injured, would be $18.91 per hour. It confirmed that he was
under pay retention at the time of his injury and was only entitled to 50 percent of annual pay
adjustments under the employing establishment’s pay retention rules. A spread sheet demonstrated
the required pay adjustments.
On August 1, 2018 OWCP issued a Shadrick documentation memo for pay rate validation
for LWEC decision. It found that appellant’s previously established recurrence pay rate from
May 11, 2007 had an updated hourly rate of $18.91 or $758.95 per week for the date-of-injury
job.7
By decision dated August 3, 2018, OWCP reduced appellant’s wage-loss compensation,
effective April 30, 2017, based on his ability to earn $299.84 in a 32-hour week in wages in the
constructed positon of office clerk. It found that he had failed, without good cause, to undergo
vocational rehabilitation as directed. Based on the updated pay rate information from the
employing establishment from appellant’s date-of-recurrence pay rate, OWCP found that
appellant’s net compensation at the updated pay rate was $1,021.92.
On August 21, 2018 appellant requested an oral hearing before an OWCP hearing
representative. The hearing was held telephonically on January 18, 2018.
By decision dated April 4, 2019, an OWCP hearing representative affirmed OWCP’s
August 3, 2018 decision.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proof to establish that the disability has
ceased or lessened before it may terminate or modify compensation benefits.8 An injured
employee who is either unable to return to the position held at the time of injury or unable to earn
equivalent wages, but who is not totally disabled for all gainful employment, is entitled to
compensation computed on his or her LWEC.9
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an OWCP wage-earning capacity counselor or
specialist for selection of a position, listed in the Department of Labor, DOT or otherwise available
in the open market, that fit the employee’s capabilities with regard to his or her physical limitations,
education, age, and prior experience. Once this selection is made, a determination of wage rate
and availability in the labor market should be made through contact with the state employment
service or other applicable service. Finally, application of the principles set forth in Albert C.

7
OWCP determined, on August 2, 2018, that appellant was underpaid $708.81 during the period April 30 through
July 21, 2017. On August 3, 2018 OWCP issued a check to him in the amount of $708.81 for the pay rate adjustment.
8

S.C., Docket No. 19-1680 (issued May 27, 2020); Betty F. Wade, 37 ECAB 556, 565 (1986).

9

20 C.F.R. §§ 10.402, 10.403.

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Shadrick10 and codified by regulations at 20 C.F.R. § 10.403 should be applied.11 Subsection (d)
of the regulations provides that the employee’s wage-earning capacity in terms of percentage is
obtained by dividing the employee’s actual earnings or the pay rate of the position selected by
OWCP, by the current pay rate for the job held at the time of the injury.12
The determination of whether an employee is physically capable of performing a modified
assignment is a medical question that must be resolved by medical evidence.13 OWCP procedures
provide that acceptable reasons for refusing an offered position include withdrawal of the offer or
medical evidence of inability to do the work or travel to the job.14
Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between the
physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician who shall make an examination.”15 In situations where
there exist opposing medical reports of virtually equal weight and rationale and the case is referred
to an impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based upon a proper factual background, must be
given special weight.16
OWCP’s procedures provide that if the attending physician opines that the claimant cannot
perform the duties of the offered position and a second opinion specialist opines that the claimant
can perform those duties, and both opinions are of equal weight, then a conflict in the medical
evidence exists and a referral to an impartial medical specialist for a referee examination is
necessary.17 If the claims examiner seeks an impartial medical examination and ultimately finds
that the offered position is suitable, a new 30-day notice is required.18
ANALYSIS
The Board finds that OWCP improperly reduced appellant’s wage-loss compensation,
effective April 30, 2017.
OWCP initially referred appellant to Dr. Larson for a second opinion evaluation to
determine appellant’s work restrictions. In a May 18, 2016 report, Dr. Larson, noted his review
10

Supra note 5.

11

Supra note 9 at § 10.403.

12

See S.W., Docket No. 15-0598 (issued June 22, 2015); Id. at § 10.403(d).

13

M.A., Docket No. 18-1671 (issued June 13, 2019); Gayle Harris, 52 ECAB 319 (2001).

14

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.5a
(June 2013); see E.B., Docket No. 13-0319 (issued May 14, 2013).
15

5 U.S.C. § 8123(a).

16
D.M., Docket No. 18-0746 (issued November 26, 2018); R.H., 59 ECAB 382 (2008); James P. Roberts, 31 ECAB
1010 (1980).
17

Supra note 14, Part 2 -- Claims, Job Offers and Return to Work, at Chapter 2.814.5.a.4(d) (June 2013).

18

Id.

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of a SOAF and the medical record. In a May 18, 2016 Form OWCP-5c, Dr. Larson opined that
appellant could work 8 hours per work day with restrictions of 4 hours per day twisting,
bending/stooping, squatting, kneeling, and climbing; no more than 40 pounds 3 hours per day
pushing and pulling; and no more than 20 pounds 3 hours per day of lifting.
In a January 19, 2017 report and Form OWCP-5c, appellant’s physician Dr. Fraley opined
that appellant was able to work 6 to 8 hours per day with restrictions in his existing carpenter job,
which appellant held preinjury. Dr. Fraley also provided bending/stooping restrictions and
indicated that appellant required 5- to 10-minute breaks “as needed every hour.” In a
November 15, 2017 letter, Dr. Fraley clarified that appellant could work light duty, but that stretch
breaks were necessary to reduce symptoms caused by work activity. He reiterated his prior
restrictions and narratives, but clarified that those restrictions would apply to any position, not just
to appellant’s carpenter position. Dr. Fraley concluded that “any position would undoubtedly
require numerous accommodations as appellant’s current employer allows and provides however.”
He noted his specific disagreement with the work restrictions assigned by Dr. Larson.
The Board finds that an unresolved conflict remains as to the work restrictions that impact
appellant’s ability to perform the constructed position of an office clerk, as Dr. Fraley and
Dr. Larson disagreed as to the level of possible capacity to work. Dr. Fraley considered the
restrictions assigned by Dr. Larson, for the government, and directly refuted his restrictions upon
which OWCP determined that appellant can return to work in an office clerk position. For a
conflict to arise, the opposing physician’s viewpoints must be of virtually equal weight and
rationale.19 The Board finds that the medical opinions of Drs. Fraley and Larson are of equal
weight and are in conflict and thus preclude a determination as to whether OWCP properly found
appellant capable of work in the constructed position of office clerk. As there exists an unresolved
conflict in medical opinion, pursuant to 5 U.S.C. § 8123(a), the case should have been referred to
physician in the appropriate field of medicine to resolve the conflict.20 Thus, the Board finds that
OWCP improperly reduced appellant’s wage-loss compensation benefits based upon the
restrictions assigned by Dr. Larson.

19

See J.B., Docket No. 18-1021 (issued December 4, 2018); M.R., Docket No. 17-0634 (issued July 24, 2018);
Darlene R. Kennedy, 57 ECAB 414 (2006).
20

Supra note 18; see also B.C., Docket No. 18-0407 (issued September 17, 2018).

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CONCLUSION
OWCP improperly reduced appellant’s wage-loss compensation, effective April 30, 2017.
ORDER
IT IS HEREBY ORDERED THAT the April 4, 2019 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: August 27, 2020
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.V., Appellant, widow of K.V.
and
U.S. POSTAL SERVICE, POST OFFICE,
Kansas City, MO, Employer
__________________________________________
Appearances:
Daniel M. Goodkin, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 16-1610
Issued: July 3, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

On August 4, 2016 appellant, through counsel, filed a timely appeal from a July 6, 2016
merit decision and July 22, 2016 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that the
employee’s death on November 24, 2013 was causally related to factors of his federal
employment; and (2) whether OWCP properly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 4, 2014 appellant, widow of the deceased employee, filed a claim for
compensation by widow, widower, and/or children (Form CA-5) claiming entitlement to
survivor benefits. Regarding the nature of the injury which caused death, she alleged that the
employee’s federal job duties caused an acute myocardial infarction, which in turn caused his
death on November 24, 2013.3
At the time of his death, the employee was a 53-year-old city carrier. On October 7, 2013
the employee had filed an occupational disease claim (Form CA-2), under OWCP File No.
xxxxxx001, claiming that he sustained occupational diseases of his back, shoulders, and elbows
due to performing his repetitive work duties over time. He indicated that he first became aware
of his claimed conditions on April 10, 1999 and first realized on an unspecified date in 1999 that
they were caused or aggravated by his employment. The employee did not stop work around the
time he filed his occupational disease claim and appellant indicated that he had worked in his job
on the day prior to his November 24, 2013 death.4 OWCP did not render a final decision on the
employee’s occupational disease claim prior to his death. After appellant filed her claim for
survivor benefits, it doubled the file for this claim into the file for her claim for survivor benefits.
In connection with OWCP File No. xxxxxx001, the employee had submitted several statements
from 2012 and 2013 in which he discussed the pain caused by his duties that required lifting,
twisting, and extending his arms. Additionally, an April 26, 2012 echocardiogram showed
ventricular dysfunction.
Appellant submitted a death certificate completed on November 27, 2013 by Dr. Kenny
Morohunfola, an attending Board-certified internist. Dr. Morohunfola listed the immediate
causes of death as acute myocardial infarction, coronary artery disease, and
hypercholesterolemia. He also listed hypertension and congestive heart failure as contributing
conditions.
In a July 7, 2014 report, Dr. Morohunfola indicated that the employee became his patient
around 1999 when he complained of back pain due to his work duties including lifting heavy
loads, repetitive use of the upper extremities, twisting, climbing, and engaging in prolonged
standing and walking. The employee also reported pain in his shoulders, elbows, and heels.
Dr. Morohunfola noted that, on several occasions between 2008 and 2011, he recommended that
the employee not work more than 8 hours per day or 40 hours per week, walk more than 100
yards, lift more than 30 pounds intermittently, or engage in delivering mail.5 He posited that the
employee’s repetitive work duties caused a permanent aggravation of his back and shoulder
conditions. Dr. Morohunfola noted that the conditions he diagnosed while the employee was
under his care were degenerative joint disease of the back and shoulders, bulging discs, left
3

Appellant indicated that she married the employee on August 4, 1979 and was married to him and living with
him on the date of his death. She submitted a copy of their marriage license.
4

Appellant submitted an October 22, 2014 letter in which she described the employee’s activities and symptoms
in the week prior to his death on November 24, 2013. She indicated that he reported that his job was very stressful
and that he complained of increased back, neck, and upper extremity pain in the week before his death.(RD 11-3-14)
5

Dr. Morohunfola also recommended that the employee be allowed to sit on a stool while working.

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sciatica, rotator cuff syndrome, and bilateral plantar fasciitis. He indicated that, in early 2012,
the employee developed shortness of breath and was diagnosed with congestive heart failure and
cardiomyopathy.6 Dr. Morohunfola indicated, “For these reasons, it is my medical opinion that
the strenuous nature of [the employee’s] postal duties contributed to the worsening of his cardiac
symptoms, his eventual acute heart attack and resultant death in November, 2013.”
In an October 10, 2014 letter, OWCP requested that appellant submit additional factual
and medical evidence in support of her claim, including a medical report from a treating
physician providing an opinion, with medical reasons, on the direct cause of the employee’s
death. On October 10, 2014 it also requested that the employing establishment submit additional
information.
Appellant submitted medical evidence that was originally submitted in connection with
the employee’s occupational disease claim. In October 4 and November 22, 2013 reports,
Dr. Morohunfola noted that the employee had developed shortness of breath with moderate
exertion several months prior and had been diagnosed with congestive heart failure and
cardiomyopathy.
Appellant also submitted other reports, dated between June 6 and
November 19, 2014, in which Dr. Morohunfola discussed the employee’s back pain.
The employing establishment advised OWCP that the employee had died while he was at
church on November 24, 2013.
In a January 14, 2015 decision, OWCP denied appellant’s claim for survivor benefits
finding that she had not established that the employee’s death on November 24, 2013 was
causally related to factors of his federal employment. It noted that she had not established the
factual aspect of her claim, i.e., she had not adequately identified the employment factors alleged
to have contributed to a medical condition causing the employee’s death on November 24, 2013.
OWCP also noted that the medical evidence of record, including the reports of Dr. Morohunfola,
did not contain a rationalized medical opinion explaining how employment factors contributed to
the employee’s worsening cardiac condition, acute myocardial infarction, and resultant death on
November 24, 2013.
On January 13, 2016 counsel requested reconsideration of the January 14, 2015 decision
denying survivor benefits. He indicated that he was enclosing medical reports of Dr. Alec D.
Weisberg, an attending Board-certified cardiologist who treated the employee’s heart problems,
and a statement from appellant clarifying the circumstances of the employee’s death.
In a May 8, 2012 report, Dr. Weisberg diagnosed the employee with cardiomyopathy,
congestive heart failure, hypertension, hyperlipidemia, chronic kidney disease, and obesity. On
June 12, 2012 he provided the additional diagnosed conditions of probable obstructive sleep
apnea, asthma, and gastro-esophageal reflux disease (GERD). In an October 1, 2012 report,
Dr. Weisberg provided findings that were similar to those contained in his earlier reports.

6

Dr. Morohunfola noted that, after the diagnosis of congestive heart failure, he wrote additional letters on the
employee’s behalf recommending the same special accommodations he previously recommended. He indicated that
the employee returned to the clinic on several occasions and reported that his work schedule remained very rigorous.

3

In a January 13, 2016 statement, appellant reported that the employee died at home on
November 24, 2013. She explained that he died at approximately 5:30 a.m. while getting ready
for church, where he served as a pastor.
The employing establishment submitted a city carrier position description. The position
involved delivering and collecting mail on foot or by vehicle, and routing, casing, and sorting
mail. Additionally, the city carrier position required lifting/carrying 10 to 35 pounds up to 8
hours a day, intermittently lifting up to 70 pounds for 8 hours a day, standing 8 hours a day,
walking 5 to 8 hours a day, climbing stairs intermittently 5 to 6 hours a day, bending and
stooping intermittently 5 to 6 hours a day, twisting intermittently up to 8 hours a day, pulling and
pushing intermittently 1 to 2 hours a day, simple grasping and fine manipulation continuously up
to 8 hours a day, and reaching above shoulder height intermittently 2 to 3 hours per day.
In an April 11, 2016 decision, OWCP denied appellant’s claim for survivor benefits. It
modified its January 14, 2015 decision to reflect that she had established employment factors
experienced by the employee, including delivering and collecting mail on foot or by vehicle, and
routing, casing, and sorting mail. However, OWCP found that appellant had not submitted
sufficient medical evidence to establish that the employee’s death due to a cardiac condition on
November 24, 2013 was employment related.
On April 28, 2016 appellant, through counsel, requested reconsideration of OWCP’s
April 11, 2016 decision.
Counsel argued that an enclosed April 21, 2016 report of
Dr. Thomas A. Diggs, a Board-certified cardiologist, was at least sufficient to require further
development of the medical evidence regarding whether the employee’s death on November 24,
2013 was related to employment factors.
In an April 21, 2016 report, Dr. Diggs indicated that he had reviewed the employee’s
medical records, as well as a general summary of his city carrier duties. He noted that the
employee had a history of significant cardiac disease in addition to other serious medical
problems, which included morbid obesity, hypertension, hyperlipidemia, chronic kidney disease,
probable obstructive sleep apnea, asthma, and GERD. Dr. Diggs discussed the results of an
April 26, 2012 echocardiogram and noted that, on May 8, 2012, Dr. Weisberg recommended a
cardiac catheterization, but that it could not be successfully performed as the employee was
unable to tolerate the procedure. He indicated that the decision was made to continue medical
therapy at that time and to consider another attempt at an invasive cardiac catheterization in two
to three months. The employee was seen again by Dr. Weisberg on October 1, 2012 and an
echocardiogram revealed an improvement in his left ventricular function with an ejection
fraction of 50 to 55 percent. Dr. Diggs indicated that the decision was made to continue medical
therapy as the employee’s clinical condition had improved. Despite the medical therapy, the
employee developed coronary artery disease and died from an acute myocardial infarction on
November 24, 2013.
In his April 21, 2016 report, Dr. Diggs further indicated that the employee’s own letter
from 2013 outlined his chronic pain, stress, and anxiety. He noted that the employee was not
reassigned to a different job despite the strong recommendations of Dr. Morohunfola. Dr. Diggs
asserted that chronic severe pain, emotional stress, and anxiety have been shown to cause
coronary artery disease and exacerbate symptoms in patients who have preexisting coronary

4

artery disease. He indicated that the employee had chronic pain and noted that chronic pain
leads to chronic anxiety and depression. Dr. Diggs noted that the metabolic syndrome which the
employee had was also associated with chronic stress and anxiety. He indicated that
psychological stress causes changes in the sympathetic-parasympathetic balance and the tone of
the hypothalamic-pituitary-adrenal axis, which might accelerate the atherosclerotic process or
precipitate myocardial infarction, left ventricular dysfunction, or dysrhythmia. Dr. Diggs noted
that anxiety worsens prognosis in patients with coronary disease in a dose-dependent manner
with a higher risk of death or nonfatal myocardial infarction in the 516 patients studied in an
outpatient cardiology clinic over a five-year period. He noted that it was his opinion that there
was an industrial cause to the employee’s premature death from an acute myocardial infarction.
Dr. Diggs indicated that the recurrent episodes of myocardial ischemia that the employee
experienced performing his mail carrier duties, coupled with the chronic pain, and stress that he
also suffered due to his work duties as a city carrier, contributed to his developing premature
coronary artery disease, which precipitated his myocardial infarction and subsequent death.
In a July 6, 2016 decision, OWCP denied modification of its April 11, 2016 decision. It
found that Dr. Diggs had not provided a rationalized medical opinion relating the employee’s
November 24, 2013 death to employment factors. OWCP noted that the evidence did not
establish, as asserted by Dr. Diggs, that the employee had recurrent episodes of myocardial
ischemia or chronic pain and stress related to his city carrier duties.
On July 15, 2016 counsel again requested reconsideration. He argued that Dr. Diggs’
April 21, 2016 report was sufficiently well rationalized to establish that the employee sustained
cardiac conditions due to employment factors, which in turn caused his death on
November 24, 2013. Counsel also resubmitted several statements from 2012 and 2013 in which
the employee discussed his work duties.
In a decision dated July 22, 2016, OWCP denied appellant’s request for reconsideration
of the merits of her claim pursuant to 5 U.S.C. § 8128(a). It found that the evidence and
argument she had submitted was repetitious.
LEGAL PRECEDENT -- ISSUE 1
The United States shall pay compensation for the disability or death of an employee
resulting from personal injury sustained while in the performance of his or her duty.7 An award
of compensation in a survivor’s claim may not be based on surmise, conjecture, or speculation or
an appellant’s belief that the employee’s death was caused, precipitated, or aggravated by the
employment.8 Appellant has the burden of proof to establish by the weight of the reliable,
probative, and substantial medical evidence that the employee’s death was causally related to an
employment injury or to factors of his employment.9 This burden includes the necessity of
furnishing rationalized medical opinion evidence of a cause and effect relationship, based on a
7

5 U.S.C. § 8133(a).

8

See Sharon Yonak (Nicholas Yonak), 49 ECAB 250 (1997).

9

L.R. (E.R.), 58 ECAB 369 (2007).

5

complete factual and medical background. The opinion of the physician must be one of
reasonable medical certainty and must be supported by medical rationale.10 The mere showing
that an employee was receiving compensation at the time of his or her death does not establish
that his or her death was causally related to conditions resulting from the employment.11
The medical evidence required to establish causal relationship is rationalized medical
evidence. Rationalized medical evidence is medical evidence which includes a physician’s
rationalized medical opinion on the issue of whether there is a causal relationship between an
employee’s diagnosed conditions and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the employee’s death and the accepted conditions or
employment factors identified by the employee.12
ANALYSIS -- ISSUE 1
On August 4, 2014 appellant, widow of the deceased employee, filed a Form CA-5
claiming entitlement to survivor benefits. Regarding the nature of the injury which caused death,
she alleged that the employee’s job duties as a city carrier caused an acute myocardial infarction,
which in turn caused his death on November 24, 2013. The November 27, 2013 death certificate
listed the immediate causes of death as acute myocardial infarction, coronary artery disease, and
hypercholesterolemia. The death certificate also identified hypertension and congestive heart
failure as contributing conditions.
OWCP accepted that the employee’s city carrier duties included delivering and collecting
mail on foot or by vehicle, and routing, casing, and sorting mail. However, it found that
appellant failed to submit sufficient medical evidence to establish that employment duties
contributed to the development of the employee’s heart disease, which led to his death on
November 24, 2013.13
In a July 7, 2014 report, Dr. Morohunfola indicated that the employee became his patient
around 1999 when he complained of back pain due to his work duties including lifting heavy
loads, repetitive use of the upper extremities, twisting, climbing, and engaging in prolonged
standing and walking. The employee also reported pain in his shoulders, elbows, and heels.
Dr. Morohunfola noted that the conditions he diagnosed while the employee was under his care
were degenerative joint disease of the back and shoulders, bulging discs, left sciatica, rotator cuff
syndrome, and bilateral plantar fasciitis. He indicated that, in early 2012, the employee
developed shortness of breath and was diagnosed with congestive heart failure and
cardiomyopathy. Dr. Morohunfola noted that he wrote letters on the employee’s behalf
recommending that special accommodations be made for him at work, but the employee returned
10

Id.

11

Leonora A. Buco (Guido Buco), 36 ECAB 588, 594 (1985).

12

Donna L. Mims, 53 ECAB 730 (2002).

13

See S.L. (J.L.), Docket No. 15-0087 (issued April 15, 2015).

6

to the clinic on several occasions and reported that his work schedule remained very rigorous.
He noted, “For these reasons, it is my medical opinion that the strenuous nature of [the
employee’s] postal duties contributed to the worsening of his cardiac symptoms, his eventual
acute heart attack, and resultant death in November 24, 2013.”
The Board notes that, while Dr. Morohunfola has provided an opinion that city carrier
duties contributed to the employee’s death on November 24, 2013, he has not provided sufficient
medical rationale in support of his opinion on causal relationship. The Board has held that a
medical report is of limited probative value on the issue of causal relationship if it contains a
conclusion regarding causal relationship which is unsupported by medical rationale.14
Dr. Morohunfola failed to provide a sufficient medical explanation of how the described
employment factors contributed to the employee’s death.15 He did not explain the medical
process through which the employee’s preexisting cardiac condition could have been
exacerbated by his specific work duties as a city carrier. Dr. Morohunfola only provided a
general discussion of the employee’s work duties and of the nature of his cardiac condition. He
did not explain why the employee’s death on November 24, 2013 was not entirely due to the
natural progression of his multiple nonwork-related conditions.
Appellant also submitted an April 21, 2016 report in which Dr. Diggs indicated that he
had reviewed the medical records of the employee and the general summary of the city carrier
duties. Dr. Diggs noted that the employee had a history of significant cardiac disease in addition
to other serious medical problems which included morbid obesity, hypertension, hyperlipidemia,
chronic kidney disease, probable obstructive sleep apnea, asthma, and gastro-esophageal reflux
disease. He discussed the medical treatment that the employee received for his cardiac problems.
Dr. Diggs noted that it was his opinion that there was an industrial cause to the employee’s
premature death from an acute myocardial infarction. He indicated that the recurrent episodes of
myocardial ischemia that the employee experienced performing his mail carrier duties, coupled
with the chronic pain and stress that he also suffered due to his work duties as a city carrier,
contributed to his developing premature coronary artery disease, which precipitated his
myocardial infarction and subsequent death.
The Board finds that Dr. Diggs’ April 21, 2016 report is of limited probative value
because he did not provide sufficient explanation for his conclusion on causal relationship.16
The Board notes that Dr. Diggs did not adequately describe the medical process through which
the employee’s work duties contributed to his ostensible recurrent episodes of myocardial
ischemia and his reported chronic pain and stress. Importantly, Dr. Diggs did not adequately
identify specific medical reports which indicated that the employee suffered recurrent episodes
of myocardial ischemia, nor did he provide support for his suggestion that the employee
developed an employment-related chronic pain/stress condition which contributed to the cardiac
condition that led to his death on November 24, 2013.

14

C.M., Docket No. 14-0088 (issued April 18, 2014).

15

See J.W. (F.W.), Docket No. 12-0778 (issued November 21, 2012).

16

See Kathy Marshall (Dennis Marshall), 45 ECAB 827 (1994).

7

Dr. Diggs spent a good portion of his April 21, 2016 report discussing general findings
from journals regarding the role of pain and stress in accelerating cardiac disease. For example, he
asserted that chronic severe pain, emotional stress, and anxiety have been shown to cause
coronary artery disease and exacerbate symptoms in patients who have preexisting coronary
artery disease. Dr. Diggs indicated that anxiety worsens the prognosis in patients with coronary
disease in a dose dependent manner with a higher risk of death or nonfatal myocardial infarction
in the 516 patients studied in an outpatient cardiology clinic over a five-year period. In essence,
he suggested that the employee sustained a chain of employment-related conditions starting with
some type of pain/stress-related condition which in turn led to exacerbation of coronary artery
disease and a myocardial infarction. Dr. Diggs’ description of such a process is vague and lacks
specific, detailed references to the medical evidence of record.17 The Board has held that medical
texts and excerpts from publications are of little evidentiary value in establishing the necessary
causal relationship between a claimed condition and employment factors because such materials
are of general application and are not determinative of whether the specifically claimed condition
is related to the particular employment factors alleged by the employee.18 Dr. Diggs did not
adequately explain the specific medical process through which the employee’s duties affected the
cardiac condition that contributed to his death.19
For these reasons, the Board finds that appellant has not established that the employee’s
death on November 24, 2013 was related to work factors and OWCP properly denied her claim for
survivor benefits.
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
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,20
OWCP’s regulations provide that the evidence or argument submitted by 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
17

The Board further notes that it has reviewed the medical evidence produced prior to the employee’s death on
November 24, 2013, including the reports of Dr. Weisberg, but that this evidence does not contain any opinion that
the employee sustained an employment-related cardiac or pain/stress condition.
18

William C. Bush, 40 ECAB 1064, 1075 (1989).

19

Dr. Diggs’ recitation of general findings from journals suggests that he also felt that the employee developed an
emotional condition related to a pain condition suffered as a result of his city carrier duties. However, he did not
provide a clear opinion in this regard and the Board notes that no such condition was claimed by the employee prior to
his death. On appeal, counsel argues that the April 21, 2016 report of Dr. Diggs is at least sufficient to require
further development of the medical evidence regarding whether the employee’s death on November 24, 2013 was
related to employment factors. However, the Board has explained why Dr. Diggs’ report is of limited probative
value with respect to the main issue of the present case.
20

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

8

pertinent new evidence not previously considered by OWCP.21 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant’s application for review must
be received within one year of the date of that decision.22 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.23 The Board has held that the submission of evidence or argument
which repeats or duplicates evidence or argument already in the case record24 and the submission
of evidence or argument which does not address the particular issue involved does not constitute a
basis for reopening a case.25 While a reopening of a case may be predicated solely on a legal
premise not previously considered, such reopening is not required where the legal contention
does not have a reasonable color of validity.26
ANALYSIS -- ISSUE 2
The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the claim.
In her July 2015 application for reconsideration, appellant did not show that OWCP erroneously
applied or interpreted a specific point of law. She did not identify a specific point of law or show
that it was erroneously applied or interpreted, nor did she advance a new and relevant legal
argument not previously considered by OWCP. Appellant’s argument, made through counsel,
was that Dr. Diggs’ April 21, 2016 report was sufficiently well rationalized to establish that the
employee sustained cardiac conditions due to employment factors, which in turn caused his death
on November 24, 2013. However, she had previously presented this same argument through
counsel and OWCP had already considered and rejected it. The Board has held that the
submission of evidence or argument which repeats or duplicates evidence or argument already in
the case record does not constitute a basis for reopening a case.27 A claimant may be entitled to a
merit review by submitting relevant pertinent new evidence, but appellant did not submit any
such evidence in this case.28 Appellant also submitted several statements from 2012 and 2013 in
which the employee discussed his work duties, but these statements were previously of record.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Therefore, pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit
review.

21

20 C.F.R. § 10.606(b)(3).

22

Id. at § 10.607(a).

23

Id. at § 10.608(b).

24

Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).

25

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

26

John F. Critz, 44 ECAB 788, 794 (1993).

27

See supra note 24.

28

See supra note 21.

9

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that the
employee’s death on November 24, 2013 was causally related to factors of his federal
employment.
The Board further finds that OWCP properly denied her request for
reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the July 22 and 6, 2016 decisions of the Office of
Workers’ Compensation Programs are affirmed.
Issued: July 3, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CITIZENSHIP & IMMIGRATION SERVICES,
Los Angeles, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 15-1350
Issued: March 18, 2016

Case Submitted on the Record

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

JURISDICTION
On June 1, 2015 appellant filed a timely appeal from a May 19, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish a traumatic injury in
the performance of duty on March 12, 2013.
FACTUAL HISTORY
On April 10, 2013 appellant, then a 44-year-old immigration services officer, filed a
traumatic injury claim (Form CA-1) alleging that on March 12, 2013 she injured her right
1

5 U.S.C. § 8101 et seq.

shoulder and right side of her neck when she carried a heavy file and opened a heavy door. She
stopped work on March 12, 2013 and returned to work on March 13, 2013. The employing
establishment noted that it had not received notification of this injury until the date of filing
appellant’s claim.
In a report dated March 15, 2013, Dr. James Mitchner, Board-certified in occupational
medicine, diagnosed appellant with a shoulder strain of the right trapezius muscle. Appellant
indicated that she had developed right trapezius pain from performing duties of her employment,
and that “over the last few months pain has developed in the same area as before.” Dr. Mitchner
further noted that appellant denied any direct trauma or known new injury. He noted that she
had job responsibilities of forceful grasping for up to 6+ hours per day; repetitive bending,
twisting, and squatting; and prolonged computer work or typing for up to 6+ hours per day.
Dr. Mitchner recommended restricted work duties for the period March 15 through 22, 2013 of
reaching above her shoulder for no more than 20 percent of her shift and no lifting over 10
pounds. He recommended physical therapy, which OWCP authorized on June 26, 2013.
In a work status report dated March 15, 2013, Dr. Mitchner extended appellant’s work
restrictions through March 22, 2013 and noted a date of injury of July 27, 2012. In subsequent
reports, he extended her restrictions through June 27, 2013 and listed the date of injury as
July 28, 2012 or March 12, 2013.
In a report dated June 27, 2013, Dr. Mitchner stated that appellant’s condition had not
resolved and that activities of daily living requiring reaching above the shoulder level were
painful and restricted. He noted that appellant had a history of a previous right shoulder injury
and extended her work restrictions through July 11, 2013.
By letter dated July 12, 2013, OWCP notified appellant that her claim had been opened
for formal adjudication at her request. It stated that she had not submitted sufficient medical
evidence to establish that her injury resulted from activities of her federal employment. OWCP
afforded appellant 30 days to submit additional evidence and to respond to its inquiries. In
particular, it requested clarification as to whether she was filing a claim for occupational disease
or traumatic injury.
On July 12, 2013 appellant told Dr. Mitchner that her shoulder and neck began to bother
her on March 12, 2013. She had pushed open a heavy door for a customer, after which she
began to feel pain in her right shoulder and neck. Dr. Mitchner stated, “The mechanism of action
of the patient pushing open a heavy door on March 12, 2013 caused [appellant’s] right shoulder
and neck injuries.” He recommended a magnetic resonance imaging (MRI) scan of appellant’s
right shoulder for persistent pain that had not resolved with physical therapy, activity restriction,
or a home exercise program, in order to rule out the possibility of a rotator cuff tear.
Dr. Mitchner extended her work restrictions through August 2, 2013.
By decision dated August 13, 2013, OWCP denied appellant’s claim for compensation.
It found that she had not submitted sufficient evidence to establish that the event occurred as
described, because it was not clear whether she was filing a claim for traumatic injury or
occupational disease. OWCP noted that the medical reports were contradictory as to how

2

appellant’s injury occurred and that it had not received a response to its inquiry to clarify the
mechanism of injury.
In a report dated August 2, 2013, Dr. Mitchner extended appellant’s work restrictions
through August 23, 2013.
On September 11, 2013 appellant requested an oral hearing before an OWCP hearing
representative. The hearing was held on March 13, 2014. The hearing officer noted that
appellant had nine prior claims for work injuries or conditions and one subsequent claim for an
employment injury or condition, several of which involved injuries to the right shoulder or neck.
Appellant stated that she had not received OWCP’s July 12, 2013 development letter and that it
might have been taken by a neighbor. She explained that on March 12, 2013 she opened a heavy
door for a customer to enter a work area, using her right hand and arm. Shortly afterward,
appellant’s shoulder began to bother her. She stated that she then notified her manager that she
was going to leave for the day as she injured her shoulder. Appellant told another manager that
she had possibly reinjured her arm because she had injured the same shoulder the previous year.
She noted that in July 2012 she had been diagnosed with a work-related right shoulder sprain or
strain, which eventually resolved. The hearing representative noted that Dr. Mitchner’s reports
were inconsistent with appellant’s history of injury, and that she would need for him to reconcile
that inconsistency. She stated that it appeared that appellant was not claiming a recurrence, but a
new traumatic injury. Appellant noted that she had asked OWCP to formally adjudicate the
claim so that she could buy back leave that she had used to attend physical therapy appointments.
Appellant submitted a narrative statement in which she reiterated the timeline of her
interactions with OWCP and her physician. The statement was consistent with and substantially
the same as her testimony at the oral hearing. Appellant also resubmitted Dr. Mitchner’s
previous reports.
On April 12, 2013 Dr. Mitchner completed a “first report of occupational injury for
appellant’s condition.” He noted both that appellant “denied any prior injury or disability
associated with the above claimed body parts” and that appellant had a history of a previous right
shoulder injury. Dr. Mitchner stated that his findings were consistent with appellant’s account of
injury.
In a report dated August 2, 2013, Dr. Mitchner stated that appellant had mild right
shoulder pain that periodically traveled down the neck and arm. He noted that she had a
previous right shoulder injury and listed her date of injury as March 12, 2013. Dr. Mitchner
extended her work restrictions through August 23, 2013.
By decision dated May 20, 2014, the hearing representative affirmed OWCP’s
August 13, 2013 decision. However, she modified the basis for denial, finding that appellant had
not submitted sufficient medical evidence to establish that the incident of March 12, 2013 caused
appellant’s right shoulder and neck condition.
On February 18, 2015 appellant requested reconsideration of OWCP’s May 20, 2014
decision. With her request, she submitted a statement from a supervisor noting that appellant

3

had informed him that her shoulder was bothering her on March 12, 2013 and that she would be
taking the rest of the day off.
In a report dated December 11, 2014, Dr. Mitchner responded to the hearing
representative’s decision. He stated:
“What I can say in this case is that the patient denies any outside activities that
could have injured her right shoulder.... To the best the patient can determine she
believes she injured her right shoulder while pushing a door open for a customer
against firm resistance. This mechanism is not uncommon if the resistance is
sufficient and the patient’s arm is extended while pushing the door open leaving
the shoulder joint vulnerable to injury due to the leverage the resistance causes
across the distance of an extended arm on the shoulder. Much the same way [a]
floor jack easily raises the car due to the extended leverage arm, an extended arm
pushing open a door with sufficient resistance can strain the shoulder tendons and
ligaments as well as a trapezius muscle which connects the shoulder to the base of
the neck. In questioning the patient, she initially felt the injury that occurred on
March 12, 2013 was an aggravation/flare up of a previous shoulder injury.
However, in retrospect [appellant] believes she made a mistake and filed the
wrong type of injury form. She believes this March 12, 2013 injury to her right
shoulder was a new incident. I am recommending the patient’s right shoulder and
trapezius strain be accepted and an MRI [scan] performed to rule out the
possibility of a rotator cuff tear. If the patient’s right shoulder sustained a rotator
cuff tear, patients are often still symptomatic until further treatment is obtained.
If the right shoulder MRI [scan] reveals there is no rotator cuff tear then this
March 15, 2013 injury can be closed.”
By decision dated May 19, 2015, OWCP reviewed the merits of appellant’s claim and
denied modification of their previous decision. It noted that Dr. Mitchner had not yet offered an
opinion of his own regarding the causation of appellant’s injury, but instead had relied only upon
what appellant believed.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
2

Supra note 1.

3

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364, 366 (2006).

4

S.P., 59 ECAB 184, 188 (2007); Joe D. Cameron, 41 ECAB 153, 157 (1989).

4

To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a fact of injury has been established.5
First, the employee must submit sufficient evidence to establish that she actually experienced the
employment incident at the time, place, and in the manner alleged.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
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.8 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.9
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.10 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and
compensable employment factors.11 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.12
ANALYSIS
The Board finds that the medical evidence submitted by appellant is insufficient to
establish that the incident of March 12, 2013 caused or aggravated appellant’s diagnosed medical
conditions.
In the initial report OWCP received from Dr. Mitchner, dated March 15, 2013, he
indicated that appellant had experienced shoulder pain over the past few months, and that
5

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 3 at n.5.

6

D.B., 58 ECAB 464, 466 (2007); David Apgar, 57 ECAB 137, 140 (2005).

7

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734, 737 (2008); Bonnie A. Contreras,
supra note 3 at n.5.
8

Roma A. Mortenson-Kindschi, 57 ECAB 418, 428 n.37 (2006); Katherine J. Friday, 47 ECAB 591, 594 (1996).

9

P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

10

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149, 155-56 (2006); D’Wayne Avila, 57
ECAB 642, 649 (2006).
11

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379, 384 (2006).

12

I.J., 59 ECAB 408, 415 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

5

appellant had denied any direct trauma or new injury. Appellant thereafter submitted two reports
from Dr. Mitchner containing his opinion on the causal relationship between her diagnosed right
shoulder and neck conditions and the incident of March 12, 2013. In a July 12, 2013 report,
Dr. Mitchner stated, “The mechanism of action of the patient pushing open a heavy door on
March 12, 2013 caused [appellant’s] right shoulder and neck injuries.” This opinion is not
rationalized, as it does not contain any medical or biomechanical explanation regarding how he
arrived at that conclusion. Instead it merely states Dr. Mitchner’s opinion, without supportive
medical reasoning. Dr. Mitchner also does not explain why his earlier report had referred to
prior months of shoulder pain, and no new injury. Medical evidence submitted to support a
claim for compensation should reflect a correct history, and the physician should offer a
medically sound explanation of how the claimed work event caused or aggravated the claimed
condition.13 Lacking such an explanation, Dr. Mitchner’s July 12, 2013 report is not sufficient to
establish a causal relationship between the events of March 12, 2013 and appellant’s diagnosed
conditions.
In a report dated December 11, 2014, Dr. Mitchner communicated appellant’s opinions as
to the cause of her conditions and noted that the type of injury claimed by appellant was “not
uncommon” if the circumstances of the alleged injury included sufficient resistance while
pushing a door open. Dr. Mitchner’s December 11, 2014 report does not contain language of
reasonable medical certainty. Rather, it merely paraphrases appellant’s statements and beliefs as
to the cause of her conditions and states that the type of injury claimed by appellant is “not
uncommon” under the described circumstances. Stating that an injury is “not uncommon” under
a given set of circumstances does not directly address the specific circumstances of the present
claim and does not express reasonable medical certainty -- it is, instead, equivocal and
speculative language concerning the cause of her conditions. The opinion of a physician
supporting causal relationship must be one of reasonable medical certainty that the condition for
which compensation is claimed is causally related to her federal employment; and such
relationship must be supported with affirmative evidence, explained by medical rationale and be
based upon a complete and accurate medical and factual background of the claimant.14 As such,
Dr. Mitchner’s reports are insufficient to establish appellant’s claim for right neck and shoulder
conditions.
As appellant has not submitted any rationalized medical evidence to support her
allegation that she sustained an injury causally related to a March 12, 2013 employment incident,
she has not met her burden of proof to establish a 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.

13

D.D., Docket No. 13-1517 (issued April 14, 2014).

14

A.D., 58 ECAB 149 (2006).

6

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a traumatic
injury in the performance of duty on March 12, 2013.
ORDER
IT IS HEREBY ORDERED THAT the May 19, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.15
Issued: March 18, 2016
Washington, DC

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

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

15

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Northwood, NH, Employer
__________________________________________

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Appearances:
Bradley M. Lown, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-2277
Issued: June 3, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 18, 2008 appellant, through counsel, filed a timely appeal from a nonmerit
decision of the Office of Workers’ Compensation Programs dated July 11, 2008 denying her
untimely request for reconsideration and finding that she failed to establish clear evidence of
error. Because more than one year has elapsed between the last merit decision dated
December 23, 2005 and the filing of this appeal, the Board lacks jurisdiction to review the merits
of appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), but has jurisdiction over
the nonmerit issue.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error.

FACTUAL HISTORY
On May 21, 2005 appellant, then a 51-year-old clerk, filed an occupational disease claim
alleging that in 2003 she first became aware that her left rotator cuff strain and bankart
reconstruction surgery on April 5, 2005 were employment related.
Appellant submitted medical reports from Dr. Douglas J. Moran, a treating Boardcertified orthopedic surgeon. In a June 19, 2003 report, Dr. Moran diagnosed mild left shoulder
rotator cuff tendinitis and right shoulder acromioclavicular joint irritation. He related that
appellant attributed her increased shoulder pain to her increased overhead lifting. On July 20,
2005 Dr. Moran noted appellant’s repetitive use shoulder injury was “completely consistent with
the microtrauma that results in shoulder disability” as seen in appellant’s case. In a July 29,
2005 report, he opined that appellant’s left shoulder was better following surgery.
By decision dated September 14, 2005, the Office denied appellant’s claim on the
grounds that she had failed to establish that her left shoulder condition was causally related to her
employment duties.
On October 10, 2005 appellant requested reconsideration. In a November 22, 2005
report, Dr. Moran noted that appellant’s left shoulder was doing well, but that she could not do
any heavy lifting.
By decision dated December 23, 2005, the Office denied appellant’s request for further
merit review.
Subsequent to the decision, the Office received reports dated February 24 to June 9, 2006
from Dr. Moran.
In a letter dated September 15, 2006, appellant’s counsel advised the Office that he was
in the process of acquiring evidence and would submit it when available. He also requested
information on the status of appellant’s claim. The medical evidence referenced in the letter
included reports dated July 20 and 29 and October 4, 2005 and April 3 and July 13, 2006 by
Dr. Moran.1
On October 23, 2006 Dr. Moran reported that appellant had real pathology in her left
shoulder.
On November 17 and December 18, 2006 the Office received additional medical reports
from Dr. Moran. In an October 4, 2005 report, Dr. Moran opined that appellant sustained a left
upper extremity injury due to her repetitive work duties. In an October 26, 2006 report, he
reiterated that appellant had real pathology in her left shoulder. In a February 2, 2007 report,
Dr. Moran noted that she was seen for pain in both her shoulders with the right worse than the
left. He noted that appellant was required to lift up to 70 pounds as well as having to push, pull
and lift and was miserable with regard to both shoulders.

1

The record indicates no medical evidence accompanied the September 15, 2006 letter.

2

In a June 22, 2007 report, Dr. Moran referenced his prior reports and opined that
appellant’s bilateral shoulder condition was employment related. He stated that appellant was
restricted from performing any repetitive activity involving her upper extremities.
On June 27, 2007 appellant filed an appeal with the Board, docketed as No. 07-1806.2
On October 19, 2007 the Office received medical evidence from Dr. Moran dated
July 20, 2005 through June 22, 2007.
In a December 20, 2007 report, Dr. Moran provided physical findings for both shoulders.
He diagnosed rotator cuff tendinitis and impingement bursitis, which he attributed to appellant’s
repetitive overhead work duties.
By order dated January 3, 2008, the Board dismissed appellant’s appeal as it did not have
jurisdiction. The Board found that the most recent decision in the record was a nonmerit
decision dated December 23, 2005, which was more than a year prior to appellant’s filing of her
appeal on June 27, 2007.
On March 11 and 14, 2008 the Office received reports regarding appellant’s right upper
extremity dated June 18 and 25, 2003 from Dr. C.P. Corcoran, a treating Board-certified
internist. A March 6, 2008 report by Dr. Moran was also submitted.
On April 25, 2008 appellant, through counsel, requested reconsideration of the
September 14, 2005 denial of her claim. On July 1, 2008 appellant again requested
reconsideration.
By decision dated July 11, 2008, the Office denied appellant’s request for further review
of the merits of her claim on the grounds that her request was untimely filed and failed to
demonstrate clear evidence of error.3
LEGAL PRECEDENT
The Federal Employees’ Compensation Act4 provides that the Office may review an
award for or against compensation upon application by an employee (or his or her representative)
who receives an adverse decision. The employee may obtain this relief through a request to the
district Office. The request, along with the supporting statements and evidence, is called the
application for reconsideration.5 To be entitled to a merit review of an Office decision denying
or terminating a benefit, a claimant must file his or her application for review within one year of
2

Docket No. 07-1806 (issued January 3, 2008).

3

The Board notes that, following the July 11, 2001 nonmerit decision, the Office received additional evidence.
However, the Board may not consider new evidence on appeal. See 20 C.F.R. § 501.2(c); J.T., 59 ECAB ___
(Docket No. 07-1898, issued January 7, 2008); G.G., 58 ECAB ___ (Docket No. 06-1564, issued February 27,
2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
4

5 U.S.C. § 8101 et seq.

5

20 C.F.R. § 10.605.

3

the date of that decision.6 The Board has found that the imposition of the one-year limitation
does not constitute an abuse of the discretionary authority granted the Office under section
8128(a) of the Act.7
Title 20 of the Code of Federal Regulations, section 10.607(b) provides that the Office
will consider an untimely application only if it demonstrates clear evidence of error by the Office
in its most recent merit decision. To establish clear evidence of error, a claimant must submit
evidence relevant to the issue which was decided by the Office. The evidence must be positive,
precise and explicit and must manifest on its face that the Office committed an error. Evidence
which does not raise a substantial question concerning the correctness of the Office’s decision is
insufficient to establish clear evidence of error.8 It is not enough merely to show that the
evidence could be construed so as to produce a contrary conclusion. This entails a limited
review by the Office of how the evidence submitted with the reconsideration request bears on the
evidence previously of record and whether the new evidence demonstrates clear error on the part
of the Office. To show clear evidence of error, the evidence submitted must not only be of
sufficient probative value to create a conflict in medical opinion or establish a clear procedural
error, but must be of sufficient probative value to prima facie shift the weight of the evidence in
favor of the claimant and raise a substantial question as to the correctness of the Office’s
decision. The Board makes an independent determination of whether a claimant has submitted
clear evidence of error on the part of the Office such that the Office abused its discretion in
denying merit review in the face of such evidence.9
ANALYSIS
In its July 11, 2008 decision, the Office properly determined that appellant failed to file a
timely application for reconsideration. It rendered its most recent merit decision on
September 14, 2005. Appellant’s request for reconsideration was dated July 1, 2008, which was
more than one year after September 14, 2005. Accordingly, the Board finds that her request for
reconsideration was not timely filed.
The Board notes that the September 15, 2006 letter from appellant’s counsel does not
constitute a request for reconsideration. Appellant’s counsel requested a case status update,
stated that he was acquiring additional evidence and portended to submit evidence. Appellant
did not ask the Office to review any of its decisions. The Office therefore properly interpreted
the letter as an informational request.
Following its denial of appellant’s reconsideration request as untimely filed, in
accordance with internal guidelines and with Board precedent, the Office properly performed a
limited review to determine whether appellant’s application for review showed clear evidence of
error which would warrant reopening the case for further merit review under section 8128(a).
6

Id. at § 10.607(a).

7

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

8

See Alberta Dukes, 56 ECAB 247 (2005); see also Leon J. Modrowski, 55 ECAB 196 (2004).

9

See Alberta Dukes, supra note 8.

4

The Office reviewed the evidence submitted by appellant in support of her application for
review, but found that it did not clearly establish that the Office’s prior decision was in error.
Appellant submitted medical reports from Dr. Moran, which are insufficient to establish
clear evidence of error. As noted the evidence submitted must be relevant to the issue which was
decided by the Office. In this case, appellant’s claim was denied on the grounds that the medical
evidence did not establish a causal relationship between her diagnosed condition and
employment factors. Evidence such as a detailed, well-rationalized medical report, which if
submitted before the denial was issued, would have created a conflict in medical opinion
requiring further development, is insufficient to show clear evidence of error.10 Dr. Moran
merely reiterated his opinion that appellant’s left shoulder condition was due to repetitive work
duties. This evidence does not establish clear error on the part of the Office. Dr. Moran’s
reports are insufficient to establish clear evidence of error in the Office’s September 14, 2005
merit decision. Appellant has submitted no other evidence to raise a substantial question as to
the correctness of the Office’s decision denying her claim.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration as
the request was filed outside the one-year time limitation and did not establish clear evidence of
error.

10

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

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 11, 2008 is affirmed.
Issued: June 3, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
O.J., 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. 07-966
Issued: August 16, 2007

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 February 26, 2007 appellant filed a timely appeal of a decision of the Office of
Workers’ Compensation Programs dated May 5, 2006 denying his claim for compensation and a
January 27, 2007 decision denying his request for merit review. Pursuant to 20 C.F.R
§§ 501.2(c) and 501.3 the Board has jurisdiction over the merits of this claim.
ISSUES
The issues are: (1) whether appellant met his burden of proof in establishing that he
sustained an injury in the performance of duty on February 10, 2006, as alleged; and (2) whether
the Office properly denied his request for reconsideration.
FACTUAL HISTORY
On February 13, 2006 appellant, then a 48-year-old lead sales and service associate, filed
a traumatic injury claim alleging that he fell on February 10, 2006 while standing up from his
chair. His right foot got tangled between the desk and the base of the chair causing appellant to

lose his balance. Appellant fell on his right side and hit the edge of his desk with his shoulder
and neck.
By letter dated February 17, 2006, the employing establishment controverted the claim.
Appellant’s manager stated that the incident could not have occurred as alleged, as upon
observations of other employees doing appellant’s job, almost every employee pulls back the
chair to stand up and the others put their hands on the desk before standing. She noted that there
was plenty of space in the office to move the chairs around when standing and that there was no
possible opportunity to get tangled and fall from one’s feet without extending arms for support.
The manager noted that appellant had been under medication for a medical condition that was
not work related and that he told her the day before that all he wanted was to file for disability
retirement and take care of his health. She noted that appellant’s supervisor had a nearby Office
and did not hear any noise and that appellant never told his supervisor of falling. Appellant’s
supervisor stated that appellant did not report the accident to her, rather she learned of it when he
was talking to another employee and that, when he approached appellant, he reported the
accident.
By letters dated February 28 and April 5, 2006, the Office requested that appellant submit
further information, including statements from persons who witnessed the injury and a detailed
medical report. No new evidence was received.
By decision dated May 5, 2006, the Office denied appellant’s claim because the factual
evidence was not sufficient to establish that the incident occurred as alleged. The Office also
noted that no medical evidence existed to show that appellant sustained an injury in connection
with the alleged work incident.
By letter dated October 12, 2006, appellant requested reconsideration and submitted
further information. He submitted a February 10, 2006 routing slip on which he indicated that,
while he was working in his office, he fell on his right side and hit the border of his desk with his
right shoulder and neck. Appellant noted that his feet got tangled in the chair.
Appellant also submitted a statement that he filed for disability retirement, indicating that
he has been disabled since October 2005 due to muscle pain in neck, shoulders, chest, back of
thigh, legs, joints, ankles toes and hands. He noted that he suffered from fibromyalgia, major
depression and nerve problems. Appellant indicated that he had requested a reasonable
accommodation from his employer. The record also contains an April 4, 2006 determination that
the employing establishment denied appellant’s request for an accommodation as it found that
his condition imposed limitations so severe that they could not be accommodated.
In a medical report dated February 15, 2006, Dr. Luis E. Faura Clavell, a rheumatologist,
conducted an electromyography. In a February 15, 2006 duty limitation form, the employing
establishment stated that appellant alleged that he lost his balance and hurt his shoulder and neck.
In the physician’s portion of the form, Dr. Clavell indicated that the history given to him by
appellant corresponded with this history. He also noted painful and limited range of motion.
Dr. Clavell diagnosed trauma to appellant’s right shoulder and neck as a result of the injury. In a
note dated February 28, 2006, Dr. Clavell indicated that appellant was diagnosed with severe
cervical and lumbar sprain with radiculitis and was to remain on strict bed rest. In a note dated

2

September 10, 2006, Dr. Clavell indicated that appellant had been diagnosed with fibromyalgia
and myositis. In a medical report dated October 2, 2006, Dr. Clavell noted that he first evaluated
appellant on April 20, 2005. He noted appellant’s current conditions as fibromyalgia, L5-S1 disc
protrusion small central producing mild impression upon the thecal sac, L3 and L5
radiculopathy, bilateral; C5 and C6 radiculopathy, bilateral; severe anxiety -- depression;
osteoarthritis changes thoracic and lumbar vertebral, mild facet -- joint vertebra hypertrophy at
L4-5 and L5-S1; and anterior osteopathic changes osteophytes C4, C5 and C6 left neural
foramen narrowing.
Appellant also submitted magnetic resonance imaging (MRI) scan results from May 17,
2006 and nerve conduction velocity studies dated February 15, 2006. The record also contains a
decision by the Department of Veterans Affairs noting that appellant suffered from servicerelated lumbar myositis and peritendinitis in his left shoulder.
By decision dated January 27, 2007, the Office found that the evidence was immaterial in
nature and not sufficient to warrant review of the prior decision.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including the fact that an
individual is an employee of the United States within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained
in the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury. These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated
upon a traumatic injury or an occupational disease.2
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place and in the manner alleged.3 Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.4
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to a specific condition of employment.5 An award of
1

5 U.S.C. § 8122(a).

2

Id.

3

John J. Carlone, 41 ECAB 345 (1989).

4

Shirley A. Temple, 48 ECAB 404 (1997).

5

Katherine J. Friday, 47 ECAB 591, 591 (1996).

3

compensation may not be based on surmise, conjecture, speculation or appellant’s belief of
causal relationship.6 The mere manifestation of a condition during a period of employment does
not raise an inference of causal relationship between the condition and the employment.7 Neither
the fact that a condition became apparent during a period of employment nor appellant’s belief
that the employment caused or aggravated his condition is sufficient to establish causal
relationship.
ANALYSIS -- ISSUE 1
In its decision dated May 5, 2006, the Office denied appellant’s claim for the reason that
it had not received a clear statement from him with regard to the basis of his claim. Appellant
had indicated that, when he stood up he got his right foot tangled between the desk and the base
of his chair causing him to lose his balance and fall hitting the edge of his desk with his shoulder
and neck. However, the employing establishment controverted the claim. Appellant’s manager
argued that it was not possible for appellant to have injured himself in this manner. Appellant’s
manager indicated that, upon observing appellant’s colleagues at work, the incident could not
have occurred as alleged. His manager also noted that he had complained about a nonworkrelated medical condition the day before the accident, told her that he was not feeling well and
was going to file for disability retirement. Finally, the manager noted that a supervisor in a
nearby office did not hear any noise that date and that appellant never told him that he fell, but
noted that he heard it from another employee.
The Office denied appellant’s claim because he failed to establish that the incident
occurred on the date, at the time and/in the manner he alleged. The Board finds that appellant
failed to establish that the incident occurred as alleged. The employing establishment noted that
a supervisor sitting near appellant on that date did not hear the fall. The supervisor also noted
that appellant did not promptly notify his supervisor. Furthermore, the employing establishment
noted that appellant had talked about filing for disability the prior day and also argued that the
incident could not have occurred as alleged.
Appellant was given the opportunity to respond by submitting further information in
support of his claim, but he declined to do so in a timely manner. Although an injury does not
have to be confirmed by eyewitnesses in order to establish that an employee sustained an injury
in the performance of duty, the employee’s statements must be consistent with the surrounding
facts and circumstances and his or her subsequent course of action.8 Such circumstances as lack
of confirmation of the 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 statements in determining whether a prima facie case has been established.9
Appellant, despite being given an opportunity, submitted no further documentation in support of
his allegation as to how the alleged incident occurred. Despite his close proximity to other
6

John D. Jackson, 55 ECAB 465 (2004); William Nimitz, Jr., 30 ECAB 567 (1979).

7

Nicolelette R. Kelstrom, 54 ECAB 570 (2003).

8

See Gene A. McCracken, 46 ECAB 593 (1995).

9

Linda S. Christian, 46 ECAB 598 (1995).

4

employees, there are no statements in support of his claim. This, in combination with appellant’s
failure to immediately notify his supervisor, the fact that he had been talking about disability
retirement the day before, the questionable nature of how he sustained his injury, the fact that
appellant submitted no medical evidence indicating that he received treatment and the fact that
appellant did not respond to the Office’s request for further information are sufficient to cast
doubt on the validity of his claim. Accordingly, the Board finds that the Office properly denied
appellant’s claim for failure to establish that the incident occurred as alleged.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the Act,
the Office’s regulations provide that the application for reconsideration, including all supporting
documents, must set forth arguments and contain evidence that either: (1) shows that the Office
erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument
not previous considered by the Office; or (3) constitutes relevant and pertinent new evidence not
previous considered by the Office.10
ANALYSIS -- ISSUE 2
Appellant’s request for reconsideration neither alleged nor demonstrated that the Office
erroneously applied or interpreted a specific point of law. However, he did submit relevant and
pertinent new evidence not previously considered by the Office. With regard to whether
appellant established that the incident occurred, he submitted a new statement dated February 10,
2004 that was not previously in the record. Appellant reiterates that he fell onto his right side
and hit the border of his desk with his right shoulder and then with his neck. This is new
evidence relevant to the issue of whether the incident occurred. Furthermore, appellant has
submitted new medical evidence. Although most of this evidence does not address the issue of
whether the alleged incident resulted in a medical condition, the record does contain a
February 15, 2006 duty limitation report wherein Dr. Clavell indicated that the history of
appellant losing his balance and hurting his right shoulder and neck in a work-related incident on
February 10, 2006 was consistent with what appellant told him. He also noted that appellant
sustained a trauma to his right shoulder and right neck as a result thereof. This is medical
information that should be considered with regard to whether appellant sustained an injury as a
result of the alleged employment incident.
In denying appellant’s request for reconsideration, the employing establishment noted
that this evidence was irrelevant or immaterial to the issue. However, the concerns of the Office
with regard to this evidence is a matter that goes to the weight that should be accorded this
evidence. The evidence is relevant or material to the issue of whether a fact of injury occurred.
Accordingly, as appellant has submitted pertinent new relevant and material evidence
with his request for reconsideration, the Office must review his claim on the merits. Therefore,
the Office improperly denied appellant’s request for reconsideration.

10

20 C.F.R. § 10.606(b)(2)(i-iii).

5

CONCLUSION
In the May 5, 2006 decision, the Board finds that the Office properly found that appellant
failed to meet his burden of proof in establishing that he sustained an injury in the performance
of duty on February 10, 2006, as alleged. However, the Board finds that the Office did not
properly deny appellant’s request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the January 27, 2007 decision of the Office of
Workers’ Compensation Programs denying reconsideration is reversed and the case remanded
for further consideration consistent with this opinion; however, the Board affirms the May 5,
2006 decision.
Issued: August 16, 2007
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

6