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

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

Docket No. 16-1543
Issued: March 13, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 27, 2016 appellant, through counsel, filed a timely appeal from a May 12, 2016
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has established that her claim should be expanded
to include the additional conditions of left tarsal tunnel syndrome, posterior tibial neuropathy,
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.

left ankle derangement, deltoid ligament partial tear, anterior talofibular (ATF) ligament partial
tear, calcaneofibular (CFL) partial tear, and nondisplaced left ankle fracture; and (2) whether
appellant met her burden of proof to establish that she was disabled from work for the period
April 10 to August 7, 2015 as a result of the accepted February 23, 2015 employment injury.
FACTUAL HISTORY
On February 26, 2015 appellant, then a 41-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on February 23, 2015 she twisted her ankle while descending
stairs at work. She stopped work on February 24, 2015 and returned on February 26, 2015.
Appellant was initially treated in the emergency room on February 24, 2015 by Dr. Attia
Hussain, an osteopathic physician specializing in emergency medicine. Dr. Hussain described
that appellant complained of foot pain after rolling her ankle when she fell down some steps the
previous day at work. She reviewed appellant’s history and provided findings on physical
examination. Dr. Hussain diagnosed left ankle sprain and excused appellant from work for one
day.
In a February 24, 2015 diagnostic imaging report, Dr. Michael Tartell, a Board-certified
diagnostic radiologist, noted hypertrophic changes involving the medial malleolus and calcaneal
spur. He reported no acute fracture or dislocation.
Appellant began to receive treatment from Dr. Joseph Gregorace, Board-certified in
physical medicine and rehabilitation. In a March 2, 2015 report, Dr. Gregorace related her
complaints of medial left ankle pain following a February 23, 2015 work-related accident. He
noted that appellant twisted her ankle while walking down the stairs. Dr. Gregorace reviewed
her history and conducted an examination. He observed tenderness along the medial aspect of
appellant’s left ankle. Tinel’s test and anterior drawer test were negative. Dr. Gregorace
provided range of motion findings. He diagnosed left ankle sprain and advised that appellant not
return to work. Dr. Gregorace opined that “if history is correct then there is a causal relationship
between the left ankle injury and the work-related accident from February 23, 2015.”
By letter dated March 6, 2015, OWCP advised appellant that the evidence submitted was
insufficient to establish her claim. It requested additional factual evidence to demonstrate that
the February 23, 2015 incident occurred as alleged and medical evidence to establish that she
sustained a diagnosed medical condition as a result of the alleged employment incident.
Appellant was afforded 30 days to submit the requested evidence.
Dr. Gregorace continued to treat appellant. In reports dated March 16 to April 14, 2015,
he related that she continued to complain of persistent medial left ankle pain. Upon examination,
Dr. Gregorace found continued tenderness along the medial aspect of appellant’s left ankle. In a
March 31, 2015 electromyography (EMG) and nerve conduction velocity (NCV) examination
report, he reported findings consistent with left ankle medial plantar neuropathy and left lower
peripheral nerve injury. In his April 14, 2015 report Dr. Gregorace diagnosed left ankle
derangement with deltoid ligament partial tear, ATF ligament partial tear, and CFL partial tear,
left posterior tibial neuropathy, and nondisplaced left ankle fracture. He advised that appellant
was totally disabled.

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Appellant underwent a magnetic resonance imaging (MRI) scan of the left ankle by
Dr. Lisa A. Corrente, a Board-certified diagnostic radiologist. In a March 23, 2015 scan report,
she observed a high-grade partial-thickness superficial deltoid ligament tear, several acute
avulsion fractures fragments at medial malleolus, nondisplaced acute medial malleolar fracture
extending into the distal tibia, partial-thickness ATF and CFL ligament tears, moderate tibiotalar
joint effusion, plantar calcaneal spur, pes planus deformity, and enthesopathy.
OWCP initially denied appellant’s claim in a decision dated April 15, 2015 because the
factual evidence failed to establish that the February 23, 2015 incident occurred as alleged. It
also determined that the medical evidence had not demonstrated a diagnosed condition as a result
of the employment incident.
On June 16, 2015 OWCP received appellant’s request for reconsideration.
OWCP accepted appellant’s claim for left ankle sprain in a decision dated July 16, 2015.
In a separate decision, it denied her claim for the medical conditions of left tarsal tunnel
syndrome, posterior tibial neuropathy, left ankle derangement, deltoid ligament partial tear, ATF
ligament partial tear, CFL partial tear, and nondisplaced left ankle fracture. OWCP found that
the medical evidence of record failed to establish how the accepted February 23, 2015
employment injury directly caused or contributed to these medical conditions. It determined that
the medical reports of Dr. Gregorace only provided a generalized opinion on causal relationship
and did not provide sound medical rationale explaining how the employment incident caused or
aggravated these additional medical conditions.
Appellant continued to receive medical treatment from Dr. Gregorace. In a July 9, 2015
report, Dr. Gregorace related her continued complaints of left ankle pain. Upon examination, he
observed tenderness along the medial and lateral aspect of the left ankle and painful active range
of motion. Tinel’s test was positive. Dr. Gregorace diagnosed left tarsal tunnel syndrome,
posterior tibial neuropathy, left ankle derangement, deltoid ligament partial tear, ATF ligament
partial tear, CFL partial tear, and nondisplaced left ankle fracture. He advised that appellant was
totally disabled. Dr. Gregorace recommended that she continue to wear the ankle air cast and
boot and continue with her home exercise program.
On August 17, 2015 appellant filed a claim for wage-loss compensation (Form CA-7)
alleging that she was unable to work for the period April 10 to August 7, 2015 as a result of her
accepted injury. On the back of the claim form, the employing establishment indicated that she
stopped work on February 24, 2015 and received continuation of pay (COP) until April 9, 2015.
In an August 18, 2015 report, Dr. Steven M. Yager, a podiatrist, related appellant’s
complaints of pain into her left foot and ankle after being involved in a work injury on
February 23, 2015. He noted that Dr. Gregorace was currently treating her, but she continued to
experience pain in her left ankle and felt it “lock” when she walked. Dr. Yager reviewed
appellant’s history and conducted an examination of her left foot and ankle. He observed
significant positive Tinel’s sign with percussion to the tibial and posterior tibial nerve and
explained that this was usually indicative of a lower lumbar radicular pain. Dr. Yager reported
that range of motion of the left ankle was severely guarded and limited. He also noted that
appellant experienced tremendous pain with attempted anterior drawer sign. Dr. Yager related

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that an MRI scan showed a high-grade tear of the deltoid ligament, partial tear of the ATF
ligament and CFL ligament, and nondisplaced fractures of the medial malleolus. He diagnosed
left internal ankle derangement and recommended lower lumbar evaluation of appellant.
Dr. Gregorace provided a duty status report (Form CA-17) and attending physician’s
report (Form CA-20) dated August 25, 2015. He indicated that appellant worked as a city carrier
assistant and had sustained a left ankle injury. The provider diagnosed ligament tears, left post
tibial neuropathy, and left tarsal tunnel syndrome. He authorized appellant to return to work
with restrictions. Appellant also resubmitted Dr. Gregorace’s July 9, 2015 report.
By letter dated August 28, 2015, OWCP advised appellant that the evidence was
insufficient to establish her wage-loss compensation claim. It requested that she submit medical
evidence to support continuing disability due to the accepted left ankle sprain condition.
Appellant was afforded 30 days to submit the requested information.
In a decision dated October 6, 2015, OWCP denied appellant’s claim for wage-loss
compensation finding that the medical evidence failed to establish that she was unable to work
during the period April 10 to August 7, 2015 as a result of her accepted left ankle sprain. It
noted that the medical reports by Dr. Yager and Dr. Gregorace provided diagnoses of left ankle
internal derangement, ATF ligament partial tear, CFL ligament partial tear, left tarsal tunnel
syndrome, left ankle fracture, and left ankle derangement, which were not accepted conditions
under appellant’s claim. OWCP found that the medical evidence did not demonstrate that
appellant’s inability to work from April 10 through August 7, 2015 was a result of her workrelated medical condition.
In a report dated October 8, 2015, Dr. Gregorace explained that the etiology of
appellant’s left ankle derangement including ligament tears, as well as traction nerve injury to
the left posterior tibial nerve (tarsal tunnel syndrome), was the twisting mechanism of her injury.
He related that she twisted her left ankle when going down the stairs. Dr. Gregorace opined:
“this mechanism of injury is the etiology of this patient’s left ankle derangement inclusive of
ligament tears, peripheral neuropathy (posterior tibial neuropathy) and fracture of the ankle.” He
reported that appellant was totally disabled “due to the ambulation dysfunction secondary to the
left ankle derangement sustained as a result of the accident from February 23, 2015” beginning
February 23, 2015 until the present.
Dr. Gregorace continued to treat appellant. In reports dated October 13, 2015 to
January 14, 2016, he related her complaints of left ankle pain along the medial and lateral aspects
with tingling. Upon examination of appellant’s left ankle, Dr. Gregorace observed tenderness
along the left ankle along the medial and lateral aspects. He noted that Tinel’s test was positive
at the left tarsal tunnel. Dr. Gregorace reported range of motion findings. He diagnosed left
ankle derangement with a partial tear of the ATF ligament and partial tear of the deltoid CFL
ligament with left tarsal tunnel syndrome. In a work capacity evaluation form, Dr. Gregorace
related that appellant was totally disabled and was not able to work. He explained that appellant
sustained three torn ligaments and a nerve injury to her left ankle.
In a November 3, 2015 follow-up report, Dr. Yager related appellant’s complaints of
continued pain in the left foot and ankle. He noted a date of injury of February 23, 2015 and

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diagnosis of left ankle sprain and internal derangement. Dr. Yager checked a box marked “yes”
that the employment incident was the competent medical cause of her injury.
On February 12, 2016 OWCP received appellant’s request, through counsel, for
reconsideration. Counsel noted that he was submitting an October 6, 2015 medical note from
Dr. Gregorace, which had not previously been submitted. No report of that date appears in the
record.
On April 19, 2016 appellant, through counsel, requested that appellant’s claim be
expanded to include left ankle derangement with partial tear of ATF ligament, partial tear of the
deltoid ligament, and partial tear of the CF ligament with left tarsal tunnel syndrome.
In a decision dated May 12, 2016, OWCP denied modification of the July 16 and
October 5, 2015 decisions. It found that the new medical evidence failed to contain a complete
explanation of how the accepted February 23, 2015 employment injury caused or contributed to
the diagnosed conditions of left tarsal tunnel syndrome, posterior tibial neuropathy, left ankle
derangement, deltoid ligament partial tear, ATF ligament partial tear, CFL partial tear, or left
ankle fracture. OWCP further determined that, because the medical evidence attributed
appellant’s inability to work to these additional conditions, and not her accepted left ankle sprain,
she had failed to establish her claim for wage-loss compensation for the period April 10 to
August 7, 2015. It explained that she had not provided well-rationalized medical evidence to
establish that these additional conditions or disability were causally related to the February 23,
2015 employment injury.
LEGAL PRECEDENT -- ISSUE 1
Where an employee claims that, a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.3 To establish a causal relationship between the
condition as well as any attendant disability claimed and the employment injury, an employee
must submit rationalized medical evidence based on a complete medical and factual background
supporting such a causal relationship.4 Causal relationship is a medical issue and the medical
evidence required to establish a causal relationship is rationalized medical evidence.5 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.6 Neither the mere fact that a disease or
condition manifests itself during a period of employment, nor the belief that the disease or

3

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

4

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

5

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

6

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

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condition was caused or aggravated by employment factors or incidents is sufficient to establish
causal relationship.7
ANALYSIS -- ISSUE 1
On February 26, 2015 appellant filed a traumatic injury claim alleging that on
February 23, 2015 she sustained a left ankle injury in the performance of duty. By decision
dated July 16, 2015, OWCP accepted her claim for left ankle sprain. In a separate decision, it
also denied appellant’s claim for the conditions of left tarsal tunnel syndrome, posterior tibial
neuropathy, left ankle derangement, deltoid ligament partial tear, ATF ligament partial tear, CFL
partial tear, and nondisplaced left ankle fracture because the medical evidence of record failed to
establish that the February 23, 2015 employment incident caused or contributed to these
additional medical conditions. The Board finds that she has not met her burden of proof to
establish that these claimed conditions were causally related to the February 23, 2015
employment injury.
Appellant was initially treated in the emergency room by Dr. Hussain. In hospital
records dated February 24, 2015, she noted that appellant rolled her ankle when she fell down
some steps at work yesterday. Dr. Hussain provided examination findings and diagnosed left
ankle sprain. The Board notes that the only medical diagnosis provided was of left ankle sprain.
Accordingly, the hospital records fail to establish that appellant sustained additional medical
conditions as a result of the accepted February 23, 2015 employment injury. Similarly, the
February 24, 2015 diagnostic report by Dr. Tartell also fails to establish any additional medical
conditions as he did not provide any additional medical diagnosis other than left ankle sprain.
Dr. Gregorace also treated appellant and provided various reports dated March 2, 2015 to
January 14, 2016. He described that on February 23, 2015 she was involved in a work-related
accident when she twisted her left ankle while walking down the stairs. Upon examination,
Dr. Gregorace observed continued tenderness along the medial aspect of appellant’s left ankle
and positive Tinel’s test. In the initial March 2, 2015 evaluation, he diagnosed left ankle sprain.
On March 31, 2015 Dr. Gregorace conducted an EMG/NCV evaluation and reported findings
consistent with left ankle medial plantar neuropathy and left lower peripheral nerve injury. In an
April 14, 2015 report, he diagnosed left ankle derangement with deltoid ligament partial tear,
ATF ligament partial tear, and CFL partial tear; left posterior tibial neuropathy; and nondisplaced
left ankle fracture. Dr. Gregorace later opined in an October 8, 2015 report that the etiology of
appellant’s left ankle derangement, including ligament tears and tarsal tunnel syndrome, was the
twisting mechanism of her injury when she twisted her left ankle when going down the stairs.
He described that “this mechanism of injury is the etiology of this patient’s ankle derangement
inclusive of ligament tears, peripheral neuropathy (posterior tibial neuropathy) and fracture of
the ankle.”
Although Dr. Gregorace reports contain an accurate description of the February 23, 2015
employment injury and an affirmative opinion on the causal relationship, they do not contain
sufficient explanation, based on medical rationale, of how the twisting injury caused or
7

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

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contributed to her additional medical conditions. He did not explain how twisting an ankle while
going down the stairs on February 23, 2015 caused or contributed to additional medical
conditions, other than the accepted left ankle sprain condition.8 Dr. Gregorace did not describe
the process by which twisting an ankle would have caused or aggravated these additional left
ankle conditions.9 The Board notes that the need for rationalized medical explanation is
important in this case since he did not diagnose the additional left ankle conditions until
April 14, 2015, almost two months after the February 23, 2015 injury.10 Moreover, in
appellant’s initial examinations by Dr. Hussain and Dr. Gregorace she was diagnosed with only a
left ankle sprain. The contemporaneous medical evidence did not provide findings of additional
diagnoses.11 For these reasons, the Board finds that Dr. Gregorace’s reports are of diminished
probative value to establish that appellant sustained additional diagnoses of her left ankle as a
result of the accepted February 23, 2015 employment injury.
Appellant was also treated by Dr. Yager. In reports dated August 18 and November 3,
2015, Dr. Yager noted that she was involved in a work injury on February 23, 2015. He
reviewed appellant’s history and related that an MRI scan showed various ligament tears and
nondisplaced fractures. Dr. Yager conducted an examination and diagnosed left internal ankle
derangement. He, however, did not provide any rationalized opinion regarding causal
relationship nor did he opine that appellant’s left ankle derangement was causally related to the
described February 23, 2015 employment injury. In his November 3, 2015 report, Dr. Yager
indicated by checking a box marked “yes” that her employment injury was the competent cause
of her medical conditions. However, the Board has held that a report containing an affirmative
checkmark, without supporting rationale, is of limited probative value, and insufficient to
establish the claim.12
Likewise, Dr. Corrente’s March 23, 2015 MRI scan report is insufficient to establish any
additional medical conditions as she did not provide an opinion on the cause of appellant’s left
ankle conditions. The Board has found that medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of
causal relationship.13
On appeal, counsel asserts that the decision was contrary to fact and law. Appellant,
however, has not submitted a rationalized medical report showing that she sustained workrelated conditions on February 23, 2015 other than the already accepted left ankle sprain
condition. The mere fact that a condition manifests itself or is worsened during an employment
period does not raise an inference of causal relationship between the two. Such a relationship
must be shown by rationalized medical evidence of a causal relation based upon a specific and
8

See B.T., Docket No. 13-0138 (issued March 20, 2013).

9

See Y.M., Docket No. 15-1196 (issued August 25, 2015).

10

See M.E., Docket No. 14-1064 (issued September 29, 2014).

11

See E.C., Docket No. 08-0259 (issued May 7, 2008).

12

See T.C., Docket No. 16-0586 (issued August 9, 2016).

13

R.E., Docket No. 10-0679 (issued November 16, 2010); K.W., 59 ECAB 271 (2007).

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accurate history of employment conditions which are alleged to have caused or exacerbated a
disabling condition.14 The Board finds that appellant has submitted insufficient medical
evidence to establish additional work-related left ankle conditions causally related to the
accepted February 23, 2015 employment injury.
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
An employee seeking benefits under FECA has the burden of proof to establish that any
disability for which compensation is claimed is causally related to the employment injury.15
Whether a particular injury causes an employee to be disabled for employment and the duration
of that disability are medical issues which must be proved by a preponderance of the reliable,
probative, and substantial medical evidence.16 Findings on examination are generally needed to
support a physician’s opinion that an employee is disabled for work.17 The Board will not
require OWCP to pay compensation for disability in the absence of any medical evidence
addressing the specific dates of disability for which compensation is claimed. To do so would
essentially allow employees to self-certify their disability and entitlement to compensation.18
To establish a causal relationship between the disability claimed and the employment
injury, an employee must submit rationalized medical evidence, based on a complete factual and
medical background, supporting such a causal relationship.19 Causal relationship is a medical
issue and the medical evidence required to establish a causal relationship is rationalized medical
evidence.20 The opinion of the physician must be one of reasonable medical certainty, and must
be supported by medical rationale explaining the nature of the relationship.21
ANALYSIS -- ISSUE 2
OWCP accepted that appellant sustained a left ankle sprain as a result of a February 23,
2015 employment incident. Appellant stopped work and received COP until April 9, 2015. On
August 17, 2015 she filed a claim for wage-loss compensation for the period April 10 to
August 7, 2015. OWCP denied appellant’s claim because of insufficient medical evidence to
14

Patricia J. Bolleter, 40 ECAB 373 (1988).

15

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

16

Amelia S. Jefferson, 57 ECAB 183 (2005); William A. Archer, 55 ECAB 674 (2004).

17

Dean E. Pierce, 40 ECAB 1249 (1989).

18

Amelia S. Jefferson, supra note 16.

19

Kathryn E. DeMarsh, 56 ECAB 677 (2005).

20

Elizabeth Stanislaw, 49 ECAB 540 (1998).

21

Leslie C. Moore, 52 ECAB 132 (2000).

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establish that she was unable to work during the claimed period as a result of the February 23,
2015 employment injury. The Board finds that she has not met her burden of proof.
The medical evidence of record which addressed the claimed period of disability included
various medical reports by Dr. Gregorace. In reports dated April 14 to August 25, 2015, he
noted appellant’s continued complaints of persistent medial left ankle pain due to a February 23,
2015 work-related accident. Dr. Gregorace reviewed her history and provided findings on
examination. He diagnosed left ankle derangement with deltoid ligament partial tear, ATF
ligament partial tear, and CFL partial tear, left posterior tibial neuropathy, and nondisplaced left
ankle fracture. In various reports, Dr. Gregorace noted that appellant was totally disabled. The
Board notes that he provided a general opinion that she was unable to work. Dr. Gregorace did
not, however, discuss any objective findings to support appellant’s inability to work, nor did he
explain why she was unable to work as a result of her accepted left ankle sprain injury.22
Because he did not provide any medical rationale for his conclusion that she was unable to work
due to her February 23, 2015 employment injury, his reports are of diminished probative value
and are insufficient to establish her disability claim.23
In an October 8, 2015 narrative report, Dr. Gregorace further opined that appellant was
totally disabled beginning February 23, 2015 until the present due to the “ambulation
dysfunction secondary to the left ankle derangement sustained as a result of the accident from
February 23, 2015.” He, however, attributed her inability to work to left ankle derangement,
which is not an accepted condition by OWCP. As appellant has not established that she
sustained this additional condition as a result of the accepted February 23, 2015 employment
injury she has not met her burden of proof to establish her claim for wage-loss compensation.24
Appellant was also treated by Dr. Yager. In reports dated August 18 and November 3,
2015, he noted her complaints of left foot and ankle pain and reviewed her treatment with
Dr. Gregorace. Dr. Yager conducted an examination and diagnosed left ankle sprain and internal
ankle derangement. He did not, however, offer an opinion on appellant’s inability to work. The
Board has found that medical evidence which does not offer any opinion regarding the cause of
disability is of limited probative value on that issue.25 Because Dr. Yager failed to address the
issue of disability for the period April 10 to August 7, 2015, his reports are insufficient to
establish appellant’s disability claim.
Other medical reports submitted by appellant, including diagnostic reports, are of limited
probative value as they do not address whether her left ankle sprain injury caused disability for
the period April 10 to August 7, 2015.

22

See M.M., Docket No. 16-0541 (issued April 27, 2016).

23

S.B., Docket No. 13-1162 (issued December 12, 2013).

24

See Jaja K. Asaramo, 55 ECAB 200 (2004) (the Board found that where an employee claims that a condition
not accepted or approved by OWCP was due to an employment injury, he or she bears the burden of proof to
establish that the condition is causally related to the employment injury.
25

J.H., Docket No. 15-1877 (issued May 3, 2016); Michael E. Smith, 50 ECAB 313 (1999).

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On appeal, counsel alleges that OWCP’s decision was contrary to fact and law and that
the medical evidence was not properly considered. The Board has reviewed the medical
evidence and has found, as previously discussed above, that appellant has submitted insufficient
medical evidence to establish disability for the period April 10 to August 7, 2015 as a result of
her accepted February 23, 2015 employment injury.
Appellant may submit new evidence or argument as part of 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. § 10.606 through §10.607.
CONCLUSION
The Board finds that appellant has not established that her claim should be expanded to
include left tarsal tunnel syndrome, posterior tibial neuropathy, left ankle derangement, deltoid
ligament partial tear, ATF ligament partial tear, CFL partial tear, and nondisplaced left ankle
fracture. The Board further finds that she has not met her burden of proof to establish that she
was disabled from work for the period April 10 to August 7, 2015 as a result of the February 23,
2015 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the May 12, 2016 merit decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 13, 2017
Washington, DC

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

Colleen Duffy Kiko, 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
__________________________________________
C.L., Appellant
and
U.S POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Akron, OH,
Employer
__________________________________________

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

Docket No. 12-1483
Issued: January 9, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 28, 2012 appellant, through her attorney, filed a timely appeal from a May 23,
2012 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 established entitlement to wage-loss compensation from
August 6 to October 23, 2011.
FACTUAL HISTORY
On January 11, 2010 appellant, then a 56-year-old clerk, filed a traumatic injury claim
(Form CA-1) for her left shoulder after she lifted a tray of mail on January 5, 2010. She did not
1

5 U.S.C. § 8101 et seq.

stop working. In a letter dated April 15, 2011, appellant stated that her left shoulder hurt in
December 2010 and lifting caused pain. In a report dated March 17, 2011, Dr. David Fantelli, a
Board-certified internist, listed a history and noted left shoulder pain. He diagnosed
acromioclavicular (AC) sprain/strain.
By letter dated May 9, 2011, OWCP accepted left AC sprain. A magnetic resonance
imaging (MRI) scan report dated June 10, 2011 diagnosed a complex rotator cuff tear.
In a report dated July 14, 2011, Dr. Steven Jackson, an osteopath, provided a history of
injury and results on examination. Appellant had significant pain with activity. Dr. Jackson
diagnosed AC joint arthritis, rotator cuff syndrome, MRI scan evidence for partial thickness
articular surface tears of the supraspinatus and infraspinatus as well as subscapularis rotator cuff
musculature of her left shoulder and left shoulder AC joint sprain. He discussed conservative
treatment with appellant, including corticosteroid injections and physical therapy.
By report dated August 5, 2011, Dr. Jackson stated that appellant’s “physical
exam[ination] remains unchanged from her previous office visit.” He reported that she stated
that she could not perform light-duty work, and he had previously recommended that she be
restricted to no overhead work and 20 pounds lifting. Dr. Jackson diagnosed left shoulder
impingement syndrome, AC joint osteoarthritis, rotator cuff tear and AC joint sprain.
The record contains two work status notes from Dr. Jackson dated August 5, 2011.
Dr. Jackson advised that appellant be off work until October 10, 2011, unless there was lightduty work available. He stated that she had a five-pound lifting restriction with no overhead
work. On September 8, 2011 Dr. Jackson kept appellant off work until October 10, 2011.
Appellant stopped work and submitted claims for compensation (Form CA-7) from
August 6 through October 23, 2011. In a letter dated October 14, 2011, the employing
establishment stated that it did not send her home because no work was available. On October 5,
2011 Dr. Jackson stated that appellant had elected to undergo left shoulder surgery on
October 24, 2011.
By decision dated November 2, 2011, OWCP denied compensation for wage loss from
August 6 to October 23, 2011. It found that the medical evidence was insufficient to establish
employment-related disability. On November 2, 2011 OWCP accepted appellant’s claim for left
shoulder osteoarthritis, left shoulder joint stiffness, left bursae and tendon disorder and left
rotator cuff rupture. Appellant received compensation for wage loss as of October 24, 2011.
Appellant requested a hearing before an OWCP hearing representative, which was held
on March 16, 2012. At the hearing, she asserted that there was no limited duty available for the
period claimed. Appellant submitted additional medical evidence relevant to left shoulder
surgery to be performed on April 9, 2012. In a report dated March 14, 2012, Dr. Jackson
reviewed her medical treatment. He noted that on August 5, 2012 appellant received a
corticosteroid injection. Dr. Jackson added that her “work release was updated from no overhead
lifting and no lifting of weights greater than 20 pounds to her left upper extremity to completely
off work until [September 19, 2011] secondary to unavailability of a return to work with
restrictions for the patient.”

2

By decision dated May 23, 2012, OWCP’s hearing representative affirmed the
November 2, 2011 decision. The hearing representative found that the medical evidence was
insufficient to establish the claim.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.3 The term disability is
defined as the incapacity because of an employment injury to earn the wages the employee was
receiving at the time of the injury, i.e., a physical impairment resulting in loss of wage-earning
capacity.4
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative and substantial medical evidence.5 To establish a causal relationship between
the disability claimed and the employment injury, an employee must submit rationalized medical
evidence, based on a complete factual and medical background, supporting such a causal
relationship.6 The opinion of the physician must be one of reasonable medical certainty and
must be supported by medical rationale explaining the nature of the relationship.7
ANALYSIS
In the present case, appellant underwent left shoulder surgery on October 24, 2011 and
OWCP has paid compensation commencing on the date of surgery. The issue is the period from
August 6 to October 23, 2011, prior to the date of surgery. Appellant had continued to work
until August 2, 2011, when she used sick leave and then claimed compensation from
August 6, 2011. It appears from the record that she was working a modified-duty position when
she stopped working. Dr. Jackson stated that he had placed restrictions of no overhead work and
a 20-pound lifting restriction prior to his August 5, 2011 report, although the July 14, 2011 report
of record provided no specific work restrictions. OWCP’s hearing representative stated that
appellant had been “accommodated prior to her work stoppage.” With respect to light-duty
work, there was no evidence that light duty was withdrawn on or about August 6, 2011. The
employing establishment stated that appellant was not sent home due to a lack of work, but had
claimed total disability.

2

Id. at §§ 8101-8193.

3

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

4

20 C.F.R. § 10.5(f); see e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).
5

See Fereidoon Kharabi, 52 ECAB 291 (2001).

6

Kathryn E. DeMarsh, 56 ECAB 677 (2005).

7

Leslie C. Moore, 52 ECAB 132 (2000).

3

Dr. Jackson stated in his August 5, 2011 report that he was placing appellant off work
until September 19, 2011. In a note dated September 8, 2011, he indicated that she should be off
work until October 10, 2011. The record also contains a note stating that appellant could work
through October 10, 2011 with restrictions of no overhead lifting and a five-pound lifting
restriction. It is, as noted above, appellant’s burden to establish the period of disability. The
medical evidence of record lacks any supporting medical rationale as to the period of disability.
Dr. Jackson stated on August 5, 2011 that appellant’s examination was unchanged from his
previous examination on July 14, 2011. He does not explain why her employment-related
condition now prevented her from performing her current job duties. Dr. Jackson reported that
appellant had stated that she could not perform light-duty work, which is of little probative value.
A claimant’s own statement as to perceived disability does not establish entitlement to
compensation.8 Dr. Jackson must support an opinion as to disability and he does not provide a
rationalized medical opinion on the issue.
In his March 14, 2012 report, Dr. Jackson stated that he changed appellant’s work status
from no overhead lifting and a 20-pound lifting restriction to total disability from August 6 to
September 19, 2011 due to “unavailability of a return to work with restrictions.” He does not
clearly explain his statement. Appellant asserted at the March 16, 2012 hearing that no lightduty work was available. However, there was no probative evidence of record that any existing
light-duty job was unavailable. The medical issue is whether the evidence establishes that there
was an employment-related condition causing disability for the current job. To the extent that
Dr. Jackson is asserting that there was a change in appellant’s employment-related work
restrictions on August 5, 2011, he again did not provide any medical rationale explaining the
basis for a change.
The September 8, 2011 note from Dr. Jackson does not provide any medical rationale
with respect to disability through October 10, 2011. There is no medical evidence discussing
disability for work from October 11 to 23, 2011. Based on a review of the medical evidence, the
Board finds that appellant has not established an employment-related disability from August 6 to
October 23, 2011.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established entitlement to wage-loss compensation
from August 6 to October 23, 2011.

8

See supra note 5.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 23, 2012 is affirmed.
Issued: January 9, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.L., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, ADMINISTRATION FOR
CHILDREN & FAMILIES, Washington, DC,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 16-1474
Issued: February 15, 2017

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
On July 11, 2016 appellant filed an appeal from a June 22, 2016 nonmerit decision of the
Office of Workers’ Compensation Programs (OWCP) which denied appellant’s request for
reconsideration, finding the evidence insufficient to warrant a merit review.
The request for reconsideration filed by appellant on April 22, 2016 consisted only of a
checkmark on a form. The record did, however, include medical evidence which OWCP had
received after its initial denial of the claim on May 6, 2015 and before the June 22, 2016
decision.
The Board has duly considered the matter and notes that section 8124(a) of the Federal
Employees’ Compensation Act1 (FECA) and section 10.126 of the implementing regulations2
require that final decisions of OWCP contain findings of fact and a statement of reasons. A
decision denying a claim for benefits should contain a correct description of the basis for the
denial in order that the parties in interest will have a clear understanding of the precise defect of
the claim and the kind of evidence which would overcome it.3 The Board notes that OWCP’s
1

5 U.S.C. § 8124(a).

2

20 C.F.R. § 10.126.

3

Patrick Michael Duffy, 43 ECAB 280 (1991).

June 22, 2016 decision stated: “We have reviewed your letter dated 04/19/2016 requesting
reconsideration of our decision dated 05/15/2015. Please refer to the information which
accompanied the original decision. To require the Office to reopen your case, you must clearly
identify the grounds upon which reconsideration is being requested. Also, you must either
submit relevant evidence not previously considered or present legal contentions not previously
considered. Because your letter neither raised substantive legal questions nor included new and
relevant evidence, it is insufficient to warrant a review of our prior decision at this time. Any
future request for reconsideration must be made within one year from the prior decision and must
be accompanied by statements or evidence as described above.”
In its decision of June 22, 2016, OWCP failed to reference or review the new medical
evidence which had been submitted by appellant. It failed to conform to its established
procedure, provisions of FECA and its implementing regulations, and Board precedent, all of
which require that a final adverse decision of OWCP contain findings of fact and a clear
explanation of the deficiencies of the claim.4 Because OWCP’s June 22, 2016 decision does not
contain a clear description of the basis for the denial of the claim or the findings of fact reached
therein, the Board finds that OWCP has not fulfilled its responsibility under section 8124 of
FECA.
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 22, 2016 is set aside and the case remanded for a de novo
decision with appropriate findings of fact and conclusions of law.
Issued: February 15, 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
4

Id.; see 5 U.S.C. § 8124(a); 20 C.F.R. § 10.126. See also Federal (FECA) Procedure Manual, Part 2 -- Claims,
Disallowances, Chapter 2.1602.7 (October 2011) (regarding the format and contents of a nonmerit reconsideration
decision).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Troy, MI, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-1054
Issued: March 30, 2022

Case Submitted on the Record

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

On July 6, 2021 appellant filed a timely appeal from a January 7, 2021 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 21-1054.
This case has previously been before the Board. 1 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On June 15, 2015 appellant, then a 57-year-old customer care agent, filed an occupational
disease claim (Form CA-2) alleging that she developed bilateral carpal tunnel syndrome due to
factors of her federal employment, including an increase of work activities. She asserted that she
first became aware of her claimed condition on February 7, 2000 and first realized its relation to

1

Docket No. 19-0925 (issued September 25, 2019).

her federal employment on March 28, 2015. Appellant stopped work on March 17, 2015. OWCP
assigned OWCP File No. xxxxxx503. 2
Appellant submitted a series of medical reports in support of the present claim, including
a June 4, 2015 report from Dr. Sophia Grias-Radwanski, a Board-certified physiatrist. Dr. GriasRadwanski diagnosed bilateral carpal tunnel syndrome, bilateral cubital tunnel syndrome, and neck
pain with radiculopathy symptoms.
After extensive development of the medical evidence, OWCP found a conflict in the
medical opinion evidence between Dr. Grias-Radwanski and Dr. Allen L. Babcock, a Boardcertified orthopedic surgeon serving as an OWCP referral physician, regarding whether appellant
sustained a new occupational injury due to employment factors. After additional development of
the medical evidence,3 it referred appellant for an impartial medical examination with
Dr. Clifford M. Buchman, an osteopath and Board-certified orthopedic surgeon, who produced a
July 25, 2018 report.
By decision dated August 23, 2018, OWCP denied appellant’s claim for a new
employment-related occupational condition, finding that the special weight of the medical opinion
evidence rested with the well-rationalized opinion of Dr. Buchman, the impartial medical
specialist.
By decision dated March 8, 2019, OWCP’s hearing representative affirmed OWCP’s
August 23, 2018 decision.
Appellant appealed to the Board and, by decision dated September 25, 2019,4 the Board
affirmed OWCP’s March 8, 2019 decision.
In a letter dated September 21, 2020 and entered into the Integrated Federal Employees’
Compensation System (iFECS) on September 28, 2020, appellant requested reconsideration of her

2
Appellant has a prior claim OWCP File No. xxxxxx427, for which she filed an occupational disease claim (Form
CA-2) in January 2003. In March 2003 OWCP accepted the claim for bilateral carpal tunnel syndrome. Appellant
filed a notice of recurrence (Form CA-2a) in October 2008 alleging a recurrence of disability due to the accepted
bilateral carpal tunnel syndrome condition. OWCP converted appellant’s recurrence claim to a claim for a new
occupational injury, and assigned OWCP File No. xxxxxx340. In May 2009, it accepted that claim for aggravation
of bilateral carpal tunnel syndrome. OWCP administratively combined OWCP File Nos. xxxxxx427, xxxxxx340, and
xxxxxx503, with OWCP File No. xxxxxx427 designated as the master file.
3

Prior to the referral to Dr. Buchman, OWCP referred appellant to three other impartial medical specialists, but it
found deficiencies in their evaluations, which required the referral to Dr. Buchman.
4

Supra note 1.

2

claim. On September 28, 2020 OWCP received a February 17, 2020 report from Dr. GriasRadwanski who provided an extensive discussion of appellant’s work duties and opined that she
had sustained several new occupational conditions due to these duties. 5
By decision dated October 19, 2020, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error. In reaching
this decision, it did not discuss any evidence submitted by appellant in connection with her
reconsideration request.
In an October 28, 2020 letter, appellant argued that she filed a timely reconsideration
request in that a postal record demonstrated that, on September 25, 2020, OWCP had received her
reconsideration request letter, dated September 21, 2020. She submitted a U.S. Postal Service
tracking document that indicated a package was delivered on September 25, 2020 to an address in
London, Kentucky.
In a September 21, 2020 letter received by OWCP on November 4, 2020, appellant argued
that she had submitted sufficient medical evidence to establish several new employment-related
occupational conditions. She indicated that she had submitted additional medical evidence,
including a new report of Dr. Grias-Radwanski.
In an October 28, 2020 letter received by OWCP on the same date, appellant again argued
that she filed a timely reconsideration request on September 25, 2020.
By decision dated January 7, 2021, OWCP denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a). It found that she had, in fact, filed a timely
reconsideration request, but determined that she had not submitted evidence or argument entitling
her to merit review. OWCP asserted that appellant had not submitted any new medical evidence
in connection with her reconsideration request.
The Board finds that this case is not in posture for decision with respect to whether
appellant sustained a new employment-related occupational condition.
FECA provides that OWCP shall determine and make ﬁndings of fact in making an award
for or against payment of compensation after considering the claim presented by the employee and
after completing such investigation as OWCP considers necessary with respect to the claim.6 Since
the Board’s jurisdiction of a case is limited to reviewing the evidence which is before OWCP at the
time of its final decision, 7 it is necessary that OWCP review all evidence submitted by a claimant
and received by OWCP prior to issuance of its final decision. As the Board’s decisions are final as

5

Appellant also submitted a May 15, 2018 report from Dr. Peter E. Metropoulos, an attending osteopath and Boardcertified occupational medicine specialist, and a March 3, 2020 report from Dr. Mitchell Pollak, a Board-certified
orthopedic surgeon. The reports had previously been submitted and considered by OWCP.
6

5 U.S.C. § 8124(a)(2).

7

20 C.F.R. § 501.2(c).

3

to the subject matter appealed, 8 it is crucial that all evidence relevant to that subject matter which
was properly submitted to OWCP prior to the time of issuance of its final decision be addressed by
OWCP.9
In the present case, OWCP did not review evidence received p rior to the issuance of its
January 7, 2021 decision, i.e., a February 17, 2020 report of Dr. Grias-Radwanksi. The Board,
therefore, must set aside this decision of OWCP and remand the case so that OWCP may fully
consider the evidence that was properly submitted by appellant prior to the issuance of the January 7,
2021 decision. Following this and such other further development it deems necessary, OWCP shall
issue an appropriate decision regarding appellant’s occupational disease claim.
IT IS HEREBY ORDERED THAT the January 7, 2021 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: March 30, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8

Id. at § 501.6(d).

9

T.B., Docket No. 19-1841 (issued July 7, 2020); E.P., Docket No. 14-0278 (issued February 26, 2014). See also
William A. Couch, 41 ECAB 548, 553 (1990).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
U.S. POSTAL SERVICE, MITCHELL POST
OFFICE, Mitchell, SD, Employer
__________________________________________

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Appearances:
Larissa Ann Parde, for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0908
Issued: March 4, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 26, 2021 appellant, through his representative, filed a timely appeal from a
March 24, 2021 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

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.

ISSUE
The issue is whether appellant has met his burden of proof to establish a right hip condition
causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On July 11, 2018 appellant, then a 57-year-old city letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he sustained right hip osteoarthritis as a result of factors
of his federal employment including standing, walking, lifting, twisting, and turning. He noted
that he first became aware of his claimed condition and that it was cause d or aggravated by his
federal employment on May 9, 2018. Appellant did not stop work.
In a development letter dated July 17, 2018, OWCP advised appellant of the deficiencies
of the claim. It advised him of the type of factual and medical evidence necessary to establish his
claim and afforded him 30 days for the submission of additional evidence.
An x-ray of appellant’s right hip obtained on May 9, 2018 demonstrated advancement of
severe degenerative joint disease with bone-on-bone acetabular osteophytes.
In a note dated June 18, 2018, Dr. Chris Krouse, an osteopath Board-certified in orthopedic
surgery, diagnosed severe degenerative change of the right hip. He recommended a total hip
arthroplasty. Dr. Krouse noted that appellant had a long-standing history of extensive use of the
right hip as a result of his federal employment, including factors such as ambulation, lifting of mail
tubs, pushing/pulling, and bending/twisting. He opined within a reasonable degree of certainty
that appellant’s right hip degenerative change was beyond a reasonable doubt directly related to
appellant’s occupation and 35 years of federal service.
By decision dated October 9, 2018, OWCP denied appellant’s claim as the medical
evidence of record was insufficient to establish a causal relationship between the diagnosed
conditions and factors of his federal employment.
OWCP continued to receive medical evidence. In a report dated September 5, 2013,
Dr. John Swisher, an osteopath Board-certified in sports medicine, examined appellant for
complaints of right hip and leg pain. He diagnosed right low back pain with right lower extremity
pain resembling potential radiculopathy, right lateral hip pain, either secondary to radiculopathy
or trochanteric syndrome, right proximal hamstring pain consistent with probable tendinosis,
intermittent right knee pain with evidence of degenerative joint disease , and right groin/deep
gluteal pain with femoral acetabular impingement. In a report dated September 25, 2013,
Dr. Swisher diagnosed localized osteoarthritis of the pelvis, lumbosacral spondylosis, and
trochanteric bursitis.
An x-ray of appellant’s right hip obtained on September 5, 2013 demonstrated moderate
narrowing involving the superior hip joint space with osteophytes off the superior and inferior
aspects of the acetabulum and inferior aspect of the femoral head. A magnetic resonance imaging
scan of the hip and pelvis obtained on September 6, 2013 demonstrated degenerative changes

2

including flattening of the inferior articular surface of the femoral head, osteophyte formation, and
moderate narrowing medially.
On April 11, 2014 appellant underwent right hip arthroscopic labral repair, arthroscopic
acetabuloplasty and arthroscopic femoral neck osteochondroplasty.
In a report dated September 17, 2014, Dr. Swisher examined appellant for complaints of
progressively more painful right hip. He diagnosed right greater trochanteric syndrome and
administered an injection.
In a report dated February 8, 2016, Dr. Krouse examined appellant for complaints of right
hip pain. He diagnosed right hip pain, likely bursitis versus degenerative change. Dr. Krouse
administrated an injection.
On July 20, 2016 Dr. Krouse examined appellant for right hip and left knee pain. On
physical examination of the right hip, he observed a positive grind test. Dr. Krouse diagnosed left
knee and right hip degenerative joint disease. He administered an injection.
Dr. Krouse reported on May 9, 2018 that he had examined appellant for severe right hip
pain, interfering with walking and sleeping. On physical examination, he observed a severely
antalgic gait with positive grind testing and minimal internal/external rotation. Dr. Krouse
diagnosed bone-on-bone degenerative joint disease of the right hip and recommended right hip
arthroplasty.
In a note dated May 23, 2018, Dr. Krouse diagnosed right hip advanced degenerative
change and opined that, after reviewing appellant’s work duties, his diagnosis was beyond a
reasonable doubt directly related to appellant’s occupation of over 35 years. He explained that the
amount of ambulation and positional changes appellant performed were the direct cause of
aggravation and acceleration of cartilage wear of the right hip, leading to advanced osteoarthritis
necessitating total hip arthroplasty.
OWCP received a note from Dr. Krouse dated July 5, 2018, which was substantially similar
to his note of June 18, 2018.
In a letter dated January 16, 2019, Dr. Krouse diagnosed degenerative joint disease. He
noted that appellant’s overall degenerative decline, based on physical examination and
radiographic findings, continued to progress despite conservative treatment. Dr. Krouse reviewed
appellant’s employment duties and opined that they had contributed to acceleration of appellant’s
degenerative joint disease.
On June 7, 2019 appellant requested reconsideration of the October 9, 2018 decision.
By decision dated August 27, 2019, OWCP denied modification.
In a letter dated January 29, 2020, Dr. Krouse stated that he had reviewed all medical
documentation and agreed with his previous narrative.
On March 10, 2020 appellant requested reconsideration.

3

By decision dated May 5, 2020, OWCP denied modification.
In a letter dated October 28, 2020, Dr. Krouse explained that, as stated previously, it
appeared that appellant’s degenerative changes had been exacerbated by appellant’s work duties,
which included ambulating for long distances and on uneven surfaces, climbing stairs, carrying a
weighted satchel, and entering/exiting his work vehicle several times per day while delivering mail
for over 39 years. He opined that the duties of appellant’s employment, including an excessive
amount of walking, was likely a contributing factor to appellant’s arthritis. Dr. Krouse explained
that appellant was on his feet for upwards of 10 hours per day for five to six days per week and
that appellant’s duties would contribute to progressive degenerative changes to the hip joint, which
over time would be viewed as degenerative arthritis. He opined that there was a causal relationship
between appellant’s duties and his medical findings on examination. Dr. Krouse further explained
that working for 39 years and averaging many miles of walking in various terrains with repetitive
movement, up and down stairs, on uneven ground, in and out of mail trucks, twisting, and changing
directions would contribute to appellant’s osteoarthritis findings. He opined within a reasonable
medical certainty that appellant’s repetitive walking and duties of appellant’s federal employment
over the past 39 years was a contributing factor to his medical findings of hip osteoarthritis.
Dr. Krouse further opined that appellant’s work duties had aggravated his diagnosed appellant’s
osteoarthritis, that it was beyond a reasonable double that years of repetitive movement and
excessive loading/movements were well beyond a normal course of natural aging to the joints. He
opined that it was his medical judgment that this process was a contributing factor to acceleration
of hip osteoarthritis.
On December 29, 2020 appellant requested reconsideration.
By decision dated March 24, 2021, OWCP denied modification.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed with in the applicable
time limitation of FECA, that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury. 4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence o f the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or co ndition for which

3

Id.

4

C.K., Docket No. 19-1549 (issued June 30, 2020); R.G., Docket No. 19-0233 (issued July 16, 2019); Elaine
Pendleton, 40 ECAB 1143 (1989).

4

compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the identified employment factors.5
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 6 The opinion of the physician must be based on a complete factual
and medical background, must be one of reasonable medical certainty, and must be supported by
medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors. 7
ANALYSIS
The Board finds that this case is not in posture for decision.
In a note dated May 23, 2018, Dr. Krouse diagnosed right hip advanced degenerative
change and after reviewing appellant’s work duties, opined that his diagnosis was directly related
to appellant’s occupation of over 35 years. He explained that the amount of ambulation and
positional changes were the direct cause of aggravation and acceleration of cartilage wear of the
right hip, leading to advanced osteoarthritis necessitating total hip arthroplasty.
In a letter dated October 28, 2020, Dr. Krouse explained that, as stated previously, it
appeared that appellant’s degenerative changes had been exacerbated by appellant’s work duties,
which included ambulating for long distances and on uneven surfaces, climbing stairs, carrying a
weighted satchel, and entering/exiting his work vehicle several times per day while delivering mail
for over 39 years. He opined that the duties of appellant’s employment, including an excessive
amount of walking, was likely a contributing factor to appellant’s arthritis. Dr. Krouse explained
that appellant was on his feet for upwards of 10 hours per day for five to six days per week and
that appellant’s duties would contribute to progressive degenerative changes to the hip joint, which
over time would be viewed as degenerative arthritis. He opined that there was a causal relationship
between appellant’s duties and medical findings on examination. Dr. Krouse further explained
that appellant’s work for 39 years, averaging many miles of walking in various terrains with
repetitive movement, up and down stairs, on uneven ground, in and out of m ail trucks, twisting,
and changing directions would contribute to appellant’s osteoarthritis findings. He further opined
that appellant’s work duties had aggravated his diagnosed his osteoarthritis, as years of repetitive
movement and excessive loading/movements were well beyond a normal course of natural aging
to the joints. Dr. Krouse opined that it was his medical judgment that this process was a
contributing factor to acceleration of hip osteoarthritis.
The Board finds that, taken together, Dr. Krouse’s reports are sufficient to require further
development of the medical evidence. Dr. Krouse provided a comprehensive understanding of the

5

L.D., Docket No. 19-1301 (issued January 29, 2020); S.C., Docket No. 18-1242 (issued March 13, 2019); Victor J.
Woodhams, 41 ECAB 345, 352 (1989).
6

I.J., Docket No. 19-1343 (issued February 26, 2020); T.H., 59 ECAB 388 (2008); Robert G. Morris, 48 ECAB
238 (1996).
7

D.J., Docket No. 19-1301 (issued January 29, 2020).

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medical record and case history. He provided explanation as to how appellant’s work duties
resulted in his diagnosed right hip condition.
The Board has long held that it is unnecessary that the evidence of record in a case be so
conclusive as to suggest causal connection beyond all possible doubt. Rather, the evidence
required is only that necessary to convince the adjudicator that the conclusion drawn is rational,
sound, and logical. 8 Dr. Krouse’s reports, while insufficient to meet appellant’s burden of proof
to establish his claim, raise an uncontroverted inference between his diagnosed right hip condition
and the accepted factors of appellant’s federal employment. Accordingly, his medical opinion is
sufficiently to require further development of appellant’s claim.9
It is well established that, proceedings under FECA are not adversarial in nature and, while
appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.10 OWCP has an obligation to see that justice is
done.11
On remand, OWCP shall refer appellant to a physician in the appropriate field of medicine,
along with the case record and a statement of accepted facts, for an examination and a rationalized
medical opinion as to whether the accepted employment factors either caused or aggravated h is
diagnosed right hip conditions. 12 If the second opinion physician disagrees with the opinion of
Dr. Krouse, he or she must provide a fully-rationalized explanation explaining why the accepted
employment factors were insufficient to have caused or aggravated appellant’s right hip condition.
After this and other such further development as deemed necessary, OWCP shall issue a de novo
decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

8

B.H., Docket No. 20-0734 (issued November 13, 2020); W.M., Docket No. 17-1244 (issued November 7, 2017);
E.M., Docket No. 11-1106 (issued December 28, 2011); Kenneth J. Deerman, 34 ECAB 641, 645 (1983) and cases
cited therein.
9

D.S., Docket No. 17-1359 (issued May 3, 2019); X.V., Docket No. 18-1360 (issued April 12, 2019); C.M., Docket
No. 17-1977 (issued January 29, 2019); William J. Cantrell, 34 ECAB 1223 (1983).
10

See id. See also A.P., Docket No. 17-0813 (issued January 3, 2018); Jimmy A. Hammons, 51 ECAB 219,
223 (1999).
11

See B.C., Docket No. 15-1853 (issued January 19, 2016); E.J., Docket No. 09-1481 (issued February 19, 2010);
John J. Carlone, 41 ECAB 354 (1989).
12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
C.C., Docket No. 19-1631 (issued February 12, 2020).

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ORDER
IT IS HEREBY ORDERED THAT the March 24, 2021 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: March 4, 2022
Washington, DC

Janice B. Askin, 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.K., Appellant
and
DEPARTMENT OF THE INTERIOR,
HARPER’S FERRY JOB CORPS CENTER,
Harper’s Ferry, WV, Employer
__________________________________________

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

Docket No. 07-319
Issued: May 14, 2007

Case Submitted on the Record

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

JURISDICTION
On November 15, 2006 appellant filed a timely appeal from the November 1, 2006
nonmerit decision of the Office of Workers’ Compensation Programs. The latest merit decision
in the case is dated September 24, 2004. Because appellant filed her appeal more than a year
after the last merit decision, pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board does not
have jurisdiction over the merits of the claim. The only decision properly before the Board is the
Office’s November 1, 2006 decision denying reconsideration.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration on
the grounds that it was untimely filed and failed to present clear evidence of error. On appeal,

appellant argued that the Office received her request for reconsideration within one year of the
September 24, 2004 decision.1
FACTUAL HISTORY
On April 4, 1997 appellant, then a 48-year-old social services assistant, filed a traumatic
injury claim alleging that she injured her back and bruised her head, chest, arm, foot and leg in
an automobile accident. On June 25, 1997 her claim was accepted for neck sprain and multiple
contusions. On March 7, 1998 while totally disabled for work because of employment-related
depression, appellant filed a claim for recurrence of disability alleging that she continued to have
symptoms, including carpal tunnel syndrome, related to her automobile accident. The Office
denied her claim on May 20, 1998 and, following requests for reconsideration, denied
modification of this decision on March 15, 1999, April 19, 2000, June 9, 2001, February 26,
2002, May 2 and October 1, 2003.
On April 30, 2004 appellant filed a request for reconsideration of the Office’s May 2,
2003 decision on the basis of new medical evidence. By merit decision dated September 24,
2004, the Office denied modification of its previous denial on the grounds that the new evidence
did not establish appellant’s claimed recurrence of disability. On an appeal request form dated
September 16, 2005, appellant requested reconsideration of the Office’s September 24, 2004
decision. This form was not date-stamped as received by the Office and the envelope in which it
was sent was not included in the record. Appellant included a letter, dated September 1, 2005, in
which she made arguments about the processing of her claim and the medical evidence already
of record. She attached copies of various medical and administrative records related to her case.
By decision dated November 1, 2006, the Office issued a nonmerit decision denying
appellant’s request for reconsideration of the merits of its September 24, 2004 decision. It stated
that it conducted only a limited review of appellant’s request for reconsideration, which had not
been received until September 30, 2005,2 more than one year after the issuance of the previous
decision. The Office stated that, in accordance with 20 C.F.R. § 10.607(b), it reviewed
appellant’s request only for clear evidence that the September 24, 2004 decision was incorrect.
It noted that appellant had submitted no new evidence and that all previous evidence had been
found insufficient to warrant acceptance of additional conditions arising from the employment
injury or a recurrence of disability.

1

Appellant submitted new factual evidence along with her notice of appeal. As these documents were not a part
of the record at the time the Office made its final decision, the Board is precluded from reviewing the evidence.
20 C.F.R. § 501.2(c).
2

The Board notes that the request and its accompanying documents were scanned into the Office’s electronic
records system between September 26 and October 4, 2005. Most of the documents were scanned in on
September 30, 2005.

2

LEGAL PRECEDENT
Under section 8128(a) of the Federal Employees’ Compensation Act,3 the Office has the
discretion to reopen a case for review on the merits.4 An application for reconsideration of a
final decision must be sent within one year of the date of the decision for which review is
sought.5 If submitted by mail, the application will be deemed timely if postmarked by the
U.S. Postal Service within the time period allowed. If there is no such postmark, or it is not
legible, other evidence such as (but not limited to) certified mail receipts, certificate of service,
and affidavits, may be used to establish the mailing date.6 In the absence of this evidence, the
Office procedures state that the date of the reconsideration request letter should be used to
determine timeliness.7
ANALYSIS
On September 24, 2004 the Office issued a merit decision denying modification of its
previous decision. Appellant had one year from that date to file her request for reconsideration.
In computing a time period, the date of the event from which the designated period begins is not
included, while the last day of the period so computed is included, unless it is a Saturday, Sunday
or a legal holiday.8 The Board notes that September 24, 2005 fell on a Saturday and therefore
finds that appellant had until Monday, September 26, 2005 to request reconsideration.
The Office found that appellant’s request for reconsideration was untimely as it was not
received until September 30, 2004. The Board has held that timeliness for a reconsideration
request is determined not by the date the Office receives the request, but by the postmark on the
envelope.9 While the record contains a signed appeal request form dated September 16, 2005
and a signed letter dated September 1, 2005 it does not contain the envelope, or a copy of the
envelope, in which these documents were sent. It is not possible for the Board to review the
postmark indicating when the reconsideration request was mailed to the Office. When the record
does not contain the postmarked envelope or the postmark is illegible, the Office procedures
state that other evidence, including the date of the request, should be used to determine
timeliness of the request.10 As the record contains no postmarked envelope and no other
evidence of mailing date, the Board finds that the date of the reconsideration request should be
3

5 U.S.C. §§ 8101-8193

4

5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.607(a)

6

Id.

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b)(1) (June 2002).

8

Afegalai L. Boone, 53 ECAB 533, 537 (2002).

9

Jack D. Johnson, 57 ECAB ___ (Docket No. 06-433, issued May 17, 2006); see also 20 C.F.R. § 10.607(a);
Federal (FECA) Procedure Manual, supra note 7.
10

Id.

3

used to determine timeliness. The appeal form was dated September 16, 2005, which is within a
year of the September 24, 2004 decision. The Board finds that appellant timely filed her request
for reconsideration within one year of the last merit decision and that the Office improperly
reviewed her request using the legal standard reserved for cases where reconsideration is
requested after more than one year.
CONCLUSION
As appellant’s request for reconsideration was timely filed, the Board finds that the
Office did not properly deny appellant’s request for reconsideration as untimely filed and failed
to establish clear evidence of error. The case is remanded to the Office for the application of the
proper standard for timely reconsideration requests, pursuant to 20 C.F.R. § 10.606(b)(2).
ORDER
IT IS HEREBY ORDERED THAT the November 1, 2006 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for action consistent with
this decision.
Issued: May 14, 2007
Washington, DC

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

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

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

4