United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Manteo, NC, Employer
__________________________________________

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

Docket No. 15-1556
Issued: November 18, 2015

Case Submitted on the Record

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

JURISDICTION
On July 13, 2015 appellant, through counsel, filed a timely appeal of a February 24, 2015
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than
180 days has elapsed from the last merit decision, dated August 5, 2014, and the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of the claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration on
the merits pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On December 10, 2010 appellant, then a 40-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that she fractured her right wrist on December 9, 2010 when she
1

5 U.S.C. § 8101 et seq.

was delivering mail to a curbside box in her postal vehicle. While her hand was in the mailbox,
her foot slipped from the brake, and pressed the gas trapping her hand in the curbside box and
fracturing her wrist. Appellant’s December 9, 2010 x-rays demonstrated distal radial fracture of
the right forearm. On December 10, 2010 she underwent an open reduction and internal fixation
of the right distal radius fracture. OWCP accepted appellant’s claim on January 10, 2011 for
closed fracture of the lower end of the radius of the right wrist. Appellant returned to light-duty
work on February 11, 2011 working four hours a day.
Dr. Jeff Pokorny, a Board-certified hand surgeon, examined appellant on January 17,
2011 and described her history of injury. He reported her consistent complaints of palm
numbness and pain at the base of her thumb. Dr. Pokorny found that appellant’s right wrist was
still swollen with wrist extension of 20 degrees, wrist flexion of 20 degrees, and 65 degrees of
supination. He noted that her finger motion was limited and that she could not reach her palm.
Dr. Pokorny found Tinel’s sign proximal to appellant’s wrist crease with dysesthesias in her
palm. He diagnosed right wrist left distal radius fracture with likely neuroma of the palmar
cutaneous branch of the median nerve. Dr. Pokorny noted that it was difficult to determine if the
palmar cutaneous branch of the median nerve was contused or lacerated.
Appellant filed a claim for compensation (Form CA-7) and requested a schedule award
on April 7, 2011. By decision dated August 25, 2011, OWCP granted her a schedule award for
eight percent impairment of her right arm.
Appellant filed a recurrence claim (Form CA-2a) on April 2, 2012 alleging that on
March 30, 2012 she sustained a recurrence of disability while attempting to restore a cabinet with
a hand sander. She stated that her right wrist began to hurt and that she sought treatment at the
hospital where she was advised that she had soft tissue irritation from her preexisting injury.
By decision dated May 21, 2012, OWCP denied appellant’s claim for a recurrence of
disability as she sustained a new nonemployment-related injury to her wrist on March 30, 2012.
Dr. Marc Joseph Richard, a Board-certified hand surgeon, performed a surgical removal
of appellant’s hardware, neurolysis of the median nerve, carpal tunnel release and nerve wrap of
the palmar cutaneous branch of the right median nerve on July 23, 2012.
OWCP accepted appellant’s claim for the additional condition of injury to the right ulnar
nerve on January 28, 2013.
Dr. Richard performed a right ulnar nerve decompression at the cubital tunnel with
anterior subfascial transposition on February 11, 2013.
Appellant filed a Form CA-7 on February 14, 2013 requesting wage-loss compensation
from July 2 through 5, 2012.
By decision dated April 24, 2013, OWCP denied appellant’s claim for compensation for
the period July 2 through 4, 2012. Appellant requested reconsideration of the April 24, 2013
decision on a form dated May 23, 2013 and received by OWCP on May 24, 2013. She alleged
that there was no work available for her within her restrictions on July 2, 2012. By decision

2

dated July 24, 2013, OWCP vacated its April 24, 2013 decision finding that there was no lightduty work available for appellant on July 2, 2012.
Appellant filed a Form CA-7 requesting a schedule award on February 3, 2014.
On April 29, 2014 OWCP referred appellant for a second opinion evaluation with
Dr. Francis McCarthy, a Board-certified orthopedic surgeon. In reports dated May 15 and 22,
2014, Dr. McCarthy described appellant’s history of injury and diagnosed right wrist fracture,
surgical repair, and additional diagnosis of neuritis of the palmar cutaneous branch of the median
nerve. He described her additional surgeries on July 23, 2012 and February 11, 2013.
Dr. McCarthy provided his findings on physical examination and diagnosed osteoarthrosis of the
forearm. He found six percent impairment of the right arm and four percent impairment of the
whole person. An OWCP medical adviser reviewed this report on June 26, 2014 and found that
the right upper extremity rating was correct.
By decision dated August 5, 2014, OWCP denied appellant’s claim for an increased
schedule award based on Dr. McCarthy’s finding of six percent impairment of the right arm. It
noted that she was previously paid a schedule award for eight percent impairment and that the
medical evidence did not support an increased schedule award. Appellant requested an oral
hearing on a form dated September 1, 2014 and postmarked September 5, 2014.
In a decision dated September 22, 2014, OWCP’s Branch of Hearings and Review
declined to reopen appellant’s claim for an oral hearing as her request was not timely filed within
30 days of OWCP’s August 5, 2014 decision.
Appellant requested reconsideration in a letter dated February 2, 2015 and received by
OWCP on February 10, 2015. She argued that she was entitled to an increased schedule award
as Dr. McCarthy found she had six percent impairment of the right arm. Appellant alleged that
this was in addition to the previous schedule award for eight percent impairment. She stated that
she did not believe that she had two percent improvement in her permanent impairment and
alleged difficulty in performing daily activities that required fine manipulation including writing.
In support of her reconsideration request, appellant resubmitted her January 28, 2013 acceptance
letter from OWCP. She also resubmitted the July 23, 2012 operative report.
By decision dated February 25, 2015, OWCP declined to reopen appellant’s claim for
consideration of the merits as she failed to submit relevant and pertinent new evidence or
argument in support of her timely request for reconsideration.
LEGAL PRECEDENT
FECA provides in section 8128(a) that OWCP may review an award for or against
payment of compensation at any time on its own motion or on application by the claimant.2
Section 10.606(b)(3) of the Code of Federal Regulations provide that a claimant may obtain
review of the merits of the claim by submitting in writing an application for reconsideration
which sets forth arguments or evidence and shows that OWCP erroneously applied or interpreted
2

5 U.S.C. §§ 8101-8193, 8128(a).

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a specific point of law; or advances a relevant legal argument not previously considered by
OWCP; or includes relevant and pertinent new evidence not previously considered by OWCP.3
Section 10.608 of OWCP’s regulations provide that when a request for reconsideration is timely,
but does meet at least one of these three requirements, OWCP will deny the application for
review without reopening the case for a review on the merits.4 Section 10.607(a) of OWCP’s
regulations provide that to be considered timely an application for reconsideration must be
received by OWCP within one year of the date of OWCP’s merit decision for which review is
sought.5
ANALYSIS
The Board finds that OWCP properly declined to reopen appellant’s claim for
consideration of the merits on February 24, 2015 as her timely request for reconsideration did not
comply with section 10.606(b)(3) of OWCP’s regulations.6
In support of her request for reconsideration, appellant resubmitted a report from
Dr. Richard dated July 23, 2012. As this report was already in the record and considered by
OWCP in reaching the August 5, 2014 decision, it does not constitute relevant and pertinent new
evidence requiring OWCP to reopen appellant’s claim for consideration of the merits.7
Appellant did not satisfy the first standard under section 10.606 of OWCP’s regulations
as she did not identify any point of law that OWCP erroneously applied or interpreted. In
addition, she did not submit any pertinent new and relevant evidence in support of her request for
reconsideration and therefore did not comply with the third standard. With respect to the second
standard, advancing a relevant legal argument not previously considered by OWCP, appellant
also failed to meet this standard. The application for reconsideration generally alleged that she
was entitled to an increased schedule award over the eight percent previously awarded without
providing any additional explanation, legal precedent, or any other supporting evidence. Where
the legal argument has no basis, OWCP is not required to reopen the case for merit review.8
CONCLUSION
The Board further finds that OWCP properly declined to reopen appellant’s claim for
consideration of the merits in its February 24, 2015 decision.

3

20 C.F.R. § 10.606(b)(3).

4

Id. at § 10.608.

5

Id. at § 10.607(a). Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations¸ Chapter 2.1602.4
(October 2011).
6

Id. at § 10.606(b)(3).

7

Denis M. Dupor, 51 ECAB 482 (2000).

8

A.J., Docket No. 14-1988 (issued June 26, 2015).

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ORDER
IT IS HEREBY ORDERED THAT the February 24, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 18, 2015
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.S., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
ENGINEERING FACILITIES COMMAND,
Norfolk, VA, Employer
__________________________________________

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

Docket No. 07-772
Issued: July 12, 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 January 26, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated October 24, 2006, which denied his claim for a
schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
schedule award in this case.
ISSUE
The issue is whether appellant is entitled to a schedule award for hearing loss.
FACTUAL HISTORY
On September 21, 2005 appellant, then a 53-year-old pipefitter, filed a claim alleging that
he sustained permanent hearing loss while in the performance of duty. He became aware of his
hearing loss on June 13, 1994 and realized that it was caused or aggravated by his federal
employment on August 16, 2000. Appellant advised that he did not file his claim sooner because

he wanted to wait until he retired on October 3, 2005. His supervisor subsequently indicated that
appellant was last exposed to hazardous workplace noise on October 3, 2005.
By letter dated October 5, 2005, the Office requested additional evidence from appellant
and the employing establishment.
The employing establishment submitted records from its hearing conservation program.
It advised that appellant was a participant in this program starting on June 29, 1989. In
employing establishment medical records dated June 12 and 13, 1994 and January 25, 1996,
appellant was advised that the audiograms performed in conjunction with the hearing
conservation program revealed a significant threshold shift. The employing establishment also
submitted copies of audiograms obtained from November 13, 1984 to April 8, 2005 which
revealed progressive bilateral high frequency hearing loss.
In a statement of accepted facts dated February 2, 2006, the Office noted that appellant
was a pipefitter who was exposed to loud noises from blowers at 87 decibels, ridged piper
threaders at 90 decibels, steam lines at 110 decibels, bench grinders at 80 decibels, gas powered
pumps at 95 decibels and boom trucks at 89 decibels. The noise exposure was two hours per
day, two days per week and appellant was provided with earplugs and earmuffs.
By letter dated February 7, 2006, the Office referred appellant to Dr. Michael Jacobson, a
Board-certified otolaryngologist, for otologic examination and audiological evaluation. The
Office provided Dr. Jacobson with a statement of accepted facts, available exposure information,
and copies of all medical reports and audiograms.
Dr. Jacobson performed an otologic evaluation of appellant on February 23, 2006 and
audiometric testing was conducted on the same date. Testing at the frequency levels of 500,
1,000, 2,000 and 3,000 revealed the following: right ear 5, 10, 10 and 10 decibels; left ear 10,
15, 10 and 10 decibels. Dr. Jacobson determined that appellant sustained noise-induced high
frequency sensorineural hearing loss and tinnitus. He indicated that the sensorineural hearing
loss was due to decades of noise exposure encountered in appellant’s employment above the
accepted level which caused temporary and permanent threshold changes. Dr. Jacobson advised
that these threshold changes were well documented in the employing establishment’s hearing
conservation program records. He noted that appellant was not currently a hearing aid candidate.
In a decision dated March 20, 2006, the Office accepted appellant’s claim for bilateral
noise-induced high frequency sensorineural hearing loss and tinnitus.
On March 27, 2006 an Office medical adviser reviewed Dr. Jacobson’s report and the
audiometric test of February 23, 2006 to determine if appellant’s hearing loss was ratable for
schedule award purposes. The Office medical adviser concluded that, in accordance with the
American Medical Association, Guides to the Evaluation of Permanent Impairment, (5th ed.
2001) (A.M.A., Guides), appellant had no permanent impairment due to his accepted hearing
loss. The medical adviser determined that appellant’s hearing loss was not severe enough to be
ratable for schedule award purposes after applying the Office’s current standards for evaluating
hearing loss to the results of the February 23, 2006 audiogram. He noted that the evidence did
not support authorization for hearing aids.

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On April 7, 2006 appellant filed a claim for a schedule award.
By decision dated October 24, 2006, the Office determined that appellant’s hearing loss
was employment related but not severe enough to be considered ratable for purposes of a
schedule award.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act1 and its
implementing regulation2 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.3
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides.4 Using the frequencies of 500, 1,000, 2,000 and 3,000 cycles per second,
the losses at each frequency are added up and averaged.5 Then, the “fence” of 25 decibels is
deducted because, as the A.M.A., Guides points out, losses below 25 decibels result in no
impairment in the ability to hear everyday speech under everyday conditions.6 The remaining
amount is multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss.7 The
binaural loss is determined by calculating the loss in each ear using the formula for monaural
loss; the lesser loss is multiplied by five, then added to the greater loss and the total is divided by
six to arrive at the amount of the binaural hearing loss.8 The Board has concurred in the Office’s
adoption of this standard for evaluating hearing loss.9

1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404 (1999).

3

Id.

4

A.M.A., Guides at 250 (5th ed. 2001).

5

Id.

6

Id.

7

Id.

8

Id.

9

Donald E. Stockstad, 53 ECAB 301 (2002); petition for recon. granted (modifying prior decision), Docket No.
01-1570 (issued August 13, 2002).

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ANALYSIS
An Office medical adviser applied the Office’s standardized procedures to the
February 23, 2006 audiogram performed for Dr. Jacobson. Testing for the right ear at the
frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second revealed decibels losses of 5,
10, 10 and 10 respectively. These decibels were totaled at 35 and were divided by 4 to obtain an
average hearing loss at those cycles of 8.75 decibels. The average of 8.75 decibels was then
reduced by 25 decibels (the first 25 decibels were discounted as discussed above) to equal 0,
which was multiplied by the established factor of 1.5 to compute a 0 percent loss of hearing for
the right ear. Testing for the left ear at the frequency levels of 500, 1,000, 2,000 and 3,000 hertz
revealed decibels losses of 10, 15, 10, and 10 respectively. These decibels were totaled at 45 and
were divided by 4 to obtain the average hearing loss at those cycles of 11.25 decibels. The
average of 11.25 decibels was then reduced by 25 decibels (the first 25 decibels were discounted
as discussed above) to equal 0 which was multiplied by the established factor of 1.5 to compute a
0 percent hearing loss for the left ear.
The Board finds that the Office medical adviser applied the proper standards to the
February 23, 2006 audiogram. The medical evidence reflects that appellant’s hearing loss is not
ratable. While appellant has an employment-related hearing loss, it is not ratable for schedule
award purposes under the standards that the Office applies to all schedule award claims for
hearing loss.
CONCLUSION
The Board finds that appellant is not entitled to a schedule award for hearing loss.
ORDER
IT IS HEREBY ORDERED THAT the October 24, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 12, 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

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

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

Docket No. 21-1194
Issued: March 18, 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 August 2, 2021 appellant filed a timely appeal from a March 17, 2021 merit decision
and a July 7, 2021 nonmerit 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. 2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 17, 2021 merit decision, appellant submitted additional evidence to
OWCP. 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.

ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish disability
from work for the period December 27, 2020 3 through January 29, 2021 causally related to the
accepted November 10, 2020 employment injury; and (2) whether OWCP properly determined
that appellant abandoned her request for an oral hearing.
FACTUAL HISTORY
On November 18, 2020 appellant, then a 29-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on November 10, 2020 she sustained an injury when she
accidently closed her right hand in the door jam of the driver door while in the performance of
duty. She stopped work on November 11, 2020. By decision dated December 14, 2020, OWCP
accepted appellant’s claim for crushing injury of the right hand.
OWCP received a December 9, 2020 report by Dr. George S.M. Dyer, a Board-certified
orthopedic hand surgeon, who opined that appellant should be off due to a work-related injury.
Dr. Dyer described that on November 10, 2020 she closed her right hand in a mail truck and she
experienced pain and swelling. He recounted that appellant tried to return to work on
November 28, 2020, but she experienced significant pain. On physical examination of her right
upper extremity, Dr. Dyer observed some tenderness to palpation along the long finger and ring
finger dorsal metacarpals, thumb base and radial wrist and some pain with Tinel’s and Durkin’s
tests. Dr. Dyer diagnosed right hand arthralgia and right-hand crush injury.
On January 1, 2021 appellant filed a claim for compensation (Form CA-7) for disability
from work for the period December 26, 2020 through January 1, 2021. On the reverse side of the
claim form the employing establishment indicated that she received continuation of pay (COP)
from November 11 through December 26, 2020 and noted that her disability should begin on
December 27, 2020. Appellant thereafter filed additional CA-7 forms requesting wage-loss
compensation for continued disability through January 29, 2021.
In an attending physician’s report (Form CA-20) and a letter, both dated January 6, 2021,
Dr. Dyer noted that on November 10, 2020 appellant crushed her hand in a mail truck door at
work. He reported that she was totally disabled from work from November 10, 2020 through
January 10, 2021. Dr. Dyer indicated that appellant could return to part-time, modified-duty work.
On January 19, 2021 appellant accepted a part-time, limited-duty position as a modified
city carrier.
In a January 25, 2021 letter, Dr. Dyer recommended that appellant remain off work until
February 3, 2021. He explained that she attempted to return to work on January 21, 2021, but had
a severe exacerbation of pain.

3

The Board notes that the March 17, 2021 OWCP decision notes the beginning date of the claimed period as
December 27, 2021. However, this appears to be a typographical error as appellant’s claim form notes the beginning
date as December 27, 2020.

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In a February 4, 2021 letter by Mallory K. Pingeton, a physician assistant, who explained
that appellant was seen by Dr. Dyer on February 3, 2021 and was found to have right intersection
syndrome. She opined that this was likely a complication from appellant’s November 2020 hand
crush injury. Ms. Pingeton recommended that appellant remain off work until March 17, 2021.
In a February 11, 2021 development letter, OWCP informed appellant of the deficiencies
of her claim. It advised her of the type of additional evidence required and afforded her 30 days
to submit the requested evidence.
Appellant subsequently resubmitted the February 4, 2021 letter by Ms. Pingeton.
By decision dated March 17, 2021, OWCP denied appellant’s wage-loss compensation
claims, finding that she had not established disability from work causally related to the accepted
November 10, 2020 employment injury.
On April 6, 2021 appellant timely requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review and submitted additional medical evidence.
In a letter dated May 21, 2021, OWCP’s hearing representative advised appellant that a
telephonic hearing would be held on June 24, 2021 at 2:30 p.m. Eastern Standard Time (EST). 4
The hearing representative also provided appellant with the toll-free telephone number and
passcode to access the hearing. Appellant did not appear for the hearing by telephone at the
appointed time.
By decision dated July 7, 2021, OWCP found that appellant failed to appear at the oral
hearing and abandoned her request. It noted that an oral hearing was scheduled to be conducted
by telephone on June 24, 2021 and that appellant received written notification of the hearing 30
days in advance of the hearing. Next, OWCP indicated that appellant failed to appear for the
hearing and there was no indication in the file that she contacted it either prior to or subsequent to
the scheduled hearing to request a postponement or explain her failure to appear.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA 5 has the burden of proof to establish 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. 6 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. 7 For each period of disability claimed, the employee has the
4

The hearing notice was addressed to appellant at her last known address,

5

Supra note 1.

6

D.S., Docket No. 20-0638 (issued November 17, 2020); F.H., Docket No. 18-0160 (issued August 23, 2019);
C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40
ECAB 1143 (1989).
7

20 C.F.R. § 10.5(f); S.T., Docket No. 18-0412 (issued October 22, 2018); Cheryl L. Decavitch, 50 ECAB
397 (1999).

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burden of proof to establish that he or she was disabled from work as a result of the accepted
employment injury.8
To establish causal relationship between the disability claimed and the employment injury,
an employee must submit rationalized medical evidence. 9 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
claimed disability and the accepted employment injury.10
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so would essentially allow an employee to self -certify his or her disability and
entitlement to compensation. 11
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish disability for
the period December 27, 2020 through January 29, 2021 causally related to the accepted
November 10, 2020 employment injury.
In support of her claim for compensation, appellant submitted medical reports from
Dr. Dyer. In a December 9, 2020 report, Dr. Dyer described the November 10, 2020 employment
injury and conducted an examination. He noted that appellant tried to return to work on
November 28, 2020, but experienced significant pain. Dr. Dyer opined that she should remain off
work. In a January 6, 2021 CA-20 form, he further indicated that appellant was totally disabled
from work from November 10, 2020 through January 10, 2021. Furthermore, in a January 25,
2021 letter, Dr. Dyer recommended that she remain off work until February 3, 2021. He explained
that appellant attempted to return to work on January 21, 2021, but had a severe exacerbation of
pain. Although he opined that she was unable to work during the claimed period of disability, Dr.
Dyer did not provide any medical reasoning to support his opinion on disability. 12 He merely
referenced that appellant experienced a severe exacerbation of pain when she attempted to return
to work. The Board has found that, when a physician’s statements regarding an employee’s ability
to work consist only of repetition of the employee’s complaints that he or she hurt too much to
work, without objective findings of disability being shown, the physician has not provided a

8

B.O., Docket No. 19-0392 (issued July 12, 2019); D.G., Docket No. 18-0597 (issued October 3, 2018); Amelia S.
Jefferson, 57 ECAB 183 (2005).
9

L.O., Docket No. 20-0170 (issued August 13, 2021); S.J., Docket No. 17-0828 (issued December 20, 2017);
Kathryn E. DeMarsh, 56 ECAB 677 (2005).
10

V.A., Docket No. 19-1123 (issued October 29, 2019); C.B., Docket No. 18-0633 (issued November 16, 2018).

11

See S.G., Docket No. 18-1076 (issued April 11, 2019); William A. Archer, 55 ECAB 674 (2004); Fereidoon
Kharabi, 52 ECAB 291 (2001).
12

R.C., Docket No. 17-0748 (issued July 10, 2018); Dean E. Pierce, 40 ECAB 1249 (1989).

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rationalized medical opinion on the issue of disability. 13 For these reasons, the Board finds that
Dr. Dyer’s reports lack sufficient medical reasoning to establish that appellant was unable to work
during the claimed period.
The report from the physician assistant is also of no probative value to establish appellant’s
wage-loss compensation claim because physician assistants are not considered physicians as
defined under FECA. 14
As the medical evidence of record lacks rationalized medical evidence establishing that
appellant was disabled from work for the period December 27, 2020 through January 29, 2021 due
to the accepted November 10, 2020 employment injury, the Board finds that she has not met her
burden of proof.
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
Under FECA and its implementing regulations, a claimant who has received a final adverse
decision by OWCP is entitled to receive a hearing by writing to the address specified in the
decision within 30 days of the date of the decision for which a hearing is sought. 15 Unless
otherwise directed in writing by the claimant, OWCP’s hearing representative will mail a notice
of the time and place of the hearing to the claimant and any representative at least 30 days before
the scheduled date.16 OWCP has the burden of proving that it properly mailed to a claimant and
any representative of record. 17
A claimant who fails to appear at a scheduled hearing may request in writing, within 10
days after the date set for the hearing, that another hearing be scheduled. Where good cause for
failure to appear is shown, another hearing will be scheduled and conducted by teleconference. 18
13

B.F., Docket No. 19-0123 (issued May 13, 2019); P.D., Docket No. 14-744 (issued August 6, 2014); G.T., 59
ECAB 447 (2008).
14

Section 8102(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See Federal (FECA) Procedure Manual, Part 2 -- Claims,
Causal Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay
individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical o pinion
under FECA). See also S.A., Docket No. 21-0813 (issued December 27, 2021); George H. Clark, 56 ECAB 162
(2004) (physician assistants are not considered physicians under FECA).
15

20 C.F.R. § 10.616(a).

16

Id. at § 10.617(b).

17

V.C., Docket No. 20-0798 (issued November 16, 2020); M.R., Docket No. 18-1643 (issued March 1, 2019); T.P.,
Docket No. 15-0806 (issued September 11, 2015); Michelle R. Littlejohn, 42 ECAB 463 (1991).
18

20 C.F.R. § 10.622(f).

5

The failure of the claimant to request another hearing within 10 days, or the failure of the claimant
to appear at the second scheduled hearing without good cause shown, shall constitute abandonment
of the request for a hearing. 19
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly determined that appellant abandoned her request for
an oral hearing.
Following OWCP’s March 17, 2021 decision denying appellant’s wage-loss compensation
claim, she filed a timely request for an oral hearing before a representative of OWCP’s Branch of
Hearings and Review. In a May 21, 2021 letter, OWCP’s Branch of Hearings and Review notified
her that it had scheduled a telephonic hearing for June 24, 2021 at 2:30 p.m. EST. OWCP mailed
the notice to appellant’s last known address of record. The Board has held that absent evidence to
the contrary, a letter properly addressed and mailed in the ordinary course of business is presumed
to have been received. This is called the mailbox rule. 20 Appellant failed to call in for the
scheduled hearing using the provided telephone number. She did not request a postponement or
provide an explanation to OWCP for failure to appear for the hearing within 10 days of the
scheduled hearing. As appellant failed to call in to the scheduled hearing or provide notification
to OWCP’s Branch of Hearings and Review within 10 days of the scheduled hearing explaining
failure to appear, the Board finds that OWCP properly determined that she abandoned her request
for an oral hearing. 21
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish disability from
work for the period December 27, 2020 through January 29, 2021 causally related to the accepted
November 10, 2020 employment injury. The Board further finds that OWCP properly determined
that appellant abandoned her request for an oral hearing.

19

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(g) (September 2020); see also K.H., Docket No. 20-1198 (issued February 8, 2021); A.J., Docket No. 180830 (issued January 10, 2019).
20

See V.C., supra note 17; C.Y., Docket No. 18-0263 (issued September 14, 2018).

21

See L.T., Docket No. 20-1539 (issued August 2, 2021).

6

ORDER
IT IS HEREBY ORDERED THAT the March 17 and July 7, 2021 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 18, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.N., Appellant
and
TENNESSEE VALLEY AUTHORITY,
PARADISE FOSSIL PLANT, Drakesboro, KY,
Employer
__________________________________________

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Appearances:
Ronald K. Bruce, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-636
Issued: September 30, 2009

Case Submitted on the Record

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

JURISDICTION
On January 6, 2009 appellant, through his attorney, filed a timely appeal from an
April 22, 2008 merit decision of the Office of Workers’ Compensation Programs and a
December 1, 2008 Office hearing representative’s decision denying his claim for a schedule
award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule
award decision.
ISSUE
The issue is whether appellant has established that he is entitled to a schedule award for a
permanent impairment of the lungs. On appeal his attorney contends that the Office failed to
consider the diffusion capacity results of the September 19, 2008 pulmonary function study. The
attorney further argues that the April 16, 2008 opinion of the Office medical adviser is not well
reasoned.

FACTUAL HISTORY
On May 2, 2006 appellant, then a 74-year-old retired iron worker, filed an occupational
disease claim alleging that he sustained pneumoconiosis and chronic obstructive disease due to
factors of his federal employment. He related that he became aware of his disease on
March 2, 2004. Appellant retired on May 23, 1984.
In a report dated March 27, 2004, Dr. Glen Baker, a Board-certified internist with a
subspecialty in pulmonary disease, diagnosed occupational pneumoconiosis with probable
pulmonary asbestosis. He performed a pulmonary function study (PFS) which revealed a forced
vital capacity (FVC) of 89 percent of predicted prebronchodilator and 87 percent of predicted
postbronchodilator. The study showed a forced expiratory volume in one second (FEV1) of 79
percent of predicted prebronchodilator and 79 percent of predicted postbronchodilator. Citing
the American Medical Association, Guides to the Evaluation of Permanent Impairment, (5th ed.
2001) (A.M.A., Guides), Dr. Baker found that appellant had a Class II pulmonary impairment
based on the results of the PFS.1
On April 19, 2007 the Office referred appellant to Dr. H. Dale Haller, Jr., an internist, for
a second opinion examination. In a report dated May 1, 2007, Dr. Haller related that he was
unable to obtain acceptable PFS. He stated:
“We tried repeatedly and could not get reproducible or even acceptable appearing
flow volume loops with at least eight efforts. I talked with [appellant] about this
and he states that he just cannot breath in or out any better and it causes him
distress to try and do so.
“I have reviewed the pulmonary functions done March 27, 2004 by Dr. Glen
Baker’s office. There are eight loops there and I would score none of these as
acceptable by ATS [American Thoracic Society] criteria for interpretation or
reproducibility. Therefore, I do not think that we have any valuable pulmonary
function studies.”
Dr. Haller expressed concern that appellant may have angina. In an addendum dated May 11,
2007, he reviewed a high density computerized tomography (CT) scan and diagnosed “interstitial
changes, fibrotic in the bases bilaterally and some early probable bronchiectatic changes”
constituent with asbestosis. Dr. Haller indicated that rating appellant’s disability was difficult
because of the lack of a valid PFS.
The Office accepted appellant’s claim for coal workers’ pneumoconiosis. On May 2,
2006 appellant filed a claim for a schedule award. An Office medical adviser reviewed the
evidence and found that he was unable to calculate an impairment rating due to the lack of a
valid PFS. He recommended against further testing until appellant was evaluated by a
cardiologist.

1

A.M.A., Guides 107, Table 5-12.

2

By decision dated August 1, 2007, the Office denied appellant’s claim for a schedule
award on the grounds that the evidence was insufficient to establish that he sustained a
permanent impairment to a scheduled member due to his work injury. On August 9, 2007
appellant, through his attorney, requested an oral hearing. At the hearing, held on March 3,
2008, his attorney submitted a PFS performed on February 20, 2008 by Dr. Valentino Simpao, a
pulmonologist.
In the February 20, 2008 PFS, Dr. Simpao measured FVC as 3.33 liters or 85 percent of
predicted prebronchodilator and 3.18 liters or 81 percent of predicated post bronchodilator. He
further measured FEV1 as 2.21 liters prebronchodilator, or 74 percent of predicated, and 2.24
liters postbronchodilator, or 75 percent of predicted. Dr. Simpao found that appellant’s effort
was good and the data valid. He diagnosed a mild degree of obstructive airway disease.
By decision dated April 2, 2008, the hearing representative vacated the August 1, 2007
decision and remanded the case for an Office medical adviser to review the February 20, 2008
PFS.
On April 16, 2008 the Office medical adviser reviewed the February 20, 2008 PFS. He
noted that the FVC was 3.33 liters or 85 percent of predicted and the FEV1 was 2.21 liters or 74
percent of predicted. The Office medical adviser found these values were above the lower limit
of normal for a 76-year-old male who was 170 centimeters tall according to Tables 5-2b and 54b on pages 95 and 97 of the A.M.A., Guides. Consequently, he found that appellant had no
impairment pursuant to Table 5-2 on page 107 of the A.M.A., Guides.
By decision dated April 22, 2008, the Office denied appellant’s claim for a schedule
award on the grounds that the evidence did not establish that she had a permanent impairment of
the lungs. On May 1, 2008 his attorney requested an oral hearing.
In a report dated June 12, 2008, Dr. Baker reviewed the February 20, 2008 PFS and
found that an FEV1 of 74 percent constituted a class 2 pulmonary impairment, or 10 to 25
percent of the whole person according to Table 5-12 on page 107 of the A.M.A., Guides.
A September 19, 2008 PFS performed for Dr. Baker measured appellant’s FVC in liters
as 3.06 prebronchodilator, or 81 percent of predicted, and 3.50 postbronchodilator, or 93 percent
of predicted postbronchodilator. FEV1 measured 2.20 liters prebronchodilator, or 76 percent of
predicted and 2.34 postbronchodilator, or 81 percent of predicted. The diffusing capacity of
carbon monoxide (DCLO) measured 14.7 or 55 percent of predicted. Dr. Baker found the PFS
results valid and appellant’s cooperation good. He diagnosed a mild obstructive defect by
prebronchodilator study and noted that the diffusion study revealed a moderate impairment.
By decision dated December 1, 2008, the hearing representative affirmed the April 23,
2008 decision. He found that the September 19, 2008 revealed an FEV1 more than the lower
limit of normal and was thus insufficient to show that appellant had any ratable pulmonary
impairment.

3

LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act,2 and its
implementing federal regulations,3 set forth the number of weeks of compensation payable to
employees sustaining permanent impairment from loss, or loss of use, of scheduled members or
functions of the body. However, the Act does not specify the manner in which the percentage of
loss shall be determined. For consistent results and to ensure equal justice under the law for all
claimants, the Office has adopted the A.M.A, Guides as the uniform standard applicable to all
claimants.4 Office procedures direct the use of the fifth edition of the A.M.A., Guides, issued in
2001, for all decisions made after February 1, 2001.5
Chapter 5 of the fifth edition of the A.M.A., Guides provides that permanent impairment
of the lungs is determined on the basis of pulmonary function tests, i.e., the FVC and the one
second FEV1, the ratio between FEV1 and FVC and Dco, or DLCO. The values for predicted
and observed normal values for FEV1, FVC and Dco are found in Tables 5-2a through 5-7b.6
The A.M.A., Guides provides a table consisting of four classes of respiratory impairment based
on a comparison of observed values for certain ventilatory function measures and their respective
predicted values.7 For Classes 2 through 4, the appropriate class of impairment is determined by
whether the observed values fall alternatively within identified standards for FVC, FEV1, Dco or
maximum oxygen consumption (VO2Max). For each of the FVC, FEV1 and Dco results, an
observed result will be placed within Class 2, 3 or 4 if it falls within a specified percentage of the
predicted value for the observed person.8 For example, a person is within Class 2 impairment,
equaling 10 to 25 percent impairment of the whole person, if the FVC, FEV1 or Dco is above 60
percent of the predicted value and less than the lower limit of normal.9 Section 5.10 of the
A.M.A., Guides advises that at least one of the criteria must be fulfilled to provide an individual
with an impairment rating.10
ANALYSIS
The Office accepted appellant’s claim for coal workers’ pneumoconiosis. On May 2,
2006 appellant filed a claim for a schedule award. He submitted a March 27, 2004 PFS
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

Id. at § 10.404(a).

5

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

6

A.M.A., Guides 95-100. The pulmonary function tables are based on gender, age and height.

7

Id. at 107, Tables 5-12.

8

The predicted normal values and the predicted lower limits of normal values for the FVC, FEV1 and DLCO tests
are delineated in Tables 5-2a through 5-7b.
9

A.M.A., Guides 107, Table 5-12.

10

Id. at 107.

4

performed by Dr. Baker. On May 1, 2007 Dr. Haller, an Office referral physician, found that the
PFS he obtained on that date and Dr. Baker’s March 27, 2004 PFS were both invalid as the loops
were unacceptable according to ATS standards.
On February 20, 2008 appellant submitted a PFS performed by Dr. Simpao. Dr. Baker
reviewed this study and found that it showed a Class II impairment as the FEV1 was between 60
and 79 percent of predicted. An Office medical adviser found, however, that, as the results of
the FEV1 and FVC were above the lower limit of normal given appellant’s age and height, he
had no impairment.11 Under Table 5-2 on page 107, the FEV1 and FVC must be below the lower
limit of normal for there to be a ratable impairment.
In a September 19, 2008 PFS, Dr. Baker measured appellant’s FVC in liters as 3.06
prebronchodilator and 3.60 postbronchodilator. He further determined that the FEV1 in liters
was 2.20 prebronchodilator and 2.34 postbronchodilator. As noted by the hearing representative,
these figures do not yield any impairment under the A.M.A., Guides.12 The DCLO, however,
measured 14.7 liters, or 55 percent of predicted. Under the A.M.A., Guides this would yield an
impairment.13 The Office did not refer the September 19, 2008 PFS to an Office medical adviser
for review to determine whether it revealed a ratable pulmonary impairment. The case will be
remanded for this purpose. Following this and any further development deemed necessary, the
Office will issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

11

Id. at 95, 97, 107, Tables 5-2b, 5-4b, 5-2.

12

Id.

13

Id. at 99, 107, Tables 5-6b, 5-12.

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 1 and April 22, 2008 are set aside and the case is
remanded for further proceedings consistent with this decision of the Board.
Issued: September 30, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Petersburg, FL, Employer
__________________________________________

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

Docket No. 19-1243
Issued: February 21, 2020

Case Submitted on the Record

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

JURISDICTION
On May 17, 2019 appellant filed a timely appeal from a March 14, 2019 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 14, 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 appellant has met her burden of proof to establish bilateral carpal
tunnel syndrome (CTS) and bilateral shoulder tendinitis causally related to the accepted factors of
her federal employment.
FACTUAL HISTORY
On August 11, 2015 appellant, then a 38-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging that she developed bilateral CTS and bilateral shoulder
tendinitis due to factors of her federal employment, including repetitive movements with her
“hands, wrists, and bilateral upper extremities.” On the reverse side of the claim form, the
employing establishment indicated that appellant was off work due to a prior claim under OWCP
File No. xxxxxx810.3
In an undated narrative statement, appellant explained that her federal employment duties
required typing and computer use, bending and picking up papers and feeding them into a machine,
carrying flyers and walking them to an office, and pushing and pulling carts. She indicated that
she was experiencing neck, low back, and bilateral upper extremity pain, as well as tingling,
numbness, and a burning sensation radiating into her wrists and hands as a result of her job duties.
Appellant concluded that her collective injuries led to permanent cervical disc pathology and nerve
impingement in her shoulders.
In a letter dated August 21, 2015, the employing establishment confirmed that appellant’s
job duties required using a computer mouse, typing on a keyboard, and using a telephone, which
included performing simple grasping, fine manipulation, and intermittent pushing and pulling. It
explained that she had flexibility to get up and take breaks as needed during the workday, but she
had not worked in this capacity since August 2014.
In a report dated July 29, 2015, Dr. Joel Franck, a Board-certified neurosurgeon, detailed
three separate injuries appellant alleged to have sustained and the treatment history following her
initial injury in 2012. He diagnosed C6-7 post-traumatic herniated cervical disc with intractable
cervical pain, headaches, and radiculopathy and noted planned surgical procedures to include a
cervical discectomy at C6-7.
In a development letter dated August 26, 2015, OWCP advised appellant of the deficiencies
of her claim. It requested additional factual and medical evidence and provided a questionnaire
for her completion. OWCP afforded appellant 30 days to submit additional evidence and respond
to its inquiries.

3

Appellant has a prior accepted claim for a September 17, 2012 neck sprain and scalp contusion under OWCP File
No. xxxxxx217. She also has a prior accepted claim for cervical intervertebral disc without myelopathy related to a
February 19, 2013 work injury under OWCP File No. xxxxxx810. OWCP paid appellant wage-loss compensation for
temporary total disability until September 4, 2013 when she returned to part-time, limited-duty work as a sales solution
team member.

2

In response, appellant submitted a narrative statement dated September 2, 2015 reiterating
the factual history of her claim and asserting that various repetitive movements, while in the
performance of duty, caused her claimed condition. She also submitted diagnostic studies,
including an August 13, 2015 nerve conduction study of the upper extremities that was suggestive
of CTS on the right side and bilateral ulnar neuropathy, more pronounced in the right elbow.
Magnetic resonance imaging (MRI) scans of the wrists dated September 3, 2015 demonstrated
plus ulna configuration with a thinned fibrocartilage with signal in both wrists, supporting a tear.
A left hand MRI scan on the same date revealed fluid in the trapezium/first metacarpal junction
and edema extending along the flexor pollicis longus tendon.
In a September 16, 2015 report, Dr. Kevin L. Scott, a Board-certified orthopedic surgeon,
diagnosed bilateral radiculopathy of the upper extremities, bilateral CTS, right shoulder tendon
and/or ligament tear, bilateral shoulder impingement, and depression and anxiety secondary to
chronic pain and work-related injuries. He opined that, the evidence of record, his positive medical
examination, and the confirmation of appellant’s orthopedic pathology by diagnostic studies were
consistent with the mechanism of injury described by her. Therefore, Dr. Scott concluded that her
repetitive work, overhead maneuvers, and continuous use of two computers and telephones in the
workplace had caused tears in both of her hands/wrists and her bilateral CTS.
By decision dated October 5, 2015, OWCP denied the claim because the medical evidence
of record was insufficient to establish a causal relationship between appellant’s diagnosed
conditions and the accepted factors of her federal employment.
On November 2, 2015 appellant requested an oral hearing before an OWCP hearing
representative.
Appellant continued to submit additional evidence. In a September 2, 2015 report, Dr. Sara
Vizcay, a Board-certified family practitioner, reiterated Dr. Scott’s diagnoses and ruled out right
shoulder tendon and/or ligament tear. Dr. Vizcay opined that based on her review of all of
appellant’s statements, medical record evaluations, all correspondence available to her, and her
physical examination, appellant’s statement of the events that occurred during and after her workrelated injuries of July 29, 2015 were true and consistent with her report of the facts and medical
findings. She concurred with Dr. Scott that, even though appellant had returned to work on
September 4, 20134 in a light-duty capacity, her repetitive work, overhead maneuvers, and
continuous use of two computers and telephones caused her bilateral shoulder and bilateral CTS
pathology.
Appellant submitted a right hand MRI scan dated September 3, 2015 in support of her
request. The scan demonstrated plus ulna configuration with a thinned renal fibrocartilage with
signal supporting a tear in the right hand.
In a December 1, 2015 medical report from Dr. Vizcay, she again noted appellant’s
complaints of severe pain in her neck and right shoulder, as well as complaints of numbness and
4

The Board notes that Dr. Vizcay initially indicated that appellant’s return to work date was September 4, 2015.
Dr. Vizcay later correctly indicated, as quoted by Dr. Franck, that appellant’s return to work date was
September 4, 2013. The Board considers the initially referenced return to work date to be a typographical error.

3

tingling in appellant’s upper extremities. She was observed to be in acute distress and on physical
examination she had tenderness and reduced range of motion in both shoulders, more severe on
the right. Dr. Vizcay reiterated her concurrence with Drs. Franck and Scott’s opinion that
repetitive movements at work, including overhead maneuvers and use of a computer and
telephone, caused appellant’s shoulder conditions and bilateral CTS.
In a progress note dated May 11, 2015, Dr. Jay Parekh, a Board-certified anesthesiologist
and pain management specialist, reported administering cervical branch blocks to treat appellant’s
conditions.
On May 18, 2015 Dr. Parekh noted that appellant had 50 percent relief following the
cervical branch blocks, but continued with pain. He performed a cervical medial branch
radiofrequency ablation and indicated that she reported improvement in her pain.
In a follow-up note dated February 12, 2016, Dr. Parekh noted that appellant had good
relief from the cervical ablation, but the pain in her neck and shoulder gradually returned.
On October 4, 2016 appellant, through counsel, requested reconsideration of the October 5,
2015 decision. In support of this request, appellant submitted a September 22, 2016 medical report
from Dr. Theodore Vlahos, a Board-certified orthopedic surgeon, who detailed her treatment
history, and diagnostic and examination findings. Dr. Vlahos administered a right shoulder steroid
injection to treat appellant’s ongoing pain, which he attributed to work-related activity on or
around July 29, 2015.
By decision dated December 23, 2016, OWCP denied modification of its prior decision.
On February 13, 2017 appellant, through her representative, requested reconsideration of
OWCP’s December 23, 2016 decision. In an attached report from Dr. Vlahos dated February 7,
2017, he diagnosed chronic neck pain with disc herniations at C4-5 and C6-7 with displacement
and radiculitis and found subjective evidence of right CTS, right cubital tunnel syndrome, and
bilateral shoulder impingement syndrome. He opined that appellant’s CTS and shoulder
impingement were the result of work-related activities that occurred in July 2014. Dr. Vlahos
asserted that repetitive overhead lifting as she described was clearly associated as a mechanism
causing impingement of the shoulders as the elevation of the arm caused approximation of the
supraspinatus tendon against the acromion and acromial arch, thus leading to direct impingement.
He further opined that repetitive typing, keyboarding, and other repetitive activities such as using
a computer mouse had been associated with increased frequency of CTS and were noted as a
common predisposing activity for CTS, which appellant had clinically on the right and was
documented with the nerve conduction velocity (NCV) study.
By decision dated April 7, 2017, OWCP denied modification of its prior decision.
On February 14, 2018 appellant, through her representative, requested reconsideration of
the April 7, 2017 decision.
In a January 11, 2018 report, Dr. Mark A. Seldes, a Board-certified family practitioner,
diagnosed bilateral shoulder impingement, bilateral elbow lateral epicondylitis, bilateral CTS, and
cervical radiculopathy of the bilateral upper extremities, related to a separate case. He opined that
4

appellant’s federal duties of repetitive movement, heavy lifting, and constant pulling and pushing
over many years aggravated the prior injuries to her shoulders, elbows, wrists, and hands.
Dr. Seldes noted that, even when she returned to work in a limited-duty capacity, she was moving
materials above her shoulders, stuffing materials into envelopes, working on the computer, and
using a mouse and opined that these activities aggravated her CTS.
A January 31, 2018 MRI scan of the cervical spine revealed posterior disc bulges at C4-5,
C5-6, and C6-7, with minimal indentation of the ventral thecal sac.
In a February 20, 2018 medical report, Dr. Robert Nucci, a Board-certified orthopedic
surgeon, indicated that he was seeing appellant for a work-related injury that occurred on
February 19, 2013. He detailed her treatment history and examination findings, and attached the
results of an August 21, 2017 electromyography (EMG) and NCV study revealing probable
right-sided cervical radiculopathy
Appellant submitted additional reports from Dr. Nucci dated July 19 and August 9, 2018
noting continued complaints of neck pain radiating into her shoulder and arm.
On January 23, 2019 OWCP referred appellant to Dr. Patrick Horan, a Board-certified
orthopedic surgeon, for a second opinion evaluation to determine the nature and extent of her
employment-related conditions.
In his February 27, 2019 report, Dr. Horan noted that the only objective finding on
examination was appellant’s loss of full flexion and abduction of the shoulders. He found that the
NCV studies were borderline positive and recommended readministering the test with a
neurologist to get a definitive diagnosis on radiculopathy or the possibility of CTS because in
reviewing the tests there was minimal difference in the median nerve, although it read as suggestive
of CTS. Dr. Horan noted that the objective findings of the MRI scans of the shoulders were
normal. Appellant had some arthritis in the acromioclavicular joint and some tendinosis in the
supraspinatus, which he did not find consistent with her injury. Dr. Horan opined that she had a
radicular pain pattern that radiated down her small finger, but her NCV tests were borderline and
could not be identified as CTS. He further found no elbow pathology and concluded that the MRI
scans of the shoulder were consistent with normal wear and tear and that she did not have a specific
mechanism of injury for shoulder impingement, with the exception that she was previously
working at shoulder level. Dr. Horan concluded that appellant’s subjective complaints greatly
outweighed her objective findings and that her work restrictions were related to her diagnosis of
cervical radiculopathy.
By decision dated March 14, 2019, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence, including the fact that the individual is an employee of the United States within the
5

Id.

5

meaning of FECA, that the claim was timely filed within the applicable time limitation period of
FECA, that an injury was sustained in the performance of duty as alleged, and that any disability
or specific condition for which compensation is claimed is causally related to the employment
injury.6 These are the essential elements of every compensation claim regardless of whether the
claim is predicated on a traumatic injury or an occupational disease.7
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.8
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.9 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.10 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s).11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish bilateral CTS
and bilateral shoulder tendinitis causally related to the accepted factors of her federal employment.
OWCP properly referred appellant to Dr. Horan for a second opinion evaluation to
determine the nature and extent of her bilateral CTS and bilateral shoulder conditions. In his
February 27, 2019 second opinion report, Dr. Horan found that her NCV tests were borderline and
could not be read to positively diagnose CTS. He also noted that appellant had no elbow
pathology, her shoulder MRI scans were consistent with normal wear and tear and she did not have
a specific mechanism of injury for shoulder impingement, with the exception that she was working
at shoulder level previously. Dr. Horan noted that her subjective complaints greatly outweighed

6

K.V., Docket No. 18-0947 (issued March 4, 2019); M.E., Docket No. 18-1135 (issued January 4, 2019); Kathryn
Haggerty, 45 ECAB 383, 388 (1994).
7

K.V. and M.E., id.; Elaine Pendleton, 40 ECAB 1143 (1989).

8
R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
9

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

10

M.V., Docket No. 18-0884 (issued December 28, 2018).

11

Id.; Victor J. Woodhams, supra note 8.

6

her objective findings and concluded that her work restrictions were related to her diagnosis of
cervical radiculopathy, not her claimed conditions of bilateral CTS and shoulder tendinitis.
The Board finds that Dr. Horan’s report represents the weight of the medical evidence. The
Board finds that he had full knowledge of the relevant facts and evaluated the course of appellant’s
condition. Dr. Horan is a specialist in the appropriate field. His opinion is based on proper factual
and medical history and his report contained a detailed summary of this history. Dr. Horan
addressed the medical records to formulate his own examination findings to reach a reasoned
conclusion regarding appellant’s conditions.12 He found no basis on which to establish a causal
relationship between her bilateral CTS and bilateral shoulder conditions and her repetitive duties
at work. Dr. Horan’s opinion as set forth in his February 27, 2019 report is found to be probative
evidence and reliable.
The Board notes that, while the reports from Drs. Scott, Vizcay, Vlahos, and Seldes
provided diagnoses and are generally supportive of causal relationship, they are insufficient to
establish the claimed bilateral CTS and shoulder condition is causally related to appellant’s
employment duties. They failed to identify the specific employment factors alleged by her and
did not provide a pathophysiological explanation as to how those activities either caused or
contributed to her diagnosed condition.13 Moreover, the Board has held that 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.14 For these reasons, the Board finds that the reports from
appellant’s physicians are insufficient to meet appellant’s burden of proof or create a conflict, as
they do not provide adequate physiological explanation regarding the cause of her diagnosed
conditions.
Appellant was also followed by Drs. Franck, Parekh, and Nucci for her previously accepted
cervical injuries. As these physicians failed to address causal relationship related to her claimed
CTS and shoulder tendinitis conditions, their reports are of no probative value and are insufficient
to meet her burden of proof.15
Appellant further submitted various diagnostic studies in support of her claim. The Board
has held that diagnostic studies lack probative value as they do not provide an opinion on causal
relationship between the employment incident and her diagnosed conditions.16 These reports are
therefore also insufficient to establish appellant’s claim.

12

See R.C., Docket No. 14-1964 (issued January 22, 2015); Michael S. Mina, 57 ECAB 379 (2006) (the opportunity
for and thoroughness of examination, the accuracy and completeness of the physician’s knowledge of the facts and
medical history, the care of analysis manifested, and the medical rationale expressed in support of the physician’s
opinion are facts which determine the weight to be given to each individual report).
13

Supra note 9.

14

See J.L., Docket No. 18-1804 (issued April 12, 2019).

15

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

16

See I.C., Docket No. 19-0804 (issued August 23, 2019).

7

As appellant has not submitted any rationalized medical evidence to support her claim that
she sustained bilateral CTS or bilateral shoulder tendinitis causally related to the accepted
employment factors, she has failed to meet her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish bilateral CTS
and bilateral shoulder tendinitis causally related to the accepted factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the March 14, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 21, 2020
Washington, DC

Patricia H. Fitzgerald, Deputy 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


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
WEAPONS CENTER, China Lake, CA,
Employer
__________________________________________

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Appearances:
Stephanie N. Leet, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1741
Issued: May 5, 2020

Case Submitted on the Record

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

JURISDICTION
On August 16, 2019 appellant, through counsel, filed a timely appeal from a June 17, 2019
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The most recent
merit decision was a Board decision dated April 4, 2018, which became final 30 days after
issuance, and is not subject to further review.2 As there was no merit decision by OWCP within
180 days of the filing of this appeal, pursuant to the Federal Employees’ Compensation Act3
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

20 C.F.R. § 501.6(d). See P.H., Docket No. 19-1354 (issued 03/13/20); G.G., Docket No. 18-1074 (issued
January 7, 2019).
3

5 U.S.C. § 8101 et seq.

(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this
case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances as set forth
in the prior Board decision are incorporated herein by reference. The relevant facts are as follows.
On December 21, 2005 appellant, then a 55-year-old information technology specialist,
filed a traumatic injury claim (Form CA-1) alleging that on that day she was descending stairs
when her left foot got caught on a garden hose, she stumbled and fell to the sidewalk injuring her
right knee, right hand, and wrist while in the performance of duty. OWCP initially accepted the
claim for contusions of the right knee and right wrist/hand.5 It subsequently expanded acceptance
of the claim to include right carpal tunnel syndrome, enthesopathy of the right wrist and carpus,
right knee lateral meniscus tear, and psychogenic pain. On June 18, 2009 OWCP again expanded
acceptance of the claim to include aggravation of degenerative joint disease of the right knee.
In May 2007, appellant underwent the first of several OWCP-authorized right knee surgical
procedures.6 QWCP also authorized a right total knee arthroplasty7 and a right knee revision
arthroplasty8 and paid her wage-loss compensation beginning July 24, 2008. It placed appellant
on the periodic compensation rolls effective August 31, 2008.
On July 13, 2009 counsel initially requested that OWCP expand the acceptance of the claim
to include left knee degenerative joint disease (osteoarthritis) as an accepted condition, alleging
that appellant had also injured her left knee when she fell on December 21, 2005.
After further development of the claim, OWCP determined that a conflict in medical
opinion existed between appellant’s treating physician and OWCP’s second opinion physician

4

Docket No. 16-1655 (issued April 4, 2018), petition for recon. denied (issued August 17, 2018).

5

Appellant also has an accepted claim (OWCP File No. xxxxxx096) for nose laceration and soft tissue injury to
both knees and right hand, and cervical strain due to an employment-related fall on January 6, 1989. OWCP combined
the two traumatic injury claims and designated OWCP File No. xxxxxx350, the current file, as the master file.
6

On May 31, 2007 Dr. Mohamed Z. Lameer, an orthopedic surgeon, performed an arthroscopic right knee
synovectomy, and partial medial and lateral meniscectomies.
7

Dr. Lameer performed the procedure on August 12, 2009.

8
On May 23, 2012 Dr. Paul D. Burton, a reconstructive orthopedic surgeon, performed a right knee revision
arthroplasty.

2

regarding whether appellant’s left knee osteoarthritis/degenerative joint disease was medically
connected to the 2005 employment injury by aggravation.
OWCP referred appellant to Dr. John D. Kaufman, a Board-certified orthopedic surgeon,
for an impartial medical examination to resolve the conflict in medical opinion. Dr. Kaufman
opined that there was no connection between her left knee conditions and the December 21, 2005
employment injury.
By decision dated February 18, 2016, OWCP denied appellant’s request to expand the
acceptance of the claim to include additional left knee diagnoses. It found the special weight of
the medical evidence, as represented by Dr. Kaufman’s impartial medical opinion, established that
the left knee conditions were unrelated to the accepted December 21, 2005 employment injury.
Appellant appealed OWCP’s February 18, 2016 decision to the Board and, by decision
dated April 4, 2018, the Board affirmed the February 18, 2016 decision.9 The Board found that
OWCP properly declared a conflict in medical opinion and had properly referred her to
Dr. Kaufman for a new referee examination to resolve the ongoing conflict in medical opinion
evidence. The Board further found that Dr. Kaufman’s report represented the special weight of
the medical evidence with regard to the issue of whether the acceptance of appellant’s claim should
be expanded to include a consequential left knee condition.
The record reveals that OWCP expanded acceptance of the claim to include major
depressive disorder, recurrent, severe without psychotic features, and localized primary
osteoarthritis of right leg as accepted conditions.
On March 29, 2019 appellant, through counsel, requested reconsideration of OWCP’s
denial of her request to expand the acceptance of her claim to include consequential left knee
diagnoses, aggravation of right knee osteoarthritis, right knee reflex sympathetic dystrophy
syndrome (RSD), and aggravation of lumbar spondylosis. In her March 21, 2019 letter, counsel
asserted that OWCP committed various procedural errors in weighing and developing the medical
evidence. Alternatively, counsel asserted that OWCP should further develop the claim with
respect to those conditions as the evidence of record, including the new evidence, was sufficient
to establish a prima facie case.
Medical reports from Dr. Shahin Sadik, a Board-certified anesthesiologist, dated April 19,
June 21, August 16, and October 16, 2018 and January 7, February 4, March 7, and May 20, 2019,
documented appellant’s pain management treatments of her right leg and back pain. He provided
an impression of complex regional pain syndrome (CRPS) RSD of right lower extremity “because
of employment injury.” Other conditions reported included: synovitis and tenosynovitis, right
hand; traumatic tear of lateral meniscus of right knee; carpal tunnel syndrome, right upper
extremity; painful total knee replacement; long term (current) use of opiate analgesic; and
unilateral primary osteoarthritis, right knee. Dr. Sadik opined that appellant was totally disabled
because of right knee and subsequent severe neuropathic pain and weakness.

9

Supra note 5.

3

In an extensive narrative report dated April 8, 2019, Dr. Sadik explained that appellant had
undergone right knee replacement surgery, as well as lumbar surgery which caused damage to her
peroneal nerve. The resulting neuropathy caused a CRPS of the right lower extremity, which
remained untreated for a period of time. Dr. Sadik related that appellant developed antalgic gait,
and damage to her right hip as well. He further related that additional weight bearing to the left
lower extremity and antalgic gait favoring the right side caused pain and subsequent arthritis to
her left knee.
OWCP also received a May 4, 2018 report, in which Lawrence J. Coates, Ph.D., a clinical
psychologist, requested adjudication of the psychiatric portion of appellant’s claim. Mr. Coates
indicated that he had been treating appellant for major depressive disorder and that she remains
temporarily totally disabled. Also received were additional reports from Dr. Sadik referencing
acupuncture and physical therapy.
Reports from Dr. Ray D’ Amours, a Board-certified pain medicine specialist, from
November 19, 2018, documented appellant’s pain management of her back and right leg/knee
CRPS. He opined that she was totally disabled as a result of her right knee and severe neuropathic
pain and weakness.
By decision dated June 17, 2019, OWCP denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a). It found that counsel failed to submit new
and relevant legal argument or evidence in support of the March 21, 2019 request for
reconsideration.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.10 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.11 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.12
Aright to reconsideration within one year also accompanies any subsequent merit decision on the
issues.13 This includes any hearing or review of the written record decision, any denial of

10

5 U.S.C. § 8128(a).

11

20 C.F.R. § 10.607.

12

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the Integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4(b).
13
C.H., Docket No. 19-0669 (issued October 9, 2019); F.N., Docket No. 18-1543 (issued March 6, 2019); Robert F.
Stone, 57 ECAB 292 (2005).

4

modification following reconsideration, any merit decision by the Board, and any merit decision
following action by the Board, but does not include prerecoupment hearing decisions.14
A timely application for reconsideration, including all supporting documents, must set forth
arguments, and contain evidence that either: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously
considered by OWCP.15 When a timely application for reconsideration does not meet at least one
of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits.16
ANALYSIS
The Board finds that the case is not in posture for decision.
In her March 29, 2019 request for reconsideration, counsel argued that appellant had
established that acceptance of her claim should be expanded to include consequential left knee
diagnoses, aggravation of right knee osteoarthritis, right knee RSD, and aggravation of lumbar
spondylosis. In support of her argument counsel submitted a number of medical reports. The
Board notes that the record is clear that OWCP received April 19, June 21, October 16, and 2018,
as well as February 4 and March 7, 2019 progress reports from Dr. Sadik. OWCP, however, in its
decision denying appellant’s request for reconsideration, noted other reports received, but did not
note receipt of these reports.
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.17
Since the Board’s jurisdiction of a case is limited to reviewing that evidence which is before
OWCP at the time of its final decision,18 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 to the subject matter appealed,19 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.20

14

Supra note12 at Chapter 2.1602.4(a) (February 2016).

15

20 C.F.R. § 10.606(b)(3); see C.H., supra note 13; T.M., Docket No. 19-0535 (issued July 25, 2019).

16

Id. at 10.608(b); see T.V., Docket No. 19-1504 (issued January 23, 2020); E.R., Docket No. 09-1655 (issued
March 18, 2010).
17

5 U.S.C. § 8124(a)(2).

18

20 C.F.R. § 501.2(c).

19

Id. at § 501.6(d).

20

J.Z., Docket No. 19-1005 (issued December 30, 2019); William A. Couch, 41 ECAB 548 (1990).

5

The Board finds that OWCP improperly failed to consider all the relevant evidence
submitted by appellant in denying her request for reconsideration of the merits of her claim
pursuant to 5 U.S.C. § 8128(a). Therefore, the case is remanded to OWCP for consideration of
the evidence she submitted in connection with her reconsideration request, to be followed by the
issuance of an appropriate decision regarding her reconsideration request.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the June 17, 2019 decision of the Office of Workers’
Compensation Programs is set aside and this case is remanded to OWCP for further proceedings
consistent with this decision of the Board.
Issued: May 5, 2020
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.G., Appellant
and
DEPARTMENT OF THE INTERIOR, BUREAU
OF RECLAMATION, Billings, MT, Employer
__________________________________________

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

Docket No. 17-0632
Issued: July 26, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 27, 2017 appellant filed a timely appeal from a December 9, 2016 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 his burden of proof to establish an injury on
August 11, 2016 causally related to the accepted employment incident.
FACTUAL HISTORY
On August 19, 2016 appellant, then a 50-year-old engineering equipment operator, filed a
traumatic injury claim (Form CA-1) alleging that, on August 11, 2016, he injured his back when
he bent down to place packing paper into a trash can. He did not stop work.
1

5 U.S.C. § 8101 et seq.

In a report dated September 14, 2016, Dr. Paul J. Miller, a Board-certified osteopath,
related appellant’s date of injury as August 11, 2016. He examined appellant, noted back pain,
and diagnosed foraminal stenosis of the lumbosacral region, and L5-S1 degenerative disc disease
with neural foraminal stenosis and L5 radiculopathy bilaterally, greater on the right. Dr. Miller
related that appellant reported his condition had been present for a number of years, dating back
to approximately three years earlier when he fell at work. He further noted that in July 2016
appellant bent over to throw something into the trash, which aggravated his existing condition.
On September 14, 2016 Dr. Miller interpreted the results of an x-ray of appellant’s
lumbar spine. He noted no abnormalities except a slight listhesis at L5-S1 with disc collapse.
By letter dated October 27, 2016, OWCP informed appellant of the evidence needed to
establish his claim. It noted that he had not submitted sufficient factual and medical evidence to
establish his claim, and afforded him 30 days to submit additional evidence.
OWCP thereafter received additional medical evidence. In a diagnostic report dated
July 7, 2016, Dr. James T. Harris, Board-certified in occupational medicine, examined the results
of a magnetic resonance imaging (MRI) scan of appellant’s lumbar spine. He stated impressions
of mild, worsening degenerative disease with new and increasing disc bulges. Dr. Harris noted
evidence of an annular tear or fissure in the posterior margin of the L5-S1 disc, along with mild
narrowing of the spinal canal at L3-4 and multilevel foraminal narrowing with mild left and
moderate right neural foraminal narrowing at L5-S1.
In a report dated November 4, 2016, Dr. Miller followed up with appellant after an
epidural steroid. He noted that after the injection on October 14, 2016 appellant’s pain did not
resolve, but changed with constant but intermittent levels of intensity. Dr. Miller assessed
appellant with lumbar spinal stenosis.
By decision dated December 9, 2016, OWCP denied appellant’s claim for compensation.
It accepted that appellant had established that the incident occurred as alleged, but found that he
had not submitted any rationalized medical evidence to establish causal relationship between the
incident of August 11, 2016 and his diagnosed conditions.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an “employee of
the United States” within the meaning of FECA, that the claim was timely filed within the
applicable time limitation period of FECA, that an injury3 was sustained in the performance of

2

Id.

3

OWCP’s regulations define a traumatic injury as a condition of the body caused by a specific event or incident,
or series of events of incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).

2

duty as alleged, and that any disability or medical condition for which compensation is claimed
is causally related to the employment injury.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.
A fact of injury determination is based on two elements. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit sufficient
evidence, generally only in the form of medical evidence, to establish that the employment
incident caused a personal injury. An employee may establish that the employment incident
occurred as alleged, but fail to show that his or her condition relates to the employment incident.5
The claimant has the burden of proof to establish 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.6 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 causal relationship.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.8 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is causal relationship between the employee’s diagnosed condition and
compensable employment factors.9 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.10
ANALYSIS
OWCP accepted that on August 11, 2016 appellant sustained a back injury as a result of
putting packing paper into a trash can. The Board finds that appellant has not submitted medical
T.H., 59 ECAB 388, 393 (2008); see Steven S. Saleh, 55 ECAB 169, 171-72 (2003); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
4

5

See Shirley A. Temple, 48 ECAB 404, 407 (1997); John J. Carlone 41 ECAB 354, 356-57 (1989).

6

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

7

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

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149, 155-56 (2006); DʹWayne Avila, 57
ECAB 642, 649 (2006).
8

9

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

10

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

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evidence sufficient to establish that the August 11, 2016 incident caused or aggravated his
diagnosed foraminal stenosis of the lumbosacral region, and L5-S1 degenerative disc disease
with neural foraminal stenosis and L5 radiculopathy bilaterally.
In support of his claim, appellant submitted several reports from Dr. Miller. In a report
dated September 14, 2016, Dr. Miller diagnosed foraminal stenosis of the lumbosacral region,
L5-S1 degenerative disc disease with neural foraminal stenosis and L5 radiculopathy. He noted
that appellant reported that his condition had been present for a number of years, dating back to
approximately three years earlier when he fell at work. While Dr. Miller related appellant’s date
of injury as August 11, 2016, he further noted that in July 2016 appellant bent over to throw
something into the trash, which aggravated his existing condition. In his November 4, 2016
report, Dr. Miller diagnosed lumbar spinal stenosis. These reports, while probative on the issue
of appellant’s diagnosis, do not contain a sufficient biomechanical explanation of how the event
of August 11, 2016 caused or aggravated these conditions. This is especially important given
appellant’s history of preexisting degenerative lumbar disease.11
The record is devoid of a rationalized opinion from a qualified physician on the issue of
the causal relationship between appellant’s lower back conditions and the incident of
August 11, 2016. While Dr. Miller recounted appellant’s recollection of a past history of back
conditions, along with an incident in July 2016 similar to the incident of August 11, 2016, he did
not offer a rationalized medical opinion, as to the cause of appellant’s conditions.12
OWCP also received several diagnostic reports. In a July 7, 2016 report, Dr. Harris
reviewed appellant’s MRI scan and related impressions of mild, worsening degenerative disease
with new and increasing disc bulges, annual tear or fissure in the posterior margin of the L5-S1
disc, along with mild narrowing of the spinal canal at L3-4 and multilevel foraminal narrowing
with mild left and moderate right neural forminal narrowing at L5-S1. The Board notes that this
report predates the August 11, 2016 employment incident. In a September 14, 2016 report,
Dr. Miller interpreted an x-ray of appellant’s lumbar spine and noted a slight listhesis at L5-S1
with disc collapse. The Board has held that diagnostic reports are of limited probative value
regarding the issue of causal relationship as they provide no opinion on the cause of the
diagnosed conditions.13
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.14
An award of compensation may not be based on surmise, conjecture, or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that his condition was caused, precipitated, or aggravated by his employment is
11

W.N., Docket No. 16-1722 (issued March 22, 2017).

12

Supra note 10.

13

M.S., Docket No. 16-1362 (issued December 7, 2016).

14

Supra note 11.

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sufficient to establish causal relationship.15 As such, the Board finds that appellant did not
submit sufficient evidence to establish his claim for a work-related traumatic injury in the
performance of duty on August 11, 2016. He did not submit a clear and rationalized opinion
from a qualified physician relating his diagnosed lower back conditions to the incident of
August 11, 2016.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an injury on
August 11, 2016 causally related to the accepted employment incident.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 9, 2016 is affirmed.
Issued: July 26, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

15

J.S., Docket No. 16-1769 (issued May 24, 2017).

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