United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.F., claiming as widow of, T.F., Appellant
and
DEPARTMENT OF THE ARMY, ROCKY
MOUNTAIN ARSENAL, Commerce City, CO,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 20-1387
Issued: January 10, 2022

Case Submitted on the Record

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

JURISDICTION
On July 16, 2020 appellant filed a timely appeal from a March 23, 2020 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed
from the last merit decision, dated July 27, 2018, to 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 over the merits of this case. 2

1
2

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether OWCP properly denied appellant’s March 18, 2020 request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On March 10, 2017 the employee, then a 73-year-old munitions operator, filed an
occupational disease claim (Form CA-2) alleging that he had developed myelodysplastic disease
due to factors of his federal employment. He indicated that he first became aware of his condition
on June 11, 2009 and first related it to factors of his federal employment on April 21, 2015. On
the reverse side of the claim form, the employing establishment indicated that the employee
stopped work on April 15, 1968 and first reported his condition on February 6, 2018.
In a narrative statement, the employee indicated that he worked at the employing
establishment from 1967 through 1969 in underground bunkers. He noted that the employing
establishment no longer existed and requested any documents regarding his employment. The
employee alleged that he made weapons with mustard gas and other chemicals for eight hours a
day. He asserted that he was not provided with special equipment to protect him from the gas and
chemicals that he touched and inhaled every day at work. The employee “left” after an explosion
at the employing establishment during one of his work shifts.
On February 14, 2018 appellant3 filed a claim for compensation by widow (Form CA-5)
alleging that her husband, the employee, passed away on July 19, 2017 and his death was due to
factors of his federal employment.
In a report dated September 18, 2016, Dr. Robert E. Fisher, a Board-certified oncologist,
indicated that he first examined the employee on June 11, 2009. He noted that the employee
“routinely came into cutaneous and inhalant contact” with chemical agents, including nitrogen
mustard agent poisons manufactured at the employing establishment during his employment
without protective clothing and without the opportunity to remove these agents from his skin. The
employee reported that he was also not provided with protective devices to avoid inhalation and
developed immediate cutaneous irritation, respiratory illness, and symptoms of nausea, sickness,
and illness while at work. In early 2009, the employee developed progressive fatigue, lack of
normal energy, and the inability to complete his usual daily activities. He also exhibited bruising,
dyspnea on exertion, and rapid pulse which progressed over time. Dr. Fisher found continuous
pancytopenia due to severe bone marrow disease over seven years resulting in the need from
transfusions, toxic chemotherapy, and other hematologic treatments.
He diagnosed
myelodyaplastic syndrome with multiple cryogenic abnormalities as a result of prior chemical
agent exposure. Dr. Fisher opined that the employee developed myelodysplastic syndrome as a
direct effect of his exposure to chemical agents that were part of his routine employment duties.
He explained that it was known and expected that this exposure would lead to the development of
severe bone marrow disorder many decades later and was consistent with the latency period.
Dr. Fisher asserted that during its chemical weapons production through 1969 the employing
3

Appellant provided a copy of her marriage certificate indicating that the employee and she were married on
July 27, 1983.

2

establishment manufactured both conventional and chemical weapons including white
phosphorus, napalm, mustard gas, lewisite, and chlorine gas. He noted that the medical,
toxicology, and chemical literature documented the acute and chronic hematologic toxicity of the
chemical agents the employee was exposed to at the employing establishment which typically
caused DNA damage to the bone marrow which manifested as myelodysplastic syndrome decades
after the chemical exposure.
The employee’s death certificate dated July 10, 2017 listed his causes of death as multiple
organ failure, hyperlipidemia, and ventricular tachycardia due to myelodysplastic disease.
In a March 9, 2018 development letter, OWCP advised appellant of the deficiencies of the
employee’s claim. It requested additional factual and medical evidence from appellant, and
provided a questionnaire for her completion. OWCP afforded 30 days for a response.
Appellant provided a notification of personnel action Standard Form (SF)-50 which
indicated that the employee’s appointment as a munitions operator was terminated effective
April 15, 1968.
In her March 20, 2018 response to OWCP’s development questionnaire, appellant noted
that the employee worked at the employing establishment from October 15, 1965 through April 15,
1968 as a munitions operator. She asserted that he manufactured weapons with mustard gas and
other chemicals. Appellant contended that the employee was not provided with protective gear
and worked with toxic materials in an underground bunker. She noted that there was an explosion
at the employing establishment while the employee was at work. Appellant asserted that the
employee did not smoke and was not exposed to other chemicals or carcinogens.
On April 5, 2018 appellant’s congressional representative provided brief responses to
OWCP’s development questionnaire. In an April 17, 2018 letter, OWCP requested additional
factual information regarding the employee’s work exposures to hazardous chemicals. It noted
that much of this information would be best provided by the employing establishment an d noted
that the March 9, 2018 development letter was also sent to the employing establishment.
On July 18, 2018 appellant’s congressional representative provided additional information,
including reports from Dr. Fisher dated July 29, 2009 through March 2, 2017.
By decision dated July 27, 2018, OWCP denied appellant’s claim finding that she had not
established that the employee sustained an employment injury. It found that appellant had not
established the employee’s exposures to toxic chemicals in the course of his federal employment.
Additionally, OWCP stated, “It is also noted that since this Occupational Disease case is not
accepted, the consequential death as a result of the claimed case cannot be accepted.”
On August 2, 2018 appellant submitted medical reports and test results from Dr. Fisher
dated May 22, 2009 through July 12, 2017. A June 17, 2009 pathology report from a bone marrow
biopsy found no evidence of myelodysplastic syndrome, lymphoproliferative disorder , or
plasmacytosis. On February 10, 2011 a similar test showed histologic findings consistent with
myelodysplastic syndrome. She also submitted records of the employee’s hospitalizations on
August 1 and October 21, 2011, May 5, 7, and June 9, 2017.

3

Appellant resubmitted her March 20, 2018 narrative response to OWCP’s development
questionnaire, as well as that from her congressional representative.
In an April 21, 2017 report, Dr. Peter A. McSweeney, a Board-certified internist
specializing in hematology, examined the employee due to myelodysplastic syndrome diagnosed
in 2009 and noted his history of medical treatment. He reported that appellant had two brothers
with pancreatic cancer and a sister who had ovarian cancer. On May 2, 2017 Dr. Harmeet Singh,
a cardiovascular and pulmonary disease specialist, diagnosed myelodysplastic syndrome and
edema. In a May 9, 2017 note, Dr. Richard H. Moseley, a Board-certified gastroenterologist,
reported examining appellant due to swelling and water retention.
Appellant’s congressional representative provided a December 3, 1967 notice of injury or
occupational disease completed by the employee indicating that on December 2, 1967 while he
was loading a munitions canister, the mine exploded. The employee was using a “potato masher”
and asserted that he sustained a right wrist sprain.
On March 18, 2020 appellant requested reconsideration of the July 27, 2018 decision. She
resubmitted the December 3, 1967 claim form.
By decision dated March 23, 2020, OWCP denied appellant’s March 18, 2020 request for
reconsideration finding that it was untimely filed and failed to demonstrate clear evidence of error.
It stated, “We did consider your request under 20 C.F.R. § 10.607(b) to determine whether you
presented clear evidence that [OWCP’s] last merit decision was incorrect.”
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for fu rther
merit review.4 OWCP’s regulations5 establish a one-year time limitation for requesting
reconsideration, which begins on the date of the original OWCP merit decision. A right to
reconsideration within one-year also accompanies any subsequent merit decision on the issues. 6
Timeliness is determined by the document receipt date, the received date in OWCP’s Integrated
Federal Employees’ Compensation System (iFECS). 7 Imposition of this one-year filing limitation
does not constitute an abuse of discretion. 8
When a request for reconsideration is untimely, OWCP undertakes a limited review to
determine whether the application demonstrates clear evidence that OWCP’s final merit decision

4

5 U.S.C. § 8128(a); L.H., Docket No. 19-1174 (issued December 23, 2019); Y.S., Docket No. 08-0440 (issued
March 16, 2009).
5

20 C.F.R. § 10.607(a).

6

J.W., Docket No. 18-0703 (issued November 14, 2018); Robert F. Stone, 57 ECAB 292 (2005).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (February 2016).

8

S.T., Docket No. 18-0925 (issued June 11, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).

4

was in error.9 Its procedures provide that OWCP will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the claimant’s
request for reconsideration demonstrates clear evidence of error on the part of OWCP. 10 In this
regard, OWCP will limit its focus to a review of how the newly submitted evidence bears on the
prior evidence of record.11
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP. 12 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error. 13 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate
clear evidence of error. 14 It is not enough merely to demonstrate that the evidence could be
construed so as to produce a contrary conclusion. 15 This entails a limited review by OWCP of
how the evidence submitted with the reconsideration request bears on the evidence previously of
record and whether the new evidence demonstrates clear error on the part of OWCP. 16 To
demonstrate clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflict in medical opinion or establish a clear procedural error, but
must be of sufficient probative value to shift the weight of the evidence in favor of the claimant
and raise a substantial question as to the correctness of OWCP’s decision.17 The Board makes an
independent determination of whether a claimant has demonstrated clear evidence of error on the
part of OWCP such that it abused its discretion in denying merit review in the face of such
evidence.18

9

C.V., Docket No. 18-0751 (issued February 22, 2019); B.W., Docket No. 10-0323 (issued September 2, 2010);
M.E., 58 ECAB 309 (2007); Leon J. Modrowski, 55 ECAB 196 (2004); Thankamma Mathews, 44 ECAB 765 (1993);
Jesus D. Sanchez, 41 ECAB 964 (1990).
10

D.G., Docket No. 18-1038 (issued January 23, 2019); Gladys Mercado, 52 ECAB 255 (2001).

11

V.G., Docket No. 19-0038 (issued June 18, 2019); E.P., Docket No. 18-0423 (issued September 11, 2018);
Nelson T. Thompson, 43 ECAB 919 (1992).
12

S.T., supra note 8; C.V., supra note 9; Darletha Coleman, 55 ECAB 143 (2003); Dean D. Beets, 43 ECAB
1153 (1992).
13

S.T., supra note 8; E.P., supra note 11; Pasquale C. D’Arco, 54 ECAB 560 (2003); Leona N. Travis, 43 ECAB
227 (1991).
14

L.B., Docket No. 19-0635 (issued August 23, 2019); V.G., supra note 11; C.V., supra note 9; Leon J. Modrowski,
supra note 9; Jesus D. Sanchez, supra note 9.
15

V.G., supra note 11; E.P., supra note 11; Leona N. Travis, supra note 13.

16

L.B., supra note 14.

17

D.G., supra note 10; Leon D. Faidley, Jr., supra note 8.

18

C.V., supra note 9; George C. Vernon, 54 ECAB 319 (2003); Gregory Griffin, 41 ECAB 186 (1989), petition for
recon. denied, 41 ECAB 458 (1990).

5

ANALYSIS
The Board finds that OWCP properly determined that appellant’s March 18, 2020 request
for reconsideration was untimely filed.
The most recent merit decision was OWCP’s July 27, 2018 decision which found that
appellant had not met her burden of proof to establish that the employee sustained an employmentrelated injury. As appellant’s request for reconsideration was not received by OWCP until
March 18, 2020, more than one year after the July 27, 2018 decision, it was untimely filed. 19
Consequently, she must demonstrate clear evidence of error by OWCP in denying the claim.
The Board further finds, however, that the case is not in posture for decision as to whether
appellant’s March 18, 2020 reconsideration request demonstrated clear evidence of error.
OWCP summarily denied appellant’s request for reconsideration without complying with
the review requirements of FECA and its implementing regulations. 20 Section 8124(a) of FECA
provides that OWCP shall determine and make a finding of fact and make an award for or against
payment of compensation.21 Its regulations at section 10.126 provide that the decision of the
Director of OWCP shall contain findings of fact and a statement of reasons.22 As well, OWCP’s
procedures provide that the reasoning behind OWCP’s evaluation should be clear enough for the
reader to understand the precise defect of the claim and the kind of evidence which would
overcome it.23
In denying appellant’s untimely reconsideration request, OWCP failed to analyze whether
it was sufficient to demonstrate clear evidence of error. The March 23, 2020 decision simply
noted: “We did consider your request under 20 C.F.R. § 10.607(b) to determine whether you
presented clear evidence that [OWCP’s] last merit decision was incorrect.” However, OWCP did
not address or provide discussion relative to the medical evidence submitted.24

19

20 C.F.R. § 10.607(b); C.S., Docket No. 20-1075 (issued December 31, 2020); Debra McDavid, 57 ECAB
149 (2005).
20

M.D., Docket No. 20-0868 (issued April 28, 2021); T.P., Docket No. 19-1533 (issued April 30, 2020); see also
20 C.F.R. § 10.607.
21

5 U.S.C. § 8124(a).

22

20 C.F.R. § 10.126.

23

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013).

24

See Order Remanding Case, C.G., Docket No. 20-0051 (issued June 29, 2020); R.T., Docket No. 19-0604 (issued
September 13, 2019); R.C., Docket No. 16-0563 (issued May 4, 2016).

6

The Board finds that OWCP failed to properly explain the findings with respect to the issue
presented so that appellant could understand the basis for the decision, i.e., whether she had
demonstrated clear evidence that OWCP’s last merit decision was incorrect. 25 The Board will
therefore set aside OWCP’s March 23, 2020 decision and remand the case for findings of fact and
a statement of reasons, to be followed by an appropriate decision on appellant’s untimely
reconsideration request.
CONCLUSION
The Board finds that OWCP properly determined that appellant’s March 18, 2020 request
for reconsideration was untimely filed. However, the Board further finds that the case is not in
posture for decision with regard to whether the untimely reconsideration request demonstrates
clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the March 23, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
for proceedings consistent with this decision of the Board.
Issued: January 10, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

25

OWCP regulations and procedures provide that OWCP will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if the claimant’s request demonstrates
clear evidence of error on the part of OWCP. Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations,
Chapter 2.1602.5(a) (February 2016).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Memphis, TN, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 07-1616
Issued: November 19, 2007

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 May 23, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated February 9, 2007 terminating her compensation
and medical benefits and the April 6, 2007 decision denying appellant’s request for an oral
hearing. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of the case.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s compensation
effective October 23, 2006 on the grounds that she pled guilty to violating 18 U.S.C. § 641,
unlawful conversion of government monies, in receipt of her compensation benefits; and
(2) whether the Office properly denied appellant’s request for an oral hearing.

FACTUAL HISTORY
Appellant, then a 49-year-old nursing assistant, sustained a work-related injury to her
back on September 15, 1984 while assisting a patient into a chair. Her traumatic injury claim
was accepted for lumbosacral strain and cervical defects at C5-6 and she was placed on the
periodic rolls.
The record reflects that appellant regularly submitted EN1032 forms attesting that she did
not work from February 8, 1991 through October 7, 2002. These forms advised her that she was
required to immediately report all employment for which she received wages or other payment
during the 15-month period covered by the form and that fraudulently concealing or failing to
report income could subject her to criminal prosecution. The record indicates that appellant
failed to report earnings pursuant to her employment as a private duty nurse as required.
However, she continued to receive compensation for temporary total disability through
October 23, 2006.
On July 26, 2005 appellant was indicted in the U.S. District Court for the Western
District of Tennessee for one count of theft from a government program under 18 U.S.C. § 641.
Count 1 of the indictment alleged that she did embezzle, steal, purloin and knowingly convert to
her own use, benefits from the Office to which she was not entitled, having a total value of
approximately $138,234.63. On October 23, 2006 appellant entered into a plea agreement,
whereby she pled guilty to Count 1 of the indictment, theft from government program in
violation of 18 U.S.C. § 641. On January 24, 2007 the Honorable Jon Phipps McCalla, U.S.
District Judge for the Western District of Tennessee, entered judgment in the case, finding that
appellant was guilty of Count 1 of the indictment.
By decision dated February 9, 2007, the Office terminated appellant’s compensation and
medical benefits effective October 23, 2006, the date of the plea agreement. It found that,
pursuant to 5 U.S.C. § 8148, appellant forfeited her right to further benefits under the Federal
Employees’ Compensation Act, based on her conviction of a violation related to fraud in the
application for or receipt of a benefit under the Act.
On March 13, 2007 appellant requested an oral hearing before an Office hearing
representative. In a decision issued on April 6, 2007, an Office hearing representative denied the
request for an oral hearing as untimely. The representative also determined that the issue in the
case could equally well be addressed in a request for reconsideration.
LEGAL PRECEDENT -- ISSUE 1
Section 8148 of Title 5 of the United States Code, states, in part:
“(a) Any individual convicted of a violation of section 1920 of Title 18 or any
other Federal or State criminal statute relating to fraud in the application for or
receipt of any benefit under [the Act], shall forfeit (as of the date of such
conviction) any entitlement to any benefit such individual would otherwise be
entitled to under [the Act] for any injury occurring on or before the date of such

2

conviction. Such forfeiture shall be in addition to any action the Secretary may
take under section 8106 or 8129.”
Section 10.17 of the implementing federal regulations provides, as follows:
“When a beneficiary either pleads guilty to or is found guilty on either Federal or
State criminal charges of defrauding the Federal Government in connection with a
claim for benefits, the beneficiary’s entitlement to any further compensation
benefits will terminate effective the date either the guilty plea is accepted or a
verdict of guilty is returned after trial.”1
Public Law 103-112, 107 Stat. 1089, enacted on October 21, 1993, prohibits individuals
who have been convicted of fraud related to their claims from receiving further benefits paid
under the Act. Subsequently, Public Law 103-333, enacted on September 30, 1994, added
section 8148, which provides for (a) the termination of benefits payable to beneficiaries who
have been convicted of defrauding the program and (b) the suspension of benefits payable to
beneficiaries imprisoned as a result of a felony conviction.2
Office procedures require that, to support termination or suspension of benefits under
section 8148, the case record must contain: a copy of the indictment or information; a copy of
the plea agreement, if any; a copy of the document containing a guilty verdict; and/or a copy of
the court’s docket sheet. Further, this evidence must establish: (1) the individual was convicted;
and (2) the conviction is related to the claim for or receipt of benefits under the Act.3 The
effective date of termination in fraud cases under section 8148(a) is the date of conviction, which
is the date of the verdict or in cases of a plea agreement, the date the claimant made the plea in
open court (not the date of sentencing or when the court papers were signed).4 Due to the nature
of the termination involving fraud, no pretermination notice is required before issuing a final
decision.5
ANALYSIS -- ISSUE 1
The Board finds that the Office properly terminated appellant’s compensation benefits on
the grounds that she pled guilty to the federal felony of unlawful conversion of government
monies.

1

20 C.F.R. § 10.17.

2

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.12(a) (March 1997). See
5 U.S.C. § 8148. See also Terry A. Keister, 56 ECAB ___ (Docket No. 04-1136, issued May 23, 2005).
3

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.12(d) (March 1997).

4

Id. at Chapter 2.1400.12(e)(1).

5

Jorge E. Sotomayor, 52 ECAB 105 (2000); see also id. at Chapter 2.1400.12(f)(2).

3

Under section 8148(a), a claimant who is convicted of fraud in obtaining compensation
benefits under 18 U.S.C. § 1920 or any other statute relating to fraud in the application for or
receipt of any benefit under the Act, will have his or her compensation terminated. Such a
claimant is thereafter permanently barred from receiving any compensation under the Act.
Appellant’s guilt was established by the plea agreement entered on October 23, 2006 in which
she pled guilty in open court to one count of the information charging her with unlawful
conversion of government monies under 18 U.S.C. § 641, by converting to her own use, benefits
from the Office to which she was not entitled, having a total value of approximately
$138,234.63. The plea agreement reflected that her defense counsel informed her as to the
nature of the charges brought against her and that she was pleading guilty to the charge.
The Board notes that, under the terms of the statute, appellant forfeited her entitlement to
compensation benefits following her October 23, 2006 guilty plea. For this reason, the Office
properly terminated appellant’s compensation benefits under section 8148(a).6
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of the Act provides that a claimant for compensation not satisfied
with a decision of the Secretary is entitled, on request made within 30 days after the date of the
issuance of the decision, to a hearing on her claim before a representative of the Secretary.7
Sections 10.617 and 10.618 of the federal regulations implementing this section of the Act
provide that a claimant shall be afforded a choice of an oral hearing or a review of the written
record by a representative of the Secretary.8 The Office’s procedures, which require the Office
to exercise its discretion to grant or deny a hearing when the request is untimely or made after
reconsideration, are a proper interpretation of the Act and Board precedent.9
ANALYSIS -- ISSUE 2
By decision dated February 9, 2007, the Office terminated appellant’s compensation and
medical benefits effective October 23, 2006. Appellant’s letter requesting an oral hearing was
dated March 13, 2007, more than 30 days after the February 9, 2007 decision. Thus, it properly
found that her request for a review of the written record was not timely filed under section
8124(b)(1) of the Act and that appellant was not entitled to an oral hearing as a matter of right.
The Office then exercised its discretion and determined that the issue in the case could
equally well be addressed in a request for reconsideration. As the only limitation on its authority
is reasonableness, abuse of discretion is generally shown through proof of manifest error, clearly
unreasonable exercise of judgment or actions taken which are contrary to both logic and probable
6

The Board notes that the record contains the appropriate court documents specified by Office procedures. See
Joan Ross, 57 ECAB ___ (Docket No. 06-887, issued July 24, 2006).
7

5 U.S.C. § 8124(b)(1).

8

20 C.F.R. §§ 10.616, 10.617.

9

Claudio Vasquez, 52 ECAB 496 (2002).

4

deductions from known facts.10 The Board finds that there is no evidence of record that the
Office abused its discretion in denying appellant’s request. Thus, the Board finds that the
Office’s denial of appellant’s request for an oral hearing was proper under the law and the facts
of this case.
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation effective
October 23, 2006 under 5 U.S.C. § 8148. It further finds that the Office properly denied
appellant’s request for an oral hearing.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 6 and February 9, 2007 are affirmed.
Issued: November 19, 2007
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

10

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF JUSTICE, U.S. MARSHALS )
SERVICE, Columbia, SC, Employer
)
__________________________________________ )
C.T., Appellant

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

Docket No. 14-1116
Issued: September 24, 2014

Case Submitted on the Record

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

JURISDICTION
On April 14, 2014 appellant filed a timely appeal of a December 3, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP) concerning the denial of a traumatic
injury claim. The Board also has jurisdiction over a January 21, 2014 nonmerit decision denying
merit review. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant established that he sustained a traumatic injury in
the performance of duty on March 11, 2013; and (2) whether OWCP properly refused to reopen
appellant’s case for further review of the merits pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 21, 2013 appellant, then a 26-year-old deputy U.S. marshal, filed a traumatic
injury claim alleging that on March 11, 2013 he felt acute pain in his left rib cage when he was
taken to the ground during training by another deputy who landed with his full body weight on
appellant’s chest.
In a letter dated September 16, 2013, OWCP informed appellant that the evidence was
insufficient to establish his claim. Specifically, it advised him that medical evidence was
required. Appellant was given 30 days to provide the requested information. No evidence was
received.
By decision dated October 25, 2013, OWCP denied his claim on the grounds that he
failed to establish fact of injury.
On November 6, 2013 appellant requested reconsideration. In support of his request, he
submitted the following medical evidence.
In a March 25, 2013 report, Dr. Erica L. Pate, a treating physician, reported that appellant
was seen on March 22, 2013 and when diagnosing his condition stated, “I suspect he has suffered
a bruised rib and possible intercostal muscle strain.” A review of an x-ray interpretation revealed
no evidence of any fractured ribs. Appellant related having a moderate sharp pain with a
stabbing sensation. According to him, his symptoms began about two weeks ago when he was in
training and another man’s shoulder landed on his top left anterior chest. Appellant related that
his symptoms were aggravated by sneezing, deep breathing and exertion.
By decision dated December 3, 2013, OWCP denied modification.
On January 3, 2014 appellant requested reconsideration and submitted evidence in
support of his request. In a December 19, 2013 note, Dr. Pate related seeing appellant about two
weeks after an alleged work injury on March 22, 2013 for rib pain. She related that the injury
occurred as the result of another deputy’s shoulder landing on appellant’s chest during a training
session.
By decision dated January 21, 2014, OWCP denied reconsideration.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his claim, including the fact that the individual is an employee of the United States
within the meaning of FECA; that the claim was filed within the applicable time limitation; that
an injury was sustained while in the performance of duty as alleged and that any disability and/or
specific condition for which compensation is claimed are causally related to the employment

2

5 U.S.C. § 8101 et seq.

2

injury.3 These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a fact of injury has been established.5
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged.6 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.7
ANALYSIS -- ISSUE 1
Appellant claimed a rib injury as the result of being taken to the ground during training
by another deputy who landed with his full body weight on appellant’s chest. The issue is
whether appellant sustained an injury as a result of the March 11, 2013 employment incident.
OWCP accepted that the incident occurred as alleged. However, the Board finds that appellant
did not meet his burden of proof to establish that he sustained a medical condition due to the
accepted March 11, 2013 employment incident.
The medical evidence of record is insufficient to establish that the employment incident
caused an injury. The only medical evidence submitted by appellant was a March 25, 2013
report by Dr. Pate who diagnosed a suspected bruised rib and intercostal muscle strain. While
Dr. Pate stated that the injury occurred approximately two weeks previously when appellant was
in training and another man’s shoulder landed onto appellant’s top left anterior chest, she
provided no opinion as to whether the diagnosed conditions were caused or aggravated by the
March 11, 2013 employment incident. Medical evidence which does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of
causal relationship.8 Moreover, use of the word “suspect” when describing the diagnosis
indicates that Dr. Pate’s opinion is speculative and has little probative value.9
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s conditions became apparent during a period of employment nor
the belief that his condition was caused, precipitated or aggravated by his employment is
3

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

4

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

5

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

6

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

7

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

E.K., Docket No. 09-1827 (issued April 21, 2010); A.F., 59 ECAB 714 (2008); Michael E. Smith, 50 ECAB
313 (1999).
9

Ricky S. Storms, 52 ECAB 349 (2001); Leslie C. Moore, 52 ECAB 132 (2000).

3

sufficient to establish causal relationship.10 Causal relationship must be established by
rationalized medical opinion evidence and such evidence was not submitted.
OWCP advised appellant that it was his responsibility to provide a comprehensive
medical report which described his symptoms, test results, diagnosis, treatment and the
physician’s opinion, with medical reasons, on the cause of his condition. Appellant failed to
submit appropriate medical documentation in response to OWCP’s request. As there is no
probative, rationalized medical evidence addressing how his claimed rib condition was caused or
aggravated by the March 11, 2013 employment incident, he has not met his 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
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,11
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) submit relevant and pertinent new evidence not previously
considered by OWCP.12 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.13 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review on the
merits.14
ANALYSIS -- ISSUE 2
Appellant’s January 3, 2014 request for reconsideration did not allege or demonstrate that
OWCP erroneously applied or interpreted a specific point of law. Additionally, he did not
advance a relevant legal argument not previously considered by OWCP or submit any pertinent
new and relevant evidence with his reconsideration request. The Board finds that appellant is not
entitled to a review of the merits of his claim based on any of the three requirements under
section 10.606(b)(3).
10

See D.U., Docket No. 10-144 (issued July 27, 2010); D.I., 59 ECAB 158 (2007); Robert Broome, 55 ECAB
339 (2004); Anna C. Leanza, 48 ECAB 115 (1996).
11

5 U.S.C. §§ 8101-8193. Section 8128(a) of FECA provides that the Secretary of Labor may review an award
for or against payment of compensation at any time on his own motion or on application.
12

20 C.F.R. § 10.606(b)(3). See J.M., Docket No. 09-218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB
630 (2006).
13

20 C.F.R. § 10.607(a). See S.J., Docket No. 08-2048 (issued July 9, 2009); Robert G. Burns, 57 ECAB
657 (2006).
14

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

4

Along with his reconsideration request, appellant submitted a new December 19, 2013
note from Dr. Pate. Dr. Pate noted the employment incident of March 11, 2013 and that
appellant had rib pain following the incident and addressed causal relationship in a manner
similar to her previously considered March 22, 2013 report. The Board finds that this evidence
is cumulative and does not offer any relevant or pertinent new evidence on the relevant issue in
this claim, causal relationship. OWCP already accepted the employment incident and previously
found that Dr. Pate’s prior opinion failed to diagnose a medical condition causally related to the
accepted March 11, 2013 incident. In the December 19, 2013 note, Dr. Pate related seeing
appellant for rib pain without providing any diagnosis. She also opined that he was injured at
work on March 11, 2013 without any discussion as to how she arrived at this conclusion beyond
describing how the incident occurred. As such, this letter is also repetitive of Dr. Pate’s
previously submitted report and fails to diagnose a definitive medical condition due to the
accepted March 11, 2013 employment incident.
Appellant did not provide any relevant and pertinent new medical evidence supporting
how the specific employment incident on March 11, 2013 caused a diagnosed medical condition.
He also did not otherwise show that OWCP erroneously applied or interpreted a specific point of
law or advance a relevant legal argument not previously considered by OWCP.
The Board finds that OWCP properly determined that appellant was not entitled to
further review of the merits of his claim pursuant to any of the three requirements under section
10.606(b)(3) and properly denied his January 3, 2014 request for reconsideration.15
CONCLUSION
The Board finds that appellant did not meet his burden of proof in establishing that he
sustained a traumatic injury in the performance of duty on March 11, 2013, as alleged. The
Board further finds that OWCP properly refused to reopen appellant’s case for further review of
the merits pursuant to 5 U.S.C. § 8128(a).

15

M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006); Candace A. Karkoff, 56 ECAB 622 (2005)
(when an application for reconsideration does not meet at least one of the three requirements enumerated under
section 10.606(b)(2), OWCP will deny the application for reconsideration without reopening the case for a review
on the merits).

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 21, 2014 and December 3, 2013 are affirmed.
Issued: September 24, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
U.S. POSTAL SERVICE, KIRKLAND
STATION, Seattle, WA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 09-345
Issued: August 5, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On November 17, 2008 appellant filed a timely appeal from an October 24, 2008 merit
decision of the Office of Workers’ Compensation Programs’ Branch of Hearings and Review
affirming an April 9, 2008 decision of the Office that denied his claim. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this claim.
ISSUE
The issue is whether appellant has met his burden of proof to establish that he sustained a
pulled muscle and methicillin-resistant staphylococcus aureus (MRSA) infection causally related
to his federal employment on November 26, 2007.
FACTUAL HISTORY
On December 18, 2007 appellant, a 53-year-old tractor trailer operator, filed a traumatic
injury claim (Form CA-1) for a pulled right thigh muscle and a MRSA infection. He attributed
his injury to a November 26, 2007 incident when he felt pain in his right thigh while unloading
pallets at the Kirkland station. Appellant stopped work on November 27, 2007.

Appellant submitted several medical reports concerning treatment on December 2, 2007
for cough, fever and cold symptoms.1
In a report dated December 3, 2007, Dr. E. Noyes, Board-certified in emergency
medicine, reported treating appellant following a diagnosis of fever, sinusitis and possible
urinary tract infection. He reported that three of four blood cultures were positive for
staphylococcus and that additional cultures were pending. Dr. Noyes diagnosed appellant with
bacteremia of unclear source. In a subsequent report, also dated December 3, 2007, he reported
that, based upon an MRI scan of appellant’s lower extremities, he suspected myositis in
appellant’s right vastus lateralis with a very small intramuscular abscess.
Appellant submitted a December 3, 2007 report in which Dr. Lisa M. Ivanjaack, internist,
reported that physical examination revealed right thigh myalgia without any obvious injury and
evidence of diffuse isolated muscle myositis on an MRI scan. She reported that neurological
examination of appellant’s right thigh revealed appellant was not able to lift his right leg,
secondary to pain. Dr. Ivanjaack reported that three out of four blood cultures performed on
December 2, 2007 were positive for staphylococcus. She noted the presence of small fluid
collection that could have been a hematoma or an abscess, but ruled out necrotizing myositis.
In December 4, 2007 report, Dr. Alice B. Josafat, a Board-certified diagnostic radiologist,
reported that an MRI scan of appellant’s lower extremity revealed an irregular shaped
hypointense area, a small abscess, within the mid-aspect of the right vastus lateralis. She noted
that appellant presented with: back pain; right leg pain with right thigh pain and tenderness;
bacteremia; and fevers. Dr. Josafat diagnosed appellant with suspected myositis in the right
vastus lateralis with a very small intramuscular abscess. In another report, also dated
December 4, 2007, she reported that appellant pulled a muscle getting up “a couple days ago.”
In a December 5, 2007 report, Dr. William F. Ehni, a Board-certified internist, diagnosed
appellant with MRSA right leg pyomyositis. He reported that blood cultures were repeated and
that they were positive for staphylococcus aureus. Dr. Ehni noted that appellant did not appear
to have another primary source and, therefore, doubted that appellant had MRSA sinusitis.
Appellant submitted a December 6, 2007 report, signed by Dr. Ben H. Harmon, Boardcertified diagnostic radiologist, who reported that an MRI scan of appellant’s right thigh with
and without contrast revealed the presence of an intramuscular cystic fluid collection that could
1

Appellant submitted several duty status reports (Form CA-17) all of which bore a physician’s signature that was
illegible. In a CA-17 dated December 17, 2007, a physician noted clinical findings of “tender, swollen right leg and
fever.” The physician asserted that this diagnosis was due to injury and that appellant had no other disabling
conditions. In a subsequent CA-17, this physician stated clinical findings consisting of a pulled muscle and right
thigh infection with MRSA. The physician proffered a diagnosis of MRSA infection. In another CA-17 dated
January 10, 2008, this physician reported clinical findings consisting of a pulled muscle resulting in infection and
surgery. This physician diagnosed appellant with a right thigh infection.
These reports are insufficient to establish appellant’s burden of proof because, as they bore an illegible signature,
their authors cannot be identified as a physician. Vickey C. Randall, 51 ECAB 357 (2000); Merton J. Sills, 39
ECAB 572 (1988) (Reports not signed by a physician lack probative value). Therefore, the Board finds that as these
reports lack proper identification and, therefore, they do not constitute they do not constitute probative medical
evidence sufficient to establish appellant’s burden of proof.

2

represent a focal area of necrosis or abscess. He reported that the right vastus lateralis muscle
was diffusely abnormal. Dr. Harmon noted that some edema fluid separated the distal rectus
femoris muscle from the vastus lateralis and vastus medialis musculature.
Appellant submitted2 a December 7, 2007 report signed by Dr. Steven D. MacFarlane, a
Board-certified surgeon, who reported that appellant had a muscle strain in his right leg and then
became ill with sepsis and was found to have a groin abscess in the right vastus lateralis.
Dr. MacFarlane proffered a preoperative diagnosis of right thigh vastus lateralis deep muscle
abscess. He operated on appellant, creating an incision and drained the deep muscle abscess.
Dr. MacFarlane reported that appellant had about 20 milliliters of nonfoul smelling, thick,
purulent abscess. He reported that this fluid was irrigated nicely.
By report dated December 7, 2007, Dr. Charles P. Daly, Board-certified diagnostic
radiologist, reported that ultrasound guided perc drainage revealed multiloculated collection in
the right vastus lateralis muscle. He noted that, following aspiration, a moderate amount of
residual loculated fluid was visible. Dr. Daly’s impression was that multiloculated collection at
the right vastus lateralis muscle was consistent with an abscess and that only a partial aspiration
was possible due to the loculated nature of the collection. In a subsequent report dated
December 7, 2007, he noted that an appropriate skin entry site had been identified.
In a December 7, 2007 report, Dr. Ivanjaack reported that ultrasound revealed
multiloculated fluid collection in the right thigh consistent with an abscess and that a needles
aspiration would be performed. In a subsequent report, also dated December 7, 2007, he
reported that ultrasound revealed a multiloculated collection in the right vastus lateralis muscle
and that aspiration of the fluid revealed only a moderate residual amount remained.
By letter dated March 10, 2008, the Office notified appellant that his claim had originally
been accepted as a simple, uncontroverted case which resulted in minimal or no time loss from
work. It reported that since appellant’s medical bills now exceeded $1,500.00 it had to formally
adjudicate his claim. The Office notified appellant that the evidence received in support of his
claim was insufficient and requested appellant submit additional evidence.
Appellant submitted no additional evidence in support of his claim and by decision dated
April 9, 2008 the Office denied appellant’s claim because the evidence of record was insufficient
to establish that he sustained an injury in the performance of duty.
Appellant disagreed with the Office’s April 9, 2008 decision and, through counsel,
requested an oral hearing.

2

The Board notes that appellant submitted several medical reports signed by individuals who are registered
nurses and an individual who is a physicians’ assistant. Registered nurses and physicians’ assistants are not
“physicians” as defined by the Act and, consequently, their reports and opinions are of no probative value. Roy L.
Humphrey, 57 ECAB 238 (2005); see 5 U.S.C. § 8101(2) (defining the term “physician”); see also Charley V.B.
Harley, 2 ECAB 208 (1949) (the Board held that medical opinion, in general, can only be given by a qualified
physician). As these reports were not prepared by “physicians,” as defined by the Act, they are of no probative
value.

3

Appellant submitted a personal note dated April 1, 2008, clarifying that he was not
claiming that he got infected with the MRSA virus on the job. He stated that his employment
injury was a pulled muscle. Appellant asserted that he was claiming that when he pulled his
muscle, it got infected with an abscess when his blood went to repair the pulled muscle. This, he
alleged, required him to have surgery. Appellant asserted that, if he had not pulled a muscle, he
would not have needed surgery and antibiotics would have cured his MRSA.
Appellant also submitted duplicate copies of medical reports already of record.
A hearing was conducted on August 11, 2008. Appellant testified that he went to the
hospital because he was sick, had a fever and was concerned it was the flu. The emergency room
doctors performed blood tests. The next day, November 26, 2007, appellant reported that he
pulled a muscle while unloading pallets at the Kirkland station. He told his supervisor but chose
not to seek medical attention because he believed that icing it and using heat treatments would
solve the problem. The following day, appellant concluded that the pain in his thigh was more
than just a pulled muscle and sought medical attention. He stated that his right leg was
noticeably swollen and that the physicians he saw performed multiple tests. Appellant also
stated that he has no prior exposure to or with MRSA. He did report, however, that he sustained
a similar injury five or six years ago while unloading containers of mail off a truck.
Appellant testified that he received a telephone call from the emergency room informing
him that he had MRSA and needed to come in for examination and treatment. He testified that
Dr. Ehni told him that the pulled muscle was probably produced when his MRSA infected blood
tried to repair the muscle in his right leg and instead formed an abscess. Appellant testified that
once his physicians diagnosed him with MRSA they largely ignored his pulled muscle condition,
focusing their efforts on getting him on antibiotics to treat MRSA.
Claimant’s attorney argued that an accident had occurred at work, appellant reported it
and significant complications resulted that were identified in the emergency room.
The record was held open for 30 days following the hearing for submission of additional
evidence.
By decision dated October 24, 2008, the hearing representative affirmed the Office’s
April 9, 2008 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of proof to establish the essential elements of his claim by the weight of the evidence,4
including that he sustained an injury in the performance of duty and that any specific condition
or disability for work for which he claims compensation is causally related to that employment
3

5 U.S.C. §§ 8101-8193.

4

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
58 (1968).

4

injury.5 As part of his burden, the employee must submit rationalized medical opinion evidence
based on a complete factual and medical background showing causal relationship.6 The weight
of medical evidence is determined by its reliability, its probative value, its convincing quality,
the care of the analysis manifested and the medical rationale expressed in support of the
physician’s opinion.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.8 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.9
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.10
ANALYSIS
The Board accepts that appellant was lifting pallets at the Kirkland station on
November 26, 2007. It is his burden to establish, through production of rationalized medical
opinion evidence, that his pulled right thigh muscle and MRSA infection are causally related to
this identified employment incident.
The Board finds that the evidence of record does not establish appellant’s claim that he
sustained a pulled muscle in the performance of duty. While appellant alleged that he sustained
a pulled right thigh muscle on November 26, 2007, the record reflects that he did not seek

5

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143,
1145 (1989).
6

G.T., supra note 5; Nancy G. O’Meara, 12 ECAB 67, 71 (1960).

7

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

8

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

9

T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354, 35657 (1989).
10

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).

5

immediate medical attention. The medical evidence of record also demonstrates that neither he
nor his physicians pursued diagnosis or treatment of a pulled right thigh muscle.
During the hearing, while appellant testified that he sustained a pulled right thigh muscle
and that Dr. Ehni told him that the pulled muscle was probably produced when his MRSA
infected blood tried to repair the muscle in his right leg and instead formed an abscess, the
medical reports and notes of record do not contain such an opinion. An award of compensation
may not be based on surmise, conjecture, speculation, or upon appellant’s own belief that there is
a causal relationship between his claimed condition and his employment.11 The Board has held
that an appellant’s subjective symptoms and self-serving declaration do not constitute
sufficiently substantive evidence such that satisfy appellant’s burden of proof.12 The record
reflects that appellant is not a physician and therefore his interpretation of the causal relationship
between his alleged pulled right thigh muscle and the identified employment incident is of no
probative value. As there is no probative medical evidence of record concerning this issue,
appellant has not established that he sustained a pulled right thigh muscle in the performance of
duty on November 26, 2007.
The deficiency with the remainder of appellant’s claim is that the medical opinion
evidence does not establish a causal relationship between what happened at work on
November 26, 2007 and appellant’s diagnosed medical condition: an MRSA infection. The
issue is whether the medical evidence establishes that he sustained an MRSA infection causally
related to his federal employment. The determination of whether an employment incident caused
an injury is generally established by medical evidence.13
Appellant submitted reports from Drs. Daly, Ehni, Harmon, Ivanjaack, Josafat,
MacFarlane and Noyes. While these reports established that appellant had an MRSA infection in
his right thigh for which he had surgery on December 7, 2007, taken as a group, these reports are
of limited probative value as none of them proffered an opinion on the causal relationship
between a diagnosed medical condition and the employment incident.
The Board has consistently held that medical reports lacking an opinion on causal
relationship are of little probative value,14 and the mere fact that a condition manifests itself or
worsens during a period of employment15 or that work activities produce symptoms revelatory of
an underlying condition16 does not raise an inference of causal relationship between a claimed
11

D.D., 57 ECAB 734 (2006); Patricia J. Glenn, 53 ECAB 159 (2001).

12

Edgar G. Maiscott, 4 ECAB 558 (1952) (holding appellant’s self-serving declarations do not, in the opinion of
the Board, constitute evidence of a sufficiently substantial nature).
13

Lois E. Culver (Clair L. Culver), 53 ECAB 412 (2002).

14

See Mary E. Marshall, 56 ECAB 420 (2005) (medical reports that do not contain rationale on causal
relationship have little probative value). See also Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52
ECAB 457 (2001).
15

E.A., 58 ECAB ___ (Docket No. 07-1145, issued September 7, 2007); Albert C. Haygard, 11 ECAB 393,
395 (1960).
16

D.E., 58 ECAB ___ (Docket No. 07-27, issued April 6, 2007); Fabian Nelson, 12 ECAB 155,157 (1960).

6

condition and employment factors. As none of these physicians’ medical reports contained a
medical opinion on causal relationship they are of little probative value and appellant has not met
his burden.
In order to establish entitlement, a claimant must provide a physician’s opinion that is
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the claimant. Because appellant did not submit a reasoned medical opinion explaining how the
November 26, 2007 employment incident caused his MRSA infection, he did not establish the
critical element of causal relationship.17
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a pulled muscle and an MRSA infection causally related to his federal employment on
November 26, 2007.
ORDER
IT IS HEREBY ORDERED THAT the October 24, 2008 decision of the Office of
Workers’ Compensation Programs’ Branch of Hearings and Review is affirmed.
Issued: August 5, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

17

See John W. Montoya, 54 ECAB 306 (2003).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
DEPARTMENT OF THE NAVY,
Washington, DC, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-373
Issued: May 8, 2007

Case Submitted on the Record

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

JURISDICTION
On November 22, 2006 appellant filed a timely appeal of the August 30, 2006 nonmerit
decision of the Office of Workers’ Compensation Programs, which found that he abandoned his
request for an oral hearing and a merit decision issued on April 27, 2006. The Board has
jurisdiction to review the merits of the claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2),
as the last merit decision was issued on April 27, 2006.1
ISSUES
The issues are: (1) whether appellant has established that he sustained an occupational
disease in the performance of duty; and (2) whether he abandoned his request for a hearing.

1

The record includes evidence received after the Office issued the April 27, 2006 decision. The Board cannot
consider new evidence for the first time on appeal. 20 C.F.R. § 501.2(c) (2004).

FACTUAL HISTORY
On October 18, 2005 appellant, then a 50-year-old auditor, filed a claim for an
employment-related emotional condition. He described his condition as post-traumatic stress
disorder, which he first became aware of on March 15, 2005. In an undated statement, appellant
described how he felt while working in Baghdad, Iraq from March 2004 until January 2005.
“From almost the very first day in Iraq, you ask yourself is today going to be a
good day? If so, there won’t be any mortars, if not; be ready to run for cover,
because the tent you live in has no defense from rockets, mortars or even the
occasional stray bullet. You hear the explosion; it is pretty close, and then the
sirens. You put on your vest, helmet and shoes and wait. Finally, you get the all
clear. How long did it take this time? 15 minutes? You don’t even want to
think about if anyone got hurt or killed, but it is always on your mind. Will you
be next?
“A couple of days go by and you begin to relax. No car bomb, no mortars and
then a bomb explodes in a local market. Several soldiers you could have eaten
lunch with are dead. You become very selfish. You pray for the dead soldier’s
families, but you thank God it wasn’t you. You ask questions, but the answers
don’t come….”
In an October 14, 2005 physician’s report, Dr. Harvey Fernbach, Board-certified in
psychiatry, diagnosed post-traumatic stress disorder.
In a January 3, 2006 letter, the employing establishment controverted appellant’s claim.
The employer noted that, while stationed in Baghdad, appellant lived under the same conditions
as thousands of other civilians in the green zone. The employer also noted that, while there were
four rocket or mortar explosions within the compound where appellant lived, appellant was not
in the vicinity and could not have been injured. The employer stated that appellant was able to
choose his living space after the initial three weeks in a tent, which he did, choosing to live in the
Royal Palace and in a trailer. According to the employer, appellant failed to notify anyone that
he was under stress, his supervisor observed him to be relaxed and adjusted and appellant
actually volunteered to work in Iraq beyond his original tour of duty.
In a March 24, 2006 letter, the Office informed appellant that the information submitted
was not currently sufficient and that he needed to provide additional factual and medical
information.
In an April 27, 2006 decision, the Office denied appellant’s claim on the grounds that the
evidence was insufficient to establish that events occurred as alleged.
On May 10, 2006 appellant requested an oral hearing. The envelope which contained the
hearing request contained appellant’s return address.2

2

1318 Greenmount Drive, Waldorf, MD 20601.

2

In a May 18, 2006 letter, the Office informed appellant that his request for oral hearing
had been received.
In a July 17, 2006 letter, the Office informed appellant of his scheduled oral hearing on
August 16, 2006.
In an August 30, 2006 decision, the Office found that appellant abandoned his request for
a hearing. The Office noted that appellant failed to appear at the hearing and that the record gave
no indication that he had contacted the Office either prior or subsequent to the scheduled hearing
to explain his failure to appear.
LEGAL PRECEDENT -- ISSUE 1
To establish that he sustained an emotional condition causally related to factors of his
federal employment, appellant must submit: (1) factual evidence identifying and supporting
employment factors or incidents alleged to have caused or contributed to his condition;
(2) rationalized medical evidence establishing that he has an emotional condition or psychiatric
disorder; and (3) rationalized medical opinion evidence establishing that his emotional condition is
causally related to the identified compensable employment factors.3
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to one’s employment. There are situations where an injury or illness has some
connection with the employment, but nevertheless, does not come within the purview of
workers’ compensation. When disability results from an emotional reaction to regular or
specially assigned work duties or a requirement imposed by the employment, the disability is
deemed compensable. Disability is not compensable, however, when it results from factors such
as an employee’s fear of a reduction-in-force or frustration from not being permitted to work in a
particular environment or to hold a particular position.4 Perceptions and feelings alone are not
compensable. To establish entitlement to benefits, a claimant must establish a basis in fact for
the claim by supporting her allegations with probative and reliable evidence.5 When the matter
asserted is a compensable factor of employment and the evidence of record establishes the truth
of the matter asserted, the Office must base its decision on an analysis of the medical evidence.6
ANALYSIS -- ISSUE 1
Appellant alleged that he sustained an emotional condition as a result of his employment
condition of being located in Baghdad, Iraq. By decision dated April 27, 2006, the Office denied
appellant’s emotional condition claim on the grounds that he did not establish any compensable
employment factors. Appellant’s factual evidence of record consists of a Form CA-2 and a
3

See Kathleen D. Walker, 42 ECAB 603 (1991).

4

Lillian Cutler, 28 ECAB 125 (1976).

5

See Kathleen D. Walker, supra note 3. Unless a claimant establishes a compensable factor of employment, it is
unnecessary to address the medical evidence of record. Garry M. Carlo, 47 ECAB 299, 305 (1996).
6

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

3

statement. In his statement, appellant describes the stress he felt from being in Iraq but only
references “the sights and sounds I witnessed in Iraq” and “soldiers you could have eaten lunch
with are dead.” (Emphasis added.) Appellant did not provide specific details of incidents
contributing to his emotional condition such as dates, locations, individuals involved and what
occurred. The Board finds that appellant did not submit specific information pertaining to his
allegations. His allegations are general in nature and do not constitute a compensable factor of
employment.
Appellant’s job duties were those of an auditor. He has not explained how any of his
assigned job duties caused or contributed to his alleged emotional condition. Rather, appellant’s
focus is the environment in which he worked. Preference for a different work environment is not
a compensable work factor. Appellant’s supervisor has explained that he was never in the
vicinity of any attacks and that he volunteered to continue to work in Iraq beyond his original
tour of duty. The allegation that he worked in Iraq is not, in and of itself, compensable.
Appellant stated that he felt fear and anxiety from watching the news. The fact that an
employee learns of a tragedy, no matter how horrific and sustains an emotional condition during
working hours does not in and of itself provide the necessary nexus to establish that the
emotional condition occurred while in the performance of duty, as required by the Act.7
Appellant bears the burden of proof to identify the factors of his claim. In this case, he
has failed to adequately identify any employment factors that allegedly caused his condition.
The Board finds that appellant has failed to discharge his burden to establish employment factors
which caused his emotional condition.
LEGAL PRECEDENT -- ISSUE 2
With respect to abandonment of hearing requests, Chapter 2.1601.6(e) of the Office’s
procedure manual provides in relevant part:
“(1) A hearing can be considered abandoned only under very limited
circumstances. All three of the following conditions must be present: the
claimant has not requested a postponement; the claimant has failed to appear at a
scheduled hearing; and the claimant has failed to provide any notification for such
failure within 10 days of the scheduled date of the hearing.
“Under these circumstances, [the Branch of Hearings and Review] will issue a
formal decision finding that the claimant has abandoned his or her request for a
hearing and return the case to the [district Office]....
“(2) However, in any case where a request for postponement has been received,
regardless of any failure to appear for the hearing, [the Branch of Hearings and
Review] should advise the claimant that such a request has the effect of
converting the format from an oral hearing to a review of the written record.

7

5 U.S.C. § 8102

4

“This course of action is correct even if [the Branch of Hearings and Review] can
advise the claimant far enough in advance of the hearing that the request is not
approved and that the claimant is, therefore, expected to attend the hearing and
the claimant does not attend.”8
Section 10.617(b) of the Office’s regulations provides that unless otherwise directed in
writing by the claimant, the hearing representative will mail a notice of the time and place of the
oral hearing to the claimant and any representative at least 30 days before the scheduled date.9
The Office has the burden of proving that it mailed the claimant a notice of the date and time of
the scheduled hearing.10
ANALYSIS -- ISSUE 2
In finding that appellant abandoned his May 9, 2006 request for a hearing, the Office
noted that a hearing had been scheduled in Washington, DC on August 16, 2006. The record
shows that the Office mailed appropriate notice to appellant at his last known address. Although
appellant argues on appeal that he did not receive notification, it is presumed, in the absence of
evidence to the contrary, that a notice mailed to an individual in the ordinary course of business
was received by that individual.11 There is no evidence in the record that appellant notified the
Office of a change in address. All correspondence from the Office to appellant has been to the
address of record as listed on the Form CA-2. Additionally the envelope which contained
appellant’s hearing request had the identical address as the address of record.
Appellant received written notification of the hearing 30 days in advance but he failed to
appear for the hearing. The record contains no evidence that he contacted the Office to request
postponement of the hearing. Appellant failed to appear at the scheduled hearing or to provide
any notification for such failure within 10 days of the scheduled hearing. As this meets the
criteria for abandonment specified in the Office’s procedure manual, the Board finds that
appellant abandoned his request for an oral hearing before an Office hearing representative.
CONCLUSION
The Board finds that appellant failed to establish that he sustained an emotional condition
in the performance of duty and that appellant abandoned his request for an oral hearing.

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(e) (January 1999); see also Claudia J. Whitten, 52 ECAB 483, 484-85 (2001).
9

20 C.F.R. § 10.617(b).

10

Nelson R. Hubbard, 54 ECAB 156 (2002). In the absence of evidence to the contrary, it is presumed that a
notice mailed in the ordinary course of business was received in due course by the intended recipient. Kenneth E.
Harris, 54 ECAB 502, 505 (2003). This presumption is commonly referred to as the mailbox rule. Id. It arises
when the record reflects that the notice was properly addressed and duly mailed. Id.
11

George F. Gidicsin, 36 ECAB 175 (1984) (when the Office sends a letter of notice to an appellant, it must be
presumed, absent any other evidence, that the claimant received the notice).

5

ORDER
IT IS HEREBY ORDERED THAT the August 30 and April 27, 2006 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: May 8, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF AGRICULTURE,
NATIONAL FOREST SERVICE, Double
Springs, AL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)
)

Docket No. 19-1724
Issued: April 8, 2020

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On August 14, 2019 appellant filed a timely appeal from a May 13, 2019 merit decision
and a June 28, 2019 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). The Clerk of the Appellate Boards docketed the appeal as No. 19-1724.1
On November 26, 2018 appellant, then a 47-year-old forestry technician, filed an
occupational disease claim (Form CA-2) alleging that he developed back pain as a result of factors
of his federal employment. He noted that he first became aware of his condition and realized its
relationship to his federal employment on June 16, 2017. Appellant also indicated that he had

1

The Board notes that, following the June 28, 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.

originally filed the claim as a traumatic injury (Form CA-1), but it was denied by OWCP.2 He
stopped work on June 15, 2017.
In an attached statement, appellant explained that, during the week of June 12 to 16, 2017,
he worked on a farm tractor with a 55-gallon sprayer on his back while he sprayed plants with
herbicides as part of his official work duties. He related that on June 15 and 16, 2017 his back
hurt and that on the morning of Friday, June 16, 2017 he was in excruciating pain.
By decision dated January 14, 2019, OWCP accepted that the employment factors
occurred, as alleged, but denied the claim, finding that no medical evidence had been submitted to
establish a medical diagnosis in connection with the accepted employment factors. Thus, it
determined that the requirements had not been met to establish an injury as defined by the Federal
Employees’ Compensation Act.
On February 12, 2019 appellant requested reconsideration. In a narrative statement, he
clarified that, although he worked from June 12 to 16, 2017, he only experienced back pain for the
last day and a half. Appellant explained that, as he drove the tractor, he hit rough spots multiple
times, which caused it to jar like a jackhammer bouncing. He reported that he originally filed a
CA-1 form, but was told to refile as a CA-2 form.
By decision dated May 13, 2019, OWCP modified the January 14, 2019 decision. It found
that the medical evidence of record had established a diagnosis of lumbago with sciatica, but that
the claim remained denied as appellant had not established that his diagnosed condition was
causally related to the accepted factors of his federal employment. OWCP noted that it had
reviewed the case file under File No. xxxxxx628 as it was closely related to the present claim. It
did not, however, image the referenced medical evidence into the present claim file.
On May 23, 2019 appellant requested reconsideration. By decision dated June 28, 2019,
OWCP denied appellant’s request for reconsideration of the merits of the claim under 5 U.S.C.
§ 8128(a).
The Board, having duly considered the matter, concludes that this case is not in posture for
decision. Pursuant to 20 C.F.R. § 501.2(c)(1), the Board’s review of a case is limited to the
evidence in the case record that was before OWCP at the time of its final decision. Decisions on
claims are based on the written record, which may include forms, reports, letters, and other
evidence of various types such as photographs, videotapes, or drawings. 3 Evidence may not be
incorporated by reference, nor may evidence from another individual’s case file be used. 4
Evidence contained in another of the claimant’s case files may be used, but a copy of that evidence

2

Appellant’s prior claim was assigned by OWCP as OWCP File No. xxxxxx628.
currently before the Board.
3

The previous claim is not

Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.5(a)
(June 2011).
4

Id.; G.K., Docket No. 18-1594 (issued March 8, 2019).

2

should be placed into the case file being adjudicated. 5 All evidence that forms the basis of a
decision must be in that claimant’s case record. 6
In adjudicating the present claim, File No. xxxxxx861, OWCP indicated that it had also
reviewed the evidence contained in the case record for File No. xxxxxx628. 7 However, it neglected
to include the referenced information in the current case file. The Board is therefore not in a
position to make an informed decision regarding appellant’s entitlement to FECA benefits. 8
OWCP’s procedures provide that cases should be administratively combined when correct
adjudication of the issues depends on frequent cross-referencing between files. 9 For example, if a
new injury case is reported for an employee who previously filed an injury claim for a similar
condition or the same part of the body, doubling is required. 10 In the instant case, appellant filed
an occupational disease claim, which OWCP assigned File No. xxxxxx861 for a back injury.
Appellant’s prior traumatic injury claim, to which OWCP assigned File No. xxxxxx628, was also
for a back injury and is not presently before the Board. For a full and fair adjudication, the case
must be returned to OWCP to administratively combine the current case record with File No.
xxxxxx628. Following this and other such further development as it deems necessary, OWCP
shall issue a de novo decision.

5

Id.; A.B., Docket No. 18-1626 (issued August 22, 2019).

6

Id.

7

See D.B., Docket No. 19-0262 (issued December 31, 2019).

8

Id.

9

Federal (FECA) Procedure Manual, supra note 3 at Chapter 2.400.8(c) (February 2000).

10

Id.

3

IT IS HEREBY ORDERED THAT the May 13, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded to OWCP for further proceedings
consistent with this order of the Board. 11
Issued: April 8, 2020
Washington, DC

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

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

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

11
In view of the Board’s disposition regarding the merits of the case, the issue of whether OWCP properly denied
appellant’s reconsideration request under section 8128(a) is moot.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.W., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTICS AGENCY, LAND & MARITIME
DIVISION, Philadelphia, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 12-1127
Issued: October 10, 2012

Case Submitted on the Record

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

JURISDICTION
On April 30, 2012 appellant filed a timely appeal from a January 18, 2012 decision of the
Office of Workers’ Compensation Programs (OWCP) denying a traumatic injury claim and a
March 19, 2012 nonmerit decision denying reconsideration. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUES
The issues are: (1) whether appellant established that she sustained a traumatic head and
right ankle injuries in the performance of duty on October 24, 2011; and (2) whether OWCP
properly denied appellant’s request for reconsideration under 5 U.S.C. § 8128(a).
On appeal appellant explained that she was off work during the week before the claimed
October 24, 2011 incident due to an asthma flare-up she attributed to working in a cold
1

5 U.S.C. § 8101 et seq.

environment. She fainted on October 24, 2011 while returning to her workstation after filing a
complaint. Appellant submitted new evidence accompanying her request for appeal.
FACTUAL HISTORY
On November 30, 2011 appellant, then a 52-year-old quality assurance specialist, filed a
traumatic injury claim (Form CA-1) alleging that on October 24, 2011 she struck her head and
sprained her right ankle when she “passed out” but was “unsure why.” She stopped work at the
time of the injury. In a November 30, 2011 statement, one of appellant’s coworkers asserted that
she “was in conversation with [appellant] when she suddenly went down on the floor. Another
coworker and myself helped pick her up.”
In a November 3, 2011 report, Dr. George E. Fisher, an attending Board-certified
internist, stated that within a reasonable degree of medical certainty the injury sustained by
appellant was a result of “adverse conditions” in her workplace.
In a December 15, 2011 letter, OWCP advised appellant of the additional evidence
needed to establish her claim. It instructed her to submit a factual statement further explaining
why she felt that the October 24, 2011 fall was work related, along with any witness statements
corroborating her account of events. OWCP also asked appellant to provide a statement from an
attending physician explaining how and why the implicated work factors would have caused her
to fall. It afforded her 30 days in which to submit such evidence. Appellant did not submit
additional evidence.
By decision dated January 18, 2012, OWCP denied appellant’s claim on the grounds that
fact of injury was not established. It found that there was insufficient evidence to establish that
the October 24, 2011 incident occurred as alleged. OWCP further found that there was no
medical evidence providing a diagnosis which could be connected to the claimed event.
In a February 2, 2012 letter, appellant requested reconsideration. She submitted a
January 31, 2012 report from Dr. Fisher who noted treating her beginning on November 3, 2011
for asthma and anxiety. Dr. Fisher related appellant’s account of working in a laboratory
environment at 57 degrees. On October 24, 2011 the cold, dry air precipitated an asthma attack,
with wheezing and coughing contributing her to anxiety and stress. Dr. Fisher explained that the
attack worsened, causing stress leading to a vasovagal reaction, sympathetic decrease in tone and
decreased cardiac output. “These factors lead to a hypoperfusion of the brain and subsequent
fainting or syncope episode.… [Appellant’s] case [was] consistent with the norm as she suffered
a sprain/strain of her right ankle as she lost tone and fell to the ground.” Dr. Fisher stated that,
within a reasonable degree of medical certainty, appellant’s exposure to cold, dry air at work on
October, 24, 2011 caused the asthma attack with subsequent fainting.
By decision dated March 19, 2012, OWCP denied reconsideration on the grounds that
Dr. Fisher’s January 31, 2012 report was irrelevant to the claim as appellant did not establish the
October 24, 2011 incident as factual.

2

LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, OWCP begins with an analysis of whether “fact of injury” has been
established. Generally, fact of injury consists of two components that must be considered in
conjunction with one another. First, the employee must submit sufficient evidence to establish
that he or she actually experienced the employment incident that is alleged to have occurred.5
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.6
It is a general rule of workers’ compensation law that an injury resulting from an
idiopathic fall -- where a personal, nonoccupational pathology causes an employee to collapse
and to suffer injury upon striking the immediate supporting surface and there is no intervention
or contribution by any hazard or special condition of the employment -- the injury is not a
personal injury while in the performance of duty as it does not arise out of a risk connected with
the employment.7 On the other hand, if the cause of the fall cannot be determined, or the reason
it occurred cannot be explained, then it is an unexplained fall that comes within the general rule
that an injury occurring on the industrial premises during working hours is compensable.8
The medical evidence required to establish causal relationship is generally rationalized
medical opinion evidence. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medial certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.9

2

5 U.S.C. §§ 8101-8193.

3

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

4

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

5

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

6

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

7

Steven S. Saleh, 55 ECAB 169 (2003); Karen K. Levene, 54 ECAB 671 (2003).

8

Id.

9

Solomon Polen, 51 ECAB 341 (2000).

3

ANALYSIS -- ISSUE 1
Appellant claimed that she struck her head and sprained her right ankle when she fainted
and fell to the floor at work on October 24, 2011. The Board finds there are inconsistencies in
the evidence that cast doubt as to whether the incident occurred at the time, place and in the
manner alleged. Appellant did not file a claim or notify her supervisor of the claimed fall until
November 30, 2011, more than a month after the alleged incident. Also, there is no employing
establishment incident report of record. Although a coworker stated on the claim form that she
saw appellant fall suddenly to the floor, the coworker did not specify a date or location for the
incident. Appellant did not submit any supplemental factual statement regarding the
circumstances of the claimed October 24, 2011 fall, although she was advised to do so on
December 15, 2011. Dr. Fisher, an attending Board-certified internist, stated in a November 3,
2011 report that appellant sustained an unspecified injury due to “adverse conditions” in her
workplace, but did not diagnose any injury or the specifics of an October 24, 2011 incident. The
vague nature of the evidence of record creates significant uncertainty as to the manner in which
appellant experienced the claimed October 24, 2011 incident.10 The Board finds that as she has
not established the threshold issue of fact of injury, it would be premature to address whether the
October 24, 2011 incident could constitute a compensable “unexplained” fall.11
Given the inconsistencies in the factual and medical evidence, the Board finds that there
is insufficient evidence to establish that appellant sustained a right ankle or head injury on
October 24, 2011 in the performance of duty as alleged.12
On appeal, appellant newly attributed the October 24, 2011 episode to an asthma attack
caused by working in a cold environment. She also submitted new evidence. However, the
Board may not consider new evidence for the first time on appeal that was not before OWCP at
the time it issued the final merit decision in the case.13
Appellant may submit such new evidence or argument with a valid 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.

10

See Caroline Thomas, 51 ECAB 451, 455 (2000).

11

Supra note 7.

12

Caroline Thomas, supra note 10. Furthermore, there is no need to consider medical evidence on causal
relationship as the claimed work incident is not established. See S.P., 59 ECAB 184 (2007) (where a claimant did
not establish an employment incident alleged to have caused his or her injury, it was not necessary to consider any
medical evidence).
13

20 C.F.R. § 501.2(c).

4

LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,14
section 10.606(b)(2) of Title 20 of the Code of Federal Regulations provide that a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.15 Section 10.608(b) provides that,
when an application for review of the merits of a claim does not meet at least one of the three
requirements enumerated under section 10.606(b)(2), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.16
In support of a request for reconsideration, a claimant is not required to submit all
evidence which may be necessary to discharge his or her burden of proof.17 The claimant need
only submit relevant, pertinent evidence not previously considered by OWCP.18 When
reviewing an OWCP decision denying a merit review, the function of the Board is to determine
whether OWCP properly applied the standards set forth at section 10.606(b)(2) to the claimant’s
application for reconsideration and any evidence submitted in support thereof.19
ANALYSIS -- ISSUE 2
Following OWCP’s January 18, 2012 decision denying appellant’s claim, appellant
requested reconsideration and submitted a narrative report from Dr. Fisher. The critical issue at
the time OWCP denied appellant’s claim was the factual question of whether the October 24,
2011 falling incident occurred as alleged. As Dr. Fisher’s report does not provide factual
evidence relevant to that issue, it is irrelevant to the claim. The Board has held that the
submission of evidence which does not address the particular issue involved does not comprise a
basis for reopening a case.20
Accordingly, the Board finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP or
submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly issued its March 18, 2012 decision denying merit review.

14

5 U.S.C. § 8128(a).

15

20 C.F.R. § 10.606(b)(2).

16

Id. at § 10.608(b). See also D.E.., 59 ECAB 438 (2008).

17

Helen E. Tschantz, 39 ECAB 1382 (1988).

18

See 20 C.F.R. § 10.606(b)(3). See also Mark H. Dever, 53 ECAB 710 (2002).

19

Annette Louise, 54 ECAB 783 (2003).

20

Joseph A. Brown, Jr., 55 ECAB 542 (2004).

5

CONCLUSION
The Board finds that appellant has not established that she sustained a right ankle or head
injury on October 24, 2011. The Board further finds that OWCP properly denied her request for
reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 19 and January 18, 2012 are affirmed.
Issued: October 10, 2012
Washington, DC

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

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

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

6