United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.W., Appellant
and
U.S. POSTAL SERVICE, NATIONAL
DISTRIBUTION CENTER, Jersey City, NJ,
Employer
__________________________________________

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Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0003
Issued: June 18, 2019

Case Submitted on the Record

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

JURISDICTION
On October 1, 2018 appellant, through counsel, filed a timely appeal from a May 4, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the

1

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

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.

Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a left wrist injury
causally related to the accepted November 1, 2014 employment incident.
FACTUAL HISTORY
On November 1, 2014 appellant, then a 56-year-old maintenance mechanic, filed a
traumatic injury claim (Form CA-1) alleging that he slipped and fell backwards when turning to
get a hammer and fractured his left wrist on that date while in the performance of duty. On the
reverse side of the claim form, the employing establishment disagreed with his description of
events and noted that a witness reported that appellant’s face turned white and he fainted. On a
November 1, 2014 incident report, it noted that appellant was in the process of standing up to go
get tools, he started to turn, and then slipped and fell backwards landing on his back.
On November 1, 2014 the employing establishment provided appellant with an
authorization for examination and/or treatment (Form CA-16) diagnosing fracture of the wrist. On
that day appellant sought treatment at the emergency room where Dr. Amir E. Estaphan, a Boardcertified emergency medicine physician, diagnosed syncope, hypotension, and left wrist fracture.
Dr. Estaphan recommended left wrist surgery.
In a development letter dated November 18, 2014, OWCP advised appellant that initially
his injury appeared to be minor, resulting in minimal or no lost time from work. It noted that
payment of a limited amount of medical expenses was administratively approved and the merits
of the claim had not been formally considered. OWCP determined that the factual portion of
appellant’s traumatic injury claim had not been established. It requested that he complete a
questionnaire as well as provide additional factual and medical evidence in support of his claim.
OWCP afforded him 30 days for response.
In a note dated November 1, 2014, Dr. Estaphan reported that appellant had sudden onset
of weakness, stood up, and experienced a sudden onset syncopal episode. He diagnosed markedly
comminuted, distracted, and angulated fracture through the distal radius on the left. Dr. Estaphan
recommended hospitalization for observation due to a probably syncopal episode and hypotension,
but appellant refused to stay.
On November 3, 2014 Dr. Renata Weber, a Board-certified hand and plastic surgeon,
examined appellant and noted that he had fallen twice in the past week. She diagnosed
comminuted distal radius fracture based on x-rays. Dr. Weber recommended wrist surgery. On
November 3, 2014 she completed part B of the Form CA-16, attending physician’s report, which
listed October 27, 2014 as the date of injury and described the injury as distal radius fracture.
Dr. Weber diagnosed Colles’ fracture of the wrist and checked a box marked “no” that appellant’s

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5 U.S.C. § 8101 et seq.

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diagnosed wrist fracture was not due to his employment activity. She noted that he had a
concurrent condition of “dizziness.”
On December 3, 4014 Dr. Peter H. Pham, an osteopath, admitted appellant to the hospital
with diagnoses of anxiety, syncope, and left wrist fracture. Appellant noted that he had fallen the
previous month at work when he tripped over machinery and had landed on his left wrist. On
December 5, 2014 Dr. Weber examined him and noted that she had examined him four weeks
earlier due to a distal radius fracture to the left hand. She noted that appellant reported that he had
injured his wrist at work and that he had been falling more frequently lately. Dr. Weber diagnosed
left distal radius fracture and new median nerve compression. She recommended surgery. On
December 5, 2014 Dr. Weber performed an open reduction and internal fixation of four fragment
distal radius fracture and left carpal tunnel release.
By decision dated January 5, 2015, OWCP denied appellant’s claim finding that he had not
established the factual component of his traumatic injury claim. It explained that he failed to
clarify the cause of his fall, i.e., whether he had a history of fainting spells, whether a hazardous
condition was present, or whether he struck any object as he fell. OWCP therefore concluded that
the requirements had not been met to establish an injury as defined by FECA.
During his hospitalization on December 3, 2014, appellant reported that he tripped over
machinery and fell onto his wrist. He denied dizziness, light headedness, or syncope at any time.
In a note dated April 2, 2015, Dr. Weber reported that appellant fell the previous week
injuring his left hand and index finger. On May 4, June 25, and July 30, 2015 she again noted that
he had reinjured his hand in March 2015 and diagnosed a tendon rupture due to either his original
fracture or possibly the March 2015 injury. On August 3, 2015 appellant underwent a second left
carpal tunnel release. In a note dated September 30, 2015, Dr. Weber diagnosed carpal tunnel
syndrome, rupture of the extensor tendons of the hand, wrist sprain, and lumbosacral root lesions.
On November 20, 2015 appellant, through counsel requested reconsideration of the
January 5, 2015 decision contending that appellant had fallen at work on November 1, 2014, had
felt an immediate problem with his left wrist, and sought medical attention on that date.
By decision dated February 16, 2016, OWCP denied modification of the January 5, 2015
decision. It found that, according to a witness, appellant’s face turned white and he fainted.
OWCP also noted two different descriptions of the alleged employment incident in the medical
evidence, falling over machinery and slipping when he turned to get a hammer.
On March 2, 2016 appellant, through counsel, requested reconsideration and provided
additional medical evidence arguing that appellant slipped and fell at work whether turning to get
a hammer or falling over machinery. Appellant alleged that his job contributed to his fall.
In a report dated January 29, 2016, Dr. Weber noted that appellant had fallen twice in
November 2014 and that he was evaluated for syncopal episodes. She opined, “One of these falls
caused the wrist fracture and possibly a few other falls while the wrist was not properly protected
with a splint or cast contributed to the severe comminution.” Dr. Weber performed appellant’s
first wrist surgery on December 4, 2014 which included carpal tunnel release. Appellant fell again
in April 2015 reinjuring the left thumb and wrist. In June 2015, Dr. Weber diagnosed attrition
3

rupture of the extensor tendon to the left thumb, a known complication of distal radius fractures.
She performed a second left wrist surgery in August 2015 rereleasing the carpal tunnel with
internal neurolysis of the median nerve, removal of synovial tissue, and tendon transfer to restore
thumb extension. Following the surgery, magnetic resonance imaging (MRI) scans demonstrated
scapholunate ligament tear, and triangular fibrocartilage complex (TFCC) tear. Appellant also
developed symptoms of severe pain consistent with a neuroma as well as laxity of the
metacarpophalangeal (MCP) joint which disrupted the tendon transfer. In November 2015,
Dr. Weber performed a third left wrist surgery to repair the TFCC and remove a bone spur as well
as transposing the ulnar sensory nerve. Four weeks later, she performed a fourth surgery to remove
the volar plate and minimize synovitis and ulnar styloid bursitis. As a result of appellant’s medical
course, Dr. Weber found that he was partially disabled.
By decision dated June 1, 2016, OWCP denied modification of its prior decisions. It found
that appellant had not submitted factual statements clarifying the events of November 1, 2014.
On November 10, 2016 appellant, through counsel, requested reconsideration and
submitted a factual statement. Appellant asserted that on November 1, 2014 he was at work
replacing a machine shaft. As he was leaving the area to retrieve more tools, his left foot caught
in a gap between a beam and the floor. Appellant fell and landed on his left wrist. He did not
realize the exact cause of his fall until a few days later when he noticed the bruising on his toes.
Appellant further noted that, although he had experienced syncopal episodes in the past, the fall
on November 1, 2014 was not due to syncope, but due to tripping when his left foot was caught in
a gap between the floor and a beam. He denied losing consciousness and asserted that he could
not see his coworker’s face when he fell, disputing his coworker’s claim that appellant’s face
turned pale before he fell.
By decision dated February 27, 2017, OWCP modified and affirmed its prior decisions
finding that appellant had established that the incident occurred as alleged, but failed to provide
medical evidence to establish causal relationship between his diagnosed condition and the accepted
employment incident.
On February 5, 2018 appellant, through counsel, requested reconsideration and submitted
a report from Dr. Weber dated January 29, 2018. In her January 29, 2018 report, Dr. Weber noted
that she first examined appellant in November 2014 after an emergency room visit with low blood
pressure and a left wrist fracture. Appellant reported that he fell at work one week prior to the
emergency room visit, but did not immediately seek treatment as he believed that his wrist was
sprained. Dr. Weber diagnosed severely comminuted fracture of the left distal radius and ulnar
styloid known as a fall on outstretched hand. Appellant underwent surgery approximately one
month after his injury. Dr. Weber opined that the severe comminution as well as the delay in care
contributed to the complications he sustained and the need for multiple additional surgeries. She
opined that a fall on an outstretched wrist could cause the fracture pattern appellant sustained.
Dr. Weber noted that most syncopal falls did not result in wrist fractures, but instead falling with
the hand outstretched to prevent or break the fall that results in wrist fractures. She noted that most
syncopal falls were the result of appellant’s losing consciousness and resulted in facial injuries and
head lacerations. Dr. Weber found that he was partially disabled.

4

By decision dated May 4, 2018, OWCP denied modification of the February 27, 2017
decision finding that appellant had not established that his injuries were causally related to his
accepted November 1, 2014 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,4 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.7 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 sufficient evidence, generally only 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 evidence generally required to establish
causal relationship is rationalized medical opinion evidence.10 Rationalized medical opinion
evidence is evidence which includes a physician’s opinion on the issue of whether there is a causal
relationship between the claimant’s diagnosed condition and the implicated employment factors.11
The opinion of the physician must be based on a complete factual and medical background, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors

4
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153(1989).
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

B.F., Docket No. 09-0060 (issued March 17, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

8

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

9

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra
note 7.
10

A.L., Docket No. 18-1465 (issued February 14, 2019); K.V., Docket No. 18-0306 (issued August 8, 2018);
Elizabeth H. Kramm, 57 ECAB 117, 123 (2005).
11

A.L., id.; I.J., 59 ECAB 408 (2008).

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identified by the claimant.12 This medical opinion must include an accurate history of the
employee’s employment injury and must explain how the condition is related to the injury. The
weight of medical evidence is determined by its reliability, its probative value, its convincing
quality, the care of analysis manifested, and the medical rationale expressed in support of the
physician’s opinion.13
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that his left wrist
condition was causally related to the accepted November 1, 2014 employment incident.
On November 1, 2014 Dr. Estaphan diagnosed syncope, hypotension, and left wrist
fracture. While this report reflects immediate treatment following the employment incident, it fails
to relate any opinion regarding the cause of appellant’s condition and is therefore insufficient to
establish his traumatic injury claim.14 On December 3, 4014 Dr. Pham diagnosed anxiety,
syncope, alcohol use, and left wrist fracture. Neither Dr. Estaphan nor Dr. Pham provided an
opinion as to the cause of the diagnosed left wrist fracture. The record also contains multiple
reports from Dr. Weber addressing appellant’s left wrist condition. Beginning on November 3,
2014 she noted that he had fallen twice in the past week and diagnosed comminuted distal radius
fracture based on x-rays. On November 3, 2013 Dr. Weber did not provide an opinion as to the
cause of appellant’s wrist fracture. The Board has held that medical evidence that does not offer
an opinion regarding the cause of an employee’s condition is of no probative value on the issue of
causal relationship.15 Thus, these reports are insufficient to meet appellant’s burden of proof
regarding causal relationship.
Dr. Weber completed the attending physician’s portion of a December 3, 2014 Form CA16 which listed October 27, 2014 as the date of injury and described the injury as distal radius
fracture. She checked a box marked “no” that appellant’s diagnosed wrist fracture was not due to
his employment activity. Dr. Weber noted that he had a concurrent condition of “dizziness.” This
report does not support causal relationship between appellant’s diagnosed left wrist fracture and
his accepted November 1, 2014 employment incident. It is based on a different history of injury
than that offered by him and accepted by OWCP. Therefore, this report does not support
appellant’s claim.16
On December 5, 2014 Dr. Weber noted that appellant reported he had injured his wrist at
work and that he had been falling more frequently lately. She diagnosed left distal radius fracture
12

Id.

13

A.L., supra note 10; D.H., Docket No. 17-1913 (issued December 13, 2018); K.V., Docket No. 18-0723 (issued
November 9, 2018); James Mack, 43 ECAB 321 (1991).
14

T.M., Docket No. 18-0972 (issued December 13, 2018).

15

See M.C., Docket No. 18-0951 (issued January 7, 2019); J.L., Docket No. 18-0698 (issued November 5, 2018);
R.A., Docket No. 17-1472 (issued December 6, 2017); Sedi L. Graham, 57 ECAB 494 (2006); Deborah L. Beatty, 54
ECAB 340 (2003).
16

M.C., id.; M.B., Docket No. 18-0906 (issued November 21, 2018).

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and new median nerve compression. Dr. Weber did not offer her own medical opinion as to the
cause of appellant’s injury. An award of compensation may not be based on surmise, conjecture,
speculation, or upon appellant’s own belief that there was a causal relationship between his
condition and his employment.17
In her January 29, 2016 report, Dr. Weber noted that appellant had fallen several times in
November 2014 and that he was evaluated for syncopal episodes. She opined, “One of these falls
caused the wrist fracture and possibly a few other falls while the wrist was not properly protected
with a splint or cast contributed to the severe comminution.” In her January 29, 2018 report,
Dr. Weber reported that appellant informed her that he fell at work one week prior to the
emergency room visit on November 1, 2014, but did not immediately seek treatment as he believed
that his wrist was sprained. She opined that a fall on an outstretched wrist could cause the fracture
pattern he sustained. These reports do not support appellant’s claim for a left wrist fracture due to
the accepted November 1, 2014 employment incident. Instead, Dr. Weber attributed his left wrist
fracture to either a series of falls or a sole earlier fall that has not been accepted as work related by
OWCP. Furthermore, she did not clearly identify the November 1, 2014 employment incident as
one of the falls which caused or contributed to appellant’s diagnosed condition and did not attribute
his left wrist fracture to this accepted employment incident.18 Without an affirmative opinion that
appellant’s diagnosed condition was causally related to his accepted employment incident, these
reports are insufficient to meet his burden of proof.19
As appellant has not submitted rationalized medical evidence establishing that his left wrist
condition was causally related to the accepted November 1, 2014 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.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that his left wrist
condition was causally related to the accepted November 1, 2014 employment incident.20

17

A.L., supra note 10; A.W., Docket No. 17-0285 (issued May 25, 2018).

18

M.B., supra note 16.

19

M.C., supra note 15.

20

The Board notes that the employing establishment issued a Form CA-16. A properly completed CA-16 form
authorization may constitute a contract for payment of medical expenses to a medical facility or physician, when
properly executed. The form creates a contractual obligation, which does not involve the employee directly, to pay
for the cost of the examination or treatment regardless of the action taken on the claim. See 20 C.F.R. § 10.300(c);
M.C., supra note 15; Tracy P. Spillane, 54 ECAB 608 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the May 4, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 18, 2019
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.H., Appellant
and
U.S. POSTAL SERVICE, WALLINGFORD
STATION, Seattle, WA, Employer
__________________________________________

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

Docket No. 08-1005
Issued: November 17, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 19, 2008 appellant filed a timely appeal from a March 8, 2007 merit
decision of the Office of Workers’ Compensation Programs, affirming termination of his
compensation benefits and a nonmerit decision dated December 11, 2007 denying his request for
reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over
the merits of this claim.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s compensation
benefits effective November 29, 2006; (2) whether he established any continuing disability or
residuals subsequent to November 29, 2006; and (3) whether the Office properly denied further
review of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On May 10, 2005 appellant, then a 56-year-old motor vehicle operator, sustained injury
to his low back while off-loading a pallet from a truck. The Office accepted the claim for lumbar

strain/sprain and aggravation of bilateral upper arm and shoulder strain/sprain. On June 6, 2006
it accepted appellant’s claim for a recurrence of disability beginning June 18, 2005.
In a March 1, 2006 report, Dr. Howard Cushner, an attending Board-certified internist
with a subspecialty in nephrology, diagnosed chronic kidney disease. He noted appellant had
chronic back pain since May 2005. Appellant was totally disabled from performing his usual
work as a driver. Dr. Cushner requested that a functional capacity evaluation be performed.
On June 5, 20061 Dr. Karen M. Wooten, a Board-certified physiatrist, noted appellant had
complaints of thoracic pain due to an employment injury the prior year. Appellant related that he
had back pain for many years and the pain in his mid-thoracic region became persistent since the
May 10, 2005 employment injury. Dr. Wooten diagnosed post-traumatic stress disorder, major
depressive disorder, shoulder problems, neck problems and chronic pain. A physical
examination revealed discomfort on palpation in the T5 to T8 paraspinal area, greater on the
right than the left and sensation intact to light touch throughout the upper extremity and lower
extremity dermatomes bilaterally. Diagnostic studies showed a mild to moderate L2 to S1
degenerative joint disease based on a June 2005 magnetic resonance imaging (MRI) scan.
Dr. Wooten attributed appellant’s mid-thoracic back pain to his work injury in 2005.
In a May 22, 2006 report, Dr. Charles S. Paxson, a Board-certified internist with a
subspecialty in rheumatology, obtained a history of low back pain since 1979. He noted that the
pain became worse with right leg and buttock numbness, since the May 2005 employment injury.
Since the employment injury appellant also had mid-thoracic and lower right rib cage pain.
On August 7, 2006 Dr. Wooten diagnosed chronic pain syndrome, multiple pain
complaints and mechanical mid-thoracic back pain which she attributed to a June 5, 2005
employment injury. She reported that appellant had “a lot of difficulty just sitting in the clinic
today” and had used eight days of leave for a recent pain flare-up. Appellant was seen for his
pain complaints and a recommendation for a functional capacity evaluation. Dr. Wooten noted
that appellant was disabled from performing his duties as a truck driver due to chronic pain.
On August 16, 2006 Dr. Wooten again requested a consult for appellant’s pain condition.
She noted a provisional diagnosis of chronic low back pain which had been present since a
May 2005 injury when appellant injured himself while moving pallets.
On August 9, 2006 the Office referred appellant to Dr. Joan Sullivan, a Board-certified
orthopedic surgeon, for a second opinion evaluation. Dr. Sullivan was asked to address whether
appellant continued to have residuals of his accepted conditions, whether his employment injury
aggravated any preexisting conditions and whether he was capable of performing his date-ofinjury job. In a September 25, 2006 report, she reviewed medical evidence, a statement of
accepted facts and set forth findings on physical examination. Dr. Sullivan diagnosed lumbar
strain and bilateral shoulder pain due to the May 10, 2005 employment injury. She determined
that appellant had mild cervical disc disease, bilateral acromioclavicular joint arthritis and mild
degenerative changes of the right shoulder glenohumeral joint, which were preexisting and not
aggravated by the accepted employment injury. A physical examination revealed limited right
1

This is the date of the note and the entry date is June 7, 2006.

2

shoulder range of motion due to pain and no crepitus in the shoulder range of motion.
Dr. Sullivan reported that appellant had multiple pain complaints as well as “nonanatomic,
nonphysiologic findings also on examination.” As to the May 5, 2005 employment injury, she
opined that appellant was capable of performing his usual duties. However, Dr. Sullivan opined
that appellant’s nephrectomy and preexisting nonemployment-related lumbar disc disease
restricted him from performing his usual employment as a motor vehicle operator. Appellant
had no disability or limitation due to his accepted conditions and any limitations or disability
were due to nonemployment-related conditions. Dr. Sullivan concluded that appellant’s
accepted lumbar sprain and bilateral upper shoulder condition had resolved. She noted there
were no objective findings to support his complaints “other than limitations in range of motion,
many of which would have preexisted and are not related to his industrial injury.” In an attached
September 25, 2006 work capacity evaluation form (OWCP-5c), Dr. Sullivan advised that
appellant’s work restrictions were due to his nonemployment and preexisting lumbar disc
disease.
On October 19, 2006 the Office proposed to terminate appellant’s compensation, finding
that the medical evidence established that he no longer had any residuals or disability due to his
accepted work injury. In a November 10, 2006 response, appellant disagreed with Dr. Sullivan’s
September 25, 2006 report.
On November 9, 2006 Dr. Wooten again requested a consult on appellant’s chronic pain
condition. She noted a provisional diagnosis of chronic low back pain which had been present
since the May 2005 injury.
By decision dated November 29, 2006, the Office finalized the termination of appellant’s
wage-loss and medical benefits effective that date. It found that he no longer had any residuals
or disability due to his accepted May 10, 2005 employment injury. The weight of the medical
evidence rested with the opinion of Dr. Sullivan.
In a letter dated February 12, 2007, appellant requested reconsideration. He submitted
medical and factual evidence, including a February 1, 2007 report from Dr. Paxson who noted
appellant’s low back symptoms have worsened and that his “mid-thoracic pains seem to be new
since the May 2005 event.” Dr. Paxson advised that appellant was unable to perform his usual
duties as a driver. He stated that multiple physicians and objective studies “have not found
evidence for a reproducible, specific problem in the area” and that any further testing was
unlikely to provide clarification. Dr. Paxon stated:
“It seems inescapable that these conditions now are symptomatically worse; with
the addition of the thoracic pains and that we cannot define why. I join the chorus
of other examiners who believe [appellant]’s worsened symptoms have evolved as
a result of his event in May 2005, and that he deserves a [functional] [capacity]
[evaluation] to see if there is alternative work open to him.”
By decision dated March 8, 2007, the Office denied modification of the November 29,
2006 decision terminating his compensation benefits.

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In a March 23, 2007 progress note, Dr. Timothy J. Lee, a treating physician, reported a
history of chronic pain since May 2005 as a result of a lifting injury at work. He diagnosed
chronic pain syndrome. In a July 27, 2007 progress note, Dr. Lee diagnosed chronic low back
pain and chronic pain syndrome.
On September 12, 2007 appellant requested reconsideration. He submitted Veterans
Administration rating decisions dated March 15, 1996, January 21, 2003 and May 15, 2007 and
an August 7, 2006 progress note from Dr. Wooten. In an April 7, 2007 report, Dr. Shan Jiang, a
Board-certified family practitioner, who noted that appellant’s service-connected claim had been
accepted for right lower extremity hypothesia and L2-3, L3-4, L4-5 and L5-S1 degenerative disc
disease by the Veterans Administration (VA). He concluded that the accepted conditions should
be changed to lumbar degenerative disc disease at L2-3, L3-4, L4-5 and L5-S1 and IVDS
bilateral-lateral femoral cutaneous nerve.
In a nonmerit decision dated December 11, 2007, the Office denied appellant’s request
for reconsideration.2
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.3 After it has determined that an
employee has disability causally related to his federal employment, the Office may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.4 The Office’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.5
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability. To terminate authorization for medical treatment, the Office must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.6
ANALYSIS -- ISSUE 1
Appellant’s claim was accepted for lumbar strain/sprain and aggravation of bilateral
upper arm and shoulder strain/sprain. The Board finds that the weight of the medical evidence is
represented by the report of Dr. Sullivan and establishes that appellant had no employmentrelated disability on or after November 29, 2006.
2

The Board notes that, following the December 11, 2007 nonmerit decision, the Office received additional
evidence. The Board may not consider new evidence on appeal. See 20 C.F.R. § 501.2(c); Donald R. Gervasi, 57
ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
3

Paul L. Stewart, 54 ECAB 824 (2003).

4

Elsie L. Price, 54 ECAB 734 (2003).

5

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

6

James F. Weikel, 54 ECAB 660 (2003).

4

In a September 25, 2006 report, Dr. Sullivan reviewed appellant’s history of injury and
medical treatment for the accepted lumbar and shoulder strains. She noted that appellant had
several preexisting medical conditions but found that they had not been aggravated by the
accepted injury. Dr. Sullivan also found that his accepted lumbar strain and bilateral upper arm
and shoulder strains had resolved. She stated that appellant had no disability or limitation due to
his accepted employment injuries and that any limitations or disability were due to
nonemployment conditions. Dr. Sullivan noted that there were no objective findings which
supported appellant’s ongoing subjective complaints other than limitations in range of motion,
which preexisted his injury and were not related to his federal employment.
In reports dated June 6 and August 7, 2006, Dr. Wooten, an examining Board-certified
physiatrist, diagnosed thoracic pain, post-traumatic stress disorder, shoulder and neck problems
and chronic pain, which she attributed to appellant’s employment injury. She noted that
appellant had chronic back pain since the May 10, 2005 employment injury. The Board notes
that several conditions diagnosed by Dr. Wooten have not been accepted as employment related.
It is appellant’s burden of proof to establish causal relationship between the diagnosed conditions
and his employment.7 Dr. Wooten presented no rationale or explanation in support of her
conclusion that appellant’s chronic back pain and thoracic pain were due to his May 10, 2005
employment injury. While she noted that appellant sustained his injury in May 2005 while
lifting a pallet from a truck, she did not explain how residuals of his accepted conditions
contributed to his thoracic pain or chronic pain.8 The Board has previously held that mere
conclusory statements, not fortified by explanation, are insufficient to establish causal
relationship between an employment incident and a diagnosed condition.9 The Board finds that
Dr. Wooten’s reports do not establish that appellant had continuing work-related residuals and
are insufficient to create a conflict with Dr. Sullivan’s report.
Similarly, the March 1, 2006 report by Dr. Cushner and May 22, 2006 report by
Dr. Paxson are also insufficient to create a conflict with Dr. Sullivan’s report. Dr. Cushner
diagnosed chronic kidney disease and noted appellant has had chronic back pain since
May 2005. Dr. Paxson diagnosed low back pain since 1979, which had worsened. Neither
physician provided any opinion as to how appellant’s conditions were causally related to his
accepted employment injury. The Board has held that 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 relationship10 Merely noting that appellant has had a back condition since
May 2005 does not qualify as an opinion as to the cause of his condition as neither physician
discussed what happened in May 2005 or noted the employment injury.

7

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

8

Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
9

Id.

10

K.W., 59 ECAB ___ (Docket No. 07-1669, issued December 13, 2007).

5

The September 25, 2006 report of Dr. Sullivan is based on an accurate factual
background and provides medical rationale for her conclusions.11 The Office met its burden of
proof to terminate appellant’s benefits. The weight of the medical evidence establishes that
residuals of his employment-related condition ceased.
LEGAL PRECEDENT -- ISSUE 2
After termination or modification of compensation benefits, clearly warranted on the
basis of the evidence, the burden for reinstating compensation shifts to appellant.12 In order to
prevail, appellant must establish by the weight of the reliable, probative and substantial evidence
that he had an employment-related disability, which continued after termination of compensation
benefits.
The medical evidence required to establish a causal relationship is rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence, which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between
appellant’s diagnosed condition and the implicated employment factors.13 The opinion of the
physician must be based on a complete factual and medical background of appellant, 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 appellant.14
ANALYSIS -- ISSUE 2
The Board finds that appellant did not meet his burden of proof in establishing that he
had continuing employment-related disability or residuals after November 29, 2006.
Appellant requested reconsideration after the Office met its burden of proof to terminate
his compensation benefits. In support of his request, he submitted a February 1, 2007 report
from Dr. Paxson, who submitted findings similar to his prior report and concluded that
appellant’s back condition had worsened since the May 2005 employment injury and that his
“mid-thoracic pains seem to be new.” Dr. Paxson noted that he was unable to define why
appellant had thoracic pain and his symptoms had worsened. He recommended a functional
capacity evaluation (FCE). However, Dr. Paxon did not explain how appellant had any
continuing employment-related condition. While he concluded that appellant’s condition had
worsened following the injury based on medical reports by appellant’s various physicians, he did
11

Michael S. Mina, 57 ECAB 379 (2006) (in assessing medical evidence, the weight of such evidence is
determine by its reliability, its probative value and its convincing quality; the opportunity for and thoroughness of
examination, the accuracy and completeness of the physician’s knowledge of the facts and medical history, the care
of analysis manifested and the medical rationale expressed in support of the physician’s opinion, are facts which
determine the weight to be given to each individual report).
12

See Joseph A. Brown, Jr., 55 ECAB 542 (2004); Virginia Davis-Banks, 44 ECAB 389 (1993); Joseph M.
Campbell, 34 ECAB 1389 (1983).
13

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

14

Bobbie F. Cowart, 55 ECAB 746 (2004); Victor J. Woodhams, 41 ECAB 345 (1989).

6

not provide sufficient explanation or rationale to establish that any continuing condition or
disability was caused by his accepted injuries.15 The Board finds that his report was insufficient
to establish that appellant had any continuing residuals of his employment-related conditions
after November 29, 2006.
LEGAL PRECEDENT -- ISSUE 3
To require the Office to reopen a case for merit review under section 8128 of the Federal
Employees’ Compensation Act,16 the Office’s regulation provides that a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.17 To be entitled to a merit
review of an Office 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.18 When a claimant fails to
meet one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review of the merits.19
ANALYSIS -- ISSUE 3
The Board finds that the Office properly denied appellant’s request for merit review. The
underlying issue for reconsideration was whether the Office properly terminated appellant’s
compensation effective November 29, 2006.
In support of his September 11, 2007 request for reconsideration, appellant noted that the
VA had increased his disability rating. Appellant’s allegation does not show that the Office
erroneously applied or interpreted a specific point of law or advance a relevant legal argument
not previously considered. The underlying issue is medical in nature. The fact that the VA
increased his disability rating for his back condition is not relevant to the issue of whether his
May 10, 2005 injury in civilian employment caused ongoing residuals on disability. A finding of
disability by the VA has no bearing on a disability finding under the Act as each statute has
different standards of medical proof on the question of causal relation. Therefore, disability
under one statute does not establish disability under the other statute.20 This argument does not
constitute a basis for reopening appellant’s case for further merit review. Consequently,
15

See Jimmie H. Duckett, supra note 8; Franklin D. Haislah, supra note 8.

16

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, the Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
17

20 C.F.R. § 10.606(b)(1)-(2). See Susan A. Filkins, 57 ECAB 630 (2006).

18

Id. at § 10.607(a).

19

20 C.F.R. § 10.608(b). See Tina M. Parrelli-Ball, 57 ECAB 598 (2006) (when an application for review of the
merits of a claim does not meet at least one of the three regulatory requirements the Office will deny the application
for review without reviewing the merits of the claim).
20

H.S., 58 ECAB ___ (Docket No. 07-582, issued June 14, 2007); John E. Cannon, 55 ECAB 585 (2004); David
Budzik, 52 ECAB 339 (2001).

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appellant is not entitled to a review of the merits of his claim based on the first and second
above-noted requirements under section 10.606(b)(2).
Appellant also submitted a July 27, 2007 progress note by Dr. Lee, an August 7, 2006
report by Dr. Wooten and an April 7, 2007 report by Dr. Jiang. The submission of Dr. Jiang’s
April 7, 2007 report and Dr. Lee’s July 27, 2007 progress report does not require reopening of
his claim for merit review because they are not relevant to the main issue of the present case.21
The April 7, 2007 report and July 27, 2007 progress note provide no opinion on whether
appellant continued to have any residuals or disability due to his accepted May 5, 2005
employment injury. Dr. Jiang opined that appellant’s accepted VA conditions be changed and
did not mention the accepted employment-related injury. Dr. Lee diagnosed chronic low back
pain and chronic pain syndrome with no opinion as to causation. The August 7, 2006 report of
Dr. Wooten was previously considered by the Office when it terminated his compensation
benefits on November 29, 2006. Evidence which repeats or duplicates evidence already in the
case record has no evidentiary value and does not constitute a basis for reopening a case.22
Appellant has not submitted any relevant and pertinent new evidence, advanced a legal
argument not previously considered by the Office, nor argued that the Office erroneously
interpreted a specific point of law. Thus, he has not met the criteria to have the Office reopen his
case for review on the merits.23
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation and
medical benefits effective November 29, 2006 and that appellant did not meet his burden of
proof in establishing that he was disabled as a result of his previous employment injuries after
November 29, 2006. The Board further finds that the Office properly declined to reopen
appellant’s claim for consideration of the merits on December 11, 2007.

21

F.R., 58 ECAB ___ (Docket No. 05-15, issued July 10, 2007) (evidence that does not address the particular
issue involved does not constitute a basis for reopening a case).
22

J.P., 58 ECAB ___ (Docket No. 06-1274, issued January 29, 2007).

23

M.E., 58 ECAB ___ (Docket No. 07-1189, issued September 20, 2007) (when an application for
reconsideration does not meet at least one of the three requirements enumerated under section 10.606(b)(2), the
Office will deny the application for reconsideration without reopening the case for a review on the merits).

8

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 11 and March 8, 2007 and November 29, 2006 are
affirmed.
Issued: November 17, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
U.S. POSTAL SERVICE, ROCHESTER
PROCESSING & DISTRIBUTION CENTER,
Rochester, NY, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0970 & Docket
No. 21-0972
Issued: March 3, 2022

Case Submitted on the Record

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

On January 3, 2021 appellant also filed a timely appeal from a November 24, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP) under OWCP File No.
xxxxxx550. The Clerk of the Appellate Boards docketed the appeal as No. 21-0972. On June 10,
2021 appellant filed a timely appeal from a December 29, 2020 merit decision of OWCP under
OWCP File No. xxxxxx896. The Clerk of the Appellate Boards docketed that appeal as No.
21-0970.
With regard to OWCP File No. xxxxxx550, on October 27, 2007 appellant, then a 45-yearold mail processor, filed an occupational disease claim (Form CA-2) alleging that she developed
neck, shoulder, and wrist conditions due to factors of her federal employment, including lifting
trays, pushing containers, and moving mail. She noted that she first became aware of her condition
and its relation to her federal employment on October 27, 2007. OWCP accepted the claim for
right biceps strain and sprain of the shoulder and upper arm. On November 12, 2008 OWCP
expanded the acceptance of appellant’s claim to include right lateral epicondylitis, lesion of the
left ulnar nerve, and bilateral carpal tunnel syndrome.
With regard to OWCP File No. xxxxxx896, on January 3, 2017 appellant, then a 54-yearold mail processor, filed an occupational disease claim (Form CA-2) alleging that she developed

a left wrist condition due to factors of her federal employment, including repetitive fixing and
bagging of the mail. On April 5, 2017 OWCP accepted the claim for left radial styloid
tenosynovitis (de Quervain’s) under OWCP File No. xxxxxx896.
On June 1, 2020 appellant filed claims for compensation (Form CA-7) for a schedule award
under both OWCP File Nos. xxxxxx896 and xxxxx550. By decision dated November 24, 2020,
under OWCP File No. xxxxxx550, OWCP granted appellant a schedule award for seven percent
permanent impairment of her right upper extremity and nine percent permanent impairment of her
left upper extremity. The award ran for 47.76 weeks during the period September 14, 2020 to
August 14, 2021. By decision dated December 29, 2020, under OWCP File No. xxxxx896, OWCP
denied appellant’s schedule award claim, finding that the evidence of record was insufficient to
establish permanent impairment of a scheduled member or function of the body.
The Board has duly considered the matter and finds that these cases are not in posture for
decision.
Under its procedures, OWCP has determined that cases should be administratively
combined where a new injury case is reported for an employee who previously filed an injury
claim for the same part of the body and where correct adjudication depends on frequent crossreferencing between files.1 This will allow OWCP to consider all relevant claim files in developing
these schedule award claims.2
Appellant has claimed schedule awards in two claims, both accepted for injuries to her left
upper extremity. Therefore, for full and fair adjudication, the cases must be remanded to OWCP
to administratively combine OWCP File Nos. xxxxxx896 and xxxxxx550.3 Following this and
other such further development as deemed necessary, OWCP shall issue a de novo decision on
appellant’s schedule award claims.

1

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
2

Id. at Chapter 2.400.8(c)(1); E.J., Docket No. 20-1556 (issued July 27, 2021); V.G., Docket No. 19-0670 (issued
April 30, 2020); L.P., Docket Nos. 18-1558, 18-1568 (issued June 21, 2019); L.S., Docket Nos. 17-1863, 17-1867,
17-1868 (issued April 18, 2018); W.S., Docket No. 15-0969 (issued October 5, 2015); C.C., Docket No. 14-1576
(issued March 9, 2015).
3

Id.

2

IT IS HEREBY ORDERED THAT the November 24 and December 29, 2020 decisions
of the Office of Workers’ Compensation Programs under OWCP File Nos. xxxxxx550 and
xxxxxx896 are set aside and the cases are remanded to OWCP for further proceedings consistent
with this order of the Board.
Issued: March 3, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Norfolk, VA, Employer
__________________________________________

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

Docket No. 17-0325
Issued: June 12, 2018

Case Submitted on the Record

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

JURISDICTION
On November 30, 2016 appellant filed a timely appeal from a November 14, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that her claim should
be expanded to include additional spinal conditions as causally related to the accepted July 31,
2014 employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 1, 2014 appellant, then a 32-year-old transportation security officer, filed a
traumatic injury claim (Form CA-1) alleging that she sustained a lower back injury on July 31,
2014 as a result of falling over baggage in the performance of duty. OWCP accepted the claim for
a back contusion.
Appellant submitted an August 1, 2014 magnetic resonance imaging (MRI) scan of the
lumbar spine which revealed lower lumbar spondylosis.
In an August 1, 2014 report, Dr. Maria Cristina Salumbides, a family practitioner,
diagnosed back pain, back contusion, and history of herniated disc. She reported that appellant
stepped back at a baggage drop-off and did not notice baggage that had just been placed behind
her. Appellant lost her footing and fell backwards over the baggage, hitting the floor, and landing
on her lower back.
Appellant accepted a limited-duty position on August 2, 2014.
In a January 5, 2015 report, Dr. Felix Kirven, a Board-certified orthopedic surgeon,
diagnosed lumbar radiculopathy with lumbar herniated nucleus pulposus (HNP)/lumbar strain and
a large herniated disc at L5-S1, and a herniated disc at L3-5 based on his review of a lumbar spine
MRI scan dated December 22, 2014. He noted that appellant’s lower back pain and right-sided
leg numbness and tingling had been ongoing since her work-related accident.
In a March 9, 2015 development letter, OWCP advised appellant of the deficiencies of her
request to expand her claim to include additional accepted conditions and afforded her 30 days to
submit additional evidence and respond to its inquiries.
In response appellant submitted a March 14, 2015 narrative statement and a December 22,
2014 MRI scan of the lumbar spine demonstrating L3-5 disc protrusion with moderate-to-severe
central spinal canal stenosis and L5-S1 disc protrusion with mild stenosis.
Appellant further submitted attending physician’s reports (Form CA-20) and duty status
reports (Form CA-17) dated January 5, 2015 through June 14, 2016 from Dr. Kirven who
reiterated his diagnoses.
By decision dated August 5, 2016, OWCP denied appellant’s request to expand her claim,
finding that the medical evidence of record was insufficient to establish causal relationship
between her additional diagnosed conditions of spinal stenosis and herniate disc and the July 31,
2014 employment injury.
On August 17, 2016 appellant requested reconsideration and argued that the July 31, 2014
employment injury had exacerbated a preexisting condition that was asymptomatic until she fell.
She also submitted an attending physician’s report (Form CA-20) and duty status report (Form
CA-17) dated August 10, 2016 from Dr. Kirven who released her to regular duty without
restrictions.

2

In an August 10, 2016 report, Dr. Kirven diagnosed lumbar contusion and lumbar herniated
disc. He opined that appellant sustained a lumbar contusion as a result of her July 31, 2014
employment injury, however, she aggravated her preexisting disc herniation in the lumbar spine
at L3-4. Dr. Kirven noted that she was largely asymptomatic prior to the July 31, 2014
employment injury and that the act of falling over baggage caused inflammation of her back, which
subsequently released neuropeptides causing nerve root irritation. He provided temporary work
restrictions of no heavy lifting for the next six months.
By decision dated November 14, 2016, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury2 was sustained in the performance of duty, as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.3
Where an employee claims that, a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.4 To establish causal relationship between the condition,
as well as any attendant disability claimed and the employment event or incident, the employee
must submit rationalized medical opinion evidence based on a complete factual and medical
background, supporting such a causal relationship.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.6

2

OWCP regulations define a traumatic injury as a condition of the body caused by a specific event or incident, or
series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the body
affected. 20 C.F.R. § 10.5(ee).
3

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

4

See C.W., Docket No. 17-1636 (issued April 25, 2018); Jaja K. Asaramo, 55 ECAB 200 (2004).

5

See C.W., id.; see also John D. Jackson, 55 ECAB 465 (2004).

6

Id.

3

ANALYSIS
OWCP has accepted that the employment incident of July 31, 2014 occurred at the time,
place, and in the manner alleged and resulted in the accepted condition of a back contusion. The
issue is whether appellant’s additional spinal conditions also resulted from the July 31, 2014
employment injury. The Board finds that she has not met her burden of proof to establish causal
relationship between the additional spinal conditions for which compensation is claimed and the
accepted July 31, 2014 employment injury.
In his reports, Dr. Kirven diagnosed lumbar radiculopathy with HNP, a large herniated disc
at L5-S1, and a herniated disc at L3-5. On August 10, 2016 he opined that appellant sustained a
lumbar contusion as a result of her July 31, 2014 employment injury, however, she aggravated her
preexisting disc herniation in the lumbar spine at L3-4. Dr. Kirven noted that she was largely
asymptomatic prior to the July 31, 2014 employment injury in which she fell over baggage which
caused inflammation of her back, which subsequently released neuropeptides causing nerve root
irritation. The Board finds that he failed to provide sufficient medical rationale explaining the
mechanism of how falling over baggage at work on July 31, 2014 caused or aggravated appellant’s
additional spinal conditions. Dr. Kirven noted that her conditions occurred while she was at work,
but such generalized statements do not establish causal relationship because they merely repeat
her allegations and are unsupported by adequate medical rationale explaining how her physical
activity at work actually caused or aggravated the diagnosed conditions.7 His opinion was also
based, in part, on a temporal correlation. However, the Board has held that neither the mere fact
that a disease or condition manifests itself during a period of employment nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish a causal relationship.8 The need for rationale is particularly important as the evidence of
record indicates that appellant had a preexisting herniated disc condition. Dr. Kirven did not
otherwise sufficiently explain the reasons why diagnostic testing and examination findings led him
to conclude that the July 31, 2014 work injury caused or contributed to the diagnosed spinal
conditions. Thus, the Board finds that his reports are insufficient to establish that appellant
sustained an additional employment-related injury.
The Board also finds that Dr. Salumbides’ diagnosis of back pain and history of herniated
disc is a description of a symptom rather than a clear diagnosis of the medical condition.9
Moreover, the Board has held that medical evidence that does not offer any opinion regarding the
cause of an employee’s condition is of limited probative value on the issue of causal relationship.10
Again, the need for rationale is particularly important as this evidence indicates that appellant had
a preexisting herniated disc condition. For these reasons, the Board finds that the reports from

7

See K.W., Docket No. 10-0098 (issued September 10, 2010).

8

See E.J., Docket No. 09-1481 (issued February 19, 2010).

9

The Board has consistently held that pain is a symptom, rather than a compensable medical diagnosis. See P.S.,
Docket No. 12-1601 (issued January 2, 2013); C.F., Docket No. 08-1102 (issued October 10, 2008).
10

See C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

4

Dr. Salumbides are insufficient to establish a spinal injury causally related to the July 31, 2014
work injury.
Other medical evidence of record, including diagnostic test reports, is of limited probative
value and insufficient to establish the claim as such evidence does not specifically address whether
appellant’s diagnosed conditions are causally related to the July 31, 2014 work injury.11
The Board finds that appellant has not submitted rationalized medical evidence sufficient
to establish that she sustained an additional spinal injury causally related to the July 31, 2014
employment injury. As such, appellant has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her claim
should be expanded to include additional spinal conditions as causally related to the accepted
July 31, 2014 employment injury.

11

See K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Linda I. Sprague, 48 ECAB 386 (1997) (medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of limited probative value
on the issue of causal relationship).

5

ORDER
IT IS HEREBY ORDERED THAT the November 14, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 12, 2018
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
LA GUARDIA AIRPORT, East Elmhurst, NY,
Employer
__________________________________________

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Appearances:
Paul Kalker, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-0925
Issued: August 5, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On March 23, 2015 appellant, through counsel, filed a timely appeal from a February 18,
2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days elapsed from January 16, 2014, the date of the most recent merit decision, to the
date 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 appellant’s claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for further merit review
pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 29, 2013 appellant, then a 25-year-old security officer, filed a traumatic injury
claim (Form CA-1) asserting that on May 25, 2013 she sprained her right ankle and sustained
possible ligament tears when she struck her foot on the base of a stanchion pole near the L3 body
scanning machine, then fell to the floor. She stopped work at the time of injury and was
transported by ambulance to a hospital emergency room. Appellant remained off work through
June 24, 2013.
On the claim form and in a May 31, 2013 letter, the employing establishment
controverted the claim, alleging that security video from her duty station showed that she did not
strike her right foot before falling. It asserted that appellant’s right ankle gave way for an
unknown reason while she was walking. The employing establishment provided a still photo
excerpted from the video, showing that, at the moment she fell, her right foot was not in contact
with any portion of the nearby stanchion pole, and that there were no persons or other obstacles
in front of her.
Dr. David H. Simon, an attending podiatrist, held appellant off work from May 28 to
June 11, 2013 due to a right ankle sprain. He obtained x-rays on May 28, 2013 that showed no
fracture or dislocation of the right ankle. In a June 7, 2013 report, Dr. Simon diagnosed a partial
tear of the tibialis anterior tendon, and a grade 2 ankle sprain with an underlying neuralgia. A
magnetic resonance imaging (MRI) scan showed “fatty atrophy/edema of the muscles of the
distal leg and foot.” Dr. Simon opined that appellant’s right foot pain and ankle weakness were
of neurologic origin, noting that a neurologist was currently evaluating her condition.
In a June 13, 2013 letter, OWCP advised appellant of the type of additional evidence
needed to establish her claim, including documentation of the May 25, 2013 incident, and her
physician’s opinion as to how that incident caused the claimed injury. It afforded her 30 days to
submit such evidence.
In response, appellant submitted a May 28, 2013 report from Dr. Simon relating
appellant’s account that on May 25, 2013 “at 3:15 p.m. [appellant] suffered a direct blow of her
right foot and then sustained an inversion twist of her ankle. She describes that she did turn back
around the stanchion on her way toward the x-ray machine and suffered a fall.” Appellant
acknowledged a “history of nerve pain within her lower back” after left ankle surgery.
Dr. Martin H. Broker, a Board-certified radiologist, opined on June 4, 2013 that the fatty
edema in the muscles of appellant’s right leg and foot, as demonstrated by imaging studies, were
consistent with a neuropathy. He recommended a neurological evaluation and testing.
In a June 18, 2013 report, Dr. David M. Sack, a Board-certified internist and
gastroenterologist consulting to the employing establishment, reviewed medical reports. He
opined that, as the security video showed no work factors causing a fall, the incident was due to a
preexisting neurologic condition.

2

In a June 21, 2013 report, Dr. Simon noted that, based on appellant’s clinical
presentation, the right ankle weakness was not caused by the tendon tear. He opined, however,
that her preexisting ankle weakness predisposed her to injury.
Appellant submitted an undated statement, imaged into the case record on June 26, 2013.
She noted that on May 25, 2013 she was on light-duty due to a left ankle surgery. At
approximately 3:15 p.m. that day, when walking to an x-ray monitor position, appellant struck
her right ankle on the base of a stanchion pole when trying to avoid a passenger who abruptly
moved in front of her. She attempted to catch herself by grabbing the stanchion pole as her ankle
turned, but instead fell forward onto her hands and knees. Appellant remained on the floor
approximately two feet from coworker R.H., until her supervisor called Port Authority police and
emergency personnel were summoned to assist her and transport her to the hospital.
In an undated statement imaged into the case record on June 26, 2013, one of appellant’s
coworkers, asserted that at approximately 3:15 p.m. on May 25, 2013 he was manning the
L3 body scanner. A passenger stepped in front of appellant, causing her to “quickly and
awkwardly move out of his way, despite recently having surgery on her ankle/foot.” Appellant
then fell to the floor.
By decision dated July 10, 2013, OWCP denied appellant’s claim, finding that causal
relationship was not established. It accepted that the May 25, 2013 incident occurred as alleged.
However, OWCP found that the medical evidence did not prove a connection between the
May 25, 2013 trip and fall and an ankle injury or condition.
In an August 6, 2013 letter, appellant requested a review of the written record by a
representative of OWCP’s Branch of Hearings and Review. She submitted additional evidence.2
May 25, 2013 hospital emergency room reports show that appellant arrived at 4:08 p.m.
by ambulance, with right ankle pain and swelling after a fall at work. Appellant provided a
history of “walking by a stanchion when she rolled her ankle on its base and fell on her knees.”
X-rays were negative for fracture. Appellant was assessed for amyotrophic lateral sclerosis
(ALS). These forms do not contain a physician’s legible signature.
In a July 11, 2013 report, Dr. Simon opined that appellant’s continuing right ankle
weakness was due to underlying neurological pathology and not a tendon tear. On July 18, 2013
he noted appellant’s history of a resolved left ankle fracture at age 12, quiescent until 2012.
Appellant underwent “arthrodesis insertion within her sinus tarsi in June 2012,” with removal of
the implant in December 2012. Dr. Simon diagnosed status post implant and removal with
residual sinus tarsi syndrome of the left foot “with plantar flexed first metatarsal bone and left
lower extremity drop foot.”
In a July 30, 2013 report and letter, Dr. Simon related that appellant’s neurologist advised
appellant that she could have a variant of ALS. He diagnosed a partial tear of the right tibialis
tendon with a grade 2 ankle sprain, “underlying neuralgia, and muscle atrophy of unknown
etiology.” Dr. Simon provided August 13 and 14, 2013 progress notes relating an improvement
2

Appellant also provided duplicate copies of medical reports previously of record.

3

in appellant’s right ankle pain, and noting that she had begun to wear a right ankle brace he
prescribed.
By decision dated and finalized October 21, 2013, an OWCP hearing representative
reversed OWCP’s July 10, 2013 decision, and accepted that appellant sustained a right ankle
sprain and contusion on May 25, 2013 as alleged. She found that appellant’s “move to avoid the
passenger was a compensable factor of her employment and that incident clearly contributed to
the cause of the fall, regardless of any preexisting conditions or whether her foot hit the
stanchion.”
In an October 31, 2013 letter, the employing establishment asserted that the evidence of
record did not support fact of injury. It noted that appellant provided three divergent accounts of
the May 25, 2013 injury, including that she fell when trying to avoid a passenger, that she struck
her ankle on the base of a stanchion pole, and that she struck her foot on the base of a stanchion
pole. The employing establishment provided a still photograph excerpted from a May 25, 2013
security video showing that, immediately before appellant fell, her right foot “did not contact the
base of the stanchion.” The photograph also showed that appellant’s coworker (who had
provided the statement) had his back turned to appellant moments before the incident. The
employing establishment alleged that when it showed the security video to the coworker on
October 30, 2013, he “admitted that his back was turned to the entire event.” It enclosed an
October 30, 2013 statement from the coworker, in which he asserted that “portions of [his]
original statement were and are mistakenly false” as he did not see appellant try to avoid a
passenger or “step on the stanchion separating the L3 scanner from the metal detector” walkway.
By decision dated and finalized October 31, 2013, another OWCP hearing representative
set aside the October 21, 2013 decision, finding that the security video did “not show that
[appellant] fell while attempting to get out of the way of a passenger as claimed.” He instead
found that the recording showed that she “fell without any inciting employment incident and
supported the employing establishment’s contention that [appellant] fell when her ankle gave
way.” The hearing representative noted that appellant would be “afforded a review of the written
record by a hearing representative of the Branch of Hearings and Review to address” the July 10,
2013 decision.
Appellant continued to submit medical evidence. In an October 23, 2013 report,
Dr. Simon noted that a neurologic workup indicated a diagnosis of progressive muscular atrophy,
a variant of ALS. He diagnosed “drop foot likely secondary to progressive muscular atrophy.”
Appellant also submitted copies of medical evidence previously of record.
By decision dated and finalized January 16, 2014, the first OWCP hearing representative
affirmed as modified OWCP’s July 10, 2013 decision, finding that appellant did not meet her
burden of proof to establish an injury in the performance of duty. She found that the evidence
demonstrated that appellant fell on May 25, 2013 due to a personal pathology, “without any
inciting employment incident and that there was no employment circumstance or condition that
contributed to her fall of her right ankle injury.” The hearing representative further found that
the “video recording does not show that [appellant] fell while attempting to get out of the way of
a passenger or that she fell after her right foot hit the base of a stanchion pole as claimed.” Also,

4

the coworker withdrew his witness statement, as “he did not witness any part of the claimed
incident.”
In a January 9, 2015 letter, counsel requested reconsideration. He contended that
according to the Federal (FECA) Procedure Manual at Chapter 2.400(3)(a),(b)3 concerning
OWCP obtaining, copying, and returning materials from other federal agencies, appellant was
“wrongfully denied a copy of the video recording reviewed by” OWCP in denying the claim. “If
not copied and retained in the file, the material must not be used in reaching a decision on a
claim.” Counsel also argued that under Chapter 2.402(4) of the procedure manual,4 regarding
compensation fraud, OWCP wrongfully failed to investigate the facts and circumstances
surrounding the coworker’s repudiation and withdrawal of his witness statement. He submitted a
police report of the May 25, 2013 incident, asserting that this new evidence was directly relevant
to the claim and was strongly supportive of fact of injury.
Counsel submitted a May 25, 2013 report from the employing establishment’s law
enforcement unit, relating appellant’s account that at 3:15 p.m. that day, while “walking through
the screening point she tripped over the base of the stanchion that was located by the L3 body
scan machine, causing her to fall to the floor and injur[e] her right ankle and both knees.” There
were “no witnesses” to the incident.
Appellant also provided a December 9, 2013 report from Dr. Simon, noting continued
pain and instability of the right ankle. She also submitted copies of the May 25, 2013 emergency
room reports, and Dr. Simon’s reports from May 28 to October 23, 2013 previously of record.
In a January 15, 2015 letter, counsel requested a complete copy of the claim file, as well
as “the investigative video recording at issue in the claim of [appellant].”
By decision dated January 18, 2015, OWCP denied counsel’s January 8, 2015 request for
a merit review, finding that the argument and evidence counsel submitted in support of his
request did not warrant reconsideration of the merits of the claim. It found that he proceeded
“from an inaccurate understanding of the event in question,” as he believed that appellant tripped
over a stanchion pole base. OWCP explained that the security video showed “this to be false, in
that [appellant’s] foot was about one foot away from the base of the stanchion, contrary to [her]
claims in this case.” It further found that contrary to counsel’s argument, that there was no
indication of record that appellant had called or written OWCP to request a copy of the security
video prior to January 15, 2015. Additionally, OWCP found that the May 25, 2013 police report
was irrelevant as it merely related her inaccurate account of events. It noted that it was then
providing appellant a copy of the security video on a compact disc. Counsel “requested a copy
of the case file, and the video will be provided to him when [OWCP] responds to his request.”

3

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter
2.400(3)(a),(b) (February 2000).
4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Security and Prevention of Fraud and Abuse, Chapter
2.402(4) (March 1991).

5

LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,5
section 10.606(b)(3) of Title 20 of the Code of Federal Regulations provide that a claimant must:
(1) show 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.6 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)(3), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.7
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.8 The claimant need
only submit relevant, pertinent evidence not previously considered by OWCP.9 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)(3) to the claimant’s
application for reconsideration and any evidence submitted in support thereof.10
ANALYSIS
Appellant claimed that she sustained a right ankle injury in the performance of duty on
May 25, 2013, when she either struck her right foot or ankle on a stanchion pole, or moved
awkwardly to avoid colliding with a passenger, causing her to fall forward. OWCP initially
accepted the claim, then denied it as surveillance video of appellant’s duty station did not support
any of the scenarios she described.
In a January 9, 2015 letter, counsel requested reconsideration. He contended that under
the Federal (FECA) Procedure Manual Chapter 2.400(3)(a),(b), concerning OWCP’s protocols
for obtaining, copying, and returning evidence from other federal agencies, OWCP was barred
from relying on the security video as it did not provide a copy to appellant. Counsel also
contended that under Chapter 2.402(4) of the Federal (FECA) Procedure Manual, regarding
prevention of fraud and abuse in receiving compensation, OWCP wrongfully failed to investigate
the facts and circumstances surrounding the coworker’s repudiation and withdrawal of his
witness statement. He argued that the May 25, 2013 police report was directly relevant to the
claim and was strongly supportive of fact of injury. Counsel submitted the police report, which
recounted appellant’s assertion that she tripped and fell on the base on a stanchion pole and that
there were no witnesses to the incident. Appellant provided a December 9, 2013 report from
5

5 U.S.C. § 8128(a).

6

20 C.F.R. § 10.606(b)(2).

7

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

8

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

9

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

10

Annette Louise, 54 ECAB 783 (2003).

6

Dr. Simon, an attending podiatrist, noting continued pain and instability of the right ankle. She
also submitted copies of the May 25, 2013 emergency room reports, and Dr. Simon’s reports
from May 28 to October 23, 2013 previously of record.
By decision dated January 18, 2015, OWCP denied counsel’s request for a review of the
claim on the merits, as the evidence and argument provided were irrelevant or immaterial. The
Board will therefore analyze whether this determination was correct regarding each argument
and document provided.
The May 25, 2013 employing establishment police report, although new, is cumulative of
appellant’s explanation of her injury as provided in her claim and in the emergency room reports
previously of record. Similarly, appellant submitted copies of medical reports previously of
record, as well as a December 9, 2013 report from Dr. Smith reiterating previous findings.
Evidence which is duplicative or cumulative or repetitive in nature is insufficient to warrant
reopening a claim for merit review.11 Therefore, these documents are insufficient to warrant
consideration of the merits of the claim.
Counsel argued that OWCP violated its procedures under Chapter 2.400(3)(a),(b) by
failing to provide appellant a copy of the security video. The Board finds, however, that the
cited provision does not address any obligation by OWCP to provide evidence to claimants.
Instead, it describes protocols for OWCP obtaining, copying, and returning evidence from other
administrative agencies. This argument is therefore of little relevance to the claim, and does not
comprise a basis for reviewing its merits.12
Counsel also asserted that, under Chapter 2.402(4) of the procedure manual, OWCP
violated its procedures by failing to investigate why the coworker of appellant repudiated and
withdrew his witness statement. OWCP found this contention without merit as it overlooked the
coworker’s clear, detailed October 20, 2013 statement explaining precisely why he withdrew his
initial witness statement. The Board concurs that counsel’s argument in this regard was
irrelevant to the claim as it was not based on an accurate reading of the evidence.
A claimant may be entitled to a merit review by submitting new and relevant evidence or
argument. Appellant did not do so in this case. Therefore, pursuant to 20 C.F.R. § 10.608,
OWCP properly denied merit review.
On appeal, counsel asserts that OWCP’s denial of merit review despite the submission of
new, relevant evidence and argument violates appellant’s due process rights. As stated above,
OWCP properly denied a review of the merits of the claim as the evidence and arguments
submitted in support of counsel’s request were irrelevant or immaterial to the claim.
Counsel’s appellate argument also contends that OWCP is barred from relying on the
security video under the Federal (FECA) Procedure Manual at Chapter 2.400(3)(a) and (b) as it
did not provide a copy to appellant prior to denying the claim on July 10, 2013 and
11

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

12

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

7

January 16, 2014. Counsel acknowledges, however, that he did not request a copy of the video
until January 15, 2015. The Board notes that a still photograph of the most relevant moment in
the security video was included in the case record as of May 13, 2013. Appellant was thus aware
of the existence of the video, and of the type of information it contained, well before OWCP
denied the claim. Yet, no request was made for a copy of the video until January 15, 2015.
Also, appellant and counsel had ample access to the critical photograph from the video, and thus
the opportunity to examine and respond to it. This is in comport with the Board’s holding in
Frederick Nightengale,13 finding that a claimant should be apprised of the conflicts and
inconsistencies in the evidence, and of the general adverse nature of the evidence developed, in
order that he or she might know the nature of the issues to be met and have an opportunity to
present such rebuttal or explanation as was available.
Counsel also argues that OWCP should have accepted appellant’s account of events as
controlling. Alternatively, he asserts that it is immaterial whether her foot hit the stanchion pole,
and that OWCP adopted an adversarial posture by relying on the security video showing that her
foot did not hit the stanchion. Counsel also contends that OWCP should have investigated the
circumstances under which the coworker repudiated and withdrew his witness statement. The
Board notes that these arguments pertain to the merits of the claim, which are not before the
Board on the present appeal. Therefore, the Board will not address these contentions.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for review of the merits
of her claim pursuant to 5 U.S.C. § 8128(a).

13

6 ECAB 268 (1953).

8

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 18, 2015 is affirmed.
Issued: August 5, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Little Rock, AR, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
James W. Stanley, Jr., Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1182
Issued: November 3, 2008

Case Submitted on the Record

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

JURISDICTION
On March 28, 2007 appellant filed a timely appeal from the September 25, 2006 and
March 14, 2007 nonmerit decisions of the Office of Workers’ Compensation Programs, which
denied her requests for reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to review those denials. The Board has no jurisdiction to review the Office’s
September 1, 2004 merit decision denying her March 25, 2003 claim for compensation, as she
filed her appeal to the Board more than one year after the date of that decision.
ISSUE
The issue is whether the Office properly denied appellant’s July 12, 2005 and October 26,
2006 requests for reconsideration.
FACTUAL HISTORY
On March 25, 2003 appellant, then a 52-year-old clerk, filed an occupational disease
claim alleging that harassment by her supervisor and marketing manager caused her stress. On

June 12, 2003 the Office denied her claim on the grounds that she failed to establish a
compensable factor of employment:
“The evidence of file indicates that you were dissatisfied with your relocation,
you supervisor’s management style, and you filed a grievance because your
supervisor changed your sick leave to leave without pay. Your relocation
indicates a desire to work in a particular environment. Your dislike of your
management style indicated that your emotional reaction is self-generated and is
not compensable. You did not provide any evidence to support that agency abuse
as a result of the grievance you filed.”
The Office again reviewed the merits of appellant’s case on October 28, 2003,
January 23 and September 1, 2004. With each merit review, it denied modification of its prior
decision. In its September 1, 2004 merit decision, the Office found that appellant failed to
substantiate her allegations. It added: “Although the August 2, 2004 medical report does discuss
your condition and offers an opinion with regard to some relationship to your employment, until
such time as you have established a compensable factor of employment the Office is not required
to review or develop the medical evidence of record.” In the appeal rights attached to the
September 1, 2004 decision, the Office notified appellant that she had one-calendar year from the
date of the decision to request reconsideration.
Appellant requested reconsideration on July 12, 2005. She submitted nothing to support
this request. Over a year later, the Office received emergency room records from March 2006.
In a decision dated September 25, 2006, it denied appellant’s request for reconsideration on the
grounds that her request neither raised substantive legal questions nor included new and relevant
evidence.
On October 26, 2006 appellant, through her attorney, argued that she had submitted new
and material proof and she requested a reconsideration decision on the medical evidence she
previously filed. She submitted a November 2, 2004 medical report and an October 18, 2005
chart note. Appellant repeated her request on November 7, 2005 and again on January 10, 2007.
In a decision dated March 14, 2007, the Office denied appellant’s request for
reconsideration on the same grounds, that her request neither raised substantive legal questions
nor included new and relevant evidence. Appellant, through her attorney, now appeals the
Office’s March 14, 2007 decision.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides that the Office may review an
award for or against compensation upon application by an employee (or his or her representative)
who receives an adverse decision. The employee shall exercise this right through a request to the
district office. The request, along with the supporting statements and evidence, is called the

2

“application for reconsideration.”1 An application for reconsideration must be sent within one
year of the date of the Office decision for which review is sought.2
An employee (or representative) seeking reconsideration should send the application for
reconsideration to the address as instructed by the Office in the final decision. The application
for reconsideration, including all supporting documents, must be in writing and must set forth
arguments and contain evidence that either: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by the Office; or (3) constitutes relevant and pertinent new evidence not previously
considered by the Office.3
A timely request for reconsideration may be granted if the Office determines that the
employee has presented evidence or argument that meets at least one of these standards. If
reconsideration is granted, the case is reopened and the case is reviewed on its merits. Where the
request is timely but fails to meet at least one of these standards, the Office will deny the
application for reconsideration without reopening the case for a review on the merits.4
The Office will consider an untimely application for reconsideration only if the
application demonstrates clear evidence of error on the part of the Office in its most recent merit
decision. The application must establish, on its face, that such decision was erroneous.5
ANALYSIS
The most recent decision on the merits of appellant’s March 25, 2003 claim for
compensation is the Office’s September 1, 2004 decision denying benefits. Appellant had one
year, or until September 1, 2005, to request reconsideration of that decision. Her July 12, 2005
request was therefore timely, but she submitted nothing to support her request. Appellant made
no substantive legal argument, she submitted no evidence whatsoever. On its face, then, her
request was insufficient to warrant a reopening of her case for further adjudication on the merits.
The Office did receive some medical documents a year later, but medical evidence is not relevant
to the denial of appellant’s claim. As the Office explained in its September 1, 2004 decision,
there was no need to review the medical evidence on causal relationship because appellant had
not yet met her burden of establishing as a factual matter that her claim fell within the scope of
workers’ compensation. Because her July 12, 2005 request for reconsideration does not meet at
least one of the three standards for obtaining a merit review of her case, the Board will affirm the
Office’s September 25, 2006 decision denying that request.

1

20 C.F.R. § 10.605 (1999).

2

Id. at § 10.607(a).

3

Id. at § 10.606.

4

Id. at § 10.608.

5

Id. at § 10.607.

3

As the Board noted earlier, appellant had until September 1, 2005 to request
reconsideration of the Office’s September 1, 2004 decision denying her claim for compensation.
Her October 26, 2006 request for reconsideration missed this deadline by more than a year. The
proper standard of review, therefore, is whether this untimely request shows clear evidence of
error in the Office’s September 1, 2004 decision, or in other words, whether the untimely request
shows on its face that the September 1, 2004 decision was erroneous.
The Office correctly found that appellant’s request neither raised substantive legal
questions nor included new and relevant evidence. Because medical evidence was not an issue
in the Office’s September 1, 2004 merit decision, her October 26, 2006 request for
reconsideration does not show clear evidence of error. Neither the November 2, 2004 medical
report nor the October 18, 2005 chart note nor any of the evidence appearing in the record since
the Office’s September 1, 2004 denial of compensation shows that the denial was unwarranted.
Because appellant’s October 26, 2006 request for reconsideration does not meet the standard for
obtaining a merit review of her case, the Board will affirm the Office’s March 14, 2007 decision
denying that request.
CONCLUSION
The Board finds that the Office properly denied appellant’s July 12, 2005 and
October 26, 2006 requests for reconsideration. These requests did not meet the standards for
obtaining a merit review of her case.

4

ORDER
IT IS HEREBY ORDERED THAT the March 14, 2007 and September 25, 2006
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: November 3, 2008
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

5