United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bronx, NY, Employer
__________________________________________

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

Docket No. 19-1657
Issued: July 20, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 5, 2019 appellant filed a timely appeal from a January 24, 2019 merit decision of
the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish an emotional
condition causally related to an accepted December 5, 2018 employment incident.

1
The Board notes that following the January 24, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 7, 2018 appellant, then a 47-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on December 5, 2018 he experienced “mental trauma” as a result
of a dog bite that occurred when he was delivering a package while in the performance of duty.
He stopped work on December 5, 2018 and returned to full-time regular duty on January 19, 2019.
In a statement dated December 5, 2018, appellant indicated that on December 5, 2018
between 6:30 p.m. and 6:45 p.m., he was delivering a package to a residence, and since it was dark
outside and there was no bell on the front gate, he yelled “mailman” to get the resident’s attention.
As the resident approached, he opened the gate to hand her the package when a dog ran out from
the front door and jumped up on him, and then grabbed him on both pants legs and in his midsection. Appellant explained that he attempted to defend himself and it took a while before he
finally was able to get away and leave the premises. He then called his supervisor to report the
incident. Appellant indicated that he was in shock and terrified.
A hospital intake form dated December 5, 2018 noted that appellant was bitten on the leg
by a dog. It indicated that he had obtained medical treatment.
An emergency room summary indicated that appellant had been seen by Dr. Margaret
Zielinski, Board-certified in emergency medicine, on December 5, 2018. It included a discharge
diagnosis of animal bite. In a work excuse note of the same date, Dr. Zielinski indicated that
appellant should not work or perform physical activity through December 6, 2018, but could return
to full physical activity on December 7, 2018.
On December 6, 2018 Moonju Bae, a nurse practitioner, excused appellant from work for
the period from December 6, 2018 to January 18, 2019 due to his injury. She noted that it appeared
that he had experienced trauma after an attack by a dog while at work. Ms. Bae indicated that
appellant would follow-up with psychiatry for his symptoms.
Eli Leiter, Ph.D., a clinical psychologist, noted on December 12, 2018, that appellant’s
absence was physician-advised due to illness or injury. He indicated that appellant had an
appointment on December 19, 2018 and would continue to be seen until further notice.
In a development letter dated December 19, 2018, OWCP informed appellant of the
evidence needed to support his claim. It described the type of evidence needed, which should
include a medical explanation regarding the cause of his emotional condition. OWCP also
provided a questionnaire for his completion and afforded him 30 days to submit the requested
information.
OWCP subsequently received December 5, 2018 emergency room triage records in which
Dina Glori, a registered nurse, assessed appellant. Ms. Glori reported a history that appellant was
attacked by a dog while delivering mail and sought emergency medical treatment. She advised
that there were no visible bite marks because he was wearing multiple layers of clothing. Appellant
denied pain or discomfort.
In a December 6, 2018 report, Dr. Zielinski noted a history that, while delivering mail,
appellant was attacked by a dog which tried to bite him multiple times, but since he was wearing
2

two pairs of pants the dog’s teeth did not puncture his clothing. She noted examination findings
of warm and dry skin, no cyanosis, no foreign bodies detected, no distal neurovascular deficit, no
evidence of infection, and no lacerations or bite marks on the skin, with tenderness of the left thigh
without puncture wound. Dr. Zielinski advised that appellant was shaken up from the event, but
otherwise sustained no trauma, bite wound, or injury. She diagnosed animal bite without serious
injury and noted that appellant was discharged in stable condition and instructed to follow-up with
his primary care physician.
By decision dated January 24, 2019, OWCP accepted that the December 5, 2018
employment incident occurred as alleged. However, it denied appellant’s claim finding that the
medical evidence submitted was insufficient to establish a medical diagnosis in connection with
the December 5, 2018 employment incident. OWCP concluded, therefore, that the requirements
had not been met to establish an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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 filed within the applicable time
limitation of FECA, that an injury was sustained in the performance of duty as alleged, and that
any disability or specific condition for which compensation is claimed is causally related to the
employment injury. 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.4
To establish a claim for an emotional condition in the performance of duty, an employee
must submit: (1) factual evidence identifying employment factors or incidents alleged to have
caused or contributed to his or her condition; (2) medical evidence establishing that he or she has
an emotional or psychiatric disorder; and (3) rationalized medical opinion evidence establishing
that the identified compensable employment factors are causally related to his or her emotional
condition.5
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,6 the Board explained
that there are distinctions as to the type of employment situations giving rise to a compensable
emotional condition arising under FECA. There are situations where an injury or illness has some
connection with the employment, but nevertheless does not come within coverage under FECA.7

3

Id.

4

M.H., Docket No. 19-0930 (issued June 17, 2020); Gary J. Watling, 52 ECAB 357 (2001).

5

R.B., Docket No. 19-0343 (issued February 14, 2020).

6

28 ECAB 125 (1976).

7

M.A., Docket No. 19-1017 (issued December 4, 2019); Robert W. Johns, 51 ECAB 137 (1999).

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When disability results from an emotional reaction to regular or specially assigned work duties or
a requirement imposed by the employment, the disability is deemed compensable.8
A claimant has the burden of proof to establish by the weight of the reliable, probative, and
substantial evidence that the condition for which he or she claims compensation was caused or
adversely affected by employment factors.9 This burden includes the submission of a detailed
description of the employment factors or conditions which he or she believes caused or adversely
affected a condition for which compensation is claimed, and a rationalized medical opinion
relating the claimed condition to compensable employment factors.10
Rationalized medical opinion evidence is generally required to establish causal
relationship. 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 identified by the claimant.11
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish an emotional
condition causally related to the accepted December 5, 2018 employment incident.
OWCP accepted that on December 5, 2018 appellant sustained a dog bite while in the
performance of duty. Appellant claimed that he sustained mental trauma due to this condition.
Based on Dr. Zielinski’s opinion, a diagnosed condition of animal bite without serious injury was
caused by this incident. The record, however, does not include a medical diagnosis of an emotional
condition in connection with the accepted employment incident.
In her December 5, 2018 emergency room report, Dr. Zielinski diagnosed animal bite
without serious injury. Although she indicated that appellant appeared shaken up by the incident,
she did not otherwise comment on his psychological condition and did not provide a diagnosis of
any type of stress-related condition. Dr. Zielinski’s opinion is therefore insufficient to satisfy
appellant’s burden of proof with respect to satisfying the medical component of his emotional
condition claim.12
Appellant also submitted emergency room triage notes dated December 5 and 6, 2018
signed solely by Ms. Bae, a nurse practitioner, and Ms. Glori, a registered nurse, respectively.

8

R.B., supra note 5; Pamela D. Casey, 57 ECAB 160 (2005); Lillian Cutler, supra note 6.

9

B.S., Docket No. 19-0378 (issued July 10, 2019); Pamela R. Rice, 38 ECAB 838 (1987).

10

P.B., Docket No. 17-1912 (issued December 28, 2018); Effie O. Morris, 44 ECAB 470 (1993).

11

D.M., Docket No. 20-0314 (issued June 30, 2020); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB
345 (1989).
12

See J.B., Docket No. 19-1767 (issued March 18, 2020).

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Nurse practitioners and registered nurses are not considered physicians as defined under FECA
and accordingly their reports do not constitute medical evidence.13
On December 12, 2018 Dr. Leiter merely noted appellant’s absence was physician-advised
due to illness or injury. He did not, however, characterize the injury in any way, provide a
diagnosis in connection with an incident, or address causal relationship. Dr. Leiter’s report is,
therefore, of no probative value and insufficient to meet appellant’s burden of proof.14
As appellant has not set forth a medical diagnosis relating to an emotional condition the
Board therefore finds that appellant has failed to establish the medical component of this emotional
condition claim.
On appeal appellant asserts that his claim should have been accepted because he was very
traumatized by the dog attack. However, as noted, there is no evidence of record that establishes
a diagnosis of an emotional condition in connection with the accepted employment incident.
Consequently, appellant has failed to meet 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 failed to meet his burden of proof to establish that he
sustained an emotional condition causally related to the accepted December 5, 2018 employment
incident.

Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals
such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under
FECA); J.D., Docket No. 16-1752 (issued March 1, 2017) (a nurse practitioner is not considered a physician under
FECA).
13

14

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

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ORDER
IT IS HEREBY ORDERED THAT the January 24, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 20, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Mesa, AZ, Employer
__________________________________________

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

Docket No. 07-2112
Issued: January 23, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 14, 2007 appellant filed a timely appeal of the July 12, 2007 merit decision of
the Office of Workers’ Compensation Programs which found that he received an overpayment of
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over
the merits of the claim.
ISSUES
The issues are: (1) whether appellant received an overpayment in the amount of
$61,528.74; and (2) whether he was at fault in accepting the overpayment and, therefore, not
entitled to a waiver of recovery.
FACTUAL HISTORY
Appellant, a 51-year-old mail carrier, has an accepted occupational disease claim for
thoracic strain and aggravation of cervical radiculopathy at C5-6 and C6-7.1 On August 28, 2002
1

Appellant’s injury occurred on or about March 13, 2000.
April 25, 2001.

He underwent a cervical discectomy on

appellant received a schedule award for 20 percent impairment of each upper extremity. The
award totaled 124.8 weeks compensation covering the period May 2, 2002 through
September 21, 2004.
By letter dated September 7, 2002, appellant requested that the Office disburse the
balance of his schedule award in a lump-sum payment.2 The Office responded on September 26,
2002 advising him that the lump-sum payment would be $58,652.39, based on a commutation
date of November 3, 2002.
On October 8, 2002 appellant signed a formal agreement accepting a lump-sum payment
of $58,652.39, for the remaining schedule award period of November 3, 2002 to
September 21, 2004. In paragraph two of the agreement, he acknowledged that the lump-sum
payment represented full and final settlement of the schedule award for the above-designated
period and that “no further monetary compensation benefits [would] be extended … for the
duration of the schedule award.” A check in the amount of $58,652.39 was disbursed on
November 15, 1992.
Appellant wrote the Office on June 24, 2003 advising that he was currently receiving
additional monthly benefits of $2,500.00 under case number 13-1212733. He also noted that he
had written the Office in January and May 2003 regarding the payments but not did receive an
answer. Appellant wanted to know how long he would continue to receive the additional
benefits.
On August 30, 2005 the Office advised appellant of its preliminary determination that he
received an overpayment of benefits in the amount of $61,528.74. The Office explained that
appellant received a lump-sum payment on his August 28, 2002 schedule award as well as
regular monthly payments for the same schedule award. The Office also informed appellant that
he was considered to be at fault in accepting the overpayment.
On September 20, 2005 appellant responded to the Office’s preliminary finding. He did
not question the amount of the overpayment, but took issue with the Office’s finding of fault.
Appellant indicated that he had waited several months before cashing the checks. In the interim,
he explained that he had written the Office on three occasions in 2003 regarding the additional
payments, but the Office did not respond. Absent an explanation, appellant assumed the Office
had previously erred in calculating the percentage of his permanent impairment and the checks
he received represented additional compensation owed. He submitted an overpayment recovery
questionnaire, various financial records and copies of several benefit statements regarding the
schedule award payments he received.
Appellant also submitted a copy of a May 23, 2003 letter to the Office inquiring about the
monthly payments of $2,500.00. He explained that he had received a lump-sum payment in
November 2002 and since then he had also been receiving monthly payments. Appellant
indicated that he had not received any correspondence from the Office explaining the payments,
and he wanted to know how much longer he would continue to receive the additional payments.
2

The Office disbursed payments on August 23 and September 7, 2002, totaling $11,249.35, for the period May 2
to September 7, 2002.

2

On July 12, 2007 the Office issued a final decision finding that appellant was overpaid
$61,528.74 and was at fault in accepting this overpayment.
LEGAL PRECEDENT -- ISSUE 1
A schedule award recipient may request that the Office disburse his award in a single,
lump-sum payment in lieu of regular, recurring payments every 28 days.3 It is, therefore,
axiomatic that once an employee elects and receives a lump-sum payment on his schedule award,
the employee is no longer entitled to receive regular, recurring payments for the same schedule
award period.
ANALYSIS -- ISSUE 1
Appellant does not challenge the fact of the overpayment or the amount. In his May and
June 2003 letters to the Office, appellant acknowledged that he continued to receive monthly
payments of approximately $2,500.00, after the Office’s November 2002 lump-sum payment of
$58,652.39. Appellant also submitted copies of benefit statements he received with the
erroneous schedule award payments, beginning with a November 30, 2002 payment of
$2,441.72. This payment covered the period November 3 to 30, 2002, but just two weeks earlier
the Office had paid appellant $58,652.39, for the period beginning November 3, 2002 and
extending through September 21, 2004. The latest benefit statement appellant provided was for a
schedule award payment dated September 24, 2004. Thus, his own records substantiate the
Office’s finding that he received erroneous schedule award payments for approximately two
years after accepting a lump-sum payment in full settlement of his August 28, 2002 schedule
award. Accordingly, the Board affirms the Office’s finding that appellant received an
overpayment of benefits in the amount of $61,528.74.
LEGAL PRECEDENT -- ISSUE 2
An overpayment must be recovered unless “incorrect payment has been made to an
individual who is without fault and when adjustment or recovery would defeat the purpose of the
[Federal Employees’ Compensation] Act or would be against equity and good conscience.”4 An
individual who is found at fault in either accepting or creating an overpayment is not eligible for
a waiver of recovery of overpayment.5 Benefits recipient will be found at fault if the individual
accepted a payment which he knew or should have known to be incorrect.6 Each recipient is
responsible for taking all reasonable measures to ensure that payments he receives from the
Office are proper.7

3

20 C.F.R. § 10.422(b) (2007).

4

5 U.S.C. § 8129(b) (2000).

5

20 C.F.R. § 10.433(a).

6

20 C.F.R. § 10.433(a)(3).

7

20 C.F.R. § 10.433(a).

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ANALYSIS -- ISSUE 2
Appellant is at fault with respect to the $61,528.74 overpayment because he accepted
payments which he knew or should have known to be incorrect. The agreement he signed on
October 8, 2002 clearly indicated that the lump-sum payment of $58,652.39 for the period
November 3, 2002 to September 21, 2004 represented “full and final settlement” of the
August 28, 2002 schedule award. The agreement also stated that “no further monetary
compensation benefits [would] be extended … for the duration of the schedule award.” Despite
the unambiguous language of the settlement agreement, appellant accepted additional schedule
award payments for almost two years after receiving a lump-sum payment for the same schedule
award.
The May and June 2003 letters appellant sent to the Office lend further support to the
Office’s finding that he accepted payments which he knew or should have known to be incorrect.
He suspected something was amiss when he continued to receive schedule award payments
every four weeks beginning November 30, 2002. Appellant wrote the Office on at least two
occasions regarding the questionable payments. Had the Office timely responded, the issue
likely could have been resolved before the amount of the overpayment swelled to in excess of
$60,000.00. The fact that the Office did not immediately respond to appellant’s inquiries does
not make the additional schedule award payments he received any less suspect.
While the Office may be in large part responsible for creating the overpayment, this does
not excuse appellant from accepting payments he knew or should have known to be incorrect.8
The record establishes that appellant accepted schedule award payments he knew or should have
known to be incorrect.9 Therefore, the Board finds that he was at fault with respect to the
$61,528.74 overpayment. Because appellant is at fault, he is not entitled to a waiver of recovery
of the overpayment.
CONCLUSION
Appellant received an overpayment in the amount of $61,528.74 and was at fault in
accepting the overpayment.

8

William McCarty, 54 ECAB 525 (2003).

9

20 C.F.R. § 10.433(a)(3).

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ORDER
IT IS HEREBY ORDERED THAT the July 12, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 23, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


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

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

Docket No. 15-187
Issued: March 9, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 31, 2014 appellant filed a timely appeal from an October 6, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish a right inguinal hernia
in the performance of duty causally related to factors of his federal employment.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the October 6, 2014 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

On appeal, appellant contends that he filed a Form CA-2 claim for an occupational
disease and OWCP erroneously denied his claim as a traumatic injury. He further contends that
the medical evidence he submitted was sufficient to establish causal relationship.
FACTUAL HISTORY
On July 30, 2014 appellant, then a 56-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that he sustained an inguinal hernia in his right lower abdomen due
to factors of his federal employment, including walking a route while carrying up to 35 pounds
in all types of weather, up and down stairs, and on all types of terrain. In a supporting narrative
statement, he alleged that the amount of mail he had to carry had increased over time and
reported that he “did have hernia surgery (on [his] left side) which was covered by workers’
compensation over 20 years ago” and had surgery again on the same left side in 2011.
In a July 25, 2014 report, Dr. Armen Arslanian, a Board-certified internist, diagnosed
right inguinal hernia and indicated that this diagnosis was confirmed by appellant’s surgeon. He
opined that appellant’s condition was “likely related to carrying mailbags at work.”
On July 28, 2014 Dr. Darius Ameri, a Board-certified general surgeon, indicated that
appellant was scheduled for major abdominal surgery on August 14, 2014.
In an August 29, 2014 letter, OWCP notified appellant of the deficiencies of his claim
and afforded him 30 days to submit additional evidence and respond to its inquiries.
Appellant submitted a September 23, 2014 statement reiterating that he sustained a left
hernia covered by workers’ compensation in 1989, another left hernia in 2011, and a right hernia
in 2014. He further indicated that he was 57 years old, worked 6 days per week, and the most
physical activity he had time for was mowing his lawn. Appellant also submitted a leave
analysis indicating the amount of overtime hours he worked for the period February 23, 2013
through August 22, 2014.
In a report dated September 16, 2014, Dr. Arslanian indicated that he had diagnosed a
new right inguinal hernia for the first time with pain and swelling on June 5, 2014. He stated
that appellant’s work schedule in 2013 consisted of an average of 64 hours per week and walking
with a mailbag weighing an average of 30 to 35 pounds. Dr. Arslanian stated that he could not
“say 100 percent what has caused [appellant’s] medical condition, but it seems clear that a job
with repetitive lifting (30-pound bag) could cause this and has the potential to aggravate the
problem.” He further indicated that he “cannot be absolutely sure that [appellant’s] job has
caused this medical condition but would say that his occupation as a letter carrier is related to the
developing of a recurrent hernia.”
On September 23, 2014 Dr. Ameri indicated that appellant was seen in the office on
July 1, 2014 with a right inguinal hernia. He stated that appellant was a letter carrier performing
daily strenuous work at the employing establishment and had a history of two recurrent left
inguinal hernias in the past. Dr. Ameri opined that appellant’s hernia repairs were related to his
work strenuous activities and his previous operations as well as his continuation of his current
lifting at work “could be the cause for his right inguinal hernia.”

2

By decision dated October 6, 2014, OWCP found that appellant had established that he
was a federal civilian employee who filed a timely claim, that the incident did occur, but denied
his claim on the basis that the medical evidence failed to establish a causal relationship between
his work activities as a letter carrier and his right inguinal hernia condition.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, and that an injury4 was sustained in the performance of duty. These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in a claim for an
occupational disease claim, an employee must submit the following: (1) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; (2) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical evidence. Rationalized medical opinion
evidence is medical evidence which includes a physician’s rationalized opinion on whether there
is a causal relationship between the employee’s diagnosed condition and the implicated
employment factors.7 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.8
ANALYSIS
The Board finds that appellant did not meet his burden of proof to establish a claim that
federal employment factors caused or aggravated his right inguinal hernia condition. On appeal,
appellant contends that he filed a Form CA-2 for an occupational disease and OWCP erroneously
3

5 U.S.C. § 8101 et seq.

4

OWCP regulations define an occupational disease or illness as a condition produced by the work environment
over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).
5

See J.C., Docket No. 09-1630 (issued April 14, 2010). See also Ellen L. Noble, 55 ECAB 530 (2004).

6

Id. See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

7

See D.N., Docket No. 10-1762 (issued May 10, 2011).

8

See D.E., Docket No. 07-27 (issued April 6, 2007). See also Victor J. Woodhams, 41 ECAB 345 (1989).

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denied his claim for a traumatic injury. In its October 6, 2014 decision, OWCP denied
appellant’s claim on the basis that the medical evidence failed to establish a causal relationship
between his work activities as a letter carrier and his right inguinal hernia condition. While it
incorrectly stated that appellant filed a traumatic injury claim, this was harmless error as it
properly adjudicated his case as an occupational disease claim based on factors of his federal
employment. Appellant had filed an occupational disease claim (Form CA-2) and had submitted
a statement in which he identified the factors of employment that he believed caused the
conditions, including walking a route carrying up to 35 pounds in all types of weather, up and
down stairs, and on all types of terrain. The implicated factors occurred over more than one
workday or shift.9 The evidence of record indicates that appellant engages in repetitive carrying
and walking activities due to his federal employment duties. The occupational nature of his
claim is not disputed. On appeal appellant’s concern appeared to be with the fact that OWCP
referenced his injury as traumatic in denying his claim. However, this appears to be harmless
error. Regardless of the type of claim filed, once an incident or work factors are established, the
issue becomes medical in nature, whether the claimed condition was caused or aggravated by the
implicated federal employment activities. The claimant has the burden of establishing by the
weight of reliable, probative and substantial evidence that the condition for which compensation
is sought is causally related to a specific employment incident or to specific conditions of
employment.10 An award of compensation may not be based on appellant’s belief of causal
relationship.11 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.12 OWCP properly
treated the claim as an occupational disease claim, as filed.
However, in order to establish a claim that he sustained an employment-related injury, he
must also submit rationalized medical evidence which explains how his medical condition was
caused or aggravated by the implicated employment factors.13
In his reports, Dr. Arslanian diagnosed right inguinal hernia and opined that appellant’s
condition was “likely related to carrying mailbags at work.” He stated that appellant’s work
schedule in 2013 consisted of an average of 64 hours per week and walking with a mailbag
weighing an average of 30 to 35 pounds. Dr. Arslanian stated that he could not “say 100 percent
what has caused [appellant’s] medical condition, but it seems clear that a job with repetitive
lifting (30-pound bag) could cause this and has the potential to aggravate the problem.” He
further indicated that he “cannot be absolutely sure that [appellant’s] job has caused this medical
condition but would say that his occupation as a letter carrier is related to the developing of a
recurrent hernia.” Dr. Arslanian failed to directly address the issue of causal relationship as he
9

See supra note 4.

10

Katherine J. Friday, 47 ECAB 591, 594 (1996).

11

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

12

Florencio D. Flores, Docket No. 04-942 (issued July 12, 2004)

13

See A.C., Docket No. 08-1453 (issued November 18, 2008); Donald W. Wenzel, 56 ECAB 390 (2005);
Leslie C. Moore, 52 ECAB 132 (2000).

4

did not provide a rationalized medical opinion explaining how factors of appellant’s federal
employment, such as walking a route carrying up to 35 pounds in all types of weather, up and
down stairs, and on all types of terrain, caused or aggravated his condition. The Board has held
that the mere fact that appellant’s symptoms arise during a period of employment or produce
symptoms revelatory of an underlying condition does not establish a causal relationship between
his condition and his employment factors.14 Although Dr. Arslanian noted that appellant’s
condition occurred while he was at work and stated that “his occupation as a letter carrier is
related to the developing of a recurrent hernia,” such generalized statements do not establish
causal relationship because they are unsupported by adequate medical rationale explaining how
his physical activity at work actually caused or aggravated the diagnosed condition.15
In his reports, Dr. Ameri indicated that appellant was seen in the office on July 1, 2014
with a right inguinal hernia. He stated that appellant was a letter carrier performing daily
strenuous work at the employing establishment and had a history of two recurrent left inguinal
hernias in the past. Dr. Ameri opined that appellant’s hernia repairs were related to his work
strenuous activities and his previous operations as well as his continuation of his current lifting at
work “could be the cause for his right inguinal hernia.” The Board finds that Dr. Ameri’s
opinion is speculative and equivocal in nature as he concluded that work factors “could be” the
cause of the hernia.16 Moreover, Dr. Ameri failed to provide a rationalized opinion explaining
how factors of appellant’s federal employment, such as walking a route carrying up to 35 pounds
in all types of weather, up and down stairs, and on all types of terrain, caused or aggravated his
right inguinal hernia condition.17
In support of his claim, appellant submitted a leave analysis indicating the amount of
overtime hours he worked for the period February 23, 2013 through August 22, 2014. This
document does not constitute competent medical evidence as it does not contain rationale by a
physician relating appellant’s disability to his employment.
As appellant has not submitted any rationalized medical evidence to support his
allegation that he sustained an injury causally related to the indicated employment factors, he
failed to meet his burden of proof to establish a claim.
On appeal, appellant contends that the medical evidence he submitted was sufficient to
establish causal relationship. For the reasons stated above, the Board finds appellant’s
arguments are not substantiated.

14

See supra note 12; Richard B. Cissel, 32 ECAB 1910, 1917 (1981); William Nimitz, Jr., 30 ECAB 567,
570 (1979).
15

See K.W., Docket No. 10-98 (issued September 10, 2010).

16

Medical opinions that are speculative or equivocal in character are of little probative value. See Kathy A.
Kelley, 55 ECAB 206 (2004).
17

See also R.C., Docket No. 14-1964 (issued January 22, 2015).

5

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 he
sustained a right inguinal hernia in the performance of duty causally related to factors of his
federal employment.
ORDER
IT IS HEREBY ORDERED THAT the October 6, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 9, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.C., Appellant
and
DEPARTMENT OF THE NAVY, MARE
ISLAND NAVAL SHIPYARD, Vallejo, CA,
Employer
__________________________________________
Appearances:
Robert E. Bergman, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 12-1931
Issued: August 12, 2013

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On September 19, 2012 appellant filed an appeal of an August 8, 2012 merit decision of
the Office of Workers’ Compensation Programs (OWCP). The appeal was docketed as No. 121931.
The Board has reviewed the record and finds that the August 8, 2012 hearing
representative decision does not make adequate findings on the issue presented. Appellant filed
a claim for a pulmonary condition based on asbestos exposure from 1987 to 1991. A June 1,
2004 OWCP decision found that he had not established the factual or medical elements of the
claim.1
The August 8, 2012 decision makes a brief finding that appellant “entered the
employment at issue with an abnormal chest x-ray” and “no physician had addressed” this issue.
The history provided in the decision does not discuss specific medical reports other than an
April 24, 2003 note from Dr. David Kocherla and a computerized tomography scan dated
August 21, 2002.
1

Appellant requested a hearing on June 26, 2004. The notice of hearing was returned to OWCP and appellant
submitted an affidavit that he had never received the notice. A hearing was held on July 2, 2012.

The claim in this case was based on asbestos exposure. There were no factual findings
made as to the allegation. It is not clear whether OWCP has accepted asbestos exposure, and if
so, the nature and extent of such exposure. Appellant made allegations regarding exposure, but
there is no indication that OWCP sought specific information from the employing establishment
as to the exposure.2 Once the factual findings are properly established, the medical evidence of
record may appropriately be reviewed. The hearing representative did not provide factual
findings or a complete review of the medical evidence.
It is well established that a claimant is entitled to a decision with adequate findings of fact
and a statement of reasons.3 The Board finds the August 8, 2012 decision did not make
sufficient findings on the factual and medical evidence, and the case will be remanded to OWCP
for a proper decision with adequate findings on the issues presented. After such further
development as OWCP deems necessary, it should issue an appropriate decision.
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 8, 2012 is set aside and the case remanded for further
action consistent with this order of the Board.
Issued: August 12, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

2

Cf., M.S., Docket No. 11-263 (issued September 14, 2011) (OWCP requested evidence from the employing
establishment as to asbestos exposure).
3

5 U.S.C. § 8124 states that OWCP shall determine and make a finding of facts with respect to an award for or
against payment of compensation. 20 C.F.R. § 10.126 states that an OWCP decision shall contains findings of fact
and a statement of reasons. See also Avalon C. Bailey, 56 ECAB 223 (2004).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.W., Appellant
and
DEPARTMENT OF THE ARMY, ANNISTON
ARMY DEPOT, Anniston, AL, Employer
__________________________________________

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

Docket No. 07-837
Issued: July 11, 2007

Case Submitted on the Record

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

JURISDICTION
On February 5, 2007 appellant filed a timely appeal of a January 19, 2007 merit decision
of the Office of Workers’ Compensation Programs, denying waiver of the recovery of an
overpayment in the amount of $4,190.35 and directing recovery of the overpayment in the
amount of $100.00 per month. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office abused its discretion in denying waiver of the
recovery of an overpayment in the amount of $4,190.35; and (2) whether the Board has
jurisdiction over the rate of recovery.
FACTUAL HISTORY
This case has previously been before the Board. In a July 27, 2006 decision, the Board
found that the Office properly rescinded payment of compensation for the period May 1 to
June 26, 2002 on the grounds that appellant was not disabled from employment during this

period due to his March 7, 2002 employment injury.1 The Board further found that appellant
received an overpayment in the amount of $4,190.35 due to the Office’s error in issuing
compensation from May 1 to June 26, 2002 due to his accepted employment-related injury. The
Board, however, found that the Office improperly determined that appellant was at fault in the
creation of the overpayment and that he was therefore, ineligible for waiver. It found that there
was no evidence of record establishing that, at the time appellant received payment for
compensation during the stated period, he knew or should have known that the Office made an
error in accepting his claim. The Board remanded the case to the Office to determine whether
appellant was entitled to waiver of the $4,190.35 overpayment. The facts and the circumstances
of the case as set forth in the Board’s prior decision are incorporated herein by reference.2 The
facts and the history relevant to the present issue are hereafter set forth.
By letter dated August 25, 2006, the Office requested that appellant complete an
accompanying overpayment recovery questionnaire (Form OWCP-20) and submit financial
documents within 30 days. Appellant submitted an OWCP-20 form dated November 20, 2006
which provided his monthly income and expenses and his assets. He had $3,863.60 in income
and $765.00 in social security benefits, totaling $4,628.60. Appellant’s expenses included
$800.00 for rent or mortgage, $800.00 for food, $175.00 for clothing, $400.00 for utilities and
$1,274.68 for miscellaneous expenses, totaling $3,449.00. His additional expenses included
$40.00 for a Thrift Savings Plan (TSP) loan, $429.00 for a car note, $250.00 for a truck note,
$340.00 for his wife’s medical treatment, $200.00 for vehicle fuel, $209.00 for a home
improvement loan and an unspecified amount for local, state and federal taxes, totaling
$1,653.00. Appellant’s monthly expenses totaled $5,102.00. He reported $100.00 cash on hand,
$90.00 in his checking account and $235.00 in his savings account, totaling $425.00.
By decision dated January 19, 2007, the Office denied waiver of recovery of the
$4,190.35 overpayment. It found that appellant had monthly income of $4,601.60 and expenses
of $3,728.00 which established that his monthly income exceeded his monthly expenses by
$873.60. The Office directed appellant to repay the overpayment in the amount of $100.00 per
month.
LEGAL PRECEDENT -- ISSUE 1
The waiver or refusal to waive an overpayment of compensation by the Office is a matter
that rests within the Office’s discretion pursuant to statutory guidelines.3 As noted, the statutory
guidelines are found in section 8129(b) of the Federal Employees’ Compensation Act which
states: “Adjustment recovery [of an overpayment] by the United States may not be made when
[an] incorrect payment has been made to an individual who is without fault and when adjustment

1

Docket No. 05-184 (issued July 27, 2006).

2

On March 7, 2002 appellant, then a 41-year-old heavy mobile equipment repairer, filed a traumatic injury claim.
On that date he hurt his lower back while moving parts around in a basket. When appellant pulled a basket, his
lower back started burning and tightened up on him. By letter dated May 8, 2002, the Office accepted his claim for
a broad-based central disc herniation at L4.
3

See Robert Atchison, 41 ECAB 83, 87 (1989).

2

or recovery would defeat the purpose of [the Act] or would be against equity and good
conscience.”4
Section 10.436 of the implementing regulation5 provides that recovery of an overpayment
would defeat the purpose of the Act if such recovery would cause hardship in a currently or
formerly entitled beneficiary because: the beneficiary from whom the Office seeks recovery
needs substantially all of his or her current income (including compensation benefits) to meet
current or ordinary and necessary living expenses; and (b) the beneficiary’s assets do not exceed
a specified amount as determined by the Office from data furnished by the Bureau of Labor
Statistics.6 An individual is deemed to need substantially all of his or her income to meet current
ordinary and necessary living expenses if monthly income does not exceed monthly expenses by
more than $50.00.7
Section 10.437 provides that recovery of an overpayment is considered against equity and
good conscience when an individual who received an overpayment would experience severe
financial hardship attempting to repay the debt; and when an individual, in reliance on such
payments or on notice that such payments would be made, gives up a valuable right or changes
his or her position for the worse.8
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for determination on the issue regarding
wavier of recovery of the overpayment. On appeal appellant contends that the Office failed to
add his monthly expenses of $1,274.68 and $3,159.58, totaling $4,434.26. He further contends
that the remainder of his monthly income after deductions and expenses is $194.34 and not
$873.60 as found by the Office.9 Appellant contends that, after repaying the overpayment in the
amount of $100.00 per month as directed by the Office, he would only have $94.34 a month to
support his family.
The Office, in its January 19, 2007 decision, denied waiver of recovery of the
overpayment because it would not defeat the purposes of the Act. It found that appellant’s
monthly income of $4,601.60 exceeded his monthly expenses of $3,728.00 by $873.60. The
Office, however, provided no explanation in its decision as to how his monthly income and
4

See 5 U.S.C. § 8129(b); Carroll R. Davis, 46 ECAB 361, 363 (1994).

5

20 C.F.R. § 10.436.

6

An individual’s assets must exceed a resource based on $4,800.00 for an individual or $8,000.00 for an
individual with a spouse or one dependent plus $960.00 for each additional dependent. This includes all of the
individual’s assets not exempt from recoupment. See Federal (FECA) Procedure Manual, Part 6 -- Debt
Management, Initial Overpayment Actions, Chapter 6.6(a)(1)(b) (December 23, 2004).
7

See Sherry A. Hunt, 49 ECAB 467, 473 (1998).

8

20 C.F.R. § 10.437.

9

The Board notes that appellant’s monthly income of $4,601.60 as found by the Office exceeded his monthly
expenses of $4,434.26 by $166.34 and not $194.34 as alleged by appellant.

3

expenses were determined. It is an elementary principle of workers’ compensation law, which
the Board has often reiterated, that the Office is required to make findings of fact and a statement
of reasons regarding the material facts of the case.10 Appellant’s overpayment recovery
questionnaire indicates that he has monthly income of $4,628.60 which includes $3,863.60 in
income and $765.00 in social security benefits while the Office found that his income is
$4,601.00. His monthly expenses include $800.00 for rent or mortgage, $800.00 for food,
$175.00 for clothing, $400.00 for utilities, $1,274.68 for miscellaneous expenses, totaling
$3,449.68. Appellant’s additional monthly expenses include $40.00 for a TSP loan, $429.00 for
a car note, $250.00 for a truck note, $185.00 for his wife’s medication, $340.00 for his wife’s
psychiatric treatment, $200.00 for vehicle fuel, $209.00 for a home improvement loan and an
unspecified amount for local, sate and federal taxes, totaling $1,653.00. His reported monthly
expenses, excluding the unspecified loan, totals $5,102.00.11 The Office did not explain which
expenses it did not accept in determining his total monthly expenses. It is necessary to remand
the case for the Office to make appropriate findings on the issue, to be followed by an
appropriate decision.
CONCLUSION
The Board finds that the Office erred in finding that appellant was not entitled to waiver
of recovery of the overpayment as it did not provide adequate findings for reducing any of
appellant’s claimed expenses. On remand the Office should identify appellant’s monthly income
and expenses, determine whether he submitted adequate documentation to support his monthly
income and expenses.12

10

Robert L. Johnson, 51 ECAB 480, 481 (2000); Beverly Dukes, 46 ECAB 1014, 1017 (1995); Lynette Marie
Torres, 44 ECAB 968, 971-72 (1993); see 20 C.F.R. § 10.126.
11

The Board notes that it is unclear as to how appellant determined his monthly expenses of $1,247.68 and
$3,159.58 in light of the expenses he reported on his overpayment questionnaire.
12

In light of the Board’s disposition of the first issue on appeal, the second issue regarding the rate of recovery of
the overpayment is moot.

4

ORDER
IT IS HEREBY ORDERED THAT the January 19, 2007 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further action consistent with
this decision.
Issued: July 11, 2007
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
U.S. POSTAL SERVICE, LAKEVIEW
STATION, Chicago, IL, Employer
__________________________________________

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

Docket No. 18-0533
Issued: August 27, 2018

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 January 18, 2018 appellant filed a timely appeal from a September 25, 2017 merit
decision and a January 2, 2018 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP).1 Pursuant to the Federal Employees’ Compensation Act2 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish a recurrence
of disability beginning June 14, 2017 causally related to her August 6, 2013 employment injury;

1
Appellant timely requested oral argument before the Board pursuant to 20 C.F.R. § 501.5(b). In an order dated
July 9, 2018, the Board, after exercising its discretion, denied the request as her arguments on appeal could be
adequately addressed in a decision based on a review of the case as submitted on the record. Order Denying Request
for Oral Argument, Docket No. 18-0533 (issued July 9, 2018).
2

5 U.S.C. § 8101 et seq.

and (2) whether OWCP properly determined that she abandoned her request for an oral hearing
before an OWCP hearing representative.
FACTUAL HISTORY
On August 22, 2013 appellant, then a 47-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on August 6, 2013, while at work, she injured her left knee when she
fell on a step. She did not stop work. OWCP accepted the claim for a left knee contusion.3
X-rays of the left knee obtained on August 13, 2013 revealed severe degenerative arthritis
and a small synovial suprapatellar calcification. Appellant received periodic treatment for her left
knee from 2013 to 2016.
In a report dated May 24, 2017, Dr. Ankur M. Chhadia, a Board-certified orthopedic
surgeon, noted that appellant had experienced left knee pain for 10 years. He obtained a history
of her working 28 years as a letter carrier, described her work duties, and noted that her left knee
pain increased “with time and work.” Dr. Chhadia noted that appellant related that she was injured
at work in 1999 and had surgery in 2000, but her left knee failed to fully recover. He diagnosed
osteoarthritis of the left knee post meniscectomy and recommended physical therapy. Dr. Chhadia
advised that she could perform her usual work duties. In a May 24, 2017 work duty status form,
he confirmed that appellant could return to work without restrictions. However, Dr. Chhadia
submitted a work duty status form dated June 14, 2017 in which he noted that she was medically
unable to work and should return in four weeks.
Appellant, on August 1, 2017, filed a notice of recurrence (Form CA-2a) on June 14, 2017
claiming disability causally related to her August 6, 2013 employment injury. She asserted that
she had experienced continued pain since August 2013. Appellant related that after returning to
work it was “difficult to walk with the continued work requirement and long hours on [the] feet
and joints without cartilage pain and rubbing of [the] joints….”
OWCP, in an August 15, 2017 development letter, informed appellant of the definition of
a recurrence of disability and requested that she submit additional factual information, including a
description of the circumstances surrounding the alleged recurrence of disability and why she
attributed her disability to her prior injury. It further requested that she submit medical evidence
showing that she sustained increased disability due to her accepted employment injury. OWCP
noted that, following her injury, appellant resumed her usual employment on August 9, 2013.
In a response to OWCP’s request for additional information regarding his recommendation
for physical therapy, on August 16, 2017 Dr. Chhadia related that appellant required the therapy
for left knee osteoarthritis after a meniscectomy. In response to OWCP’s request that he list
additional diagnoses that should be added to the claim, he indicated that the diagnosed condition
was left knee osteoarthritis.

3

In a decision dated February 18, 2015, OWCP denied appellant’s claim for a schedule award as she had not
submitted an impairment evaluation demonstrating that she sustained a permanent impairment due to her accepted
work injury.

2

By decision dated September 25, 2017, OWCP found that appellant had not established a
recurrence of disability causally related to her accepted employment injury. It noted that she had
not provided additional factual information as requested on August 15, 2017 or submitted medical
evidence supporting that she sustained an increase in disability due to her August 6, 2013
employment injury.
Appellant, in a form postmarked October 2, 2017, requested an oral hearing before an
OWCP hearing representative. On November 16, 2017 OWCP advised her that it had scheduled
a telephone hearing for December 20, 2017 at 2:30 p.m. Eastern Time (ET). It mailed the notice
to appellant’s address of record and provided her with a toll free number to call, as well as the
appropriate passcode. Appellant did not, however, telephone for the hearing at the appointed time,
or contact OWCP within 10 days thereafter.
By decision dated January 2, 2018, an OWCP hearing representative determined that
appellant had abandoned her request for a telephone hearing. He found that she had received
written notice of the telephone hearing 30 days before the scheduled hearing, but that she had
failed to attend the hearing or contact OWCP either before or after the scheduled hearing to explain
her absence.
On appeal appellant contends that she did not receive notification of the hearing scheduled
for December 20, 2017. She also argues that she requires additional medical treatment for her
condition.
LEGAL PRECEDENT -- ISSUE 1
OWCP’s implementing regulations define a recurrence of disability as “an inability to work
after an employee has returned to work caused by a spontaneous change in a medical condition,
which resulted from a previous injury or illness without an intervening injury or new exposure to
the work environment that caused the illness.”4
OWCP procedures provide that a recurrence of disability includes a work stoppage caused
by a spontaneous material change in the medical condition demonstrated by objective findings.
That change must result from a previous injury or occupational illness rather than an intervening
injury or new exposure to factors causing the original illness. It does not include a condition that
results from a new injury, even if it involves the same part of the body previously injured.5
OWCP’s procedures provide that, when a claimant has returned to full duty for more than
90 days after an injury, he or she must submit factual evidence describing the changes in his or her
condition and any change in work duties, and a description of any intervening injuries and
subsequent medical treatment.6

4

20 C.F.R. § 10.5(x).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2(c)(5) (June 2013); see also
G.B., Docket No. 15-1319 (issued December 8, 2015).
6

Id. at Chapter 2.1500.6(b)(2) (June 2013).

3

Appellant has the burden of establishing by the weight of the substantial, reliable, and
probative evidence a causal relationship between his or her recurrence of disability and his
employment injury.7 This burden includes the necessity of furnishing medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes that
the disabling condition is causally related to employment factors and supports that conclusion with
sound medical reasoning.8
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a left knee contusion on August 6, 2013.
Appellant resumed her usual work duties effective August 9, 2013. She stopped work on June 14,
2017 and, on August 1, 2017, filed a notice of recurrence of disability.
The Board finds that appellant did not submit sufficient evidence to establish a recurrence
of disability on or after June 1, 2017 due to her accepted August 6, 2013 employment injury.
Appellant did not, as requested by OWCP, submit a detailed statement describing the alleged
recurrence of disability and why she attributed her current condition to her accepted employment
injury.9 Additionally, she failed to provide reasoned medical evidence establishing that the
claimed recurrence of disability beginning June 14, 2017 was causally related to the accepted
employment injury.10
In reports dated May 24 and June 14, 2017, Dr. Chhadia described appellant’s work history
and her complaints of left knee pain for the past 10 years that increased over time and with the
performance of her employment. He noted that she had a history of a left knee injury in 1999 and
surgery in 2000 without a complete resolution of symptoms. Dr. Chhadia diagnosed osteoarthritis
of the left knee postmeniscectomy. He advised that she could perform her usual work duties.
However, in May 24 and June 14, 2017 work duty status forms, Dr. Chhadia opined that appellant
was disabled from work. He did not, however, reference the August 6, 2013 employment injury,
attribute any increased disability to that injury, or otherwise address causal relationship. Medical
evidence that does not offer an opinion regarding the cause of an employee’s condition or disability
is of no probative value on the issue of causal relationship.11
Dr. Chhadia, on August 16, 2017, diagnosed left knee osteoarthritis after a meniscectomy
and recommended continued physical therapy. He did not address disability, and thus his opinion

7

Carmen Gould, 50 ECAB 504 (1999).

8

See A.W., Docket No. 17-0638 (issued August 29, 2017); Mary A. Ceglia, 55 ECAB 626 (2004).

9

See supra note 6. The Board notes that, if new work factors or exposure are alleged, this would constitute a new
injury even if it involves the same part of the body previously injured. See N.W., Docket No. 17-1415 (issued
November 7, 2017).
10

See D.L., Docket No. 13-1653 (issued November 22, 2013).

11

See D.K., Docket No. 17-1549 (issued July 6, 2018).

4

is of diminished probative value.12 Further, OWCP accepted only a left knee contusion as causally
related to the August 6, 2013 employment injury. Appellant has the burden of proof to establish
that the left knee osteoarthritis is causally related to the employment injury through the submission
of rationalized medical evidence.13 Dr. Chhadia provided that left knee osteoarthritis was an
additional diagnosis that should be added to the claim, but did not provide any rationale for his
opinion. Medical conclusions unsupported by rationale are of diminished probative value
regarding causal relationship.14
On appeal appellant asserts that she requires continued medical treatment for her condition.
She has not submitted sufficient medical evidence, however, to establish that she has continued
disability or the need for medical treatment as a result of her accepted left knee contusion, and thus
has not met her burden of proof.15
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 and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Under FECA and its implementing regulations, a claimant who has received a final adverse
decision from OWCP may obtain a hearing by writing the address specified in the decision within
30 days of the date of the decision for which a hearing is sought.16 Unless otherwise directed, in
writing by the claimant, OWCP’s hearing representative will mail a notice of the time and place
of the hearing to the claimant and any representative at least 30 days before the scheduled date.17
OWCP has the burden of proving that it mailed to appellant and his representative a notice of a
scheduled hearing.18
A hearing before the Branch of Hearings and Review can be considered abandoned only
under very limited circumstances.19 With respect to abandonment of hearing requests, Chapter
12
See C.H., Docket No. 17-1239 (issued November 20, 2017) (the Board will not require OWCP to pay
compensation for disability in the absence of any medical evidence directly addressing the specific date of disability
for which compensation is claimed).
13

JaJa K. Asaramo, 55 ECAB 200, 204 (2004).

14

See Jacquelyn L. Oliver, 48 ECAB 232 (1996).

15

See L.R., Docket No. 16-0520 (issued June 13, 2016).

16

5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.616(a).

17

Id. at § 10.617(b). OWCP procedure also provides that notice of a hearing should be mailed to the claimant and
the claimant s authorized representative at least 30 days prior to the scheduled hearing. Federal (FECA) Procedure
Manual, supra note 5 at Chapter 2.1601.6(b) (October 2011).
18

See Michelle R. Littlejohn, 42 ECAB 463, 465 (1991); see also K.D., Docket No. 11-0077 (issued
August 18, 2011).
19

Claudia J. Whitten, 52 ECAB 483 (2001).

5

2.1601(g) of OWCP’s procedures20 and section 10.622(f) of its regulations21 provide in relevant
part that failure of the claimant to appear at the scheduled hearing, failure to request a
postponement, and failure to request in writing within 10 days after the date set for the hearing that
another hearing be scheduled shall constitute abandonment of the request for a hearing. Under
these circumstances, the Branch of Hearings and Review will issue a formal decision finding that
the claimant has abandoned his or her request for a hearing and return the case to the district
office.22
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly determined that appellant abandoned her request for
a telephone hearing before an OWCP hearing representative.
OWCP, by decision dated September 25, 2017, found that appellant had not established an
employment-related recurrence of disability. Appellant requested an oral hearing in a letter
postmarked October 2, 2017. By letter dated November 16, 2017, OWCP’s Branch of Hearings
and Review informed appellant that it had scheduled a telephone hearing for December 20, 2017
at 2:30 p.m. ET.
Appellant did not appear by telephone for the December 20, 2017 scheduled hearing, and
there is no indication that she requested postponement of the hearing.23 Moreover, she did not
submit a written request within the 10-day period following the scheduled hearing explaining her
absence and requesting that another hearing be scheduled.24 The regulations provide that where
good cause for failure to appear is shown, another hearing will be scheduled and conducted by
teleconference.25
On appeal appellant asserts that she did not receive notice of the scheduled telephone
hearing. The record, however, supports that OWCP’s November 16, 2017 letter scheduling the
telephone hearing was sent to her at her address of record and there is no indication that it was
returned as undeliverable. Under the mailbox rule, it is presumed, absent evidence to the contrary,
that a notice mailed to an individual in the ordinary course of business was received by that
individual.26 The current record is devoid of evidence to rebut the presumption that appellant
received the November 16, 2017 notice of hearing.27
20

Federal (FECA) Procedure Manual, supra note 5 at Chapter 2.1601.6(g) (October 2011).

21

20 C.F.R. § 10.622(f).

22

See supra note 20.

23

See 20 C.F.R. § 10.622(c).

24

Id. at § 10.622(f).

25

Id.; see also C.M., Docket No. 16-0412 (issued September 25, 2017).

26

See A.C. Clyburn, 47 ECAB 153 (1995).

27

See C.M., supra note 25.

6

Appellant failed to request a postponement of the scheduled hearing, did not appear at the
scheduled hearing, and did not provide any written explanation for her absence within the 10-day
period following the scheduled hearing. OWCP, therefore, properly found that she abandoned her
request for an oral hearing.28
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a recurrence of
disability beginning June 14, 2017 causally related to her August 6, 2013 employment injury. The
Board further finds that OWCP properly determined that she abandoned her request for a telephone
hearing before an OWCP hearing representative.
ORDER
IT IS HEREBY ORDERED THAT the January 2, 2018 and September 25, 2017
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: August 27, 2018
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

28

See P.M., Docket No. 17-1958 (issued May 17, 2018).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.A., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTICS AGENCY, Fort Belvoir, VA,
Employer
__________________________________________

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

Docket No. 11-1845
Issued: March 14, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 9, 2011 appellant, through his attorney, filed a timely appeal from the
April 28, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying his claim for an October 15, 2007 injury. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
injury in performance of duty on October 15, 2007.

1

20 C.F.R. § 8101 et seq.

FACTUAL HISTORY
On August 26, 2010 appellant then a 42-year-old supervisory police officer, filed a
traumatic injury claim alleging that on October 15, 2007 while running in order to train for the
300-meter dash, he heard a pop in his left knee and experienced pain. He indicated that the
injury occurred at 5:45 p.m. at his duty station in Tracy, CA. Regarding the nature of the injury,
appellant indicated that he sustained a tear of the posterior horn of the left meniscus and a stress
fracture of the left medial femoral condyle and tibial plateau. On the same form, his supervisor
stated that appellant’s regular work schedule was Tuesday through Saturday, 3:00 p.m. to 11:00
p.m., and that he was on his regular day off work at the time of the claimed injury.2
In support of the claim, OWCP received statements from appellant and the agency, along
with a master time history and work status request. Appellant also submitted medical records
from Dr. Rahul L. Patel, an attending Board-certified internist.
In an August 23, 2010 letter, appellant indicated that he had received a letter regarding a
proposal to remove him from federal service.3 He argued that the agency failed to accommodate
his physical condition which included a work-related left knee injury. Appellant asserted that he
injured his left knee on October 15, 2007 while practicing the 300-meter dash on the work
premises. He indicated that he had been instructed by Chief Walter Murken to work out during
the three hours of gym time granted by the agency by going to the gym or working out anywhere
on the work premises. Appellant claimed that he reported his October 15, 2007 injury to Chris
Thornton, who in turn reported it to Mr. Murken, but that the agency did not file the proper
forms.4 He indicated that he had initially been informed that the mandatory agility test for his
work included a 300-meter dash, but asserted that he was not informed in a timely manner when
the 300-meter dash was dropped from the test.
In a statement dated September 3, 2010, Marlene Davis, an injury compensation program
administrator, indicated that the agency was challenging appellant’s claim because he failed to
file a timely claim and did not establish that he was in the performance of duty when the alleged
injury occurred. She stated that on October 15, 2007 appellant was on his regular day off.
Appellant may have been on the agency premises that day to practice running, but he was not
directed to do so and he was not in overtime work status. Ms. Davis noted that police officers
were allowed to work out on the premises for three hours a week on duty time so that they did
not have to use their days off for this activity. Prior to August 26, 2010, no written record of the
claimed injury had been produced by appellant, his supervisor or a safety department official.
Ms. Davis indicated that appellant received a letter of proposed removal on August 10, 2010 and
then filed his claim for an alleged October 15, 2007 injury on August 26, 2010. She stated that it
was the position of the agency that appellant’s claim should be denied in its entirety.
2

It should be noted that October 15, 2007 was a Monday.

3

The record contains an August 10, 2010 notice of proposed termination.

4

In an undated statement, Mr. Thornton indicated that appellant informed him, on a date he could not recall, that
he had injured his left knee while practicing for the police physical fitness test. He stated that he did not file a report
on the matter because appellant advised him that the injury occurred on his regular day off work.

2

In a September 15, 2010 statement, Mr. Murken stated that he did not direct appellant to
work out for three hours per week. He noted, “The policy then, as it is now, is if shift staffing
permits, officers are allowed three hours per week of work time to use the fitness center to
exercise. No one is mandated to do this and it [i]s strictly voluntary. No one was mandated to
come in on their days off to use the gym or otherwise exercise.”
In a statement dated September 15, 2010, Ms. Davis stated that the agency had a written
policy that allowed security force officers time up to three hours per week to initiate and
maintain a personal exercise, health and wellness program. She indicated that the policy
guidelines made clear that, although the agency provided assistance in terms of time, facilities
and resources as best as possible, initiation and maintenance of a personal exercise program was
an individual responsibility and the individual determined what type of exercise he or she
performed in order to prepare for the required physical fitness test.5
By decision dated October 8, 2010, OWCP denied the claim for the reason that the
evidence of record failed to demonstrate that appellant sustained an injury on October 15, 2007
in the performance of duty as alleged. It indicated that the claimed injury occurred on
appellant’s day off work and that he was not required by the agency to exercise in a structured
program.
Appellant disagreed with the decision and requested an oral hearing before an OWCP
hearing representative.
At the hearing held on February 7, 2011, appellant indicated that he has been employed
with the employing establishment for eight years. He discussed his employment history and the
duties of a supervisory police officer. Appellant described the October 15, 2007 incident and the
injuries he sustained as a result of that incident. He asserted that he was engaged in an athletic
endeavor because the agency decided to introduce a physical fitness program in order for all
police officers to maintain their position. Appellant stated that before the agency instituted this
program in 2007 he did not work out on a regular basis, but he then realized that he needed to get
in better shape. He indicated that he never received a letter from the agency saying that the 300meter dash had been eliminated from the physical test. Appellant confirmed that the October 15,
2007 incident happened on his day off, but noted that because he is a supervisor he did not have
time during work hours to work out.
Subsequent to the hearing, OWCP received a letter from counsel dated February 11,
2011, along with a copy of the physical fitness standards and testing requirements, copies of
leave and earning statements and a November 1, 2010 statement from Lydia Jimenez, a
coworker, indicating that she observed appellant at the worksite on October 15, 2007 with a bag
of ice strapped to his knee. Additional medical records and treatment notes from Doctors
Hospital and Dr. Patel, dated between October 15 and 29, 2010, were also received. A copy of
5

The record contains a copy of the agency’s physical fitness standards and testing requirements. The document
was issued on July 16, 2007 and updated on April 9, 2010. It noted that, depending on staffing needs, security
officers might be excused for up to three hours per week to engage in fitness activities at the worksite or installation
fitness facilities where they were working. Fees or expenses for membership or use of fitness facilities were the
responsibility of the employee.

3

the hearing transcript was forwarded to the agency which responded on February 28, 2011
indicating its belief that OWCP’s October 8, 2010 decision should be upheld.
In an April 28, 2011 decision, OWCP’s hearing representative affirmed OWCP’s
October 8, 2010 decision.
LEGAL PRECEDENT
FECA provides for payment of compensation for disability or death of an employee
resulting from personal injury sustained while in the performance of duty.6 The phrase
“sustained while in the performance of duty” is regarded as the equivalent of the coverage
formula commonly found in workers’ compensation laws, namely, “arising out of and in the
course of employment.”7 “Arising out of the employment” tests the causal connection between
the employment and the injury; “arising in the course of employment” relates to the time, place
and work activity involved.8 For the purposes of determining entitlement to compensation under
FECA, “arising in the course of employment,” i.e., performance of duty, must be established
before “arising out of the employment,” i.e., causal relation, can be addressed.9
With regard to recreational or social activities, the Board has held that such activities
arise in the course of employment when: (1) they occur on the premises during a lunch or
recreational period as a regular incident of the employment; or (2) the employer, by expressly or
impliedly requiring participation, or by making the activity part of the service of the employee,
brings the activity within the orbit of employment; or (3) the employer derives substantial direct
benefit from the activity beyond the intangible value of improvement in employee health and
morale that is common to all kinds of recreation and social life.”10
ANALYSIS
Applying the above criteria to the facts in the present case, the Board finds no evidence to
establish that appellant was in the performance of duty on October 15, 2007. Appellant’s
claimed injury occurred on the premises of the employing establishment, but it did not occur
during his work hours as he was scheduled off work on October 15, 2007.11 Thus, an important
physical indicia of course-of-employment, time of the claimed injury, has not been met in this

6

Id. at § 8102(a).

7

See Bernard D. Blum, 1 ECAB 1 (1947).

8

See Eugene G. Chin, 39 ECAB 598, 601-02 (1988); Clayton Varner, 37 ECAB 248, 250 (1985).

9

Kenneth B. Wright, 44 ECAB 176, 181 (1992).

10

See Lawrence J. Kolodzi, 44 ECAB 818, 822 (1993); Kenneth B. Wright, supra note 9; see also A. Larson, The
Law of Workers’ Compensation § 22.00 (2012).
11

The evidence reveals that appellant was not on overtime work status on October 15, 2007, nor was he directed
to exercise on October 15, 2007 by any agency official.

4

case.12 With respect to an express or implied requirement to participate in the activity, the evidence
of record reveals that participation in the activity was purely voluntary on the part of appellant.
There is no evidence to show that participation in the activity was made part of the services of
appellant. When the degree of employer involvement descends from compulsion to mere
sponsorship or encouragement, the questions become closer and the tests include whether the
employer sponsored or financed the event and whether attendance was voluntary.13 Although the
employing establishment had some tangential involvement in appellant’s activities on October 15,
2007, evidenced by providing use of its premises, this level of involvement would not be sufficient
to bring the activity within the course of employment.14
No evidence in the record suggests that the activity was related in any notable way to the
employing establishment’s business. While security officers had physical requirements that had to
be met, the agency did not mandate any particular structured exercise regimen. The agency only
provided that, depending on staffing needs, security officers might be excused for up to three
hours per week to engage in fitness activities at the worksite or installation fitness facilities
where they were working. However, there was no requirement that employees exercise for any
particular amount per week, whether during work hours or while off work. There is no evidence
that the employing establishment derived substantial direct benefit from appellant’s activity beyond
that intangible value of improvement in employee health and morale that is common to all kinds of
recreational activity. For these reasons, appellant did not show that his claimed injury on
October 15, 2007 occurred in the performance of duty and OWCP properly denied his claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an injury in performance of duty on October 15, 2007.

12

The Board has recognized the “unusual potency” of time and place in identifying recreational activities that are in
the course of employment. See Archie L. Ransey, 40 ECAB 1251, 1257 (1989).
13

See Kenneth B. Wright, supra note 9.

14

The furnishing of financial support, athletic equipment, prizes and the like are relevant to the issue of employer
encouragement, but standing alone this evidence is ordinarily not enough to establish compensability. See
Donald C. Huebler, 28 ECAB 17 (1976) (where employer involvement such as printing of game results in the
employing establishment newspaper, display of trophies, photographing of players during work hours and printing
of admission tickets was insufficient to establish an activity in the performance of duty).

5

ORDER
IT IS HEREBY ORDERED THAT the April 28, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 14, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
U.S. POSTAL SERVICE, HAZLETON POST
OFFICE, Hazleton, PA, Employer
__________________________________________

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

Docket No. 19-0913
Issued: November 25, 2019

Case Submitted on the Record

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

JURISDICTION
On March 25, 2019 appellant, through counsel, filed a timely appeal from a March 1, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether appellant has met his burden of proof to establish a left middle finger
condition causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On June 19, 2018 appellant, then a 51-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that he developed arthritis in his left middle finger due to factors of
his federal employment. He indicated that he repetitively used his left hand to finger through
letters and flats since 1992. Appellant further indicated that he first became aware of his condition
and first realized it was caused or aggravated by his federal employment duties on May 21, 2018.
He did not stop working. OWCP assigned File No. xxxxxx071 to this claim, which is the subject
of the current appeal.
Appellant has three other claims relative to his left upper extremity. In 2013 he filed an
occupational disease claim that was accepted for left carpal tunnel syndrome under OWCP File
No. xxxxxx777. In 2015 appellant filed an occupational disease claim that was denied for a left
upper extremity condition under OWCP File No. xxxxxx856. In 2017 he filed an occupational
disease claim that was accepted for an exacerbation of left carpal tunnel syndrome, exacerbation
of left cubital tunnel syndrome, and arthritis of the left thumb carpal metacarpal (CMC) joint under
OWCP File No. xxxxxx847. On October 31, 2017 appellant underwent a left wrist trapeziectomy,
left thumb CMC joint arthroplasty with tendon transfer, left carpal tunnel release, and in situ left
ulnar nerve release at the elbow.
In two reports dated May 21 and June 18, 2018, Dr. Richard J. Tosti, a Board-certified
orthopedic hand surgeon, indicated that appellant was status post left CMC thumb arthroplasty,
carpal tunnel release, and cubital tunnel release surgeries, which he underwent on
October 31, 2017. He further indicated that appellant had been released to part-time, full-duty
work, but had been “struggling” at work with metacarpophalangeal (MP) joint range of motion
and soreness around the MP joint when sifting through letters. Dr. Tosti reviewed x-rays that
showed significant arthrosis and diagnosed MP joint arthrosis of the left middle finger. He opined
that appellant’s condition was related to his work as a mail carrier as well as the other forms of
arthritis around the wrist in his hand.
In a development letter dated July 9, 2018, OWCP advised appellant of the deficiencies of
his claim and advised him of the factual and medical evidence necessary to establish his claim. It
afforded him 30 days to submit additional evidence and respond to its inquiries.
On July 24, 2018 the employing establishment controverted appellant’s claim. It submitted
a position description and related that he cased mail into three pieces of equipment with four
shelves for approximately 1 hour and 15 minutes per day and once the mail was cased, he pulled
down the mail and placed it into containers, and then loaded all the mail, including parcels, into a
vehicle before delivering it to a total of 619 boxes. The employing establishment acknowledged
that casing mail would be considered repetitive in nature, but appellant was right-hand dominant
so it did not follow that his left middle finger condition would be causally related to his federal
employment.

2

In a narrative statement dated July 16, 2018, appellant indicated that he worked as a letter
carrier for the past 26 years and he used his left hand repetitively to finger through letters and
magazines and third bundles. He stated that the middle finger is the longest finger so that was the
first finger that he used to start fingering through letters, repetitively. Appellant indicated that he
had a previously accepted claim under OWCP File No. xxxxxx847 and requested that the
acceptance of the claim be expanded to include a left middle finger condition.
In an undated report, Dr. Tosti noted that appellant had been under his care for left upper
extremity pain and arthritis since January 2017. He opined that appellant’s conditions are causally
related to his work as a mailman as his left upper extremity was the one that he used solely to
manipulate the mail. In order to manipulate the mail, appellant had to have a firm pinch/grip
between the thumb and the forefinger as well as the rest of the fingers. Dr. Tosti related that
appellant had been suffering with left middle finger MP joint pain and stiffness that had been
progressing. He noted that radiographs confirmed significant arthrosis of his middle finger MP
joint. While appellant was continuing to improve from a postoperative standpoint with his left
thumb CMC joint, Dr. Tosti requested that the acceptance of appellant’s claim be expanded to
accommodate treatment for the left middle finger MP joint arthrosis because this was the dominant
hand/side that he used to disperse the mail and he believed this to be a contributing factor.
By decision dated August 22, 2018, OWCP found that the factual evidence was sufficient
to establish fact of injury, but the medical evidence of record failed to establish causal relationship
between the diagnosed left middle finger condition and the accepted factors of appellant’s federal
employment.
On August 28, 2018 appellant requested a hearing before a representative of OWCP’s
Branch of Hearings and Review.
A telephonic hearing was held before an OWCP hearing representative on
January 15, 2019. Appellant provided testimony and the hearing representative held the case
record open for 30 days for the submission of additional evidence.
In response, appellant submitted a statement indicating that his doctors had recommended
a joint replacement.
Appellant also submitted a report from Dr. Tosti dated January 8, 2018 indicating that
appellant’s main issue was stiffness in the MP joint of the middle finger that seemed to start
sometime after his October 31, 2017 wrist operation, but opined that he was not exactly sure why
it was suddenly stiff as he was not in that region of the left hand during the operation. Dr. Tosti
recommended strengthening and more aggressive stretching of the MP joint and possibly an intraarticular injection, if he was still very symptomatic.
In a response dated February 4, 2019, the employing establishment again contended that
appellant used an excessive amount of leave and worked an average of 16.92 hours per week in
the year prior, which was inconsistent with his allegation of performing constant repetitive motion
while in the performance of duty. Further, it asserted that, while working, appellant did not utilize
his left hand constantly and repetitively, as alleged, but rather in an intermittent nature.
By decision dated March 1, 2019, OWCP’s hearing representative affirmed the prior
decision finding the medical evidence of record insufficient to establish causal relationship.
3

LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence, including the fact that the individual is an employee of the United States within the
meaning of FECA, that the claim was timely filed within the applicable time limitation period of
FECA, that an injury was sustained in the performance of duty as alleged, and that any disability
or specific condition for which compensation is claimed is causally related to the employment
injury.5 These are the essential elements of every compensation claim regardless of whether the
claim is predicated on a traumatic injury or an occupational disease.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.7
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.8 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.9 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s).10
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.11

4

Supra note 2.

5

K.V., Docket No. 18-0947 (issued March 4, 2019); M.E., Docket No. 18-1135 (issued January 4, 2019); Kathryn
Haggerty, 45 ECAB 383, 388 (1994).
6

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

7

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

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

9

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

10

Id.; Victor J. Woodhams, supra note 7.

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013). See
R.D., Docket No. 18-1551 (issued March 1, 2019).

4

ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a left middle
finger condition causally related to the accepted factors of his federal employment.
In his May 21 and June 18, 2018 reports, as well as an undated report, Dr. Tosti noted that
appellant had been struggling at work with left upper extremity pain, particularly joint pain and
stiffness of the left middle finger, and that diagnostic testing confirmed significant arthrosis of the
MP joint of the left middle finger. He opined that appellant’s left middle finger condition was a
direct result of the accepted factors of his federal employment. While Dr. Tosti identified the
specific employment factors alleged by appellant, including using his left upper extremity
predominately to manipulate and deliver mail, he did not provide a pathophysiological explanation
as to how those activities either caused or contributed to appellant’s diagnosed condition.12
Furthermore, the Board has consistently held that medical rationale is particularly necessary when
there are preexisting conditions involving the same body part,13 and has required medical rationale
differentiating between the effects of the work-related injury and the preexisting condition in such
cases.14 As Dr. Tosti’s reports lack rationale, they are of limited probative value and therefore
insufficient to establish appellant’s claim.15
As appellant has not submitted rationalized medical evidence to support his claim that he
sustained a left middle finger condition causally related to the accepted employment factors, the
Board finds that 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 a left middle
finger condition causally related to the accepted factors of his federal employment.

12

Supra note 10.

13

E.g., K.R., Docket No. 18-1388 (issued January 9, 2019).

14

See, e.g., A.J., Docket No. 18-1116 (issued January 23, 2019); M.F., Docket No. 17-1973 (issued December 31,
2018); J.B., Docket No. 17-1870 (issued April 11, 2018); E.D., Docket No. 16-1854 (issued March 3, 2017); P.O.,
Docket No. 14-1675 (issued December 3, 2015).
15

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

5

ORDER
IT IS HEREBY ORDERED THAT the March 1, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: November 25, 2019
Washington, DC

Patricia H. Fitzgerald, Deputy 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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