United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.F., Appellant
and
DEPARTMENT OF THE INTERIOR,
COLORADO RIVER AGENCY, Parker, AZ,
Employer
__________________________________________

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Appearances:
Jason S. Lomax, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0825
Issued: February 17, 2022

Case Submitted on the Record

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

JURISDICTION
On February 19, 2021 appellant, through counsel, filed a timely appeal from an August 26,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a traumatic injury
in the performance of duty on November 30, 2017, as alleged.
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are set forth below.
On January 18, 2018 appellant, then a 44-year-old maintenance mechanic, filed a traumatic
injury claim (Form CA-1) alleging that on November 30, 2017 he was working around debris,
including boards with nails and screws, when he stepped on a nail while in the performance of
duty. He indicated that he had neuropathy in his feet and did not notice that the n ail had pierced
his left shoe and foot. Appellant noted that he started running a fever and believed that he had the
flu. He indicated that he woke up on December 6, 2017 with extreme pain in his left foot and
underwent emergency surgery. Appellant reported that, two of his toes were amputated, the skin
was removed off the top of his left foot, and half of the bottom of his left foot was stitched. On
the reverse side of the claim form appellant’s supervisor controverted appellant’s claim, asserting
that he was not informed of the incident until December 6, 2017 and that medical reports were not
submitted until January 5, 2018. Appellant stopped work on December 6, 2017.
In a hospital emergency room report dated December 6, 2017, Dr. Raymond B. Wallace,
an osteopath Board-certified in emergency medicine, noted that appellant was seen for a foot
infection, with onset of symptoms approximately one week prior. He noted that appellant was a
diabetic male with left 3 rd toe blackness, odor, swelling, and redness. Dr. Wallace diagnosed
gangrene of the left toe, left lower leg cellulitis, peripheral vascular disease, and diabetes mellitus.
In a December 15, 2017 note, Dr. Samar Kubba, an osteopath specializing in internal
medicine, indicated that appellant had left foot necrotizing fasciitis due to a puncture wound from
a nail. He noted that appellant had undergone amputation of the third and fourth toes of the left
foot.
In a January 25, 2018 attending physician’s report (Form CA-20), Dr. Glenn Silverstein, a
podiatrist, noted appellant’s history of injury as stepping on a nail on November 30, 2017. He
checked a box marked “Yes” in response to whether appellant’s condition was caused or
aggravated by the employment activity and noted that appellant had neuropathy , which limited
feeling in his foot.
In a February 2, 2018 development letter, OWCP informed appellant that the evidence of
record was insufficient to establish his claim. It advised him of the type of factual and medical
evidence needed and provided a questionnaire for his completion. OWCP afforded appellant 30
days to submit the necessary evidence.

3

Docket No. 19-1759 (issued April 3, 2020).

2

OWCP continued to receive medical evidence. In a December 6, 2017 report,
Dr. Silverstein noted that appellant developed an ulcer on the bottom of his left foot “probably a
couple of weeks ago and maybe even at work.” He indicated that appellant did not have much
feeling in his foot and was unsure if he stepped on something.
In a December 6, 2017 report, Dr. Patrick Shayegan, Board-certified internist, noted that
appellant “likely stepped on a large nail that went through [appellant’s] boot and through the
bottom of his foot.” He reported that appellant did not feel it at the time because he had neuropathy.
Dr. Shayegan noted that there was a plantar ulcer present on his foot. He diagnosed necrotizing
fasciitis and Type 2 diabetes.
In a February 14, 2018 statement, appellant responded to OWCP’s development
questionnaire. He stated that, while working on November 30, 2017, he received a call from his
wife who informed him that he needed to take his daughter to the emergency room. Appellant
noted that he hurriedly began cleaning up his work area and, while doing so, he lost his balance
and stepped on a wooden board embedded with 16D penny nails. He reported that he “did not feel
any pain, or any wetness on [his] left foot,” and that there were “no signs of blood or pain at the
time.” Appellant indicated that he only wore his steel-toe boots at work and that at the time of the
incident he assumed that he stepped on the nail, but it did not go through his boot. He added that
he “kicked the 2x4 [board] off an[d] away in front of me.” Appellant related that he worked on
December 4, 2017, but did not work the following day because he began experiencing nausea,
chills, and fever. He stated that he noticed discoloration and swelling in his toes and left foot on
December 6, 2017 and went to the emergency room. Appellant noted that he was diagnosed with
gangrene and reported that his mother notified his supervisor about the injury.
In an accompanying statement, appellant’s wife asserted that she received a telephone call
from appellant’s supervisor at 1:23 p.m. on December 6, 2017. She related that she had notified
the supervisor of appellant’s workers’ compensation claim due to stepping on a nail on
November 30, 2017.
In an undated statement, appellant’s mother indicated that she informed appellant’s
supervisor of his injury on December 6, 2017. She noted that appellant’s supervisor stated that he
would provide her with OWCP paperwork, but never did. Appellant’s mother attached telephone
records with her statement.
By decision dated March 9, 2018, OWCP denied appellant’s claim, finding that the factual
evidence of record was insufficient to establish that the employment incident occurred as alleged.
On March 8, 2019 appellant, through counsel, requested reconsideration.
In support of his request, appellant submitted a January 24, 2019 statement, wherein
appellant’s wife noted that she had observed him performing renovations at his work site on
November 29, 2017 at which time she observed him pulling things off the walls, repairing holes
in the wall, and prepping the premises to be painted. She indicated that there were boards with
nails, splintered wood, and other debris scattered around the floor. Appellant’s wife related that
on the morning of December 6, 2017 appellant woke her up complaining of severe foot pain. She
reported that she noticed he was sweating and seemed feverish. Appellant’s wife observed that

3

appellant had a perfectly round hole on the pad of his left foot that was producing a secretion. She
related that she knew he had diabetes, but was unaware that he had diabetic neuropathy until the
trip to the emergency room. Appellant’s wife noted that she checked appellant’s work boots and
observed a hole on the bottom of his left boot approximately where his wound was located on his
foot. She indicated that she put her hand in the boot and felt a bump and a hole where something
had pushed up through the sole of the boot.
In a January 29, 2019 statement, appellant’s mother provided additional information to
expand and clarify on her previous statement. She noted that on December 6, 2017 she met
appellant at the emergency room. Appellant’s mother stated that both the medical staff and
appellant had told her that he had stepped on a nail causing a puncture wound. She indicated that
she observed the puncture wound and noticed that it was dark and o ozing. Appellant’s mother
also reported that she went to appellant’s house a few weeks after he was hospitalized and asked
to look at his work boots. She stated that she found a hole toward the front, middle of the left boot
at what appeared to be the same location that he had suffered the puncture wound.
In a March 6, 2019 statement, appellant noted that he had been diagnosed with diabetes
and was aware of his diabetic condition prior to November 30, 2017. However, he indicated that
he was unaware of his diabetic neuropathy and loss of sensation in his feet until the events of
December 6, 2017. Appellant clarified that on November 30, 2017 he was in a rush to leave work
to take his daughter to the emergency room. He asserted that he stepped on a wooden board with
a penny nail in it and that he had to kick the board off and away from him to remove it from his
boot. Appellant related that he originally stated that he “assumed [he] stepped on it and it did not
go thru [his] boot.” He explained that the nail definitely punctured the sole of his boot as it was
stuck in such a way that he had to kick the board off of his boot. Appellant indicated that he
“assumed” that the nail did not puncture his foot because he did no t feel pain as a result of his
diabetic neuropathy. He alleged that, in his pained and medicated state, he had difficulty
understanding that diabetic neuropathy caused loss of sensation and that he could not feel the nail
puncture in his foot. Appellant reported that the location where he discovered the wound in his
foot was in the same place that the nail had punctured the sole of his boot on November 30, 2017.
In a March 8, 2019 narrative report, Dr. Roland Palmquist, a podiatrist, noted that he had
been treating appellant since April 18, 2018. He indicated that appellant presented to his clinic
with amputation of the third and fourth toes of the left foot after surgery on December 6, 2017.
Dr. Palmquist noted that appellant had stepped on a nail at work on November 30, 2017, but had
not realized that his foot had been punctured because he had diabetic neuropathy. He explained
that diabetic patients commonly injure themselves and are unaware of the injury until the infection
spreads far enough to reach unaffected nerves, often above the knee. Dr. Palmquist opined that
the nail puncture caused appellant’s bone infection in the third and fourth metatarsals, which
resulted in appellant’s amputation and skin graft.
By decision dated May 28, 2019, OWCP denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).
On August 19, 2019 appellant, through counsel, appealed the May 28, 2019 nonmerit
decision of OWCP to the Board. By decision dated April 3, 2020, the Board set aside the May 28,
2019 decision, finding that OWCP had improperly denied appellant’s request for reconsideration

4

of the merits of his claim pursuant to 5 U.S.C. § 8128(a).4 The Board found that appellant
submitted relevant and pertinent new evidence not previously considered by OWCP. The Board
remanded the case for merit review and further development of the evidence as deemed necessary,
to be followed by an appropriate merit decision.
On remand, OWCP requested that appellant’s supervisor provide a further comment
regarding appellant’s claim. No response was received.
By decision dated August 26, 2020, OWCP denied modification.
LEGAL PRECEDENT
An employee seeking benefits under FECA 5 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, 6 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury. 7 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.8
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether fact of injury has been established.9 Fact
of injury consists of two components that must be considered in conjunction with one another.
First, the employee must submit sufficient evidence to establish that he or she actually experienced
the employment incident at the time and place, and in the manner alleged.10 Second, the employee
must submit sufficient evidence to establish that the employment incid ent caused a personal
injury.11
An injury does not have to be confirmed by eyewitnesses in order to establish the fact that
an employee sustained an injury in the performance of duty, but the employee’s statements must
be consistent with the surrounding facts and circumstances and his or her subseq uent course of
4

Id.

5

5 U.S.C. § 8101 et seq.

6

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
7

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
8

R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
9

E.M., Docket No. 18-1599 (issued March 7, 2019); T.H., 59 ECAB 388, 393-94 (2008).

10

L.T., Docket No. 18-1603 (issued February 21, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

11

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

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action.12 The employee has not met his or her burden of proof to establish the occurrence of an
injury when there are inconsistencies in the evidence that cast serious doubt upon the validity of
the claim. Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury, and failure to obtain
medical treatment may, if otherwise unexplained, cast serious doubt on an employee ’s statements
in determining whether a prima facie case has been established. 13 An employee’s statements
alleging that an injury occurred at a given time and in a given manner is of great probative value
and will stand unless refuted by strong or persuasive evidence. 14
ANALYSIS
The Board finds that appellant has met his burden of proof to establish that a traumatic
incident occurred in the performance of duty on November 30, 2017, as alleged.
The record establishes that on November 30, 2017 appellant was performing duties of his
federal employment while working around debris including boards with nails and screws. At the
time, due to his diabetic neuropathy, appellant did not immediately realize that his boot and left
foot has been pierced by a nail. However, he later clarified and expanded upon his previous
statements. Appellant explained that while rushing to leave work to take his daughter to the
emergency room, he stepped on a wooden board with a penny nail in it and that he had to kick the
board off and away from him to remove it from his boot.
Appellant also provided a January 24, 2019 statement from his wife, corroborating that
appellant’s work entailed pulling things off the walls, filling holes, and painting. Appellant’s wife
observed him working around boards with nails, splintered wood, and other debris scattered around
the floor. She related that on the morning of December 6, 2017 appellant woke her up complaining
of severe foot pain. Appellant’s wife observed that appellant had a perfectly round hole on the
pad of his left foot that was producing a secretion; and that she checked appellant’s work boots,
observing a hole on the bottom of his left boot approximately where his wound was located on his
foot. She indicated that she put her hand in the boot and felt a bump and a hole where so mething
had pushed up through the sole of the boot. Appellant’s mother also reported in a statement dated
January 29, 2019 that she went to appellant’s house a few weeks after he was hospitalized and
asked to look at his work boots. She stated that she found a hole toward the front, middle of the
left boot at what appeared to be the same location that he had suffered the puncture wound.
The injuries appellant claimed are consistent with the facts and circumstances he set forth,
his course of action, and the medical evidence he submitted. He has explained any apparent
inconsistencies in his earlier statements reviewed by OWCP. Appellant has provided statements
from his family that help to explain why and how he came to realize that he had stepped on a nail
at work on November 30, 2017. He has also provided an explanation from Dr. Palmquist
explaining how it would be possible for appellant not to immediately notice the nail piercing his
12

M.F., Docket No. 18-1162 (issued April 9, 2019); Charles B. Ward, 38 ECAB 667, 67-71 (1987).

13

Betty J. Smith, 54 ECAB 174 (2002); L.D., Docket No. 16-0199 (issued March 8, 2016).

14

See M.C., Docket No. 18-1278 (issued March 7, 2019); D.B., 58 ECAB 464, 466-67 (2007).

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left foot at the time, as a result of his diagnosed diabetic neuropathy. As noted above, the injury
does not have to be confirmed by eyewitnesses in order to establish the fact that an employee
sustained an injury in the performance of duty, but the employee’s statements must be consistent
with the surrounding facts and circumstances and his or her subsequent course of action. 15 An
employee’s statements alleging that an injury occurred at a given time and in a given manner is of
great probative value and will stand unless refuted by strong or persuasive evidence. 16 The Board,
thus, finds that appellant has met his burden of proof to establish that the November 30, 2017
employment incident occurred in the performance of duty, as alleged.
As appellant has established that the November 30, 2017 employment incident occurred as
alleged, the question becomes whether the incident caused an injury. 17 As OWCP found that he
had not established fact of injury, it did not evaluate the medical evidence. The case must,
therefore, be remanded for consideration of the medical evidence of record. 18 After such further
development as deemed necessary, OWCP shall issue a de novo decision addressing whether
appellant has met his burden of proof to establish an injury causally related to the accepted
November 30, 2017 employment incident, and any attendant disability.
CONCLUSION
The Board finds that appellant has met his burden of proof to establish that a traumatic
incident occurred in the performance of duty on November 30, 2017, as alleged.

15

Supra note 12.

16

Supra note 14.

17

See M.A., Docket No. 19-0616 (issued April 10, 2020); C.M., Docket No. 19-0009 (issued May 24, 2019).

18

See supra note 13; S.M., Docket No. 16-0875 (issued December 12, 2017).

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ORDER
IT IS HEREBY ORDERED THAT the August 26, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: February 17, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.B., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Gaithersburg, MD,
Employer
__________________________________________

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

Docket No. 09-1858
Issued: April 16, 2010

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 July 13, 2009 appellant filed a timely appeal from a March 6, 2009 merit decision of
the Office of Workers’ Compensation Programs. The record also contains a June 11, 2009
decision denying further merit review. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has established a recurrence of disability
commencing March 19, 2008; and (2) whether the Office properly determined that appellant’s
application for reconsideration was insufficient to warrant review of the merits of the claim.
FACTUAL HISTORY
On May 24, 2000 appellant, then a 49-year-old distribution clerk, filed an occupational
disease or illness claim (Form CA-2) alleging that she sustained asthma as a result of dust and
poor ventilation in her work area. By letter dated March 15, 2002, the Office advised appellant

that the claim had been accepted for temporary aggravation of asthma, resolved.1 Appellant
returned to work and filed claims for intermittent dates of disability.
On July 15, 2008 appellant submitted claims for compensation (Form CA-7) for
March 19 to 21 and June 10 to 12, 2008. On August 18, 2008 she submitted a Form CA-7 for
July 16 to 18, 2008. In support of the claims, appellant submitted notes from a nurse. She also
submitted a Form CA-7 for the period June 27 to July 6, 2008. In a noted dated July 1, 2008,
Dr. Leszek Karowlec, an internist, stated that appellant had received treatment for exacerbation
of asthma and was unable to work from June 27 to July 5, 2008.
By decision dated September 3, 2008, the Office denied the claims for compensation. It
found the medical evidence was not sufficient to establish disability for the periods claimed.
On September 5, 2008 appellant submitted a recurrence of disability claim (Form
CA-2a). She did not identify a date of recurrence of disability on the form. Appellant stated that
she had an asthma problem when she was in a dusty or very hot environment. In an August 6,
2008 letter, she stated that her condition had been ongoing since 2000 and had worsened.
Appellant stated that her condition was aggravated by the amount of dust in her work section.
In a note dated August 7, 2008, Dr. Karowlec stated that appellant averaged three to four
asthma attacks per year, the latest on July 25, 2008. He stated the attacks were usually
precipitated by dust and hot, humid weather, that asthma was a chronic recurrent condition and
avoidance of exposure was essential.
By decision dated December 2, 2008, the Office denied appellant’s claim for a recurrence
of disability.
In a letter dated December 20, 2008, appellant requested reconsideration of her claim. In
a report dated December 12, 2008, Dr. Karowlec stated that appellant had been diagnosed with
asthma since 1998 and averaged three to four asthma attacks per year. He reported that appellant
had been experiencing severe asthma attacks from her workplace, which has an excessive
amount of dust accumulation.
In a decision dated January 23, 2009, the Office denied modification of its prior decision.
Appellant requested reconsideration by letter dated February 20, 2009. By report dated
February 18, 2009, Dr. Karowlec stated that appellant had been experiencing exacerbation of
asthma from her workplace due to the excessive amount of dust accumulation for several years.
He further stated, “It is my medical opinion that on [May 3, 2000 appellant’s] asthma attacks and
the recurrence of her condition are related to high levels of excessive dust accumulation from her
workplace which helps to contribute to her flare ups.”
By decision dated March 6, 2009, the Office denied modification of the January 23, 2009
decision.

1

A September 3, 2008 Office decision stated the accepted condition was extrinsic asthma.

2

Appellant again requested reconsideration of her claim. In an April 6, 2009 letter, she
stated that she had sustained a recurrence of asthma from dust exposure in her work
environment. Appellant indicated that the “nixie” section was originally located in the rear of
the building between two processing machines, and workers use blowers to unclog mail stuck in
the machines. She stated that dust blown from the machines would fly into nixie and aggravate
her asthma. Appellant noted the machines were now vacuumed, but the dust is still an ongoing
problem. She reported that the nixie section was moved into the center of the building in 2008,
and dust accumulates on the ceiling and air vents as maintenance personnel do not clean nixie on
a regular basis.
In a report dated April 2, 2009, Dr. Karowlec opined that appellant’s asthma attacks were
related to the excessive dust accumulations in her work environment. He listed specific dates
from December 2000 to January 2009 where appellant had asthma flare-ups requiring treatment.
By decision dated June 11, 2009, the Office determined appellant’s request for
reconsideration was insufficient to warrant further merit review of the claim.
LEGAL PRECEDENT -- ISSUE 1
A recurrence of disability means “an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which has resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.”2
A person who claims a recurrence of disability due to an accepted employment-related
injury has the burden of establishing by the weight of the substantial, reliable and probative
evidence that the disability for which she claims compensation is causally related to the accepted
injury. This burden of proof requires that a claimant furnish 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 the employment injury and supports that conclusion
with sound medical reasoning.3
ANALYSIS -- ISSUE 1
In the present case, the Office did accept an asthma condition causally related to dust
exposure in her work environment prior to the filing of her claim in May 2000. Commencing in
July 2008, appellant filed claims for compensation for the following periods: March 19 to 21,
June 10 to 12, June 27 to July 6 and July 16 to 18, 2008. On September 5, 2008 appellant filed a
recurrence of disability claim. She did not provide specific dates, but presumably she was
claiming compensation for the same periods.
The claim was accordingly developed as a recurrence of disability claim. Appellant’s
statements generally referred to exposure to dust accumulation in her work area, without
2

20 C.F.R. § 10.5(x).

3

Robert H. St. Onge, 43 ECAB 1169 (1992); Dennis J. Lasanen, 43 ECAB 549 (1992).

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discussing the time frame. To the extent appellant is claiming that continued exposure to dust
during the years after 2000 caused disability for work for claimed periods in 2008, this would be
a claim for a new injury.4 Even if it involves a prior accepted condition, renewed exposure is a
new injury.5 It is not clear whether appellant has filed a claim for a new injury, but on this
appeal the Board is reviewing the merit decisions dated March 6 and January 23, 2009, which
denied a recurrence of disability.
The issue on appeal, therefore, is whether appellant has established a recurrence of
disability for any of the claimed periods commencing on March 19, 2008. The medical evidence
of record does not contain a rationalized medical opinion establishing a spontaneous change in
the accepted medical condition resulting in an inability to work. Dr. Karowlec provided a brief
note dated July 1, 2008 stating appellant was disabled from June 27 to July 5, 2008. He did not
provide a complete history or support an opinion with medical rationale. In a February 18, 2009
report, Dr. Karowlec refers to both May 2000 asthma attacks “and the recurrence of her
condition” as being related to dust accumulation at work, but he appears to be referring to dust
exposure over several years after 2000. The issue here is a recurrence of disability, and
Dr. Karowlec does not provide a report establishing a spontaneous change in the accepted
employment-related condition for the periods claimed. As to the nurse’s reports, these are of no
probative medical value as nurses are not physicians under the Federal Employees’
Compensation Act.6
The Board finds that appellant did not meet her burden of proof to establish a recurrence
of disability on or after March 19, 2008. On appeal, she cites a number of Board cases regarding
the general burden of proof for establishing occupational claims as well as a recurrence of
disability. Appellant stated that her condition on March 19, 2008 was related to the initial injury
on May 3, 2000, as both were caused by excessive dust accumulation. As noted, if she is relating
her disability as of March 19, 2008 to her continuing exposure to dust, this is the basis for a new
claim even if it involves the same underlying asthma condition. Appellant filed a Form CA-2a
and did not provide a detailed factual statement regarding her claim. The Office developed the
claim as a recurrence of disability and for the reasons stated in this decision, appellant did not
meet her burden of proof.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the Act,7
the Office’s regulations provide that a claimant may obtain review of the merits of the claim by
4

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(b)(2) (May 1997).

5

Id. This section provides that a recurrence of disability does not include: “A condition which results from a
new injury, even if it involves the same part of the body previously injured, or by renewed exposure to the causative
agent of a previously suffered occupational disease. If a new work-related injury or exposure occurs, Form CA-1 or
CA-2 should be completed accordingly.”
6

See Vincent Holmes, 53 ECAB 468 (2002).

7

5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application”).

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submitting a written application for reconsideration that sets forth arguments and contains
evidence that either: “(i) shows that [the Office] erroneously applied or interpreted a specific
point of law; (ii) advances a relevant legal argument not previously considered by [the Office];
or (iii) constitutes relevant and pertinent new evidence not previously considered by [the
Office].”8 Section 10.608(b) states that any application for review that does not meet at least one
of the requirements listed in section 10.606(b)(2) will be denied by the Office without review of
the merits of the claim.9
ANALYSIS -- ISSUE 2
In her application for reconsideration, appellant discusses her work environment and
states that she has been exposed to dust at work over the past several years. This is, as noted
above, a claim for a new injury that must be developed in an appropriate manner. With respect
to a recurrence of disability, the reconsideration request did not show that the Office erroneously
applied or interpreted a specific point of law, advance a relevant legal argument not previously
considered, or constitute relevant and pertinent new evidence not previously considered by the
Office.
The April 2, 2009 report from Dr. Karowlec reiterated his general statement that asthma
attacks were caused by dust exposure, but again he referred to a condition from continuing
exposure, rather than a change in the accepted condition without any new exposure. It is not
pertinent new and relevant evidence regarding the specific issue presented in this case. The
Board finds that appellant did not meet the requirements of 20 C.F.R. § 10.606(b)(2) and the
Office properly declined to reopen the case for merit review.
CONCLUSION
The Board finds that appellant did not establish a recurrence of disability on or after
March 19, 2008. The Board further finds that appellant did not meet the requirements of 20
C.F.R. § 10.606(b)(2) and the Office properly denied merit review of the claim.

8

20 C.F.R. § 10.606(b)(2).

9

Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 11, March 6 and January 23, 2009 are affirmed.
Issued: April 16, 2010
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

6


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

)
)
)
)
)
)
)
)

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

Docket No. 10-1798
Issued: May 4, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 25, 2010 appellant filed a timely appeal from a May 24, 2010 merit decision of
the Office of Workers’ Compensation Programs. Pursuant to the Federal Employees’
Compensation Act1 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 has met her burden of proof to establish an injury in the
performance of duty on April 14, 2010, as alleged.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the May 24, 2010 Office decision and on appeal, appellant
submitted new evidence. However, the Board is precluded from reviewing evidence which was not before the
Office at the time it issued its final decision. See 20 C.F.R. § 501.2(c)(1). Appellant may resubmit this evidence,
together with a formal written request for reconsideration to the Office, pursuant to 5 U.S.C. § 8128(a) and 20
C.F.R. § 10.606.

On appeal appellant requests that the Office pay an outstanding medical bill in the
amount of $1,184.50 for medical services rendered on April 14, 2010.
FACTUAL HISTORY
On April 19, 2010 appellant, then a 54-year-old salesperson, filed a traumatic injury
claim (Form CA-1) alleging that on April 14, 2010 she fell on the workroom floor. She
indicated that she was walking with a piece of mail when the rubber soles of her shoes got stuck
on a rubber mat and she fell onto her hip. Appellant did not stop work.
On April 23, 2010 the Office requested that appellant submit additional factual and
medical evidence regarding her claim. It allotted 30 days for her to respond to its inquiries, but
she did not respond.
By letter dated May 5, 2010, the employing establishment controverted appellant’s claim.
By decision dated May 24, 2010, the Office denied appellant’s claim for compensation.
It found that the factual and medical evidence was insufficient to establish that the alleged
incident occurred as alleged.
LEGAL PRECEDENT
An employee seeking benefits under the Act3 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 the Act, that the claim was timely filed within the applicable time
limitation period of the Act, that an injury4 was sustained in the performance of duty, as alleged,
and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit sufficient
evidence, generally only in the form of medical evidence, to establish that the employment
incident caused a personal injury.

3

5 U.S.C. §§ 8101-8193.

4

The Office’s regulations define a traumatic injury as a condition of the body caused by a specific event or
incident, or series of events or incidents, within a single workday or shift. Such condition must be caused by
external force, including stress or strain, which is identifiable as to time and place of occurrence and member or
function of the body affected. 20 C.F.R. § 10.5(ee).
5

See T.H., 59 ECAB 388 (2008). See also Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB
1143 (1989).

2

Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.6
ANALYSIS
Appellant filed a traumatic injury claim form alleging a fall on April 14, 2010. She
described that her rubber-soled shoes got stuck on a rubber mat on April 14, 2010 while she was
in the performance of duty as a salesperson, resulting in her falling. The Board finds that there is
no evidence of record refuting that the April 14, 2010 incident occurred as alleged. The Board
has held that an employee’s statement alleging that an incident occurred at a given time and in a
given manner is of great probative value and will stand unless refuted by strong or persuasive
evidence.7 The employer submitted a general challenge of the claim: “Please be advised our
agency is challenging the enclosed claim for the following reason: Fact of injury and causal
relationship to employment.” This challenge, however, is insufficient to refute appellant’s
statements as it is neither strong nor persuasive evidence. Therefore, the Board finds that
appellant has established that the incident occurred as alleged on April 14, 2010.
Thus, the issue becomes whether appellant sustained an injury resulting from the
employment incident. The only evidence before the Office at the time of the Office’s May 24,
2010 decision was the traumatic injury claim form. While the Office requested additional
medical evidence, no evidence was received by May 24, 2010.8 The Board finds that appellant
did not meet her burden of proof to establish that she sustained an injury in the performance of
duty on April 14, 2010.9
CONCLUSION
The Board finds that, while appellant established that the incident occurred as alleged,
she did not establish an injury in the performance of duty on April 14, 2010.

6

Id. See also Gary J. Watling, 52 ECAB 278 (2001).

7

See M.H., 59 ECAB 461 (2008); Bill H. Harris, 41 ECAB 216 (1989).

8

The Board’s review of a case is limited to evidence that was before the Office at the time of the May 24, 2010
decision. 20 C.F.R. § 501.2(c)(1).
9

See T.S., Docket No. 09-2184 (issued June 9, 2010).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 24, 2010 is affirmed.
Issued: May 4, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF STATE, BUREAU OF
)
ADMINISTRATION, Washington, DC, Employer )
__________________________________________ )
D.S., Appellant

Appearances:
Debra Hauser, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-1930
Issued: January 20, 2016

Case Submitted on the Record

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

JURISDICTION
On September 28, 2015 appellant, through counsel, filed a timely appeal from a May 28,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish lower back conditions
causally related to a November 4, 2013 employment incident.
On appeal, counsel contends that OWCP erred by denying appellant’s claim for failure to
establish causal relationship and argues that he submitted sufficient evidence to demonstrate that
he was injured at the workplace due to riding in a jolting van and entering and exiting the van
with preexisting lumbar injuries.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 8, 2014 appellant, a 50-year-old motor vehicle operator, filed a traumatic
injury claim (Form CA-1) alleging that he sustained an injury on November 4, 2013 as a result of
moving cars and using a van to shuttle drivers in the performance of duty.2 He stated that he
injured his lower back while entering and exiting the back of the van from a cramped third row
seat and from riding in the van under breaking and accelerating conditions. On the claim form,
the employing establishment noted that appellant did not report the injury within 30 days
following the incident.
Appellant submitted work excuse notes dated October 8 and November 18, 2013, which
noted that he was unable to return to work due to chronic and severe low back pain.
In a January 13, 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 an undated narrative statement and witness statements dated
December 18 and 23, 2013 from a coworker in support of his claim. He also submitted
diagnostic studies and an October 16, 2009 report from a nurse practitioner diagnosing
postlaminectomy syndrome, degenerative disc disease, radiculopathy, spondylolisthesis, axial
spasm, diffuse atrophy, and polyneuropathy.
In reports dated January 16, 2012 and January 25 and September 24, 2013, Dr. Glenn D.
Babus, a Board-certified anesthesiologist, diagnosed the following conditions:
(1) postlaminectomy syndrome; (2) L3-4 internal disc disruption; (3) degenerative disc disease;
(4) right-sided S1 radiculopathy; (5) L5-S1 grade one spondylolisthesis; (6) L4-S1 facet
arthropathy; (7) paraspinal axial spasm and diffuse atrophy; and (8) mild lumbar arachnoiditis.
He noted that appellant presented with chronic low back pain and right lower extremity pain.
Dr. Babus found that the overall intensity of the pain had increased in severity, the timing was
constant with no daytime temporal pain pattern, and quality described as burning, cramping,
dull-aching, pressure-like, sharp, shooting, and throbbing.
On November 18, 2013 Dr. Babus reiterated his diagnoses and reported that appellant
“states his neck, right arm, low back, and bilateral lower extremity pain had increased in severity
after a work-related incident on November 4, 2013.” Appellant indicated that he was riding in a
passenger van and he felt a shifting of his spine, which caused excruciating neck and low back
pain, bilateral lower extremity pain, neuropathic pain, muscle cramping, difficulty walking,
slight rectal incontinence, and also slight right arm pain. Dr. Babus opined that appellant was
unable to return to work due to his severe pain, which had been awakening him during the night.
In a February 4, 2014 attending physician’s report (Form CA-20), Dr. Babus diagnosed
“exacerbation of lumbar radiculopathy and possibly worsening of L5-S1 spondylolisthesis and
worsening of arachnoiditis.” He checked the box marked “yes” that it was due to riding in a

2

Appellant also submitted claims for wage-loss compensation (Form CA-7) for the following periods:
December 11, 2013 through January 31, 2014 and November 6, 2013 through January 12, 2014.

2

passenger van at work on November 4, 2013. Appellant reiterated that he had felt a shifting of
his spine.
By decision dated February 20, 2014, OWCP denied appellant’s claim finding that the
medical evidence was insufficient to establish a causal relationship between his lower back
conditions and the November 4, 2013 employment incident.
On February 19, 2015 appellant, through counsel, requested reconsideration and
submitted physical therapy notes dated February 19 and 20, 2014.
In reports dated July 4 through August 4, 2014 Dr. Richard Akoto, a family practitioner,
diagnosed sciatica with radiculopathy, muscle spasm, chronic obstructive pulmonary disease,
depression, anxiety, and hypertension. Dr. Akoto reported that appellant underwent lumbar
spine laminectomy and disc fusion in 2009 due to degenerative disc disease and complained of
persistent severe lumbar pain that radiated to his right lower extremity that had progressively
worsened over the past nine months.
In reports dated February 6 and 19, 2015 Dr. Arthur W. Wardell, a Board-certified
orthopedic surgeon, diagnosed lumbosacral spine injury aggravating preexisting L5-S1 fusion
with new right and left sacroiliac joint disruption. Dr. Wardell asserted that appellant injured his
low back on November 4, 2013 when he was riding in a van that was starting and stopping and
bumping up and down. He found that appellant had a past medical history of back pain for
which he underwent an L5-S1 fusion. Appellant noted that the difference between his back pain
prior to the November 4, 2013 employment incident and after was more buttock pain. There was
increased pain in the right leg and new pain down the left leg.
By decision dated May 28, 2015, OWCP denied modification of its prior decision.
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, that an injury4 was sustained in the performance of duty, as alleged,
and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.5

3

Supra note 1.

4

OWCP regulations define a traumatic injury as a condition of the body caused by a specific event or incident, or
series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
5

See T.H., 59 ECAB 388 (2008). See also Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB
1143 (1989).

3

To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. First, the employee must submit
sufficient evidence to establish that he actually experienced the employment incident at the time,
place, and in the manner alleged. Second, the employee must submit sufficient evidence,
generally only in the form of medical evidence, to establish that the employment incident caused
a personal injury. An employee may establish that the employment incident occurred as alleged,
but fail to show that his or her condition relates to the employment incident.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.7
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish lower back
conditions causally related to the November 4, 2013 employment incident.
OWCP has accepted that the employment incident of November 4, 2013 occurred at the
time, place, and in the manner alleged. The issue is whether appellant’s lower back conditions
resulted from the November 4, 2013 employment incident. The Board finds that appellant did
not meet his burden of proof to establish a causal relationship between the conditions for which
compensation is claimed and the employment incident.
In his reports, Dr. Babus diagnosed the following conditions: (1) postlaminectomy
syndrome; (2) L3-4 internal disc disruption; (3) degenerative disc disease; (4) right-sided S1
radiculopathy; (5) L5-S1 grade one spondylolisthesis; (6) L4-S1 facet arthropathy; (7) paraspinal
axial spasm and diffuse atrophy; and (8) mild lumbar arachnoiditis. On November 18, 2013 he
reiterated his diagnoses and reported that appellant “states his neck, right arm, low back, and
bilateral lower extremity pain had increased in severity after a work-related incident on
November 4, 2013.” Appellant indicated that he was riding in a passenger van and he felt a
shifting of his spine, which caused excruciating neck and low back pain, bilateral lower
extremity pain, neuropathic pain, muscle cramping, difficulty walking, slight rectal incontinence,
and also slight right arm pain. Dr. Babus asserted that appellant was unable to return to work
due to his severe pain. The Board finds that Dr. Babus failed to provide a rationalized opinion
explaining how factors of appellant’s federal employment, such as driving, riding, or getting in
and out of a van at work, caused or aggravated his lower back conditions. Dr. Babus noted that
appellant’s condition occurred while he was at work, but such generalized statements do not
establish causal relationship because they merely repeat his allegations and are unsupported by
adequate medical rationale explaining how his physical activity at work actually caused or
6

Id. See Shirley A. Temple, 48 ECAB 404 (1997); John J. Carlone, 41 ECAB 354 (1989).

7

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

4

aggravated the diagnosed conditions.8 He failed to provide an opinion adequately addressing
how the November 4, 2013 incident contributed to appellant’s preexisting back conditions.
Thus, the Board finds that the reports from Dr. Babus are insufficient to establish that appellant
sustained an employment-related injury.
Similarly Dr. Babus indicated by a “yes” check mark that the aforementioned diagnosed
conditions were causally related to the November 4, 2013 employment incident. However, the
Board has held that a checkmark, without supporting rationale, is of limited probative value, and
insufficient to establish the claim.9 Dr. Dabus did not explain how riding in a passenger van at
work resulted in his claimed conditions. No mechanism of injury was provided.
In his reports, Dr. Wardell diagnosed lumbosacral spine injury aggravating preexisting
L5-S1 fusion with new right and left sacroiliac joint disruption. He asserted that appellant
injured his low back on November 4, 2013 when he was riding in a van that was starting and
stopping and bumping up and down. Dr. Wardell found that appellant had a past medical history
of back pain for which he underwent an L5-S1 fusion. He noted that appellant’s conditions
occurred while he was at work, but as noted above such generalized statements do not establish
causal relationship.10 The Board finds that Dr. Wardell did not provide sufficient medical
rationale explaining how appellant’s new or preexisting lower back conditions were caused or
aggravated by driving, riding, or entering and exiting a van at work on November 4, 2013. The
need for such rationale is particularly important as the evidence indicates that appellant had a
preexisting condition. Therefore, the Board finds that the reports from Dr. Wardell are
insufficient to establish causal relationship.
Reports from Dr. Akoto noted diagnoses and findings, but did not specifically address
whether the November 4, 2013 work incident caused or contributed to a diagnosed condition.
Medical evidence that does not offer any opinion regarding the cause of an employee’s condition
is of diminished probative value on the issue of causal relationship.11 Thus, the Board finds that
appellant did not meet his burden of proof with these submissions.
Appellant also submitted evidence from nurse practitioners and physical therapists.
These documents do not constitute competent medical evidence because nurse practitioners nor
physical therapist are considered “physicians” as defined under FECA.12 As such, this evidence
is also insufficient to meet appellant’s burden of proof.

8

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

9

See Lillian M. Jones, 34 ECAB (1982); see also J.R., Docket No. 15-1443 (issued October 21, 2015).

10

Id.

11

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

12

5 U.S.C. § 8101(2); Paul Foster, 56 ECAB 208 (2004) (nurse practitioners); Jennifer L. Sharp, 48 ECAB
209 (1996) (physical therapists). See also Gloria J. McPherson, 51 ECAB 441 (2000); Charley V.B. Harley,
2 ECAB 208, 211 (1949) (a medical issue such as causal relationship can only be resolved through the submission
of probative medical evidence from a physician).

5

On appeal, counsel contends that OWCP erred by denying appellant’s claim for failure to
establish causal relationship and argues that he submitted sufficient evidence to demonstrate that
he was injured at the workplace due to riding in a jolting van and entering and exiting the van
with preexisting lumbar injuries. Based on the findings and reasons set forth above, the Board
finds counsel’s arguments are not substantiated. As appellant has not submitted any rationalized
medical evidence to support his allegation that he sustained an injury causally related to a
November 4, 2013 employment incident, he has failed to meet his burden of proof to establish a
claim for compensation.
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 lower back
conditions causally related to a November 4, 2013 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the May 28, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 20, 2016
Washington, DC

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

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

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

6


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

)
)
)
)
)
)
)
)

Docket No. 12-766
Issued: September 12, 2012

Case Submitted on the Record

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

On February 23, 2012 appellant filed a timely appeal from a February 3, 2012 final
overpayment decision of the Office of Workers’ Compensation Programs (OWCP). The claim
was docketed as No. 12-766.
The Board has duly considered the matter and finds that this case is not in posture for
decision. In this case, by decision dated February 3, 2012, OWCP found that an overpayment of
compensation in the amount of $5,103.01 had been created for the period March 1, 2006 through
December 17, 2011 because appellant received both Social Security Act (SSA) retirement
benefits and wage-loss compensation under the Federal Employees’ Compensation Act1 (FECA),
without appropriate offset being applied.2 It found him at fault and noted that, although he

1
2

5 U.S.C. §§ 8101-8193.

Appellant, a tractor trailer operator, sustained a right rotator cuff sprain/tear on May 26, 2004 while
disconnecting a tractor from a trailer. He underwent arthroscopic repair on July 22, 2004 and returned to modified
duty for four hours a day on March 19, 2005. By decision dated June 2, 2005, OWCP reduced appellant’s
compensation, based on his actual earnings for four hours a day.

referenced an April 22, 2008 letter in a response to the January 4, 2012 preliminary overpayment
finding, the record did not contain such a letter.3
On appeal to the Board, appellant asserts that OWCP erred in its February 3, 2012
decision by not considering an April 22, 2008 letter which indicated that federal retirement offset
was being deducted from his compensation. He attached a copy of the letter, found in OWCP
file number xxxxxx220.4 The record in the instant claim contains correspondence from
appellant’s former attorney dated October 18 and November 19, 2006 in which the attorney
referenced both claims: file number xxxxxx218, the instant case, and file number xxxxxx220.
Appellant retired on December 22, 2006. In a September 17, 2007 letter, his attorney indicated
that appellant had been receiving compensation under both claims.
The record forwarded to the Board includes evidence suggesting that appellant has two
accepted claims and suggests that he was receiving FECA benefits under both claims. Claim
number xxxxxx218 record, however, contains scant information regarding claim number
xxxxxx220, especially regarding whether appellant is receiving FECA benefits under that claim.
The Board therefore finds this case is not in posture for a decision, as the record before the Board
is incomplete and would not permit an informed adjudication of the case by the Board. Thus, the
case must be remanded to OWCP to combine the claim files. OWCP procedures provide for
doubling claims when correct adjudication of the issues depends on frequent cross-reference
between files.5 Upon remand, it should combine file number xxxxxx220 with the instant case,
file number xxxxxx218. After combining the two records, OWCP should consider all relevant
evidence regarding whether an overpayment of compensation was created and, if so, whether the
amount was correct, and whether appellant was at fault in the creation of the overpayment and
direct any further development deemed necessary. It should then issue an appropriate decision.

3

In response to the preliminary overpayment determination, appellant submitted an overpayment action request
but did not submit an overpayment questionnaire.
4

The Board cannot consider this evidence as the Board’s jurisdiction is limited to reviewing the evidence that
was before OWCP at the time of its final decision. J.T., 59 ECAB 293 (2008).
5

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

2

IT IS HEREBY ORDERED THAT the February 3, 2012 decision of the Office of
Workers’ Compensation Programs be set aside and the case remanded for further proceedings
consistent with this order of the Board.
Issued: September 12, 2012
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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
NATIONAL AERONAUTICS & SPACE
)
ADMINISTRATION, Washington, DC, Employer )
__________________________________________ )
H.C., Appellant

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

Docket No. 07-154
Issued: October 5, 2007

Case Submitted on the Record

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

JURISDICTION
On October 23, 2006 appellant timely appealed the October 11, 2006 merit decision of
the Office of Workers’ Compensation Programs, which affirmed the termination of wage-loss
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over
the merits of the claim.
ISSUE
The issue is whether the Office properly terminated appellant’s wage-loss compensation
effective October 5, 2003.
FACTUAL HISTORY
Appellant, a 61-year-old administrative specialist, has an accepted claim for lumbar strain
and myofascial pain syndrome. She injured her lower back on April 6, 1991 while packing and
moving boxes and other office equipment, including a fax machine. Appellant stopped working
on April 9, 1991. The Office paid appropriate wage-loss compensation and placed her on the

periodic compensation rolls effective September 22, 1991. Over the next 12 years, appellant
continued to receive wage-loss compensation for total disability.
Dr. Robert A. Smith, a Board-certified orthopedic surgeon and Office referral physician,
examined appellant on February 20, 2003. During the course of examination, he noted that
appellant had embellished her symptoms, particularly with respect to her right foot. Appellant’s
physical examination was essentially benign and revealed no spasm, atrophy or deformity.
Dr. Smith reported that there were no objective findings to substantiate any ongoing soft tissue or
neurological problem that could be referable to the April 1991 employment incident. He also
completed a work capacity evaluation (Form OWCP-5c) wherein he noted that appellant had no
work restrictions due to her accepted injury. According to Dr. Smith, appellant had reached
maximum medical improvement in 1997 and was capable of performing her usual job.
Dr. Taghi Kimyai-Asadi, a Board-certified neurologist who began treating appellant in
June 1991, provided a May 6, 2003 work capacity evaluation in which he indicated that appellant
could not work at all and was permanently disabled due to her work-related medical condition.
Appellant’s reported physical limitations included occasional lifting of up to five pounds, 2 hours
of walking, 10 minutes of standing, 3 to 4 hours of sitting, 1 hour of handling and grasping and 1
hour of reaching above shoulder. Additionally, Dr. Asadi precluded any bending, twisting,
keyboarding, pulling, pushing, climbing and driving. His contemporaneous treatment notes
included a diagnosis of lumbar back pain and sciatalgia. Dr. Asadi reported limited range of
motion and tenderness in the lumbar spine. Appellant’s active problems included lumbar back
pain, anxiety, depression and breast cancer. Dr. Asadi also stated that appellant had recently
been more depressed after being diagnosed with early-stage breast cancer.
On July 3, 2003 the Office advised appellant of its intention to terminate her wage-loss
compensation based on Dr. Smith’s February 20, 2003 examination findings. The Office
afforded appellant 30 days to respond to the proposed termination of benefits.
In a July 20, 2003 letter, appellant advised the Office that a recent lumbar magnetic
resonance imaging (MRI) scan revealed multilevel disc bulges and central spinal stenosis. She
also expressed disagreement with the proposed termination of compensation and asked that she
be permitted to consult with Dr. Charles J. Azzam, a Board-certified neurosurgeon. The Office
subsequently received a July 29, 2003 report from Dr. Azzam who indicated that appellant had
symptoms related to lumbar canal stenosis with L5 radiculopathy. Dr. Azzam noted that a
June 2003 lumbar MRI scan revealed evidence of spondylosis and stenosis extending from L2-5,
but most significant at the L4-5 level. Dr. Azzam advised appellant to consider a decompressive
laminectomy and foraminotomy.
By decision dated September 9, 2003, the Office terminated appellant’s wage-loss
compensation effective October 5, 2003. Appellant, however, remained eligible for further
medical treatment for her accepted condition.
On October 20, 2003 appellant requested reconsideration. She submitted a duplicate
copy of Dr. Asadi’s May 6, 2003 work capacity evaluation. Appellant also submitted an
October 5, 2003 prescription pad note from Dr. Abhay V. Aggroia, a Board-certified internist.
Although Dr. Aggroia did not specify what condition appellant was being treated for, he

2

indicated that she had been advised not to sit or stand for long periods of time. He also advised
appellant not to lift or bend. As discussed infra, appellant’s October 20, 2003 request for
reconsideration would go unanswered for almost three years.
On February 7, 2005 appellant filed a claim for a schedule award. In support of her
claim, she submitted an October 20, 2004 report from Dr. Allan H. Macht, a Board-certified
surgeon, who found 20 percent permanent impairment of both lower extremities.
In a September 28, 2005 decision, the Office denied appellant’s claim for a schedule
award. The Office found that appellant was not entitled to a schedule award because she had
previously refused an offer of suitable employment. The Office mistakenly believed that the
September 9, 2003 decision terminating wage-loss compensation was based on appellant’s
refusal to accept suitable employment.
On October 17, 2005 appellant requested an oral hearing regarding both the
September 28, 2005 decision denying her claim for a schedule award and the September 9, 2003
decision terminating wage-loss compensation.
A telephonic hearing was held on
February 10, 2006.
Appellant also submitted additional medical evidence, which included follow-up reports
from Dr. Azzam dated October 17 and November 1, 2005. After reviewing recent x-rays and a
lumbar MRI scan, Dr. Azzam reported evidence of mild spondylosis, minimal disc bulge at L4-5
with minimal stenosis and diffuse chronic disc bulge at L2-3. He indicated that appellant had
symptoms related to lumbar spondylosis. According to Dr. Azzam, appellant would not consider
any invasive treatment modalities and, therefore, he discharged her from his care. Appellant
would continue conservative treatment and pain management with her primary care physician.
Appellant was also seen by Dr. Paymaun M. Lotfi, a Board-certified orthopedic surgeon.
On February 15, 2006 Dr. Lotfi diagnosed axial low back pain and Grade 1 spondylolisthesis at
L4-5. He recommended additional x-rays and another lumbar MRI scan. Dr. Lotfi also
administered steroid injections and recommended that appellant be fitted for a lumbar brace.
When he saw her in follow-up on March 8, 2006, he noted that recent x-rays revealed
degenerative spondylolisthesis at L4-5. There was no significant scoliosis noted and appellant’s
MRI scan showed mild-to-moderate subarticular narrowing, but no significant central narrowing.
Dr. Lotfi noted that appellant’s symptoms were mostly back pain with some radiating leg pain.
He recommended over-the-counter anti-inflammatory medication and home exercises.
By decision dated September 26, 2006, the Office hearing representative set aside the
September 28, 2005 decision denying appellant’s claim for a schedule award. The hearing
representative found that there was no evidence that appellant refused an offer of suitable
employment. Additionally, the hearing representative noted that there was an outstanding
request for reconsideration regarding the September 9, 2003 decision terminating wage-loss
compensation. The claim was remanded to the Office with instructions to consider appellant’s
October 20, 2003 request for reconsideration. The hearing representative also instructed the
Office to render a decision on appellant’s request for a schedule award.

3

In a decision dated October 11, 2006, the Office denied modification of the September 9,
2003 decision terminating wage-loss compensation.
LEGAL PRECEDENT
Once the Office accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.1 Having determined that an employee has a disability
causally related to her federal employment, the Office may not terminate compensation without
establishing either that the disability has ceased or that it is no longer related to the employment.2
ANALYSIS
The Board finds that the Office met its burden to terminate appellant’s wage-loss
compensation. The Office accepted appellant’s claim for an April 6, 1991 lumbar strain and
subsequent myofascial pain syndrome. When Dr. Smith examined appellant some 12 years after
her employment injury, he found evidence of symptom magnification and an essentially benign
physical examination. He explained that there were no objective findings to substantiate any
ongoing soft tissue or neurological problem associated with the April 1991 work injury.
According to Dr. Smith, appellant was capable of resuming her regular employment duties
without restrictions. In contrast, Dr. Asadi indicated on May 6, 2003 that appellant was totally
and permanently disabled due to her work-related injury. However, he failed to explain how a
12-year-old soft tissue injury rendered appellant totally and permanently disabled. Dr. Asadi
also did not identify any specific objective findings that supported his opinion that appellant was
totally disabled. Dr. Aggroia’s October 5, 2003 prescription pad note also fails to substantiate
any ongoing employment-related disability. The limitations he imposed with respect to sitting,
standing, lifting and bending are not specific to appellant’s accepted employment injury. Thus,
neither Dr. Asadi nor Dr. Aggroia provided probative medical evidence that outweighed
Dr. Smith’s findings.
Although the record includes objective evidence of multilevel disc disease involving the
lumbar spine, this condition has not been demonstrated to be causally related to appellant’s
April 6, 1991 employment injury.3 Therefore, the subsequent x-rays and MRI scans along with
the various reports from Drs. Azzam and Lotfi do not undermine the Office’s decision to
terminate wage-loss compensation based on Dr. Smith’s February 20, 2003 examination
findings.
CONCLUSION
The Office properly terminated appellant’s wage-loss compensation effective
October 5, 2003.
1

Curtis Hall, 45 ECAB 316 (1994).

2

Jason C. Armstrong, 40 ECAB 907 (1989).

3

Where appellant claims that a condition not accepted or approved by the Office was due to her employment
injury, she bears the burden of proof to establish that the condition is causally related to the employment injury.
Jaja K. Asaramo, 55 ECAB 200, 204 (2004).

4

ORDER
IT IS HEREBY ORDERED THAT the October 11, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 5, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.A., claiming as widow of M.B., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Butner, NC, Employer
__________________________________________

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Appearances:
Lewis A. Thompson, III, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-1479
Issued: March 7, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On June 29, 2015 appellant, through counsel, filed a timely appeal from a January 8,
2015 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 merits of this case.
ISSUE
The issue is whether appellant, as his widow, is eligible for survivor benefits.
FACTUAL HISTORY
On November 26, 2013 the employee, then a 54-year-old food service officer, was pinned
under a delivery truck at his place of employment and died. OWCP accepted that the employee
died on November 26, 2013 while in the performance of his federal duties.

1

5 U.S.C. § 8101 et seq.

Appellant filed a claim for compensation by widow (Form CA-5). She alleged that she
was the employee’s widow as she had lived with him in a “common-law” marriage relationship
for 13 years prior to his death. The form noted the deceased employee had a daughter, date of
birth October 7, 1979, and a son, date of birth July 29, 1985.
On January 7, 2014 appellant submitted a December 19, 2013 letter of administration
from a North Carolina Probate Court, which named her as the fiduciary of the employee’s estate.
By decision dated March 6, 2014, OWCP accepted the employee’s death claim.
However, it determined that there were no eligible beneficiaries for survivor benefits. OWCP
found that both of the employee’s children were over 23 years of age and there was no widow as
the evidence did not establish that the employee was legally married at the time of his death. It
reimbursed burial expenses to the estate in the amount of $800.00 and an administrative fee of
$200.00.2
On December 1, 2014 appellant’s counsel filed a request for reconsideration. He argued
that appellant was entitled to death benefits as she and the employee had resided together for
more than 13 years prior to his death and that they had considered themselves to be husband and
wife and had represented themselves that way to family, friends, and the community as a married
couple. Counsel noted that the state of North Carolina, where appellant and the employee
resided, did not recognize common law marriage, but contended that fact should not bar her as a
beneficiary under FECA. He noted that other states recognize common law marriage and to bar
appellant from survivor benefits would prevent the employee’s estate from pursing a Wrongful
Death Benefit under North Carolina General Statutes.
Other records included evidence that appellant and the employee shared property,
finances, and that appellant could be the designee for the employee’s life insurance. Appellant
also submitted a birthday card entitled “To My Wife” signed by “Michael.”
Of record is a Notice of Unsafe or Unhealthful Working Conditions from OSHA to the
employing establishment and a November 27, 2013 memorandum which discussed the
circumstances of the employee’s traumatic death.
By decision dated January 8, 2015, OWCP denied modification of the March 6, 2014
decision. It again determined that appellant was not an eligible survivor under FECA.
LEGAL PRECEDENT
With respect to compensation in the case of death, section 8133 of FECA provides the
following:
If death results from an injury sustained in the performance of duty, the United
States shall pay a monthly compensation equal to a percentage of the monthly pay
of the deceased employee in accordance with the following schedule:
(1) To the widow or widower, if there is no child, 50 percent.
2

5 U.S.C. § 8134(a); § 8109(a)(3)(D)(v).

2

(2) To the widow or widower, if there is a child, 45 percent and in addition
15 percent for each child not to exceed a total of 75 percent for the widow
or widower and children.3
(3) To the children, if there is no widow or widower, 40 percent for one
child and 15 percent additional for each additional child not to exceed a
total of 75 percent, divided among the children share and share alike.4
The term “widow” is defined in section 8101(6) of FECA to mean “the wife living with
or dependent for support on the decedent at the time of his death, or living apart for reasonable
cause or because of his desertion.”
The Board has held that the validity of a marriage is to be determined by the law of the
place where the alleged marriage took place.5
ANALYSIS
As the above legal precedent indicates, 5 U.S.C. § 8133 provides a comprehensive
statutory scheme for the payment of compensation in the case of death causally related to federal
employment. Appellant is claiming survivor benefits under FECA as the widow of the
employee. OWCP denied the claim finding appellant not entitled to survivor benefits as there
was no evidence that she was legally married at the time of the employee’s death.6
It is well established that questions before the Board affecting relationship, such as the
validity of marriage or divorce, are determined by the statutory and decisional domestic relations
law of the jurisdiction where the alleged marriage took place.7 In the present case, the laws of
North Carolina are applicable. North Carolina law does not recognize common law marriages.8
The only instance where North Carolina will recognize a common law marriage is if the couple
entered into a common law marriage in another state, which does recognize common law
marriages, and if that couple later moves to North Carolina, then North Carolina will recognize
their common law marriage as a valid legal marriage.9
3

Section 8133 of FECA also provides that a child of an employee whose death resulted from a work-related
injury may receive survivor benefits if the child is younger than 18 years of age or, if older, is incapable of selfsupport.3 Section 8110(a)(3) of FECA provides that a child is considered a dependent if he or she is under 18 years
of age, is over 18 but is unmarried and incapable of self-support because of a physical or mental disability or is an
unmarried student, as defined under FECA section 8101(17).
4

5 U.S.C. § 8133.

5

Marolyn M. Videto, 23 ECAB 207 (1972).

6

The March 6, 2014 OWCP decision also denied survivor benefits to the deceased employee’s children as they
were over 23 years of age at the time of the employee’s death.
7

Andrew J. Kravic, 57 ECAB 526 (2006); Leon J. Mormann, 51 ECAB 680 (2000); Mary Bee McCabe
(George S. Sampio), 35 ECAB 218 (1983).
8

Section 51-1 North Carolina General Statutes, Requisites of marriage; solemnization.

9

Id.

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The Board finds that appellant has failed to establish that she is the widow of the
deceased employee. The state laws of North Carolina do not recognize common law marriages
and there is no evidence of record that appellant and the deceased employee had entered into a
common law marriage in another state which recognizes common law marriage and then resided
in North Carolina. The evidence that appellant and the deceased employee shared property,
finances, and the fact that she may be the designee for his life insurance does not establish that
she is an eligible dependent under FECA, nor does the fact that the employee may have referred
to the appellant as his wife. Appellant is not the legal spouse or “widow” of the employee, she is
not entitled to compensation from the death of the deceased employee.10
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established eligibility for survivor benefits.
ORDER
IT IS HEREBY ORDERED THAT the January 8, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 7, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board
10

OWCP further denied survivor benefits to the deceased employee’s children as they were over 23 years of age.
At the time of the deceased employee’s death, the record reflects the deceased employee’s daughter was 34 years old
and the son was 28 years old. As they were over 18 years of age and did not meet any exceptions, they are not
entitled to survivor benefits.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.F., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Atlantic City, NJ, Employer
__________________________________________

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

Docket No. 15-64
Issued: February 10, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On October 14, 2014 appellant filed a timely appeal from June 25 and August 22, 2014
merit decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty on
May 9, 2014.
FACTUAL HISTORY
On May 10, 2014 appellant, a 52-year-old air traffic control specialist, filed a claim for
benefits, alleging that he sustained a psychological injury on May 9, 2014 while providing air
traffic service to a plane that crashed, with fatalities.
1

5 U.S.C. § 8101 et seq.

By letter to appellant dated May 22, 2014, OWCP advised him that it required additional
factual and medical evidence to determine whether he was eligible for compensation benefits. It
asked appellant to submit evidence establishing that he experienced the alleged incident or
employment factor which caused his injury and a comprehensive medical report from his treating
physician describing his symptoms and a medical opinion explaining the cause of any diagnosed
condition.
In a memorandum to appellant’s supervisor dated May 13, 2014, received by OWCP on
June 9, 2014, Dr. Bonnie J.K. DeLong, a licensed psychologist, stated: “As per my meeting with
[appellant] in an employee assistance program session today, I have recommended that he
remain off from his usual job duties until May 25, 2014.”
In response to OWCP’s May 22, 2014 questionnaire, appellant submitted a June 9, 2014
statement in which he asserted: “At the time the aircraft crashed I was working local control at
Atlantic City, providing direct air traffic service to the aforementioned aircraft. I was working
local control at Atlantic City and was the last controller to transmit to the aircraft before the
crash occurred.”
By decision dated June 25, 2014, OWCP denied appellant’s claim. It accepted that he
experienced the alleged May 9, 2014 employment incident at the time, place, and in the manner
alleged, but found that he failed to submit medical evidence establishing that he had a diagnosed
medical condition which was causally related to the May 9, 2014 incident. OWCP therefore
found that appellant failed to establish that he sustained a stress-related traumatic injury in the
performance of duty.
By letter dated August 6, 2014, appellant requested reconsideration.
Appellant submitted a July 31, 2014 form report from Dr. DeLong in which she checked
a box indicating that appellant attended an employee assistance program session. Dr. DeLong
noted that appellant’s diagnosis was code 309.9. Appellant did not submit any additional
medical reports.
By decision dated August 22, 2014, OWCP denied modification of the June 25, 2014
decision. It found that the diagnosis code 309.9 provided by Dr. DeLong corresponded to a
diagnosis of unspecified adjustment disorder, however, the evidence of record did not establish
that Dr. DeLong was a clinical psychologist, and therefore a “physician” under the terms of
FECA. Appellant did not meet his burden of proof to establish that he sustained an injury as a
result of the accepted incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing that the
essential elements of his or her claim including the fact that the individual is an “employee of the
United States” within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as
alleged, and that any disability and/or specific condition for which compensation is claimed are
2

5 U.S.C. §§ 8101-8193.

2

causally related to the employment injury.3 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually experienced
the employment incident at the time, place, and in the manner alleged.5 Second, the employee
must submit sufficient evidence, generally only in the form of medical evidence, to establish that
the employment incident caused a personal injury.6
Section 8101(2) of FECA provides that the term physician includes clinical psychologists
within the scope of their practice as defined by state law.7 OWCP’s procedures state that it has
accepted the American Psychological Association’s (APA) definition of a clinical psychologist.8
This definition provides that a clinical psychologist is an individual who:
(1) Is licensed or certified as a psychologist at the independent practice level of
psychology by the state in which he or she practices, and
(2) Either possesses a doctoral degree in psychology from an educational
institution accredited by an organization recognized by the Council on PostSecondary Accreditation or is listed in a national register of health service
providers in psychology which the Secretary of the Department of Labor deems
appropriate, and
(3) Possesses two years of supervised experience in health service, at least one
year of which is post degree.9
Neither the fact that appellant’s condition became apparent during a period of
employment nor the belief that his condition was caused, precipitated or aggravated by his
employment is sufficient to establish causal relationship.10

3

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

4

Victor J. Woodhams, 41 ECAB 345 (1989).

5

John J. Carlone, 41 ECAB 354 (1989).

6

Id. For a definition of the term “injury,” see 20 C.F.R. § 10.5(e)(e).

7

5 U.S.C. § 8101(2).

8

Federal (FECA) Procedure Manual, Part 3 -- Medical, Overview, Chapter 3.100.3a (October 1990).

9

Id.

10

Id.

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ANALYSIS
OWCP accepted that appellant established a compensable factor of employment. A
reaction to regularly or specially assigned duties is a compensable factor under FECA.11
Appellant alleged a reaction to the incident on May 9, 2014 where, while providing air traffic
control service to a plane, it crashed resulting in fatalities. OWCP found this occurred while in
the performance of his duties and responsibilities as an air traffic controller. In similar cases
wherein an air traffic controller had operational and functional responsibility over a plane that
crashed, and was not a mere bystander, a compensable factor of employment has been found.12
The Board affirms that appellant has substantiated a compensable work factor under Cutler.
The question of whether an employment incident caused a personal injury can only be
established by probative medical evidence.13 Appellant has not submitted rationalized, probative
medical evidence to establish that the May 9, 2014 employment incident caused a personal injury.
Appellant submitted Ms. DeLong’s June 9, 2014 memorandum to appellant’s supervisor
which advised that appellant should remain off work until May 25, 2014, and a July 31, 2014
form report which provided the diagnosis code for unspecified adjustment disorder.
The Board finds there is insufficient evidence to establish that Dr. DeLong qualifies as a
physician under 5 U.S.C. § 8101(2).
Dr. DeLong has provided her psychologist’s license number, therefore she meets the first
of the three criteria for qualifying as a licensed clinical psychologist. Regarding the second
criterion, the evidence of record indicates that she has a Master’s Degree, not a Doctorate in
psychology. There is also no evidence of record that Dr. DeLong is listed on the national
register of health service providers in psychology. Therefore she has not met the second
criterion to qualify as a licensed clinical psychologist. The Board additionally notes that there is
no evidence of record that Dr. DeLong meets the third criterion, of two years of supervised
service in health service. The Board must therefore find that there is insufficient evidence of
record that she meets the second and third criteria of the definition of clinical psychologist
accepted by OWCP, and cannot be considered a “physician” under FECA.14
As Dr. DeLong is not a physician under FECA, she is not competent to render a medical
opinion in this case.15 There is therefore no medical evidence of a diagnosed condition and no
medical opinion causally related the diagnosed condition to the accepted event.
OWCP advised appellant of the evidence required to establish his claim; however, he
failed to submit such evidence. Appellant did not provide a medical opinion which describes or
11

Lillian Cutler, 28 ECAB 125 (1976).

12

See M.L., Docket No. 12-354 (issued February 26, 2013).

13

Supra note 5.

14

See Ruthie M. Johnson, Docket No. 05-822 (issued September 7, 2005).

15

Id.

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explains the medical process through which the May 9, 2014 work accident would have caused
the claimed injury. Accordingly, he did not establish that he sustained an injury in the
performance of duty. OWCP properly denied appellant’s claim for compensation.
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 failed to establish that he sustained an injury in the
performance of duty on May 9, 2014.
ORDER
IT IS HEREBY ORDERED THAT the August 22 and June 25, 2014 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: February 10, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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