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

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

Docket No. 18-0381
Issued: August 20, 2018

Case Submitted on the Record

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

JURISDICTION
On December 18, 2017 appellant, through counsel, filed a timely appeal from an
August 15, 2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.3

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

5 U.S.C. § 8101 et seq.

3
The record provided to the Board includes evidence received after OWCP issued its August 15, 2017 decision.
The Board’s jurisdiction is limited to the evidence that was in the case record at the time of OWCP’s final decision.
Therefore, the Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R.
§ 501.2(c)(1).

ISSUE
The issue is whether appellant has met her burden of proof to establish that her diagnosed
bilateral rotator cuff conditions are causally related to the accepted factors of her federal
employment.
FACTUAL HISTORY
On May 26, 2016 appellant, then a 58-year-old automation clerk, filed an occupational
disease claim (Form CA-2) for bilateral rotator cuff tears, noting that the tear in her left shoulder
was a retear. She attributed her rotator cuff tears to duties of her federal employment, including
use of her arms to lift heavy trays of mail and pushing mail containers. Appellant identified
April 25, 2016 as the date she first became aware of her condition and the date she first realized
her condition was employment related. She did not stop work.4
In a report dated April 25, 2016, Dr. James Fleischli, a Board-certified orthopedic surgeon,
examined appellant for complaints of bilateral shoulder pain. Appellant told him that the pain had
begun approximately one month before the examination and that it had been affecting her ability
to work and sleep. She further noted that she had previously undergone a left rotator cuff repair
procedure in 2007, subsequent to a vehicular incident. On examination of the left shoulder,
Dr. Fleischli noted a well-healed incision over the lateral aspect of appellant’s acromion.
Appellant had range of motion with forward elevation to approximately 80 degrees passively and
110 degrees actively; with external rotation to 30 degrees actively and passively; with internal
rotation to L4; and with abduction of approximately 80 degrees passively and 100 degrees actively.
On examination of the right shoulder, Dr. Fleischli observed range of motion with forward
elevation to 120 degrees; with external rotation to 45 degrees; with internal rotation to L4; and
with abduction of approximately 100 degrees. He noted 4/5 strength in appellant’s rotator cuff
musculature bilaterally. Dr. Fleischli reviewed x-rays of her bilateral shoulders, which revealed
bilateral rotator cuff arthropathy. He diagnosed appellant with bilateral rotator cuff arthropathy.
Dr. Fleischli recommended that she consider shoulder arthroplasty and administered a bilateral
subacromial injection with no complications.
By development letter dated June 14, 2016, OWCP informed appellant that she had not
submitted sufficient evidence to establish her claim. First, it noted that the medical evidence did
not substantiate a diagnosis of bilateral rotator cuff tear as caused or aggravated by work-related
factors. OWCP advised appellant to submit a narrative report from her physician, which included
a rationalized medical opinion. It also requested additional information regarding employment
factor(s) allegedly responsible for her claimed condition(s), as well as information regarding any
outside activities and/or prior injuries to her upper extremities. OWCP afforded appellant at least
30 days to submit the requested factual and medical evidence.
On June 1, 2006 Dr. Steven R. Groman, a Board-certified orthopedic surgeon, examined
appellant for difficulty with her left arm. He noted that she was involved in a motor vehicle
incident in January 2006. Appellant was referred to a fracture clinic and was seen on January 17,
2006 where she was diagnosed as having a nondisplaced fracture of the left greater tuberosity of
4
Under File No. xxxxxx461, OWCP previously accepted right carpal tunnel syndrome, which arose on or about
August 1, 2012.

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the humerus. She was noted to have a rotator cuff tear by magnetic resonance imaging (MRI) scan
in April 2006, but did not undergo surgery. Dr. Groman reviewed her x-rays and noted that he
was not certain that she had a greater tuberosity fracture, but that he was certain that her MRI scan
demonstrated a large tear of the rotator cuff, with a completely avulsed supraspinatus, which had
torn and retracted back to the medial part of the humeral head. The infraspinatus was involved in
its upper half and the shoulder was subluxed posteriorly due to the lack of posterior and superior
support. Dr. Groman recommended surgery for rotator cuff repair.
On June 16, 2006 appellant visited with Dr. Groman to discuss the surgery. Dr. Groman
told her it was a large tear that had been present for the better part of six months. He noted that
there was a possibility that it was not repairable, and that if it was repairable, it may not heal.
Dr. Groman scheduled the surgery for June 27, 2006.
On August 15, 2006 Dr. Groman noted that appellant was six weeks post operation from a
large left rotator cuff tear. He observed hypertrophy of the shoulder scar and recommended that
she continue physical therapy.
In a report dated June 6, 2016, Dr. Nady Hamid, a Board-certified orthopedic surgeon,
examined appellant for complaints of bilateral shoulder pain. He noted that she had a history of
left open rotator cuff repair performed in 2007 after she was involved in a vehicular incident.
Appellant told Dr. Hamid that she had a satisfactory postoperative outcome, but that she had been
experiencing increasing pain in her left shoulder over the past several months. She also
experienced discomfort in the right shoulder, but stated that her left shoulder pain was greater,
with reduced range of motion bilaterally. Dr. Fleischli’s subacromial injections on April 25, 2016
had not provided significant symptomatic relief. Dr. Hamid examined x-rays of appellant’s
bilateral shoulders, which demonstrated advanced rotator cuff arthropathy on the right with a
superior glenoid wear pattern, as well as evidence of cuff arthropathy on the left with superior
migration of the humeral head. On examination of the left shoulder, he noted a transverse scar
from a prior open repair. Appellant had range of motion of the left shoulder with 60 degrees of
active forward elevation and 100 degrees of passive elevation; with 15 degrees of active external
rotation and 30 degrees of passive external rotation; with internal rotation to L4; a complete lag
sign and a positive Hornblower’s sign. Dr. Hamid further noted 3/5 strength of the infraspinatus
and 4+/5 strength of the subscapularis. On examination of the right shoulder, he noted active
forward elevation to 120 degrees, with external rotation to 45 degrees with a 15 degree lag sign,
as well as internal rotation to L4 and a positive Hornblower’s sign. The right shoulder
demonstrated 4/5 strength of the supraspinatus and infraspinatus, as well as 5/5 strength of the
subscapularis. Dr. Hamid diagnosed appellant with bilateral shoulder cuff tear arthropathy, with
right superior glenoid bone wear. He assessed her with pain greater on the left than the right.
Dr. Hamid recommended left reverse total shoulder arthroplasty and stated that appellant was also
a candidate for right total shoulder arthroplasty and a left reverse total shoulder arthroplasty tendon
transfer study.
Dr. Victor Ho, a Board-certified diagnostic radiologist, interpreted the June 16, 2016 MRI
scan as revealing a full thickness rotator cuff tear of the left shoulder and severe degenerative joint
disease with likely loose bodies.

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In a follow-up report dated June 21, 2016, Dr. Hamid reviewed the June 16, 2016 MRI
scan and diagnosed a massive irreparable rotator cuff tear of the left shoulder. He recommended
a left reverse total shoulder arthroplasty with possible tendon transfer, to which she agreed.
On July 8, 2016 appellant responded to OWCP’s inquiries. She stated that she had
previously had a shoulder injury or diagnosed shoulder condition, and noted no engagement with
sports, hobbies, or activities besides going to church. In an attached statement, appellant described
working for the employing establishment since 1993, working in casing mail for 3 years and
automation for 20 years. She stated that she loaded mail onto machines, swept mail into trays,
lifted trays above her head, pulled the trays back down, and pushed carts of mail to designated
areas. Appellant noted that the injury had occurred over the course of a decade.
By decision dated August 19, 2016, OWCP denied appellant’s claim. It found that she had
not established a causal relationship between the accepted factors of her federal employment and
her diagnosed conditions. OWCP found that appellant had not provided a well-reasoned opinion
from a physician relating her current conditions to the accepted factors of her employment and had
not provided objective findings that she had sustained a condition in connection with the work
exposure. It noted that Dr. Ho’s June 16, 2016 diagnostic report did not contain a well-reasoned
opinion supported by medical rationale as to how her current condition was related to duties of her
federal employment.
By letter dated September 16, 2016, appellant, through counsel, requested a telephonic
hearing before an OWCP hearing representative.
OWCP received a report revealing that appellant underwent a left reverse total shoulder
arthroplasty and left latissimus and teres major tendon transfer with Dr. Hamid on August 4, 2016.
The procedures were completed without complication.
In a postoperative report dated September 12, 2016, Dr. Hamid noted that physical
examination of the left shoulder revealed a well-healed incision, with full digital extension and
flexion, good range of motion into the elbow, intact deltoid function, mild stiffness with forward
elevation, and external rotation to 30 degrees. He recommended that appellant restrict the use of
her left upper extremity at work. Dr. Hamid noted that he had discussed the natural history and
pathogenesis of treatment for osteoarthritis with her, explaining to her that her left shoulder
arthritis was likely secondary to her prior rotator cuff deficiency, and that her symptoms were
certainly exacerbated by her work conditions, which required significant use of her left upper
extremity with shoulder and above-the-shoulder activities. He concluded, “In this manner, it is
certainly likely that [appellant’s] work conditions accelerated her need to undergo replacement on
the left side.”
By letter dated December 14, 2016, Dr. Cecilie Only, Board-certified in family medicine,
noted that appellant was under her care for severe bilateral shoulder osteoarthritis with a rotator
cuff injury, and had last been seen on May 16, 2016 for bilateral shoulder pain. She noted that
appellant had worked at a general mail facility for several years, which included sorting mail and
overhead reaching, which had caused bilateral rotator cuff tears. Dr. Only indicated that, since her
last visit with appellant, she had undergone left shoulder surgery. Since the surgery, appellant had
begun to experience significant pain of the right shoulder, which Dr. Only noted would also require
a reversal of the total right shoulder arthroplasty. Dr. Only noted that because of appellant’s
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history of shoulder pain, dysfunction, and injury, appellant had difficulty with reaching overhead,
with heavy lifting more than 10 pounds, and with repetitive movements. She explained that it was
unclear whether appellant would ever have a full recovery, although even if she were to recover,
duties of her employment would “put [appellant’s] back into the same predicament of inability to
perform the above[-]mentioned tests.”
Appellant submitted letters dated December 22, 2016 and February 8, 2017 from certified
physician assistants.
The hearing was held on April 4, 2017. At the hearing, appellant testified that she had
previously experienced an injury to her left shoulder due to a vehicular incident that required
shoulder cuff repair, seven years prior to the claimed injury. She clarified that this injury was not
related to workers’ compensation. Appellant noted that, prior to March 2016, she did not have
problems with her shoulder. She began to experience pain in her shoulders, at first with the right
worse than the left, and had undergone surgery for the left shoulder. Appellant told her physician
that, over a period of time, she had sorted mail, lifted, and performed overhead reaching, which
caused her arms to hurt, and that it was getting worse. She continued to work light duty after her
left shoulder surgery in August 2016. Appellant alleged that, working with a delivery bar code
sorter (DBCS) machine had caused problems with her shoulders, as working with the machine
required loading it, sweeping it, lifting mail over her head, and pushing mail carts. She had
performed this type of work for 20 years and for the employing establishment for 24 years.
Appellant noted that Dr. Hamid had indicated that conditions of her work had caused problems
with her left shoulder, and noted that, apart from the vehicular incident, she had not experienced
any overt injuries to her shoulders. The hearing representative held the record open for 30 days to
submit additional reports, and advised appellant that any report should differentiate between the
effects of appellant’s underlying condition and the worsening caused by work.
By decision dated May 16, 2017, OWCP’s hearing representative affirmed OWCP’s
August 19, 2016 decision. She noted that no further evidence had been received subsequent to the
telephonic hearing of April 4, 2017. The hearing representative explained that while Dr. Hamid
had opined that appellant’s work conditions had likely accelerated her need for left shoulder
replacement, he had not provided sufficient rationale for this opinion. She noted that the medical
reports of record did not differentiate the effects of appellant’s work injury from her underlying
shoulder condition, for which she previously had surgery, and that Dr. Groman, who performed
the prior surgery, anticipated a poor prognosis even if the surgery was successful.
Appellant, through counsel, requested reconsideration of the decision dated May 16, 2017
on June 9, 2017.
In a report dated May 16, 2016, Dr. Only followed up with appellant for complaints of
bilateral shoulder pain. She noted that appellant’s pain had worsened. Dr. Only reported that
appellant sorted mail and reached overhead. She noted that appellant had a rotator cuff repair on
her left shoulder seven years before, and that appellant stated that she had retorn it. On
examination Dr. Only noted that appellant was unable to lift her left shoulder above 90 degrees,
and that her right shoulder also had limited range of motion. Appellant was able to externally
rotate her shoulders. Dr. Only diagnosed appellant with rotator cuff injury.

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On May 2, 2017 Dr. Hamid noted that appellant had been under his care since June 6, 2016.
Appellant presented with severe pain in both her right and left shoulders, with the left more
symptomatic than the right. Dr. Hamid noted that she had previously undergone rotator cuff repair
in 2007, which resulted in a satisfactory postoperative outcome. However, in the months before
appellant’s visit with him, she developed worsening pain in her bilateral shoulders. Dr. Hamid
recalled that she told him that her work activities increased the level of pain and made it more
difficult for her to use her shoulder for activities of daily living. He noted that appellant had
treatment prior to their first visit, including cortisone injections and anti-inflammatory medication.
Appellant’s x-rays at her initial presentation demonstrated end-stage rotator cuff tear arthropathy,
involving both shoulders. She underwent a left reverse total shoulder arthroplasty with Dr. Hamid,
which was completed without complications. Appellant last visited Dr. Hamid on January 23,
2017, and she continued to have improvements in her range of motion and function, but was not
fully recovered at that time. She continued to have right shoulder pain. Dr. Hamid concluded, “It
is difficult for me to give a direct causal relationship of [appellant’s] symptoms and when exactly
this began to be more symptomatic for her to the point where she required surgical intervention.
This appears to be a chronic condition that was worsened by recent activities that may include
work-type activities.”
By decision dated August 15, 2017, OWCP evaluated the merits of appellant’s claim and
denied modification of its prior decision. It found that the evidence of record was insufficient to
modify the decision of May 16, 2017, because the medical evidence did not provide sufficient
medical rationale to support that she sustained a medical condition causally related to the accepted
factors of her federal employment.
LEGAL PRECEDENT
A claimant seeking benefits under FECA5 has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including that an injury was sustained in the performance of duty as alleged, and that any specific
condition or disability claimed is causally related to the employment injury.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) medical evidence establishing the presence or existence
of the disease or condition for which compensation is claimed; (2) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; and (3) medical evidence establishing that the diagnosed condition is causally
related to the identified employment factors.7
Causal relationship is a medical question, which generally requires rationalized medical
opinion evidence to resolve the issue.8 A physician’s opinion on whether there is a causal
relationship between the diagnosed condition and the implicated employment factors must be
5

Supra note 2.

6

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

7

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

8

See Robert G. Morris, 48 ECAB 238 (1996).

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based on a complete factual and medical background.9 Additionally, the physician’s opinion must
be expressed in terms of a reasonable degree of medical certainty, and must be supported by
medical rationale, explaining the nature of the relationship between the diagnosed condition and
appellant’s specific employment factors.10
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that her bilateral
rotator cuff conditions were either caused or aggravated by the accepted factors of her federal
employment.
An April 25, 2016 report from Dr. Fleischli was received in support of appellant’s claim.
In this report, he diagnosed bilateral rotator cuff arthropathy and recommended that she consider
shoulder arthroplasty, administering a bilateral subacromial injection. However, Dr. Fleischli’s
report failed to offer an opinion on the cause of appellant’s diagnosed conditions. Similarly,
Dr. Hamid’s June 6 and 21, and August 4, 2016 reports, as well as Dr. Only’s May 16, 2016 report
and the June 16, 2016 MRI scan report, do not offer opinions on the cause of appellant’s diagnosed
conditions. Medical evidence that does not offer any opinion regarding the cause of an employee’s
condition is of limited probative value on the issue of causal relationship.12 Accordingly, these
reports are insufficient to satisfy appellant’s burden of proof on causal relationship.
In a postoperative report dated September 12, 2016, Dr. Hamid noted that he had discussed
the natural history and pathogenesis of treatment for osteoarthritis with appellant, explaining to
her that her left shoulder arthritis was likely secondary to her prior rotator cuff deficiency, and that
her symptoms were certainly exacerbated by her work conditions, which required significant use
of her left upper extremity with shoulder and above-the-shoulder activities. He noted, “In this
manner, it is certainly likely that [appellant’s] work conditions accelerated her need to undergo
replacement on the left side.” Dr. Hamid did not identify the specific employment activities he
believed either caused or contributed to appellant’s diagnosed upper extremity conditions. He also
did not provide any rationale for his expressed opinion that it was likely that her work conditions
accelerated her need to undergo surgery. As noted, a physician’s opinion on causal relationship
must be based on a complete factual and medical background, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition(s) and
appellant’s specific employment factors.13 As Dr. Hamid neither identified appellant’s specific
9

Supra note 8.

10

Id.

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

12

Willie M. Miller, 53 ECAB 697 (2002).

13

Supra note 8.

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employment duties involving shoulder and above-the-shoulder activities, nor explained how her
diagnosed upper extremity conditions were employment related, his September 12, 2016 report is
insufficient to establish causal relationship.14
By letter dated December 14, 2016, Dr. Only noted that appellant had worked at a general
mail facility for several years, which included sorting mail and overhead reaching, which had
caused bilateral rotator cuff tears. He noted that because of her history of shoulder pain,
dysfunction, and injury, she had difficulty with reaching overhead, with heavy lifting more than
10 pounds, and with repetitive movements. Dr. Only’s December 14, 2016 report failed to provide
any medical rationale to support appellant’s conclusion on causal relationship.15 A mere
conclusory opinion provided by a physician without the necessary rationale explaining how and
why the work factors were sufficient to result in the diagnosed medical condition is insufficient to
meet the claimant’s burden of proof to establish her claim.16
On May 2, 2017 Dr. Hamid noted, “It is difficult for me to give a direct causal relationship
of [appellant’s] symptoms and when exactly this began to be more symptomatic for her to the point
where she required surgical intervention. This appears to be a chronic condition that was worsened
by recent activities that may include work-type activities.” While he noted that appellant’s
condition appeared to be worsened by activities, which may include activities related to her federal
employment, this opinion was vague and speculative in nature and failed to explain the causal
relationship between her work and her condition.17 As such, it was insufficient to establish
appellant’s claim.
Finally, the letters dated December 22, 2016 and February 8, 2017, from certified physician
assistants are of no probative value to establish appellant’s claim, because physician assistants are
not considered physicians as defined by FECA.18
As noted above, appellant bears the burden of proof to establish the essential elements of
her claim. Because she has failed to provide sufficient medical evidence to establish that her
diagnosed conditions were causally related to the accepted factors of her federal employment, she
has failed to meet her burden of proof to establish her claim.
On appeal counsel contends that OWCP’s decision is contrary to fact and law. As
discussed above, appellant has not established causal relationship between her diagnosed
conditions and factors of her federal employment.

14

Id.

15

J.F., Docket No. 09-1061 (issued November 17, 2009); A.D., 58 ECAB 149 (2006).

16

J.D., Docket No. 14-2061 (issued February 27, 2015).

17

Roy L. Humphrey, 57 ECAB 238, 242 (2005); Michael E. Smith, 50 ECAB 313 (1999).

18
5 U.S.C. § 8101(2) provides that the term physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. L.L., Docket No. 13-0829 (issued August 20, 2013) (a physician assistant is not considered a physician
under FECA).

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Appellant may submit new evidence or argument as part of a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her
diagnosed bilateral rotator cuff conditions are causally related to factors of her federal
employment.
ORDER
IT IS HEREBY ORDERED THAT the August 15, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 20, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.K., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION, PORT
OF WASHINGTON-DULLES, Sterling, VA,
Employer
__________________________________________

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

Docket No. 20-0508
Issued: December 11, 2020

Case Submitted on the Record

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

JURISDICTION
On January 6, 2020 appellant filed a timely appeal from a December 13, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.

1

Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the
Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In
support of appellant’s oral argument request, he asserted that oral argument should be granted to provide him with the
opportunity to articulate the details and effects of the events that led to the filing of his claim. The Board, in exercising
its discretion, denies appellant’s request for oral argument because the arguments on appeal can adequately be
addressed in a decision based on a review of the case record. Oral argument in this appeal would further delay issuance
of a Board decision and not serve a useful purpose. As such, the oral argument request is denied and this decision is
based on the case record as submitted to the Board.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish an emotional
condition in the performance of duty.
FACTUAL HISTORY
On April 9, 2019 appellant, then a 35-year-old supervisory customs and border protection
officer, filed an occupational disease claim (Form CA-2) alleging that he experienced panic
attacks, anxiety, insomnia, and depression due to factors of his federal employment including
threats to his safety, harassment, and physical intimidation. He noted that he first became aware
of his condition and its relationship to his federal employment on October 16, 2018. On the reverse
side of the claim form, his supervisor indicated that he was unaware of appellant’s situation and
had been “just recently informed of the alleged threats that transpired in 2018.” Appellant did not
stop work.
In a development letter dated April 23, 2019, OWCP advised appellant of the additional
factual and medical evidence necessary to establish his claim and attached a questionnaire for his
completion. In a separate development letter of even date, it requested that the employing
establishment provide additional information regarding appellant’s alleged injury, including
comments from a knowledgeable supervisor on the accuracy of his allegations of threats and
explaining any points of disagreement. OWCP further requested that the employing establishment
address whether it had performed an investigation and, if so, submit the written results as well as
any other pertinent information, such as witness statements. It afforded both parties 30 days to
submit the requested evidence.
In a June 14, 2019 response, appellant related that in October 2011 he was ordered to
violate an employing establishment policy by not checking the safety of a custodial subject. He
disregarded the order and found that the subject had attempted to hang herself. In February 2018,
a few weeks after appellant had transferred to his current workstation, he was assigned to supervise
two officers who had known work performance and behavioral issues. Appellant’s immediate
supervisor told appellant that he had been made a supervisor because of his race. In the summer
of 2018, one of his supervisees, who began to show “a questionable mental state,” became fixated
on him. Appellant repeatedly informed management about her behavior. When management
finally took action by removing the officer’s firearm she passively threatened to shoot appellant.
Appellant felt unprotected by management, noting that the officer was allowed to continue
working in his location.
Appellant maintained that he experienced difficulty as a supervisor due to lack of support
from management. He e-mailed his superiors on September 13, 2018 that he was uncomfortable
supervising Officers A.S. and B.K. Appellant advised that while at work on October 1, 2018
Officer A.S. threatened him for enforcing policy. He asked his supervisor for help dealing with
Officer A.S., but his supervisor refused. Appellant began experiencing insomnia and racing
thoughts. He again asked management for help with Officer A.S. after another incident occurred
on October 31, 2018.

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Appellant described e-mails that he was submitting verifying that he had requested
assistance from management addressing issues with subordinates, including being physically
threatened. In late October 2018, Officer A.S. watched as he walked to his car at night after work
in an attempt to intimidate him. On February 7, 2019 appellant received an e-mail from M.S., a
fact finder, advising that she was inquiring into allegations at his workstation. Management treated
him differently from another officer who had been threatened. Appellant’s chief of staff told
appellant that he was not liked and should not supervise. Management instructed him not to
address Officer A.S.’s violation of the cellphone policy and assigned him a mentor based on race.
Appellant advised that management used Officer A.S. to threaten him and failed to address the
irrational behavior of an officer who thought she could feel him through walls. He described emails he had sent to management asking for help with his supervisees, Officers A.S., and B.K., as
well as the officer with mental issues. In April 2019, after filing appellant’s Form CA-2 the
employing establishment came to his house and took possession of his firearm and badge.
Management continued to force him to work with Officer A.S.
In support of his claim, appellant submitted a memorandum to the employing establishment
dated October 1, 2018. He advised that Officer A.S. had approached him and asked whether he
thought he used sick leave to avoid him. Appellant related that A.S. repeatedly asked him if he
thought A.S. was afraid of him and A.S. became “more aggressive with the apparent intent to be
physically intimidating.” Officer A.S. stated that if appellant did not stop “messing” with him
there would be problems.
Appellant submitted numerous e-mail messages. In an e-mail dated October 9, 2018, he
advised B.V., who works for the employing establishment, that Officer A.S. admitted to
approaching him aggressively and using language that could be considered threatening. Appellant
noted that he had asked for assistance from upper level management to address difficulties with
Officer A.S. and the officer with a questionable mental state, but had been ignored.
In e-mails dated December 25, 2018 and January 29, 2019, appellant requested that the
employing establishment update him on the status of its investigation into the threat made against
him by Officer A.S. on October 1, 2018. In an April 5, 2019 e-mail response, the employing
establishment advised that the information into allegations of misconduct could not be disclosed
for privacy reasons.
In an e-mail dated February 14, 2019, A.B., an Equal Employment Opportunity (EEO)
officer who works for the employing establishment, noted that appellant had advised him that a
subordinate had physically and verbally threatened him on October 1, 2018 and that management
had not taken any action. EEO Officer A.B. noted that appellant had decided not to file an EEO
complaint.3
In a development letter dated October 9, 2019, OWCP again requested that the employing
establishment provide comments from a knowledgeable supervisor on the accuracy of appellant’s
allegations and any additional information such as witness statements. It enclosed a copy of his
June 14, 2019 statement.
3

Appellant additionally submitted medical evidence in support of his claim.

3

Thereafter, OWCP received a July 24, 2019 letter from the employing establishment to
appellant transferring his workstation and informing him that he could again carry a firearm.
By decision dated December 13, 2019, OWCP denied appellant’s emotional condition
claim. It found that he had not established any compensable factors of employment and thus had
not established an injury in the performance of duty.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim including that he or she sustained an injury in the
performance of duty, and that any specific condition or disability from work for which he or she
claims compensation is causally related to that employment injury.5 To establish an emotional
condition in the performance of duty, the claimant must submit the following: (1) factual evidence
identifying employment factors or incidents alleged to have caused or contributed to the condition;
(2) medical evidence establishing an emotional condition; and (3) rationalized medical opinion
evidence establishing that the identified compensable employment factors are causally related to
the emotional condition.6
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,7 the Board explained
that there are distinctions as to the type of employment situations giving rise to a compensable
emotional condition arising under FECA. There are situations where an injury or an illness has
some connection with the employment, but nevertheless does not come within the concept or
coverage of workers’ compensation.8 When an employee experiences emotional stress in carrying
out his or her employment duties and the medical evidence establishes that the disability resulted
from an emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability results
from his or her emotional reaction to a special assignment or other requirement imposed by the
employing establishment, or by the nature of the work.9
OWCP’s procedures provide:
“An employee who claims to have had an emotional reaction to conditions of
employment must identify those conditions. The [claims examiner] must carefully
develop and analyze the identified employment incidents to determine whether or
not they in fact occurred and if they occurred whether they constitute factors of the
4

Supra note 2.

5

G.G., Docket No. 18-0432 (issued February 12, 2019).

6

B.Y., Docket No. 17-1822 (issued January 18, 2019).

7

28 ECAB 125 (1976).

8

See G.R., Docket No. 18-0893 (issued November 21, 2018).

9

Supra note 6.

4

employment. When an incident or incidents are the alleged cause of disability, the
[claims examiner] must obtain from the claimant, agency personnel and others,
such as witnesses to the incident, a statement relating in detail exactly what was
[stated] and done. If any of the statements are vague or lacking detail, the
responsible person should be requested to submit a supplemental statement
clarifying the meaning or correcting the omission.”10
OWCP’s regulations provide that an employing establishment who has reason to disagree
with an aspect of the claimant’s allegation should submit a statement that specifically describes
the factual argument with which it disagrees and provide evidence or argument to support that
position.11 Its regulations further provide in certain types of claims, such as a stress claim, a
statement from the employing establishment is imperative to properly develop and adjudicate the
claim.12
ANALYSIS
The Board finds that the case is not in posture for decision.
Appellant attributed his condition, in part, to supervising difficult employees. He
contended that one of his subordinates became fixated on him after she deteriorated mentally and
threatened to passively shoot him. Appellant related that, another subordinate, Officer A.S.,
physically threatened him. He advised that he had requested, but did not receive assistance from
management.
Appellant further attributed his emotional condition to harassment and
discrimination by management and his subordinates and to administrative actions taken by the
employing establishment.
OWCP, in development letters dated April 23 and October 9, 2019, requested that the
employing establishment provide comments from a knowledgeable supervisor regarding the
accuracy of appellant’s allegations. The employing establishment did not respond to its request.
The Board finds that it is unable to make an informed decision in this case as the employing
establishment did not respond to OWCP’s requests for information.13 As discussed, OWCP’s
procedures provide that, in emotional condition cases, a statement from the employing
establishment is necessary to adequately adjudicate the claim.14
Although it is a claimant’s burden of proof to establish his claim, OWCP is not a
disinterested arbiter, but rather, shares responsibility in the development of the evidence,

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.17(j) (July 1997); see
also S.L., Docket No. 17-1780 (issued March 14, 2018).
11

20 C.F.R. § 10.117(a); see also D.L., Docket No. 15-0547 (issued May 2, 2016).

12

Supra note 10 at Chapter 2.800.7(a)(2) (June 2011).

13

G.I., Docket No. 19-0942 (issued February 4, 2020); V.H., Docket No. 18-0273 (issued July 27, 2018).

14

Supra note 11. See M.T., Docket No. 18-1104 (issued October 9, 2019).

5

particularly when such evidence is of the character normally obtained from the employing
establishment.15
The case will accordingly be remanded for OWCP to further develop the evidence.
remand, OWCP shall request that the employing establishment provide a detailed statement
relevant evidence and/or argument regarding appellant’s allegations. Following this and
necessary further development, it shall issue a de novo decision regarding whether he
established an emotional condition in the performance of duty.

On
and
any
has

CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the December 13, 2019 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: December 11, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

15

R.A., Docket No. 17-1030 (issued April 16, 2018); K.W., Docket No. 15-1535 (issued September 23, 2016).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.K., Appellant
and
DEPARTMENT OF THE ARMY, ILLINOIS
NATIONAL GUARD, YOUTH CHALLENGE
PROGRAM, Springfield, IL, Employer
__________________________________________

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

Docket No. 08-615
Issued: August 5, 2008

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 December 26, 2007 appellant filed a timely appeal from a decision of the Office of
Workers’ Compensation Programs dated November 19, 2007 that denied his claim for a
traumatic injury alleged to have occurred on September 28, 2007. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of this claim.
ISSUE
The issue is whether appellant has met his burden of proof to establish his eligibility for
benefits under the Federal Employees’ Compensation Act.

FACTUAL HISTORY
On October 4, 2007 appellant, then 16 years old, filed a traumatic injury claim alleging
that he was injured in an altercation in a parking lot of a gym on September 29, 2007.1 While not
containing any further detail of the alleged injury, the form also reflected that appellant’s
employer was the Illinois National Guard, Lincoln’s Challenge Academy and also listed the
“Department of the Army, TAG-IL” as the employing establishment.2 The claim form stated
that appellant was a cadet, Grade 2, Step 1, at the time the form was filed.
The case record contains several notes and a bill from Carle Foundation Physician
Services. The unsigned Carle Foundation Hospital report of an emergency department visit on
September 29, 2007 notes an “[o]pen wound of face, unspecified site, without mention of
complication.” The record also contains a Carle Clinic medical note, electronically signed by
Ginny Brown, N.P.C. on October 5, 2007 but dated October 4, 2007. The note indicates the
removal of sutures from appellant’s left upper lip, that the laceration was healing well and that
appellant was released without restrictions. By way of history, the note recites that appellant was
injured on September 28, 2007 when he was hit in the face by a classmate. Appellant had visited
the emergency room where three sutures were placed in his lip.
By letter dated October 17, 2007, the Office requested additional information which
asked for additional medical information and also asked “Was your injury caused by your own
misconduct or your intent to injure yourself or other(s)?” The note of October 4, 2007 was
received by the Office October 23, 2007 and the emergency visit note was received
November 23, 2007.3 By decision dated November 19, 2007, the Office accepted that the
claimed events occurred, but denied the claim because the medical evidence failed to provide a
diagnosis which could be connected with the event.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act 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 Federal Employees’
Compensation Act, that the claim was timely filed within the applicable time limitation period of
1

Compare J.M., Docket 07-2382 (issued June 9, 2008) (the facts are similar, in that, appellant alleged assault
while enrolled as a cadet in the Youth Challenge Program). The Office affirmed on insufficient medical evidence
with no discussion of employment status or fact of injury.
2

The National Guard Youth Challenge Program provides services for at-risk youth age 16 to 18 in a disciplined
residential setting to help them improve their academic performance and gain positive values. There is no
expectation that cadets will join the military although while in the program there is a component of community
service. The program is now funded by State and Department of Defense sources. It was established by section
1091 of the National Defense Authorization Act for 1993. The Office regards cadets as civil employees for
purposes of the Federal Employees’ Compensation Act similar in status to Job Corps enrollees.
3

The unsigned emergency room report was not received by the Office until after the denial of the claim and is
therefore not evidence before the Board. The Board may consider only evidence of record on the date of the
decision appealed and may not consider “new evidence” submitted after the Office decision. Ricky Greenwood, 57
ECAB 462 (2006); Sandra D. Pruitt, 57 ECAB 441 (2005).

2

the Federal Employees’ Compensation Act, 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 causally related to the employment injury. These are the essential elements of each
and every compensation claim regardless of whether the claim is predicated upon a traumatic
injury or an occupational disease.4 These essential elements must be established by the weight of
the evidence.5
Appellant alleges a traumatic injury arising out of a fight or assault. 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. 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 Larson, in addressing assaults, notes that, when
it is clear that the origin of the assault is purely private and personal and the employment
contributed nothing to the episode, whether by engendering or exacerbating the quarrel or
facilitating the assault, the assault should be held noncompensable. An assault, to be
compensable, must either arise in the course of employment, or if it does not, must be directed at
the employee because of his employment.7 Generally, the Board has held that personal disputes
between coworkers are not compensable if they arise outside the scope of employment.8
ANALYSIS
Appellant must establish all the elements of his claim in order to prevail. Before the
medical evidence submitted can be considered, he must prove his employment, the time, place
and manner of injury, a resulting personal injury and that his injury arose in the performance of
his duty. Appellant failed to adequately describe the circumstances of his injury although the
Office requested this information in the letter dated October 17, 2007. It is not disputed that
appellant suffered a cut lip and required medical care. Assuming that he was injured in an
altercation, the Office must determine whether such occurrence was related to any factor of
employment. Appellant must offer evidence to establish a connection between the altercation
and his employment. However, there is no statement or other information in the file to explain
exactly what happened or why, and the Office did not have any evidence upon which to base a
conclusion that the events alleged in the claim occurred in the performance of duty.

4

David P. Sawchuk, 57 ECAB 316 (2006); Alvin V. Gadd, 57 ECAB 172 (2005); Elizabeth H. Kramm
(Leonard O. Kramm), 57 ECAB 117 (2005).
5

Michael S. Mina, 57 ECAB 379 (2006); Amelia S. Jefferson, 57 ECAB 183 (2005).

6

Willie J. Clements, Jr., 43 ECAB 244 (1991).

7

Bruce Wright, 43 ECAB 284 (1991).

8

George A. Rodriguez, 57 ECAB 224 (2005).

3

Until appellant offers evidence to prove the fact of injury, its time, place and manner and
that the injury was causally related to his federal employment, the Office need not proceed to
evaluate the medical evidence in the file.
CONCLUSION
The Board finds that appellant has not established an event in the performance of duty.
Appellant failed to establish those primary facts which would allow for an evaluation of the
medical evidence.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 19, 2007 is affirmed as modified.
Issued: August 5, 2008
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

4


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

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Appearances:
Capp P. Taylor, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0505
Issued: July 24, 2018

Case Submitted on the Record

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

JURISDICTION
On January 8, 2018 appellant, through counsel, filed a timely appeal from a July 19, 2017
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180
days has elapsed from the last merit decision dated January 13, 2016, to the filing of this appeal,
the Board lacks jurisdiction to review the merits of her claim pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On July 17, 2015 appellant, then a 44-year-old city letter carrier, filed an occupational
disease claim (Form CA-2) alleging that she sustained severe disc desiccation at L5-S1, bilateral
neural foraminal narrowing, and a tear at L4-5 on the right side causally related to factors of her
federal employment. She attributed her condition to lifting, carrying, and falls at work, including
a fall that resulted in a fractured pelvis. Appellant stopped work on July 17, 2015.
A June 25, 2015 magnetic resonance imaging (MRI) scan study revealed severe L5-S1
degenerative disc disease, mild foraminal narrowing, and a right foraminal annular tear at L4-5.
In a July 15, 2015 work excuse, Dr. Charles Whitaker, who is Board-certified in family
practice, found that appellant could not work pending a neurosurgery consultation.
By decision dated September 15, 2015, OWCP denied appellant’s occupational disease
claim. It found that she had not established a diagnosed medical condition causally related to the
accepted work factors.
On October 5, 2015, appellant requested reconsideration and submitted a form report dated
September 10, 2015 from Dr. Hunter Brumblay, a Board-certified neurosurgeon. Dr. Brumblay
diagnosed lumbar degenerative disc disease, severe at L5-S1, a loss of disc height, and neural
foraminal narrowing. He indicated that appellant’s symptoms began a couple of years earlier after
a fall, and found that she was totally disabled from work from August 19 to October 21, 2015.3
By decision dated January 13, 2016, OWCP denied modification of its September 15, 2015
decision. It found that the medical evidence submitted was insufficient to establish that appellant
sustained a diagnosed condition or disability as a result of the identified work factors.
Dr. Brumblay, on June 27, 2017, described appellant’s job duties and noted that she
fractured her pelvis in 2014. He discussed the findings on the June 25, 2015 MRI scan study of
the lumbar spine. Dr. Brumblay opined that the degeneration at L5-S1 was too significant to be
attributable to age-related changes. He found that appellant’s extensive walking, climbing stairs,
bending, and lifting while performing her work duties “would certainly have contributed at the site
of L5-S1 and the foraminal narrowing bilaterally.” Dr. Brumblay opined that she was disabled
from her usual employment for the period September 2, 2015 until March 31, 2016.
On July 13, 2017 appellant, through counsel, requested reconsideration. Counsel asserted
that the newly submitted June 27, 2017 medical report from Dr. Brumblay clearly explained how
the diagnosed conditions were related to employment factors.

3

Appellant also submitted a form report completed by a nurse practitioner.

2

By decision dated July 19, 2017, OWCP denied appellant’s request for reconsideration as
it was untimely filed and failed to demonstrate clear evidence of error. It found that she had not
submitted evidence sufficient to raise a substantial question regarding the correctness of its denial
of her occupational disease claim.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.4 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.5 Timeliness is determined by the document receipt
date (i.e., the “received date” in OWCP’s Integrated Federal Employees’ Compensation System).6
Imposition of this one-year filing limitation does not constitute an abuse of discretion.7
OWCP may not deny an application for review solely because the application was untimely
filed. When an application for review is untimely filed, it must nevertheless undertake a limited
review to determine whether the application demonstrates clear evidence of error.8 If an
application demonstrates clear evidence of error, OWCP will reopen the case for merit review.9
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP,10 is positive, precise, and explicit and manifests on its face that
OWCP committed an error.11 The evidence must not only be of sufficient probative value to create
a conflict in the medical opinion or demonstrate a clear procedural error, but must also shift the
weight of the evidence in favor of the claimant and raise a substantial question as to the correctness
of OWCP’s decision for which review is sought.12
Evidence that does not raise a substantial question as to the correctness of OWCP’s
decision is insufficient to demonstrate clear evidence of error. It is not enough merely to show
that the evidence could be construed so as to produce a contrary conclusion. A determination of
whether the claimant has demonstrated clear evidence of error entails a limited review of how the
evidence submitted with the reconsideration request bears on the evidence previously of record.13
4

5 U.S.C. § 8128(a); see also Y.S., Docket No. 08-0440 (issued March 16, 2009).

5

20 C.F.R. § 10.607(a).

6

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

7

E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

8

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

9

Id. at § 10.607(b); Federal (FECA) Procedure Manual, supra note 6 at Chapter 2.1602.5(a) (February 2016).

10

See A.M., Docket No. 17-1434 (issued January 2, 2018); Dean D. Beets, 43 ECAB 1153 (1992).

11

See D.D., Docket No. 17-1750 (issued March 8, 2018); Leona N. Travis, 43 ECAB 227 (1991).

12

Robert G. Burns, 57 ECAB 657 (2006).

13
See J.S., Docket No. 10-0385 (issued September 15, 2010); B.W., Docket No. 10-0323 (issued
September 2, 2010).

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ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
request for reconsideration. OWCP’s regulations14 and procedures15 establish a one-year time
limit for requesting reconsideration, which begins on the date of the original OWCP decision. The
most recent merit decision was issued by OWCP on January 13, 2016. Appellant had one year
from the date of this decision to make a timely request for reconsideration. Since OWCP did not
receive her request until July 13, 2017, it was filed outside of the one-year time period and, thus,
untimely filed. Consequently, appellant must demonstrate clear evidence of error by OWCP in
the denial of her claim.16
The Board finds that appellant has not demonstrated clear evidence of error by OWCP in
its January 13, 2016 decision. OWCP denied her occupational disease claim after finding that the
medical evidence of record was insufficient to establish a diagnosed condition causally related to
the accepted work factors.
Appellant did not submit the type of positive, precise, and explicit evidence which
manifests on its face that OWCP committed an error in its January 13, 2016 decision.17 In a report
dated June 27, 2017, Dr. Brumblay attributed her extensive disc degeneration at L5-S1 in part to
her work duties, and found that she was disabled from September 2, 2015 until March 31, 2016.
While Dr. Brumblay’s opinion provides some support for causal relationship, it is insufficient to
raise a substantial question as to the correctness of OWCP’s decision.18 The submission of a
detailed, well-rationalized medical report which, if submitted before the denial was issued, would
have created a conflict in medical opinion requiring further development, does not constitute clear
evidence of error.19 It is not enough to show that evidence could be construed so as to produce a
contrary conclusion.20 Instead, the evidence must shift the weight in appellant’s favor.21 The
Board finds that the evidence submitted does not rise to the level of clear evidence of error.
On appeal counsel asserts that Dr. Brumblay’s June 27, 2017 report is sufficient to meet
the standard of proof imposed by an untimely request for reconsideration. As discussed, however,

14

See supra note 4; see Alberta Dukes, 56 ECAB 247 (2005).

15

Federal (FECA) Procedure Manual, supra note 6 at Chapter 2.1602.4 (February 2016); see also Veletta C.
Coleman, 48 ECAB 367, 370 (1997).
16

20 C.F.R. § 10.607(b); S.M., Docket No. 16-0270 (issued April 26, 2016).

17

See D.F., Docket No. 17-0745 (issued March 14, 2018).

18

See A.M., Docket No. 17-1900 (issued February 22, 2018).

19

See D.D., supra note 11; D.G., 59 ECAB 455 (2008).

20

See D.D., supra note 11.

21

See M.N., Docket No. 15-0758 (issued July 6, 2015).

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this report is not sufficient to shift the weight of the evidence in her favor and raise a substantial
question as to the correctness of OWCP’s January 13, 2016 decision.22
Appellant has not raised an argument or submitted any evidence that manifests on its face
that OWCP committed an error in denying her claim. The evidence, consequently, is insufficient
to demonstrate clear evidence of error.23
On appeal counsel contends that the June 27, 2017 report from Dr. Brumblay is sufficiently
detailed and rationalized to meet the standard of proof imposed by an untimely request for
reconsideration. As explained above, the Board finds that the evidence submitted with the
untimely reconsideration request is insufficient to meet appellant’s burden of proof.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the July 19, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: July 24, 2018
Washington, DC

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

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

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

22

See A.M., supra note 18; see also J.P., Docket No. 17-1024 (issued December 27, 2017).

23

See M.B., Docket No. 17-1505 (issued January 9, 2018).

5


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

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

Docket No. 08-2237
Issued: January 29, 2009

Case Submitted on the Record

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

JURISDICTION
On August 12, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ nonmerit decision dated May 29, 2008. Under 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the denial of hearing in this case.
ISSUE
The issue is whether the Office properly denied appellant’s request for an oral hearing
before an Office hearing representative.
FACTUAL HISTORY
On August 18, 1993 appellant, a 46-year-old boiler plant operator working for the United
States Air Force, filed a claim for benefits alleging that he injured his left knee in the
performance of duty. The Office accepted the claim for left knee strain. Appellant subsequently
obtained employment with the U.S. Postal Service as a mail handler. He filed additional claims
for benefits which were accepted for right knee strain, left knee strain, left knee medial meniscus
tear, left anterior cruciate ligament (ACL) tear and aggravation of ACL ligament graft. The

Office granted appellant schedule awards for 7 percent permanent impairment of the right lower
extremity on the following dates and 19 percent permanent impairment of the left lower
extremity. In a decision dated January 11, 2006, it found that appellant was not entitled to an
additional award for left lower extremity impairment.
By letter postmarked May 9, 2008, appellant requested an oral hearing.
By decision dated May 29, 2008, the Office denied appellant’s request for an oral
hearing. It stated that his request was postmarked May 9, 2008, which was more than 30 days
after the issuance of the Office’s January 11, 2006 decision, and that he was therefore not
entitled to a hearing as a matter of right. The Office nonetheless considered the matter in relation
to the issue involved and denied appellant’s request on the grounds that the issue was factual and
medical in nature and could be addressed through the reconsideration process by submitting
additional evidence.
LEGAL PRECEDENT
Section 8124(b)(1) of the Federal Employees’ Compensation Act provides that a claimant
is entitled to a hearing before an Office representative when a request is made within 30 days
after issuance of and Office’s final decision.1 A claimant is not entitled to a hearing if the
request is not made within 30 days of the date of issuance of the decision as determined by the
postmark of the request.2 The Office has discretion, however, to grant or deny a request that is
made after this 30-day period.3 In such a case, it will determine whether a discretionary hearing
should be granted or, if not, will so advise the claimant with reasons.4
ANALYSIS
Appellant’s May 9, 2008 request for a hearing was postmarked more than 30 days after
the Office’s January 11, 2006 decision denying compensation for an additional schedule award.
He is not entitled to a hearing as a matter of right. The Office considered whether to grant a
discretionary hearing and advised appellant that he could pursue his claim through the
reconsideration process. Appellant may address the issue in this case by submitting new and
relevant evidence to the Office with a request for reconsideration. The Board finds that the
Office properly exercised its discretion in denying his request for a hearing. The Board will
affirm the Office’s May 29, 2008 decision denying appellant an oral hearing.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for an oral hearing
before an Office hearing representative.
1

5 U.S.C. § 8124(b)(1).

2

20 C.F.R. § 10.131(a)(b).

3

William E. Seare, 47 ECAB 663 (1996).

4

Id.

2

ORDER
IT IS HEREBY ORDERED THAT the May 29, 2008 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: January 29, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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and
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U.S. POSTAL SERVICE, POST OFFICE,
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Atlanta, GA, Employer
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___________________________________________ )
E.L., Appellant

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

Docket No. 08-2194
Issued: September 2, 2009

Case Submitted on the Record

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

JURISDICTION
On August 6, 2008 appellant filed a timely appeal from a July 14, 2008 decision of the
Office of Workers’ Compensation Programs which denied his request for reconsideration.
Because more than one year has elapsed between the most recent merit decision dated July 6,
2007 and the filing of this appeal, the Board lacks jurisdiction to review the merits of appellant’s
claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On July 29, 2002 appellant, then a 37-year-old mail processor, injured his back at work
when his chair collapsed. He stopped work on that day. The Office accepted his claim for
lumbosacral sprain and strain and paid compensation benefits.

Appellant sought treatment from Dr. Ralph D’Auria, a Board-certified orthopedic
surgeon, from June 30 to October 28, 2003. Dr. D’Auria diagnosed a large and extruded
herniated disc at L3-4 with radiculopathy at L3 and L4. He returned appellant to work in a fulltime sedentary position. In an October 15, 2003 report, Dr. D’Auria found that, under the fifth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment,1 (A.M.A., Guides) appellant had a 15 percent impairment of the whole person. An
electromyogram (EMG) dated July 15, 2003 revealed L3-4 right-sided lumbosacral
radiculopathy. The Office subsequently referred appellant to a second opinion physician and an
impartial medical examiner.
On July 2, 2004 appellant filed a claim for a schedule award. He submitted an
August 23, 2004 report from Dr. D’Auria who opined that appellant had a 38 percent permanent
impairment of the lower extremities. An Office medical adviser reviewed Dr. D’Auria’s
findings and opined that appellant had no impairment of either lower extremity.
In an April 29, 2005 decision, the Office denied appellant’s claim for a schedule award.
Appellant requested an oral hearing which was held on February 22, 2006. In a May 19,
2006 decision, the hearing representative affirmed the April 29, 2005 decision.
On May 17, 2007 appellant requested reconsideration and submitted a May 3, 2006
report from Dr. D’Auria who noted that appellant reached maximum medical improvement and
opined that he had five percent whole person impairment under the A.M.A., Guides.
In a decision dated July 6, 2007, the Office denied modification of the May 19, 2006
decision. It found that the medical evidence did not establish that appellant had a ratable
permanent impairment due to his accepted low back condition.
In a letter dated June 26, 2008, appellant requested reconsideration. He submitted a
June 25, 2008 affidavit from Dr. Yirga Takeste, a Board-certified internist, who treated him since
July 2002 for work-related injuries occurring on July 29, 2002. Dr. Takeste noted that appellant
injured his back in 1995 while in the military and on July 29, 2002 while at work. He diagnosed
herniated discs at L3-4 and L4-5. Dr. Takeste noted that appellant experienced symptoms and
injuries from his work injury which included chronic low back pain with occasional numbness
and tingling in the lower extremities. He limited appellant to performing only light duty.
Dr. Takeste concurred with the disability rating of Dr. D’Auria of October 15, 2003. He circled
“yes” to the question of whether, within a reasonable degree of medical certainty, appellant’s
lower extremity impairment was related to the July 29, 2002 work injury. Dr. Takeste circled
“no” in response to a question as to whether he agreed with the medical adviser with regard to
whether there was evidence of radiculopathy in appellant’s lower extremities. He noted “yes”
that he disagreed with the medical adviser who found that there was no evidence of impairment
to the spinal nerve roots causing sensory loss, pain or motor deficits.

1

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

2

In a decision dated July 14, 2008, the Office denied appellant’s reconsideration request
on the grounds that his letter did not raise substantive legal questions or include new and relevant
evidence and was insufficient to warrant further merit review.
LEGAL PRECEDENT
Under section 8128(a) of the Federal Employees’ Compensation Act,2 the Office has the
discretion to reopen a case for review on the merits. It must exercise this discretion in
accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal
regulations,3 which provide that a claimant may obtain review of the merits of his or her written
application for reconsideration, including all supporting documents, sets forth arguments and
contain evidence which:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(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].”
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.4
ANALYSIS
The Office’s July 14, 2008 decision denied appellant’s reconsideration request, without
conducting a merit review, on the grounds that the evidence submitted did not raise substantive
legal questions or include new and relevant evidence.
However, with his June 26, 2008 reconsideration request, appellant submitted relevant
and pertinent evidence not previously considered by the Office. The July 6, 2007 decision
denied appellant’s claim for a schedule award on the grounds that the medical evidence was
insufficient to establish work-related permanent impairment. Appellant submitted a June 25,
2008 affidavit from Dr. Takeste who had not previously rendered an opinion regarding
permanent impairment. Dr. Takeste concurred with the disability rating of Dr. D’Auria of
October 15, 2003. He circled “yes” to the question of whether, within a reasonable degree of
medical certainty appellant’s lower extremity impairment was related to the July 29, 2002 work
injury. Dr. Takeste noted appellant’s treatment and diagnosis and advised that his symptoms and
injuries from the work injury caused chronic low back pain with occasional numbness and
2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.606(b).

4

Id. at § 10.608(b).

3

tingling in the lower extremities. He circled “yes” to a question asking whether he disagreed
with the medical adviser who found that there was no evidence of impairment to the spinal nerve
roots causing sensory loss, pain or motor deficits. This particular evidence is relevant as the
opinion of Dr. Takeste in the report addresses the underlying point at issue, specifically whether
appellant established that he had a ratable impairment due to the work-related condition of
lumbosacral strain. This is especially important because the Office in its decision dated July 6,
2007 denied appellant’s claim on the grounds that the evidence submitted was insufficient to
establish that he had a ratable impairment due to his work-related injury of July 29, 2002. While
this evidence may be of limited probative value, the Board has held that the requirement for
reopening a claim for merit review does not include the requirement that a claimant must submit
all evidence which may be necessary to discharge his or her burden of proof. Instead, the
requirement pertaining to the submission of evidence in support of reconsideration only specifies
that the evidence be relevant and pertinent and not previously considered by the Office.5 The
Board finds that, in accordance with 20 C.F.R. § 10.606(b)(2)(iii), the new evidence submitted
by appellant was sufficient to require reopening of his claim for further review on its merits.
Therefore, the Office in its decision dated July 14, 2008 improperly refused to reopen
appellant’s claim for further review on its merits under 5 U.S.C. § 8128. Consequently, the case
must be remanded for the Office to reopen his claim for a merit review. Following this and such
other development as deemed necessary, the Office shall issue an appropriate merit decision on
appellant’s claim.
CONCLUSION
The Board finds that the Office, in its decision dated July 14, 2008, improperly denied
appellant’s request for reconsideration of his case on its merits.

5

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

4

ORDER
IT IS HEREBY ORDERED THAT the July 14, 2008 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to the Office for further
development in accordance with this decision.
Issued: September 2, 2009
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF THE ARMY, ANNISTON
ARMY DEPOT, Anniston, AL, Employer
__________________________________________

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Appearances:
Ray VanSchoubroek, for the appellant
Office of Solicitor, for the Director

Docket No. 09-1297
Issued: March 19, 2010

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 April 22, 2009 appellant filed a timely appeal from the November 10, 2008 merit
decision of the Office of Workers’ Compensation Programs denying a claimed March 12, 2008
injury and a March 25, 2009 nonmerit decision of the Office denying further merit review of her
claim. 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 met her burden of proof to establish that she
sustained an injury in the performance of duty on March 12, 2008; and (2) whether the Office
properly denied appellant’s request for further review of the merits of her claim pursuant to
5 U.S.C. § 8128(a).
FACTUAL HISTORY
On July 9, 2008 appellant, then a 50-year-old general equipment mechanic helper, filed a
traumatic injury claim alleging that she sustained a left shoulder injury at work on

March 12, 2008. Regarding the nature of the injury, she stated, “I was driving forklift moving a
lot of baskets from the booths turning the wheel back and forth with my left arm. It popped and
swelled up.”
In an April 16, 2008 report, Dr. Joshua A. Crum, an attending Board-certified orthopedic
surgeon, stated that appellant reported that she had a job as a forklift operator and had
experienced at least six weeks of significant shoulder pain that started back in March 2008 and
had gotten progressively worse. He discussed diagnostic testing and diagnosed left shoulder
impingement and rotator cuff tear.
On May 1, 2008 Dr. Lyle Cain, an attending Board-certified orthopedic surgeon,
performed a rotator cuff repair, subacromial decompression and distal clavicle coplaning on
appellant’s left shoulder. In the history portion of the surgical report, he stated that she reported
a two-month history of left shoulder weakness and pain.
On July 23, 2008 the Office requested that appellant submit additional factual and
medical evidence in support of her claim.
In a March 12, 2008 report, Dr. Paul Ryan, an attending chiropractor, stated that
appellant reported experiencing symptoms in her neck, thoracic spine, shoulders and arms since
January 25, 2008.1 The findings of April 2008 magnetic resonance imaging (MRI) scan testing
of her left shoulder revealed hypertrophic degenerative changes of the acromioclavicular joint,
complete rotator cuff tear with slight retraction of the supraspinatus and fluid in both the joint
space and the subacromial bursa. In an August 20, 2008 report, a physical therapist indicated
that appellant reported that her neck and shoulder had begun to bother her during the last year.
The therapist stated that she received chiropractic care, which helped with her neck pain but that
her shoulder pain increased.2
In a September 5, 2008 decision, the Office denied appellant’s claim on the grounds that
she did not submit sufficient medical evidence to establish that she sustained an injury in the
performance of duty on March 12, 2008.3
In a September 23, 2008 statement, Horace Gibbons, appellant’s immediate supervisor,
testified that she operated a 6,000-pound forklift, which required her to move materiel and pull
her basket around to pick up such materiel. He indicated that on March 12, 2008 he saw
appellant in tears and observed that her left shoulder had a large knot. Mr. Gibbons asked her to
go to the clinic, but she did not want to because she was a term employee. He told appellant that
the injury would not be held against her. Mr. Gibbons stated, “I truly believe that her injury is
1

Dr. Ryan obtained cervical x-rays on March 12, 2008 which showed degenerative disease between C2-3 and
C6-7. He found that appellant was partially disabled beginning March 26, 2008 due to a cervical disc bulge. In an
administrative form signed on March 12, 2008, appellant indicated “no” in response to a question regarding whether
her medical condition was work related.
2

On a July 7, 2008 form, a nurse indicated that appellant’s condition was work related.

3

The Office accepted that the factual evidence established the occurrence of a work incident on March 12, 2008,
i.e., turning a wheel while operating a forklift on that date.

2

job related. She was alright at roll call at 7:00 a.m. that morning.” In a September 24, 2008
statement, Larry McConally, chief of the reciprocating drive train division, stated that on
March 12, 2008 Mr. Gibbons told him that appellant injured her left arm or shoulder while
operating her forklift. Mr. Gibbons also told him that she was fine when she was performing her
duties earlier that morning, but that she came to him later that day complaining of shoulder pain.
Mr. McConally stated, “Mr. Gibbons and I both believe [that appellant] was injured on the job
performing her duties. Mr. Gibbons observed [her] performing her full range of duties earlier
that day.”
Appellant also submitted statements from several other coworkers, which were produced
in September 2008. Kristi Harper testified that on March 12, 2008 she saw appellant driving her
forklift while holding onto her shoulder as though she were in pain. She asked appellant what
was wrong and she told her about a “pop” in her left shoulder. Ms. Harper stated, “I told her I
thought she needed to go to the Dear Clinic as soon as possible even though she was scared
about turning it in because she was a term employee.” Carolyn Shealey testified that on
March 12, 2008 she noticed redness in appellant’s face and that upon inquiry she stated that she
had excruciating pain in her left shoulder. Ms. Shealey indicated that appellant was in tears and
had swelling in her shoulder and noted that she left work shortly after this encounter. Jerome
Shealey testified that on March 12, 2008 appellant came to him and let him know that her
shoulder was bothering her. He noticed that she had some swelling around her left shoulder and
that she seemed to be in pain. Donald Reynolds indicated that appellant’s job as forklift operator
required her to engage in constant pushing, pulling and lifting. On the morning of March 12,
2008 he noticed that she appeared to be in a great deal of pain and she mentioned she was
concerned about her job. Mr. Reynolds informed appellant that it was very important that she
report her injury to her supervisor.4
In a September 11, 2008 report, Dr. Vance G. Moore, an attending Board-certified family
practitioner, stated that he saw appellant on March 27, 2008 “with a history of left shoulder pain
that occurred at work on March 12, 2008.” Appellant reported that she hurt her left shoulder at
work and she subsequently saw Dr. Ryan before coming to see him on March 27, 2008.
Dr. Moore stated that she was found to have a complete tear of the rotator cuff and was sent for
consultation and ultimately surgery with Dr. Cain. He noted, “In my opinion, the damage to her
shoulder was a result of her injury at work on March 12, 2008.”
In a September 19, 2008 report, Dr. Ryan indicated that appellant first consulted him on
March 12, 2008 when she stated that she had injured her left shoulder at work earlier that
morning. Appellant reported that she was working and felt a sharp “pop” feeling along her left
posterior shoulder. She also stated that she had been having cervical, upper and mid thoracic
pain for approximately six weeks, which was unrelated to the injury earlier that day. Dr. Ryan
stated, “Based upon her history, the mechanism of the injury, description of the incident and
subsequent MRI [scan] findings, it is my opinion that her left shoulder damage was a result of
her injury at work on March 12, 2008.”

4

Most of the coworkers reported that they had seen appellant earlier in the day on March 12, 2008 and that she
appeared to be fine at that time.

3

In a September 29, 2008 report, Dr. Cain stated that appellant was initially injured on
March 12, 2008 “with beginning of shoulder pain and a pop that occurred at work at the
Anniston Army Depot.” He noted that, after seeing Dr. Ryan and Dr. Moore, she was referred to
him and he performed a left rotator cuff repair on May 1, 2008. Dr. Cain stated, “Based on the
history I reviewed as well as notes from [Dr.] Ryan as well as Dr. Moore, it certainly appears
that her rotator cuff injury and tear, which I repaired surgically was related to her injury at work
on March 12, 2008.”
In a November 10, 2008 decision, the Office affirmed its September 5, 2008 decision as
modified to reflect that appellant’s claim was denied because she did not establish the occurrence
of a work incident on March 12, 2008. As appellant’s claim was denied on a factual basis, the
Office did not further evaluate the medical evidence of record.
Appellant requested reconsideration and submitted a December 21, 2008 report of
Dr. Cain. In a March 25, 2009 decision, the Office denied her request for further review of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
An employee who claims benefits under the Federal Employee’s Compensation Act5 has
the burden of establishing the occurrence of an injury at the time, place and in the manner
alleged, by a preponderance of the reliable, probative and substantial evidence.6 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 subsequent course of action.7 An
employee has not met her burden of proof of establishing the occurrence of an injury when there
are such inconsistencies in the evidence as to cast serious doubt upon the validity of the claim.8
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 sufficient doubt on an employee’s statements in
determining whether a prima facie case has been established.9 However, an employee’s
statement 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.10

5

5 U.S.C. §§ 8101-8193.

6

William Sircovitch, 38 ECAB 756, 761 (1987); John G. Schaberg, 30 ECAB 389, 393 (1979).

7

Charles B. Ward, 38 ECAB 667, 670-71 (1987); Joseph Albert Fournier, Jr., 35 ECAB 1175, 1179 (1984).

8

Tia L. Love, 40 ECAB 586, 590 (1989); Merton J. Sills, 39 ECAB 572, 575 (1988).

9

Samuel J. Chiarella, 38 ECAB 363, 366 (1987); Henry W.B. Stanford, 36 ECAB 160, 165 (1984).

10

Robert A. Gregory, 40 ECAB 478, 483 (1989); Thelma S. Buffington, 34 ECAB 104, 109 (1982).

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ANALYSIS
On July 9, 2008 appellant filed a traumatic injury claim alleging that she sustained a left
shoulder injury while operating her forklift at work on March 12, 2008. She indicated that her
forklift operation duties included turning the wheel on the forklift and moving many baskets
from booths. Appellant asserted that her left shoulder “popped” and that she experienced
swelling. In a November 10, 2008 decision, the Office denied her claim on the grounds that she
did not establish the occurrence of a work incident on March 12, 2008.11
The Board finds that appellant has established the existence of a work incident on
March 12, 2008, i.e., operating her forklift duties which included such tasks as turning the wheel
of the forklift and moving baskets. The Board notes that there are not such inconsistencies in the
record to cast serious doubt on appellant’s claim and finds that her account of the March 12,
2008 employment incident is not refuted by strong or persuasive evidence.12
Appellant consistently claimed that she injured her left shoulder while operating a forklift
at work on March 12, 2008. This account is supported by several statements in which
supervisors and coworkers indicated that she reported that she injured her left shoulder at work
on March 18, 2008. For example, Mr. Gibbons, appellant’s immediate supervisor, testified that
appellant operated a 6,000-pound forklift, which required her to move materiel and pull her
basket around to pick up such materiel. He indicated that on March 12, 2008 he saw her in tears
and observed that her left shoulder had a large knot. Ms. Harper, a coworker, testified that on
March 12, 2008 she saw appellant driving her forklift while holding onto her shoulder as though
she were in pain. Several other coworkers also indicated that she reported developing left
shoulder pain while performing her duties at work on March 12, 2008 and most stated that she
had obvious swelling in her left shoulder.13
Although appellant delayed almost three months in filing a formal claim form for the
alleged injury, several of the witnesses noted that she expressed a reluctance to officially file a
formal claim. Mr. Gibbons and two coworkers stated that she indicated that she feared for her
job security if she did so because she was a term employee. While some of the medical reports
produced shortly after March 12, 2008 fail to mention the March 12, 2008 incident, the principal
individuals who initially treated appellant later indicated that she reported on or shortly after
March 12, 2008 that she injured her left shoulder at work on March 12, 2008. In a
September 19, 2008 report, Dr. Ryan, an attending chiropractor, indicated that appellant first
consulted him on March 12, 2008 when she stated that she had injured her left shoulder at work
earlier that morning. Appellant reported that she was working and felt a sharp “pop” feeling

11

Given its grounds for denial, the Office did not evaluate whether the medical evidence showed that appellant
sustained a condition due to the alleged March 12, 2008 work incident.
12

See notes 8 through 10.

13

Mr. Gibbons and most of the coworkers reported that they had seen appellant earlier in the day on March 12,
2008 and that she appeared to be fine at that time.

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along her left posterior shoulder.14 In a September 11, 2008 report, Dr. Moore, an attending
Board-certified family practitioner, stated that he saw appellant on March 27, 2008 “with a
history of left shoulder pain that occurred at work on March 12, 2008.” Appellant reported to
Dr. Moore that she hurt her left shoulder at work on that date and subsequently saw Dr. Ryan
before coming to see him on March 27, 2008. Dr. Moore stated that she was found to have a
complete tear of the rotator cuff and was sent for consultation and ultimately surgery with
Dr. Cain, an attending Board-certified orthopedic surgeon.15
For these reasons, appellant established the occurrence of a work incident on
March 12, 2008. Because the Office denied her claim for a March 12, 2008 injury on a factual
basis, it did not evaluate all the relevant medical evidence of record.16 Therefore, the case should
be remanded to the Office for appropriate consideration of the medical evidence of record. After
such development it deems necessary, the Office should issue an appropriate decision regarding
whether appellant sustained an injury due to the accepted March 12, 2008 employment
incident.17
CONCLUSION
The Board finds that appellant established the occurrence of a March 12, 2008 work
incident and that the case is not in posture for decision regarding whether she met her burden of
proof to establish that she sustained an injury in the performance of duty on March 12, 2008.

14

Some of the medical reports of record suggest that appellant had left shoulder pain prior to March 12, 2008, but
Dr. Ryan indicated that she reported that she had been having cervical, upper and mid thoracic pain for
approximately six weeks prior to March 12, 2008, which was unrelated to the March 12, 2008 injury.
15

In a September 29, 2008 report, Dr. Cain stated that appellant was initially injured on March 12, 2008 “with
beginning of shoulder pain and a pop that occurred at work at the [employing establishment].”
16

The record contains medical reports in which Dr. Moore and Dr. Cain indicated that appellant sustained a left
shoulder injury due to the work incident on March 12, 2008.
17

Given the Board’s finding on the merit issue of this case, it is not necessary for the Board to consider the
nonmerit issue.

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ORDER
IT IS HEREBY ORDERED THAT the November 10, 2008 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to the Office for further
proceedings consistent with this decision of the Board.
Issued: March 19, 2010
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

7