United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.P., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Richmond, VA, Employer
__________________________________________

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

Docket No. 12-1322
Issued: November 16, 2012

Case Submitted on the Record

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

JURISDICTION
On June 4, 2012 appellant filed a timely appeal from the January 13, 2012 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying her injury claim as
untimely filed. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant’s claim for a May 4, 2007 injury was timely filed.
FACTUAL HISTORY
On November 17, 2011 appellant, then a 37-year-old examination operations worker,
filed a traumatic injury claim (Form CA-1) alleging that she sustained a “twisted left ankle and
sore knee” at work on May 4, 2007. Regarding the cause of injury, she stated, “Employee was
1

5 U.S.C. §§ 8101-8193.

walking in the crosswalk at the CSB and slipped on the yellow paint and fell onto her knee and
twisted her ankle.” On the same form, Silvia C. Molina, a financial supervisor, stated that she
was not appellant’s manager at the time of the claimed May 4, 2007 injury. She indicated that
she first received notice of the injury on November 21, 2011.
In a December 13, 2011 letter, OWCP requested that appellant submit additional factual
and medical evidence in support of her claim within 30 days of the letter. It asked her to
complete an attached questionnaire which contained questions regarding the circumstances of the
claimed May 4, 2007 injury.
On January 12, 2012 appellant submitted a copy of the questionnaire, which contained
her handwritten answers to its questions. In response to a question regarding whether anyone
witnessed the May 4, 2007 injury, she indicated that it was witnessed by a coworker,
Dolores Madison, but that she had been unable to contact Ms. Madison.2 Appellant asserted that
she immediately reported the May 4, 2007 injury to an unspecified “manager” and claimed that
she filed a claim for the injury on the day that it occurred.
In a January 13, 2012 decision, OWCP denied appellant’s claim for a May 4, 2007 injury
on the grounds that her claim was not timely filed. It determined that she did not file her claim
within three years of the claimed May 4, 2007 traumatic injury and that there was no evidence
that she reported it to her immediate supervisor within 30 days or that she provided written
notice within 30 days with the meaning of section 8122 of FECA.
LEGAL PRECEDENT
The issue of whether a claim was timely filed is a preliminary jurisdictional issue that
precedes any determination on the merits of the claim.3 In cases of injury on or after
September 7, 1974, section 8122(a) of FECA provides that an original claim for compensation
for disability or death must be filed within three years after the injury or death. Compensation
for disability or death, including medical care in disability cases, may not be allowed if a claim is
not filed within that time unless:
“(1) the immediate superior had actual knowledge of the injury or death within 30
days. The knowledge must be such as to put the immediate superior reasonably
on notice of an on-the-job injury or death; or
“(2) written notice of injury or death as specified in section 8119 was given within
30 days.”4
Section 8119 of FECA provides: that a notice of injury or death shall be given within 30
days after the injury or death; be given to the immediate superior of the employee by personal
2

Appellant provide additional description of the claimed May 4, 2007 injury and asserted that it occurred on the
employing establishment premises.
3

Charles Walker, 55 ECAB 238 (2004); Charles W. Bishop, 6 ECAB 571 (1954).

4

5 U.S.C. § 8122(a).

2

delivery or by depositing it in the mail properly stamped and addressed; be in writing; state the
name and address of the employee; state the year, month, day and hour when and the particular
locality where the injury or death occurred; state the cause and nature of the injury or in the case
of death, the employment factors believed to be the cause; and be signed by and contain the
address of the individual giving the notice.5 Actual knowledge and written notice of injury under
section 8119 serve to satisfy the statutory period for filing an original claim for compensation.6
When a traumatic injury definite in time, place and circumstances is involved, the time
for giving notice of injury and filing for compensation begins to run at the time of the incident,
even though the employee may not have been aware of the seriousness or ultimate consequences
of his or her injury.7 The Board has held that the applicable statute of limitations commences to
run although the employee does not know the precise nature of the impairment.8
ANALYSIS
The Board finds that appellant’s claim a work-related injury on May 4, 2007 should be
denied on the basis that she did not file a timely claim.
On November 17, 2011 appellant filed a traumatic injury claim alleging that she
sustained a left ankle knee injury due to fall at work on May 4, 2007. The time for her giving
notice of injury and filing for compensation began to run at the time of the claimed incident on
May 4, 2007.9 Appellant did not file her claim for a work injury until November 17, 2011.
Therefore, she did not file her claim within the requisite three years of her awareness of the
possible relationship between the implicated employment incident and the claimed medical
condition.
Appellant’s claim would still be regarded as timely under section 8122(a)(1) of FECA if
her immediate superior had actual knowledge of the injury within 30 days or under section
8122(a)(2) if written notice of injury was given to her immediate superior within 30 days of the
claimed injury as specified in section 8119. She has not satisfied either of these provisions.
Appellant stated that she immediately reported the claimed May 4, 2007 injury to an unspecified
manager, but she did not submit any evidence to corroborate this claim.10 She also asserted that
she filed a compensation claim on May 4, 2007, but she did not submit any evidence establishing
that she actually filed such a claim despite being provided an opportunity to do so. The record
does not contain evidence that appellant satisfied the strictures of section 8122 such that her
claim was timely.
5

5 U.S.C. § 8119; Larry E. Young, 52 ECAB 264 (2001).

6

Laura L. Harrison, 52 ECAB 515 (2001).

7

Emma L. Brooks, 37 ECAB 407, 411 (1986).

8

Delmont L. Thompson, 51 ECAB 155 (1999).

9

See supra note 7 and 8.

10

Appellant’s current supervisor indicated that she was not her supervisor on May 4, 2007 and that she did not
learn of the claimed injury until November 21, 2011.

3

For these reasons, OWCP properly denied appellant’s claim for a May 7, 2007 injury
because it was untimely filed.
CONCLUSION
The Board finds that OWCP properly denied appellant’s claim for a May 4, 2007 injury
on the grounds that it was untimely filed.
ORDER
IT IS HEREBY ORDERED THAT the January 13, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 16, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bolingbrook, IL, Employer
__________________________________________

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

Docket No. 12-1021
Issued: September 21, 2012

Case Submitted on the Record

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

JURISDICTION
On April 16, 2012 appellant filed a timely appeal from a March 14, 2012 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying a hearing. As the
most recent merit decision of OWCP was issued on July 19, 2001, more than 180 days from the
date of appeal, the Board has no jurisdiction over the merits of the claim.1 Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to review the nonmerit decision.
ISSUE
The issue is whether OWCP properly denied a request for an oral hearing.

1

For final adverse OWCP decisions issued prior to November 19, 2008, a claimant had up to one year to appeal
to the Board. See 20 C.F.R. § 501.3(d)(2). For final adverse OWCP decisions issued on and after November 19,
2008, a claimant has 180 days to file an appeal with the Board. See 20 C.F.R. § 501.3(e).
2

5 U.S.C. § 8101 et seq.

On appeal, appellant asserts that a position offered to her in 2001 was not suitable work.
She also contends that she was not made aware of the job offer OWCP found that she refused.
FACTUAL HISTORY
This is the second appeal before the Board in this case. By decision and order issued
January 11, 2012,3 the Board affirmed OWCP’s March 2, 2011 nonmerit decision denying
appellant’s request for a hearing on the grounds that the request was not filed within 30 days of
July 19, 2001, the date of the most recent merit decision in the case. The July 19, 2001 decision
terminated appellant’s wage-loss compensation benefits and schedule award eligibility on the
grounds that she refused an offer of suitable work. The law and facts of the case as set forth in
the Board’s prior decision and order are incorporated by reference.4
In an undated letter received by OWCP’s Branch of Hearings and Review on March 7,
2012, appellant requested a “third review.”5 She contended that she did not refuse an offer of
suitable work. Appellant submitted employing establishment job applicant drug testing
information, state unemployment documents and copies of evidence previously of record. She
also provided a March 7, 2012 report from Dr. diGianfilippo, finding appellant’s condition
unchanged.
By decision dated March 14, 2012, OWCP denied appellant’s request for a hearing on the
grounds that it was not timely filed within 30 days of the July 19, 2001 decision. It exercised its
discretion by performing a limited review of the evidence and further denied appellant’s request
as the issue in the case could be addressed equally well pursuant to a valid request for
reconsideration.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA states unequivocally that a claimant not satisfied with a
decision of OWCP has a right, upon timely request, to a hearing before an OWCP
representative.6 Section 10.615 of Title 20 of the Code of Federal Regulations provides that a
hearing is a review of an adverse decision by an OWCP hearing representative. Initially, the
claimant can choose between two formats: an oral hearing or a review of the written record.7
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 or other carrier’s date marking of
3

Docket No. 11-1022 (issued January 11, 2012).

4

During the pendency of the prior appeal, appellant submitted chart notes dated from December 9, 2010 to
July 13, 2011 from Dr. Anthony diGianfilippo, an attending Board-certified neurosurgeon.

5

On its face, appellant addressed the Board, referencing the January 11, 2012 decision and order. However, she
mailed the letter to OWCP’s Branch of Hearings and Review. Therefore, OWCP interpreted appellant’s letter as
a request for a hearing before OWCP’s Branch of Hearings and Review.

6

5 U.S.C. § 8124 (b)(1). See A.B., 58 ECAB 546 (2007); Joe Brewer, 48 ECAB 411 (1997).

7

20 C.F.R. § 10.615.

2

the request.8 OWCP has discretion, however, to grant or deny a request that is made after this
30-day period.9 In such a case, it will determine whether to grant a discretionary hearing and, if
not, will so advise the claimant with reasons.10
ANALYSIS
OWCP accepted that appellant sustained traumatic right ankle, left knee and left wrist
injuries and a lumbar strain when she tripped and fell on July 31, 2000. Appellant stopped work
on the date of injury and did not return. Pursuant to the first appeal, OWCP found that she failed
to respond to the employing establishment’s July 6, 2001 job offer, a position approved by her
attending physician. It terminated appellant’s wage-loss compensation benefits and schedule
award eligibility by decision dated July 19, 2001. Appellant had 30 days from the date of that
decision to make a timely request for a hearing. Pursuant to the present appeal, her letter
requesting an oral hearing was received by OWCP on March 7, 2012, after the 30-day time
period has elapsed. Although the postmark was not retained, the letter references the Board’s
January 11, 2012 decision. This establishes that the letter was mailed more than 30 days after
July 19, 2001. Thus, OWCP properly found that appellant’s request for an oral hearing was not
timely filed under section 8124(b)(1) of FECA and that she was not entitled to a hearing as a
matter of right.
OWCP then exercised its discretion and denied appellant’s request for a hearing on the
additional grounds that she could address the refusal of suitable work issue in her case equally
well by submitting relevant evidence accompanying a valid request for reconsideration. Because
reconsideration exists as an alternative appeal right to address the issues raised by OWCP’s
July 19, 2001 decision, the Board finds that OWCP did not abuse its discretion in denying
appellant’s untimely request for an oral hearing.11
On appeal, appellant asserts that a position offered to her in 2001 was not suitable work.
She also contends that the employing establishment did not make her aware of the position that
she was found to have refused. As stated above, the Board does not have jurisdiction over the
merits of the case on the present appeal.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for a hearing as
untimely.

8

Id. at § 10.616(a).

9

G.W., Docket No. 10-782 (issued April 23, 2010). See also Herbert C. Holley, 33 ECAB 140 (1981).

10

Id. See also Rudolph Bermann, 26 ECAB 354 (1975).

11

See Gerard F. Workinger, 56 ECAB 259 (2005).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 14, 2012 is affirmed.
Issued: September 21, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.D., Appellant
and
U.S. POSTAL SERVICE, WESTCHESTER
POSTAL & DISTRIBUTION CENTER,
White Plains, NY, Employer
__________________________________________

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

Docket No. 17-1713
Issued: February 1, 2018

Case Submitted on the Record

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

JURISDICTION
On August 4, 2017 appellant filed a timely appeal from a February 10, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish right foot and ankle
conditions causally related to the accepted December 7, 2015 employment incident.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted new evidence with his appeal to the Board. However, the Board may
only review evidence that was in the record at the time OWCP issued its final decision. Thus, the Board is unable to
review this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1); M.B., Docket No. 09-176 (issued
September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281
(2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

FACTUAL HISTORY
On May 11, 2016 appellant, then a 60-year-old supervisor of distribution operations, filed
a traumatic injury claim (Form CA-1) alleging that on December 7, 2015 he injured his right foot
and ankle while walking from the first to third floors in the performance of duty.3 He did not
note on the claim form that he had stopped work.
In a development letter dated May 25, 2016, OWCP informed appellant that the evidence
of record was insufficient to establish his claim. Appellant was advised regarding the medical
and factual evidence required to establish his traumatic injury claim. He was afforded 30 days to
provide this information.
In response to OWCP’s request appellant submitted evidence including magnetic
resonance imaging (MRI) scans and hospital reports and statements from appellant, coworkers,
and an employing establishment distribution operations manager. In disability certificates dated
January 4 and 26, March 2, and April 22, 2016, Dr. Indu Garg, a treating Board-certified
physiatrist, indicated that appellant had been under his care for a right ankle injury and was
disabled from work. In the January 4, 2016 note, he indicated that appellant could return to work
on January 6, 2016, however, in the January 26, 2016 note, the return to work date was extended
to February 26, 2016. In the March 2, 2016 note, Dr. Garg noted that appellant could return to
light-duty work for four hours per day on April 23, 2016. However, he indicated that appellant
was disabled until June 30, 2016 on the April 22, 2016 disability certificate.
A February 4, 2016 letter from Dr. Sanjiv Bansal, a treating Board-certified orthopedic
surgeon, reported that appellant continued to have difficulty with his right ankle and required
right ankle reconstruction surgery.
On April 25, 2016 Dr. Jay Mermelstein, a treating podiatrist, diagnosed proximal
peroneus brevis and posterior tibial tendon tears, small trabecular fracture, mild chronic Achilles
tendinitis, pes cavus, plantar and posterior calcaneal bony spurs, hindfoot valgus/midfoot and
forefoot adductus, and chronic lateral collateral and possibly subtalar ligamentous tear. He
observed that appellant’s foot and ankle conditions were aggravated by pushing or pulling heavy
objects and periods of standing. Additionally, Dr. Mermelstein opined that appellant had a
chronic condition which could be aggravated by excessive activity. He recommended modified
activity and pain management.
On May 24, 2016 Dr. Chaiyaporn Kulsakdinun, a Board-certified orthopedic surgeon,
advised that appellant would be out of work for weeks due to his medical condition. In a
progress note dated May 25, 2016, he noted that appellant had undergone right peroneal
debridement and exostectomy surgery on May 9, 2016. Dr. Kulsakdinun provided physical
examination findings and noted that appellant was doing well postsurgery.
On June 3, 2016 appellant was seen by Dr. Garg who reported that appellant had been
seen in January 2016 for right ankle pain, which began at work on December 7, 2015 while he
3
The record also contains a Form CA-1 dated January 12, 2016 from appellant alleging that he sustained a right
ankle and foot injury on approximately October 31, 2013.

2

was walking. A review of the prior MRI scan revealed a proximal peroneus brevis full-thickness
tendon tear with tenosynovitis with partial intrasubstance distal posterior tibial partial thickness
tear. Physical findings included right ankle swelling with limited range of motion. Dr. Garg
reported that appellant was status post right ankle tendon repair surgery. He indicated that
appellant was totally disabled due to his recent surgery.
In a June 21, 2016 letter, Dr. Kulsakdinun advised that appellant was disabled from
working for the next seven weeks.
By decision dated June 30, 2016, OWCP denied appellant’s claim. It found the evidence
of record was insufficient to establish a causal relationship between the diagnosed medical
conditions and the accepted December 7, 2015 employment incident.
On July 1, 2016 OWCP received a June 24, 2016 report from Dr. Garg in which he
opined that appellant sustained a peroneal tendon injury at work, which had been repaired by
surgery approximately one month ago. A physical examination revealed limited right ankle and
foot range of motion and pain.
In a July 28, 2016 report, Dr. Mermelstein repeated findings from his prior report.
On June 29 and August 2, 2016 appellant requested a review of the written record by an
OWCP hearing representative.
On August 2, 2016 OWCP received a narrative report dated July 16, 2016 from Dr. Garg.
Dr. Garg reported that on December 7, 2015 appellant complained of ankle and foot pain due to
the excessive walking and pushing and pulling of mail equipment on December 7, 2015. He
noted appellant’s medical history including two prior work injuries involving appellant’s right
ankle and foot. Physical examination findings and findings from review of MRI scans were
noted. Diagnoses included status post right peroneal tendon tear and right foot and ankle injury.
A description of appellant’s work activities was reported. Based on the description of the work
duties, Dr. Garg opined that appellant’s work duties caused the peroneus tendon tear and the
significant right ankle and foot injury.
On August 9, 2016 Dr. Kulsakdinun advised that appellant was disabled from work for
the next seven weeks.
By decision dated February 10, 2017, OWCP’s hearing representative affirmed the denial
of appellant’s claim. He found the medical evidence of record was insufficient to establish a
causal relationship between the diagnosed right ankle and foot conditions and the accepted
December 7, 2015 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
4

Supra note 1.

3

United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
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.7
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place, and in the manner alleged.8 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.9
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.10 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is causal relationship between the employee’s diagnosed condition and the
compensable employment factors.11 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.12
ANALYSIS
Appellant alleged that he sustained a right foot and ankle injuries while in the
performance of duty on December 7, 2015. OWCP found the evidence of record sufficient to
establish that the incident occurred as alleged. However, it also found the medical evidence of
record insufficient to establish that the diagnosed conditions were causally related to the
accepted December 7, 2015 employment incident. The Board finds that appellant has failed to
meet his burden of proof to establish right foot and ankle conditions causally related to the
accepted employment incident.

5

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

6

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

7

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 5.

8

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

9
C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra
note 5.
10

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).
11

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).

12

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

4

The record contains reports from Dr. Garg dated July 1 and 16, 2016 diagnosing a
peroneal tendon injury/tendon tear. In the July 1, 2016 report, Dr. Garg observed that appellant
sustained a peroneal tendon injury at work. In his subsequent July 16, 2016 report, he described
appellant’s work duties including those performed on December 7, 2015. Dr. Garg opined that
appellant’s work duties were the cause of the peroneus tendon tear as well as the significant foot
and ankle injuries. The Board finds, however, that Dr. Garg failed to adequately address the
issue of causal relationship in the two July 2016 reports. Dr. Garg did not explain, with medical
rationale, how appellant’s work duties on December 7, 2015 physiologically caused or
aggravated appellant’s diagnosed foot and ankle conditions.13 Medical reports without any
rationale on causal relationship are of diminished probative value and do not meet an employee’s
burden of proof.14 Thus, these reports are insufficient to establish appellant’s claim.
Appellant submitted additional has reports from Dr. Mermelstein, Dr. Kulsakdinun and
Dr. Garg. Dr. Mermelstein on April 25 and June 24, 2016 provided examination findings and
right foot and ankle diagnoses proximal peroneus brevis and posterior tibial tendon tears, small
trabecular fracture, mild chronic Achilles tendinitis, pes cavus, plantar and posterior calcaneal
bony spurs, hindfoot valgus/midfoot and forefoot adductus, and chronic lateral collateral and
possibly subtalar ligamentous tear. Dr. Kulsakdinun diagnosed right peroneal debridement and
noted exostectomy surgery. In a June 3, 2016 report, Dr. Garg reported a right ankle tendon tear
based on an MRI scan. The Board has found that medical evidence which fails to offer any
opinion regarding the cause of an employee’s condition is of limited probative value on the issue
of causal relationship.15 None of these physicians’ reports offer an opinion as to the cause of the
diagnosed conditions or attribute the diagnosed conditions to the accepted December 7, 2015
work incident. Thus, these reports from Dr. Mermelstein, Dr. Kulsakdinun, and Dr. Garg are
insufficient to establish appellant’s claim.
Appellant also submitted disability certificates from Dr. Garg, a February 5, 2016
disability note from Dr. Bansal, and disability notes from Dr. Kulsakdinun. The record also
contains an April 20, 2016 note that appellant had been seen that day from Dr. Kulsakdinun, and
a May 25, 2016 progress note describing appellant’s surgery. However, these reports are also
insufficient to support appellant’s claim as they contained no diagnosis or opinion on causal
relationship.16
The record before the Board is devoid of rationalized medical evidence establishing that
appellant’s right foot and ankle conditions were causally related to the accepted October 6, 2016
work incident. OWCP advised appellant that it was his responsibility to provide a
comprehensive medical report which described his symptoms, test results, diagnosis, history of
13

See T.E., Docket No. 16-1090 (issued February 24, 2017); L.R., Docket No. 16-0736 (issued September 2,
2016); Leslie C. Moore, 52 ECAB 132 (2000).
14

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009); Richard A.
Neidert, 57 ECAB 474 (2006)
15

R.E., Docket No. 10-0679 (issued November 16, 2010); K.W., 59 ECAB 271 (2007); Ellen L. Noble, 55 ECAB
530 (2004).
16

A.D., 58 ECAB 159 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004).

5

treatment, and the physician’s opinion, with medical reasons, on the cause of his condition.17
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference of causal relation.18 An award of compensation may not
be based on surmise, conjecture, or speculation.19
On appeal appellant notes his disagreement with the denial of his claim. He argues that
his on-the-job injury was timely reported and he was entitled to benefits. As discussed above,
OWCP accepted that the December 7, 2015 incident occurred as alleged. It denied appellant’s
claim, however, because none of the physicians provided a rationalized opinion explaining how
the diagnosed conditions had been caused or aggravated by the accepted December 7, 2015
employment incident. Appellant’s honest belief that the February 10, 2017 employment incident
caused his medical conditions, however, sincerely held, does not constitute the medical evidence
necessary to establish causal relationship.20
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that his right
foot and ankle conditions are causally related to the accepted December 7, 2015 employment
incident.

17

See supra note 12.

18

L.D., Docket No. 09-1503 (issued April 15, 2010); D.I., 59 ECAB 158 (2007); Daniel O. Vasquez, 57 ECAB
559 (2006).
19

S.S., 59 ECAB 315 (2008); J.M., 58 ECAB 303 (2007); Donald W. Long, 41 ECAB 142 (1989).

20

See J.S., Docket No. 17-0507 (issued August 11, 2017).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 10, 2017 is affirmed.
Issued: February 1, 2018
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, West Palm Beach, FL, Employer
__________________________________________

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

Docket No. 09-1380
Issued: January 6, 2010

Case Submitted on the Record

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

JURISDICTION
On May 5, 2009 appellant filed a timely appeal of the November 13, 2008 and January 8,
2009 decisions of the Office of Workers’ Compensation Programs denying her claim for injury.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of
this case.
ISSUE
The issue is whether appellant sustained an injury on September 25, 2008, as alleged.
On appeal, appellant contends that she sustained an injury when she was exposed to the
herpes zoster vaccine and that her reaction was rare but possible.
FACTUAL HISTORY
On September 25, 2008 appellant, then a 48-year-old licensed practical nurse, filed a
claim alleging that on that date she was covering an injection clinic and was exposed to the
varicella zoster vaccine when she was “drawing it up” on a patient. She alleged that, as a result

of this incident, she developed shingles. By letter dated October 6, 2008, the Office requested
that appellant submit further medical evidence in support of her claim, within 30 days.
Appellant did not respond.
In a November 13, 2008 decision, the Office denied appellant’s claim. It found that the
incident of September 25, 2008 occurred, as alleged. However, the Office found that no medical
evidence was submitted to support an injury.
On November 20, 2008 appellant requested reconsideration. She submitted an outpatient
note indicating that she was seen on September 25, 2008 by Jose de la Llana of the employing
establishment’s occupational health office, who noted that appellant had a herpes zoster.
Mr. de la Llana also submitted a note indicating that appellant was off for the duration of her
treatment, or about seven days. He next saw appellant on October 3, 2008 and he released her
from care. In a September 26, 2008 note, Dr. Jane Lamp, a Board-certified family practitioner,
noted that appellant had experienced itching and shingles. She stated, “Shingles is activation of
a virus in the dorsal root ganglion from unknown causes. It is unknown at this time if the work
environment caused activation of the virus to lead to shingles.”
On November 25, 2008 the Office received appellant’s responses to its questions.
Appellant noted that, while drawing varicella zoster vaccine, some squirted onto her hand and
she washed it immediately. She sought treatment for shingles and was told to stay home for the
duration of the treatment. Appellant advised that she never had a prior case of shingles. She
noted that she had surgery to remove her gallbladder on July 31, 2008, and stated that this may
have reduced her immune response.
In a January 8, 2009 decision, the Office denied appellant’s claim as a the medical
evidence was insufficient to establish a causal relationship between her condition and her
employment.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including the fact that an
individual is an employee of the United States within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an 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.2
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
1

5 U.S.C. § 8122(a).

2

Id.

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submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place and in the manner alleged.3 Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.4
Causal relationship is a medical issue5 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion of the physician must be based on a complete
factual and medical background of the claimant,6 must be one of reasonable medical certainty7
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the established incident or factor of employment.8
ANALYSIS
The Office found that appellant experienced the alleged work incident, an exposure to the
varicella zoster virus while drawing up the vaccine. She subsequently experienced an episode of
shingles. The Office denied appellant’s claim finding that the medical evidence did not establish
causal relation between the shingles and the September 25, 2008 incident.9
The Board finds that appellant has not established a causal relationship between her
shingles condition and the accepted work incident. She has not provided rationalized medical
evidence in support of her claim. There is no evidence that Mr. de la Llana is a physician as
defined under the Act.10 Therefore, his reports are not probative and are not sufficient to
establish her claim. Dr. Lamp did not address whether appellant’s shingles were caused by her
3

John J. Carlone, 41 ECAB 345 (1989).

4

Shirley A. Temple, 48 ECAB 404 (1997).

5

Mary J. Briggs, 37 ECAB 578 (1986).

6

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

7

See Morris Scanlon, 11 ECAB 384, 385 (1960).

8

See William E. Enright, 31 ECAB 426, 430 (1980).

9

Appellant filed his claim as an occupational disease claim. However, this claim is actually a traumatic injury
claim. A traumatic injury means a condition of the body caused by a specific event or incident or series of events or
incidents within a single workday or shift. An occupational disease or illness means a condition produced by the
work environment over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q), (ee); Andy J. Paloukos,
54 ECAB 712 (2003). As the incident, i.e., exposure to the herpes zoster virus while administering a vaccine,
occurred on a specific day, this is a claim for a traumatic injury
10

Section 8101(2) of the Act 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 applicable state law. Only medical evidence from a physician as defined by the Act will be accorded probative
value. Health care providers such as nurses, acupuncturists, physician’s assistants and physical therapists are not
physicians under the Act. Thus, their opinions on causal relationship do not constitute rationalized medical opinions
and have no weight or probative value. Jan A. White, 34 ECAB 515, 518 (1983).

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employment. She stated that it was unknown whether appellant’s work environment caused
activation of the virus that lead to shingles. This evidence does not support appellant’s claim.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor her belief that the condition was caused by her employment is sufficient to
establish causal relationship.11 The Board has held that the fact that a condition manifests itself
or worsens during a period of employment12 or that the work activities produce symptoms
revelatory of an underlying condition13 does not raise an inference of causal relationship between
the two. Appellant failed to provide medical evidence establishing a causal relationship between
her shingles and the September 25, 2008 incident. She has not met her burden of proof.14
CONCLUSION
The Board finds that appellant has not established that she sustained an injury in the
performance of duty on September 25, 2008.

11

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Ruth R. Price, 16 ECAB 688,
691 (1965).
12

E.A., 58 ECAB ___ (Docket No. 07-1145, issued September 7, 2007); Albert C. Haygard, 11 ECAB 393,
395 (1960).
13

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

14

Appellant also submitted some information from Merck with regard to live zoster vaccine. The Board has held
that newspaper clippings, internet articles, medical texts and excerpts from publications are of no evidentiary value
in establishing the causal relationship between a claimed condition and an employee’s federal employment. Such
materials are of general application and are not determinative of whether the specific condition claimed is related to
the particular employment factors alleged by the employee. See Joe T. Williams, 44 ECAB 518, 521

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 8, 2009 and November 13, 2008 are affirmed.
Issued: January 6, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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

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

Docket No. 10-938
Issued: January 10, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 18, 2010 appellant, through his attorney, filed a timely appeal from the
Office of Workers’ Compensation Programs’ August 25, 2009 and February 1, 2010 merit
decisions denying his claim as untimely filed. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant’s claim for bilateral carpal tunnel syndrome is barred by
the applicable time limitation provisions of the Act.
FACTUAL HISTORY
On May 12, 2009 appellant, then a 46-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that he developed bilateral carpal tunnel syndrome (CTS) as a result
of his employment activities.
He last worked for the employing establishment on
February 2, 2003. Appellant first became aware of his condition on July 1, 2002 and first
realized that his condition was caused or aggravated by his employment on August 21, 2002.

In a June 1, 2009 letter, the employing establishment controverted appellant’s claim as
untimely because it was filed more than three years after the onset of the alleged disease and he
was no longer an employee.
By letter dated June 25, 2009, the Office advised appellant that the evidence submitted
was insufficient to establish his claim. It requested he submit a written statement in response to
the employer’s controversion, as well as any supporting evidence that his immediate supervisor
had actual knowledge of a work-related medical condition within 30 days of the date of injury.
The Office also requested that the employer provide a statement detailing appellant’s job duties,
dates of employment and a response to his allegations.
Appellant submitted additional medical and factual evidence including a July 30, 2009
statement alleging that he was first diagnosed with carpal tunnel syndrome in 1997 and, as a
result, changed assignments from a walking route to curb side delivery. He alleged that John
Coyle, his supervisor, informed him that he did not have a claim and, if he proceeded, would
face serious action because of his sick leave. In late 1999 appellant informed Rich Parker, his
supervisor, that his pain had worsened. Mr. Parker allegedly told him not to file a claim because
carpal tunnel was not covered as an occupational disease or work-related injury and warned
appellant about missing work. Appellant did not file a claim for carpal tunnel because he
thought it was not covered and did not become aware that it was a compensable injury until he
was informed of the fact by his lawyer.
By decision dated August 25, 2009, the Office denied appellant’s claim on the grounds
that it was not timely filed. It found that the date of injury was the date of his last occupational
exposure, February 2, 2003, and that he should have been aware of a possible relationship
between his employment and the claimed condition by February 2, 2006, three years after the
date of last exposure. As appellant’s claim was filed on May 12, 2009, more than six years after
the date of the last exposure, the Office found that it was untimely filed. The Office also found
that the file did not contain any evidence to establish that he notified his supervisor of his workrelated injury within 30 days.
On September 4, 2009 counsel requested an oral hearing before an Office hearing
representative that took place on December 10, 2009. At the hearing, appellant stated that he
first realized he had work-related carpal tunnel in the fall of 2002. Counsel asked appellant if he
knew he might suffer from work-related carpal tunnel syndrome years ago and he stated that he
did not. He argued that the three-year statute of limitations should start to run when he advised
appellant that he might have work-related carpal tunnel syndrome in 2008.
By decision dated February 1, 2010, an Office hearing representative affirmed the
August 25, 2009 decision. He found that appellant did not file his claim within three years from
when he was injured, he was last exposed to working conditions which contributed to his injury,
on or after he became aware of his condition. The hearing representative noted that appellant’s
Form CA-2 stated that he realized his condition was employment related in 2002 and that he
failed to present any evidence that he had reported problems with his hands to his supervisor in
1999.

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LEGAL PRECEDENT
In cases of injury on or after September 7, 1974, section 8122(a) of the Act provides that
an original claim for compensation for disability or death must be filed within three years after
the injury or death. Compensation for disability or death, including medical care in disability
cases, may not be allowed if a claim is not filed within that time unless:
“(1) the immediate superior had actual knowledge of the injury or death within 30
days. The knowledge must be such as to put the immediate superior reasonably
on notice of an on-the-job injury or death; or
“(2) written notice of injury or death as specified in section 8119 was given within
30 days.”1
The three-year time period begins to run from the time the employee is aware or by the
exercise of reasonable diligence should have been aware, that his or her condition is causally
related to the employment. For actual knowledge of a supervisor to be regarded as timely filing,
an employee must show not only that the immediate superior knew that he or she was injured,
but also knew or reasonably should have known that it was an on-the-job injury.2
Even if an original claim for compensation for disability or death is not filed within three
years after the injury or death, compensation for disability or death may be allowed if written
notice of injury or death as specified in section 8119 was given within 30 days. Section 8119
provides that a notice of injury or death shall be given within 30 days after the injury or death; be
given to the immediate superior of the employee by personal delivery or by depositing it in the
mail properly stamped and addressed; be in writing; state the name and address of the employee;
state the year, month, day and hour when and the particular locality where the injury or death
occurred; state the cause and nature of the injury or, in the case of death, the employment factors
believed to be the cause; and be signed by and contain the address of the individual giving the
notice.3 Actual knowledge and written notice of injury under section 8119 serve to satisfy the
statutory period for filing an original claim for compensation.4
In a case of occupational disease, the time for filing a claim begins to run when the
employee first becomes aware or reasonably should have been aware, of a possible relationship
between his condition and his employment. When an employee becomes aware or reasonably
should have been aware that he has a condition which has been adversely affected by factors of
his federal employment, the limitation period begins to run even if the employee does not know
the precise nature of the impairment or whether the ultimate result of such affect will be
temporary or permanent.5 Where the employee continues in the same employment after he or
1

5 U.S.C. § 8122(a).

2

Duet Brinson, 52 ECAB 168 (2000).

3

Larry E. Young, 52 ECAB 264 (2001).

4

Laura L. Harrison, 52 ECAB 515 (2001).

5

Larry E. Young, supra note 3.

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she reasonably should have been aware that he or she has a condition which has been adversely
affected by factors of the federal employment awareness, the time limitation begins to run on the
date of the last exposure to the implicated factors.6 The requirement to file a claim within three
years is the claimant’s burden and not that of the employing establishment.7
ANALYSIS
Appellant claimed that he developed bilateral carpal tunnel syndrome due to conditions
of his employment as a letter carrier. By decisions dated August 25, 2009 and February 1, 2010,
the Office denied his claim on the grounds that it was untimely filed. The Board finds that
appellant’s claim for compensation is barred by the applicable time limitation provisions of the
Act.
Although appellant was last exposed to his working conditions on February 2, 2003 when
he retired, he acknowledged on his Form CA-2 that he became aware that his carpal tunnel
syndrome was caused by his employment by August 21, 2002. At the December 10, 2009 oral
hearing, he stated that he first realized he had work-related carpal tunnel in the fall of 2002.
Appellant did not deny knowing that his condition was caused by his employment, but rather
blamed his delay in filing a claim on his supervisors who allegedly misinformed him that carpal
tunnel was not compensable under workers’ compensation and discouraged him from filing a
claim. He acknowledged discussing the possibility of filing a claim with his supervisors. It
appears by appellant’s own account that he was aware of a condition related to his employment
and of a compensable injury. The Board finds that the evidence establishes that appellant knew
or reasonably should have known of a relationship between his claimed condition and factors of
his employment as a letter carrier at the time of his last exposure in 2002.
When an employee continues in the same employment after he reasonably should have
been aware that he has a condition which has been adversely affected by factors of federal
employment,8 the time limitation begins to run on the date of the last exposure to the implicated
factors.9 Therefore, the time limitation in this case began to run on February 2, 2003, appellant’s
last day of work and exposure to the implicated employment factors. Since he did not file a
claim until May 12, 2009, his claim was filed well outside the three-year limitation period.
Appellant’s claim would still be regarded as timely under section 8122(a)(1) of the Act if
his immediate supervisor had actual knowledge of the injury within 30 days of his last exposure
to the conditions alleged to have caused his condition; i.e., within 30 days of February 2, 2003.
The knowledge must be such as to put the immediate superior reasonably on notice of an on-the-

6

Id.

7

Debra Young Bruce, 52 ECAB 315 (2001).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.6 (March 1993); see James A.
Sheppard, 55 ECAB 515 (2004).
9

Id.

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job injury or death.10 Additionally, the claim would be deemed timely if written notice of injury
or death was provided within 30 days.11 Appellant’s July 30, 2009 factual statement indicated
that he first reported his carpal tunnel syndrome to his supervisor in 1997 and again to his new
supervisor in 1999 after he changed assignments. This statement is, in and of itself, insufficient
to establish that his supervisors were placed on notice of an on-the-job-injury. Appellant did not
submit evidence to establish that his immediate supervisor or other official or employing
establishment physician or dispensary had actual knowledge of his claimed employment injury
within 30 days after the date of his last exposure to the implicated employment factors.12 Even if
he submitted a statement from his supervisors alleging that he had reported complaints of carpal
tunnel syndrome, this statement would not be sufficient to establish that the immediate superior
had actual knowledge of a work-related injury as the statement only makes a vague reference to
his health and does not indicate that he sustained any specific employment-related injury.13
The Board finds that appellant has not established actual knowledge by his supervisors of
his work-related condition within 30 days. Therefore, he has not established a timely claim.
Appellant argues that he is the victim of an exceptional circumstance and asserts that his
supervisors effectively prevented him from filing a claim by misinforming him as to his
eligibility under the Act. Section 8122(d)(3) of the Act provides that, time limitations for filing a
claim do not run against any individual whose failure to comply is excused by the Secretary on
the grounds that such notice could not be given because of exceptional circumstances.14 None of
the exceptions relating to appellant’s ability to file a claim apply in this case. Appellant was not
a minor, has not alleged that he was incompetent and has not provided evidence of an
exceptional circumstance that would excuse his failure to timely file a claim.15 His excuse for
not filing a timely claim was that Mr. Coyle, his supervisor, told him he did not have a claim in
1997 and his supervisor Rich Parker told him carpal tunnel was not covered under an
occupational disease or work-related injury in 1999. At the hearing, appellant further stated that
it first came to his attention that his carpal tunnel was work related in late 2002. His attorney

10

5 U.S.C. § 8122(a)(1); see Jose Salaz, 41 ECAB 743, 746 (1990); Kathryn A. Bernal, 38 ECAB 470,
472 (1987).
11

Id. at § 8122(a)(1) and (2).

12

See Ralph L. Dill, 57 ECAB 248 (2006) (appellant’s statement on his claim form that he reported his injury to
his supervisor was insufficient to show that his supervisor was on notice in the absence of other evidence that his
supervisor had actual knowledge of a work injury within 30 days of his last workplace exposure).
13

See Linda J. Reeves, 48 ECAB 373 (1997).

14

5 U.S.C. § 8122(d)(3).

15

E.B. (N.B), 58 ECAB 642 (2007).

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argued that he only suspected his carpal tunnel to be work related and did not become aware of
his work-related injury until he spoke with counsel in 2008; however, the Board has held that
unawareness of possible entitlement,16 lack of access to information17 and ignorance of the law
or of one’s obligations under it18 do not constitute exceptional circumstances that could excuse a
failure to file a timely claim.19
The evidence of record is also insufficient to establish that the above conversations
occurred. Appellant alleges that, in his conversations with his supervisors, they should have
known of his carpal tunnel syndrome and misled him not to file a claim. He provided the names
of his supervisors, but did not provide dates for such conversations or other information which
would allow the Office to verify his allegations. These conversations were alleged to have
occurred over 10 years ago. It is appellant’s burden to establish that these conversations took
place and he must substantiate his allegations with probative and reliable evidence. He did not
establish that he was prevented from filing a timely claim by exceptional circumstances as that
term is used in section 8122(d)(3) of the Act. The Board finds that appellant has not established
that he timely filed a claim for compensation within three years after his retirement on
February 2, 2003.
CONCLUSION
The Board finds that the Office properly denied appellant’s compensation claim on the
grounds that he did not establish that his claim was filed within the applicable time limitation
provisions of the Act.

16

See supra note 12.

17

Kathryn L. Cornett (Elmer Cornett), 54 ECAB 812 (2003).

18

George M. Dickerson, 34 ECAB 135 (1982).

19

Michael Thomas Plante, 44 ECAB 510 (1993).

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ORDER
IT IS HEREBY ORDERED THAT the February 1, 2010 and August 25, 2009 merit
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: January 10, 2011
Washington, DC

Alec J. Koromilas, Chief 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
__________________________________________
C.R., Appellant
and
U.S. POSTAL SERVICE, METRO POSTAL
STORE, Miami, FL, Employer
__________________________________________

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Appearances:
Linda Temple, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1683
Issued: January 8, 2008

Case Submitted on the Record

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

JURISDICTION
On June 5, 2007 appellant, through his representative, filed a timely appeal of the Office
of Workers’ Compensation Programs’ merit decisions dated May 10 and February 9, 2007
finding that he had not established an injury on July 1, 2005. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof in establishing that he
sustained an injury in the performance of duty on July 1, 2005.
FACTUAL HISTORY
On August 17, 2005 appellant, then a 58-year-old letter carrier, filed a notice of traumatic
injury alleging that he sustained an injury to his right shoulder and neck on July 1, 2005 when he
pulled a hamper full of boxes. He required neck surgery as a result of this incident. On the
reverse of the form, Alexander Iniguez, a supervisor, indicated that appellant stopped work on

July 5, 2005 and had not returned. Mr. Iniguez stated that appellant provided notice of his injury
on August 17, 2005.
Appellant submitted a witness statement from Jaime Almedia, a coworker. He stated that
on July 1, 2005 appellant mentioned that he injured himself while loading a truck. Mr. Almedia
stated that on July 5, 2005 appellant informed him that he had experienced sharp pains in his
neck and shoulders throughout the weekend and felt nauseated. In a statement dated July 14,
2005, Patricia B. White stated that she was not aware that appellant had injured himself on
July 1, 2005 while dispatching mail in hampers at 4:50 p.m. On the following Tuesday appellant
informed her that he had experienced pain in his neck and shoulders all weekend.
Faith Richardson completed a statement on July 14, 2005. She was not aware that appellant had
injured himself on July 1, 2005. Ms. Richardson stated that appellant never mentioned his injury
to her even on July 5, 2005 when he left and used sick leave. In a statement dated July 14, 2005,
Olga Garcia stated that appellant reported his July 1, 2005 injury to her on July 5, 2005.
Appellant stated that he dispatched mail in hampers to a truck as the clerks were busy with
customers and strained himself in the process.
In a letter dated August 23, 2005, the employing establishment noted that appellant had
returned to light-duty work on June 20, 2005 following an accepted employment injury. The
employing establishment noted that appellant could perform only two hours of pushing and
pulling in accordance with his restrictions, and generally, he did not perform any pushing and
pulling. The employing establishment reviewed the statements from coworkers that appellant
dispatched mail in hampers to a truck driver at 4:50 on July 1, 2005 as the retail clerks were
busing with customers.
The Office requested additional factual and medical information on August 30, 2005.
The Office noted that appellant had not provided timely notification of his work injury, that he
had failed to provide witness statements and had failed to provide the necessary medical
evidence establishing a diagnosed condition.
By decision dated October 5, 2005, the Office denied appellant’s claim finding that the
evidence was not sufficient to establish that the incident occurred on July 1, 2005, as alleged.
Moreover, there was no medical evidence that provided a diagnosis which could be connected to
the claimed incident.
Appellant’s representative requested reconsideration on November 21, 2005 and included
his response to the Office’s August 30, 2005 request for information. On September 15, 2005
appellant reported that on July 1, 2005 he pulled a hamper full of boxes between 4:30 and
5:00 p.m. and experienced pain in his right shoulder and neck as he loaded a postal truck.
Appellant’s workday ended at 5:00 p.m. He next reported to scheduled work on July 5, 2005 and
reported the incident of July 1, 2005 on that date.
By decision dated February 9, 2007, the Office reviewed the merits of appellant’s claim
and denied modification of its October 5, 2005 decision. The Office noted that the employing
establishment disputed appellant’s claim that he informed his supervisor of his July 1, 2005
injury on July 5, 2005 and alleged that he did not report his injury until August 18, 2005. The

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Office also noted that appellant had not submitted medical evidence regarding the diagnosed
condition which he felt resulted from his alleged employment incident.
Appellant requested reconsideration on April 6, 2007. In a note dated July 13, 2005,
Dr. Luis R. Pagan, a Board-certified neurosurgeon, noted appellant’s symptoms of neck pain,
right shoulder pain and numbness of the left hand. He stated that appellant’s neurological
examination was normal and that he could continue to perform modified work. On
November 14, 2005 Dr. Pagan stated: “[Appellant] returned with an exacerbation of back pain
association with bilateral arm discomfort and hand numbness that was exacerbated after pulling a
hamper on July 1, 2005.” He recommended physical therapy and stated that appellant’s
previously accepted neck injury of June 20, 2000 was exacerbated by the July 1, 2005 injury.
By decision dated May 10, 2007, the Office reviewed appellant’s claim on the merits and
denied modification of its prior decisions. The Office found that Dr. Pagan’s report was of little
probative value in establishing that the July 1, 2005 employment incident occurred as alleged or
that appellant sustained an injury.
LEGAL PRECEDENT
An employee seeking benefits under the Act1 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of the Act, that the claim was timely filed within the applicable time
limitation period of the Act, that an 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.2
The Office’s regulations define a traumatic injury as a condition of the body caused by a
specific event or incident, or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain, which is identifiable as to
time and place of occurrence and member or function of the body affected.3 To determine
whether a federal employee has sustained a traumatic injury in the performance of duty, it must
first be determined whether a “fact of injury” has been established. 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. An employee has the burden of establishing the
occurrence of an injury at the time, place and in the manner alleged, by the preponderance of the
reliable, probative and substantial evidence. An injury does not have to be confirmed by
eyewitnesses in order to establish the fact that the 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 subsequent course of action. An employee has not met his
1

5 U.S.C. §§ 8101-8193.

2

Jussara L. Arcanjo, 55 ECAB 281, 283 (2004).

3

20 C.F.R. § 10.5(ee).

3

burden of proof where there are such inconsistencies in the evidence as to cast serious doubt
upon the validity of the claim.4
The employee must also submit sufficient evidence, generally only in the form of medical
evidence, to establish that the employment incident caused a personal injury. The medical
evidence required to establish causal relationship is usually rationalized medical evidence.
Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the claimant.5
ANALYSIS
Appellant has submitted factual evidence in the form of his claim form, witness
statements and physician’s notes indicating that he sustained an employment incident on
July 1, 2005. While there were no witnesses to appellant’s injury, he described the
circumstances to coworkers on July 5, 2005 and sought medical treatment on July 13, 2005 from
Dr. Pagan, a Board-certified neurosurgeon. Appellant’s statements describing his employment
incident are consistent with his subsequent actions and the Board finds that there are no such
inconsistencies in the evidence to cast serious doubt on the validity of his claim that he was
pulling a hamper full of mail on July 1, 2005.
Appellant must also submit medical evidence to establish that a personal injury occurred
as a result of the July 1, 2005 employment incident. Dr. Pagan did not describe any employment
activity that resulted in appellant’s condition and did not provide a diagnosis on July 13, 2005.
He merely described appellant’s symptoms of neck pain, right shoulder pain and numbness of
the left hand. Dr. Pagan noted that appellant could continue to work. As he did not discuss the
cause of appellant’s pain, his report is of diminished probative value. The Board has held that
the mere diagnosis of “pain” does not constitute a basis for the payment of compensation.6
In the November 14, 2005 note, Dr. Pagan found that appellant had experienced an
exacerbation of back pain after pulling a hamper on July 1, 2005. He noted that appellant’s
previously accepted neck injury was also exacerbated by this incident. Dr. Pagan did not explain
how or why appellant’s accepted employment activity would have resulted in back pain or an
exacerbation of his accepted neck condition. Without medical reasoning, this report is of
reduced probative value and not sufficiently rationalized to meet appellant’s burden of proof.
Appellant failed to submit medical evidence based on a complete factual and medical
background, supported by affirmative evidence, addressing the specific factual and medical
4

Id.

5

Id.

6

Robert Broome, 55 ECAB 339, 342 (2004).

4

evidence of record and providing medical rationale explaining the nature of the relationship
between the diagnosed condition and the established incident of employment. Therefore, he
failed to discharge his burden of proof.
CONCLUSION
The Board finds that appellant has not established that he sustained an injury on July 1,
2005 as alleged.
ORDER
IT IS HEREBY ORDERED THAT the May 10 and February 9, 2007 decisions of the
Office of Workers’ Compensation Programs are affirmed, as modified.
Issued: January 8, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.P., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD &
INTERMEDIATE MAINTENANCE FACILITY,
Bremerton, WA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 20-0264
Issued: January 29, 2021

Case Submitted on the Record

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

On November 14, 2019 appellant filed a timely appeal from an October 22, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate
Boards docketed the appeal as No. 20-0264.
On July 25, 2018 appellant, then a 63-year-old worker leader -- crane operator -- crane
mechanic, filed an occupational disease claim (Form CA-2) alleging that he sustained bilateral
hearing loss due to factors of his federal employment. He noted that he first became aware of his
condition and realized that it was caused or aggravated by factors of his federal employment on
May 10, 2018. Appellant explained that his final hearing test at the employing establishment
showed additional hearing loss from exposure to noise.1 He retired on June 29, 2018.

1

Appellant has a previously accepted occupational disease claim under OWCP File No. xxxxxx898 for binaural
hearing loss related to occupational noise exposure. On January 6, 2010 OWCP granted appellant a schedule award
for eight percent monaural (left) hearing loss. The period of the award ran from May 13 to June 11, 2009. Appellant’s
claims have not been administratively combined.

On February 4, 2019 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and a copy of the medical record to Dr. Jackson Holland, a Board-certified
otolaryngologist, for a second opinion evaluation to determine the nature and extent of his
employment-related conditions.
In his March 5, 2019 medical report, Dr. Holland reviewed the SOAF, history of injury and
the medical evidence of record. He identified appellant’s previous hearing loss claim under OWCP
File No. xxxxxxx898, as well as his subsequent treatment and receipt of right and left hearing aids.
On evaluation, Dr. Holland noted appellant’s right ear hearing impairment as moderate and his left
ear hearing impairment as moderate to severe. He reviewed appellant’s audiometric testing results
and, using the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment, (A.M.A., Guides),2 found at 500, 1,000, 2,000, and 3,000 Hertz losses of
10, 15, 25, and 50 decibels (dBs) on the right, respectively; and 15, 20, 50, and 75 dBs on the left,
respectively. Dr. Holland diagnosed neurosensory hearing impairment, binaural, noise-induced
hearing loss, binaural and tinnitus. He found zero percent monaural hearing loss in the right ear;
22.5 percent monaural hearing loss in the left ear; and 3.7 percent binaural hearing loss.
Dr. Holland described the progression of appellant’s hearing loss since his 2009 audiometric
evaluation and opined that the continued occupational exposure spanning from 2009 until his
retirement in June 2018 was of sufficient intensity and duration to be the primary contributor to
his neurosensory hearing loss progression and incremental increase is ratable for the left and right
ears.
By decision dated May 10, 2019, OWCP accepted appellant’s occupational disease claim
for binaural sensorineural hearing loss, with tinnitus, unspecified ear.
On June 6, 2019 appellant filed a claim for a schedule award (Form CA-7).
In an August 8, 2019 development letter, OWCP noted that appellant had previously been
awarded compensation for eight percent permanent impairment of the left ear under OWCP File
No. xxxxxx898. It requested a narrative medical report from his physician explaining whether he
or she believes the current percentage of hearing loss includes the prior percentage awarded or if
it should be considered an addition to the prior percentage awarded. OWCP afforded appellant 30
days to submit the additional evidence. No additional evidence was received.
By decision dated October 22, 2019, OWCP denied appellant’s schedule award claim,
finding that the evidence of record was insufficient to establish that his additional work exposure
contributed to an additional impairment.
The Board has duly considered the matter and finds that the case is not in posture for
decision. OWCP’s procedures provide that cases should be administratively combined when
correct adjudication depends on cross-referencing between files or when two or more injuries
occur to the same part of the body.3 In the present claim, appellant alleged bilateral hearing loss
2

A.M.A., Guides (6th ed. 2009).

3
Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).

2

due to noise exposure at work. OWCP noted that it had previously accepted on August 11, 2009
that appellant sustained binaural hearing loss due to factors of his federal employment under
OWCP File No. xxxxxx898. For a full and fair adjudication, the claim in OWCP File No.
xxxxxx898 must be administratively combined with the present claim. This will allow OWCP to
consider all relevant claim files in developing this schedule award claim.4
Accordingly, the Board will remand the case to OWCP to administratively combine the
present claim with OWCP File No. xxxxxx898. Following this and other such further development
as deemed necessary, OWCP shall issue a de novo merit decision on appellant’s schedule award
claim.
IT IS HEREBY ORDERED THAT the October 22, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further
proceedings consistent with this order of the Board.
Issued: January 29, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

4

Id. at Chapter 2.400.8(c)(1); W.W., Docket No. 19-0884 (issued June 16, 2020); L.P., Docket Nos. 18-1558,
181568 (issued June 21, 2019); L.S., Docket Nos. 17-1863, 17-1867, 17-1868 (issued April 18, 2018); W.S., Docket
No. 15-0969 (issued October 5, 2015); C.C., Docket No. 14-1576 (issued March 9, 2015).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.O., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
FRESNO VA MEDICAL CENTER-VA
CENTRAL CALIFORNIA, Fresno, CA,
Employer
__________________________________________

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

Docket No. 19-0953
Issued: October 7, 2019

Case Submitted on the Record

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

JURISDICTION
On April 1, 2019 appellant, through counsel, filed a timely appeal from a November 20,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the

1

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

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
ISSUE
The issue is whether appellant has met her burden of proof to establish a recurrence of
disability for the period October 20 to November 17, 2017 causally related to the accepted May 12,
2016 employment injury.
FACTUAL HISTORY
On May 26, 2016 appellant, then a 40-year-old nursing assistant, filed a traumatic injury
claim (Form CA-1) alleging that on May 12, 2016 she sustained a left knee injury while in the
performance of duty. At the time of the alleged incident she related that she was participating in
an evacuation drill in the employing establishment stairway. While being lowered down the
stairway in an evacuation sled, appellant’s left knee stuck the stairway wall. She stopped work
and received continuation of pay through July 9, 2016. OWCP accepted appellant’s traumatic
injury claim for lumbosacral radiculopathy and left knee cystic meniscus. 4 Beginning July 10,
2016, it paid her wage-loss compensation on the supplemental rolls, and effective December 10,
2016, placed her on the periodic compensation rolls. On September 5, 2017 appellant returned to
full-time, limited-duty work.5
Appellant continued to receive medical treatment. In a September 28, 2017 report,
Dr. Daniel B. Brubaker, an orthopedist, reviewed her history, including the May 12, 2016
employment injury, and recounted her complaints of continued severe left knee and low back pain.
Upon examination of appellant’s left knee, he observed mild swelling and moderately severe pain
with palpation. Dr. Brubaker diagnosed left knee internal derangement, left knee pain, lumbar
spine strain, lumbar radiculopathy, lumbar muscle spasm, and annular disc tears at L4-5 and L5S1. He noted that appellant was currently working in a sedentary position at the employing
establishment.

2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the November 20, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.
4

Appellant previously filed a claim for an October 30, 2014 right wrist injury. OWCP assigned her claim OWCP
File No. xxxxxx947.
5

In an April 24, 2017 report, Dr. Mohinder Nijjar, a Board-certified orthopedic surgeon and second-opinion
examiner, opined that appellant could work full-time modified duty with limitations to sitting, standing, walking,
pulling, pushing, and lifting.

2

OWCP received an October 20, 2017 note by a physical therapist. It reported that appellant
fell (left knee buckled) while walking and the treatment was cancelled. The note indicated that
there was a history of multiple recent falls.
In an October 23, 2017 letter, a workers’ compensation liason from Dr. Brubaker’s office
explained that their office had been treating appellant for injuries sustained in a workers’
compensation claim. She related that appellant had been falling down a lot and their office was
not sure why this was happening. The liason explained that, since their office did not yet know
why appellant’s susceptibility of falling had increased, she may need to have more modifications
or accommodations at work.
On October 26, 2017 appellant filed a claim for wage-loss compensation (Form CA-7) for
the period October 20 to 30, 2017. On the reverse side of the claim form, the employing
establishment confirmed that she was in a leave without pay status from October 20 to 27, 2017.
Appellant filed an additional Form CA-7 claiming wage-loss compensation due to continuing total
disability from October 31 to November 17, 2017.
In October 26 and November 17, 2017 development letters, OWCP acknowledged receipt
of appellant’s claims for wage-loss compensation beginning October 20, 2017 and informed her
of the evidence needed to support her recurrence of disability claim.6 It afforded her 30 days in
each letter to provide supporting evidence.
OWCP received an October 30, 2017 report by Dr. Brubaker, who recounted appellant’s
complaints of severe back and left knee pain and related that she had experienced multiple recent
falls. Upon examination of appellant’s left knee, he observed moderately severe pain upon
palpation in the lateral compartment and mild swelling. Examination of her lumbar spine revealed
muscle spasms in the lumbar region, greater on the left than right with no swelling or scoliosis.
Dr. Brubaker diagnosed left knee internal derangement and pain, lumbar strain/sprain, annular disc
tears at L4-5 and L5-S1, lumbosacral radiculopathy, low back pain and muscle spasm, left ankle
sprain, and adjustment disorder with mixed anxiety and depression. He reported that appellant
was on temporary total disability status and noted that she should be off work until
December 31, 2017. Dr. Brubaker explained: “It appears the patient is becoming more of a
liability that could create more injuries.” He indicated that the knee brace was apparently not
preventing her left knee from giving out. Dr. Brubaker completed a work status note which
indicated that appellant was temporarily totally disabled from October 31 to December 31, 2017.
In a November 18, 2017 progress report, Dr. Justin D. Paquette, a Board-certified
neurosurgeon, recounted that appellant continued to have severe dysfunctional back pain and leg
radiculopathies, particularly in the left. He related that she had been falling frequently and recently
injured her knee because of a substantial fall while she was ambulating with her cane. Dr. Paquette
reported that a new lumbar spine magnetic resonance imaging (MRI) scan showed significant
discogenic changes with grade 2 modic changes at L4-5 and L5-S1 and disc herniations with
6

In the November 17, 2017 letter, OWCP explained that because appellant had returned to modified duty on
September 5, 2017 following the May 12, 2016 employment injury and thereafter stopped work on October 20, 2017
it considered her claim as a recurrence of disability.

3

annular tears at both L4-5 and L5-S1 with foraminal stenosis. He provided examination findings
and diagnosed L4 to S1 disc herniations, bilateral foraminal stenosis and nerve compression, left
greater than right at L4 to S1, and advanced discogenic changes and disc deterioration at L4 to S1.
On December 1, 2017 appellant submitted a completed questionnaire form. She described
that the recurrence happened when she returned to work and began to fall various times in the
street while walking to her workplace and in physical therapy. Appellant explained that she
believed her disability was related to the original May 12, 2016 employment injury because she
did not have treatment before she went back to work, except for knee injections that had not
worked.
In a December 13, 2017 work status note, Dr. Brubaker indicated that appellant was totally
disabled from December 13, 2017 through January 9, 2018. He reported diagnoses of left knee
pain, internal derangement, and annular disc tears in the lumbosacral region.
By decision December 19, 2017, OWCP denied appellant’s claim for compensation for
disability beginning October 20, 2017 finding that the evidence of record was insufficient to
establish that her accepted conditions had objectively worsened, without intervening cause, so that
she was no longer able to work limited duty. It noted that she had attributed her inability to work
to falling various times while walking to her workplace.
On January 4, 2018 appellant through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review. A hearing was held on May 23, 2018.
Appellant testified that she had returned to part-time sedentary work in January 2018.
Appellant submitted additional reports by Dr. Brubaker dated November 17, 2017 to
May 21, 2018. Dr. Brubaker recounted appellant’s complaints of left knee and low back pain
aggravated with walking, squatting, or kneeling and numbness and tingling in her left knee. Upon
examination of her left knee, he observed moderately severe pain, especially in the lateral
compartment and pain posteriorly. McMurray’s and Apley’s tests were positive. Examination of
appellant’s thoracolumbar spine revealed muscle spasm in the lumbar region, greater on the left.
Supine straight leg raise testing was positive at 50 degrees. Dr. Brubaker diagnosed left knee
derangement, left knee pain, left ankle sprain, lumbar spine strain/sprain, annular disc tears at L45 and L5-S1, lumbosacral radiculopathy, low back pain, lumbar muscle spasm, and repeated falling
and at risk of future falls. He indicated that he took appellant off work from October 31 to
December 31, 2017.
In an April 18, 2018 work status note, Dr. Brubaker indicated that appellant was totally
disabled from April 1 through July 1, 2018.
In a June 11, 2018 letter, Dr. Brubaker described the May 12, 2016 employment injury.
He noted that appellant had been forced back to work before she was ready and that she was under
a lot of stress. Dr. Brubaker reported that, while appellant was waiting authorization to get medical
treatment, she had fallen several times. He diagnosed a torn meniscus in the left knee, along with
left radiculopathy. Dr. Brubaker explained that appellant was in significant pain, whether she was

4

sitting or standing, and noted that her job required both. He noted: “As a result [appellant] misses
work quite frequently.”
On June 15, 2018 appellant slipped and fell at work. She filed another traumatic injury
claim (Form CA-1) which OWCP assigned OWCP File No. xxxxxx131 and subsequently accepted
for cervical and thoracic sprains, and other muscle spasms. 7
In a June 19, 2018 progress report, Dr. Brubaker recounted that appellant had another fall
at work, which was generating another claim. He indicated that there was, otherwise, no change
in her complaints of severe pain.
By decision dated July 3, 2018, an OWCP hearing representative affirmed the
December 19, 2017 decision finding that the evidence of record was insufficient to establish
appellant’s claim for recurrence of disability.
On August 29, 2018 appellant, through counsel, requested reconsideration and submitted
additional medical evidence.
In reports dated July 9 and 30, 2018, Dr. Brubaker recounted appellant’s complaints of
cervical and thoracic pain after a June 15, 2018 employment incident when she slipped and fell
while attempting to wipe up a spill. He reviewed her history and provided physical examination
findings. Dr. Brubaker diagnosed cervical spine strain/sprain, cervical muscle spasm, cervalgia,
possible annular disc tears, thoracic spine strain, spasm, and pain, and possible annular disc tear
of the thoracic spine. He recommended a spinal MRI scan to confirm whether appellant had
annular disc tears in her cervical and thoracic region. Dr. Brubaker indicated that she could
continue working in her sedentary job.
In reports and work status notes dated August 23 to October 4, 2018, Dr. Brubaker
reviewed appellant’s history and conducted an examination. He recounted that she continued to
report significant pain in her lumbar spine and left knee and that her left knee continued to give
out. Dr. Brubaker diagnosed work injury, left knee internal derangement, left knee pain, lumbar
spine strain, annular disc tears/herniations at L4-5 and L5-S1, lumbosacral radiculopathy, low back
pain, lumbar muscle spasm, and left ankle sprain. He returned appellant to a total disability status
on August 23, 2018.
By decision dated November 20, 2018, OWCP denied modification of the July 3, 2018
decision.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
7

OWCP administratively combined the current claim (OWCP File No. xxxxxx726) with appellant’s prior right
wrist claim (OWCP File No. xxxxxx947) and her June 15, 2018 traumatic injury claim (OWCP File No. xxxxxx13 1).
It designated OWCP File No. xxxxxx726 as the master file.

5

compensable injury or illness and without an intervening injury or new exposure in the work
environment.8 This term also means an inability to work because a light-duty assignment made
specifically to accommodate an employee’s physical limitations and which is necessary because
of a work-related injury or illness is withdrawn or altered so that the assignment exceeds the
employee’s physical limitations. 9
OWCP procedures provide that a recurrence of disability includes a work stoppage caused
by a spontaneous material change in the medical condition demonstrated by objective findings.
The change must result from a previous injury or occupational illness rather than an intervening
injury or new exposure to factors causing the original illness. OWCP does not include a condition
that results from a new injury, even if it involves the same part of the body previously injured. 10
An employee who claims a recurrence of disability due to an accepted employment-related
injury has the burden of proof to establish by the weight of the substantial, reliable, and probative
evidence that the disability for which he or she claims compensation is causally related to the
accepted injury. This burden of proof requires that, a claimant furnish medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes that,
for each period of disability claimed, the disabling condition is causally related to employment
injury and supports that conclusion with medical reasoning. 11 Where no such rationale is present,
the medical evidence is of diminished probative value. 12
OWCP’s procedures require that, in cases where recurrent disability from work is claimed
within 90 days or less from the first return to duty, the focus is on disability rather than causal
relationship.13 The attending physician should describe the duties which the employee cannot
perform and the demonstrated objective medical findings that form the basis for the renewed
disability for work. 14 When a physician’s statements regarding an employee’s ability to work
consist only of repetition of the employee’s complaints that he or she hurt too much to work,
without objective findings of disability being shown, the physician has not presented a medical
opinion on the issue of disability or a basis for payment of compensation. 15

8

20 C.F.R. § 10.5(x); see K.R., Docket No. 19-0413 (issued August 7, 2019); S.F., 59 ECAB 525 (2008). See 20
C.F.R. § 10.5(y) (defines recurrence of a medical condition as a documented need for medical treatment after release
from treatment for the accepted condition).
9

Id.

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2 (June 2013). K.R., supra
note 8; Kenneth R. Love, 50 ECAB 193, 199 (1998).
11

H.T., Docket No. 17-0209 (issued February 8, 2019); Ronald A. Eldridge, 53 ECAB 218 (2001).

12

E.M., Docket No. 19-0251 (issued May 16, 2019); Mary A. Ceglia, Docket No. 04-0113 (issued July 22, 2004).

13

B.R., Docket No. 18-0339 (issued January 24, 2019).

14

Supra note 10 at Chapter 2.1500.5 (June 2013); B.R., id.; G.P., Docket No. 14-1150 (issued September 15, 2014).

15

K.R., supra note 8; S.E., Docket No. 14-1125 (issued October 1, 2014).

6

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a recurrence of
total disability for the period October 20 to November 17, 2017 causally related to the accepted
May 12, 2016 employment injury.
OWCP accepted appellant’s traumatic injury claim for left knee cystic meniscus and
lumbar radiculopathy causally related to the May 12, 2016 employment injury. As appellant has
not alleged a change in the nature and extent of her light-duty job requirements or that the position
was withdrawn, she must, therefore, provide medical evidence establishing that she was disabled
due to a worsening of her accepted May 12, 2016 employment injury. 16
The medical evidence relevant to the claimed recurrence includes a series of reports and
work status notes from Dr. Brubaker dated October 30, 2017 to October 4, 2018. In an October 30,
2017 report, Dr. Brubaker described the May 12, 2016 employment injury and recounted
appellant’s complaints of continued severe back and left knee pain. He noted that she had recently
experienced multiple falls. Dr. Brubaker reported left knee and lumbar spine examination findings
and diagnosed left knee internal derangement and pain, lumbar strain/sprain, annular disc tears at
L4-5 and L5-S1, lumbosacral radiculopathy, and low back pain and muscle spasm. He reported
that appellant was on temporary total disability status and noted that she should be off work until
December 31, 2017. Dr. Brubaker explained: “It appears [appellant] is becoming more of a
liability that could create more injuries.” In subsequent reports and work status notes, he continued
to place appellant on total disability status until January 2018. Dr. Brubaker reported that she
continued to report frequent falling and complained of severe lumbar pain.
Although Dr. Brubaker took appellant off work as of October 30, 2017, he did not provide
a rationalized medical opinion on the cause of appellant’s disability nor a fully-rationalized
explanation as to why appellant was unable to work as a result of her May 12, 2016 employment
injury.17 Moreover, the Board notes that Dr. Brubaker attributed appellant’s disability to a fear of
continued falling and the possibility of more injuries. The Board has held that the fear of a possible
future injury constitutes no basis for the payment of compensation. 18 Dr. Brubaker did not provide
objective findings to demonstrate how appellant’s accepted left knee and lumbar spine injuries had
worsened to the point that she was no longer able to work limited duty. 19 For these reasons, his
reports are insufficient to establish her compensation claim.
Appellant also received medical treatment from Dr. Paquette. In a November 18, 2017
progress report, he indicated that appellant had been falling frequently and recently injured her
16

Supra note 8.

17

R.C., Docket No. 18-1695 (issued March 12, 2019); W.H., Docket No. 16-0634 (issued June 17, 2016); D.D., 57
ECAB 734, 738 (2006).
18

20 C.F.R. § 10.501(a)(2); see also C.J., Docket No. 18-1181 (issued May 20, 2019); Gaeten F. Valenza, 39
ECAB 1349, 1356 (1988).
19

See L.S., Docket No. 18-1494 (issued April 12, 2019); D.H., Docket No. 18-0129 (issued July 23, 2018).

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knee because of a substantial fall while she was ambulating with her cane. Dr. Paquette provided
examination findings and diagnoses. He did not, however, provide an opinion on disability or
otherwise provide medical rationale relating appellant’s accepted employment injury to any
periods of disability. 20 Medical evidence that does not offer an opinion regarding the cause of an
employee’s condition or disability is of no probative value on the issue of causal relationship. 21
As such, Dr. Paquette’s opinion is insufficient to establish appellant’s claim.
On appeal counsel asserts that OWCP failed to adjudicate the claim in accordance with the
proper standard of causation and failed to give due deference to the findings of the attending
physician. He has not, however, provided evidence to support his arguments
None of the medical evidence of record provided a discussion of how her accepted
employment conditions caused total disability during the claimed period of disability. 22 Appellant,
therefore, has not met her burden of proof to establish her claim. 23
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a recurrence of
total disability for the period October 20 to November 17, 2017 causally related to the accepted
May 12, 2016 employment injury.

20

See D.T., Docket No. 19-0399 (issued August 2, 2019); F.U., Docket No. 18-0078 (issued June 6, 2018); D.R.,
Docket No. 16-0528 (issued August 24, 2016)
21

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

22

See N.M., Docket No. 18-1584 (issued March 15, 2019).

23

See W.H., Docket No. 17-1390 (issued April 23, 2018).

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ORDER
IT IS HEREBY ORDERED THAT the November 20, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 7, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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