United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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and
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DEPARTMENT OF VETERANS AFFAIRS,
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VETERANS ADMINISTRATION MEDICAL
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CENTER, Alexandria, LA, Employer
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___________________________________________ )
A.S., Appellant

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

Docket No. 07-1466
Issued: November 15, 2007

Case Submitted on the Record

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

JURISDICTION
On May 7, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ hearing representative’s decision dated February 20, 2007, finding that
he failed to establish that he sustained an injury as alleged. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the issue in 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, causally related to factors of his federal
employment.
FACTUAL HISTORY
On March 16, 2005 appellant, then a 43-year-old medical clerk, filed an occupational
disease claim alleging that he sustained an overuse disorder of the right hand. He alleged that his

condition began on October 15, 1990 and that he first became aware of the condition and its
relation to his work on March 16, 2005. Appellant did not stop work.
On April 4, 2005 the employing establishment controverted the claim. Cindy Twilligear,
a human resources officer, indicated that appellant began working for the employing
establishment on June 29, 2003 as a housekeeping aide. She alleged that appellant requested
reassignment to his current position of a medical support assistant on February 6, 2005.
Ms. Twilligear indicated that the position did not require the skills of a proficient typist.
Additionally, she noted that appellant had a preexisting military service disability related to the
right hand.1
By letters dated April 22, 2005, the Office advised appellant and the employing
establishment that additional factual and medical evidence was needed.
In treatment notes dated March 24, 2005, Dr. Patrick D. Murray, a Board-certified
orthopedic surgeon, indicated that he saw appellant for right hand pain and was “well known to
orthopedics for this problem with previous workup for CTS [carpal tunnel syndrome], surgical
complications which have been ruled out.” He noted that appellant had a positive Tinel’s sign.
Dr. Murray also indicated that appellant related that he was now doing more typing which he
believed was “causing pain and swelling in the right hand.” He diagnosed right hand pain and
opined that he found no signs of CTS. Dr. Murray recommended a splint for 23 hours per day
until appellant returned in four weeks. The Office subsequently received a March 24, 2005
report from a nurse practitioner, a position description and a clinic workload report.
In an April 5, 2005 memorandum, Scott Berry, the safety manager, noted that an
ergonomic survey of appellant’s work area revealed that his computer monitor was too low for
proper viewing. He indicated that appellant might require some additional changes to his
workstation due to a preexisting injury.
In a May 9, 2005 memorandum, Loria A. Jackson, the supervisor of specialty care,
indicated that appellant transferred from nursing to specialty care on February 7, 2005. She
noted that, “[a]pproximately one month later, [appellant] began to complain of an aggravated old
injury to his right hand (per conversation with employee this was a service-connection
condition).” Ms. Jackson explained that appellant was required to check-in and check-out
approximately 40 to 50 patients daily. His additional duties included “scheduling appointments,
lab[oratory] work and performing any other clerical duties associated with the clinic where he is
assigned.” Ms. Jackson noted that, once appellant’s problems were brought to her attention, she
arranged for an ergonomic survey within his workspace.
Appellant submitted treatment notes dated March 24 and 25, 2005 from several nurses.
In an April 22, 2005 treatment note, Dr. Murray indicated that appellant had symptoms of pain in
the right upper extremity and recommended the use of a wrist splint.

1

The record reflects that appellant receives Veterans benefits for various parts of his body.

2

In a May 16, 2005 statement, Ms. Twilligear noted findings of the ergonomic survey of
appellant’s workspace and advised the Office that he had filed a separate claim on May 10, 2005
for a left knee condition, “which was also service connected.”
By decision dated June 6, 2005, the Office denied appellant’s claim. It found that the
medical evidence did not demonstrate that the claimed medical condition was related to
established work-related events.
On June 10, 2005 appellant requested a hearing, which was held on December 6, 2006.
He alleged that he had to cancel the names of over 1,100 patients. Appellant contended that he
was given this assignment after filing a grievance against Ms. Jackson for denying his leave
request. On June 17, 2005 he informed the Office that some of his medical records were placed
in his previous claim, File No. 162093365, instead of the present claim. Appellant requested that
the Office place the records in his present claim.
In the December 20, 2006 statement, Ms. Jackson advised that appellant was informed of
the duties of his position at the time he was hired. She alleged that he did not advise her that he
was having any problems with his hand, other than to ask for leave, which was approved for the
period for which he had leave. Ms. Jackson disputed appellant’s account of how many patients
he cancelled from the new system, noting that he only cancelled 70 patients on March 7 and 15
and on March 16, 2005. In a December 27, 2006 statement, Ms. Twilligear noted that appellant
was removed, which was subsequently rescinded as part of a settlement agreement. The Office
also received a copy of a previously submitted grievance filed by appellant, a copy of a
March 10, 2005 email denying his request for leave due to workload and unforeseen staffing and
a certificate of medical examination signed by a nurse.
By decision dated February 20, 2007, the Office hearing representative affirmed the
June 6, 2005 decision.2
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an 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.4 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.5

2

The Office hearing representative also noted that the records from his prior claim were in the present claim.

3

5 U.S.C. §§ 8101-8193.

4

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

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

3

To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the employment
factors identified by the claimant were the proximate cause of the condition for which
compensation is claimed or, stated differently, medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant. The medical
evidence required to establish causal relationship, generally, is rationalized medical opinion
evidence. Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between 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.6
ANALYSIS
The evidence establishes that appellant has right hand pain and that his work involved
utilizing the computer system to cancel a number of patients at work.7 However, he submitted
insufficient medical evidence to establish that his right hand condition was caused or aggravated
by the activities of canceling patients or any other specific factors of his federal employment.
Appellant submitted treatment notes dated March 24, 2005 from Dr. Murray, a Boardcertified orthopedic surgeon. While Dr. Murray noted that he saw appellant for right hand pain,
he also indicated that appellant’s condition was “well known to orthopedics for this problem with
previous workup for CTS, surgical complications which have been ruled out.” He provided a
diagnosis of right hand pain and opined that he found “no signs of [CTS].” A firm diagnosis was
not provided. On April 22, 2005 Dr. Murray noted that appellant had symptoms of pain in the
right upper extremity and recommended the use of a wrist splint. However, the Board notes that
Dr. Murray did not specifically address whether any factors of appellant’s employment caused or
contributed to his symptoms.8 Consequently, the Board finds that this evidence is insufficient to
establish appellant’s claim.
The record also contains a March 24, 2005 report from a nurse practitioner and several
treatment notes from nurses dated March 24 and 25, 2005. Section 8101(2) of the Act9 provides
6

Id.

7

While the employing establishment alleges that the number of patients that appellant cancelled was quite low, it
is undisputed that he did cancel some patients.
8

Linda I. Sprague, 48 ECAB 386 (1997) (medical evidence that does not offer any opinion regarding the cause of
an employee’s condition is of diminished probative value on the issue of causal relationship).
9

See 5 U.S.C. § 8101(2). See also Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board has held that
a medical opinion, in general, can only be given by a qualified physician).

4

that the term “physician” includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors and osteopathic practitioners within the scope of their practice as
defined by the applicable state law. Health care providers such as nurses, are not physicians
under the Act. Thus, a nurse is not competent to give a medical opinion.10
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.11
Neither the fact that the condition became apparent during a period of employment nor the belief
that the condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.12 Causal relationship must be substantiated by reasoned medical
opinion evidence, which is appellant’s responsibility to submit.
There is no reasoned medical evidence addressing how appellant’s employment duties
caused or aggravated a right hand condition. Appellant has not met his burden of proof in
establishing that he sustained a medical condition in the performance of duty causally related to
factors of his employment.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
sustained an injury in the performance of duty.

10

See Bertha L. Arnold, 38 ECAB 282 (1986).

11

See Joe T. Williams, 44 ECAB 518, 521 (1993).

12

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 20, 2007 is affirmed.
Issued: November 15, 2007
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.H., Appellant
and
U.S. POSTAL SERVICE, NORTH
PHILADELPHIA STATION, Philadelphia, PA,
Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-862
Issued: November 12, 2009

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 February 25, 2009 appellant, through his attorney, filed a timely appeal from the
January 22, 2009 decision of the Office of Workers’ Compensation Programs, which denied his
additional schedule award claims for both upper extremities. 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 has more than a 16 percent impairment of his right arm
and a 4 percent impairment of his left arm, for which he received schedule awards.
On appeal, appellant, through his attorney, contends that the Office failed to follow the
Board’s remand order in that the impartial medical specialist failed to clarify whether appellant
had any motor loss involving his upper extremities. Counsel also argued that the impairment
rating should be increased to reflect 36 percent right upper extremity impairment and a 24
percent left upper extremity impairment.

FACTUAL HISTORY
This is the third appeal before this Board. The law and the facts of the case as set forth in
the Board’s prior decisions are hereby incorporated by reference.1 The relevant facts are set
forth below.
The Office accepted appellant’s claim for bilateral carpal tunnel syndrome. Appellant’s
treating Board-certified physiatrist, Dr. George L. Rodriguez, found that appellant had a 27
percent impairment of the left upper extremity and 37 percent of the right upper extremity. A
second opinion physician, Dr. Kevin F. Hanley, found that appellant had a 16 percent
impairment of the right upper extremity and a 4 percent impairment of the left upper extremity.
In a decision dated June 5, 2007, the Board found that the impairment ratings of Drs. Rodriguez
and Hanley were in conflict and remanded the case for further development of the medical
evidence.2
On remand, the Office referred appellant to Dr. Joseph J. Mesa, a Board-certified
orthopedic surgeon, for an impartial medical examination. In a medical opinion dated
August 29, 2007, Dr. Mesa found that appellant had 35.6 percent impairment of the right upper
extremity and a 24 percent impairment of the left upper extremity. However, the Board found
that Dr. Mesa erred in that he combined findings of grip strength loss with findings of sensory
impairment of the median nerve when impairment arising from carpal tunnel syndrome should
be rated based on motor and sensory deficits. The Board noted that pursuant to the American
Medical Association, Guides to the Evaluation of Permanent Impairment in compression
neuropathies, additional impairment values are not given for decreased grip strength. The Board
directed that the Office ask Dr. Mesa to clarify whether appellant had any motor loss involving
his upper extremities.3
By letter dated June 30, 2008, the Office requested that Dr. Mesa clarify his opinion. It
asked Dr. Mesa whether appellant had any motor loss involving the upper extremities and to
further address the impairment arising from the accepted conditions of bilateral carpal tunnel
syndrome and trigger finger based on motor and sensory deficits in accordance with the A.M.A.,
Guides.
In an October 9, 2008 report, Dr. Mesa noted that his initial assessment included a grip
strength evaluation of appellant’s overall disability. However, upon further review of the
A.M.A., Guides, additional impairment values were not given for grip strength. He stated that,
when not allowing for grip strength, the right upper extremity impairment was 15.6. With regard
to the left upper extremity, Dr. Mesa found that appellant had four percent impairment of the left
arm.
1

Docket No. 08-184 (issued June 17, 2008); Docket No. 07-339 (issued June 5, 2007).

2

Docket No. 07-339, supra note 1. The Board found that Dr. Rodriguez found a range of motion impairment to
appellant’s right 3rd and 4th fingers whereas Dr. Hanley concluded that appellant’s trigger finger condition had
resolved without any impairment.
3

Docket No. 08-184 (issued June 17, 2008).

2

By letter dated November 7, 2008, the Office asked Dr. Mesa for further clarification of
his opinion. On December 3, 2008 it sent the impartial medical examiner a copy of an
October 30, 2008 magnetic resonance imaging (MRI) scan.4
Dr. Mesa responded on
January 21, 2009. He reviewed the 2008 MRI scan findings showing no muscular atrophy and
an electromyogram study obtained in 2005. There was a slow median motor conduction delay
across the right wrist, but his previous diagnosis and ratings remain unchanged. He opined that
there was no motor loss involving the upper extremities.
By decision dated January 22, 2009, the Office found that appellant was not entitled to an
additional schedule award.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act5 sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.6 The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice for all claimants under the law, good administrative practice requires the use of
uniform standards applicable to all claimants.7 The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.8
Where there exist opposing medical reports of virtually equal weight and rationale, and
the case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.9
ANALYSIS
A conflict in medical opinion was found between appellant’s treating physician,
Dr. Rodriguez, and the second opinion physician, Dr. Hanley. The Office properly referred
appellant to Dr. Mesa for an impartial medical examination. Dr. Mesa conducted a complete
physical examination and review of the medical records. On August 29, 2007 he opined that
appellant had a 35.6 percent impairment of the right upper extremity and a 24 percent
impairment of the left upper extremity. However, the Board subsequently noted that Dr. Mesa
improperly applied measurements for loss of grip strength. The case was remanded for Dr. Mesa
4

The October 30, 2008 MRI scan was interpreted by Dr. Howard C. Hutt, a Board-certified radiologist, as
evincing no evidence of bony abnormality; intrinsic ligaments and triangular cartilage complex are maintained;
flexor tendons have normal position with normal signal; and no abnormal enhancement.
5

5 U.S.C. §§ 8101-8193.

6

Id. at § 8107.

7

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

8

20 C.F.R. § 10.404.

9

Darlene Kennedy, 57 ECAB 414 (206).

3

to clarify his opinion as to the extent of permanent impairment. Dr. Mesa was asked to clarify
whether appellant had any motor loss involving the upper extremities and provide an impairment
rating conforming with the protocols of the A.M.A., Guides.
Dr. Mesa acknowledged that he improperly rated loss of grip strength. He amended the
impairment ratings to omit grip strength as an impairment. He found 16 percent impairment of
the right upper extremity and 4 percent impairment of the left upper extremity. With regard to
the right arm, he noted that appellant had a right median nerve sensory Grade 3 deficit under
Table 16-10, page 482 of the A.M.A., Guides. This allows between 26 and 60 percent for a
Grade 3 sensory deficit. Dr. Mesa rated appellant with a sensory deficit of 40 percent. Under
Table 16-15, page 492 of the A.M.A., Guides, a maximum impairment of 39 percent is allowed
for sensory impairment to the median nerve. Dr. Mesa properly determined that appellant had a
15.6 percent impairment of his right upper extremity, which was rounded to 16 percent. With
regard to the left upper extremity, he determined that appellant had a Grade 4 sensory deficit, for
which Table 16-10 allows from 1 to 25 percent. Dr. Mesa found that appellant had a 10 percent
sensory deficit. He multiplied 10 percent by the 39 percent maximum for sensory deficit to the
median nerve to rate a 3.9 percent impairment to the left upper extremity, which was rounded to
4 percent. Dr. Mesa removed the factor of grip strength from the impairment rating and advised
that there was no motor loss involving the upper extremities. Accordingly, the Office properly
granted schedule awards for 16 percent impairment of the right arm and 4 percent impairment of
the left arm.
Contrary to appellant’s contention, the Office followed the Board’s instructions on
remand. Dr. Mesa acknowledged his error in rating for grip strength and provided new ratings
that comply with the A.M.A., Guides. As noted, in cases of compression neuropathy, additional
impairment is not given for decreased grip strength.
When a case is referred to an impartial medical examiner to resolve a conflict in
evidence, the opinion of such specialist, if sufficiently well rationalized and based upon a proper
factual background, must be given special weight.10 The Board finds that the report of the
impartial medical examiner, Dr. Mesa, constitutes the special weight of the medical evidence and
establishes that appellant has no more than a 16 percent impairment of the right upper extremity
and a 4 percent impairment of the left upper extremity, for which he received schedule awards.
CONCLUSION
The Board finds that appellant has not established impairment greater than a 16 percent
impairment of his right upper extremity and a 4 percent impairment of his left upper extremity,
for which he received schedule awards.

10

Darlene Kennedy, supra note 9.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 22, 2009 is affirmed.
Issued: November 12, 2009
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Jackson, MS, Employer
__________________________________________

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Appearances:
Wilbert Rainey, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1419
Issued: February 27, 2019

Case Submitted on the Record

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

JURISDICTION
On July 17, 2018 appellant, through counsel, filed a timely appeal from a May 10, 2018
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180
days has elapsed from OWCP’s last merit decision, dated October 3, 2017, to the filing of this

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.

appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c)
and 501.3, the Board lacks jurisdiction to review the merits of this case.3
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On October 11, 2012 appellant, then a 26-year-old nursing assistant, filed a traumatic
injury claim (Form CA-1) alleging that on that day she sustained a bruise on both knee caps while
helping an employee change a patient. She related that a patient’s bed was not on all four wheels
and while turning the bed, it ran over her and caused her to fall on her legs. No additional evidence
was submitted.
In a development letter dated October 2, 2014, OWCP notified appellant of the medical
deficiencies of her claim. Appellant was instructed to provide a narrative medical report from her
physician which contained a detailed description of findings and diagnoses, explaining how the
reported work incident caused or aggravated her medical condition. OWCP afforded her 30 days
to submit the requested information. Appellant did not respond.
By decision dated November 7, 2014, OWCP denied appellant’s traumatic injury claim,
finding that she had not provided medical evidence which diagnosed a medical condition in
connection with the accepted work events of October 11, 2012. It noted that she failed to respond
to its October 2, 2014 development letter.
Appellant requested reconsideration on December 26, 2014 and submitted medical records
from the employing establishment’s health unit. A progress note dated September 22, 2014 signed
by Dr. David M. Walker, a Board-certified psychiatrist, and a consultation note dated
September 29, 2014 by Dr. Ashish Anand, an orthopedic surgeon, diagnosed a right knee sprain
and chondromalacia. Dr. Walker opined that appellant’s right knee sprain was caused by the
accepted October 11, 2012 employment incident.
By decision dated January 14, 2015, OWCP reviewed the merits of appellant’s claim,
vacated its November 7, 2014 decision, and accepted her claim for right knee sprain.
On August 7, 2017 appellant filed a notice of recurrence (Form CA-2a) alleging a
recurrence of the October 11, 2012 work injury on July 3, 2017. She stated that she experienced
constant popping in both of her knees while bending, which caused major pain. Appellant related
2

5 U.S.C. § 8101 et seq.

3

The Board notes that on appeal, appellant submitted additional evidence. However, section 501.2(c)(1) of 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 evidence for
the first time on appeal. Id.

2

that a magnetic resonance imaging (MRI) scan performed at the employing establishment on
August 2, 2017 suggested bone islands and mild effusion. The MRI scan also indicated that no
tears of meniscus, collateral, or excruciate ligaments were seen. Appellant did not stop work.
Appellant submitted additional medical records from the employing establishment’s health
unit. A progress note dated July 21, 2017 from Dr. Charles E. Morris, Board-certified in
occupational medicine, provided a diagnosis of reoccurrence of bilateral knee arthralgia. The
progress note indicated that appellant could return to work with restrictions.
An August 2, 2017 left knee MRI scan read by Dr. Stephen L. Curry, Board-certified in
diagnostic radiology, provided an impression of some fluid anterior to the patellar tendon which
could indicate prepatellar bursitis. He also provided an impression that structures of the knee were
otherwise unremarkable.
By development letter dated August 15, 2017, OWCP informed appellant that the evidence
submitted was insufficient to establish her recurrence claim. It afforded her 30 days to complete
an attached questionnaire posing questions about her work activities and medical symptoms, and
to submit additional medical evidence.
OWCP subsequently received an additional progress note of Dr. Morris dated
July 31, 2017. The progress note provided a diagnosis of bilateral knee strain and reiterated that
appellant could return to work with restrictions.
On September 12, 2017 Dr. James A. Hurt, III, a Board-certified orthopedic surgeon,
examined appellant and diagnosed pain in both knees, unspecified chronicity.
Dr. Robert W. Morris, Board-certified in diagnostic radiology, read an x-ray of appellant’s
bilateral knees on September 12, 2017. He reported that her bilateral knees had a normal
appearance.
By decision dated October 3, 2017, OWCP denied appellant’s recurrence claim, finding
that the evidence of record contained no medical evidence explaining how her current condition
was causally related to her accepted employment injury. It found that there was no bridging
medical evidence to establish an ongoing work-related injury as she had not submitted medical
evidence for over two years during the period from October 2014 to June 2017. OWCP indicated
that appellant’s diagnosis of chondromalacia had not been accepted as work related.
OWCP received a duplicate copy of Dr. Robert Morris’ September 12, 2017 bilateral knee
x-ray report.
On March 2, 2018 appellant requested reconsideration regarding the October 3, 2017
decision. She contended that OWCP erred in not accepting her claim for bilateral knee plica
syndrome causally related to the accepted October 11, 2012 employment injury. Appellant
asserted that employing establishment health care providers misdiagnosed her having right knee
sprain.
In response to OWCP’s development questionnaire, dated February 21, 2018, appellant
related that she had since been removed from nursing services to a position in medical services,
3

which required walking and standing. She described her work-related conditions and symptoms.
Appellant believed that her disability was caused by her accepted work injury because that was
what emergency room physicians told her. She reiterated that she had been misdiagnosed and she
should have been diagnosed as having plica syndrome, bilateral knees.
A progress note dated September 15, 2017 by appellant’s physical therapist was also
submitted. The physical therapist discussed examination findings and diagnosed plica syndrome,
bilateral knees. The report included a handwritten note, which indicated that the diagnosed
condition occurred when appellant was pinned against a hospital bed five years ago and the
condition was misdiagnosed by the employing establishment’s health unit. The note also indicated
that, as a result, her knee sprain diagnosis had escalated to plica syndrome, as the plica of the knee
had been aggravated.
By decision dated May 10, 2018, OWCP denied further merit review of appellant’s claim.
It found that the medical evidence submitted was immaterial to the issue of causal relationship.
LEGAL PRECEDENT
Section 8128 of FECA vests OWCP with a discretionary authority to determine whether it
will review an award for or against compensation, either under its own authority or on application
by a claimant.4 Section 10.608(b) of OWCP’s regulations provide that a timely request for
reconsideration may be granted if OWCP determines that the claimant has presented evidence
and/or argument that meet at least one of the standards described in section 10.606(b)(3).5 This
section provides that the application for reconsideration must be submitted in writing and set forth
arguments and contain evidence that either: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously
considered by OWCP.6 Section 10.608(b) provides that, when a request for reconsideration is
timely, but fails to meet at least one of these three requirements, OWCP will deny the application
for reconsideration without reopening the case for a review on the merits.7
The Board has held that the submission of evidence or argument which repeats or
duplicates evidence or argument already in the case record8 and the submission of evidence or
argument, which does not address the particular issue involved does not constitute a basis for
reopening a case.9

4

5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.608(a).

6

Id. at § 10.606(b)(3).

7

Id. at § 10.608(b).

8

Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).

9

Edward Matthew Diekemper, 31 ECAB 224-25 (1979).

4

ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for further review of the merits of the
claim. The Board finds that she has not shown that OWCP erroneously applied or interpreted a
specific point of law. In her March 2, 2018 request for reconsideration, appellant contended that
she had been misdiagnosed as having a right knee sprain by employing establishment’s health care
providers and that OWCP had erred in not accepting her claim for bilateral knee plica syndrome
causally related to the accepted October 11, 2012 employment incident. These assertions,
however, do not show a legal error by OWCP or a new and relevant legal argument. The
underlying issue in this case is whether appellant submitted medical evidence establishing that she
sustained a recurrence of her medical condition causally related to the accepted work injury. That
is a medical issue which must be addressed by relevant and pertinent new medical evidence.10
Accordingly, appellant is not entitled to a review of the merits of her claim based on the first and
second above-noted requirements under section 10.606(b)(3).
The Board further finds that appellant has failed to submit relevant and pertinent new
evidence not previously considered by OWCP in support of her request for reconsideration.
Appellant submitted her February 21, 2018 response to OWCP’s August 15, 2017 development
questionnaire. The Board finds that submission of this document did not require reopening her
case for merit review as it does not contain rationale by a physician relating her current medical
condition to the accepted October 11, 2012 employment injury, which was the issue before OWCP.
The Board has held that the submission of evidence or argument which does not address the
particular issue involved does not constitute a basis for reopening a case.11 Therefore, this
document does not constitute relevant and pertinent new evidence and is insufficient to require
OWCP to reopen the claim for further consideration of the merits.
The new progress note dated September 15, 2017 from appellant’s physical therapist is
insufficient to warrant merit review as a physical therapist is not considered a physician as defined
under FECA.12 The Board finds, therefore, that this evidence is not relevant to the underlying
medical issue on appeal and is insufficient to warrant further merit review of appellant’s claim.13

10

See L.F., Docket No. 17-0243 (issued June 20, 2017); Bobbie F. Cowart, 55 ECAB 746 (2004).

11

B.J., Docket No. 18-0756 (issued September 11, 2018).

12
See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and
physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection
defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by State law). R.C., Docket No. 17-1314 (issued
November 3, 2017).
13

R.C., id.

5

Appellant resubmitted Dr. Robert Morris’ September 12, 2017 bilateral knee x-ray report.
As previously noted, the Board has held that the submission of evidence or argument which repeats
or duplicates evidence or argument already in the case record and the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case.14 Accordingly, appellant is also not entitled to a review of the merits of her
claim based on the third above-noted requirement under section 10.606(b)(3).
The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.15
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the May 10, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 27, 2019
Washington, DC

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

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

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

14

See S.S., Docket No. 18-0647 (issued October 15, 2018); L.R., Docket No. 18-0400 (issued August 24, 2018).

15
See D.R., Docket No. 18-0357 (issued July 2, 2018); A.K., Docket No. 09-2032 (issued August 3, 2010); M.E.,
58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.S., Appellant
and
DEPARTMENT OF THE NAVY, NORFOLK
NAVAL SHIPYARD, Portsmouth, VA, Employer
__________________________________________

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Appearances:
Laura A. O’Reilly, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0134
Issued: July 23, 2018

Case Submitted on the Record

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

JURISDICTION
On October 23, 2017 appellant, through counsel, filed a timely appeal from a
September 28, 2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish an emotional
condition as a consequence of his accepted May 26, 2015 employment-related injury.
FACTUAL HISTORY
OWCP accepted that on May 26, 2015 appellant, then a 58-year-old rigger, sustained a
sprain of the left wrist carpal joint, left hip, left thigh, left ankle, left foot, and left sacroiliac
ligament and a contusion of the left chest wall when he stepped and fell into an uncovered hole
aboard a ship at work. Appellant stopped work that day and returned on November 20, 2015 to
full-time light-duty work.
In a telephone call on August 17, 2016, appellant requested that OWCP expand the
acceptance of his claim to include a psychiatric condition. OWCP advised him to submit a medical
report to indicate a consequential condition.
In progress notes dated July 13 and August 23, 2016, and in an August 10, 2016 letter,
Dr. Patrick D. Thrasher, a Board-certified psychiatrist, noted that appellant was referred to him for
psychiatric evaluation and treatment for possible post-traumatic stress disorder (PTSD) resulting
from the May 26, 2015 employment injury. He related a history of appellant’s accepted work
injury, his medical treatment, and his return to work. Dr. Thrasher reported that appellant’s
symptoms since his accident included being signiﬁcantly anxious, and depressed, having
flashbacks when he saw ships and submarines, and having nightmares and dreams about falling.
He noted that despite his PTSD and depression symptoms appellant was able to perform light-duty
work away from piers and ships. Dr. Thrasher noted, however, that appellant experienced
increased anxiety and a deteriorated mood when his request to continue to work away from piers
and ships was denied by his supervisor and he was assigned to work on a guard shack on a pier.
Appellant continued to suffer from these symptoms when his supervisor gave him a hard hat to
wear on the pier that unbeknownst to him read “Ole Crip.” He noticed that people began to call
him “Ole Crip” or “Crip” and when he inquired about this they told him what was written on the
hat. Appellant was extremely humiliated and embarrassed and took off work for one week. He
was also very angry, but internalized his feelings. Appellant was called “Ole Crip” when he saw
other employing establishment workers in public places. Dr. Thrasher noted appellant’s level of
stress due to family, friends, economic, occupational, housing, health, relationships, educational,
and legal concerns. He reported appellant’s scores on psychological testing and provided a review
of systems and examination findings, which included a Beck Depression Inventory score of 52.
Dr. Thrasher diagnosed single episode of severe major depressive disorder and chronic PTSD and
noted that appellant had no prior history of psychiatric illness or treatment. He opined that the
diagnosed conditions were consequential injuries causally related to appellant’s May 26, 2015
employment injury. Dr. Thrasher further opined that appellant’s conditions were exacerbated by
being humiliated by his supervisor and by his supervisor’s attitude towards his physical injuries.
OWCP, in a development letter dated December 14, 2016, advised appellant that it had
received his claim for major depressive disorder, single episode, severe and PTSD, and disability
as a consequence of his accepted work-related conditions. It noted that according to its records he
had returned to light-duty work on March 22, 2016. OWCP advised appellant as to the definition

2

of recurrence and the type of evidence required to establish such a claim. Appellant was afforded
30 days to submit the necessary evidence.
In a separate letter dated December 14, 2016, OWCP advised appellant that the prior
acceptance of his claim for sprain of the carpal joint of the left wrist was changed to acceptance of
sprain of the carpal joint of the right wrist.3
In response to OWCP’s December 14, 2014 development letter, Dr. Thrasher, in a
January 13, 2017 letter, again related a history of the May 26, 2016 employment injury and noted
the accepted conditions, and appellant’s medical treatment and physical limitations. He reported
that appellant initially presented with significant symptoms of PTSD and major depression which
was well documented in his accompanying progress notes. Dr. Thrasher reported that, in the six
months since appellant’s initial evaluation on July 13, 2016, he had responded well to a
combination of psychotherapy and anti-depressant medication. He related that appellant’s
depressed mood had essentially resolved and his PTSD symptoms were minimal when not exposed
to triggers that reminded him of his injury. Dr. Thrasher further related that appellant’s current
psychiatric diagnoses were chronic PTSD (i.e., present for more than three months) and recurrent
episode of severe major depressive disorder. He restated his prior findings that appellant
experienced increased PTSD symptoms following his new work assignment on the pier around
ships and on the docks. Dr. Thrasher indicated that after stabilization with psychotherapy and
psychotropic medication and being restricted from working on the piers and around ships
appellant’s mood improved and he was better able to function outside of work. Although
appellant’s anxiety at work had not fully resolved that he could function reasonably well as long
as he did not have to work in the vicinity of ships on the docks. However, he remained
apprehensive and vulnerable to PTSD ﬂashbacks and being reminded of the humiliation of being
called “Ole Crip.” Appellant also continued to use leave to avoid work. Dr. Thrasher restricted
appellant from working onboard ships or on the docks where he was constantly exposed to ships
or submarines that reminded him of his fall and injuries. He opined that there was a direct causal
relationship between appellant’s PTSD symptoms of anxiety, and ﬂashbacks, etc., and his work
exposure on docks and ships, and the hat incident. Dr. Thrasher maintained that had appellant not
had his accident he would not have had ﬂashbacks and nightmares related to the accident. He also
maintained that, for many years prior to appellant’s May 26, 2015 work accident, appellant was
anxiety free in the workplace and did not need treatment for any symptoms of PTSD, anxiety, or
depression. Dr. Thrasher related that appellant’s prior episode of PTSD that occurred during his
military service, 30 to 40 years ago, and after his divorce from his ﬁrst wife in approximately 1985
had fully resolved. Appellant had not received treatment for either problem for decades prior to
his May 26, 2015 work injury. Dr. Thrasher advised that this new injury precipitated new episodes
of PTSD and depression. He noted that it was not uncommon for a person who experienced a
traumatic event later in life to have a recurrence of symptoms of a long past earlier trauma brought
back to mind by the similarity of feelings between the old and new traumas. This in no way
indicated that the new trauma was not signiﬁcant and sufﬁcient in and of itself to precipitate a new
PTSD or a new episode of depression. People who responded to stresses with PTSD or depressive
symptoms at one point in their life were prone to have similar responses to stresses later in their
3
By decision dated, December 15, 2016, OWCP granted appellant a schedule award for one percent permanent
impairment of his left lower extremity. The period of the award ran for six weeks from April 14 to May 25, 2016.

3

life, not because the second response was caused by the first incident, but because they had the
same genetic brain with the same vulnerability to develop characteristic symptoms in response to
stress. Dr. Thrasher indicated that appellant had full resolution of his initial depressive and PTSD
symptoms from decades before with decades of normal emotional functioning without medication
or psychotherapy. He advised that appellant’s current job related PTSD stirred up memories of
the old traumatic event, resulting in psychiatric treatment to which he had responded well.
Dr. Thrasher concluded that appellant’s current PTSD and major depressive episode were
consequential conditions causally related to the accepted diagnoses stemming from his May 26,
2015 work-related accident.
Dr. Thrasher submitted progress notes dated July 13 through December 21, 2016 in which
he again related appellant’s history and examination findings. He also reiterated his prior
diagnoses of single severe episode of major depressive disorder and chronic PTSD. Dr. Thrasher
endorsed appellant’s transfer to the nightshift which would reduce his anxiety signiﬁcantly.
By decision dated January 19, 2017, OWCP found that the evidence of record was
insufficient to establish that appellant sustained a recurrence of disability casually related to his
accepted May 26, 2015 work-related conditions. It noted that the medical evidence attributed his
diagnosed emotional conditions to new work-related exposure and he had not responded to its
questionnaire regarding the factual circumstances of his claimed conditions.
On January 20, 2017 appellant responded to OWCP’s December 14, 2016 development
questionnaire. He noted the emotional symptoms he developed following his May 26, 2015
employment injury and that he previously had depression following his divorce and during
difficulties while on active duty in the service over 20 years ago. Appellant further noted his
previous and current treatment for his emotional symptoms. He related that after his May 26, 2015
employment injury he initially returned to light-duty work in a tool room in February 2016, but
was later assigned in the summer to work at a guard shack on a pier where he worked until he was
restricted from doing so by Dr. Thrasher. Since approximately, July 2016 appellant had been
assigned to light-duty work in the tool room. He indicated that Dr. Thrasher believed that
appellant’s emotional symptoms were related to his work.
In a letter and an appeal request form received on February 13, 2017, appellant, through
counsel, requested an oral hearing before an OWCP hearing representative regarding the
January 19, 2017 decision.
In progress notes dated April 26 and June 7, 2017, Dr. Thrasher reiterated appellant’s
reaction to the work incidents set forth in his prior reports. He reiterated his prior diagnosis of
recurrent episode of unspecified major depressive disorder and chronic PTSD. Dr. Thrasher
related that appellant continued to report symptoms of PTSD related to being on the docks around
the ships at the employing establishment, but that medication allowed him to use coping skills to
calm his anxiety.
By decision dated September 28, 2017, an OWCP hearing representative treated the
recurrence claim as a consequential injury claim as counsel asserted during the July 28, 2017
hearing that appellant was claiming a consequential emotional condition. He affirmed the
January 19, 2017 decision, finding that the medical evidence of record was insufficient to establish

4

that appellant sustained an emotional condition as a consequence of his accepted May 26, 2016
employment injuries. The hearing representative noted that Dr. Thrasher attributed appellant’s
diagnosed emotional conditions to several intervening work incidents rather than as a consequence
of the accepted work injuries. He maintained that such repeated exposure was consistent with an
occupational disease claim and recommended that appellant file an occupational disease claim.
LEGAL PRECEDENT
When an injury arises in the course of employment, every natural consequence that flows
from that injury likewise arises out of the employment, unless it is the result of an independent
intervening cause attributable to the claimant’s own intentional misconduct.4 Thus, a subsequent
injury, be it an aggravation of the original injury or a new and distinct injury, is compensable if it
is the direct and natural result of a compensable primary injury.5 Aclaimant bears the burden of
proof to establish a claim for a consequential injury. As part of this burden, the claimant must
present rationalized medical opinion evidence.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the 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.7
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that the
diagnosed conditions of major depressive disorder and PTSD were a consequence of the accepted
May 26, 2015 employment injury.
OWCP has accepted that appellant stepped into a hole aboard a boat on May 26, 2015 and
that he sustained sprain of the left hip, left thigh, left ankle, left foot, and left sacroiliac ligament,
contusion of the left chest wall, and sprain of right wrist carpal joint. Appellant returned to lightduty work following the May 26, 2015 employment injury and on August 17, 2016 he requested
that the acceptance of the claim be expanded to include major depressive disorder and PTSD.
Appellant submitted a series of progress notes and reports from his attending psychiatrist,
Dr. Thrasher, who diagnosed chronic PTSD and recurrent episode of severe major depressive
disorder as a consequence of the accepted May 26, 2015 employment injury. Initially,
Dr. Thrasher reported that appellant had no prior history of psychiatric treatment or illness.
4
Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 3.05 (2014); see Charles W. Downey,
54 ECAB 421 (2003).
5

Susanne W. Underwood (Randall L. Underwood), 53 ECAB 139, 141 n.7 (2001).

6

Charles W. Downey supra note 4.

7

See I.J., 59 ECAB 408 (2008); Donna Faye Cardwell, 41 ECAB 730 (1990).

5

Subsequently, in his January 13, 2017 report, he acknowledged that appellant had prior episodes
of PTSD during his military service some 30 to 40 years prior, and after his divorce in 1985. The
Board has held that a physician’s opinion on causal relationship must be based on a complete and
accurate factual and medical background, and must be supported by medical rationale, explaining
the nature of the relationship between the diagnosed condition(s) and appellant’s specific
employment event.8
While Dr. Thrasher provided a general opinion on causal relationship, he did not
sufficiently explain how appellant’s diagnosed emotional conditions were causally related to the
accepted May 26, 2016 employment injury. Medical reports without adequate rationale on causal
relationship are of diminished probative value and are insufficient to meet an employee’s burden
of proof.9 The need for medical reasoning or rationale is particularly important given the fact that
medical evidence of record indicates that appellant had preexisting conditions which were not
work related.10 Dr. Thrasher related that appellant had recovered from his prior emotional
conditions, however, he still had the same genetic brain, with the same vulnerability to develop
symptoms in response to stress. He did not, however, provide a rationalized medical explanation
as to why stepping into a hole would have caused or contributed to emotional stress sufficient to
develop major depression and PTSD.
Additionally, rationale is needed in view of Dr. Thrasher’s subsequent opinion provided in
the January 13, 2017 report that appellant’s diagnosed conditions were exacerbated by being
assigned to work on a pier and unknowingly wearing a hat that read “Ole Crip” at work that was
given to him by his supervisor. As noted by OWCP this is a new intervening factor, for which
appellant can file a new occupational disease claim.11 Dr. Thrasher did not provide a fully
rationalized opinion explaining why the diagnosed emotional conditions were caused or
aggravated by the May 26, 2015 work injury and why it was not solely attributable to other factors.
Dr. Thrasher’s remaining progress notes addressed appellant’s claimed emotional
conditions, but did not offer an opinion addressing whether the diagnosed conditions were causally
related to the accepted employment-related injury. Medical evidence that does not offer an opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship.12
Appellant has the burden of proof to establish a claim for a consequential injury through
the submission of rationalized medical opinion evidence.13 He has not submitted evidence from a
physician who, based on an accurate factual history, found that he had additional conditions as a
8

See C.J., Docket No. 18-0069 (issued May 9, 2018).

9

T.C., Docket No. 15-1534 (issued March 1, 2016); Ceferino L. Gonzales, 32 ECAB 1591 (1981).

10

See R.F., Docket No. 17-0113 (issued April 10, 2018).

11

Supra note 4.

12

T.M., Docket No. 16-1456 (issued January 10, 2017); C.B., Docket No. 09-2027 (issued May 12, 2010); J.F.,
Docket No. 09-1061 (issued November 17, 2009); A.D., 58 ECAB 149 (2006).
13

Supra note 6.

6

consequence of his May 26, 2015 employment injury and supports his or her opinion with medical
reasoning. Consequently, appellant has not met his burden of proof.
On appeal counsel contends that Dr. Thrasher’s medical opinion establishes that appellant
sustained PTSD and major depression as a consequence of his accepted employment injuries. As
found above, however, Dr. Thrasher’s opinion that appellant’s emotional conditions were a
consequence of his accepted May 26, 2015 employment-related injury was not sufficiently
rationalized.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to establish an emotional condition as a
consequence of his accepted May 26, 2015 employment-related injury.
ORDER
IT IS HEREBY ORDERED THAT the September 28, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 23, 2018
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.R., Appellant
and
DEPARTMENT OF THE AIR FORCE, LOS
ANGELES AIR FORCE BASE, El Segundo, CA,
Employer
__________________________________________

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

Docket No. 12-1288
Issued: October 17, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 25, 2012 appellant filed a timely appeal from a January 31, 2012 nonmerit
decision of the Office of Workers’ Compensation Programs denying her request for
reconsideration as untimely and insufficient to establish clear evidence of error. As the last merit
decision was issued November 8, 2002, more than one year from the filing of the appeal,1 the
Board lacks jurisdiction to review the merits of this case pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely and did not show clear evidence of error.
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 20, 2002 appellant, then a 43-year-old financial analyst, filed an
occupational disease claim alleging that she sustained a stress-related condition due to wrongful
termination on January 14, 2000. She noted that she was reinstated by the employing
establishment on May 6, 2001.
By decision dated June 5, 2002, OWCP denied appellant’s emotional condition claim
finding that she did not establish any compensable work factors. It determined that the
employing establishment terminated her employment and then reinstated her following a
decision by the Merit Systems Protection Board.3 OWCP noted, however, that appellant failed
to submit a copy of the decision or provide a detailed description of the work factors to which
she attributed her condition.
On August 5, 2002 appellant requested reconsideration. In a decision dated November 8,
2002, OWCP denied modification of its June 5, 2002 decision. It reviewed the evidence and
found that the employing establishment removed appellant for misuse of government-issued
credit cards. Appellant was reinstated after a negotiated settlement that did not constitute an
admission of wrongdoing by the employing establishment.
On October 26, 2011 appellant requested reconsideration.4 She argued that the
employing establishment improperly failed to provide her with priority reemployment after a
termination decision under file number xxxxxx833.5 Appellant further maintained that the
employing establishment violated federal and state rules, discriminated against her and acted in a
retaliatory manner. She asserted that she experienced stress due to the delay in reemployment,
unfavorable experiences with OWCP and mortgage fraud. Appellant asserted that the employing
establishment treated her unfairly.
Appellant submitted correspondence with the employing establishment regarding her
attempt to secure employment. She further submitted copies of OWCP decisions, a complaint of
discrimination by OWCP, a dismissal of the complaint by the Department of Labor and
certificates recognizing her performance by the employing establishment. December 17, 2010
emergency room report indicated that appellant received treatment after she was evicted from her
home. On December 18, 2010 a social worker noted that appellant believed that her identity had
been stolen and that she was a “victim of fraud.”
By decision dated January 31, 2012, OWCP denied appellant’s request for
reconsideration after finding that it was untimely and did not establish clear evidence of error.

3

OWCP determined that appellant had established that she was terminated and then reinstated under file number
xxxxxx833.
4

Appellant also requested reconsideration of another file number and raised arguments pertaining to that claim.

5

Appellant has filed an appeal with the Board from file number xxxxxx833. The Board will address appellant’s
arguments relevant to file number xxxxxx833 in Docket No. 12-1287.

2

On appeal, appellant argues that OWCP failed to adequately review her case and her
supporting evidence and argument. She further contends that OWCP violated state and federal
laws.
LEGAL PRECEDENT
OWCP, through regulation, has imposed limitations on the exercise of its discretionary
authority under section 8128(a) of FECA.6 It will not review a decision denying or terminating a
benefit unless the application for review is filed within one year of the date of that decision.7
When an application for review is untimely, it undertakes a limited review to determine whether
the application presents clear evidence that its final merit decision was in error.8 OWCP’s
procedures state that it will reopen a claimant’s case for merit review, notwithstanding the
one-year filing limitation set forth in 20 C.F.R. § 10.607, if the claimant’s application for review
shows “clear evidence of error” on the part of OWCP.9 In this regard, OWCP will limit its focus
to a review of how the newly submitted evidence bears on the prior evidence of record.10
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP. The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error. Evidence which does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to establish clear
evidence of error.11 It is not enough merely to show that the evidence could be construed so as to
produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and
whether the new evidence demonstrates clear error on the part of OWCP. To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to raise a substantial question as to the correctness of OWCP’s decision.12 The
Board makes an independent determination of whether a claimant has submitted clear evidence
of error on the part of OWCP such that it improperly denied merit review in the face of such
evidence.13

6

Supra note 2.

7

20 C.F.R. § 10.607; see also Alan G. Williams, 52 ECAB 180 (2000).

8

Veletta C. Coleman, 48 ECAB 367 (1997).

9

See Gladys Mercado, 52 ECAB 255 (2001). Section 10.607(b) provides: “[OWCP] will consider an untimely
application for reconsideration only if the application demonstrates clear evidence of error on the part of [it] in its
most recent decision. The application must establish, on its face, that such decision was erroneous.” 20 C.F.R.
§ 10.607(b).
10

See Nelson T. Thompson, 43 ECAB 919 (1992).

11

Leon J. Modrowski, 55 ECAB 196 (2004); Dorletha Coleman, 55 ECAB 143 (2003).

12

Id.

13

Pete F. Dorso, 52 ECAB 424 (2001); John Crawford, 52 ECAB 395 (2001).

3

ANALYSIS
OWCP properly determined that appellant failed to file a timely application for review.
Its procedures provide that the one-year time limitation period for requesting reconsideration
begins on the date of the original OWCP decision.14 A right to reconsideration within one year
also accompanies any subsequent merit decision on the issues.15 As appellant’s October 26,
2011 request for reconsideration was submitted more than one year after the last merit decision
of record, it was untimely. Consequently, she must demonstrate clear evidence of error by
OWCP in denying her claim for compensation.16
Appellant contended that the employing establishment violated federal and state rules,
acted in a discriminatory manner and retaliated against her. The underlying issue in this case is
whether she established a compensable work factor. Appellant’s general allegation is
insufficient to establish clear evidence of error as she did not identify any specific error by
OWCP in finding that she had not established a compensable employment factor or submit any
evidence supporting her allegations of rule violations, retaliation or discrimination.
Appellant alleged that she experienced stress from mortgage fraud and dealing with
OWCP. Matters regarding mortgage fraud are outside the scope of FECA. Additionally, the
handling of a workers’ compensation claim is not related to an employee’s job duties and is not
considered a compensable work factor.17 Consequently, appellant has not raised an allegation
that warrants a finding of clear evidence of error.
In support of her request for reconsideration, appellant submitted letters regarding her
request to resume work at the employing establishment, copies of OWCP decisions, a complaint
made against OWCP and certificates recognizing her performance by her employer. She further
submitted a December 17, 2010 emergency room report and a December 18, 2010 report from a
social worker who noted that appellant felt that her identity had been stolen. None of this
evidence, however, is relevant to the underlying issue of whether appellant has established a
compensable work factor supporting her emotional condition claim. In order to establish clear
evidence of error, a claimant must submit evidence relevant to the issue which was decided by
OWCP.18
On appeal, appellant contends that OWCP violated state and federal laws and did not
properly review her case. She did not, however, specify any particular legal or factual error or
violation of the law by OWCP. In order to establish clear evidence of error, the evidence

14

20 C.F.R. § 10.607(a).

15

Robert F. Stone, 57 ECAB 292 (2005).

16

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

17

See W.S., Docket No. 08-2126 (issued April 15, 2009); David C. Lindsey, Jr., 56 ECAB 263 (2005).

18

Howard Y. Miyashiro, 51 ECAB 253 (1999).

4

submitted must raise a substantial question as to the correctness of OWCP’s decision.19 The
evidence that appellant submitted on reconsideration fails to meet this standard.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely and did not show clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the January 31, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 17, 2012
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

19

See Veletta C. Coleman, supra note 8.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.J., Appellant
and
DEPARTMENT OF THE AIR FORCE,
RANDOLPH AIR FORCE BASE, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Marion L. Williams, for the appellant
Office of Solicitor, for the Director

Docket No. 13-1737
Issued: December 9, 2013

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 July 15, 2013 appellant filed a timely appeal from the June 14, 2013 merit decision of
the Office of Workers’ Compensation Programs (OWCP) denying his occupational disease
claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he developed
hearing loss causally related to factors of his federal employment.
FACTUAL HISTORY
On April 16, 2013 appellant, then a 63-year-old tools and parts attendant filed an
occupational disease claim (Form CA-2) alleging hearing loss due to factors of his federal
employment. He stated that a final hearing examination before out-processing from the civil
1

5 U.S.C. § 8101 et seq.

service demonstrated binaural hearing loss.
examination.

Appellant did not submit the results of the

By letter dated April 22, 2013, OWCP requested additional factual and medical evidence
from appellant and to respond to inquiries regarding his duties and facts surrounding his
condition. It afforded him 30 days to submit the additional evidence.
In a position description dated May 23, 2006, appellant’s duties as a tools and parts
attendant were described as keeping stocks of tools and parts used by shop employees in their
work, issuing items to shop employees as needed, keeping track of the whereabouts of items,
monitoring returns, setting up storage locations, making determinations on tool repair versus
disposal, calibrating tools, and finding suitable substitutes for tools and parts.
By decision dated June 14, 2013, OWCP denied appellant’s claim, finding that the factual
evidence was not sufficient to establish noise exposure in his employment. It noted that
appellant had not submitted evidence to explain how his hearing loss occurred or medical
evidence to establish that he had a diagnosed condition causally related to factors of his federal
employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.2 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or occupational disease.3
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.4
ANALYSIS
On April 16, 2013 appellant filed an occupational disease claim alleging that he sustained
binaural hearing loss as a result of his federal employment. OWCP denied his claim, finding that
he had not submitted sufficient factual and medical evidence to establish a hearing loss due to
factors of his federal employment.
2

Gary J. Watling, 52 ECAB 278, 279 (2001); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

3

Michael E. Smith, 50 ECAB 313, 315 (1999).

4

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

2

In support of his claim, appellant sent a notification of personnel action and a position
description. This evidence does not document the nature or extent of any noise to which he was
exposed while employed. The position description of May 23, 2006, listed appellant’s duties as
a tools and parts attendant but did not address the noise caused by the tools with which he
worked or the hours of any such exposure.
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.5
The Board finds that appellant has not submitted adequate evidence pertaining to the
noise alleged to have caused or contributed to his hearing loss. Furthermore, appellant did not
submit any medical evidence to establish that he was diagnosed with a hearing loss.
As appellant did not submit sufficient factual and medical evidence in support of his
claim that he developed hearing loss as a result of identified employment factors, he has not met
his burden of proof.
Appellant submitted new evidence on appeal. The Board lacks jurisdiction to review
evidence for the first time on appeal.6 Appellant may submit new evidence or argument with a
written request for reconsideration to OWCP within one year of this merit decision, pursuant to
5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that he developed hearing loss in the
performance of duty because he did not meet his burden of proof to establish the factual
component of fact of injury.

5

Id.

6

20 C.F.R. § 501.2(c).

3

ORDER
IT IS HEREBY ORDERED THAT the June 14, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 9, 2013
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
__________________________________________
L.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Brooklyn, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 15-0698
Issued: March 25, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 11, 2015 appellant filed a timely appeal from a September 19, 2014 merit
decision and a December 19, 2014 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP).1 Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over merits of this case.3
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish that he
sustained a right foot injury in the performance of duty on July 14, 2014, as alleged; and

1

The Board notes that additional medical evidence was received after OWCP’s September 19, 2014 merit
decision. As this new evidence was not considered by OWCP in reaching a decision, the Board lacks jurisdiction to
review this new evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1).
2
3

5 U.S.C. § 8101 et seq.

Appellant filed a timely request for oral argument before the Board. By order dated December 7, 2015, the
Board, after exercising its discretion, denied appellant’s request for oral argument. See Order Denying Request for
Oral Argument, Docket No. 15-0698 (issued December 7, 2015).

(2) whether OWCP properly denied his request for an oral hearing as untimely under 5 U.S.C.
§ 8124.
FACTUAL HISTORY
On August 4, 2014 appellant, then a 51-year-old chauffer carrier, filed a traumatic injury
claim (Form CA-1) alleging that on July 14, 2014 he experienced pain in his right foot due to
excessive walking and stepping on and off truck steps and house steps. He stopped work on
August 1, 2014.
With his claim, appellant submitted an August 4, 2014 statement indicating that he
started feeling pain in his right foot on July 14, 2014 and pain his lower back on August 1, 2014.
He indicated that his back pain intensified on August 2, 2014 and he used sick leave.4 Appellant
requested to see a doctor as his back and foot were still painful.
In an August 4, 2014 Form CA-16, Dr. Sudha P. Patel, a general surgeon, noted the
history of injury as “while on truck, patient was stepping off and felt pain in right heel and foot,
excessive walking on and off truck steps and houses; right foot and right heel pain.” She
diagnosed right foot and ankle derangement and possible plantar fascia with exacerbation of
symptoms. Dr. Patel opined, with a checkmark in a box marked “no,” that the diagnoses were
not caused or aggravated by the described employment activity. She further opined that
appellant would be unable to work for three to four weeks and needed physical therapy.
In an August 4, 2014 duty status report (Form CA-17), Dr. Patel noted that on July 14,
2014 appellant was walking and climbing up and down steps. She advised there was possible
plantar fascia with exacerbation of symptoms and diagnosed right foot and ankle derangement.
Dr. Patel opined that appellant was totally disabled and would require physical therapy three
times a week for three to four weeks.
A copy of an August 4, 2014 right foot x-ray was also submitted.
By letter dated August 12, 2014, OWCP advised appellant of the deficiencies in his claim
and provided him 30 days in which to submit additional factual and medical evidence, to include
a diagnosis of a medical condition sustained as a result of the claimed events. Appellant was
asked to provide a statement describing his injury and explaining the delay in filing his claim and
seeking treatment. He was asked to provide a statement from any persons who witnesses to the
injury or had immediate knowledge of it or other documentation that supported his claim.
Appellant was asked to describe his condition immediately following the occurrence and leading
up to the first medical treatment. He was also asked to comment on any other disabilities and/or
medical conditions that he may have. Appellant was also asked to clarify if he was claiming a
traumatic injury or occupational disease based on the provided definition.
On August 24, 2014 OWCP received an August 5, 2014 report from Dr. Patel. In this
narrative report, Dr. Patel stated that appellant was seen on August 4, 2014 for back injury
sustained at work on August 1, 2014. Appellant was noted to have experienced lower back pain
on August 1, 2014 while working lifting relays and stacking them in the relay box. A diagnosis
4

The record indicates that appellant has filed a separate claim for his alleged back injury of August 1, 2014,
OWCP File No. xxxxxx827.

2

of low back derangement and lumbosacral radiculopathy was provided. Dr. Patel opined that
appellant was disabled and required physical therapy three times a week for four weeks.
Duplicate copies of the August 4, 2014 Form CA-16 and Form CA-17 were provided along with
an August 14, 2014 letter from the nurse intervention program noting a new claim for a back
injury was being adjudicated.
In an August 29, 2014 duty status report, Dr. Patel noted the date of injury of July 14,
2014 and referred to his initial report for a description. She described clinical findings of
possible plantar fascia with dorsal calcaneal spur and diagnosed right foot and ankle deformity
and advised appellant was totally disabled.
In a September 2, 2014 attending physician’s report (Form CA-20), Dr. Patel indicated
findings of plantar dorsal calcaneal spurs on right foot; subluxation of the foot; degenerative big
toe and joint. He diagnosed possible plantar fascia with exacerbation of symptoms and right foot
and ankle derangement. Dr. Patel opined that the diagnosed conditions were caused or
aggravated by the employment activity as “walking, standing and going up and down truck,
carrying heavy boxes aggravates patient’s condition and pains in right foot.” Authorization for a
magnetic resonance imaging (MRI) scan of right foot was requested.
By decision dated September 19, 2014, OWCP denied appellant’s claim as the evidence
was insufficient to establish that the incident occurred as alleged since appellant did not clarify
what type of injury he was claiming or explain his delay in filing his claim and receiving medical
treatment. He also did not describe his condition between initial injury and first medical
treatment, nor did he comment on any previous medical conditions or injuries he had. In
addition, OWCP also informed appellant that the medical evidence of record was insufficient to
establish that a diagnosed medical condition was causally related to the work injury or event. It
therefore concluded that appellant had not established fact of injury.
Appellant requested an oral hearing before OWCP’s Branch of Hearings and Review, by
letter postmarked October 27, 2014. With his request for an oral hearing, appellant submitted
additional medical evidence.
By decision dated December 19, 2014, the Branch of Hearings and Review denied
appellant’s request for an oral hearing as untimely without a merit review. It considered his
request within its discretion, but found that his case could be addressed equally well by a request
for reconsideration and the submission of evidence showing that he sustained an injury as
defined by FECA.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was 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

3

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
OWCP regulations, at 20 C.F.R. § 10.5(ee) 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.7 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.8 First, the employee must submit sufficient evidence to establish that he actually
experienced the employment incident at the time, place, and in the manner alleged.9 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.10
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.11 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors.12 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.13
ANALYSIS -- ISSUE 1
The Board finds that appellant has failed to establish an injury in the performance of duty
on July 14, 2014, as alleged. Appellant claimed to have experienced right foot pain on July 14,
2014 due to excessive walking and stepping on and off truck steps and house steps. However, he
did not file his claim until August 4, 2014 and did not seek medical care until August 4, 2014.
OWCP asked appellant to provide a detailed description as to how his injury occurred, but he did
not provide the requested factual information and there were no reported witnesses.
Appellant bears the burden of establishing the essential elements of his claim, which
includes fact of injury. Other than noting that he had engaged in excessive walking and stepping
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

20 C.F.R. § 10.5(ee); Ellen L. Noble, 55 ECAB 530 (2004).

8

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

9

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

10

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra
note 5.
11

A.D., 58 ECAB 149 (2006); Michael S. Mina, 57 ECAB 379 (2006); Y.J., Docket No. 08-1167 (issued
October 7, 2008).
12

Sedi L. Graham, 57 ECAB 494 (2006); J.J., Docket No. 09-27 (issued February 10, 2009).

13

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

4

on and off truck steps and house steps when he felt right foot pain, he did not provide specific
details of any particular work activity, such as how many hours a day of walking he performed,
or the location and time of the incident regarding steps that gave rise to his right foot pain. An
employee’s statement alleging that an incident or exposure occurred at a given time and in a
given manner is of great probative value and will stand unless refuted by strong or persuasive
evidence.14 In the absence of such a statement, OWCP properly found that appellant failed to
establish fact of injury. Appellant’s description fails to adequately detail the alleged work
incident, as required in a traumatic injury claim. His description is vague and does not relate
with specificity the circumstances of the injury, or identify the actual cause.15
The Board notes that while Dr. Patel indicates that the same history as provided by
appellant in his August 4 and September 2, 2014 CA-16 form reports and diagnosed right foot
and ankle derangement and possible plantar fascia with exacerbation of symptoms, he provided
conflicting opinions on causal relationship. In his August 4, 2014 CA-16 form report, Dr. Patel
indicated by checking a box marked “no” that appellant’s conditions were not caused or
aggravated by his employment activities. However, in his September 2, 2014 CA-20 form
report, Dr. Patel opined that the possible plantar fascia with exacerbation of symptoms and right
foot and ankle derangement were caused or aggravated by the employment activity as “walking,
standing and going up and down truck, carrying heavy boxes aggravates patient’s condition and
pains in right foot.” Due to Dr. Patel’s inconsistent findings without medical rational reconciling
her changed opinion, appellant has not established that the incident occurred in the performance
of duty, as alleged.16
The Board also notes that Dr. Patel prepared a narrative report dated August 5, 2014, in
which he related that appellant was seen on August 4, 2014 for a work-related low back injury of
August 1, 2014. In this report, Dr. Patel indicated that appellant was disabled from work for four
weeks, but he did not mention appellant’s right foot injury, instead he referenced appellant’s
back injury.
In its August 12, 2014 development letter, OWCP informed appellant that the
information initially provided was insufficient to support his claim. Appellant was provided a
series of questions regarding the factual circumstances of the alleged incident and advised to
provide details which would clarify the nature of his claim. He provided no factual response,
however, to OWCP’s request for information.
Appellant has not met his burden of proof to establish that he sustained a right foot injury
on July 14, 2014.17

14

C.S., supra note 5; Sedi L. Graham, supra note 12.

15

L.W., Docket No. 15-1191 (issued September 8, 2015).

16

The Board has found that the opinion of a physician supporting causal relationship must be one of reasonable
medical certainty that the condition for which compensation is claimed is causally related to federal employment
and such relationship must be supported with affirmative evidence, explained by medical rationale and be based
upon a completed and accurate medical and factual background of the claimant. See L.M., Docket No. 09-1810
(issued March 23, 2010); Patricia J. Glenn, 53 ECAB 159 (2001).
17

T.C., Docket No. 12-579 (issued July 2, 2012); Paul Foster, 56 ECAB 208 (2004).

5

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.18
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b) of FECA provides that a claimant for compensation not satisfied with a
decision of the Secretary is entitled, on request made within 30 days after the date of the issuance
of the decision, to a hearing on his claim before a representative of the Secretary.19 Section
10.615 of the federal regulations implementing this section of FECA provides that a claimant
shall be afforded a choice of an oral hearing or a review of the written record.20 The request
must be sent within 30 days (as determined by postmark or other carrier’s date marking) of the
date of the decision for which a hearing is sought.21 A claimant is entitled to a hearing or review
of the written record as a matter of right if the request is filed within 30 days.22
While a claimant may not be entitled to a hearing or review of the written record as a
matter of right if the request is untimely, OWCP has the discretionary authority to grant the
request and must properly exercise such discretion.23
ANALYSIS -- ISSUE 2
In a decision dated September 19, 2014, OWCP denied appellant’s traumatic injury
claim. The record indicates that appeal rights accompanied the decision. Appellant requested an
oral hearing in a letter postmarked October 27, 2014. By decision dated December 19, 2014,
OWCP denied his request for an oral hearing as untimely under section 8124 of FECA.
The 30-day time period for determining the timeliness of appellant’s review of the
written record began on September 20, 2014 and ended on October 20, 2014. As appellant’s
request for a hearing was postmarked October 27, 2014, he was not entitled to an oral hearing as
a matter of right.

18

The Board notes that the employing establishment issued a properly completed Form CA-16 to Dr. Patel which
authorized medical treatment as a result of the employee’s claim for an employment-related injury. The Form CA16 creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the
examination or treatment regardless of the action taken on the claim. The period for which treatment is authorized
by a Form CA-16 is limited to 60 days from the date of issuance, unless terminated earlier by OWCP. On return of
the record, OWCP should adjudicate whether appellant’s examination or treatment is reimbursable under the form.
See W.V., Docket No. 14-1608 (issued November 19, 2014).
19

5 U.S.C. § 8124(b)(1).

20

20 C.F.R. § 10.615.

21

Id. at § 10.616(a).

22

See Leona B. Jacobs, 55 ECAB 753 (2004).

23

20 C.F.R. § 10.616(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the
Written Record, Chapter 2.1601.4(a) (October 2011).

6

OWCP has the discretionary power to grant a hearing or review of the written record
when a claimant is not entitled to a hearing or review as a matter or right. It properly exercised
its discretion by stating that it had considered the matter in relation to the issue involved and
denied appellant’s request for an oral hearing on the basis that the case could be resolved by
submitting additional evidence to OWCP with a reconsideration request. The Board has held
that the only limitation on OWCP’s discretionary authority is reasonableness. An abuse of
discretion is generally shown through proof of manifest error, clearly unreasonable exercise of
judgment, or actions taken which are contrary to both logic and probable deduction from
established facts.24 In this case, the evidence of record does not establish that OWCP committed
any action in connection with its denial of appellant’s request for an oral hearing which could be
found to be an abuse of discretion. Consequently, OWCP properly denied his request for an oral
hearing as untimely under section 8124 of FECA.
CONCLUSION
The Board finds that appellant has not established that he sustained a right foot condition
in the performance of duty on July 14, 2014, as alleged. Furthermore, the Board finds that
OWCP properly denied his request for an oral hearing as untimely.
ORDER
IT IS HEREBY ORDERED THAT the December 19 and September 19, 2014
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: March 25, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

24

See L.W., 59 ECAB 471 (2008).

7