United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.H., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
Richmond, CA, Employer
__________________________________________

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

Docket No. 18-1297
Issued: January 3, 2019

Case Submitted on the Record

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

JURISDICTION
On June 19, 2018 appellant, through counsel, filed a timely appeal from a May 3, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

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

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether appellant has met her burden of proof to establish more than 10 percent
permanent impairment of her right upper extremity, for which she previously received a schedule
award.
FACTUAL HISTORY
On May 14, 2010 appellant, then a 48-year-old claims authorizer, filed an occupational
disease claim (Form CA-2) alleging that she sustained a right shoulder and arm strain causally
related to factors of her federal employment. OWCP accepted the claim, assigned File No.
xxxxxx521, for rotator cuff syndrome and impingement syndrome of the right shoulder, and
dysthymic disorder.
OWCP had previously accepted that appellant sustained a traumatic right shoulder strain
(Form CA-1) on May 4, 2009 under File No. xxxxxx115. It also accepted her January 26, 2012
occupational disease claim for left shoulder sprain, a partial infraspinatus tear, tendinitis, and
cervicalgia under File No. xxxxxx606. OWCP administratively combined OWCP File Nos.
xxxxxx521, xxxxxx115, and xxxxxx606, with OWCP File No. xxxxxx521 serving as the master
file.
On April 30, 2012 appellant underwent a right shoulder acromioplasty with a distal clavicle
excision and labral repair. On February 24, 2014 she underwent a synovectomy, bursectomy,
ligament release, biceps tendon release, acromioplasty, debridement of the rotator cuff, and
removal of the anchor from the labrum. OWCP paid appellant wage-loss compensation for
intermittent periods of temporary total disability.
In a February 18, 2015 impairment evaluation, Dr. Michael E. Hebrard, a Board-certified
physiatrist, diagnosed status postsurgical decompression of the right shoulder, bilateral adhesive
capsulitis of the shoulders, and cervicobrachial syndrome. He measured range of motion of the
shoulders and found positive crepitus on examination with moderate-to-severe right shoulder
atrophy. Using Table 15-34 on page 477 of the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),4 Dr. Hebrard found 26
permanent impairment of the right upper extremity and 14 percent permanent impairment of the
left upper extremity due to a loss of shoulder motion.
Dr. Ellen Pichey, an OWCP district medical adviser (DMA), who is Board-certified in
family medicine, reviewed the medical evidence and opined that appellant had 18 percent
permanent impairment of the right upper extremity and 14 percent permanent impairment of the
left upper extremity due to reduced shoulder range of motion pursuant to Table 15-34.
Appellant, on April 28, 2017, filed a claim for a schedule award (Form CA-7).
On June 7, 2016 OWCP referred appellant to Dr. Mohinder S. Nijjar, a Board-certified
orthopedic surgeon, for a second opinion examination regarding the extent of any permanent
impairment due to the accepted employment injury. It asked that he address the extent of
permanent impairment of the bilateral upper extremities. The statement of accepted facts,
4

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

2

however, described only appellant’s right upper extremity condition and requested that Dr. Nijjar
calculate her right upper extremity impairment.
In a July 26, 2017 impairment evaluation, Dr. Nijjar discussed appellant’s employment
injury and continued complaints of right shoulder pain and weakness. On examination, he
measured normal range of motion of the shoulder with some tenderness over the acromioclavicular
(AC) joint, anterior acromion process, and biceps tendon. Dr. Nijjar diagnosed right shoulder
impingement syndrome and a partial rotator cuff tear, degenerative arthritis of the AC joint after
surgery, and a superior labral lesion from anterior to posterior (SLAP) lesion status postsurgical
debridement and subacromial decompression of the right shoulder. Using the diagnosis-based
impairment (DBI) methodology for rating permanent impairment, he identified the diagnosis using
Table 15-5 on page 403, the shoulder regional grid, as AC joint disease after a distal clavicle
resection or AC separation, which yielded a default impairment of 10 percent. Dr. Nijjar applied
grade modifiers of one for functional history and physical examination, and found that a grade
modifier for clinical studies was not applicable, which yielded no change from the default value.
He also identified a class one labral lesion, including SLAP tears, as a diagnosis using Table 15-5
on page 404, which yielded a default value of three percent. Dr. Nijjar applied grade modifiers of
two for functional history and one for physical examination findings, which yielded four percent
upper extremity permanent impairment. He concluded that appellant had a combined 14 percent
permanent impairment of the right upper extremity.
On October 12, 2017 Dr. David H. Garelick, a Board-certified orthopedic surgeon and
DMA, applied the A.M.A., Guides and FECA Bulletin No. 17-065 to Dr. Nijjar’s findings. He
noted that rating appellant’s impairment using the range of motion (ROM) methodology was not
possible as Dr. Nijjar had not obtained three measurements and had identified the range of motion
as normal. Dr. Garelick concurred with Dr. Nijjar’s finding of 10 percent right upper extremity
impairment due to the distal clavicle resection using Table 15-5 on page 403, using the DBI
methodology. He found that appellant could not receive an impairment rating for both the labral
lesion and the distal clavicle resection as the A.M.A., Guides indicated that shoulder impairments
often occurred together and instructed that the evaluator to select the most significant diagnosis.
Dr. Garelick used the impairment rating for the distal clavicle resection and determined that
appellant had 10 percent permanent impairment of the right upper extremity. He opined that
appellant had reached maximum medical improvement on July 26, 2017.
By decision dated November 7, 2017, OWCP granted appellant a schedule award for 10
percent permanent impairment of the right arm. The period of the award ran for 31.2 weeks from
October 15, 2017 to a fraction of a day on May 21, 2018.6
On November 14, 2017 appellant, through counsel, requested a telephonic hearing before
a representative of OWCP’s Branch of Hearings and Review.

5

FECA Bulletin No. 17-06 (May 8, 2017).

6

OWCP adjusted the beginning date of the schedule award to October 15, 2017 as appellant received wage-loss
compensation for total disability through October 14, 2017.

3

During the telephonic hearing, held on April 2, 2018, counsel questioned why OWCP did
not provide a rating for the left upper extremity. He further asserted that OWCP should consider
the ROM impairment rating from Dr. Hebrard.
By decision dated May 3, 2018, OWCP’s hearing representative affirmed the November 7,
2017 decision. He noted that OWCP should consider expanding the acceptance of appellant’s
claim to include a right shoulder labral tear based on Dr. Nijjar’s opinion. The hearing
representative also found that OWCP should develop the issue of whether she had a permanent
impairment of the left upper extremity.
On appeal counsel asserts that Dr. Hebrard had provided complete range of motion findings
sufficient for measuring permanent impairment utilizing the ROM methodology.
LEGAL PRECEDENT
The schedule award provisions of FECA,7 and its implementing federal regulation,8 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.9 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.10
In addressing upper extremity impairments, the sixth edition requires identification of the
impairment class of diagnosis (CDX) condition, which is then adjusted by grade modifiers based
on functional history (GMFH), physical examination (GMPE), and clinical studies (GMCS). The
net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).11 OWCP procedures
provide that, after obtaining all necessary medical evidence, the file should be routed to a DMA
for an opinion concerning the nature and percentage of impairment in accordance with the A.M.A.,
Guides, with the medical adviser providing rationale for the percentage of impairment specified.12
The A.M.A., Guides also provide that the ROM impairment method is to be used as a
stand-alone rating for upper extremity impairments when other grids direct its use or when no other
diagnosis-based sections are applicable.13 If ROM is used as a stand-alone approach, the total of
motion impairment for all units of function must be calculated. All values for the joint are

7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

Id. at § 10.404(a).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
11

A.M.A., Guides 411.

12

See P.R., Docket No. 18-0022 (issued April 9, 2018); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Schedule Awards and Permanent Disability Claims, Chapter 2.808.6f (March 2017).
13

A.M.A., Guides 461.

4

measured and added.14 Adjustments for functional history may be made if the evaluator
determines that the resulting impairment does not adequately reflect functional loss and functional
reports are determined to be reliable.15
Regarding the application of ROM or DBI methodologies in rating permanent impairment
of the upper extremities, FECA Bulletin No. 17-06 provides:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify: (1) the methodology used by the rating physician (i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing the higher
rating should be used.”16 (Emphasis in the original.)
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish more than 10
percent permanent impairment of her right upper extremity, for which she previously received a
schedule award.
Dr. Hebrard, on February 18, 2015, provided range of motion measurements for appellant’s
shoulders and determined that she had significant atrophy of the right shoulder. He found 26
percent permanent impairment of the right upper extremity and 14 percent permanent impairment
of the left upper extremity due to a loss of range of motion of the shoulders according to Table 1534 on page 477 of the A.M.A., Guides. Dr. Pichey, a DMA, concurred with Dr. Hebrard’s finding
in a November 2015 report.
On April 28, 2017 appellant filed a claim for a schedule award (Form CA-7). OWCP
referred her to Dr. Nijjar for an impairment evaluation to determine the extent of permanent
impairment of both upper extremities. It asked him, however, to calculate only the extent of
permanent impairment of the right upper extremity.
Dr. Nijjar, in a July 26, 2017 impairment evaluation, found that appellant had normal range
of motion of the shoulders with some tenderness. Using the shoulder regional grid set forth at
Table 15-5 on page 403 of the A.M.A., Guides, he identified the diagnosis as class one AC joint
disease after a distal clavicle resection, which yielded a default impairment value of 10 percent.
Dr. Nijjar applied grade modifiers of one for both functional history and physical examination,
14

Id. at 473.

15

Id. at 474.

16

Supra note 3; A.G., Docket No. 18-0329 (issued July 26, 2018).

5

and noted that a grade modifier for clinical studies was not applicable, and thus found no change
from the default value after application of the net adjustment formula.17
Dr. Nijjar further found that appellant had a class 1 labral lesion using Table 15-5 on page
404, which he found constituted 4 percent permanent impairment of the right upper extremity after
the application of grade modifiers, for a total right upper extremity impairment of 14 percent.
Dr. Garelick, a DMA, reviewed the evidence on October 12, 2017 and explained that
Dr. Nijjar should not have rated appellant for both AC joint disease and a labral lesion as the
A.M.A., Guides provides, “In the shoulder, it is not uncommon for rotator cuff tears, a superior
labral lesion from anterior to posterior (SLAP) lesion or other labral lesions, and biceps tendon
pathology to all be present simultaneously. The evaluator is expected to choose the most
significant diagnosis and to rate only that diagnosis using the DBI method that has been
described.”18 Dr. Garelick used the impairment rating for the distal clavicle resection as the most
significant diagnosis. He concurred with Dr. Nijjar’s finding that appellant had 10 percent
permanent impairment of the right upper extremity due to her AC joint disease after a distal
clavicle resection, noting that it yielded the greater award. Dr. Garelick further determined that a
diagnosis for ROM was not applicable in this case as Dr. Nijjar found normal range of motion
measurements. There is no current medical evidence of record conforming to the A.M.A., Guides,
which supports a greater impairment.19
On appeal counsel asserts that Dr. Hebrard provided complete range of motion findings.
Dr. Hebrard’s report, however, was completed more than two years before the report from
Dr. Nijjar. The Board has held that stale medical evidence cannot form the basis for current
evaluation of residual symptomology or disability determination.20
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish more than 10
percent permanent impairment of her right upper extremity, for which she received a schedule
award.

17

Utilizing the net adjustment formula discussed above, (GMFH-CDX) + (GMPE-CDX), or (1-1) + (1-1) = 0,
yielded a zero adjustment.
18

A.M.A. Guides 390.

19

See K.P., Docket No. 18-0777 (issued November 13, 2018).

20

See K.S., Docket No. 15-1082 (issued April 18, 2017).

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ORDER
IT IS HEREBY ORDERED THAT the May 3, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 3, 2019
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Denver, CO, Employer
__________________________________________

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

Docket No. 21-1357
Issued: March 15, 2022

Case Submitted on the Record

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

JURISDICTION
On September 14, 2021 appellant filed a timely appeal from a May 19, 2021 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated March 5, 2021 to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.
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).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 18, 2019 appellant, then a 57-year-old scheduling officer, filed a traumatic
injury claim (Form CA-1) alleging that on October 17, 2019 she experienced an asthma attack
when exposed to dust while in the performance of duty. She stopped work on the date of injury.
In support of her claim, appellant submitted an October 17, 2019 hospital emergency
department report by Dr. Richard D. Zane, Board-certified in emergency medicine. Dr. Zane
related that appellant had a history of asthma, and had not experienced a severe exacerbation since
2014 until that day while in her office in the baggage claim area at work. He attributed the current
episode to odor and mold caused by water leaking through the ceiling tiles in her office. On
examination, Dr. Zane observed diminished expiratory sounds with end expiratory wheezing,
coughing, tachycardia, dyspnea, respiratory distress, and tremulousness. As nebulizer treatments
in the emergency department did not improve appellant’s symptoms, she was admitted to the
intensive care unit. Dr. Zane diagnosed an asthma exacerbation attack.
In an October 17, 2019 intensive care unit report, Dr. Richard William Vandivier, Boardcertified in internal medicine and pulmonology, noted that appellant presented with acute shortness
of breath while at work. He noted “[s]he states that there has been some construction and leaking
of moldy odor fluid in her office which likely precipitated her shortness of breath.”
In an October 18, 2019 hospital discharge report, Dr. Vandivier diagnosed an asthma
exacerbation and prescribed medication. He noted that it was important for appellant to avoid any
environmental triggers, particularly at her workplace, “to prevent this from occurring again.”
In a development letter dated June 12, 2020, OWCP informed appellant of the deficiencies
of her claim. It advised her of the type of factual and medical evidence necessary to establish her
claim and provided a questionnaire for her completion. In a separate development letter of even
date, OWCP requested that the employing establishment provide comments from a knowledgeable
supervisor on the accuracy of appellant’s statements and the type of tasks performed which
resulted in the exposure and the duration. It afforded both parties 30 days to provide the necessary
evidence.
In response, the employing establishment provided a June 22, 2020 statement confirming
that in the area where appellant was seated on October 17, 2019, there were missing ceiling tiles
and large trashcans placed to collect dripping water. There was also a “smell that was not right.
[Appellant] began coughing and using her emergency inhaler.” She left the area at her supervisor’s
instruction, but her breathing became more erratic. Paramedics were called to the scene and
recommended appellant be taken to an emergency department. Appellant’s husband then
transported her to the hospital.
In a June 24, 2020 statement, appellant’s supervisor, asserted that on the date appellant
experienced an asthma attack, “[w]hen entering the office there was a strong mildew smell with
several wet ceiling tiles and trash cans filled with water.” Appellant began coughing 30 minutes
after her arrival. She exited the office to get fresh air, then began struggling to breathe. Paramedics
were summonsed and administered medication, which did not relieve appellant’s symptoms.
Appellant’s husband then transported her to the hospital.

2

By decision dated July 23, 2020, OWCP accepted that the October 17, 2019 incident
occurred as alleged but denied appellant’s claim as the medical evidence of record did not contain
a diagnosis causally related to the accepted incident. It concluded, therefore, that the requirements
had not been met to establish an injury as defined by FECA.
On August 11, 2020 appellant requested reconsideration.
medical evidence.

She submitted additional

In an August 4, 2020 report, Dr. Mark Nathanson, an osteopath specializing in family
medicine, noted treating appellant for severe, persistent asthma for more than five years.
Appellant also submitted employing establishment e-mails dated from October 18
through 20, 2019 noting that a water pipe had broken above her work area, causing extensive
leakage and significant odor. In an October 18, 2019 e-mail, a safety specialist, cautioned that
there were “layers of particles that can easily set off [appellant’s] asthma again.”
By decision dated September 16, 2020, OWCP denied reconsideration of the merits of
appellant’s claim.
On December 2, 2020 appellant requested reconsideration. She submitted an October 1,
2020 report by Dr. Nathanson, who noted that appellant had been doing fairly well with her asthma
until an exacerbation at work caused by black mold on waterlogged tiles which caused appellant
to be hospitalized due to the injury. Dr. Nathanson diagnosed a resolved severe exacerbation of
moderate persistent allergic asthma, vocal cord dysfunction, and stable asthma. He prescribed
medication.
By decision dated March 5, 2021, OWCP modified its July 23, 2020 decision to find that
appellant had established a diagnosis that could reasonably be connected to the claimed condition.
The claim remained denied as the medical evidence of record was insufficient to establish causal
relationship.
On May 12, 2021 appellant requested reconsideration. She submitted a May 7, 2021
statement reiterating her account of the events of October 17, 2019. Appellant also submitted an
April 26, 2021 note from Dr. Nathanson noting that her “[a]cute attack which led to
hospitalization” was “caused by dust and other particulate components which stemmed from wet
ceiling tiles at her place of work.” He opined, “this is what brought on her attack.”
By decision dated May 19, 2021, OWCP denied appellant’s request for reconsideration. It
found, “[s]pecifically, causal relationship is a medical issue and you did not submit any medical
evidence in support of your request for reconsideration. We have not received a well-rationalized
medical report.…”

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LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 2
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (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.3
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 4 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 5 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 6
ANALYSIS
The Board finds that this case is not in posture for decision.
In denying appellant’s request for reconsideration, OWCP did not reference
Dr. Nathanson’s April 26, 2021 report addressing the causal relationship between the claimed
asthma attack to appellant’s exposure to wet ceiling tiles and particulates at the employing
establishment.
In the case of William A. Couch,7 the Board held that, when adjudicating a claim, OWCP
is obligated to consider all evidence properly submitted by a claimant and received by OWCP
before the final decision is issued. While OWCP is not required to list every piece of evidence
submitted to the record, there is no indication that Dr. Nathanson’s April 26, 2021 report was
reviewed and considered by OWCP in its May 19, 2021 decision. 8 In its May 19, 2021 decision,
OWCP denied appellant’s request for reconsideration, finding that she failed to submit any medical
evidence in support of her request for reconsideration. As it did not review or consider
2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.606(b)(3).

4

Id. at § 10.607(a).

5

Id. at § 10.608(a).

6

Id. at § 10.608(b).

7

41 ECAB 548, 553 (1990).

8

See T.G., Docket No. 19-1930 (issued January 8, 2021).

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Dr. Nathanson’s April 26, 2021 report, it failed to follow its own procedures by properly
discussing the relevant evidence of record. 9
As the Board’s decisions are final as to the subject matter appealed, it is crucial that OWCP
address all relevant evidence properly submitted to OWCP prior to the issuance of its decision. 10
For this reason, the case will be remanded to OWCP to properly consider all of the evidence
of record. Following this and other such further development as deems necessary, OWCP shall
issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

9
All evidence submitted should be reviewed and discussed in the decision. Evidence received following
development that lacks probative value should also be acknowledged. Whenever possible, the evidence should be
referenced by author and date. Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Denials, Chapter
2.1401.5(b)(2) (November 2012).
10

20 C.F.R. § 501.6(d); supra note 8; W.G., Docket No. 20-1536 (issued December 17, 2021); see also A.V., Docket
No. 20-1251 (issued January 28, 2021).

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ORDER
IT IS HEREBY ORDERED THAT the May 19, 2021 decision of the Office of Workers’
Compensation Programs is set aside, and the case is remanded to OWCP for further proceedings
consistent with this decision of the Board.
Issued: March 15, 2022
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
U.S. POSTAL SERVICE, MOORESVILLE
POST OFFICE, NORTHLAKE STATION,
Mooresville, NC, Employer
__________________________________________

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

Docket No. 21-0534
Issued: December 2, 2021

Case Submitted on the Record

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

JURISDICTION
On February 23, 2021 appellant filed a timely appeal from a February 18, 2021 merit
decision of the Office of Workers’ Compensation Programs (OWCP). 1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.

1
The Board notes that, following the February 18, 2021 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP has met its burden of proof to terminate appellant’s entitlement
to wage-loss compensation and medical benefits, effective February 28, 2021, as she no longer
had residuals or disability causally related to her accepted April 30, 2018 employment injury.
FACTUAL HISTORY
On May 10, 2018 appellant, then a 42-year-old rural carrier associate, filed a traumatic
injury claim (Form CA-1) alleging that on April 30, 2018 she sustained a concussion with
dizziness, nausea, blurry vision, cognitive and mental issues, sprained right wrist, sprained left
knee, and sprained and bruised right ribs when a caster loaded with 12 trays fell onto her while she
was loading her vehicle in the performance of duty. She stopped work on April 30, 2018. On
August 30, 2019 OWCP accepted the claim for post-concussion syndrome and concussion without
loss of consciousness. It paid appellant wage-loss compensation on the supplemental rolls as of
June 13, 2018. Appellant returned to full-duty work on October 20, 2018.
On October 7, 2019 appellant filed a notice of recurrence (Form CA-2a) alleging a
recurrence of total disability beginning October 1, 2019. She described continuing postconcussion syndrome with migraines and triangular fibrocartilage complex tear of the right wrist
due to her accepted April 30, 2018 employment injuries. Appellant provided hospital records from
October 10 through 11, 2019 noting treatment for speech difficulty and possible transient ischemic
attack (TIA).
On October 29, 2019 OWCP accepted appellant’s recurrence claim for the conditions of
sprain of the right wrist, post-concussion syndrome, and concussion without loss of consciousness.
It paid her wage-loss compensation on the supplemental rolls as of October 1, 2019 and on the
periodic rolls as of October 20, 2020.
On November 5, 2019 Dr. Mark R. McGinnis, a Board-certified orthopedic surgeon,
released appellant to return to light-duty work with restrictions of no lifting, pushing, or pulling
more than five pounds due to her accepted right arm condition. He diagnosed diffuse pain in the
right upper extremity and right wrist injury. Dr. McGinnis found that appellant’s upper extremity
dysfunction and symptoms did not have any clear anatomic or physiologic explanation.
In a November 27, 2019 note, Dr. Krzystof Romanowski, neurologist, reported appellant’s
history of injury on April 30, 2018 and noted that she believed that she had lost consciousness. He
examined her due to post-concussion syndrome with migraines as well as new symptoms of a
pounding headache on the left side with difficulty speaking and a jerking movement in her upper
body. Dr. Romanowski diagnosed migraine syndrome, episode of change in speech, and
unspecified abnormal involuntary movements. On November 25, 2019 he limited appellant to
working 6.5 hours per day 6 days a week.
On February 18, 2020 Dr. McGinnis completed a work capacity evaluation (Form OWCP5c) and found that appellant could perform sedentary work with restrictions of lifting, pushing,
and pulling, no more than five pounds on the right.

2

On February 24, 2020 Dr. Dawn Quashie, a Board-certified family practitioner, opined that
appellant could perform sedentary work four hours per day due to her post-concussion syndrome.
She provided a treatment note of even date and diagnosed post-concussion syndrome with
dizziness and nausea.
On November 20, 2019 appellant accepted a light-duty position working four hours per
day with restrictions.
On March 16, 2020 Dr. Quashie completed an OWCP-5c and found that appellant could
perform sedentary work 8 hours per day with 5-minute breaks every 30 minutes.
On June 12, 2020 Dr. William Meadows, a physician Board-certified in family medicine,
completed a Form OWCP-5c and advised that appellant was totally disabled due to right wrist
sprain and post-concussion syndrome. In a treatment note dated July 15, 2020, he described her
history of injury. Dr. Meadows reported worsening paresthesia left lower leg and foot,
bowel/bladder incontinence, lower back pain, neck pain, headaches, memory loss, and diplopia.
He listed that appellant’s accepted conditions of sprain of the right wrist and post-concussion
syndrome. On physical examination, Dr. Meadows noted that she denied vertigo or gait
disturbance. He found poor convergence in appellant’s eyes and that she was unable to focus for
extraocular movement. Dr. Meadows also reported that she was unable to complete finger to nose,
heel to shin or Romberg tests, and that she was unable to walk on her heels or toes. During his
psychological evaluation, he observed that while being questioned appellant exhibited pressured
speech, stuttering responses, and nonlinear thought progression. Dr. Meadows also noted that she
made poor eye contact, was unable to remember three key words, and was unable to calculate
101-5. He determined that appellant had abnormal neurological and psychological examinations.
On November 20, 2020 OWCP referred appellant, a statement of accepted facts, and a list
of questions to Dr. Gerard M. Gerling, a Board-certified neurologist, for a second opinion
evaluation.
In a December 14, 2020 report, Dr. Gerling described appellant’s April 30, 2018
employment injury and her description of continuing symptoms of widespread pain, headaches,
cognitive impairment, memory impairment, light sensitivity, double vision, right wrist pain,
disequilibrium, difficulty concentrating, falls, and lack of coordination. He reviewed imaging
studies and found no cerebral injury or post-traumatic change involving the head or spine.
Dr. Gerling performed a physical examination and found no cervical or lumbar spasms, no focal
weakness, normal reflexes, no facial asymmetry, and normal speech, hearing, and eye movements.
He found no evidence of a neurological or spinal injury and no evidence of any condition caused
by the incident that required neurological investigation or intervention. Dr. Gerling opined that
appellant had no work restrictions and that she had reached maximum medical improvement. He
completed a Form OWCP-5c and indicated that she was capable of performing her usual job
without restrictions.
On January 13, 2021 OWCP proposed to terminate appellant’s wage-loss compensation
and medical benefits based on Dr. Gerling’s opinion that the April 30, 2018 accepted conditions
had ceased without residuals or disability. It afforded her 30 days to submit additional evidence
or argument challenging the proposed termination.

3

Appellant resubmitted the October 10 through 11, 2019 hospital records regarding her
speech difficulties and possible TIA.
By decision dated February 18, 2021, OWCP terminated appellant’s entitlement to wageloss compensation and medical benefits effective February 28, 2021 based on Dr. Gerling’s second
opinion report.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.3 After it has determined that, an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment. 4 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.5
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.6 To terminate authorization for medical treatment, OWCP
must establish that appellant no longer has residuals of an employment-related condition which
require further medical treatment. 7
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint a
third physician who shall make an examination. 8 When there are opposing reports of virtually
equal weight and rationale, the case must be referred to an impartial medical specialist, pursuant
to section 8123(a) of FECA, to resolve the conflict in the medical evidence. 9

3

See R.P., Docket No. 17-1133 (issued January 18, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
4

See R.P., id.; Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L.
Minor, 37 ECAB 541 (1986).
5

See R.P., id.; Del K. Rykert, 40 ECAB 284, 295-96 (1988).

6

See R.P., id.; 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005); A.P., Docket No. 08-1822 (issued
August 5, 2009). Furman G. Peake, 41 ECAB 361, 364 (1990).
7

See R.P., id.; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002); Furman G.
Peake, id.
8
5 U.S.C. § 8123(a); G.F., 20-0497 (issued May 20, 2021); B.S., Docket No. 19-0711 (issued October 17, 2019);
L.T., Docket No. 18-0797 (issued March 14, 2019); Shirley L. Steib, 46 ECAB 309, 317 (1994); see also G.B., Docket
No. 16-0996 (issued September 14, 2016) (where the Board held that OWCP improperly terminated the claimant’s
wage-loss compensation and medical benefits as there was an unresolved conflict of medical opinion between her
treating physician and a second opinion specialist).
9

S.S., Docket No. 19-1658 (issued November 12, 2020); C.W., Docket No. 18-1536 (issued June 24, 2019).

4

ANALYSIS
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
entitlement to wage-loss compensation and medical benefits, effective February 28, 2021.
In his July 15, 2020 note, Dr. Meadows described appellant’s accepted employment
incident and accepted conditions. On physical examination he found poor convergence in her eyes
and that she was unable to focus for extraocular movement. Dr. Meadows also reported that
appellant was unable to complete finger to nose, heel to shin or Romberg tests and that she was
unable to walk on her heels or toes. During his psychological evaluation, he observed that she
exhibited pressured speech, stuttering responses, and nonlinear thought progression while being
questioned. Dr. Meadows also noted that appellant made poor eye contact, was unable to
remember three key words, and was unable to calculate 101 -5. He determined that she had
abnormal neurological and psychological examinations and found that she was totally disabled
from work.
In his December 14, 2020 report, Dr. Gerling described the April 30, 2018 employment
injury and reported that findings on examination were normal. He opined that the accepted workrelated conditions had resolved, that appellant could return to regular-duty work without
restrictions, and that there was no need for further medical treatment.
The Board finds that there is an unresolved conflict of medical evidence between the
findings and opinions of Dr. Meadows and Dr. Gerling as to whether appellant continued to
experience disability and medical residuals as a result of her April 30, 2018 accepted employment
injuries. As OWCP should have referred her for an impartial medical evaluation to resolve the
conflict prior to a termination of wage-loss compensation and medical benefits, OWCP did not
meet its burden of proof.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
entitlement to wage-loss compensation and medical benefits, effective February 28, 2021.

5

ORDER
IT IS HEREBY ORDERED THAT the February 18, 2021 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: December 2, 2021
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.P., Appellant
and
DEPARTMENT OF DEFENSE, NATIONAL
SECURITY AGENCY, Fort Meade, MD,
Employer
__________________________________________

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

Docket No. 19-0589
Issued: July 25, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 17, 2019 appellant filed a timely appeal from a July 20, 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 31, 2017, to the filing of this appeal, pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction to review the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether OWCP properly determined that appellant abandoned her request for
a telephonic hearing before an OWCP hearing representative.
FACTUAL HISTORY
On July 19, 2017 appellant, then a 60-year-old administrative services specialist, filed a
traumatic injury claim (Form CA-1) alleging that on April 4, 2017 she experienced shoulder
inflammation during a closed-caption presentation she attended in excess of two and one-half
hours without a break. No evidence was submitted with her claim. The employing establishment
controverted the claim.
OWCP, in a development letter dated September 27, 2017, advised appellant of the
deficiencies in her claim. It advised her of the type of factual and medical evidence needed and
provided a questionnaire for her completion. OWCP afforded appellant 30 days to respond. No
response was received.
By decision dated October 31, 2017, OWCP denied appellant’s traumatic injury claim
finding that the evidence of record failed to establish that the events occurred on April 4, 2017, as
alleged.
On November 2, 2017 appellant responded to OWCP’s September 27, 2017 development
questionnaire. She provided a narrative of what tasks she was performing and how she believed
the injury occurred.
In an appeal request form dated and postmarked November 30, 2017, appellant requested
an oral hearing with a representative of OWCP’s Branch of Hearings and Review regarding the
October 31, 2017 decision. In a March 9, 2018 letter, an OWCP hearing representative notified
appellant that OWCP’s Branch of Hearings and Review had scheduled a hearing for April 25, 2018
at 12:30 p.m., and provided her the location of the hearing. The hearing notice was mailed to
appellant’s address of record.
In a letter dated March 28, 2018, Counsel Avery M. Muller advised OWCP that he had
been authorized to represent appellant and requested a copy of her case file. He enclosed an
authorization for representation signed by appellant on March 23, 2018.
In a letter dated April 3, 2018, OWCP’s hearing representative notified counsel that, based
on their telephone conversation on that day, the scheduled in-person hearing was changed to a
telephonic hearing.3 The telephonic hearing was scheduled for the same date and time. The
hearing representative advised counsel that, pursuant to their telephonic conversation, she would
call his office at the designated time and that appellant would be present at his office. This letter
was returned to OWCP as undeliverable as addressed and unable to forward.

3

A copy of this letter was also mailed to appellant.

2

In a record of a telephone conversation dated April 17, 2018, counsel informed OWCP’s
hearing representative that he was withdrawing his representation of appellant, but indicated that
she still wanted to have a hearing. He requested postponement of the April 25, 2018 telephonic
hearing because appellant would be incapacitated due to nonelective surgery which was scheduled
for April 21, 2018. By letter dated April 17, 2018, counsel informed OWCP’s hearing
representative that “I am representing [appellant] in the above-referenced workers’ compensation
claim.” He requested that she reschedule the April 25, 2018 telephonic hearing, explaining that
appellant was undergoing abdominal surgery on April 21, 2018, unrelated to her workers’
compensation claim. Counsel noted that she would be incapacitated for four to six weeks
following the surgical procedure. He submitted supportive medical evidence. In a record of a
telephone conversation dated April 18, 2018, appellant also requested that OWCP’s hearing
representative reschedule her telephonic hearing due to her April 21, 2018 surgery.
In a June 5, 2018 letter, OWCP’s hearing representative notified appellant that OWCP’s
Branch of Hearings and Review had scheduled a telephonic hearing for July 9, 2018 at 10:00 a.m.
Eastern Standard Time (EST). The hearing notice was again mailed to appellant’s address of
record and she was provided with a toll-free number to call and the appropriate passcode.
Appellant did not, however, call in for the hearing at the appointed time. She also did not contact
OWCP’s Branch of Hearings and Review within 10 days thereafter to explain her absence.
By decision dated July 20, 2018, OWCP’s hearing representative determined that appellant
had abandoned her request for a telephonic hearing, which had been scheduled for July 9, 2018.
She found that appellant had been afforded notice 30 days prior to the scheduled hearing and that
appellant had failed to attend. The hearing representative further found that there was no indication
that she contacted the Branch of Hearings and Review either before or after the scheduled hearing
to explain her absence.
LEGAL PRECEDENT
A claimant who has received a final adverse decision by OWCP may obtain a hearing by
writing to the address specified in the decision within 30 days of the date of the decision for which
a hearing is sought.4 Unless otherwise directed in writing by the claimant, the hearing
representative will mail a notice of the time and place of the hearing to the claimant and any
representative at least 30 days before the scheduled date.5 OWCP has the burden of proving that
it properly mailed the notice to a claimant and any representative of record of a scheduled hearing.6
A claimant who fails to appear at a scheduled hearing may request in writing, within 10
days after the date set for the hearing, that another hearing be scheduled. Where good cause for
failure to appear is shown, another hearing will be scheduled and conducted by teleconference.
The failure of the claimant to request another hearing within 10 days, or the failure of the claimant

4

20 C.F.R. § 10.616(a).

5

Id. at § 10.617(b).

6

T.P., Docket No. 15-0806 (issued September 11, 2015).

3

to appear at the second scheduled hearing without good cause shown, shall constitute abandonment
of the request for a hearing.7
ANALYSIS
The Board finds that OWCP improperly determined that appellant abandoned her request
for a telephonic hearing before an OWCP hearing representative.
Following OWCP’s October 31, 2017 decision denying appellant’s traumatic injury claim,
she timely requested an oral hearing before a representative of OWCP’s Branch of Hearings and
Review, but subsequently had her request changed to a telephonic hearing. The record reflects
that on March 28, 2018 counsel informed OWCP that she had authorized his representation in
matters related to her claim. In a subsequent record of a telephone conversation dated April 17,
2018, he notified OWCP’s hearing representative that he was withdrawing his representation of
appellant. However, counsel also informed the same hearing representative, in a letter of the same
date, that “I am representing [appellant] in the above-referenced workers’ compensation claim.”
In a June 5, 2018 letter, OWCP’s hearing representative notified appellant that a telephonic hearing
was scheduled for July 9, 2018, at 10:00 a.m. EST. The Board finds that there is no written
confirmation from counsel that he had withdrawn his representation. The only evidence of a
purported withdrawal was the notes of a telephone conversation (Form CA-110) as written by the
hearing representative. Therefore, based on counsel’s April 17, 2018 letter, which specifically
indicated that he continued to represent appellant, OWCP was required to send him a copy of the
June 5, 2018 notice of the scheduled telephonic hearing.8
The Board further finds that, while the record establishes that OWCP properly mailed the
June 5, 2018 telephonic hearing notice to appellant at her last known address of record,9 it does
not establish that the hearing notice was mailed to counsel. The copy of the notice sent to appellant
does not, on its face, reflect that a copy was sent to counsel’s address of record. There is no
indication in the record that OWCP sent the hearing notice to him. For these reasons, the Board
finds that counsel was not notified of the date and time of the scheduled telephonic hearing
pursuant to 20 C.F.R. § 10.617(b).10 Accordingly, the case is remanded to OWCP for scheduling

7

20 C.F.R. § 10.622(f); Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written
Record, Chapter 2.1601.6(g) (October 2011). See also A.J., Docket No. 18-0830 (issued January 10, 2019).
8

20 C.F.R. § 10.617(b).

9

Absent evidence to the contrary, a letter properly addressed and mailed in the ordinary course of business is
presumed to have been received. This is called the mailbox rule. See M.R., Docket No. 18-1643 (issued March 1,
2019); C.Y., Docket No. 18-0263 (issued September 14, 2018). Appellant did not submit evidence of nondelivery of
OWCP’s June 5, 2018 hearing notice such that the presumption of receipt would be rebutted.
10

See Connie L. Sauerwein, Docket No. 04-1227 (issued June 13, 2005) (where the Board remanded the case to
provide appellant an opportunity for a hearing when the record failed to demonstrate that his representative was
notified of the scheduled hearing).

4

of another hearing before a representative of OWCP’s Branch of Hearings and Review with proper
notice provided to all parties, including counsel.11
CONCLUSION
The Board finds that OWCP improperly determined that appellant abandoned her request
for a telephonic hearing before an OWCP hearing representative.
ORDER
IT IS HEREBY ORDERED THAT the July 20, 2018 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: July 25, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

11

Id.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Los Angeles, CA, Employer
__________________________________________

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

Docket No. 20-0462
Issued: August 18, 2020

Case Submitted on the Record

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

JURISDICTION
On December 21, 2019 appellant filed a timely appeal from a June 27, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish an injury causally
related to the accepted factors of her federal employment.

1

The timeliness of the appeal was determined by the date on appellant’s appeal request form and not the date that
the Clerk of the Board received it, December 26, 2019, as the latter date would have rendered the appeal untimely and
the record does not contain a copy of the postmark. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 22, 2017 appellant, then a 62-year-old telephone agent and international
research agent, filed an occupational disease claim (Form CA-2) alleging that she experienced
daily pain in her neck, right arm, right clavicle, right thigh, and back due to factors of her federal
employment, including sitting at her desk where she worked on a computer 10 hours per day,
reaching for and typing reports as she looked at the computer screen, and speaking with customers
on the telephone. She noted that she first became aware of her conditions and their relationship to
her federal employment on April 21, 2017. On the reverse side of the claim form, the employing
establishment controverted the claim, noting that appellant had a one-hour lunch break and three
15-minute breaks and, thus, she only worked 9 hours and 15 minutes per day. Appellant also had
an option to sit or stand while working.
In support of her claim, appellant submitted an August 25, 2017 attending physician’s
report (Form CA-20) by Dr. Neha N. Sahni, an occupational medicine specialist. Dr. Sahni noted
a date of injury as April 21, 2017. She related a history of injury that appellant developed pain in
her neck, left arm, right hand, right clavicle, and back that went down to her right leg with a burning
sensation in her right thigh and hip, and numbness in her left shoulder and left hand/wrist.
Dr. Sahni conducted an examination and diagnosed neck and lumbar muscle strains, initial
encounter, and right shoulder tendinitis. She advised that her findings and diagnoses were
consistent with appellant’s account of or injury or onset of illness. Dr. Sahni concluded that she
could perform full-duty work.
In a development letter dated September 12, 2017, OWCP informed appellant that the
evidence submitted was insufficient to establish her claim. It advised her of the type of factual
and medical evidence needed and provided a questionnaire for her completion. In a separate
development letter, OWCP requested that the employing establishment provide additional
information, including comments from a knowledgeable supervisor and an explanation of
appellant’s work activities. It afforded both parties 30 days to respond.
In an August 30, 2017 memorandum, the employing establishment responded to OWCP’s
development letter. It described appellant’s work duties, restated that she was allowed three 15minute breaks and a 1-hour lunch break, and contended that her claimed injuries were not caused
by her employment. The employing establishment also contended that she had not submitted any
medical evidence to establish a work-related injury. It submitted an official position description
for a customer care agent.
On September 29, 2017 appellant responded to OWCP’s development letter and provided
more details regarding the factors of her federal employment. She also described activities outside
her federal employment.
OWCP, by decision dated November 17, 2017, denied appellant’s occupational disease
claim finding that the evidence of record was insufficient to establish a diagnosed medical
condition in connection with the accepted factors of her federal employment. It concluded
therefore that the requirements had not been met to establish an injury as defined by FECA.

2

Thereafter, OWCP continued to receive medical evidence. In duty status reports dated
February 21, March 1 and 30, and April 19, 2018, Dr. Christopher P. DeCarlo, an attending
physiatrist, listed a date of injury as March 17, 2017 and noted that the affected body parts included
the cervical and lumbar spines and right shoulder. He advised that appellant could return to
limited-duty work with restrictions from February 21 through May 24, 2018. In a March 1, 2018
federal physician’s progress report, Dr. DeCarlo provided examination findings and diagnosed
lumbar spine degenerative disc disease with L3-4 spinal canal stenosis, cervical spine multilevel
degenerative disc disease with spinal canal neural foraminal stenosis, and right shoulder partial
thickness rotator cuff tear with biceps tenosynovitis. He released appellant to return to modified
work with the restrictions set forth in his form reports on the date of his examination.
On May 3, 2018 appellant requested reconsideration of the November 17, 2017 decision
and submitted additional evidence. In an April 19, 2018 narrative report, Dr. DeCarlo noted
appellant’s employment history beginning in 1979 and her work duties. He also noted the
development of her claimed injuries beginning in 2014 and that she previously experienced neck
and low back pain from 2009 to 2010. Dr. DeCarlo reported findings on physical examination and
reviewed diagnostic test results. He reiterated his prior diagnoses of lumbar spine degenerative
disc disease with L3-4 spinal canal stenosis, cervical spine multilevel degenerative disc disease
with spinal canal neural foraminal stenosis, and right shoulder partial thickness rotator cuff tear
with biceps tenosynovitis. Dr. DeCarlo opined that the diagnosed conditions were caused by
appellant’s repetitive work duties. He noted that she had worked in a call center since 2013, which
required constant sitting, use of a mouse, keyboard, and telephone system, and reaching across a
desk to write customer information on a whiteboard and then again to wipe the information out.
Dr. DeCarlo further noted that appellant had signiﬁcant stressors placed on her right shoulder and
cervical axial system. During eight hours of work appellant constantly used her right upper
extremity, entered data, moved her head from side-to-side, forward, and backward, went from her
monitor to a chalkboard, and used a mouse. Dr. DeCarlo maintained that the repetitive stretching
and twisting involved in these activities produced inﬂammation in the tissues of the cervical spine
and the tissues became fatigued as they moved beyond the acceptable range of motion and resulted
in inﬂammatory changes and disc bulges as noted on magnetic resonance imaging (MRI) scan
studies. He further maintained that the repetitive movement of the right upper extremity at the
shoulder caused the acromion to press down on the rotator cuff with the forces from the acromion
repeatedly injuring the supraspinatus and infraspinatus tendons as they ran under the acromion
bone. Dr. DeCarlo advised that this led to inﬂammatory changes and then eventually to the partial
thickness tear noted on the MRI scan study. He determined that constant activities involving the
use of the right upper extremity and neck at appellant’s work station produced her present
pathology and symptomatology. Regarding her lumbar spine pain with a burning sensation going
down the right lower extremity, Dr. DeCarlo indicated that prolonged sitting had transferred
increased biomechanical forces into the lumbar axial skeletal system, which eventually caused a
weakening of the intervertebral disc at a layer or annulus fibrosus. He related that, with weakening
of the annulus ﬁbrosus, the disc now started to extend beyond its normal physiologic position
pushing into areas in the surrounding environment, i.e., the spinal canals. Dr. DeCarlo also related
that nerves ran through these canals, which had been demonstrated on appellant’s lumbar spine
MRI scan and electromyogram/nerve conduction velocity (EMG/NCV) study. He advised that
these discs began to press directly on the exiting nerve roots. Dr. DeCarlo reminded that it was
not necessary to prove a significant contribution of factors of employment to a condition for the
purpose of establishing causal relationship. If the medical evidence revealed that an employment
3

factor contributed in any way to the employee’s condition, such a condition would be considered
employment related for the purposes of compensation under FECA as outlined in OWCP’s
procedures. Dr. DeCarlo listed appellant’s work restrictions.
Appellant also submitted diagnostic test reports from Dr. Ashkon Senaati, a diagnostic
radiologist. In a February 26, 2018 lumbar spine MRI scan report, Dr. Senaati provided
impressions of moderate L3-4 spinal canal stenosis and degenerative changes as detailed in his
report. Also, on February 26, 2018 he noted that a cervical spine MRI scan revealed no acute
abnormality and showed degenerative changes as detailed in his report. Additionally, on
February 26, 2018 Dr. Senaati reported that a right shoulder MRI scan showed a partial thickness
tear of the bursal surface of the distal supraspinatus tendon, tendinopathy of the insertional aspect
of the infraspinatus tendon, and long head biceps tendon tenosynovitis.
Dr. Maliheh Massih, a physiatrist, related that appellant’s March 21, 2018 EMG/NCV
study of the lower extremities was somewhat abnormal. He noted that the ﬁndings were suggestive
of highly probable proximal root pathology of the L5 and S1 nerve roots. Dr. Massih related that
a needle EMG examination did not show any active denervation. He concluded therefore that,
based on the electrodiagnostic study, there was no evidence of radiculopathy with the exception
of the delayed reflexes. Dr. Massih recommended that his study be correlated with MRI scan
studies for the possibility of bilateral L5-S1 proximal root pathology.
OWCP subsequently received an additional form report dated May 24, 2018 by
Dr. DeCarlo who continued to note that the affected body parts were cervical and lumbar spines
and right shoulder. Dr. DeCarlo released appellant to return to limited-duty work with restrictions
through November 19, 2018.
OWCP also received an April 5, 2018 report from Johannes Schothorst, LAc, Ph.D., a
licensed acupuncturist and physician of philosophy, who treated appellant’s cervical and lumbar
spines and right shoulder pain.
By decision dated July 23, 2018, OWCP affirmed the November 17, 2017 decision, as
modified, finding that the evidence of record was sufficient to establish a diagnosed medical
condition. It denied the claim, however, finding that the medical evidence of record failed to
address whether appellant’s underlying stenosis and degenerative disc disease was aggravated by
the accepted factors of her federal employment.
On December 20, 2018 appellant requested reconsideration.
OWCP, by decision dated January 17, 2019, denied appellant’s request for reconsideration
of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
Thereafter, OWCP continued to receive medical evidence from Dr. DeCarlo. In a partial
letter dated December 27, 2018, Dr. DeCarlo noted that he was writing in response to OWCP’s
July 23, 2018 decision and contended that appellant’s claim should be accepted. He reiterated his
prior opinion that her diagnoses of lumbar spine degenerative disc disease with canal stenosis,
cervical spine multilevel degenerative disc disease with stenosis, and right shoulder partial
thickness rotator cuff tear, and biceps tenosynovitis were caused by her repetitive work duties.
Additionally, Dr. DeCarlo reiterated his explanation that significant stresses placed upon
4

appellant’s right shoulder, cervical, and axial skeletal system during the eight hours she constantly
worked using her right upper extremity, entering data, and moving her head from side-to-side,
forward and backward, and going from her monitor to a chalkboard, and using a mouse. He also
restated that these constant repetitive motions produced inflammatory changes in the tissues of the
cervical spine by the repetitive stretching and twisting that occurred during these activities with
the tissues becoming fatigued as they moved beyond the acceptable range of motion and resulted
in inﬂammatory changes and disc bulges in the cervical spine as clearly noted on February 26,
2018 MRI scan studies. Dr. DeCarlo reported that these studies showed a one-millimeter (mm)
disc osteophyte complex resulting in mild spinal canal stenosis at C2-3; a two-mm disc osteophyte
complex resulting in moderate ventral cerebrospinal fluid (CSF) space narrowing with mild cord
deformity and mild spinal canal and mild bilateral neural foraminal stenosis at C3-4; a two-mm
disc osteophyte complex resulting in a moderate cord deformity and severe narrowing of the
ventral CSF space, ligamentum flavum hypertrophy posteriorly resulting in moderate dorsal a CSF
space narrowing, and mild-to-moderate spinal canal stenosis and mild-to-moderate bilateral neural
foraminal stenosis at C4-5; a two-mm disc osteophyte complex resulting in moderate narrowing
of the ventral CSF space and mild spinal canal stenosis and mild bilateral neural foraminal stenosis
at C5-6; and a left paracentral/subarticular annular tear measuring three mm in the anterior
posterior dimension and mild cord deformity and mild spinal canal stenosis at C6-7. He also
reported that a February 26, 2018 lumbar spine MRI scan demonstrated a one-mm broad-based
disc bulge with mild bilateral facet arthrosis at Ll-2; a two-mm broad-based disc bulge and
ligamentum flavum hypertrophy resulting in mild bilateral neural foraminal stenosis with mild-tomoderate spinal canal stenosis at L2-3; a three-mm broad-based disc bulge with moderate-tosevere bilateral facet arthrosis and ligamentum ﬂavum hypertrophy resulting in mild bilateral
neural foraminal stenosis and moderate spinal canal stenosis at L3-4; a three-mm broad-based disc
bulge-resulting in mild spinal canal stenosis, broad-based disc bulge and ligamentum flavum
hypertrophy resulting in mild-to-moderate bilateral neural foraminal stenosis with moderate
bilateral facet arthrosis at L4-5; and moderate right facet arthrosis at L5-S1. Dr. DeCarlo noted
that a February 26, 2018 right shoulder MRI scan a partial thickness tear of the bursal surface of
the distal supraspinatus tendon, tendinopathy of the insertional aspect of the infraspinatus tendon,
and long head of the biceps tendon tenosynovitis. He maintained that clearly, these pathological
changes were caused by appellant’s above-mentioned work duties over many years of working for
the employing establishment. Dr. DeCarlo restated that the repetitive movement of the right upper
extremity at the shoulder caused the acromion to press down on the rotator cuff with the forces
from the acromion repeatedly injuring the supraspinatus and infraspinatus tendons as they ran
under the acromion bone. He also restated that this led to inﬂammatory changes and then
eventually to the partial thickness tear as noted on the above-mentioned MRI scan study.
Dr. DeCarlo again determined that the constant activities involving the use of the right upper
extremity and neck at appellant’s workstation produced her present pathology and
symptomatology that was clearly shown on the MRI scan studies.
Dr. DeCarlo noted that his findings on physical examination consistently showed
tenderness to palpation along the biceps tendon groove and surrounding the posterior capsule,
point tenderness over the supraspinatus-deltoid junction, and positive impingement signs on both
Hawkins and Neer testing. Regarding the cervical spine, he noted that there was signiﬁcant
tenderness over the right greater than left paraspinal musculature with slight spasming. Appellant
also had an anterior head carriage, which indicated loss of normal cervical spine lordosis.
Regarding her lumbar spine pain with a burning sensation going down the right lower extremity,
5

Dr. DeCarlo indicated that prolonged sitting had transferred increased biomechanical forces into
the lumbar axial skeletal system, which eventually caused a weakening of the intervertebral disc
at a layer or annulus fibrosus. He related that, with weakening of the annulus ﬁbrosus, the disc
now started to extend beyond its normal physiologic position pushing into areas in the surrounding
environment, i.e., the spinal canals. Dr. DeCarlo also related that nerves ran through these canals,
which had been demonstrated on appellant’s lumbar spine MRI scan. Additionally, he related that
there were some positive ﬁndings on an EMG/NCS study which suggested a proximal root
pathology at L5-S1, but did not show a true radiculopathy based on the study. Dr. DeCarlo
indicated that, still during physical examination of the lumbar spine, there was significant
tenderness across the lower paraspinal musculature. Appellant was able to forward ﬂex to almost
90 degrees and extend to only about 15 degrees, but with reported increased low back pain. She
had difficulty exhibiting heel-toe walking due to increased pain and there was a positive straight
leg raise to 50 degrees on the right side.
Dr. DeCarlo opined it appeared that, if appellant had not engaged in all of the repetitive
duties as described in his report, she would not have had the above-mentioned pathological
ﬁndings on the above-mentioned MRI scan studies or exhibited her present complaints of neck,
low back, and right shoulder pain. As such, he concluded that it was clear that many years of
performing the described repetitive activities caused her diagnoses of lumbar spine degenerative
disc disease with canal stenosis, cervical spine multilevel degenerative disc disease with stenosis,
and right shoulder partial thickness rotator cuff tear and biceps tenosynovitis.
In a January 7, 2019 duty status report, Dr. DeCarlo again noted that the affected body
parts were cervical and lumbar spines and right shoulder. He released appellant to return to
limited-duty work through February 7, 2019.
On April 1, 2019 appellant again requested reconsideration of the July 23, 2018 decision
and submitted a complete copy of Dr. DeCarlo’s December 27, 2018 response letter in which he
related her employment history beginning in 1991 and her work duties. Dr. DeCarlo noted that
since March 2017 she had opted to work at a sit-stand work station and she was able to shift
between seated and standing work, as needed. He restated appellant’s computer and telephone
work activities.
By decision dated June 27, 2019, OWCP denied modification of its July 23, 2018 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including 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
period of FECA,4 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
3

Id.

4
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).

6

the employment injury.5 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.6
In an occupational disease claim, appellant’s burden requires submission of the following:
(1) a factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition; (2) medical evidence establishing the presence
or existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.7
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence.8 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.9
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.10
ANALYSIS
The Board finds that this case is not in posture for decision.
In support of her claim, appellant submitted an April 19, 2018 report and a December 27,
2018 letter by Dr. DeCarlo which indicated that she complained of pain in her neck, right shoulder,
right arm, right hip, and back. Dr. DeCarlo noted her medical history of neck and back conditions,
conducted a physical examination, reviewed her MRI scans of her cervical and lumbar spines and
right shoulder and EMG/NCV study of her bilateral lower extremities, and diagnosed lumbar spine
degenerative disc disease with L3-4 spinal canal stenosis, cervical spine multilevel degenerative
disc disease with spinal canal neural foraminal stenosis, and right shoulder partial thickness rotator
cuff tear with biceps tenosynovitis. He opined that appellant’s diagnosed conditions were caused
by factors of her employment, including sitting, computer use, and reaching while working as a
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

S.C., Docket No. 18-1242 (issued March 13, 2019); R.H., 59 ECAB 382 (2008).

8

A.M., Docket No. 18-1748 (issued April 24, 2019); T.H., 59 ECAB 388 (2008).

9

M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008).

10
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
C.C., Docket No. 19-1631 (issued February 12, 2020).

7

customer care agent in a call center. Dr. DeCarlo advised that constant activities involving her use
of her right upper extremity and neck produced her current pathology and symptomatology based
on his physical examination findings, and the results of the February 26, 2018 MRI scans of the
lumbar and cervical spines and right and the March 21, 2018 EMG/NCV study.
The Board finds that, although Dr. DeCarlo’s April 19, 2018 report and December 27, 2018
letter are not fully rationalized, they are relevant evidence in support of appellant’s claim, as they
explain the physiological process by which her accepted factors of federal employment caused or
aggravated her diagnosed lumbar, cervical, and right shoulder conditions. Dr. DeCarlo’s April 19,
2018 report and December 27, 2018 letter therefore raise an uncontroverted inference of causal
relation between her claimed lumbar, cervical, and right shoulder conditions and the accepted
factors of her federal employment. Further development of appellant’s claim is therefore
required.11
On remand OWCP shall prepare a statement of accepted facts setting forth the employment
factors which have been established and refer appellant to an appropriate second opinion physician
for an examination and a rationalized medical opinion as to whether her accepted employment
factors either caused or aggravated her lumbar, cervical, and right shoulder conditions.12 If the
second opinion physician disagrees with the pathophysiological explanation provided by
Dr. DeCarlo, he or she must provide a fully-rationalized explanation explaining why
Dr. DeCarlo’s opinion is unsupported. After this and other such further development deemed
necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

11

See A.T., Docket No. 19-1972 (issued June 25, 2020); K.T., Docket No 19-1436 (issued February 21, 2020);
John J. Carlone, 41 ECAB 354, 356-57 (1989).
12

See supra note 10.

8

ORDER
IT IS HEREBY ORDERED THAT the June 27, 2019 decision of the Office of Workers’
Compensation Programs is set aside, and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: August 18, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.M., Appellant
and
U.S. POSTAL SERVICE, ARLINGTON SOUTH
STATION, Arlington, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-884
Issued: September 15, 2008

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 4, 2008 appellant filed a timely appeal of an October 9, 2007 merit decision
of the Office of Workers’ Compensation Programs, denying her claim for wage-loss
compensation for total disability from July 27 through August 20, 2007 and a January 11, 2008
nonmerit decision, denying her request for a review of the written record as untimely filed.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
appeal.
ISSUES
The issues are: (1) whether appellant has established that she was totally disabled from
July 27 through August 20, 2007 due to her February 24, 2006 injuries; and (2) whether the
Office properly denied her request for a review of the written record as untimely filed pursuant to
5 U.S.C. § 8124.

FACTUAL HISTORY
On February 24, 2006 appellant, then a 35-year-old causal letter carrier, sprained her left
ankle as she ran from dogs while in the performance of duty. She stopped work on the date of
injury. By letter dated April 3, 2006, the Office accepted the claim for left ankle sprain/strain. It
subsequently accepted the claim for fractured left calcaneus and authorized surgery, which was
performed on January 17, 2007 by Dr. Paul S. Cooper, an orthopedic surgeon.
On June 26, 2006 appellant accepted the employing establishment’s June 15, 2006
limited-duty job offer. She worked from June 26 through July 10, 2006, when she informed the
employing establishment that she was resigning her limited-duty position and moving to
Georgia. On July 10, 2006 the employing establishment terminated her employment due to her
move.
By decision dated September 12, 2006, the Office terminated appellant’s compensation
on the grounds that she abandoned suitable work. In a November 17, 2006 decision, an Office
hearing representative reversed the termination decision.1
On August 20, 2007 appellant filed a claim for wage-loss compensation for total
disability for the period July 27 through August 20, 2007.
By letter dated August 27, 2007, the Office advised Dr. Dennis A. Carlini, appellant’s
attending Board-certified orthopedic surgeon, about appellant’s accepted employment-related
injuries and resultant surgery. As it appeared that she experienced pain related to the surgery and
additional surgery was possible, Dr. Carlini was asked to address her ability to return to some
form of employment and whether any work restrictions were necessary. On August 27, 2007 the
Office also advised appellant that her case record did not contain any updated medical evidence
from her attending physician which covered the claimed period of total disability. She was
afforded 30 days to submit additional evidence.
In a September 11, 2007 letter, Dr. Carlini advised the Office that Dr. Cooper would have
to address any questions regarding appellant’s ability to return to work as he performed her
surgery. In June 2007, he advised her to see Dr. Cooper regarding these questions.
By decision dated October 9, 2007, the Office denied appellant’s claim, finding the
medical evidence of record did not establish that she was totally disabled during the period
July 27 through August 20, 2007 due to her February 24, 2006 employment injuries.2

1

The Board notes that the Office hearing representative’s November 17, 2006 decision is not contained in the
case record.
2

Following the issuance of the Office’s October 9, 2007 decision, the Office received additional evidence. The
Board may not consider evidence for the first time on appeal which was not before the Office at the time it issued
the final decision in the case. 20 C.F.R. § 501.2(c). Appellant can submit this evidence to the Office and request
reconsideration. 5 U.S.C. § 8128; 20 C.F.R. § 10.606.

2

On an appeal request form dated December 14, 2007, appellant requested a review of the
written record by an Office hearing representative. The envelope containing the request form
was postmarked December 17, 2007.
By decision dated January 11, 2008, the Office denied appellant’s request for a review of
the written record on the grounds that it was untimely filed. It determined that the issue of
whether she was entitled to for the period July 27 through August 20, 2007 could equally well be
addressed by requesting reconsideration and submitting new evidence.
LEGAL PRECEDENT-- ISSUE 1
Under the Federal Employees’ Compensation Act, the term disability is defined as an
inability, due to an employment injury, to earn the wages the employee was receiving at the time
of the injury, i.e., an impairment resulting in loss of wage-earning capacity.3 For each period of
disability claimed, the employee has the burden of establishing that he or she was disabled for
work as a result of the accepted employment injury.4 Whether a particular injury causes an
employee to become disabled for work and the duration of that disability are medical issues that
must be proved by a preponderance of probative and reliable medical opinion evidence.5 The
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.6 The Board will not require the Office to pay
compensation for disability in the absence of medical evidence directly addressing the specific
dates of disability for which compensation is claimed. To do so would essentially allow an
employee to self-certify her disability and entitlement to compensation.7
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained a left ankle sprain/strain and fractured left
calcaneus on February 24, 2006 in the performance of duty. On August 20, 2007 she sought
wage-loss compensation for total disability from July 27 through August 20, 2007. By decision
dated October 9, 2007, the Office found that appellant had not established her disability for work
during the claimed period due to her accepted employment-related injuries. Appellant has the
burden of establishing by the weight of the substantial, reliable and probative evidence, a causal
relationship between her claimed disability and the accepted condition.8
The only medical evidence submitted by appellant was Dr. Carlini’s September 11, 2007
letter. However, Dr. Carlini merely noted that Dr. Cooper was better qualified to provide an
opinion regarding appellant’s ability to work as he had performed her surgery. He did not
3

See Prince E. Wallace, 52 ECAB 357 (2001).

4

Dennis J. Balogh, 52 ECAB 232 (2001).

5

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

6

Manuel Garcia, 37 ECAB 767 (1986).

7

Amelia S. Jefferson, 57 ECAB 183 (2005); Fereidoon Kharabi, 52 ECAB 291 (2001).

8

Alfredo Rodriguez, 47 ECAB 437 (1996).

3

provide any opinion on whether appellant was totally disabled for work during the claimed
period. The Board finds that Dr. Carlini does not support appellant’s claim of total disability
from July 27 through August 20, 2007.
Appellant failed to submit rationalized medical evidence establishing that her total
disability during the period July 27 through August 20, 2007 resulted from the residuals of her
accepted February 24, 2006 left ankle sprain/strain and fractured left calcaneus. The Board finds
that she has not met her burden of proof.
LEGAL PRECEDENT-- ISSUE 2
Section 8124(b)(1) of the Act provides that before review under section 8128(a) of this
title, 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 her
claim before a representative of the Secretary.9 Section 10.615 of the federal regulations
implementing this section of the Act provides that a claimant shall be afforded a choice of an
oral hearing or a review of the written record.10 Section 10.616(a) further provides that 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 and also that the claimant must not have
previously submitted a reconsideration request (whether or not it was granted) on the same
decision.11
Additionally, the Board has held that the Office, in its broad discretionary authority in the
administration of the Act,12 has the power to hold hearings in certain circumstances where no
legal provision was made for such hearings and that the Office must exercise this discretionary
authority in deciding whether to grant a hearing.13 The Office’s procedures, which require the
Office to exercise its discretion to grant or deny a hearing when the request is untimely or made
after reconsideration, are a proper interpretation of Board precedent.14
ANALYSIS -- ISSUE 2
The Board finds that the Office properly denied appellant’s request for a review of the
written record as untimely filed. The Office’s decision denying her claim for disability was
dated October 9, 2007. Appellant’s request for a review of the written record was dated
December 14, 2007 and postmarked December 17, 2007, more than 30 days following issuance
of the October 9, 2007 decision.
9

5 U.S.C. § 8124(b)(1).

10

20 C.F.R. § 10.615.

11

Id. at § 10.616(a).

12

5 U.S.C. §§ 8101-8193.

13

Marilyn F. Wilson, 52 ECAB 347 (2001).

14

Teresa M. Valle, 57 ECAB 542 (2006). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and
Reviews of the Written Record, Chapter 2.1601.4(b)(3) (October 1992).

4

Although the Office determined that appellant’s request was untimely, it nevertheless
exercised its discretion by examining her request for review. It determined that appellant’s case
would be best served by her submission of a request for reconsideration together with new
supporting evidence. The Board has held that, as the only limitation on the Office’s authority is
reasonableness, 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.15 In the present case, the evidence of record does not indicate
that the Office committed any act in connection with its denial of appellant’s request for a review
of the written record, which could be found to be an abuse of discretion. For these reasons, the
Office properly denied appellant’s request for a review of the written record under section 8124
of the Act.16
CONCLUSION
The Board finds that appellant has failed to establish that she was totally disabled during
the period July 27 through August 20, 2007 due to her February 24, 2006 employment-related
injuries. The Board further finds that the Office properly denied her request for a review of the
written record as untimely.

15

Samuel R. Johnson, 51 ECAB 612 (2000).

16

On appeal, appellant contends for the first time that she did not receive the Office’s “letter of appeal” because
she had moved to Georgia where she did not receive her mail. She stated that if she had not telephoned her case
manager in Jacksonville, Florida, she would have never received the appeal letter. This contention was not raised
before or adjudicated by the Office and cannot be considered for the first time on appeal. See 20 C.F.R. § 501.2(c).

5

ORDER
IT IS HEREBY ORDERED THAT the January 11, 2008 and October 9, 2007
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: September 15, 2008
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

6