United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
SAN DIEGO HEALTHCARE SYSTEM,
San Diego, CA, Employer
__________________________________________

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

Docket No. 10-48
Issued: October 5, 2010

Case Submitted on the Record

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

JURISDICTION
On October 7, 2009 appellant, through his attorney, filed a timely appeal of a June 5,
2009 Office of Workers’ Compensation Programs’ merit decision and a September 15, 2009
nonmerit decision. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merit and nonmerit issues of the case.
ISSUES
The issues are: (1) whether appellant established a consequential left knee injury;
(2) whether the Office properly denied modification of appellant’s wage-earning capacity prior
to November 18, 2008; and (3) whether the Office properly denied his request for merit review
under 5 U.S.C. § 8128.
FACTUAL HISTORY
On February 28, 2001 appellant, then a 48-year-old escort, injured his right knee in the
performance of duty when he tripped and fell while exiting an elevator. The Office accepted his

claim for sprain of the right knee and leg, a meniscal tear, internal derangement of the right knee
and chondromalacia of the patella with osteoarthritis. Appellant underwent an authorized right
knee arthroplasty on December 3, 2003. The Office granted him a schedule award for nine
percent impairment of his right lower extremity on June 16, 2003. By decision dated April 27,
2005, it granted appellant a schedule award for an additional 37 percent impairment of his right
lower extremity.
In a letter dated June 24, 2005, the Office proposed to reduce appellant’s compensation
benefits based on his capacity to earn wages as an information clerk. It finalized this decision on
July 29, 2005. Appellant reported that he was employed as a preparation cook at the University
of California San Diego Medical Center beginning in March 2006.
By letter dated April 12, 2007, the Office informed appellant that he would be entitled to
compensation under his wage-earning capacity determination beginning on May 3, 2007, after
his schedule award ended. On May 2, 2007 it informed him that his compensation every 28 days
was $222.00.
Appellant telephoned the Office on February 27, 2008 and stated that he was not working
due to increased problems with his right knee. In a letter dated February 27, 2008, the Office
informed him of the requirements for filing a recurrence of disability and requested supportive
medical evidence. It allowed 30 days for a response.
Appellant filed a notice of recurrence of disability on March 15, 2008 and alleged that he
developed constant swelling and pain in his right knee on February 11, 2008 due to his
February 28, 2001 employment injury. On February 13, 2008 Dr. Roman Cham, a Boardcertified orthopedic surgeon, stated that appellant believed his work required him to stand too
much and that he wanted 45 days off work. He noted that appellant was required to stand for six
hours a day. Dr. Cham stated, “I d[o] n[o]t know if he needs 45 days, but that is his request.”
On March 11, 2008 he stated that appellant had pain in both knees. Dr. Cham noted that
appellant complained that his left knee condition was a result of his right knee condition. He
recommended light-duty work.
In a letter dated April 28, 2008, the Office allowed appellant an additional 30 days to
submit a narrative medical report. In a May 28, 2008 report, Dr. Cham stated that appellant
continued to experience right knee symptoms causing additional stress on the left knee and
“igniting the previous asymptomatic arthritic condition.” He stated, “If not for the right knee
condition, it is unlikely that he would be putting the amount of loads on his left knee to cause
aggravation or lightening up of the previous arthritic condition and making it symptomatic now.”
Dr. Cham opined that appellant’s current left knee condition was work related and diagnosed
arthritis.
By decision dated June 13, 2008, the Office denied appellant’s claim for recurrence of
disability or consequential injury finding that Dr. Cham’s reports were not sufficient to establish
his claim. It noted that appellant had engaged in nonfederal work duties beginning March 2006.
Appellant requested reconsideration on July 14, 2008. In a note dated June 25, 2008,
Dr. Cham stated that he believed that appellant’s current left knee condition was due to his right

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knee injury. He did not see any evidence of loosening or other problem with his right total knee
replacement. Dr. Cham stated that appellant could not continue to work as a cook. He advised
that appellant was permanently disabled beginning June 25, 2008. On July 15, 2008 Dr. Cham
found spontaneous swelling in the front of the tibia tubercle. He diagnosed mild patellar
tendinitis.
By decision dated August 5, 2008, the Office denied modification of the June 13, 2008
decision noting that Dr. Cham did not address appellant’s ability to work as an information clerk.
Appellant again requested reconsideration on August 19, 2008. He submitted notes dated
August 18 and September 16, 2008 from Dr. Paul A. Jain, a general practitioner, who noted that
appellant had a history of chronic bilateral knee pain with recurrent effusions in both knees.
Dr. Jain recommended work restrictions of no standing longer than five minutes. He stated that
appellant’s left knee pain and subsequent osteoarthritis was due to overcompensation as a result
of the right knee condition.
In notes dated September 15 and 16, 2008, Andrew T. Pennock, a Ph.D, reported slight
swelling in the right knee.
In a November 25, 2008 decision, the Office denied modification of the June 13, 2008
decision finding that appellant had not submitted sufficient medical evidence to establish a
recurrence of disability or a consequential injury.
Appellant requested reconsideration on December 5, 2008. In a report dated October 27,
2008, Dr. Michael P. Muldoon, a Board-certified orthopedic surgeon, noted appellant’s history
of right knee injury and his current employment as a cook. He stated that appellant’s continued
difficulties with his right knee were causing him to overcompensate and resulted in increasing
symptoms in the left knee. Dr. Muldoon recommended additional diagnostic testing. On
November 19, 2008 he found that appellant was totally disabled through January 1, 2009. A
bone scan on November 26, 2008 demonstrated increased activity along the margins of the knee
hardware. In a December 3, 2008 note, Dr. Muldoon opined that appellant had tibial component
loosening and recommended additional surgery.
On November 20, 2008 appellant alleged that he had a recurrence of his right knee
condition as well as a consequential left knee condition. Since his left knee condition developed
he was diagnosed with hypertension and anxiety.
By decision dated January 27, 2009, the Office authorized revision of appellant’s right
knee surgery and accepted that appellant had sustained a recurrence of the right knee condition.
It noted that he requested compensation for total disability for the periods February 18 through
April 1, 2008 and June 21, 2008 through January 26, 2009 as well acceptance of the left knee
condition and his diagnoses of hypertension and anxiety. The Office denied the consequential
left knee, hypertension and anxiety conditions as related to appellant’s employment injury. It
authorized compensation from November 19, 2008 through January 17, 2009 and entered
appellant on the periodic rolls beginning January 18, 2009.
Appellant requested reconsideration of the January 27, 2009 decision. Dr. Muldoon
performed surgical revision of appellant’s right total knee arthroplasty on March 13, 2009. He
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submitted treatment notes following surgery addressing appellant’s recovery. On April 15, 2009
Dr. Muldoon stated that appellant had difficulties with his total knee replacement since
June 2008 and was first totally disabled in June 2008. Appellant resubmitted Dr. Cham’s
February 13, 2008 note as well as Dr. Muldoon’s November 19, 2008 note.
In a June 5, 2009 decision, the Office denied appellant’s requests for wage-loss
compensation from February 18 through April 1, 2008 and June 1 through November 18, 2008.
It found that the medical evidence did not establish that he was totally disabled for his position of
information clerk, but rather his nonfederal employment as a cook. The Office stated that it had
not accepted appellant’s claimed recurrence of disability, but instead accepted the need for
surgery and a period of disability leading up to that surgery.
Appellant requested reconsideration on June 17, 2009. He submitted medical evidence
from Dr. Muldoon addressing his condition following his March 13, 2009 surgery. Appellant
also submitted copies of x-ray reports which did not identify any specific problem with his knee
hardware. On July 16, 2009 Dr. Jain stated that appellant’s right knee condition had improved
following surgery, but that he still experienced chronic left knee pain secondary to osteoarthritis.
By decision dated September 15, 2009, the Office denied appellant’s request for
consideration of the merits on the grounds that he failed to submit any relevant and pertinent new
evidence.
LEGAL PRECEDENT -- ISSUE 1
It is an accepted principle of workers’ compensation law that when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause which is attributable to the employee’s own intentional conduct.
It is well established that once the work-connected character of any injury has been established,
the subsequent progression of that condition remains compensable so long as the worsening is
not shown to have been produced by an independent nonindustrial cause and so long as it is clear
that the real operative factor is the progression of the compensable injury, associated with an
exertion that in itself would not be unreasonable under the circumstances.1
A claimant bears the burden of proof to establish a claim for a consequential injury. As
part of this burden, he must present rationalized medical opinion evidence, based on a complete
factual and medical background, showing causal relationship. Rationalized medical evidence is
evidence which relates a work incident or factors of employment to a claimant’s condition, with
stated reasons of a physician. The opinion must be one of reasonable medical certainty and must
be supported by medical rationale explaining the nature of the relationship of the diagnosed
condition and the specific employment factors or employment injury.2

1

Clement Jay After Buffalo, 45 ECAB 707, 715 (1994).

2

Charles W. Downey, 54 ECAB 421 (2003).

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ANALYSIS -- ISSUE 1
Appellant alleged that he developed a consequential left knee condition as a result of his
accepted right knee injury and total knee replacement in December 2003. On March 11, 2008
Dr. Cham, a Board-certified orthopedic surgeon, stated that appellant reported pain in both
knees. He noted that appellant attributed his left knee pain to his right knee condition. Dr. Cham
recommended light-duty work. On May 28 and June 25, 2008 he stated that appellant’s right
knee symptoms were causing additional stress on the left knee and “igniting the previous
asymptomatic arthritic condition.” Dr. Cham opined, “If not for the right knee condition, it is
unlikely that he would be putting the amount of loads on his left knee to cause aggravation or
lightening up of the previous arthritic condition and making it symptomatic now.” He diagnosed
arthritis and concluded that appellant’s current left knee condition was work related. The Board
finds that Dr. Cham’s opinion on causal relationship is speculative. He failed to describe the
nature of the right knee symptoms or explain how this caused additional loads on the left knee.
Dr. Cham also failed to discuss appellant’s private-sector employment as a cook and whether the
six hours a day standing required by this position caused or contributed to the left knee
condition. Without an accurate factual history and detailed medical findings, his report is not
sufficient to meet appellant’s burden of proof.
Dr. Muldoon, a Board-certified orthopedic surgeon, examined appellant on October 27,
2008, noted his history of right knee injury and his current employment as a cook. He stated that
appellant’s continued difficulties with his right knee were causing him to overcompensate and
resulted in left knee symptoms. Dr. Muldoon noted appellant’s private-sector employment and
opined that his left knee condition was a consequence of the accepted employment injury;
however, he did not fully describe appellant’s specific job duties or address how the prior right
knee arthropathy would contribute to appellant’s left knee symptoms. He did not provide
adequate medical reasoning explaining how he reached his stated conclusion other than referring
to overcompensation. Without medical rationale, this report is not sufficient to establish
appellant’s claim.
Appellant did not submit sufficient medical evidence to establish that his hypertension or
emotional condition is related to his accepted right knee condition. The question of causal
relationship is a medical one and must be resolved by probative medical evidence.3 As appellant
failed to submit any medical evidence, the Office properly denied this aspect of his claim.
LEGAL PRECEDENT -- ISSUE 2
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.4 Compensation for loss of wage-earning capacity is based upon loss of the capacity to
3

A.D., 58 ECAB 149 (2006).

4

5 U.S.C. § 8115(a); K.R., 61 ECAB ___ (Docket No. 09-415, issued February 24, 2010); Lee R. Sires, 23 ECAB
12, 14 (1971) (the Board held that actual wages earned must be accepted as the measure of a wage-earning capacity
in the absence of evidence showing they do not fairly and reasonably represent the employee’s wage-earning
capacity).

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earn and not on actual wages lost.5 Compensation payments are based on the wage-earning
capacity determination, which remains undisturbed until properly modified.6
Modification of a standing wage-earning capacity determination is not warranted unless
there is a material change in the nature and extent of the injury-related condition, the employee
has been retrained or otherwise vocationally rehabilitated or the original determination was
erroneous.7 The Office’s procedure manual provides that, if a formal loss of wage-earning
capacity decision has been issued, the rating should be left in place unless the claimant requests
resumption of compensation for total wage loss. In this instance, the claims examiner will need
to evaluate the request according to the customary criteria for modifying a formal loss of wageearning capacity.8 The burden of proof is on the party attempting to show a modification of the
wage-earning capacity determination.9
ANALYSIS -- ISSUE 2
The Office issued a formal wage-earning capacity determination on July 29, 2005 finding
that appellant had the capacity to earning wages as an information clerk. Appellant has not
alleged nor submitted evidence that this initial decision was in error. Furthermore, the Office has
not alleged that he has been retrained or rehabilitated. Beginning on February 27, 2008,
appellant alleged that he sustained a material change in the nature and extent of his injury-related
right knee conditions rendering him totally disabled and warranting modification of the wageearning capacity determination. As noted, appellant underwent a total right knee arthroplasty on
December 3, 2003. He has the burden of establishing a change in this condition warranting
modification of the wage-earning capacity determination.
On February 13, 2008 Dr. Cham noted that appellant believed his work required him to
stand too much and that he wanted 45 days of total disability. He stated, “I d[o] n[o]t know if he
needs 45 days, but that is his request.” This report does not establish a material change in
appellant’s injury-related right knee condition. Dr. Cham did not provide a firm medical
diagnosis or provide his own opinion that appellant was totally disabled, but instead relied on
appellant’s representation of disability. The Board will not require the Office to pay
compensation for disability in the absence of any medical evidence directly addressing the
specific dates of disability for which compensation is claimed. To do so would essentially allow
employees to self-certify their disability and entitlement to compensation.10 On March 11, 2008
Dr. Cham stated that appellant had pain to both knees. This report is not sufficient to establish a
5

K.R., supra note 4; Roy Matthew Lyon, 27 ECAB 186, 190 (1975). Ernest Donelson, Sr., 35 ECAB 503,
505 (1984).
6

See Sharon C. Clement, 55 ECAB 552, 557 (2004).

7

Sue A. Sedgwick, 45 ECAB 211, 215-16 (1993); Elmer Strong, 17 ECAB 226, 228 (1965).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995). See also FECA Transmittal 10-01 (issued October 5, 2009).
9

Selden H. Swartz, 55 ECAB 272, 278 (2004).

10

Id.

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material change in appellant’s accepted right knee condition as Dr. Cham did not provide a clear
diagnosis. The Board has generally held that the diagnosis of “pain” does not constitute the basis
for payment of compensation.11
On June 25, 2008 Dr. Cham did not see any evidence of loosening or other problems with
appellant’s right total knee replacement, but stated that he could not continue to work as a cook.
He indicated that appellant was totally disabled beginning June 25, 2008. Dr. Cham did not
support any change in appellant’s right knee condition, noting instead that appellant did not have
a problem with his total knee replacement. Dr. Cham did not address appellant’s ability to
perform the duties of an information clerk finding instead that he could not work as a cook. On
July 15, 2008 Dr. Cham diagnosed patellar tendinitis based on the physical finding of
spontaneous swelling in the front of the tibia tubercle. He did not clearly identify the knee
impacted by the swelling. These reports are not sufficient to establish a material change in
appellant’s accepted right knee condition.
Dr. Jain, a general practitioner, completed reports on August 18 and September 16, 2008
finding that appellant had a history of chronic bilateral knee pain with recurrent effusions in both
knees. Dr. Pennock, a physician, reported slight swelling in the right knee on September 15 and
16, 2008. Although Drs. Jain and Pennock diagnosed recurrent effusions or swelling in the right
knee, neither physician offered any explanation of how this condition caused a material change
in appellant’s right knee osteoarthritic condition. Moreover, the physicians did not address her
capacity for work in the selected position. For these reasons, these reports are not sufficient to
meet appellant’s burden of proof to modify his wage-earning capacity determination.
On November 19, 2008 Dr. Muldoon found that appellant was totally disabled beginning
that date. The Office authorized compensation for total disability based on this report. A
subsequent bone scan dated November 26, 2008 established tibial component loosening.
On April 15, 2009 Dr. Muldoon stated that appellant had difficulties with his total knee
replacement since June 2008 and was first totally disabled in June 2008. Although he offered an
opinion that appellant’s right knee rendered him totally disabled prior to November 19, 2008, he
did not describe the findings on which he based this conclusion or offer sufficient medical
reasoning in support of his opinion that the accepted material change in appellant’s injury-related
condition, the tibial component loosening, occurred in June 2008. These reports are not
sufficient to establish that appellant’s wage-earning capacity decision should have been modified
prior to November 19, 2008, the date the Office reinstated total disability compensation.
The medical evidence in the record does not support a material change in the nature and
extent of appellant’s right knee condition prior to November 19, 2008. As such appellant is not
entitled to additional compensation benefits prior to this date.
LEGAL PRECEDENT -- ISSUE 3
The Federal Employees’ Compensation Act provides in section 8128(a) that the Office
may review an award for or against payment of compensation at any time on its own motion or
11

Robert Broome, 55 ECAB 339 (2004).

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on application by the claimant.12 Section 10.606(b) of the Code of Federal Regulations provide
that a claimant may obtain review of the merits of the claim by submitting in writing an
application for reconsideration which sets forth arguments or evidence and shows that the Office
erroneously applied or interpreted a specific point of law; or advances a relevant legal argument
not previously considered by the Office; or includes relevant and pertinent new evidence not
previously considered by the Office.13 Section 10.608 of the Office’s regulations provide that
when a request for reconsideration is timely, but does meet at least one of these three
requirements, the Office will deny the application for review without reopening the case for a
review on the merits.14
ANALYSIS -- ISSUE 3
Appellant requested reconsideration of the Office’s June 5, 2009 merit decision on
June 17, 2009. In support of this request, he submitted additional medical evidence. Appellant
submitted several reports from Dr. Muldoon, a Board-certified orthopedic surgeon, addressing
his recovery from his March 13, 2009 surgery. As these reports do not address the outstanding
issues before the Office, whether his claim should be expanded to include a left knee injury,
hypertension and anxiety as a result of his February 28, 2001 employment-related right knee
injury, these reports are not relevant to the issues of the case and are not sufficient to require the
Office to reopen appellant’s claim for consideration of the merits.
Appellant also submitted copies of x-ray reports dated August 18 and 20, 2008 which
were not able to identify any specific problem with his knee hardware. These reports are not
relevant to the central issue of appellant’s claim. While the reports suggest that appellant had an
ongoing medical condition, there is no discussion of either a consequential left knee injury or a
period of disability due to his right knee condition. Therefore, these reports are not sufficient to
require the Office to reopen appellant’s claim for consideration of the merits.
Dr. Jain, a general practitioner, completed a report on July 16, 2009 and stated that since
appellant’s knee replacement revision his right knee pain had improved, but that he still
experienced chronic left knee pain secondary to osteoarthritis. This report does not offer an
opinion regarding appellant’s period of disability before November 18, 2008. The report does
not address whether appellant’s left knee pain is a consequential injury of his accepted right
injury. As this report does not address the central issues in appellant’s claim, it is not relevant
evidence and is not sufficient to require the Office to reopen appellant’s claim for consideration
of the merits.
The Board finds that the September 15, 2009 decision of the Office properly declined to
reopen appellant’s claim for consideration of the merits on the grounds that he failed to submit
any relevant and pertinent new evidence in support of his request for consideration.

12

5 U.S.C. §§ 8101-8193, 8128(a).

13

20 C.F.R. § 10.606.

14

Id. at § 10.608.

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CONCLUSION
The Board finds that appellant has not submitted the necessary rationalized opinion
evidence to establish a left knee consequential injury. The Board further finds that the Office
properly declined to modify appellant’s wage-earning capacity determination until
November 19, 2008. Finally, the Board finds that appellant has not submitted relevant and
pertinent new evidence not previously considered by the Office on June 17, 2009 and that the
Office therefore properly declined to reopen his claim for consideration of the merits in its
September 15, 2009 decision.
ORDER
IT IS HEREBY ORDERED THAT the September 15 and June 5, 2009 decisions of
Office of Workers’ Compensation Programs are affirmed.
Issued: October 5, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 13-147
Issued: April 10, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 25, 2012 appellant filed a timely appeal from a September 12, 2012 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration. Because more than 180 days elapsed from the last merit decision dated July 26,
2011 to the filing of this appeal, and 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
appellant’s claim.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 30, 2004 appellant, then a 48-year-old city carrier, filed an occupational disease
claim alleging that on July 1, 2004 he first realized that a pinched nerve in his right leg was
employment related. OWCP accepted appellant’s claim for lumbar intervertebral disc
displacement.
In a November 17, 2009 report Dr. R. James McLaughlin, a treating Board-certified
occupational medicine physician, diagnosed L4-5 listhesis with bilateral hip and lower extremity
pain. He used the sixth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment (A.M.A., Guides), to rate appellant’s impairment. Using Figure 16-12
and Table 16-24, Dr. McLaughlin found a five percent impairment of each lower extremity due
to appellant’s hip condition. He found that there were no grade modifiers which would change
the five percent lower extremity impairment in each hip. Dr. McLaughlin rated a five percent
impairment to each leg.
On April 10, 2010 appellant filed a claim for a schedule award.
In a January 7, 2011 report, OWCP’s medical adviser requested clarification from
Dr. McLaughlin regarding his impairment rating as he did not fully document his physical
findings or provide rationale for the method used. By letter dated January 14, 2011, OWCP
requested clarification from Dr. McLaughlin.
On January 28, 2011 Dr. McLaughlin responded to OWCP’s request. Using Table 16-4,
page 512, he found that appellant had a class 1, grade C impairment based on the mild hip
motion deficits which results in a two percent lower extremity impairment. Dr. McLaughlin
found a zero percent increase based on functional history of difficulty walking and working. He
found that the clinical modifier was not applicable as no magnetic resonance imaging scans were
performed. Dr. McLaughlin noted a two percent permanent impairment to each hip which
converted to a one percent whole person impairment for each hip or a two percent whole person
impairment rating.
On February 10, 2011 an OWCP medical adviser reviewed Dr. McLaughlin’s January 28,
2011 impairment rating and concluded there was no ratable impairment. The medical adviser
noted that appellant’s accepted condition was displacement intervertbral disc which had no
related applicable extremity impairment. There was no objective evidence to establish any
lumbar nerve root involvement in the lower extremities or any hip dysfunction. The medical
adviser stated that Dr. McLaughlin “provided no evidence of an objective medical condition
impacting the claimant’s hips (related to the accepted condition).”
By decision dated July 25, 2011, OWCP denied appellant’s schedule award claim on the
grounds that he had no permanent impairment of a scheduled member.
On July 3, 2012 appellant requested reconsideration. He contended that OWCP erred in
rejecting Dr. McLaughlin’s impairment rating as the physician correctly followed OWCP’s
instructions and the A.M.A., Guides. Appellant contended that he was entitled to a schedule
award based on the pain and suffering as a result of his employment injury.

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By decision dated September 12, 2012, OWCP denied appellant’s request for
reconsideration of the merits of his claim.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.3 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.4 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review on the
merits.5
ANALYSIS
Appellant requested reconsideration by letter dated July 3, 2012. He contended that
OWCP erred in its schedule award denial. By decision dated September 12, 2012, OWCP
denied appellant’s request for a merit review. The issue is whether his request met one of the
three standards for obtaining a merit review of his case.
Appellant did not establish that OWCP erroneously applied or interpreted a specific point
of law not previously considered. He contended that his impairment rating should be based on
the rating provided by Dr. McLaughlin’s report were erroneous. However appellant did not
explain how OWCP’s findings regarding Dr. McLaughlin’s constituted error. The Board notes
that OWCP explained in its July 25, 2011 decision why Dr. McLaughlin’s February 3, 2011
impairment rating was insufficient to establish appellant’s entitlement to a schedule award.
Consequently, appellant has not shown that OWCP erroneously applied or interpreted a specific
point of law, nor has he advanced a relevant legal argument not previously considered by
OWCP.
Additionally, appellant did not submit evidence with his request for reconsideration.
Consequently, he is not entitled to a review of the merits based on the third requirement under
section 10.606(b)(2).6
2

5 U.S.C. §§ 8101-8193. Section 8128(a) of FECA provides that the Secretary of Labor may review an award
for or against payment of compensation at any time on his own motion or on application.
3

20 C.F.R. § 10.606(b)(2). See J.M., Docket No. 09-218 (issued July 24, 2009); Susan A. Firkins, 57 ECAB
630 (2006).
4

Id. at § 10.607(a). See SQ., Docket No. 08-2048 (issued July 9, 2009); Robert G. Burns, 57 ECAB 657 (2006).

5

Id. at § 10.608(b). See Y.S., Docket No. 08-440 (issued March 16, 2009); Tina M. Pirelli-Ball, 57 ECAB
598 (2006).
6

Id. at § 10.606(b)(2)(1) and (2).

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The Board finds that OWCP properly determined that appellant was not entitled to
further consideration of the merits of his claim pursuant to any of the three requirements under
20 C.F.R. § 10.606(b)(2), and thus OWCP properly denied his July 3, 2012 request for
reconsideration.
CONCLUSION
The Board finds that, as appellant did not meet the requirements of 20 C.F.R.
§ 10.606(b)(2), OWCP properly refused to reopen the case for merit review.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 12, 2012 is affirmed.
Issued: April 10, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.G., Appellant
and
DEPARTMENT OF THE NAVY,
PORTSMOUTH NAVAL SHIPYARD,
Kittery, ME, Employer
__________________________________________

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

Docket No. 17-0943
Issued: July 21, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On March 30, 2017 appellant filed a timely appeal from a December 23, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a traumatic injury
to the left fifth finger causally related to an accepted July 23, 2016 employment incident.
FACTUAL HISTORY
On August 2, 2016 appellant, then a 49-year-old firefighter, filed a traumatic injury claim
(Form CA-1) alleging that, while turning the steering wheel of a fire engine at 10:30 a.m. on
1

5 U.S.C. § 8101 et seq.

July 23, 2016, he caught his left fifth finger on a pillar-mounted handle, bending the digit in an
unnatural position as he turned the wheel, causing a sprain and dislocation.
Appellant provided July 31, 2016 records from a hospital emergency room walk-in
center. A physician assistant noted that appellant injured his left fifth finger “about nine days
ago,” sustaining “a crush injury” at work. Appellant provided intake forms reiterating that the
injury occurred at work on July 23, 2016, when his “left pinky got caught on a handle, mounted
on a pillar” as he turned the steering wheel. The physician assistant diagnosed a sprain of the
proximal interphalangeal joint of the left fifth finger. X-rays of the left fifth finger reviewed by
Dr. Richard N. Gray, a Board-certified radiologist, showed normal alignment without fracture
and unremarkable soft tissues. The physician assistant opined that the x-rays showed soft tissue
swelling in the middle phalanx of the left fifth finger. She “buddy taped” appellant’s left fourth
and fifth fingers and noted work restrictions.
In an August 11, 2016 letter, OWCP notified appellant of the additional evidence needed
to establish his claim, including a physician’s report explaining how the July 23, 2016 incident
could have caused the claimed injury. It cautioned that the July 31, 2016 reports were not
considered medical evidence as physician assistants were not considered physicians under
FECA. OWCP afforded appellant 30 days to submit additional evidence. No additional
evidence was received.
By decision dated September 16, 2016, OWCP accepted that the July 23, 2016
employment incident occurred at the time, place, and in the manner alleged, but denied the claim
because there was no medical evidence of record signed by a physician diagnosing an injury
causally related to the accepted July 23, 2016 incident.
On October 4, 2016 appellant requested reconsideration. He submitted copies of the
July 31, 2016 emergency room reports previously of record.
By decision dated September 4, 2016, OWCP denied reconsideration, finding that the
copies of previously submitted evidence were repetitive and, therefore, insufficient to warrant a
review of the merits of the claim.
On November 21, 2016 appellant again requested reconsideration. He contended that on
July 23, 2016, his left fifth finger became “jammed against a handle mounted” on a pillar.
Appellant alleged that a captain in the adjacent seat witnessed the incident and heard the “thud,”
and that two other employees sustained similar injuries on the same handle, which was later
removed from the pillar. He asserted that he delayed seeking treatment until July 31, 2016 as he
had prior scheduled vacation plans beginning July 24, 2016.
Appellant submitted a copy of the July 31, 2016 emergency room reports, signed on
November 16, 2016 by Dr. Robert Hulefeld, Board-certified in emergency medicine and director
of the walk-in unit where appellant was treated. Dr. Hulefeld noted his agreement with the
assessment, diagnosis, and management provided by the physician assistant.
By decision dated December 23, 2016, OWCP denied the claim finding that the medical
evidence of record was insufficient to establish causal relationship. It noted that the physician
assistant’s July 31, 2016 reports, as affirmed by Dr. Hulefeld, described a crush injury, differing
2

significantly from appellant’s account of the finger being bent in an unnatural position. OWCP
therefore, found that Dr. Hulefeld’s opinion was not based on a complete and accurate history of
the accepted incident, and was thus of insufficient probative value to establish a causal
relationship between that incident and the claimed injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an “employee of the
United States” within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as
alleged, and that any specific condition and/or disability for which compensation is claimed are
causally related to the employment injury.3
To determine whether an employee sustained a traumatic injury in the performance of
duty, OWCP begins with an analysis of whether fact of injury has been established. Generally,
fact of injury consists of two components that must be considered conjunctively. First, the
employee must submit sufficient evidence to establish that he actually experienced the
employment incident that is alleged to have occurred.4 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.5
The medical evidence required to establish causal relationship is generally 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 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
Appellant claimed that he injured his left fifth finger at work on July 23, 2016 while
driving a fire engine. In his August 2, 2016 claim (Form CA-1), he described catching his left
fifth finger on a pillar-mounted handle and bending it in an unnatural position. Appellant
clarified on November 17, 2016 that he jammed his finger against the handle, causing it to
hyperextend as he turned the steering wheel. OWCP accepted this version of events as factual.
2

Supra note 1.

3

J.F., Docket No. 09-1061 (issued November 17, 2009).

4

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

5

Deborah L. Beatty, 54 ECAB 340 (2003).

6

Solomon Polen, 51 ECAB 341 (2000).

3

In support of his claim, appellant provided reports from a hospital walk-in center dated
July 31, 2016, prepared by a physician assistant and signed on November 16, 2016 by
Dr. Hulefeld, Board-certified in emergency medicine and director of the walk-in unit. These
reports described a “crush injury” to the left fifth finger, but diagnosed a sprain of the proximal
interphalangeal joint of the left fifth finger. The inconsistent description of the incident, reduce
the probative quality of Dr. Hulefeld’s opinion.7 Moreover, appellant did not allege a crush
injury.
Additionally, Dr. Hulefeld did not set forth his medical reasoning supporting how the
accepted mechanism of catching and bending appellant’s fifth finger against the handle would
have caused the diagnosed sprain. This lack of medical rationale supporting Dr. Hulefeld’s
conclusions further reduces the probative value of his opinion.8
The Board notes that OWCP notified appellant by August 11, 2016 letter of the need to
provide rationalized medical evidence from a physician supporting causal relationship. As
appellant failed to submit such evidence, he failed to meet his burden of proof.
Appellant may submit additional evidence or argument with a written request for
reconsideration to OWCP within one year of the date 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 meet his burden of proof to establish a
traumatic injury to the left fifth finger causally related to an accepted July 23, 2016 employment
incident.

7

See Beverly R. Jones, 55 ECAB 465 (2004).

8

See Frank D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 23, 2016 is affirmed.
Issued: July 21, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bell Gardens, CA, Employer
__________________________________________

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

Docket No. 16-0421
Issued: October 17, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JURISDICTION
On January 4, 2016 appellant filed a timely appeal of an October 19, 2015 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.2
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
compensation benefits for her right ankle sprain effective May 3, 2015; and (2) whether
appellant met her burden of proof to establish continuing disability after May 3, 2015.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the October 19, 2015 decision, OWCP received additional evidence. However,
the Board may only review evidence that was in the record at the time OWCP issued its final decision. See 20
C.F.R. § 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58
ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

On appeal appellant argues that OWCP erred in finding that her right ankle condition had
resolved with no disability or residuals.
FACTUAL HISTORY
On April 29, 2009 appellant, then a 45-year-old temporary mail carrier, filed a traumatic
injury claim (Form CA-1) alleging that on April 20, 2009 she twisted her right foot and ankle
when she stepped out of her postal vehicle. OWCP accepted the claim for right ankle sprain, and
later expanded the acceptance to include right plantar fasciitis, as well as a September 9, 2009
claim for a recurrence of disability.3 Appellant received compensation benefits on the periodic
rolls as of September 9, 2009.
In an April 16, 2010 report, Dr. Babak Alavynejad, a treating podiatrist, reviewed
appellant’s history of injury and performed a physical examination. Appellant’s physical
examination revealed no swelling, tenderness on palpation of the plantar fascia, no pain on tarsal
tunnel palpation, and normal range of motion. Dr. Alavynejad opined that appellant continued to
suffer from plantar fasciitis, but that she could return to work with no restrictions.
In subsequent reports and work status reports, Dr. Alavynejad provided examination
findings and indicated that appellant could return to work with no restrictions.
On June 30, 2010 OWCP referred appellant to Dr. Joseph P. Conaty, a Board-certified
orthopedic surgeon, for a second opinion regarding the status of her accepted employment
conditions. In a July 13, 2010 report, Dr. Conaty, based upon a review of the medical record and
statement of accepted facts (SOAF), diagnosed a resolved right ankle sprain. However, he
related that her right foot plantar fascia still caused restrictions. Dr. Conaty opined that appellant
was unable to work her date-of-injury job, but was able to work with restrictions. A physical
examination revealed an abnormal right weight-bearing gait, normal range of motion, normal
muscle strength, and normal neurological examination with mild tenderness in the sinus tarsi and
lateral ankle joint. Dr. Conaty also observed no evidence of weakness in the dorsiflexors or
plantar flexors. He related that appellant was restricted to two hours of intermittent walking
during an eight-hour workday, and four hours of intermittent standing.
By letter dated September 22, 2010, OWCP referred appellant to Dr. Ronald W. Smith, a
Board-certified orthopedic surgeon, to resolve the conflict in the medical opinion evidence
between Dr. Alavynejad and Dr. Conaty, regarding appellant’s ability to return to work.
In a November 23, 2010 report, Dr. Smith, based upon a review of the medical record,
employment injury history, and SOAF, diagnosed right lateral ankle sprain and right plantar
fasciitis with symptoms of spasm in the right foot mid-arch. He concluded that appellant
required no active medical treatment for her ankle sprain or plantar fasciitis and that she was
capable of working. Dr. Smith related that to give appellant “the benefit of the doubt” regarding
her plantar fasciitis symptoms, she should continue with work restrictions of carrying up to 20
pounds for six hours in an eight-hour day, and only up to two hours of standing and intermittent
sitting in an eight-hour day.
3

Appellant’s temporary mail carrier appointment ended December 3, 2009.

2

On September 24, 2012 OWCP referred appellant to Dr. Smith for a follow-up
examination on the issue of appellant’s entitlement to benefits. Specifically, Dr. Smith was
asked to provide an opinion as to whether the accepted right ankle sprain and right plantar
fasciitis had resolved. If he found that the conditions had not resolved he was asked to explain
why they had not resolved, and whether they were disabling on an objective basis.
In reports dated September 14 and October 12, 2012, Dr. Alavynejad provided
examination findings and an assessment of possible right foot plantar fasciitis and right ankle
sprain. He opined that appellant was capable of returning to work with restrictions of up to two
hours of limited standing and walking, which was increased to three hours in his October 12,
2012 report.
In a November 5, 2012 report, Dr. Smith noted appellant’s symptoms primarily
concerned her right ankle although she did have complaints of right heel plantar aspect pain.
Physical examination findings were provided and diagnoses of right plantar heel pain and right
ankle chronic pain syndrome. Dr. Smith reported that appellant’s symptoms exceeded what
would be expected based on examination findings. He noted that she likely had a lateral
collateral ligament injury which was consistent with hearing a pop at the time of her injury and
with magnetic resonance imaging (MRI) scan findings. Dr. Smith concluded that appellant was
capable of working a modified light-duty job. He also opined that no further medical treatment
was required for appellant’s accepted plantar fasciitis.
A notice of proposed termination of wage-loss compensation and medical benefits was
issued by OWCP on January 2, 2013.
By decision dated February 7, 2013, OWCP terminated appellant’s medical benefits and
wage-loss compensation for her right plantar fasciitis as it found that she no longer had any
residuals or disability due to this condition.
In a May 9, 2013 report, Dr. Paul A. Anilie, a treating osteopath, diagnosed joint ankle
pain and ankle foot sprain/strain. A physical examination revealed right ankle tenderness and
restricted range of motion.
In an August 16, 2013 report, Dr. Alavynejad diagnosed right ankle sprain with possible
sural neuritis. A physical examination revealed full ankle range of motion, no neurological
deficits, and normal strength. Dr. Alavynejad indicated that appellant was capable of working
with restrictions. He related that appellant was limited to standing and walking for three hours a
day.
In a September 25, 2013 report, Dr. Smith provided an updated review of the medical
record and physical examination findings. He requested authorization for appellant to have a
right ankle arthroscopic surgical consultation with Dr. Thomas Harris, a Board-certified
orthopedic surgeon. Diagnoses included right ankle lateral ankle pain following a 2009
inversion sprain and possible right arthrofibrosis subtalar joint. Dr. Harris noted that appellant
had persistent significant symptoms, but there were no signs of measurable calf atrophy and her
neurological symptoms were not confirmed by objective evidence. He found no evidence of any
right foot plantar fasciitis. Dr. Harris recommended continuing medical care and found no

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objective evidence of disability. He attributed appellant’s symptoms to her accepted right ankle
injury.
Dr. Alavynejad submitted September and October 2014 follow-up podiatric reports,
provided examination findings, and indicated that appellant was capable of working with
restrictions. Diagnoses included right sural neuritis and right lateral ankle sural neuritis. Range
of motion findings were provided, which included guarded right ankle range of motion.
In a December 1, 2014 report, Dr. Ronald E. Bishop, an examining physician specializing
in anesthesiology and pain medicine, diagnosed right sural neuritis and possible L5-S1
radiculitis, which was unlikely due to the accepted employment injury. He noted the history of
the injury and medical treatment provided and that appellant’s chief complaint was right ankle
pain. A physical examination revealed trace right ankle swelling, diminished right extensor
halluces and right ankle dorsiflexors strength, and limited ankle range of motion.
Dr. Bishop, in a follow-up pain management report dated January 12, 2015, reported
reduced right heel light touch sensation. He diagnosed right lower extremity pain, diagnosed
right sural neuritis, and possible L5-S1 radiculitis, which was unlikely due to the accepted
employment injury.
On January 26, 2015 OWCP referred appellant for a second opinion evaluation with
Dr. Richard A. Rogachefsky, a Board-certified orthopedic surgeon, for an opinion as to whether
appellant has any continuing residuals and disability due to her accepted April 20, 2009
employment injury.
In a February 19, 2015 report, Dr. Rogachefsky, based upon a review of the medical
evidence, SOAF, and physical examination, noted diagnoses of right ankle sprain, and right foot
plantar fasciitis due to the accepted April 20, 2009 employment injury. Physical examination
findings included full right ankle range of motion, mild tenderness in the right lateral ankle
region on palpation, intact sensory and pulses, slight right ankle lateral aspect fullness, and
negative posterior and anterior drawer, varus, and valgus tests. Dr. Rogachefsky reported that
appellant continued to have complaints of pain in the right lateral ankle region. A review of the
right ankle MRI scan showed anterior talofibular and calcaneofibular ligaments tears and
objectively appellant had mild increased lateral ankle region fullness. Dr. Rogachefsky noted
minimal physical findings, but opined that no further medical treatment or diagnostic testing was
required. He observed that appellant had significant subjective findings with minimal supportive
objective findings. Dr. Rogachefsky concluded that appellant had no restrictions and was
capable of working full duty.
On March 10, 2015 OWCP issued a notice proposing to terminate appellant’s wage-loss
compensation and medical benefits for her right ankle sprain as it determined that she no longer
had any residuals or disability due to this condition.
Following the proposal to terminate her benefits, OWCP received a February 19, 2013
report by Dr. F. John Hajaliloo, an examining Board-certified orthopedic surgeon, and
February 9, 2015 follow-up pain management report from Dr. Bishop. Dr. Hajaliloo reviewed
medical records of treatment provided for appellant’s injuries. Physical examination findings

4

included mild right ankle swelling, abnormal range of motion, and absent sural nerve distribution
sensation. Dr. Hajaliloo diagnosed right ankle instability and sural neuritis.
Dr. Bishop, in the February 9, 2015 follow-up pain management report, reiterated
findings and diagnoses from his January 12, 2015 report.
By decision dated April 16, 2015, OWCP finalized the termination of appellant’s
compensation benefits for her accepted right ankle sprain effective May 3, 2015. It found the
report of Dr. Rogachefsky, the second opinion physician, constituted the weight of the evidence
establishing that her right ankle sprain had resolved with no continuing residuals or disability.
OWCP also noted that none of appellant’s treating physicians found any objective findings of
disability.
Dr. Bishop, in an April 6, 2015 follow-up pain management report, received by OWCP
on May 4, 2015, noted reduced right ankle range of motion. He diagnosed right sural neuritis
and right lower extremity pain.
In an April 24, 2015 report, Dr. Alavynejad reported full right ankle range of motion, no
neurological deficit, and full muscle strength. He diagnosed right sural neuritis and indicated
that appellant was capable of working with restrictions of up to two hours of limited walking and
standing.
On May 7, 2015 appellant requested a review of the written record by an OWCP hearing
representative.
By decision dated October 19, 2015, the hearing representative affirmed the April 16,
2015 decision terminating appellant’s compensation benefits for her accepted right ankle sprain.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.4 After it has determined that an
employee has disability causally related to 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.5 OWCP’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.6
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.7 To terminate authorization for medical treatment, OWCP must

4

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

5

I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 ECAB 734 (2003).

6

See J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).

7

T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

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establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.8
For conditions not accepted by OWCP as being employment related, it is the employee’s
burden to provide rationalized medical evidence sufficient to establish causal relation, not
OWCP’s burden to disprove such relationship.9
ANALYSIS -- ISSUE 1
OWCP accepted appellant’s claim for right ankle sprain and right plantar fasciitis. In a
decision dated February 7, 2013, it terminated her compensation benefits for her accepted right
plantar fasciitis, but continued to provide medical and wage-loss compensation for her accepted
right ankle sprain. By decision dated April 16, 2015, OWCP terminated appellant’s
compensation benefits for her accepted right ankle condition as it found she no longer required
further medical treatment or had any disability due to this condition. A hearing representative
affirmed the April 16, 2016 decision terminating benefits for the accepted right ankle condition
on October 19, 2015. The issue on appeal is whether OWCP met its burden of proof to terminate
appellant’s compensation benefits for her accepted right ankle sprain effective May 3, 2015. The
Board finds that OWCP improperly terminated appellant’s medical and wage-loss benefits.
In its termination decision, OWCP determined that the weight of the medical evidence
resided with the opinion of Dr. Rogachefsky, a Board-certified orthopedic surgeon serving as a
second opinion physician. However, Dr. Rogachefsky’s opinion regarding appellant’s disability
and residuals contains inconsistent statements and opinions on whether appellant continues to
have residuals or disability due to the accepted ankle sprain. In his February 19, 2015 report,
Dr. Rogachefsky reported continued residuals from the injury based on the lateral aspect fullness
of the right ankle when compared with the normal left ankle. He also found tenderness on
palpation and pain in the lateral ankle region. In responding to OWCP’s question regarding the
need for further medical treatment and surgery options, Dr. Rogachefsky opined that no further
medical treatment or surgery was necessary, but noted minimal objective findings, but significant
subjective findings. In responding to a question regarding appellant’s physical limitations, he
opined that appellant was capable of returning to work with no restrictions, but also reported
minimal objective findings and subjective complaints. Dr. Rogachefsky opined that appellant
had no disability or residuals due to her accepted conditions, but also concluded that appellant
continued to have minimal objective findings. Due to the inconsistent responses to questions
posed by OWCP in his report regarding appellant’s ability to work, the Board finds
Dr. Rogachefsky’s opinion to be equivocal. The Board has held that a medical report that is
equivocal is of diminished probative value.10 Due to the inconsistencies and equivocal nature of
his report, the Board finds that Dr. Rogachefsky’s report is insufficient to support OWCP’s
burden of proof.
8

Kathryn E. Demarsh, id.; James F. Weikel, 54 ECAB 660 (2003).

9

G.A., Docket No. 09-2153 (issued June 10, 2010); Jaja K. Asaramo, 55 ECAB 200 (2004); Alice J. Tysinger, 51
ECAB 638 (2000).
10

T.M., Docket No. 08-975 (issued February 6, 2009); D.D., 57 ECAB 734 (2006); Cecelia M. Corley, 56 ECAB
662 (2005).

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Furthermore, the record contains no other medical reports contemporaneous with the
termination of benefits establishing that appellant’s accepted ankle sprain had resolved with no
residuals. The medical reports from Drs. Alavynejad, Bishop, and Hajaliloo, appellant’s treating
physicians, provide some support for a continuing employment-related condition.
The Board finds that OWCP failed to satisfy its burden of proof to terminate appellant’s
medical and wage-loss benefits. The medical evidence of record is insufficiently rationalized to
establish that appellant no longer has residuals from her accepted right ankle sprain.
Dr. Rogachefsky’s report did not establish by the weight of the evidence that appellant no longer
had any residuals or disability due to her accepted right ankle sprain. OWCP failed to follow its
own procedures to seek clarification from Dr. Rogachefsky.11 Further development of the
medical evidence was called for, particularly in light of Dr. Rogachefsky’s inconsistent and
equivocal report.
Consequently, OWCP has failed to meet its burden to terminate appellant’s compensation
benefits.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits effective May 3, 2015. Given the Board’s
determination regarding the first issue, the Board finds the second issue is moot.

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.9(j) (June 2015).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 19, 2015 is reversed.
Issued: October 17, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.H., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER,
Colorado Springs, CO, Employer
__________________________________________

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Appearances:
H. Earl Moyer, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1191
Issued: December 10, 2007

Case Submitted on the Record

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

JURISDICTION
On March 29, 2007 appellant, through her attorney, filed a timely appeal from a March 5,
2007 nonmerit decision of the Office of Workers’ Compensation Programs denying her request
for reconsideration of its denial of her claim for compensation for intermittent disability from
January 24 to May 27, 2005. As there is no merit decision on this issue within one year of the
filing date of this appeal, the Board lacks jurisdiction to review the merits of this issue.1

1

20 C.F.R. §§ 501.2(c), 501.3.

Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the March 5, 2007
nonmerit decision.2
ISSUE
The issue is whether the Office properly denied appellant’s request for merit review of
her claim under 5 U.S.C. § 8128.
FACTUAL HISTORY
This case is before the Board for the second time. In the first appeal, the Board reversed
a July 30, 2004 decision and found that appellant had established that she was disabled from
employment for the period March 5 to May 28, 2004.3
Appellant filed claims for compensation requesting disability compensation for
intermittent periods from January 24 to July 20, 2005. By letter dated August 10, 2005, the
Office accepted various periods of disability and requested additional medical evidence
supporting disability for certain periods from January 24 to May 27, 2005.
By decision dated February 22, 2006, the Office denied appellant’s claim for
compensation for 112 hours from January 24 to May 27, 2005 on the grounds that the medical
evidence did not establish that she was disabled for the claimed periods. On March 21, 2006
appellant’s attorney requested an oral hearing on the February 22, 2006 decision. The Office
scheduled the hearing for November 7, 2006.
In a decision dated October 13, 2006, the Office reduced appellant’s compensation based
on its finding that her actual earnings as a modified clerk for four hours per day fairly and
reasonably represented her wage-earning capacity. The Office noted that she had received
compensation for intermittent disability through September 30, 2006 and was not due any
“additional compensation for the periods preceding this decision.”
In an undated letter received on October 23, 2006, appellant’s attorney requested
“immediate cancellation of the hearing” scheduled for November 7, 2006. He maintained that
there were no further issues to address at the hearing in view of the Office’s October 13, 2006
decision. On November 6, 2006 the Office granted the request to cancel the hearing. Appellant,
on November 16, 2006, informed the Office that she still wanted a hearing on the February 22,
2006 decision. By letter dated December 6, 2006, the Office notified her that her attorney had
withdrawn the hearing request and informed her that she should follow her appeal rights.
2

The record contains an October 13, 2006 decision of the Office reducing appellant’s compensation based on her
actual earnings as a modified clerk. Appellant has not appealed this decision and therefore it is not before the Board
at this time. See 20 C.F.R. § 501.2(c).
3

Docket No. 05-198 (issued April 25, 2005). The Office accepted that appellant sustained an aggravation of
cervical degenerative disc disease due to factors of her federal employment. She stopped work on July 13, 1995 and
resumed part-time limited-duty employment on September 20, 1997. By decision dated March 2, 2001, the Office
found that appellant’s actual earnings as a full-time modified clerk fairly and reasonably represented her wageearning capacity.

2

On February 19, 2007 appellant, through her attorney, requested reconsideration of the
February 22, 2006 decision. He asserted that he had spoken with the claims examiner who
issued the February 22, 2006 decision and she had assured him that appellant would receive
compensation for the hours in question. Subsequent to reaching this agreement, the case was
transferred to another claims examiner, who “was apparently not advised of the agreement” or
that a hearing had been requested on the case. Counsel also indicated that he believed that
appellant would receive the agreed upon compensation regardless of the statement in the
October 16, 2006 decision that she was not entitled to additional compensation for periods
preceding that decision. He therefore cancelled the oral hearing on the February 22, 2006
decision. Counsel summarized the medical evidence and asserted that it established disability for
the periods in question. He also requested a reconsideration of the October 13, 2006 decision.4
By decision dated March 5, 2007, the Office denied appellant’s request for
reconsideration of the February 22, 2006 decision on the grounds that she did not submit relevant
evidence or raise substantive legal arguments not previously considered.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,5 the Office’s regulations provide that a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.6 To be entitled to a merit
review of an Office decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.7 When a claimant fails to
meet one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.8
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.9 The Board also has
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case.10 While the reopening of a case may be predicated

4

The Office has not issued a decision on appellant’s request for reconsideration of the October 13, 2006 decision.

5

5 U.S.C. §§ 8101-8193. Section 8128(a) of the Act provides that “[t]he Secretary of Labor may review an
award for or against payment of compensation at any time on her own motion or on application.”
6

20 C.F.R. § 10.606(b)(2).

7

20 C.F.R. § 10.607(a).

8

20 C.F.R. § 10.608(b).

9

Arlesa Gibbs, 53 ECAB 204 (2001); James E. Norris, 52 ECAB 93 (2000).

10

Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000).

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solely on a legal premise not previously considered, such reopening is not required where the
legal contention does not have a reasonable color of validity.11
ANALYSIS
In its February 22, 2006 decision, the Office denied appellant’s claim for compensation
for 112 hours of disability from January 24 to May 27, 2005. The Office found that the medical
evidence was insufficient to show that she was disabled during the time in question due to her
accepted employment injury of an aggravation of cervical disc disease.
Appellant, through her attorney, initially requested an oral hearing on the claim. On
October 13, 2006 the Office reduced appellant’s compensation after finding that her actual
earnings as a part-time modified clerk fairly and reasonably represented her wage-earning
capacity. The Office noted that appellant was not due any additional compensation for dates
prior to the October 13, 2006 decision. By letter received in the Office on October 23, 2006,
appellant’s attorney requested that the Office immediately cancel the hearing, scheduled for
November 7, 2006, as there were no issues to discuss given the Office’s October 13, 2006
decision. On November 6, 2006 the Office cancelled the scheduled hearing.
On February 19, 2007 appellant’s attorney requested reconsideration of the February 22,
2006 decision.12 He maintained that the claims examiner who issued the February 22, 2006
decision agreed that appellant would receive compensation for the time claimed from January 24
to May 27, 2005. Another claims examiner, who did not know about his agreement, issued the
October 13, 2006 decision. Counsel believed that appellant would receive the agreed upon
compensation even though the claims examiner noted in the October 13, 2006 decision that she
was not entitled to compensation for periods preceding that decision. While he contended that he
and a claims examiner reached an agreement that appellant would receive compensation for the
112 hours from January 24 to May 27, 2005, he did not submit any evidence supporting his
contention. Thus, counsel’s argument does not have a reasonable color of validity such that it
would warrant reopening the case for merit review.13
Counsel reviewed the medical evidence and asserted that it established that she was
disabled for the claimed hours. His opinion, however, is not relevant to the underlying issue of
whether the medical evidence establishes that appellant was disabled for 112 hours from
January 24 to May 27, 2005 due to her employment injury.14 As the issue is medical in nature, it
can only be resolved through the submission of probative medical evidence from a physician.15

11

Vincent Holmes, 53 ECAB 468 (2002); Robert P. Mitchell, 52 ECAB 116 (2000).

12

The attorney also requested reconsideration of the October 13, 2006 decision; however, the Office has not
issued a decision regarding this reconsideration request.
13

Elaine M. Borghini, 57 ECAB ___ (Docket No. 05-1102, issued May 3, 2006).

14

Gloria J. McPherson, 51 ECAB 441 (2000).

15

Id.

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Appellant did not show that the Office erroneously applied or interpreted a specific point
of law, advance a relevant legal argument not previously considered by the Office or submit
pertinent new and relevant evidence not previously considered. As she did not meet any of the
necessary regulatory requirements, she is not entitled to further merit review.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for merit review of
her claim under 5 U.S.C. § 8128.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 5, 2007 is affirmed.
Issued: December 10, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.J., Appellant
and
U.S. POSTAL SERVICE, ATLANTA
PERFORMANCE CLUSTER, North Metro, GA,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0031
Issued: April 29, 2021

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

On October 6, 2020 appellant filed a timely appeal from a September 22, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate
Boards docketed the appeal as No. 21-0031.
On July 28, 2020 appellant, then a 54-year-old finance station clerk, filed an occupational
disease claim (Form CA-2) alleging that she developed carpal tunnel syndrome (CTS) as a result
of the repetitive duties of her federal employment.1 She noted that she first became aware of her
condition and realized its relation to her federal employment on June 3, 2016. Appellant did not
stop work.
In an August 10, 2020 development letter, OWCP informed appellant of the deficiencies
of her claim. It advised her of the type of evidence necessary to establish her claim and afforded
her 30 days to submit the necessary evidence. No evidence was received.

1

The Board notes that appellant has a prior claim for a June 3, 2016 traumatic injury alleging tendinitis and CTS
of the right wrist. That claim was assigned OWCP File No. xxxxxx265. By decision dated September 12, 2016,
OWCP denied the claim. File No. xxxxxx265 has not been administratively combined with the present file.

By decision dated September 22, 2020, OWCP accepted that the injury and/or events
occurred as described. However, it denied appellant’s occupational disease claim, finding that the
medical evidence of record did not contain a diagnosis in connection with the accepted factors of
her federal employment. Consequently, OWCP found that she had not met the requirements to
establish an injury as defined by FECA.
The Board has duly considered the matter and concludes that this case is not in posture for
decision. OWCP’s procedures provide that cases should be administratively combined when
correct adjudication of the issues depends on frequent cross-referencing between files.2 For
example, if a new injury case is reported for an employee who previously filed an injury claim for
a similar condition or the same part of the body, doubling is required.3 Herein, appellant has a
prior claim for CTS of the right wrist under OWCP File No. xxxxxx265. She subsequently filed
a traumatic injury claim for the CTS assigned OWCP File No. xxxxxx823, which is the claim
presently before the Board.
For a full and fair adjudication, the case must be returned to OWCP to administratively
combine the current case record with OWCP File No. xxxxxx265 and determine whether appellant
has provided sufficient rationalized medical evidence to establish CTS causally related to the
accepted employment factors. Following this and other such further development as OWCP deems
necessary, it shall issue a de novo decision.

2

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

Id.; L.M., Docket No. 19-1490 (issued January 29, 2020); L.H., Docket No 18-1777 (issued July 2, 2019).

2

IT IS HEREBY ORDERED THAT the September 22, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: April 29, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.R., Appellant
and
DEFENSE AGENCIES, DECA- SOUTHERN
REGION, Fort Lee, VA, Employer
__________________________________________

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

Docket No. 15-1274
Issued: August 25, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 19, 2015 appellant filed a timely appeal from a December 17, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
traumatic injury in the performance of duty on August 30, 2014.

1
2

5 U.S.C. § 8101 et seq.

On appeal, appellant submitted additional medical reports. Since the Board’s jurisdiction is limited to evidence
that was before OWCP at the time it issued its final decision, the Board may not consider this evidence for the first
time on appeal. 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57 ECAB 126 (2005). Appellant may submit this evidence
to OWCP along with a request for reconsideration pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b)(2).

FACTUAL HISTORY
On September 2, 2014 appellant, then a 57-year-old store associate, filed a traumatic
injury claim alleging that on August 30, 2014 she experienced tingling in her right hand,
shoulder, back, and hip when she pulled a pallet of spare ribs and felt an electric shock in her
hands.
Appellant submitted a September 3, 2014 work status note from a physician with an
illegible signature who indicated that appellant could return to light duty with restrictions of no
standing, pushing, and pulling up to 20 pounds, and lifting and carrying up to 20 pounds. She
also provided office visit records dated September 2 and 3, 2014, which noted her complaints of
right hand numbness and tingling and low back pain after she pulled a heavy cart at work.
In a September 9, 2014 attending physician’s duty status report, a physician with an
illegible signature indicated that appellant sustained an injury on August 30, 2014 when she
pulled a cart of spare ribs. Diagnoses of carpal tunnel syndrome, low back pain, and wrist pain
were reported. The physician checked a box marked “yes” that appellant’s condition was caused
or aggravated by the employment activity. Appellant was authorized to work light duty with
restrictions.
Appellant was also examined by Dr. Edward J. Meyers, Board-certified in emergency
medicine, who related in September 3 and 12, 2014 reports, appellant’s complaints of right hand
and low back pain. He reviewed appellant’s history and conducted an examination. Dr. Meyers
observed positive Phalen’s, Tinel’s, and Finkelstein’s tests of the right wrist. He found no gross
motor abnormalities or loss of strength or function. Dr. Meyers reported that straight leg raise
testing was negative. He diagnosed carpal tunnel syndrome, low back pain, wrist pain, and
hypothyroidism.
In September 26 and 29, 2014 reports, Dr. Clayton R. Lowder, a Board-certified family
practitioner, reported that appellant complained of severe sharp pain in the right hand, wrist, and
neck when she pulled heavy equipment. He noted tenderness and decreased range of motion of
appellant’s lumbar spine. Upon examination of the right wrist, Dr. Lowder observed tenderness
of the right hand and wrist, decreased sensation, and positive Tinel’s and Finkelstein’s testing.
He diagnosed low back pain, neck pain, wrist pain, and carpal tunnel syndrome.
On September 25, 2014 appellant underwent nerve conduction study and
electromyography (EMG) testing by Dr. John K. Baker, a Board-certified neurologist, who
related appellant’s complaints of pain, numbness, and tingling in the right hand and some right
shoulder and arm pain, which had been present for several months. Dr. Baker reported that the
study was abnormal with evidence of right greater than left moderate median neuropathies at the
wrists consistent with carpal tunnel syndrome.
In a September 29, 2014 magnetic resonance imaging (MRI) scan examination,
Dr. Gilbert E. Parker, Jr., a Board-certified diagnostic radiologist, related appellant’s complaints
of neck pain between the shoulders. He observed slight right neural foraminal narrowing at C3C4 with minimal disc bulges, the largest at C6-C7 mildly deforming the anterior thecal sac.

2

Appellant continued to receive medical treatment from Dr. Lowder, whose October 2
and 16, 2014 reports, noted appellant’s complaints of right shoulder and hand pain and related
that she hurt it at work. Upon examination of her lumbar spine, he observed tenderness at C6-7.
Examination of the right upper extremity revealed no tenderness to palpation and decreased
range of motion of the right hand. Dr. Lowder diagnosed neck pain, carpal tunnel syndrome, and
herniated cervical disc disease.
In a letter dated November 12, 2014, OWCP informed appellant that the information
submitted was insufficient to establish her claim. It requested that she provide a detailed
description of how the alleged injury occurred and respond to specific questions. OWCP also
advised appellant to submit a detailed report from her treating physician which included a history
of how the claimed injury occurred, a diagnosis, and an opinion on how the condition was
causally related to the alleged injury. Appellant did not provide a supplemental statement
pursuant to OWCP’s request.
On October 30, 2014 Dr. Greg O. Spellman, a Board-certified anesthesiologist, who
specializes in pain medicine, related appellant’s complaints of right neck, right shoulder, and
right hip pain. Upon examination of her spine, he observed tenderness to palpation of the
paraspinals. Spurling’s, straight leg raise, and Faber’s testing were positive. Dr. Spellman
diagnosed cervical spondylosis, carpal tunnel syndrome, right hip pain, and chronic pain
syndrome.
In a decision dated December 17, 2014, OWCP denied appellant’s claim, finding
insufficient evidence to establish fact of injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence,4 including that he or she is an “employee” within the meaning of FECA5 and that he or
she filed his or her claim within the applicable time limitation.6 The employee must also
establish that she sustained an injury in the performance of duty and that any specific condition
or disability for work for which she claims compensation is causally related to that employment
injury.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether “fact of injury” has been established.8
3

5 U.S.C. §§ 8101-8193.

4

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

5

See M.H., 59 ECAB 461 (2008); Emiliana de Guzman (Mother of Elpedio Mercardo), 4 ECAB 357, 359 (1951).

6

R.C., 59 ECAB 42 (2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954).

7

G.T., 59 ECAB 447 (2008); M.M., Docket No. 08-1510 (issued November 25, 2010).

8

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

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There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place, and in the manner alleged.9 Second, the employee must submit evidence,
generally only in the form of probative medical evidence, to establish that the employment
incident caused a personal injury.10
An injury does not have to be confirmed by an eyewitness in order to establish the fact
that an employee sustained an injury in the performance of duty, as alleged, but the employee’s
statements must be consistent with the surrounding facts and circumstances and her subsequent
course of action.11 An employee has not met her burden of proof in establishing the occurrence
of an injury when there are such inconsistencies in the evidence as to cast serious doubt upon the
validity of the claim. Such circumstances as late notification of injury, lack of confirmation of
injury, continuing to work without apparent difficulty following the alleged injury, and failure to
obtain medical treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s
statement in determining whether a prima facie case has been established. An employee’s
statement alleging that an injury occurred at a given time and in a given manner is of great
probative value and will stand unless refuted by strong or persuasive evidence.12
ANALYSIS
Appellant alleged that on August 30, 2014 she sustained injuries to her right hand,
shoulder, back, and hip when she pulled a pallet of spare ribs at work. OWCP denied her claim
finding insufficient evidence to establish fact of injury. The Board finds that appellant did not
meet her burden of proof to establish that she sustained a traumatic injury on August 30, 2014.
In her CA-1 form, appellant stated that she experienced tingling in her right hand,
shoulder, back, and hip when she pulled a pallet of spare ribs and felt an electric shock in her
hands. The Board notes that there is no detailed account of the alleged injury sufficient to
establish that the incident occurred in the manner alleged.13 In its November 12, 2014
development letter, OWCP informed appellant that the information initially provided was
insufficient to support her claim and requested additional evidence. Appellant provided no
response to OWCP’s request for information. The Board finds that her vague recitation of facts
does not support her allegation that the specific August 30, 2014 event occurred and caused a
work-related injury.14

9

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

10

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

11

Joseph H. Surgener, 42 ECAB 541, 547 (1991); Gene A. McCracken, Docket No. 93-2227 (issued
March 9, 1995).
12

D.B., 58 ECAB 529 (2007); Gregory J. Reser, 57 ECAB 277 (2005).

13

See M.B., Docket No. 11-1785 (issued February 15, 2012); Dennis M. Mascarenas¸49 ECAB 215, 218 (1997).

14

See Paul Foster, 56 ECAB 1943 (2004); Betty J. Smith, 54 ECAB 174 (2002); 5 U.S.C. § 8101(5).

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The Board further finds that the contemporaneous medical evidence is inconsistent in the
description of the alleged incident. The office visit records of September 2 and 3, 2014, bearing
illegible signatures, provide a different history of injury, that appellant pulled a heavy cart at
work. Dr. Baker noted in his September 25, 2014 report, appellant’s complaints of pain,
numbness, and tingling in the right hand and some right shoulder and arm pain, which had been
present for several months. Dr. Lowder related that appellant pulled heavy equipment, which
caused her pain complaints.
Neither appellant, nor any of the reports she submitted in support of her claim provide a
consistent, detailed history of injury describing the time, place, and manner in which the alleged
injury occurred. Accordingly, the evidence is insufficient to establish that the incident occurred
as alleged.
Appellant has not met her burden of proof to establish that she experienced the
August 30, 2014 employment incident at the time, place, and in the manner alleged or that it
caused an injury. Because she has not met her burden of proof to establish the fact of injury, it is
not necessary to discuss the probative value of the medical reports.15
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a traumatic injury on August 30, 2014.

15

Tracey P. Spillane, 54 ECAB 608 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the December 17, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 25, 2015
Washington, DC

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

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

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

6