United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hobe Sound, FL, Employer
__________________________________________

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

Docket No. 18-0126
Issued: May 14, 2019

Case Submitted on the Record

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

JURISDICTION
On October 23, 2017 appellant, through counsel, filed a timely appeal from an April 26,
2017 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days has elapsed from OWCP’s last merit decision, dated April 14, 2016, to the filing of

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.

this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.3
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On October 10, 2014 appellant, then a 40-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that, while in the performance of duty on October 5, 2014, she picked
up a heavy parcel, which started to fall out of her hand. When she tried to catch it, she pulled her
back. Appellant did not stop work.
In a separate statement dated October 7, 2014, appellant indicated that she injured her back
when she tried to lift a box on October 6, 2014. She explained that the box was heavier than she
thought and when she tried to pick it up it slipped. Appellant noted that she then tried to avoid
dropping it and that was when she felt pain. She explained that the incident occurred on Monday
around 12:50 p.m. on her delivery route, but she did not report the incident that same day because
she did not think that there was a serious injury until she woke up the following morning with
sharp pains radiating up her back.
In support of her claim, appellant submitted an October 7, 2014 discharge instruction form
from Dr. Dwight G. Dawkins, Board-certified in family practice, which noted back pain and injury
with prescription for narcotic medication. She also submitted a State of Florida workers’
compensation report for a work-related injury. The form included bending and lifting restrictions.
OWCP also received reports dated October 13 and November 3, 2014 from Dr. Daniel
Husted, a Board-certified orthopedic surgeon, who noted that appellant presented with complaints
of lumbar spine pain. Dr. Husted advised that she reported an injury had occurred at work on
October 6, 2014. He related that appellant noted that her symptoms began as a result of bending
over. Dr. Husted indicated that she described her symptoms as moderate with an aching pain in
the lower back and right flank. He advised that appellant’s symptoms were aggravated by daily
activities. Dr. Husted noted that she also complained of pain in the cervical spine. He diagnosed
cervicalgia and opined that appellant had a lifting injury at work on October 6, 2014 with the onset
of left-sided neck, trapezial, and thoracic pain and right-sided low back and buttock pain causing
her to present to the emergency room. Dr. Husted also assessed low back pain and referred her to
physical therapy. On November 3, 2014 the employing establishment executed an authorization

2

5 U.S.C. § 8101 et seq.

3

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 evidence for the first time
on appeal. Id.

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for examination and/or treatment (Form CA-16) which authorized appellant to obtain medical
treatment.
On November 4, 2014 Dr. Husted placed appellant off work from November 5 through
December 5, 2014, until she could be medically cleared.
In a November 14, 2014 report of a lumbar magnetic resonance imaging (MRI) scan, read
by Dr. Frederick Hartker, a Board-certified diagnostic radiologist, revealed a right paracentral disc
extrusion and annular fissure extending minimally up behind the L1 vertebral body and no nerve
root displacement or stenosis of indeterminate age. It also revealed a two- to three-millimeter
broad-based left paracentral disc protrusion at L5-S1 and an annual fissure of indeterminate age
producing slight displacement of the left S1 nerve root without stenosis.
In a November 24, 2014 report, Dr. Husted noted that he examined appellant in follow up
for her lumbar spine injury for which she presented with pain. He diagnosed cervicalgia,
displacement of lumbar intervertebral disc, and lumbosacral neuritis. Appellant submitted a series
of physical therapy reports dated from October 30 to November 4, 2014.
In a development letter dated December 10, 2014, OWCP advised appellant that when her
claim was submitted it appeared to be a minor injury that resulted in minimal or no lost time from
work and that, based upon these criteria, the employing establishment had not controverted
continuation of pay or challenged the merits of the case, and therefore payment of a limited amount
of medical expenses had been administratively approved. It noted that the merits of the claim,
however, had not been formally considered. OWCP explained that appellant’s claim was being
reopened because the medical bills exceeded $1,500.00. It further explained that the evidence
submitted was insufficient to establish that she actually experienced the incident or employment
factor alleged to have caused the injury and requested that she complete an attached questionnaire.
OWCP also noted that appellant needed to submit a comprehensive narrative medical report from
her attending physician, as the current record did not include a diagnosis of a medical condition
associated with her employment incident. It afforded her 30 days to respond.
OWCP subsequently received a series of physical therapy reports dated November 24 to
December 16, 2014, State of Florida workers’ compensation reports dated October 12 and
December 12, 2014, and an October 10, 2014 authorization for examination and/or treatment
(Form CA-16) which was completed by appellant and her supervisor.
OWCP received a copy of the October 13, 2014 report from Dr. Husted in which he noted
that appellant reported continued lumbar and cervical spine pain, but was stable. Dr. Husted
diagnosed cervicalgia and recommended that she take part in physical therapy. He continued to
treat appellant and submitted a December 29, 2014 report in which he diagnosed lumbosacral
neuritis.
By decision dated January 21, 2015, OWCP denied appellant’s traumatic injury claim
finding that fact of injury had not been established as the evidence submitted did not establish that
the injury and or event(s) occurred as alleged.
On January 21, 2016 appellant, through counsel, requested reconsideration. Counsel
argued that the factual component of appellant’s claim was consistent in her statements and the
3

medical records she had submitted. He also argued that Dr. Husted had sufficiently described the
work incident and provided an opinion that the condition was work related. Medical reports
already of record were resubmitted.
By decision dated April 14, 2016, OWCP modified the January 21, 2015 decision finding
that fact of injury had been established. However, the claim remained denied because the medical
evidence of record did not establish that the diagnosed conditions were causally related to the
accepted “October 6, 2014” employment incident.
Appellant, through counsel, requested reconsideration on April 17, 2017. In an addendum
to his request for reconsideration, counsel enclosed an April 12, 2017 report from Dr. Husted in
which he addressed causation, the mechanism of injury, and restrictions.
In the April 12, 2017 report, Dr. Husted noted that appellant was lifting a box on October 6,
2014 when she experienced an onset of neck, trapezial, thoracic, and low back and buttock pain
causing her to go to the emergency room. He advised that he initially saw her on October 13, 2014
and that she denied a prior history of back pain. Dr. Husted indicated that appellant noted pain in
any persistent position. He explained that he ordered a Medrol Dosepak along with antiinflammatories and physical therapy. However, appellant’s low back pain persisted with activity,
including sitting. Dr. Husted also noted that he ordered a lumbar spine MRI scan and that it
demonstrated herniations at L1-L2 and L5-S1. He opined that the herniated discs could not be
“aged” and that “more likely than not this injury was secondary to lifting boxes at work.”
Dr. Husted noted no evidence of a degenerative process or a problem that preexisted the injurious
event. He therefore concluded that, more likely than not, the diagnosis of herniated disc at L1-L2
and L5-S1 with resultant lumbar radiculopathy was secondary to the lifting incident of
October 6, 2014.
By decision dated April 26, 2017, OWCP denied appellant’s request for further merit
review finding that her request was untimely filed and failed to demonstrate clear evidence of
error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.4 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought.5 Timeliness is determined by the document receipt date of
the request for reconsideration as indicated by the received date in the integrated Federal

4

5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued
March 16, 2009).
5

20 C.F.R. § 10.607(a).

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Employees’ Compensation System (iFECS).6 Imposition of this one-year filing limitation does
not constitute an abuse of discretion.7
OWCP may not deny a reconsideration request solely because it was untimely filed. When
a claimant’s request for reconsideration is untimely filed, it must nevertheless undertake a limited
review to determine whether it demonstrates clear evidence of error.8 If an application
demonstrates clear evidence of error, OWCP will reopen the case for merit review.9
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP. The evidence must be positive, precise, and explicit and must
manifest on its face that OWCP committed an error. Evidence that does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to demonstrate clear
evidence of error. It is not enough to merely show that the evidence could be construed so as to
produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP. To demonstrate clear evidence
of error, the evidence submitted must be of sufficient probative value to shift the weight of the
evidence in favor of the claimant and raise a substantial question as to the correctness of OWCP’s
decision.10
OWCP procedures note that the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP made
an error (for example, proof that a schedule award was miscalculated). Evidence such as a detailed,
well-rationalized medical report which, if submitted before the denial was issued, would have
created a conflict in medical opinion requiring further development, is not clear evidence of error.11
The Board makes an independent determination of whether a claimant has demonstrated clear
evidence of error on the part of OWCP.12
ANALYSIS
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.

6

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

7

G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
8

See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4 2018); Charles J. Prudencio, 41 ECAB
499, 501-02 (1990).
9
L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See
also 20 C.F.R. § 10.607(b); supra note 6 at Chapter 2.1602.5 (February 2016).
10

J.W., Docket No. 18-0703 (issued November 14, 2018); Robert G. Burns, 57 ECAB 657 (2006).

11

J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 5 at Chapter 2.1602.5(a) (February 2016).

12

D.S., Docket No. 17-0407 (issued May 24, 2017).

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OWCP’s regulations13 and procedures14 establish a one-year time limitation for requesting
reconsideration, which begins on the date of the last OWCP merit decision. A right to
reconsideration within one year also accompanies any subsequent merit decision on the issues.15
The most recent merit decision was OWCP’s April 14, 2016 decision which found that the
evidence of record was insufficient to establish causal relationship. As her request for
reconsideration was not received by OWCP until April 17, 2017, more than one year after the
April 14, 2016 decision, the Board finds that it was untimely filed. Because appellant’s request
was untimely, she must demonstrate clear evidence of error on the part of OWCP in having denied
total disability compensation for the period alleged.
The Board further finds that appellant has failed to demonstrate clear evidence of error on
the part of OWCP in its last merit decision. OWCP denied her traumatic injury claim as the
medical evidence of record failed to establish a causal relationship between the diagnosed
conditions and the accepted October 6, 2014 employment incident.
In her request for reconsideration, counsel indicated that appellant had established the
medical component of her claim and submitted an April 12, 2017 report from Dr. Husted. In this
report, Dr. Husted provided an opinion on causal relationship concluding that “more likely than
not this injury was secondary to lifting boxes at work.” He noted that there was no evidence that
[appellant’s] conditions were a degenerative process or a problem that preexisted the injurious
event. Dr. Husted provided his conclusion that, more likely than not, the diagnosis of herniated
disc at L1-L2 and L5-S1 with resultant lumbar radiculopathy was secondary to the lifting incident
of October 6, 2014. The Board finds that this evidence does not raise a substantial question as to
the correctness of OWCP’s last merit decision.
Clear evidence of error is intended to represent a difficult standard. The submission of a
detailed, well-rationalized medical report which, if submitted before the merit decision was issued,
would have created a conflict in medical opinion requiring further development, is insufficient to
demonstrate clear evidence of error.16 The Board makes an independent determination of whether
a claimant has submitted clear evidence of error on the part of OWCP.17 As appellant has not
submitted such evidence, the Board finds that she has not demonstrated clear evidence of error.
On appeal counsel asserts that the reconsideration request was timely filed. The Board
finds, however, that there is no evidence of record as of OWCP’s April 26, 2017 decision that
supports this assertion.

13

J.W., Docket No. 18-0703 (issued November 14, 2018); 20 C.F.R. § 10.607(a); see Alberta Dukes, 56 ECAB
247 (2005).
14

Supra note 5 at Chapter 2.1602.4 (February 2016); see Veletta C. Coleman, 48 ECAB 367, 370 (1997).

15

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

16

James R. Mirra, 56 ECAB 738 (2005); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations,
Chapter 2.1602.5(a) (October 2011).
17

Nancy Marcano, 50 ECAB 110 (1998).

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CONCLUSION
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the April 26, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 14, 2019
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Charlotte, NC, Employer
__________________________________________

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

Docket No. 17-1524
Issued: December 21, 2017

Case Submitted on the Record

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

JURISDICTION
On July 3, 2017 appellant filed a timely appeal from a June 21, 2017 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish an occupational
disease causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On September 21, 2016 appellant then a 55-year-old window distribution clerk, filed an
occupational disease claim (Form CA-2) alleging that he developed carpal tunnel syndrome and
cubital tunnel syndrome as a result of repetitively sorting parcels for distribution, taking parcels
1

5 U.S.C. § 8101 et seq.

over the window, and computer use required in his job. He first became aware of his condition
on September 21, 2016 and realized that it was causally related to factors of his federal
employment on June 2, 2016. Appellant continues to be exposed to the conditions alleged to
have caused his illness on September 21, 2016.
On September 28, 2016 OWCP advised appellant of the type of evidence needed to
establish his claim, particularly a physician’s reasoned opinion addressing the relationship
between his claimed condition and specific employment factors.
Appellant was treated by Dr. Raymond Bradley, a Board-certified orthopedist, on
March 18 and 29, 2016, for right wrist pain. He reported throwing a package on February 22,
2016 while at work when he felt a pop in his wrist. Dr. Bradley noted findings on examination
revealed full and symmetrical range of motion, negative Tinel’s sign over the cubital tunnel,
positive Tinel’s and Phalen’s sign over the right wrist, decreased sensation along the median
nerve distribution, and pain with carpal compression. He diagnosed strain of the fascia at the
right hand, right wrist strain, and carpal tunnel syndrome of the right arm. Dr. Bradley
recommended a wrist brace, anti-inflammatory medications, and occupational therapy. He
returned appellant to light duty. On May 3, 2016 Dr. Bradley noted an April 28, 2016 magnetic
resonance imaging (MRI) scan of the right wrist revealed mild fluid buildup in the radial carpal
joint. Appellant reported working for the employing establishment and sorting mail with his
hands and performing repetitive motion. Findings included positive Tinel’s sign over the right
ulnar nerve, positive Tinel’s and Phalen’s sign over the right wrist, pain with carpal compression,
and decreased sensation throughout the palmar surface and fingers diffusely. Dr. Bradley
diagnosed right carpal tunnel syndrome of the arm and right ulnar nerve lesion. In a June 2,
2016 report, he noted nerve conduction testing of the upper extremity showed ulnar nerve
irritation at the elbow. Appellant reported worsening pain and numbness down the arm and
across the wrist into the digits while working. Findings included tenderness along the ulnar
nerve, positive Tinel’s sign, mild swelling along the distal radial carpal joint, positive Tinel’s
over the Guyon’s canal, and decreased sensation along the fourth and fifth digits. Dr. Bradley
diagnosed right ulnar nerve lesion and right hand fascia strain. In reports dated June 28 and
July 26, 2016, he treated appellant for right carpal tunnel syndrome and right arm ulnar nerve
entrapment at the elbow. Appellant reported lifting packages at work while wearing a brace.
Dr. Bradley noted positive findings on examination and diagnosed strain of the fascia at the right
hand. He continued appellant’s work restrictions.
Appellant was treated by Dr. Kristen Hedge, a Board-certified orthopedist, on August 22,
2016 for right elbow pain and numbness. He reported that his right wrist popped while he was
sorting packages at work on February 21, 2016. Electrodiagnostic testing on May 27, 2016
revealed mild-to-moderate compressive neuropathic process affecting the right ulnar nerve at the
elbow. Dr. Hedge noted findings on examination of tenderness over the right ulnar nerve,
positive right cubital provocative testing, positive right elbow flexion compression testing,
positive Tinel’s sign over the right ulnar nerve at the cubital tunnel, and intermittent numbness of
the right elbow ulnar nerve sensory distribution. She performed a right therapeutic carpal tunnel
injection. Dr. Hedge diagnosed lesion of the ulnar nerve on the right, right carpal tunnel
syndrome, and right cubital tunnel syndrome acute onset in February 2016 after work incident.
She indicated that given the duration and severity of symptoms appellant was interested in

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surgery for his ulnar nerve symptoms.
decompression at the cubital tunnel.

Dr. Hedge recommended a right ulnar nerve

In a statement dated October 17, 2016, appellant indicated that his condition was related
to sorting, distributing, and receiving parcels of all weights and sizes and computer use requiring
wrist movement. He reported performing these activities approximately 60 hours a week.
Appellant indicated that there were no activities outside of work that contributed to his condition.
He first noticed his condition on February 22, 2016 while moving his wrists at work and
indicated that he had no previous injuries to his hands.
The employing establishment submitted a statement from M.G., customer service
supervisor, dated October 7, 2016, who noted she agreed with appellant’s statement of his workrelated injury sustained on February 22, 2016. M.G. indicated that appellant was injured
throwing mail parcels. Appellant’s job required him to pull a parcel from equipment and throw
it in a hamper. M.G. noted that appellant was working with restrictions of no lifting with the
right hand and was no longer required to throw parcels.
In a December 14, 2016 decision, OWCP denied appellant’s claim, finding that he failed
to establish that his claimed medical condition was related to the established work-related
factors.
In an appeal request form dated and received on April 10, 2017, appellant requested
reconsideration. He submitted a March 30, 2017 report from Dr. Hedge who treated him
postoperatively following a right ulnar nerve decompression at the cubital tunnel which was
performed on January 3, 2017. Dr. Hedge noted the ulnar nerve distribution numbness and
nocturnal numbness resolved. She indicated that appellant worked at the employing
establishment for over 20 years and his job required repetitive use. Dr. Hedge opined that
appellant’s right arm symptoms were exacerbated by repetitive use as he sorted and moved
parcels predominately with his right hand. Appellant reported that on February 22, 2016 he had
an acute pop and pain in the forearm/wrist with exacerbation of ulnar nerve symptoms thereafter.
Dr. Hedge advised that she could not make a specific comment about the injury as she was not
the treating provider at the time. She opined that the episode did trigger a worsening of right
cubital tunnel symptoms and that repetitive use of the right arm in his job contributed to
exacerbation of right arm pain and right cubital tunnel symptoms. Dr. Hedge noted findings that
included resolved numbness of the ulnar distribution, stable medial epicondyle status post in situ
decompression without dislocation, and active pain free range of motion. She diagnosed status
post right ulnar nerve in situ decompression at the cubital tunnel at elbow on January 3, 2017,
lesion ulnar nerve right upper limb, strain of fascia at right hand, and right carpal tunnel
syndrome. Dr. Hedge recommended a gradual progression of all activities and lifting as
tolerated.
In a decision dated June 21, 2017, OWCP denied modification of the December 14, 2016
decision.

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LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim. When an employee claims an injury in the performance of
duty, the employee must submit sufficient evidence to establish that he experienced a specific
event, incident, or exposure occurring at the time, place, and in the manner alleged. The
employee must also establish that such event, incident, or exposure caused an injury.2
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.3 To establish fact of injury in an
occupational disease claim, an employee must submit: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.4
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 a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.5
ANALYSIS
It is undisputed that appellant’s duties as a window distribution clerk required repetitively
sorting parcels for distribution, taking parcels over the window, and computer use. The Board
finds, however, that appellant failed to submit sufficient medical evidence to establish that his
carpal tunnel syndrome and cubital tunnel syndrome are causally related to these accepted
factors of his federal employment.
Appellant submitted a March 30, 2017 report from Dr. Hedge who treated him
postoperatively following a right ulnar nerve decompression at the cubital tunnel on
January 3, 2017. She diagnosed status post right ulnar nerve in situ decompression at the cubital
tunnel at the elbow on January 3, 2017, lesion of the ulnar nerve right upper limb, strain of fascia
at the right hand, and right carpal tunnel syndrome. Dr. Hedge indicated that appellant worked at
2

See Walter D. Morehead, 31 ECAB 188, 194 (1979) (occupational disease or illness); Max Haber, 19 ECAB
243, 247 (1967) (traumatic injury). See generally John J. Carlone, 41 ECAB 354 (1989); Elaine Pendleton, 40
ECAB 1143 (1989).
3

S.P., 59 ECAB 184, 188 (2007).

4

R.R., Docket No. 08-2010 (issued April 3, 2009); Roy L. Humphrey, 57 ECAB 238, 241 (2005).

5

Solomon Polen, 51 ECAB 341 (2000).

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the employing establishment for over 20 years and his job required repetitive use. She opined
that appellant’s right arm symptoms were exacerbated by repetitive use as he sorted and moved
parcels predominately with his right hand. Appellant reported that on February 22, 2016 he had
an acute pop and pain in the forearm/wrist with exacerbation of ulnar nerve symptoms thereafter.
Dr. Hedge advised that she could not make specific comment about the popping injury as she
was not the treating provider at the time. However, she opined that the episode did trigger a
worsening of the right cubital tunnel symptoms and that repetitive use of the right upper
extremity in his job contributed to exacerbation of his right arm pain and right cubital tunnel
symptoms. The Board finds that, although Dr. Hedge supported causal relationship, she did not
provide medical rationale explaining the basis of her conclusory opinion regarding causal
relationship.6 Dr. Hedge did not sufficiently explain the process by which repetitive use of his
right hand and sorting and moving parcels at work would cause or aggravate the diagnosed
conditions. This report is thus insufficient to establish appellant’s claim.
Appellant also submitted an August 22, 2016 report from Dr. Hedge. Dr. Hedge noted
electrodiagnostic testing performed on May 27, 2016 revealed mild-to-moderate compressive
neuropathic process affecting the right ulnar nerve at the elbow. She diagnosed lesion of the
ulnar nerve, right upper limb, carpal tunnel syndrome of the right upper limb, and right cubital
tunnel syndrome acute onset in February 2016. Regarding causal relationship, Dr. Hedge repeats
the history of injury as reported by appellant without providing her own opinion regarding
whether appellant’s condition was work related. Furthermore, she failed to provide a
rationalized opinion regarding the causal relationship between appellant’s diagnosed conditions
and the factors of employment believed to have caused or contributed to such condition.7
Therefore, this report is also insufficient to meet appellant’s burden of proof.
Appellant submitted additional reports from Dr. Bradley, dated March 18 and 29, 2016,
who diagnosed strain of the fascia at the right hand, right wrist strain, carpal tunnel syndrome of
the right arm, and right traumatic carpal tunnel. He reported throwing a package on February 22,
2016 while at work when he felt a pop in his right wrist. Similarly, on May 3 and June 2, 2016
Dr. Bradley noted a right wrist MRI scan dated April 28, 2016 revealed mild fluid buildup in the
radial carpal joint. He noted nerve conduction testing of the upper extremity showed ulnar nerve
irritation at the elbow. Appellant reported working for the employing establishment and
performing a lot of sorting of mail with his hands and repetitive motion. He diagnosed carpal
tunnel syndrome of the right arm, lesion of the ulnar nerve right upper limb, and strain of the
fascia in the right hand. In June 28 and July 26, 2016 reports, Dr. Bradley treated appellant for
right carpal tunnel syndrome and right arm ulnar nerve entrapment. Appellant reported lifting
packages at work while wearing a brace. Dr. Bradley diagnosed right hand fascia strain and
continued appellant’s work restrictions. However, also he appears merely to be repeating the
history of injury as reported by appellant without providing his own opinion regarding whether

6

See T.M., Docket No. 08-975 (issued February 6, 2009) (a medical report is of limited probative value on the
issue of causal relationship if it contains a conclusion regarding causal relationship which is unsupported by medical
rationale).
7

Franklin 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).

5

appellant has a work-related occupational disease.8 Dr. Bradley did not provide a rationalized
opinion explaining the causal relationship between appellant’s right carpal tunnel syndrome and
right arm ulnar nerve entrapment at the elbow and the factors of his federal employment believed
to have caused or contributed to such condition.9
As the medical evidence does not contain a physician’s reasoned opinion regarding the
causal relationship between appellant’s claimed conditions and factors of his federal
employment, appellant has not met his burden of proof to establish his occupational disease
claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish an
occupational disease causally related to the accepted factors of his federal employment.

8

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history or which are
speculative or equivocal in character have little probative value).
9

Supra note 7.

6

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

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
JAMES A. HALEY VETERANS MEDICAL
CENTER, Tampa, FL, Employer
__________________________________________

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

Docket No. 16-0426
Issued: August 22, 2016

Case Submitted on the Record

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

JURISDICTION
On January 5, 2016 appellant, through counsel, filed a timely appeal from a
November 27, 2015 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 merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish an injury in the
performance of duty on August 13, 2013, as alleged.
FACTUAL HISTORY
On August 14, 2013 appellant, then a 49-year-old telephone operator, filed a traumatic
injury claim (Form CA-1) alleging that she sustained injuries to her hands, wrists, shoulder,
neck, and left side of her head while “using work equipment” that day. On the claim form
appellant’s supervisor indicated that appellant was not at work on the date of the alleged injury.
The supervisor also noted that she had used leave on August 14, 15, and 20 to 23, 2013.
In a letter dated September 4, 2013, OWCP advised appellant of the deficiencies in the
claim and provided her the opportunity to submit additional evidence. Appellant was asked to
provide a written statement, which described in detail the alleged work injury and surrounding
circumstances. She was also asked to provide medical evidence from a qualified physician
which provided a firm diagnosis and explained with medical rationale how her federal work
duties on the date in question caused an injury. Appellant was afforded 30 days to provide this
evidence.
In a September 11, 2013 statement, appellant advised that there was a mistake on the
Form CA-1 with regard to the date of injury. She asserted that the injury took place on
August 13, 2013, not August 14, 2013. Appellant stated that, when she returned to work on
August 15, 2013, she was in excruciating pain and had informed her supervisor, occupational
health, and human resources of the correct date of injury. She requested that the date of injury be
changed to reflect the date of August 13, 2013 as the correct date of injury.
In September 11 and 30, 2013 statements, appellant described the circumstances
surrounding the alleged work injury. She indicated that the injury occurred on August 13, 2013
at the end of her shift when she was preparing to leave for the day. Appellant was removing
large reference books that she had been using from her cubicle. She noted that this was a
repetitive task and that some of the books weighed five pounds. Appellant also had to unplug
her headset and install another headset to the switchboard console. While performing these tasks
she felt a severe pain in her left hand and heard her bones crack. The pain traveled up
appellant’s left shoulder and to her neck. She wrapped her wrist with an ace bandage. Appellant
experienced burning pain in both palms, especially on the left, and was unable to sleep at night
due to the pain in her palms and the left side of her head. She indicated that she had another
claim, OWCP file number xxxxxx033 with the date of injury of February 19, 2013, and that
Dr. M. Miranda, her rheumatologist/bone specialist had released her to return to work.
Appellant advised that she tried to have the employing establishment correct the date of
injury to reflect that it had occurred on August 13, 2013. She indicated that she did not work on
August 14, 2013 and returned to work on August 15, 2013 when she reported the injury to her
supervisor. Appellant noted that she tried to complete her shift on August 13, 2013 despite the
excruciating pain in her hands, wrists, and radiating pain to her left shoulder and left side of neck

2

and head. She indicated that the pain impaired her cognitive ability. A work schedule
identifying the employees that were present at the time of appellant’s injury was provided.
Appellant submitted a telephone operator duty schedule for the date range August 11 to
24, 2013. Evidence submitted included a February 19, 2013 return to regular duty slip from an
unknown physician from the occupational health clinic of the employing establishment’s hospital
and OWCP-5c form dated March 7 and April 4, 2013 signed by Dr. Michael J. Garcia, a Boardcertified orthopedic surgeon.
By decision dated October 8, 2013, OWCP denied the claim as fact of injury had not
been established. It found that the factual evidence did not support that an injury occurred on the
revised date of injury of August 13, 2013 and there was no medical evidence containing a
medical diagnosis in connection with the alleged event.
On November 8, 2013 OWCP received appellant’s November 5, 2013 request for
reconsideration. On November 14, 2013 it received her November 5, 2013 request for an oral
hearing before an OWCP hearing representative. The oral hearing request was postmarked
November 7, 2013. In a November 5, 2013 letter, appellant indicated that she had mistakenly
put the date of August 14, 2013 on the CA-1/CA-2 worksheet, but when she noticed her error,
had put “13” underneath the injury date. A copy of the CA-1/CA-2 worksheet noted that the date
and time of injury/illness was listed as August 14, 2013 with the 14 crossed through and the
number 13 written beneath it. The complete worksheet was not provided.
A telephonic hearing was conducted on July 16, 2014. Appellant testified that she did
not fill out the Form CA-1 and did not see the completed form. She only filled out the worksheet
and, when she noticed that she had written the incorrect date of injury, she crossed it out and
wrote in the correct date of August 13, 2013. Appellant described the alleged incident and
reiterated that this had occurred on August 13, 2013. She did not report the accident when it
occurred as she thought she would go home, rest and be ready for work the next day; however,
she had to call in sick the following day as she was in a lot of pain and was unable to function.
On March 15, 2013 appellant went to work 30 minutes early and informed her supervisor about
the incident and explained why she was out of work the prior day. She was told to go to
occupational health, where she filled out the worksheet. Appellant alleged that the employing
establishment never informed her that she could elect to be treated by a physician of her choice;
rather, she was told that she could return to her original physicians at Florida Orthopedics. She
testified that, when she realized that the wrong date of injury had been reported to OWCP, she
tried to have this corrected. Appellant indicated that she had sustained a prior work injury at
work on February 19, 2013 OWCP file number xxxxxx303, which was approved for a left knee
and right wrist injury, and that her current injury was not related to her prior injury.
Diagnostic testing and reports received included: September 24, 2013 cervical, lumbar,
and thoracic ultrasound results, September 24, 2013 nerve conduction study results,
September 26, 2013 thoracic outlet syndrome evaluation, September 28, 2013 electrodiagnostic
test results, March 27, 2014 cardiovascular test results, and May 2, 2014 cardiovascular stress
test results.

3

An August 27, 2013 work excuse note from a physician with an illegible signature
indicated that appellant had severe pain and was unable to work from August 13 through
27, 2013.
In an initial report of September 17, 2013, Dr. Claude Barosy, a general practitioner,
noted the history of injury as follows: “[Appellant] states the pain started on August 14, 2013
when she was at work. She was at the end of her shift at around 3:40. [Appellant] lifted some
heavy books including a PDR and, as she was placing them on the shelf, she felt a pop in her
neck and felt pain in her hands and wrists, mostly the left side, with pain running down her left
arm…. She thought the pop was minor, but when she got home she could n[o]t raise her left
shoulder.” Dr. Barosy diagnosed internal derangement of right hand, and wrist, internal
derangement of the left hand and wrist, head trauma, internal derangement of the left shoulder
joint, and scheduled magnetic resonance imaging scan and other diagnostic testing of the cervical
spine, left shoulder, and both hands and wrists.
In follow-up reports dated October 17, 28, and 30, 2013, Dr. Barosy indicated that he
reviewed all of appellant’s medical records, diagnostic tests and reports of the diagnostic tests as
well as all prescriptions written for her. He indicated that she sustained injury as a result of a slip
and fall while working for the employing establishment on August 13, 2013: internal
derangement of the right hand/wrist joints; internal derangement of the right and left shoulder
joints; internal derangement of the left hand/wrist joints; internal derangement of the left knee
joints, and tear of the medial and lateral meniscus of the left knee and rheumatoid arthritis.
In a March 20, 2014 report, Dr. Ginige Swanthri De Sika, an internist specializing in
rheumatology, noted appellant’s previous treatment for rheumatoid arthritis. She noted that
appellant was a switch board operator, who had not worked since August 2013.
In a December 19, 2013 report, Robert R. Reppy, D.O., a preventative medicine
specialist, noted injury as August 14, 2013 and presented examination findings. He diagnosed
internal derangement of the right hand and wrist joints, internal derangement of the right and left
shoulder joints, internal derangement of the left hand and wrist joints, internal derangement of
the left knee joint, tear of the medial and lateral meniscus of the left knee, rheumatoid arthritis,
and carpal tunnel syndrome per September 27, 2013 nerve conduction velocity test. In an
April 18, 2014 report, Dr. Reppy diagnosed several conditions including rheumatoid arthritis,
cervical disc disease, bilateral internal derangement of the wrists, bilateral carpal tunnel
syndrome, several shoulder and back conditions. He indicated that appellant originally injured
herself on the job on February 19, 2013 and was known to have rheumatoid arthritis and
degenerative changes of her wrists along with conditions concerning her arms and shoulders.
Dr. Reppy opined that those conditions were going to cause some permanent disability in her
hands and wrists and he did not feel she was capable of returning to work. In an April 18, 2014
form, he noted the date of injury as August 14, 2013 and diagnosed carpal tunnel syndrome and
impingement (unreadable).
In reports dated March 5 and 6, and May 2, 2014 report, Dr. Eduardo L. Gonzalez, a
Board-certified family practitioner, noted the date of injury as August 14, 2013 and assessed
multiple conditions. In his May 2, 2014 report, he indicated that appellant has severe symptoms
intermittently, but could return to work with restrictions as recommended by Dr. Reppy on

4

April 18, 2014. Dr. Gonzalez indicated that she must receive reasonable accommodations
including no overnight and work from Monday through Friday. In a May 2, 2014 form, he noted
the date of injury as August 14, 2013 and diagnosed rheumatoid arthritis.
The employing establishment responded to the hearing transcript with a statement and
additional documentation challenging the claim. In a July 16, 2014 letter, it rebutted appellant’s
statements made at the hearing. The employing establishment related that, contrary to her
testimony, she was provided information regarding her right to elect a physician at the time of
the reported injury. Appellant signed a form designating Amerimed Diagnostic as the physician
of choice and noted that her first appointment was on August 19, 2013. She was also aware of
the claim filing process as she had a prior accepted work injury with OWCP. For the current
claimed injury, appellant signed a release of information form on August 15, 2013, indicating
that the date of injury was August 14, 2013. She also signed the Form CA-1 on August 29, 2013
in blue ink. The employing establishment advised that appellant was not required to use books
for performance of her duties as all information was on-line on her computer. Also, as a
convenience, the call schedule was printed out and kept on their desk daily. The employing
establishment asserted that there was no evidence that appellant was injured by work equipment.
It noted that she sent an e-mail dated September 10, 2014, indicating that she was injured “while
attempting technical functions” and identified the date of injury as August 13, 2013. Also,
appellant did not provide her statement asking for a change in the date of injury until after her
claim was challenged by the employing establishment and she received a letter from OWCP.
The employing establishment further stated that while she had submitted documentation dated
August 13 through 27, 2013, which excused her from work during that period, she in fact worked
August 13, 15, and 18, 2013.
A signed copy of appellant’s Form CA-1 noting date of injury of August 14, 2013 was
received along with a copy of appellant’s schedule and leave taken from August 11 through
24, 2013. A December 11, 2013 e-mail from the employing establishment indicated that she
called in sick on August 14, 2013.
By decision dated October 3, 2014, an OWCP hearing representative affirmed the denial
of the claim.
On September 25, 2015 appellant, through counsel, requested reconsideration based on
Dr. Barosy’s October 28, 2013 report, which was previously of record. Reports and diagnostic
testing previously of record were submitted.
Reports from Dr. Samy Bishai, an orthopedic surgeon, dated August 19 and October 2,
2014, and January 21, 2015 were received. In his August 19, 2014 report, he noted that appellant
suffered an injury at work during the course of her employment on August 13, 2013. Dr. Bishai
indicated that she was returning heavy procedure manuals from her work cubicle to the bookcase
and felt severe, sharp pain that was sudden in both wrists and hands. The pain went up
appellant’s arm and all the way to her shoulders and neck area. She also experienced headaches.
Appellant went home after the incident occurred and called in the next day as she was unable to
work. She was subsequently seen by her rheumatologist who told her that she was suffering
from a flare-up of rheumatoid arthritis in her hands. Dr. Bishai noted appellant’s past history of
a work-related injury on February 19, 2013 that had been approved and for which she was

5

receiving treatment for rheumatoid arthritis of the left knee joint. He indicated that the
August 13, 2013 injury was a case of flare-up and aggravation of rheumatoid arthritis in her
hands, wrists, and upper extremities including the shoulders as well as her neck. Dr. Bishai
explained that the history and appellant’s statement regarding how the accident occurred and
how the symptoms developed were typical for cases of rheumatoid arthritis and a flare-up could
occur quite easily and that this was what happened in her case. He opined that she suffered a
work-related aggravation of her preexisting condition of rheumatoid arthritis affecting her wrists
and hands and her shoulders and cervical spine (neck) as it occurred while appellant was
working. In the October 2, 2014 report, Dr. Bishai reiterated that the aggravation of appellant’s
rheumatoid conditions of the wrists, hands, shoulders, and cervical spine was work related. In a
January 21, 2015 report, he opined that she was disabled from work in her current position
because her rheumatoid arthritis had affected her use of the upper extremities as well as her left
knee and left ankle joint. Dr. Bishai indicated that appellant has rheumatoid arthritis of both
right and left hands (aggravation); cervical disc syndrome, bilateral carpal tunnel syndrome; and
internal derangement of the right and left shoulder joints.
By decision dated November 27, 2015, OWCP denied modification of its prior decision.
It found that there was still no evidence of record to establish that appellant was injured at the
time, place, and in the manner alleged.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
OWCP regulations, at 20 C.F.R. § 10.5(ee) define a traumatic injury as a condition of the
body caused by a specific event or incident or series of events or incidents within a single
workday or shift.5 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.
There are two components involved in establishing 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. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.6

3

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

4

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

5

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

6

T.H., 59 ECAB 388 (2008).

6

To determine whether an employee actually sustained an 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 which must be considered in conjunction with one
another. The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred. An employee has the burden of
establishing the occurrence of an injury at the time, place, and in the manner alleged by a
preponderance of the reliable, probative, and substantial evidence.7 An injury does not have to
be confirmed by eyewitnesses in order to establish the fact that an employee sustained an injury
in the performance of duty, as alleged, but the employee’s statements must be consistent with
surrounding facts and circumstances and her subsequent course of action.8 Such circumstances
as late notification of injury, lack of confirmation of injury, continuing to work without apparent
difficulty following the alleged injury, and failure to obtain medical treatment may cast doubt on
an employee’s statements in determining whether she has established a prima facie case.9
However, an employee’s statement alleging that an injury occurred at a given time and in a given
manner is of great probative value and will stand unless refuted by strong or persuasive
evidence.10
ANALYSIS
In the instant case, the Board finds that appellant has failed to establish fact of injury
because of inconsistencies in the record that cast serious doubt as to whether the specific events
or incidents of August 13 or 14, 2013 occurred at the time, place, and in the manner alleged.11
OWCP denied the claim because the evidence failed to support that appellant was injured
at work, at the time, place, and in the manner alleged. There were inconsistencies in the
evidence of record provided by appellant describing the circumstances surrounding the alleged
injury, the date of injury, and the nature of alleged injury.
The Board finds the evidence most contemporaneous to the alleged August 13, 2013
employment injury to be of greatest probative value and, based on the many inconsistencies,
finds that appellant has failed to establish that the claimed incident occurred at the time, place,
and in the manner as alleged. Appellant initially reported a date of injury of August 14, 2013
and the first medical report of record from Dr. Barosy, dated September 17, 2013, also indicated
a date of injury of August 14, 2013. After the employing establishment noted that she was not at
work on August 14, 2013 she then indicated that she was injured on August 13, 2013 and had
made a mistake about the date. Appellant stated that while she initially put the date of injury as
7

Charles B. Ward, 38 ECAB 667 (1987).

8

See Gene A. McCracken, 46 ECAB 593 (1995); Joseph H. Surgener, 42 ECAB 541 (1991).

9

Merton J. Sills, 39 ECAB 572, 575 (1988).

10

Thelma S. Buffington, 34 ECAB 104 (1982).

11

Gene A. McCracken, supra note 8; Mary Joan Coppolino, 43 ECAB 988 (1992) (where the Board found that
discrepancies and inconsistencies in a claimant’s statements describing the injury created serious doubt that the
injury was sustained in the performance of duty).

7

August 14, 2013 on the CA-1 worksheet she had scratched it out to indicate it was
August 13, 2013. However, she did not initial the change of date and subsequently signed the
CA-1 form which noted the date of injury as August 14, 2013. When appellant called in sick on
August 14, 2013, she failed to report that she had been injured the day before. Although she
testified that coworkers knew of her injury when it occurred, she provided no statements from
witnesses to corroborate her allegations of a work injury on August 13, 2014.
Initial medical evaluation by Dr. Barosy took place on September 17, 2013, almost a
month after the alleged injury date. He reported a date of injury of August 14, 2013; not
August 13, 2013 as later asserted by appellant. Dr. Barosy indicated that she was injured lifting
books at work. This differed from appellant’s description on the CA-1 form where she indicated
that she was injured “using work equipment.” While appellant later clarified that she was injured
lifting books and disconnecting her headset, the employing establishment asserted that there was
no reason for her to be engaged in such activity as all the information she needed could be
acquired on-line.
Furthermore, the medical evidence of record is not well-reasoned, not based on a clear or
accurate history of injury, and is insufficient to establish that the claimed medical conditions are
caused by appellant’s work duties on August 13, 2013. In Dr. Barosy’s follow-up reports of
October 17, 28, and 30, 2013, he reported a date of injury as August 13, 2013, but provided no
explanation for the changed date. Furthermore, he indicated that the diagnosed conditions were
due to a work-related slip and fall. A slip and fall was not claimed in this case. The record
reflects that appellant has another claim for a work-related slip and fall on February 19, 2013.
The other medical reports of record from Drs. Reppy and Gonzalez report the date of injury as
August 14, 2013.
While Dr. Bishai notes the date of injury as August 13, 2013 and provides a history of
injury most consistent with appellant’s description of moving books, his reports were prepared a
year after the alleged injury and fail to mention her allegations regarding the headset.
Additionally, he only recited the facts as told to him by appellant and did not offer any
independent evidence that she injured her hands, wrists, shoulders, and neck on August 13, 2013.
Although Dr. Bishai indicated that appellant suffered from preexisting rheumatoid arthritis and
opined that the August 13, 2013 work incident caused a flare-up and an aggravation of the
arthritis in her hands, wrists, shoulders, and neck, there still exist significant discrepancies as to
when and how the injury occurred. The Board has held that medical opinion based upon an
incomplete history have little probative value.12 Thus, Dr. Bishai’s reports are insufficient to
establish fact of injury.
The remainder of the medical evidence, including diagnostic test reports, fails to provide
an opinion as to the time, place, and manner of appellant’s injury.13 Also the medical evidence

12

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history or which are
speculative or equivocal in character have little probative value).
13

A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).

8

concerning appellant’s prior work injury or medical reports which predate this current claim are
irrelevant.
Given the above discrepancies in the factual evidence of record, the Board finds that
appellant has not met her burden of proof to establish that an alleged August 13, 2013 incident at
work occurred as described.
On appeal, counsel argues OWCP’s decision is contrary to fact and law. For the reasons
set forth above, appellant has not established fact of injury as there are substantial conflicts in
determining the date of the alleged injury and how it occurred.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained a traumatic injury in the performance of duty on August 13, 2013, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the November 27, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 22, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cleveland, OH, Employer
__________________________________________

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

Docket No. 10-2183
Issued: September 30, 2011

Case Submitted on the Record

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

JURISDICTION
On August 24, 2010 appellant filed a timely appeal from a July 22, 2010 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
occupational disease in the performance of duty.
FACTUAL HISTORY
On November 5, 2009 appellant, then a 45-year-old mail carrier, filed an occupational
disease claim alleging that she sustained lower back and leg pain on the job. She added in a
November 6, 2009 statement that she was previously treated for left leg and knee symptoms
1

5 U.S.C. § 8101 et seq.

related to a fall that occurred while she was chased by a dog on her postal route. Following this
event, appellant experienced progressive back pain whenever she walked, stood, sat, lifted items
or climbed stairs. Due to increased pain she was occasionally unable to walk. Appellant stopped
work on November 17, 2009.2
In an October 23, 2009 report, Dr. Roseanna M. Lechner, a Board-certified neurosurgeon,
noted that she treated appellant since September 15, 2009 for back and leg pain. Appellant
specified that she was being chased by a dog on her postal route sometime in November 2008
when she fell and landed on her left knee. Thereafter, she had intermittent back pain that first
radiated to her left leg and, in or around June 2009, extended to her right leg. This condition
hindered her ability to complete her route, carry extra weight and climb steps. Dr. Lechner
examined appellant and observed lumbar tenderness and spasms to palpation, a bilateral absence
of ankle jerk and a positive bilateral straight leg raise test. She pointed out that magnetic
resonance imaging (MRI) scans conducted on February 6 and September 18, 2009 exhibited L4L5 disc bulging with degenerative facet disease and moderate foraminal narrowing. Lumbar
films and a computerized tomography (CT) scan from October 10, 2009 showed L4-L5 bilateral
hypertrophy, vacuum disc and grade 1 spondylolisthesis. Dr. Lechner diagnosed L4-L5
spondylolisthesis with diffuse disc bulging and incompetent facets, concluding:
“As [appellant] had no complaints of back pain prior to her fall in
November 2008, it is with a reasonable degree of medical certainty that her
current back and leg pain was caused by the fall. The bulging disc could
certainly be caused by an injury such as this. In addition, the fall could aggravate
underlying degenerative facet disease causing the spondylolisthesis.”
The employing establishment controverted the claim in a November 9, 2009 letter on the
grounds that appellant did not seek prompt medical attention after her alleged November 2008
fall and failed to provide sufficient evidence to establish the elements of her claim.
In a December 8, 2009 letter, OWCP informed appellant that additional evidence was
needed to establish her claim. It gave her 30 days to submit a factual statement describing the
employment factors that contributed to her condition and medical reports offering a physician’s
reasoned opinion explaining how these factors caused the injury.
Appellant responded in a December 26, 2009 letter that she lifted and carried a mailbag,
mail buckets, packages and magazines for eight hours each workday. Her tasks also entailed
continuous standing, walking, stair-climbing, bending and twisting. Appellant attributed her
worsening back and leg pain to these activities.
In a December 18, 2009 report, Dr. Lechner acknowledged appellant’s November 2008
fall and stated that she continued to work despite pain and subsequently developed progressive
right lower back and leg pain. She advised that the September 18, 2009 MRI scan showed

2

The record reflects that appellant previously filed a claim for compensation related to the November 2008
incident, which was not formally adjudicated. OWCP File No. xxxxxx288. Appellant also filed claims for left and
right shoulder sprains. None of these claims are before the Board on the present appeal.

2

significant progression of appellant facet disease while x-rays showed slipping of L4 on L5 with
grade 1 spondylolisthesis. Dr. Lechner opined:
“During the time from February to September [appellant] continued to carry her
mailbag, climb up and down steps, lift packages that might weigh up to 60
pounds, and do repeated bending and twisting. She already had disruption of the
disc and facet joints at L4-5 due to her fall in November 2008. This continued
daily stress on [appellant’s] back caused progressive disruption of the disc and
facet joints leading to instability and spondylolisthesis and the chronic back pain
she is experiencing.”
By decision dated February 4, 2010, OWCP denied appellant’s claim, finding the
evidence insufficient to demonstrate that she experienced the employment factors as alleged.
Appellant requested a telephonic hearing, which was held on May 7, 2010. She testified
that she started working for the employing establishment in 2007. After the November 2008
incident, appellant returned to her regular duties, which included carrying a mailbag weighing up
to 60 pounds, buckets of mail and boxes of magazines. She asserted that her condition worsened
to the point that she could barely walk. On January 11, 2010 appellant underwent back surgery
for her condition, but still experienced symptoms postoperatively. She was consequently placed
on leave without pay.
On July 22, 2010 an OWCP hearing representative modified the February 4, 2010
decision to find that appellant experienced the employment factors as alleged. He denied her
claim on the grounds that the medical evidence did not sufficiently establish that these accepted
factors led to lower back and leg injuries.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was 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 disabilities and/or specific conditions for which compensation is claimed are
causally related to the employment injury.3 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.4
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.5 To establish fact of injury in an
occupational disease claim, an employee must submit: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
3

Elaine Pendleton, 40 ECAB 1143 (1989).

4

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

5

See S.P., 59 ECAB 184, 188 (2007).

3

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.6
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.7
ANALYSIS
The evidence of record supports that appellant routinely carried mail, packages, and
magazines in mailbags and buckets and performed other duties for the employing establishment
that involved stair climbing, bending and twisting. Appellant was diagnosed with L4-L5
spondylolisthesis, diffuse disc bulging and degenerative facet disease. The Board finds the
medical evidence is insufficient to establish that the accepted employment factors caused or
contributed to her lower back and leg condition.
In a December 18, 2009 report, Dr. Lechner related that appellant originally fell in
November 2008 and sustained L4-L5 disc and facet joint disruptions, but continued to carry her
mailbag, climb stairs, lift heavy packages and perform routine bending and twisting. She opined
that this continued stress on appellant’s back “caused progressive disruption of the disc and facet
joints leading to instability and spondylolisthesis and the chronic back pain she is experiencing.”
Dr. Lechner did not provide a fully detailed medical explanation addressing how heavy lifting,
climbing, bending and twisting caused appellant’s condition.8 She opined in an October 23,
2009 report that appellant’s lower back and leg condition was due to her November 2008 fall,
pointing out that she was asymptomatic prior to this event. Although the physician attributed
appellant’s condition to the latter’s federal employment, she did not address any of the accepted
work factors9 or explain why particular work factors caused or aggravated a diagnosed condition.
Moreover, Dr. Lechner’s observation that appellant was asymptomatic before November 2008
and symptomatic afterward, by itself, is not sufficient opinion on causal relationship.10 A

6

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); R.R., Docket No. 08-2010 (issued April 3, 2009).

7

I.J., 59 ECAB 408, 415 (2008); Woodhams, supra note 4 at 352.

8

Joan R. Donovan, 54 ECAB 615, 621 (2003); Ern Reynolds, 45 ECAB 690, 696 (1994).

9

See John W. Montoya, 54 ECAB 306, 309 (2003). See also M.W., 57 ECAB 710 (2006); James A. Wyrick, 31
ECAB 1805 (1980) (medical opinions based on an incomplete or inaccurate history are of diminished probative
value).
10

See D.I., 59 ECAB 158 (2007); T.M., Docket No. 08-975 (issued February 6, 2009).

4

temporal relationship alone has been held of diminished probative value on causal relation.11 In
the absence of a well-reasoned medical opinion explaining causal relationship, appellant failed to
meet her burden.
Appellant’s counsel argues that the July 22, 2010 decision was contrary to fact and law.
As noted, the medical evidence did not sufficiently establish that appellant’s duties for the
employing establishment were causally related to her lower back and leg condition.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that she sustained an occupational disease
in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the July 22, 2010 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: September 30, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

11

See Louis T. Blair, Jr., 54 ECAB 348 (2003).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.Y., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tonawanda, NY, Employer
__________________________________________

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

Docket No. 15-0751
Issued: September 2, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 18, 2015 appellant filed a timely appeal of a January 29, 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 over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly found that an overpayment in compensation
in the amount of $1,068.63 had been created because appellant received compensation for the
period March 26 to April 5, 2014 after he returned to work; and (2) whether OWCP properly
denied waiver of recovery of the overpayment.
FACTUAL HISTORY
On June 25, 2012 appellant, then a 43-year-old city carrier, filed a traumatic injury claim
alleging that on that day while performing his duties he sustained a left elbow injury when he fell
1

5 U.S.C. § 8101 et seq.

and hit concrete while trying to keep a dog away. OWCP accepted the claim for left elbow
contusion and right superficial avulsion index finger. Appellant’s claim was subsequently
expanded to include left closed fracture oleocranon ulna process and right open wound finger
without complications.
By decision dated November 5, 2013, OWCP accepted appellant’s claim for a recurrence
of disability beginning May 16, 2013. In a separate letter dated November 5, 2013, it authorized
left elbow surgery, which occurred on December 31, 2013.
On January 30, 2014 OWCP accepted appellant’s recurrence of disability claim
beginning December 31, 2013 based on a December 31, 2013 surgical report.
By letter dated February 24, 2014, OWCP placed appellant on the periodic rolls for
temporary total disability. It noted the first regular payment was for the period February 9 to
March 8, 2014.
Appellant returned to full-duty work on March 26, 2015.
An April 2, 2014 computer printout shows that a check was sent to appellant for payment
of wage-loss compensation for the period March 9 to April 5, 2014.
On April 2, 2014 OWCP informed appellant of its preliminary determination that he
received an overpayment of compensation in the amount of $1,068.63, because he had been paid
in error for the period March 26 to April 5, 2014. It noted that he had returned to work on
March 26, 2014 with no loss of wages, but continued to receive compensation for total disability.
OWCP found that appellant was without fault in the creation of the overpayment. It requested
that he complete an overpayment recovery questionnaire and submit supporting financial
documents. Additionally, OWCP notified appellant that, within 30 days of the date of the letter,
he could request a telephone hearing, a final decision based on the written evidence, or a
prerecoupment hearing.
On April 7, 2014 appellant requested a telephonic hearing before an OWCP hearing
representative. He submitted a completed overpayment recovery questionnaire form stating that
he had a total monthly income of $3,700.00 and monthly expenses of $4,050.00. Appellant
indicated that he had $50.00 cash on hand and $1,500.00 in a checking account, and $500.00 in a
savings account. Under expenses, he listed $1,100.00 for rent/mortgage, $550.00 for food,
$200.00 for clothing, $900.00 for utilities, and $800.00 for other debts. No supporting financial
documentation was submitted.
At the November 12, 2014 telephonic hearing, appellant testified that it would be a
hardship to repay the overpayment. At the hearing he testified that his monthly income was less
than it had been because he was not working a lot of overtime due to his elbow pain. Appellant
testified that his monthly income was between $2,500.00 and $2,700.00. Next he provided
testimony regarding his expenditures and assets. An OWCP hearing representative instructed
appellant to submit supporting financial documentation for the claimed expenditures. No
additional evidence was received.
By decision dated January 29, 2015, an OWCP hearing representative finalized the
preliminary determination that an $1,068.63 overpayment was created. She found that appellant
2

was eroneously paid wage-loss compensation for the period March 26 to April 5, 2014 after
appellant returned to work on March 26, 2014. The hearing representative found appellant was
without fault in the creation of the overpayment, but denied waiver of recovery of the
overpayment as appellant failed to submit any supporting financial documentation.
LEGAL PRECEDENT -- ISSUE 1
Section 8116 of FECA defines the limitations on the right to receive compensation
benefits. This section of FECA provides that, while an employee is receiving compensation, he
or she may not receive salary, pay or remuneration of any type from the United States, except in
limited circumstances.2 Section 10.500 of Title 20 of the Code of Federal Regulations provide
that compensation for wage loss due to disability is available only for any periods during which
an employee’s work-related medical condition prevents him or her from earning the wages
earned before the work-related injury.
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount
of $1,068.63 because he had been paid in error for the period March 26 through April 5, 2014.
Appellant returned to full-time work on March 26, 2014 but continued to receive compensation
for partial disability from OWCP through April 5, 2014. As he received regular full-time wages
from the employing establishment from March 26 to April 5, 2014, appellant was not entitled to
disability compensation from OWCP for this same period. OWCP determined that the amount
of compensation that appellant had received for the period totaled $1,068.63. Appellant has not
challenged the amount and period of the overpayment.
LEGAL PRECEDENT -- ISSUE 2
According to section 10.436,3 recovery of an overpayment would defeat the purpose of
FECA if recovery would cause hardship because the beneficiary needs substantially all of his or
her current income (including compensation benefits) to meet current, ordinary, and necessary
living expenses and also, if the beneficiary’s assets do not exceed a specified amount as
determined by OWCP from data provided by the Bureau of Labor Statistics.4 For waiver under
this standard, appellant must meet the two-pronged test and show that he both needs substantially

2

5 U.S.C. § 8116(a).

3

20 C.F.R. § 10.436.

4

OWCP procedures provide that assets must not exceed a resource base of $4,800.00 for an individual or
$8,000.00 for an individual with a spouse or dependent, plus $960.00 for each additional dependent. Federal
(FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.6(a)
(October 2004).

3

all of his current income to meet current ordinary and necessary living expenses,5 and that his
assets do not exceed the resource base.6
The burden is on the claimant to show that the expenses are reasonable and needed for a
legitimate purpose.7 OWCP’s regulations provide:
“(a) The individual who received the overpayment is responsible for providing
information about income, expenses and assets as specified by [OWCP]. This
information is needed to determine whether or not recovery of an overpayment
would defeat the purpose of [FECA] or be against equity and good conscience....
“(b) Failure to submit the requested information within 30 days of the request
shall result in denial of waiver and no further request for waiver shall be
considered until the requested information is furnished.”8
ANALYSIS -- ISSUE 2
OWCP determined that appellant was without fault in the creation of an overpayment of
$1,068.63 for the period March 26 through April 5, 2014.
The Board notes that appellant did not dispute the fact of overpayment or the amount of
overpayment. OWCP requested in a preliminary notice of overpayment dated April 2, 2014 and
at the telephonic hearing held on November 12, 2014 that he provide financial information to
support the claimed expenses. Appellant failed to provide any financial information supporting
his claimed expenses for OWCP to determine whether waiver of the overpayment was
appropriate. The burden is on the claimant to show that waiver would defeat the purpose of
FECA or would be against equity and good conscience. Because appellant has not shown that
recovery would defeat the purpose of FECA or would be against equity and good conscience, the
Board finds that OWCP properly denied waiver of recovery of the overpayment.
On appeal appellant requests additional time to prove his claim of hardship. The
regulations mandate that the failure to submit requested information results in the denial of
waiver of the overpayment.9 Appellant failed to provide OWCP with supporting financial
documentation as requested. Thus, OWCP properly denied his request for waiver of recovery of
the overpayment.

5

An individual is deemed to need substantially all of his or her income to meet current ordinary and necessary
living expenses if monthly income does not exceed monthly expenses by more than $50.00. Desiderio Martinez, 55
ECAB 245, 250 (2004).
6

See supra note 4. W.F., 57 ECAB 705 (2006).

7

Id.

8

20 C.F.R. § 10.438. See Madelyn Y. Grant, 57 ECAB 533 (2006).

9

Id.

4

CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $1,068.63 for the period March 26 through April 5, 2014 because he received compensation
from OWCP after he had returned to work. The Board further finds that OWCP properly denied
waiver of recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 29, 2015 is affirmed.
Issued: September 2, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
ILLIANA HEALTHCARE SYSTEM,
Danville, IL, Employer
__________________________________________

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

Docket No. 11-952
Issued: March 9, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 28, 2011 appellant filed a timely appeal from a January 21, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) which denied her traumatic
injury claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty on
November 27, 2010.
FACTUAL HISTORY
On December 4, 2010 appellant, then a 54-year-old psychiatric nursing assistant, filed a
traumatic injury claim alleging that on November 27, 2010 she twisted her ankle when she
1

5 U.S.C. § 8101 et seq.

walked down the hall and suddenly fell down, the time of injury was noted as 8:15 p.m. The
employing establishment stated that the injury did not occur in the performance of duty because
she was leaving work when she fell in the hallway. Appellant’s regular work hours were noted
as 7:30 a.m. to 4:00 p.m. The employing establishment controverted the claim on the grounds
that the injury was not work related because she had reported to her supervisor that she had
muscle cramps earlier and that she was supposed to take Takelasix and Potassium, which she
failed to take for the past week. Appellant did not stop work.
In a December 17, 2010 letter, OWCP advised appellant that the evidence submitted was
insufficient to establish that she actually experienced the November 27, 2010 incident and that
she sustained any diagnosed condition as a result of the alleged incident. It requested that she
respond to specific questions to substantiate the factual elements of her claim and provide a
physician’s opinion explaining how her alleged fall caused any injury.
In a November 27, 2010 treatment note, an unknown provider indicated that appellant
received emergency treatment but was not incapacitated from her job.
In a November 27, 2010 handwritten progress note, an unknown provider related that on
November 27, 2010 at 8:15 p.m. appellant was walking down the hall to go home when she fell
down on the floor. Appellant tried to catch herself but was not able to. The examination
revealed that both her ankles were twisted but she was authorized to return to full duty.
By decision dated January 21, 2011, OWCP denied appellant’s claim.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of her claim by the weight of the reliable, probative and substantial evidence2
including 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.3
As to employees having fixed hours of work, injuries occurring on the premises of the
employing establishment, while the employee is going to and from work, before and after
working hours within a reasonable interval are generally compensable.4
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.5
There are two components involved in establishing fact of injury. First, the employee must
2

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

3

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989); M.M., Docket No. 08-1510 (issued
November 25, 2010).
4

R.A., 59 ECAB 581 (2008); see also Maryann Batista, 50 ECAB 343 (1999).

5

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

2

submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place and in the manner alleged.6 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.7
ANALYSIS
Appellant alleged that on November 27, 2010 she twisted her ankle and fell down in an
employing establishment hallway at 8:15 p.m. The employing establishment controverted the
claim on the grounds that she was leaving work for the day when she fell and that she had earlier
noted muscle spasms and had forgotten to take medications, ostensibly to alleviate the muscle
spasms. OWCP denied appellant’s claim on the grounds of insufficient factual evidence
establishing that the incident occurred as alleged and insufficient medical evidence
demonstrating that she sustained a diagnosed condition as a result of the alleged incident.
The Board finds that appellant has not established that she sustained an injury in the
performance of duty. OWCP did not explicitly adjudicate the issue of performance of duty,
although this issue was raised by the employing establishment. As the Board has previously
noted, if the employee has fixed hours of work, injuries occurring on the premises of the
employing establishment while the employee is going to or from work and for a reasonable time
before or after working hours are generally compensable. If the injury occurs outside of regular
work hours, the employee’s presence on premises must be incidental to work activity. The
employing establishment has stated that appellant was not in the performance of duty at the time
of the injury.
The question is whether appellant’s presence on premises, hours after her regular work
hours ended, was incidental to work activity. In this case, appellant has not established that she
remained on premises for work.
Appellant and her supervisor indicated on the claim form that appellant had completed
work and was leaving for the day when the injury occurred. The Board notes that her Form
CA-1 indicated that her regular work hours ended at 4:00 p.m., but that the injury occurred at
8:15 p.m. The Board in Catherine Cullen,8 found that the employee remained in the
performance of duty even six hours after her shift ended because she remained on premises to
complete a work project.
There is, however, insufficient evidence to establish that appellant remained on premises
to complete work. On December 17, 2010 OWCP informed her that further evidence was
necessary to establish her claim. Appellant was requested to provide additional factual
information explaining the circumstances surrounding the incident. She did not respond to this
request. It is appellant’s burden of proof to establish that she remained on premises four hours
6

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

7

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

8

47 ECAB 192 (1995).

3

after the end of her shift to perform work activity. She has not explained why she had to remain
on premises for this extended period of time and has not provided the necessary description of
her work activities during this prolonged period following the end of her shift. The record
therefore does not substantiate that appellant was on premises, in the performance of duty at the
time of her fall.
The Board also notes that the employing establishment controverted the claim because
appellant had mentioned experiencing muscle spasms earlier and the fall was therefore idiopathic
in nature. It is a well-settled principle of workers’ compensation law that an injury resulting
from an idiopathic fall where a personal nonoccupational pathology causes an employee to
collapse and suffer injury upon striking the immediate supporting surface and there is no
intervention or contribution by any hazard or special condition of employment is not within the
coverage of FECA. Such an injury does not arise out of a risk connected with the employment
and is, therefore, not compensable. However, the fact that the cause of a particular fall cannot be
ascertained or that the reason it occurred cannot be explained, does not establish that it was due
to an idiopathic condition. If the record does not establish that the particular fall was due to an
idiopathic condition, it must be considered as merely an unexplained fall, one which is
distinguishable from a fall in which it is definitely proved that a physical condition preexisted
and caused the fall.9 Even though appellant may have mentioned previous muscle spasms to her
supervisor, there is no evidence of record that she twisted her ankle and fell due to an idiopathic
muscle spasm. The fall remains an unexplained fall.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that she sustained an injury in the
performance of duty on November 27, 2010.10

9

G.B., Docket No. 10-2155 (issued June 1, 2011); see also M.M., Docket No. 08-1510 (issued
November 25, 2008).
10

The Board notes that appellant submitted additional evidence following the January 21, 2010 decision. 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. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57
ECAB 126 (2005). Appellant may submit that evidence to OWCP along with a request for reconsideration.

4

ORDER
IT IS HEREBY ORDERED THAT the January 21, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 9, 2012
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

5