United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.S., Appellant
and
U.S. POSTAL SERVICE, CLIFTON STATION,
Baltimore, MD, Employer
__________________________________________

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

Docket No. 17-0939
Issued: June 15, 2018

Case Submitted on the Record

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

JURISDICTION
On March 27, 2017 appellant filed a timely appeal from a March 10, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has established a right ankle injury causally related to an
accepted January 14, 2015 employment incident.

1
Appellant timely requested oral argument before the Board. By order dated September 5, 2017, the Board
exercised its discretion and denied the request, finding that the arguments presented on appeal could be adequately
addressed based on a review of the case record. Order Denying Oral Argument, Docket No. 17-0939 (issued
September 5, 2017).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 22, 2015 appellant, then a 53-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on January 14, 2015 she injured her right ankle after falling from
a step while in the performance of duty. The employing establishment alleged that she fell on ice
at home on January 12, 2015.3 Appellant stopped work on January 14, 2015.
A physician assistant evaluated appellant on January 14, 2015 for a right ankle injury. He
obtained a history of her twisting her right ankle going down stairs at work. The physician assistant
found swelling of the right lateral ankle joint. He advised that x-rays did not show a fracture and
diagnosed a right ankle sprain. The physician assistant listed work restrictions and instructed
appellant to use crutches.4
On January 20, 2015 a physician assistant evaluated appellant for right ankle and foot pain.
She diagnosed right ankle pain and a strain and found that appellant could resume modified
activity.
In a January 27, 2015 progress report, a physician assistant found lateral swelling of the
right ankle with restricted plantar flexion and inversion due to pain. He diagnosed a right ankle
sprain and provided work restrictions.
On February 3, 2015 a physician assistant released appellant to resume her regular work
duties.
OWCP, by development letter dated March 3, 2015, informed appellant that it had paid a
limited amount of medical expenses as her injury appeared minor and was not controverted. It
advised that it was now adjudicating her claim, and requested that she submit additional factual
and medical information, including a detailed report from her attending physician addressing the
cause of any diagnosed condition and its relationship to the identified work incident.
In a January 14, 2015 authorization for examination and/or treatment (Form CA-16),
received by OWCP on March 18, 2015, the employing establishment authorized treatment for
appellant’s right ankle. On the form a physician assistant diagnosed a right ankle sprain and
checked a box marked “yes” that the condition was caused or aggravated by the described
employment activity of appellant twisting her right ankle. He found that she could perform light
work beginning January 15, 2015.

3
In a January 28, 2015 statement, the employing establishment provided a statement noting that appellant used sick
leave on January 12, 2015 after falling at home. On January 13, 2015 appellant advised that she slipped on ice on
January 12, 2015 and that her legs and buttock were sore.
4

A physician assistant completed January 20 and 27, 2015 duty status reports (Form CA-17) setting forth work
restrictions. In a February 3, 2015 Form CA-17, a physician assistant found that appellant could perform her regular
employment.

2

By decision dated April 6, 2015, OWCP denied appellant’s traumatic injury claim. It found
that she had established the occurrence of the January 14, 2015 work incident, but had not
submitted medical evidence from a physician supporting that the incident caused an injury.
Appellant, on April 9, 2015, requested a review of the written record before an OWCP
hearing representative. In an April 9, 2015 statement, she related that she tripped on steps
delivering mail and had to use crutches due to her swollen right ankle. Appellant submitted a
February 3, 2015 report from a physician assistant providing examination findings and releasing
her to her usual employment.
By decision dated September 25, 2015, the hearing representative affirmed the April 6,
2015 decision. He found that a physician assistant was not considered a physician under FECA
and thus determined that appellant had not submitted any competent medical evidence in support
of her claim.
In a May 25, 2016 statement, appellant related that the employing establishment referred
her to a specific clinic for treatment. She described her injury and subsequent ankle swelling such
that she had to use crutches. The employing establishment would not let appellant work while she
was on crutches.
Appellant, on June 27, 2016, requested reconsideration. She again described her injury
and noted that she had obtained the signature of a physician on her medical reports.
Appellant submitted the January 14, 20, and 27, and February 3, 2015 reports completed
by the physician assistant. A physician cosigned the reports.5
By decision dated September 22, 2016, OWCP denied modification of its September 25,
2015 decision. It found that, while she had submitted reports signed by a physician, the reports
did not contain a discussion of the identified work incident or a finding that the diagnosed condition
was causally related to the January 14, 2015 work incident.
On October 13, 2016 appellant requested reconsideration. She submitted the January 14,
2015 report from the physician assistant cosigned by a physician. The form contained a history of
appellant twisting her right ankle going down steps at work.
By decision dated January 11, 2017, OWCP denied modification of its September 22, 2016
decision. It found that the January 14, 2015 report did not contain a medical diagnosis.
On February 1, 2017 appellant requested reconsideration. In a January 24, 2017 statement,
she described her injury delivering mail and her subsequent treatment, noting that she had
submitted medical evidence cosigned by a physician. She resubmitted the reports from the
physician assistant dated January 20 and 27, and February 3, 2015.

5

The signature of the physician is not legible.

3

By decision dated March 10, 2017, OWCP denied modification of its January 11, 2017
decision. It noted that the medical evidence submitted was provided by a physician assistant and
was thus insufficient to demonstrate causal relationship.
On appeal appellant contends that her injury occurred at work and that the medical provider
selected by the employing establishment provided her with crutches and instructed her to perform
light duty. Her employing establishment had no work available within her restrictions. Appellant
asserts that OWCP should have accepted the claim because she was injured performing her work
duties.
LEGAL PRECEDENT
An employee seeking benefits under FECA6 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.7 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.8
In order 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.9 The second component is whether the
employment incident caused a personal injury and generally can be established only by medical
evidence.10
The medical evidence required to establish causal relationship is generally rationalized
medical opinion evidence. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty, and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.11

6

5 U.S.C. § 8101 et seq.

7

Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55 ECAB 179 (2003).

8

See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004).

9

Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

10

See T.H., 59 ECAB 388 (2008); Roy L. Humphrey, 57 ECAB 238, 241 (2005).

11

See I.H., 59 ECAB 408 (2008); Solomon Polen, 51 ECAB 341 (2000).

4

ANALYSIS
The Board finds that appellant has not established that the accepted January 14, 2015
employment incident resulted in an injury.12 Causal relationship is a medical question that must
be established by a probative medical opinion from a physician.13
Appellant submitted January 14, 20, and 27, and February 3, 2015 progress reports, a
January 14, 2015 CA-16 form, and January 20 and 27, and February 3, 2015 CA-17 forms. The
reports and forms were completed by physician assistants. A physician assistant, however, is not
considered a physician as defined under FECA, and thus these reports are of no probative value
on the issue of whether appellant sustained an injury causally related to the accepted January 14,
2015 employment incident.14
A physician with an illegible signature subsequently cosigned the January 14, 20, and 27,
and February 3, 2015 reports completed by physician assistants. As the report is from a physician
with an illegible signature it is of no probative value.15
On January 20, 2015 a physician noted that appellant related that her condition had
improved and diagnosed a right ankle strain. In a January 27, 2015 report, he listed findings on
examination of lateral swelling of the right ankle with restricted plantar flexion and inversion due
to pain. The physician diagnosed a right ankle sprain and provided work restrictions. On
February 3, 2015 he found that appellant could return to her usual employment. Again, however,
the physician did not address causation and thus his findings are of diminished probative value.16
Further, to be of probative value, a physician must provide a narrative description of the
employment incident and a reasoned opinion on whether the employment incident described
caused or contributed to the diagnosed medical condition.17
On appeal appellant advises that she was injured at work and sought treatment by the
provider selected by the employing establishment. She maintains that her claim should be accepted
12

The Board notes that a Form CA-16 authorization for examination and/or treatment was issued by the employing
establishment on January 14, 2015. When the employing establishment properly executes a Form CA-16 which
authorizes medical treatment as a result of an employee’s claim for an employment-related injury, the Form CA-16
creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the examination
or treatment regardless of the action taken on the claim. The period for which treatment is authorized by a Form CA16 is limited to 60 days from the date of issuance, unless terminated earlier by OWCP. See 20 C.F.R. § 10.300(c);
Tracy P. Spillane, 54 ECAB 608, 610 (2003).
13

See C.W., Docket No. 17-0399 (issued June 19, 2017).

14

See David P. Sawchuk, 57 ECAB 316, 320, n.11 (2006) (lay individuals such as physician assistants, nurses, and
physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection
defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by State law).
15

Merton J. Sills, 39 ECAB 572, 575 (1988); see also C.H., Docket No. 17-1568 (issued October 26, 2017).

16

See A.M., Docket No. 16-1552 (issued July 5, 2017).

17

John W. Montoya, 54 ECAB 306 (2003).

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as she was injured at work and the employing establishment could not provide her with light duty.
As noted, however, appellant has the burden of proof to submit sufficient medical evidence to
demonstrate that the accepted employment incident resulted in an injury.18 In order to establish
causal relationship, she must submit an opinion from a physician based on a complete and accurate
factual and medical background, finding that the claimed condition is causally related to the
identified work incident and supporting such causation finding with affirmative evidence and
medical rationale.19 Appellant failed to submit such evidence in support of her claim and thus
failed to meet her burden of proof.20
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established a right ankle injury causally related to
an accepted January 14, 2015 employment incident.

18

See K.U., Docket No. 17-0798 (issued October 10, 2017).

19

See J.W., Docket No. 17-0870 (issued July 12, 2017).

20

See E.P., Docket No. 17-1544 (issued April 10, 2018).

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ORDER
IT IS HEREBY ORDERED THAT the March 10, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 15, 2018
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Corte Madera, CA, Employer
__________________________________________

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

Docket No. 19-1691
Issued: February 24, 2020

Case Submitted on the Record

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

JURISDICTION
On August 7, 2019 appellant filed a timely appeal from a May 6, 2019 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days elapsed from
OWCP’s last merit decision, dated January 2, 2019, to the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly determined that appellant abandoned her request for
an oral hearing before an OWCP hearing representative.
FACTUAL HISTORY
On October 25, 2018 appellant, then a 44-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on the same day she experienced sharp pains in her back and
1

5 U.S.C. § 8101 et seq.

shortness of breath after injuring her back while in the performance of duty. She explained that
she believed that she pulled something in her back when she reached for her delivery point
sequence (DPS) tray in an over-the-road (OTR) container. Appellant stopped work the same day.
In an October 25, 2018 medical note, Gillian Emblad, a physician assistant, advised that
appellant may return to work on October 31, 2018 with restrictions of no lifting over five pounds
until November 7, 2018.
On October 29, 2018 Dr. Jonathan Noble, a Board-certified internist, opined that appellant
was totally/partially incapacitated from October 29 to November 7, 2018 and as of November 7,
2018 she sufficiently recovered to resume a normal workload.
In a note dated November 5, 2018, Dr. Noble indicated that appellant was incapacitated
from work from November 5 to December 1, 2018.
By development letter dated November 27, 2018, OWCP informed appellant that her claim
initially appeared to be a minor injury that resulted in minimal or no lost time from work and that
continuation of pay was not controverted by the employing establishment, and thus, limited
expenses had been authorized. However, a formal decision was now required. OWCP advised
appellant of the type of medical evidence required to establish her traumatic injury claim and
requested a narrative medical report from appellant’s physician which provided a diagnosis and
the physician’s rationalized medical explanation as to how the alleged employment incident caused
the diagnosed condition. It afforded her 30 days to respond.
OWCP subsequently received an October 31, 2018 copy of an investigation interview. In
response to interview questions about the October 25, 2018 employment incident, appellant
explained that she suffered her injury when she bent down to the OTR container to retrieve the
DPS trays. After pulling the trays she felt a sharp pain in her back.
In a letter of even date, appellant’s postmaster, A.S., controverted her traumatic injury
claim, explaining that, in appellant’s four years of employment, she had experienced four separate
accidents on October 18 and November 24, 2015, November 24, 2017, and October 25, 2018. He
pointed out that these were normally the times where the mailing season for the holidays begins
and that, in his opinion, appellant may not have been truthful in her injury claim.
In a medical note dated November 28, 2018, Dr. Noble indicated that appellant was
totally/partially incapacitated and unable to return to work from December 1, 2018 to
January 2, 2019.
In a December 17, 2018 letter, Postmaster A.S. further controverted appellant’s traumatic
injury claim. He noted that when she reported her injury on October 25, 2018 she was not in any
pain that a person might have experienced when someone hurts themselves. A.S. explained that
the topics of discussion also included the fact that appellant had no more annual or sick leave
remaining and that he believed that this was the reason she filed her traumatic injury claim. He
noted that, on surveillance video, she was seen moving trays one by one, before she tried to move
multiple trays at once and began to show signs of injury. A.S. provided that he believed that
appellant was only showing injury because “[appellant] knew a surveillance camera was above her
and could be used as her alibi.”
2

By decision dated January 2, 2019, OWCP found that the medical evidence of record was
insufficient to establish a diagnosis in connection with the accepted October 25, 2018 employment
incident. Thus, it found that the requirements had not been met to establish an injury as defined
by FECA.
Appellant submitted a November 24, 2017 provider note from Marin General Hospital
containing an illegible signature. The note revealed that she would need to remain out of work for
two days.
In an October 25, 2018 report, Ms. Emblad provided appellant with home care instructions
to treat a neck sprain/strain and contusions in her lower extremity and hand.
Appellant also submitted a narrative statement of even date wherein she again explained
that, on October 25, 2018, she bent down to reach DPS trays in the back of an OTR container when
she felt a sharp pain in her back.
In a note dated January 2, 2019, Dr. Noble indicated that appellant was incapacitated and
unable to return to work from October 25, 2018 to January 17, 2019. In a subsequent note dated
January 11, 2019, he indicated that she was incapacitated through that date and was unable to
return to a normal workload as of January 12, 2019.
Appellant timely requested an oral hearing before a representative of OWCP’s Branch of
Hearings and Review on January 11, 2019. She also submitted additional pages of Ms. Emblad’s
October 25, 2018 medical report, in which Ms. Emblad noted that she provided treatment
instructions to appellant for a back sprain/strain, hypertension and a work release form.
In a March 7, 2019 letter, OWCP’s hearing representative notified appellant that a
telephonic hearing was scheduled for Friday, April 26, 2019 at 12:45 p.m. Eastern Standard Time
(EST). The notice included a toll-free number to call and provided the appropriate passcode.
OWCP’s hearing representative mailed the notice to appellant’s last known address of record.
Appellant did not make an appearance.
By decision dated May 6, 2019, OWCP’s hearing representative determined that appellant
had abandoned her request for an oral hearing. The hearing representative indicated that appellant
received a 30-day advance written notice of the hearing scheduled for April 26, 2019, and that she
failed to appear. OWCP’s hearing representative further noted that there was no indication in the
record that appellant contacted OWCP prior to request a postponement or provide an explanation
to OWCP for her failure to appear at the hearing within 10 days of the scheduled hearing.
Consequently, appellant was deemed to have abandoned her request for an oral hearing.
LEGAL PRECEDENT
A claimant who has received a final adverse decision by OWCP may obtain a hearing by
writing to the address specified in the decision within 30 days of the date of the decision for which
a hearing is sought.2 Unless otherwise directed in writing by the claimant, OWCP’s hearing
2

20 C.F.R. § 10.616(a).

3

representative will mail a notice of the time and place of the hearing to the claimant and any
representative at least 30 days before the scheduled date.3 OWCP has the burden of proving that
it properly mailed to a claimant and any representative of record a notice of a scheduled hearing.4
A claimant who fails to appear at a scheduled hearing may request in writing, within
10 days after the date set for the hearing, that another hearing be scheduled. Where good cause
for failure to appear is shown, another hearing will be scheduled and conducted by teleconference.
The failure of the claimant to request another hearing within 10 days, or the failure of the claimant
to appear at the second scheduled hearing without good cause shown, shall constitute abandonment
of the request for a hearing.5
ANALYSIS
The Board finds that OWCP properly determined that appellant abandoned her request for
an oral hearing before an OWCP hearing representative.
Following OWCP’s January 2, 2019 decision, appellant filed a timely request for an oral
hearing before a representative of OWCP’s Branch of Hearings and Review. In a March 7, 2019
letter, OWCP’s hearing representative notified her that OWCP’s Branch of Hearings and Review
had scheduled a telephonic hearing for April 26, 2019 at 12:45 EST. The hearing representative
properly mailed the hearing notice to appellant’s last known address of record6 and provided
instructions on how to participate. Appellant failed to call in for the scheduled hearing using the
provided telephone number. She did not request a postponement or provide an explanation to
OWCP for her failure to attend the hearing within 10 days of the scheduled hearing.7 The Board
thus finds that OWCP properly determined that appellant abandoned her request for a telephonic
hearing.8
CONCLUSION
The Board finds that OWCP properly determined that appellant abandoned her request for
an oral hearing before an OWCP hearing representative.

3

Id. at § 10.617(b).

4

M.R., Docket No. 18-1643 (issued March 1, 2019); T.P., Docket No. 15-0806 (issued September 11, 2015);
Michelle R. Littlejohn, 42 ECAB 463 (1991).
5

20 C.F.R. § 10.622(f); Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Review of the Written
Record, Chapter 2.1601.6(g) (October 2011); see also A.J., Docket No. 18-0830 (issued January 10, 2019); L.B.,
Docket No. 18-0533 (issued August 27, 2018).
6

Absent evidence to the contrary, a letter properly addressed and mailed in the ordinary course of business is
presumed to have been received. This is called the mailbox rule. See C.Y., Docket No. 18-0263 (issued
September 14, 2018). Appellant did not submit evidence of nondelivery of OWCP’s March 7, 2019 hearing notice
such that the presumption of receipt would be rebutted.
7

E.S., Docket No. 19-0567 (issued August 5, 2019).

8

A.J., supra note 5.

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ORDER
IT IS HEREBY ORDERED THAT the May 6, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 24, 2020
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Z.D., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Buffalo, NY, Employer
__________________________________________

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Appearances:
Martin Kaplan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-1653
Issued: November 19, 2015

Case Submitted on the Record

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

JURISDICTION
On July 30, 2015 appellant, through counsel, filed a timely appeal from a June 25, 2015
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than
180 days elapsed since the last merit decision dated October 17, 2014 and the filing of the
appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly found that appellant abandoned his request for a
hearing.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
Appellant, a 25-year-old border patrol officer, filed a claim for traumatic injury (Form
CA-1) on September 5, 2014 alleging that he strained his lower back after attending back-toback training classes on August 29, 2014.
In a report dated September 24, 2014, Dr. Waqar Waheed, Board-certified in neurology
and neuromuscular medicine, advised that appellant was experiencing bilateral lower extremity
weakness and pain which began approximately three months previously when he started training
at a law enforcement academy in Georgia. He reported that appellant was involved in significant
physical activity and training when he started to experience bilateral knee pain. Appellant was
evaluated and diagnosed with possible bilateral knee tendinitis; he continued with his training,
but began having pain radiating from his buttocks bilaterally to the posterior aspect of his thighs,
which had a numbness and tingling sensation. Dr. Waheed asserted that appellant’s condition
continued to deteriorate and he started experiencing weakness in the lower extremities and
spasms with associated numbness, tingling sensation, and flushing. Appellant underwent a
magnetic resonance imaging (MRI) scan of the entire spine which showed mild degenerative
changes at C5-6 and disc protrusion at L5-S1 with mild L5-S1 neuroforaminal stenosis.
Dr. Waheed advised that the MRI scan did not show any evidence of myelopathy, upper motor
neuron deterioration process, or motor neuron disease. He scheduled appellant for further
diagnostic tests.
In a September 5, 2015 report, Dr. Michael Dunn, a Board-certified family practitioner,
advised that appellant had been experiencing mild lower back pain after an injury which
occurred at a training class on August 29, 2014. He reported that appellant had pain in the low
back with radiating pain to the anterior aspect of the right and left leg and his feet. Dr. Dunn
diagnosed lumbar radiculopathy and asserted that appellant had been scheduled for further
evaluation due to a worsening of his symptoms.
By decision dated October 17, 2014, OWCP denied appellant’s claim, finding that he
failed to submit sufficient medical evidence in support of his claim that he sustained a lower
back injury in the performance of duty on August 29, 2014.
On November 12, 2014 appellant requested an oral hearing before an OWCP hearing
representative. He obtained legal counsel on November 14, 2014.
On May 4, 2015 OWCP sent a notice of a telephonic hearing to appellant and counsel. It
provided procedural information regarding the hearing. The notice stated that a hearing would
be held on June 12, 2015 at 10:00 a.m. Eastern Time. Appellant did not appear at the hearing.
By decision dated June 25, 2015, OWCP determined that appellant had abandoned his
request for a hearing. It explained that there was no evidence of record that appellant had
contacted OWCP either prior to or within 10 days after the scheduled hearing to explain his
failure to appear.

2

LEGAL PRECEDENT
Under FECA and its implementing regulations, a claimant who has received a final
adverse decision by OWCP is entitled to receive a hearing upon writing to the address specified
in the decision within 30 days of the date of the decision for which a hearing is sought.2 Unless
otherwise directed in writing by the claims examiner, OWCP’s hearing representative will mail a
notice of the time and place of the hearing to the claimant and any representative at least 30 days
before the scheduled date.3 OWCP has the burden of proving that it mailed notice of a scheduled
hearing to a claimant.4
A hearing before the Branch of Hearings and Review can be considered abandoned only
under very limited circumstances.5 With respect to abandonment of hearing requests, Chapter
2.1601.6(g) of OWCP’s procedures provide in relevant part that failure of the claimant to appear
at the scheduled hearing, failure to request a postponement, and failure to request in writing
within 10 days after the date set for the hearing that another hearing be scheduled shall constitute
abandonment of the request for a hearing. Under these circumstances, the Branch of Hearings
and Review will issue a formal decision finding that the claimant has abandoned his or her
request for a hearing and return the case to the district office.6
ANALYSIS
In finding that appellant abandoned his November 12, 2014 request for a hearing, OWCP
noted that a hearing had been scheduled by telephone for June 12, 2015, that he received written
notification of the hearing 30 days in advance, that he failed to appear, and that the record
contained no evidence that he contacted OWCP to explain his failure to attend the hearing.
Based on the evidence of the record, appellant did not request postponement of the hearing date,
failed to appear at the scheduled hearing, and failed to provide any notification for such failure
within 10 days of the scheduled date of the hearing. As this meets the criteria for abandonment
as specified in Chapter 2.1601.6(e) of OWCP’s procedures, OWCP properly found that he
abandoned his request for an oral hearing before an OWCP hearing representative.
On appeal appellant’s counsel alleges that the hearing should not be considered
abandoned because counsel had submitted a letter canceling the oral hearing and requesting
instead that the hearing representative issue a decision on the written record. The Board notes
that the record does not contain a letter from counsel requesting that the oral argument be
cancelled prior to the issuance of the June 25, 2015 decision.

2

Id. at § 8124(b)(1); 20 C.F.R. § 10.616(a).

3

Id. at § 10.617(b).

4

See Michelle R. Littlejohn, 42 ECAB 463 (1991).

5

Claudia J. Whitten, 52 ECAB 483 (2001).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Review of the Written Record, Chapter
2.1601.6(g) (October 2011).

3

CONCLUSION
The Board finds that OWCP properly determined that appellant abandoned his request for
a hearing.
ORDER
IT IS HEREBY ORDERED THAT the June 25, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 19, 2015
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.J., Appellant
and
U.S. POSTAL SERVICE, FAR ROCKAWAY
POST OFFICE, Far Rockaway, NY, Employer
__________________________________________
Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-1044
Issued: March 16, 2022

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On June 30, 2021 appellant, through counsel, filed a timely appeal from an April 2, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards docketed the appeal as No. 21-1044.
On November 20, 2019 appellant, then a 41-year-old city carrier, filed a notice of
recurrence (Form CA-2a) alleging that on October 25, 2019 he sustained a recurrence of disability
and the need for medical treatment causally related to his accepted January 10, 2018 employment
injury,2 after his return to light-duty work. He related that his left hip degenerative joint disease
was caused by work-related activities including, sitting on a folding chair, walking, and loading
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

The record reflects that appellant has an accepted traumatic injury claim (Form CA-1) for left hip tear sustained
on January 10, 2018 following a slip and fall on ice. Appellant returned to work following this injury on
October 1, 2019. OWCP assigned this claim File No. xxxxxx514.

parcels into a postal container, however, that he had not sustained any injury between January 10,
2018 and October 7, 2019. Appellant stopped work on October 25, 2019. OWCP assigned this
claim No. xxxxxx572.
In an October 30, 2019 report, Dr. Donald Rose, a Board-certified orthopedic surgeon,
noted that appellant was approximately one year and six months status postoperative left hip
arthroscopy. He noted that appellant had returned to work and that he was working outside his
recommended restrictions. Dr. Rose explained appellant’s pain occurred when he increased
activities, which was consistent with arthritic changes.
In a November 12, 2019 report, Dr. Craig Capeci, a Board-certified orthopedic surgeon,
diagnosed left hip degenerative joint disease. He noted that appellant’s left hip pain related back
to a January 2018 work injury when he injured his left hip while slipping and falling on ice.
Dr. Capeci reported that appellant returned to work in September 2019 following the January 2018
work injury. Appellant stopped work after three weeks as his pain progressively worsened. He
explained that appellant had left hip arthritis in the setting of his 2018 left hip injury and labral
tear.
In a letter dated February 19, 2020, the employing establishment requested OWCP
adjudicate appellant’s recurrence claim as a new occupational disease claim based on his
identification of new work factors as the cause of his alleged condition. OWCP subsequently
converted the claim from a recurrence to an occupational disease claim.
By decision dated May 5, 2020, OWCP denied appellant’s occupational disease claim,
finding that the medical evidence did not demonstrate that the claimed condition was causally
related to the accepted employment factors.
On January 11, 2021 appellant, through counsel, requested reconsideration and submitted
an August 19, 2020 report from Dr. Capeci.
Dr. Capeci, in his August 19, 2020 report, summarized appellant’s treatment from June 4,
2018 through August 19, 2020. Diagnoses included status post left hip arthroscopy and left hip
degenerative joint disease. Dr. Capeci opined that it was reasonable to attribute appellant’s left
hip degenerative joint disease to the accepted January 10, 2018 employment injury.
By decision dated April 2, 2021, OWCP denied modification. It found that Dr. Capeci’s
report did not discuss the claimed work factors, but rather explained that appellant’s left hip
condition was caused by the traumatic event of January 10, 2018, which was already accepted for
left hip strain and was currently open for medical care.

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The Board, having duly considered the matter, finds that the case is not in posture for
decision.3
The Board finds that OWCP’s procedures provide that cases should be administratively
combined when correct adjudication of the issues depends on frequent cross-referencing between
case files.4 For example, if a new injury case is reported for an employee who previously filed an
injury claim for a similar condition or the same part of the body, doubling is required.5
As OWCP File Nos. xxxxxx572 and xxxxxx514 both involve injuries to appellant’s left
hip, for a full and fair adjudication, the Board will remand the case to OWCP to administratively
combine the present claim with OWCP File No xxxxxx514.6 This will allow OWCP to consider
all relevant claim files and accompanying evidence in developing his current compensation claim.
Following this and other such further development as deemed necessary, OWCP sha ll issue a
de novo decision.

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The Board notes that appellant filed his claim as one for a recurrence of his accepted condition under OWCP File
No. xxxxxx514. Dr. Capeci reported that appellant’s current condition was causally related to appellant’s accepted
January 10, 2018 employment injury under OWCP File No. xxxxxx514. However, OWCP converted appellant’s
recurrence claim, which was filed within 90 days of the first return to work, to a claim for occupational disease and
denied it as appellant had not established causal relationship. In cases where a recurrence is claimed within 90 days
of the first return to duty, the focus is on disability rather than causal relationship of the accepted condition(s) to the
work injury. Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5 (June 2013); see
also R.E., Docket No. 20-0421 (issued May 17, 2021); R.W., Docket No. 17-0720 (issued May 21, 2018).
4

R.R., Docket No. 19-0368 (issued November 26, 2019); Federal (FECA) Procedure Manual, Part 2 -- Claims, File
Maintenance & Management, Chapter 2.400.8c (February 2000).
5

L.B., Docket No. 21-0241 (issued October 28, 2021).

6

T.T., Docket No. 21-0049 (issued May 3, 2021); S.D., Docket No. 19-0590 (issued August 28, 2020).

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IT IS HEREBY ORDERED THAT the April 2, 2021 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this order of the Board.
Issued: March 16, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
NAVAL RESERVE OFFICERS TRAINING
CORPS UNIT, UNIVERSITY OF TEXAS
AUSTIN RAS 104, Austin, TX, Employer
__________________________________________

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

Docket No. 09-1630
Issued: April 14, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On June 10, 2009 appellant filed a timely appeal from a May 15, 2009 merit decision of
the Office of Workers’ Compensation Programs, denying modification of a January 6, 2009
decision that denied her claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that she sustained an injury in the performance
of duty.
FACTUAL HISTORY
On November 5, 2008 appellant, a 67-year-old human resource assistant, filed an
occupational disease claim (Form CA-2) alleging that she sustained nasal stuffiness, cough, eye
irritation, wheezing, skin irritation, muscular aches and shortness of breath while working. She
alleges that these symptoms affected her short-term memory, collapsed her muscles and

damaged her nerves. Appellant also alleges that she was exposed to black mold at her place of
work. She alleged that the employing establishment’s ventilation ducts were contaminated.
Appellant alleged that the contamination was not visible and that no precautions were taken
because no one was aware of the contamination. She first became aware of her condition on
February 14, 2005 and realized her condition was caused by her employment on
September 15, 2008.
On February 5, 2005 Dr. Eugene C. Lai, a Board-certified neurologist, reported findings
on examination, a review of appellant’s medical history and diagnosed pain.
On February 20, 2005 Dr. Anthony M. Masaryk, a Board-certified diagnostic radiologist
reported that a magnetic resonance imaging (MRI) scan of appellant’s spine revealed evidence of
prior surgery at the L2-3 and L4-5 levels. He noted the presence of degenerative changes and
evidence of neural impingement at both levels.
Also on February 20, 2005 Dr. Sami M. Aboumatar, a Board-certified neurologist,
presented findings on examination, a review of appellant’s medical history and diagnosed
radiculopathy and bilateral polyneuropathy of unknown etiology.
Appellant submitted a February 22, 2005 report in which Dr. Frederick Dixon, Boardcertified internist, reported that an echocardiogram produced an “essentially normal study.”
In a February 24, 2005 report, Dr. Donovan H. Sigerfood, a Board-certified internist,
diagnosed fever of unknown etiology with polyneuropathy and muscular weakness in appellant’s
lower extremities, ataxia, hyperthyroidism and lumbar disc disease.
In a February 26, 2005 report, Dr. Marlin E. Sandlin, a Board-certified diagnostic
radiologist, reported that an MRI scan of appellant’s lumbar spine revealed spondylosis, disc
protrusion at L4-5 and disc extrusion at the L2-3 level. He also reported that an MRI scan of
appellant’s cervical spine revealed spondylosis with “moderate-to-marked” spinal stenosis.
On March 11, 2005 Dr. Sandlin reported that an MRI scan of appellant’s spine revealed
cervical spondylosis without stenosis. Moreover, an MRI scan of appellant’s lumbar spine
revealed degenerative changes at multiple levels.
In a March 15, 2005 report, Dr. Lai, a Board-certified neurologist, reported findings on
examination, reviewed appellant’s history of injury and diagnosed viral menigomyelitis.
Appellant submitted a March 17, 2005 report, Dr. Thomas A. Hill, a Board-certified
neurologist, diagnosed gait dysfunction, hypothyroidism and spinal stenosis.
In an April 10, 2005 report, Dr. Howard B. Weiss, Board-certified in physical medicine
and rehabilitation, diagnosed polyradiculopathy with lower extremity paraparesis, possible
encephalomyelitis, possible transverse myelitis, gait dysfunction, urinary retention and possible
loss of bowel control, depression and hypothyroidism.
By note dated November 3, 2008, Dr. Dale Ericsson, a Board-certified neurologist,
reported that he was treating appellant for a chronic inflammatory demyelinating polyneuropathy

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(CIDP) like syndrome after she sustained an illness resembling viral encephalitis. He opined that
the symptoms were “consistent with toxic mold syndrome.”
In a December 3, 2008 note, appellant relates that she was unaware that black mold
exposure was an issue until third parties inquired if she had been tested for black mold exposure.
She reported that following an August 2008 airplane ride she searched the internet for “black
mold” and reported that the symptoms “fit [her] to a ‘T.’” Appellant noted that it was only after
September 15, 2008 that she learned that she tested positive for black mold.
Appellant submitted a December 4, 2008 report from Dr. Dennis G. Hooper, anatomic
and clinical pathologist, in which she tested positive for two mycotoxins. Dr. Hooper
recommended testing her residence and place of employment for the presence of these toxins.
By decision dated January 6, 2009, the Office denied the claim because the evidence of
record did not establish that appellant sustained an injury as defined by the Federal Employees’
Compensation Act.
In a January 26, 2009 note, Dr. Ericsson noted treating appellant for CIDP following viral
encephalitis and exposure to toxic mold. He noted that she initially had acute inflammatory
demyelinating polyneuropathy with quadriplegia that was “probably [the] result of toxic mold
exposure.”
Appellant submitted a February 15, 2009 note from John S. Cipparone, Colonel, U.S.
Marine Corps (retired), who reported:
“Throughout my duties as the Commanding Officer [sic] of UT’s NROTC from
August 1997 [thru] July 2000, I did not discern any of my staff exposed to black
mold since I was not aware of any visible or nonvisible conditions associated with
such a hazard.”
On April 20, 2009 appellant requested reconsideration.
By decision dated May 15, 2009, the Office denied modification of its January 6, 2009
decision because the evidence of record did not establish that she was exposed to toxic
substances at work and therefore the factual component of her claim had not been met.
LEGAL PRECEDENT
An employee seeking benefits under the Act1 has the burden of proof to establish the
essential elements of her claim by the weight of the evidence,2 including that she sustained an
injury in the performance of duty and that any specific condition or disability for work for which

1

5 U.S.C. §§ 8101-8193.

2

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
58 (1968).

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she claims compensation is causally related to that employment injury.3 As part of her burden,
the employee must submit rationalized medical opinion evidence based on a complete factual
and medical background showing causal relationship.4 The weight of medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of the analysis
manifested and the medical rationale expressed in support of the physician’s opinion.5
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.6
ANALYSIS
Appellant alleged that her condition was caused by exposure to black mold. When an
employee claims that she sustained an injury in the performance of duty, she must submit
sufficient evidence to establish that she experienced a specific event, incident or exposure
occurring at the time, place and in the manner alleged. Appellant must also establish that such
event, incident or exposure caused an injury.7 She has not submitted the necessary evidence to
prima facie establish that the alleged exposure occurred in a specific time, place and manner.
Appellant has not alleged the time frame of her exposure to the black mold, the location of the
black mold within the employing establishment or how her exposure to the alleged mold
occurred. The employing establishment denied that any black mold was present in its facilities
or that any of its employees were exposed to black mold. The Board finds the evidence of record
insufficient to establish that appellant sustained actual exposure to toxic substances in the course
of her federal employment and therefore the factual component of her claim has not been
satisfied.8
The circa 2005 medical evidence appellant submitted lacks probative value because it
does not concern treatment or diagnosis of conditions caused by exposure to black mold. These
medical reports lack rationalized opinions explaining how any of the conditions they diagnosed
3

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143,
1145 (1989).
4

G.T., supra note 3; Nancy G. O’Meara, 12 ECAB 67, 71 (1960).

5

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

6

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

7

See E.A., 58 ECAB 677 (2007); Arthur C. Hamer, 1 ECAB 62 (1947).

8

Appellant submitted reports from a physical therapist. Because healthcare providers such as nurses,
acupuncturists, physician’s assistants and physical therapists are not considered physicians under the Act, their
reports and opinions do not constitute competent medical evidence. 5 U.S.C. § 8101(2); see also G.G., 58 ECAB
389 (2007); Jerre R. Rinehart, 45 ECAB 518 (1994); Barbara J. Williams, 40 ECAB 649 (1989); Jan A. White,
34 ECAB 515 (1983). Thus, the physical therapy reports appellant submitted have no probative medical value.

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were caused by employment-related black mold exposure if any black mold exposure actually
occurred while appellant was at work. Appellant’s notes also lack probative evidentiary value
because they do not identify employment factors she considers responsible for her condition or
her alleged employment-related exposure to black mold. Thus this evidence is insufficient to
satisfy appellant’s burden of proof.
Dr. Hooper reported that appellant tested positive for two mycotoxins and recommended
that her residence and place of employment be tested for the presence of those toxins. The
record does not contain any evidence demonstrating that her residence or place of employment
were tested for the presence of toxic mold nor is there evidence demonstrating that either
location tested positive for toxic mold. There is no evidence of record demonstrating that
appellant was exposed to black mold in the workplace and Dr. Hooper did not provide any
opinion that she sustained an identifiable medical condition due to exposure to black mold.
Dr. Ericsson opined that appellant’s symptoms were “consistent with toxic mold
syndrome.” He also opined that appellant’s condition was “probably [the] … result of toxic
mold exposure.” However, these are equivocal statements and therefore are of diminished
probative value.9 There is no evidence of record demonstrating that appellant was exposed to
toxic mold in the workplace and Dr. Ericsson did not provide any opinion that appellant
sustained an identifiable medical condition due to exposure to toxic mold.
Furthermore, the reports and notes from Drs. Hooper and Ericsson do not contain a
rationalized medical opinion explaining how appellant’s alleged condition was caused by
specific employment factors.10 Rationalized medical opinion evidence is medical evidence
which includes a physician’s rationalized opinion on whether there is a causal relationship
between the employee’s diagnosed condition and the compensable employment factors. The
opinion of the physician must be based on a complete factual and medical background of the
employee, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the employee.11 Dr. Hooper’s and Dr. Ericsson’s
reports and notes are not based on an accurate history of exposure, do not reveal a basis for any
exposure timeline or contain an opinion on the conditions at the employing establishment. Their
reports and notes also lack opinion explaining the nature of the relationship between a diagnosed
condition and specific employment factors identified by appellant. These deficiencies reduce the
probative value of the physicians’ opinions such that their reports and notes are insufficient to
satisfy appellant’s burden of proof.

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.3(g) (April 1993).
10

See Mary E. Marshall, 56 ECAB 420 (2005) (medical reports that do not contain rationale on causal
relationship have little probative value). See also Franklin D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52
ECAB 332 (2001).
11

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).

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An award of compensation may not be based on surmise, conjecture or speculation.12
Appellant has the burden of establishing each element of her claim. Here, she has not produced
evidence sufficient to establish the factual element of her claim and therefore the Board finds
that she has not established that she sustained an injury in the performance of duty.
CONCLUSION
The Board finds that appellant has not established that she sustained an injury in the
performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the May 15 and January 6, 2009 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: April 14, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

12

See also Edgar G. Maiscott, 4 ECAB 558 (1952) (holding appellant’s subjective symptoms do not, in the
opinion of the Board, constitute evidence of a sufficiently substantial nature).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Francisco, CA, Employer
__________________________________________

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

Docket No. 17-1312
Issued: September 20, 2017

Case Submitted on the Record

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

JURISDICTION
On May 30, 2017 appellant filed a timely appeal from a December 23, 2016 merit
decision and a February 23, 2017 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish a neck
condition causally related to factors of her federal employment; and (2) whether OWCP properly
denied appellant’s request for further merit review of her claim under 5 U.S.C. § 8128(a).

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2

5 U.S.C. § 8101 et seq.

The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its final
decision. Thus, the Board may not consider the new evidence. See 20 C.F.R. § 501.2(c)(1). On appeal, appellant
submitted new medical evidence from Dr. Paul Slosar, a Board-certified orthopedic surgeon, and contends that this
evidence supports her work-related injury.

FACTUAL HISTORY
On November 2, 2016 appellant, then a 47-year-old sales/service and distribution
associate, filed an occupational disease claim (Form CA-2) alleging that she sustained a neck
injury caused or aggravated by processing and receiving parcels about six hours a day, six days a
week, and weighing letters and parcels throughout the day with her arms and hands. She became
aware of her condition on October 29, 2016 and realized its relationship to her employment on
October 31, 2016. Appellant did not stop work. She and the employing establishment also
submitted documents and correspondence regarding the filing of her claim and receipt of
physical therapy.
By letter dated November 16, 2016, OWCP advised appellant of the deficiencies of her
claim and afforded her 30 days to submit medical evidence in support of her claim.
OWCP received a November 3, 2016 cervical spine x-ray report in which Dr. Christopher
Yoo, a Board-certified radiologist, provided an impression of mild-to-moderate degenerative disc
disease in the mid-cervical spine. Dr. Yoo found no fracture or mal-alignment. He
recommended a magnetic resonance imaging (MRI) scan of the cervical spine if pain persisted.
In a November 16, 2016 cervical spine MRI scan report, Dr. Yoo provided an impression of
multi-level degenerative disc disease from C3-Tl, notable for multiple disc protrusions which
caused mild effacement of the anterior aspect of the cord at C3-4, C4-5, and C5-6, but no cord
edema. He also provided an impression of posterior ossific ridge and uncovertebral hypertrophy
at C5-6 resulting in severe left foraminal narrowing.
OWCP received an undated attending physician’s report (Form CA-20) in which
Dr. Herminigildo V. Valle, a Board-certified internist, noted a November 2, 2016 date of injury.
Dr. Valle discussed examination findings and diagnosed cervicalgia neuropathy. In response to
the form question as to whether the diagnosed condition was caused or aggravated by an
employment activity, he wrote “unknown.” Dr. Valle advised that appellant was totally disabled
for the period November 21 to December 12, 2016. In a November 3, 2016 prescription, he
maintained that appellant was medically unable to work on that day. Dr. Valle reiterated, in a
prescription dated November 17, 2016, that she was medically unable to work from
November 21 to December 12, 2016.
By decision dated December 23, 2016, OWCP denied appellant’s claim finding that the
medical evidence of record failed to establish that her diagnosed condition was causally related
to her established work duties.
In an appeal request form received on February 14, 2017, appellant requested
reconsideration. She did not submit any additional evidence.
In a decision dated February 23, 2017, OWCP denied further merit review of appellant’s
claim. It found that her request for reconsideration neither raised substantive legal questions nor
included relevant and pertinent new evidence.

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LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.4 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.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.6
The medical evidence required to establish causal relationship is rationalized medical
opinion evidence. The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable certainty, and must be supported by
medial rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the employee.7
ANALYSIS -- ISSUE 1
It is undisputed that appellant performed repetitive duties of a sales service
associate/distribution, which involved processing and receiving parcels and weighing letters and
parcels. The Board finds, however, that the medical evidence of record is insufficient to
establish that she sustained a neck condition caused or aggravated by the accepted work factors.
Dr. Valle’s in his Form CA-20 report, diagnosed cervicalgia neuropathy, but that it was
unknown whether her employment caused her cervical condition. Further, Dr. Valle also did not
offer an opinion addressing whether the accepted employment factors caused appellant’s total
disability for the period November 21 to December 12, 2016. The Board has held that 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 His remaining prescription notes
3

Supra note 1.

4

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

5

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB 153 (1989).

6

Id.

7

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, id.

8

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006).

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dated November 3 and 17, 2016 addressed appellant’s work capacity, but failed to offer a
specific opinion as to whether the established employment factors caused or aggravated
appellant’s condition and resultant disability.9 For these reasons, the Board finds that Dr. Valle’s
report and prescriptions are of diminished probative value.
Similarly, Dr. Yoo’s diagnostic test results are of diminished probative value as they
failed to offer an opinion on whether appellant’s diagnosed cervical conditions were caused or
aggravated by the established employment factors.10
The Board finds that appellant has failed to submit any rationalized, probative medical
evidence sufficient to establish a neck injury causally related to the established employment
factors. Appellant, therefore, did not meet her burden of proof.
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.
LEGAL PRECEDENT -- ISSUE 2
Section 8128 of FECA vests OWCP with a discretionary authority to determine whether
it will review an award for or against compensation, either under its own authority or on
application by a claimant.11 Section 10.608(b) of OWCP’s regulations provide that a timely
request for reconsideration may be granted if OWCP determines that the claimant has presented
evidence and/or argument that meet at least one of the standards described in section
10.606(b)(3).12 This section provides that the application for reconsideration must be submitted
in writing and set forth arguments and contain evidence that either: (1) shows that OWCP
erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument
not previously considered by OWCP; or (3) constitutes relevant and pertinent new evidence not
previously considered by OWCP.13 Section 10.608(b) provides that when a request for
reconsideration is timely but fails to meet at least one of these three requirements, OWCP will
deny the application for reconsideration without reopening the case for a review on the merits.14
ANALYSIS -- ISSUE 2
Appellant disagreed with OWCP’s denial of her occupational disease claim for a neck
injury causally related to the established factors of her employment. On February 14, 2017 she
requested reconsideration.

9

Supra note 7.

10

Id.

11

5 U.S.C. § 8128(a).

12

20 C.F.R. § 10.608(a).

13

Id. at § 10.606(b)(3).

14

Id. at § 10.608(b).

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The Board finds that appellant did not show that OWCP erroneously applied or
interpreted a specific point of law, advance a relevant legal argument not previously considered
by OWCP, or provide relevant and pertinent new evidence not previously considered by OWCP.
Appellant’s February 14, 2017 reconsideration request consisted only of a checkmark on
an appeal request form indicating that she wanted reconsideration. She did not offer any
argument or submit any evidence in support of her request. Appellant suggested no reason for
OWCP to reconsider the denial of her occupational disease claim. Such a bare request is
insufficient to warrant a reopening of her case.15
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof to establish a neck
condition causally related to factors of her federal employment. The Board further finds, that
OWCP properly refused to reopen her case for further merit review of her claim pursuant to 5
U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the February 23, 2017 and December 23, 2016
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: September 20, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

15

See I.J., Docket No. 16-1380 (issued November 22, 2016); L.B., Docket No. 14-2064 (issued February 3,
2015); J.A., Docket No. 14-1447 (issued October 21, 2014).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.H., Appellant
and
DEPARTMENT OF COMMERCE, U.S.
CENSUS BUREAU MCA REGIONAL OFFICE
NEW YORK, New York, NY, Employer
__________________________________________

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

Docket No. 21-1220
Issued: March 17, 2022

Case Submitted on the Record

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

JURISDICTION
On August 9, 2021 appellant filed a timely appeal from a July 15, 2021 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case. 2

1

5 U.S.C. § 8101 et seq.

2

The Board notes that, following the July 15, 2021 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

1

ISSUE
The issue is whether appellant has met her burden of proof to establish a diagnosed medical
condition causally related to the accepted February 27, 2021 employment incident.
FACTUAL HISTORY
On March 2, 2021 appellant, then a 59-year-old miscellaneous clerk, filed a traumatic
injury claim (Form CA-1) alleging that on February 27, 2021 she bruised her right knee and
overextended her right arm when she slipped and fell on ice when she leaned over to place a notice
on the door, while in the performance of duty. On the reverse side of the claim form, appellant’s
supervisor acknowledged that she was injured in the performance of duty. Appellant stopped work
on February 27, 2021 and returned to work on February 28, 2021.
In a development letter dated March 5, 2021, OWCP informed appellant of the deficiencies
of her claim. It advised her of the type of additional evidence was necessary to establish her claim
and provided a questionnaire for her completion. OWCP afforded appellant 30 days to submit the
necessary evidence.
On March 25, 2021 appellant submitted a March 22, 2021 response to OWCP’s
development questionnaire. She attested that she was placing a notice on the garage door when
she slipped and fell on ice. Appellant felt a sharp pain in her right kneecap and right upper arm
and subsequently notified her supervisor and sought medical care. She also attested that she did
not have similar disability or symptoms prior to her fall.
Appellant submitted a medical report dated February 27, 2021 from Dr. Julie Stein, a
Board-certified family medicine specialist. Dr. Stein related that appellant was seen for knee pain
after a fall.
OWCP received two x-ray reports dated February 27, 2021 from Dr. Reed Thomas, an
internist and pulmonary disease specialist, which found no fracture in appellant’s knees or right
humerus.
Appellant submitted the first page of a four-page after-visit summary dated March 8, 2021,
which reflected that she was seen that day by Dr. Cyril Kozak, a Board-certified family practice
specialist. The document indicated that “issues were addressed: contusion of right knee,
subsequent encounter; and muscle strain of right upper arm, subsequent.”
By decision dated April 6, 2021, OWCP accepted that the February 27, 2021 employment
incident occurred, as alleged, but denied appellant’s claim, finding that she had not submitted
medical evidence containing a medical diagnosis in connection with her accepted employment
incident. It concluded, therefore, that the requirements had not been met to establish an injury as
defined by FECA.
On April 12, 2021 appellant requested reconsideration of OWCP’s April 6, 2021 decision.
In support of her claim, she submitted a report dated February 27, 2021 from Dr. Joyce Burton, an
osteopath specializing in internal medicine. Dr. Burton related that appellant slipped on ice and
fell on her right knee with her arm out in front of her. She diagnosed knee pain.
2

By decision dated July 15, 2021, OWCP denied modification of its April 6, 2021 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning FECA, that the claim was timely filed within the applicable time
limitation period of FECA, 4 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury. 5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a fact of injury has been established.
There are two components involved in establishing fact of injury. The first co mponent to be
established is that the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time and place, and in the manner alleged. The second
component is whether the employment incident caused a personal injury and can be established
only by medical evidence.7
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.8 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee. 9

3

Id.

4

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
9

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).

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ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a diagnosed
medical condition causally related to the accepted February 27, 2021 employment incident.
In support of her claim, appellant submitted February 27, 2021 reports from Dr. Stein and
Dr. Burton, who diagnosed right knee pain. The Board has held that pain is a symptom and not a
compensable medical diagnosis. 10 These reports are, therefore, insufficient to establish a diagnosis
causally related to the accepted employment incident.
The first page of four-page after-visit summary dated March 8, 2021 indicated that
Dr. Kozak addressed appellant’s issues of right knee contusion and muscle strain of the right upper
arm. It, however, did not offer a diagnosis. The Board has held that medical evidence lacking a
firm diagnosis is of no probative value.11 Therefore, this document has no probative value and is
insufficient to establish a diagnosis causally related to the accepted employment incident.
OWCP also received diagnostic test reports. The Board has held, however, that diagnostic
test reports, standing alone, lack probative value as they do not provide an opinion on causal
relationship between the employment incident and a diagnosed condition.12 These reports are,
therefore, insufficient to establish appellant’s claim.
As there is no medical evidence of record establishing a diagnosed medical condition
causally related to the accepted February 27, 2021 employment incident, the Board finds that
appellant has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a diagnosed
medical condition causally related to the accepted February 27, 2021 employment incident.

10

A.G., Docket No. 20-1319 (issued May 19, 2021); T.S., Docket No. 20-0343 (issued July 15, 2020).

11

L.T., Docket No. 20-0582 (issued November 15, 2021); W.G., Docket No. 20-0439 (issued July 13, 2020); R.L.,
Docket No. 20-0284 (issued June 30, 2020); P.C., Docket No. 18-0167 (issued May 7, 2019).
12

See W.M., Docket No. 19-1853 (issued May 13, 2020); L.F., Docket No. 19-1905 (issued April 10, 2020).

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ORDER
IT IS HEREBY ORDERED THAT the July 15, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 17, 2022
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.P., Appellant
and
DEPARTMENT OF STATE, FOREIGN
SERVICE, NEAR EASTERN AFFAIRS -OVERSEAS, Washington, DC, Employer
__________________________________________

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

Docket No. 14-601
Issued: June 19, 2014

Case Submitted on the Record

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

JURISDICTION
On January 16, 2014 appellant filed a timely appeal from a July 26, 2013 decision of the
Office of Workers’ Compensation Programs (OWCP) denying his request for merit review of the
claim. As more than 180 days have elapsed from the last merit decision dated December 14,
2012 to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board does not have jurisdiction over the merits of this
case.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review on the merits pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 17, 2010 appellant then a 55-year-old information management specialist
deployed to Iraq, filed a traumatic injury claim. On August 16, 2010 he was outside by the
generators when the Phalanx missile defense system began firing, and he heard a loud explosion
nearby and ran for cover. Appellant tripped while running and fell to the ground and felt severe
pain in his lower back. On September 13, 2010 he returned to the United States. On October 9,
2010 appellant had an x-ray of the lumbar spine which showed fractures at L2 and L3.
On October 21, 2010 OWCP accepted appellant’s claim for a sprain of the lumbar region.
On April 16, 2012 it accepted a compression fracture at L2-3 and the Kyphoplasty surgical
procedure at L2-3, performed on October 14, 2010 by Dr. Patrick J. Murray, a treating Boardcertified orthopedic surgeon.
Appellant also claimed compensation for a compression fracture T11-12 and for surgery
to treat this condition. On November 7, 2010 Dr. Robb Hoehlein, a Board-certified radiologist,
noted a new T12 compression fracture and variegated marrow pattern consistent with appellant’s
multiple myeloma. In a December 8, 2010 report, Dr. George L. Cohan, an OWCP medical
adviser, opined that the compression factures at T11 and T12 were not related to the injury of
August 16, 2010. He noted that the claimant had a serious bone marrow and bone disease that
could cause vertebral fractures and that his fractures were related to the disease. Appellant also
submitted treatment notes by a physician’s assistant who worked for Dr. Murray. On
December 9, 2010 he underwent a balloon Kyphoplasty for T11, T12 and L1. Dr. Michael S.
Olin, a Board-certified neurosurgeon, who provided a second opinion for OWCP, advised that
the medical records did not support that the new compression fractures of T11 and 12 were
related to the accepted fall in August 2010.
By decision dated April 16, 2012, OWCP denied coverage for the Kyphoplasty procedure
at T11 and T12. It found that the thoracic spine fractures were not causally related to the
accepted work injury.
Appellant requested an oral hearing before an OWCP hearing representative. In an
October 3, 2011 report, Dr. Murray opined that appellant sustained pathological compression
fractures secondary to the injury sustained in the course of his employment in Iraq. He first met
appellant on October 14, 2010 and subsequent investigation demonstrated the presence of
compression fractures at L2 and L3. In December, appellant developed further compression
fractures of T11, T12 and L1. In an October 24, 2012 report, Dr. Murray agreed with Dr. Olin,
who opined that the Kyphoplasty surgical procedure performed at T11 and T12 was necessitated
not as a result of appellant’s injury in Iraq, but as a result of the myeloma disease process. While
he agreed with Dr. Olin, it could also be argued that there was an increased incidence of
compression fractures in the diseased bone secondary to Kyphoplasty alone. Dr. Murray also
stated that the most common fracture which occurred following balloon Kyphoplasty was at the
adjacent level. In appellant’s case, this was not only at L1 but at T11 and T12 as well.
Dr. Murray noted that it could be argued that had appellant not fallen in the course of his
employment, his disease might well have been diagnosed not due to the compression fracture but
due to the anemia which he was suffering when he arrived home. By decision dated
December 14, 2012, the hearing representative affirmed the April 16, 2012 decision.

2

By letter dated April 24, 2013, appellant requested reconsideration of the December 14,
2012 decision. He resubmitted an April 26, 2011 note by the physician’s assistant for
Dr. Murray, countersigned by Dr. Murray. The physician’s assistant noted that on October 14,
2010 appellant had a diagnosis of vertebral compression fracture at L2 and L3 and on
October 14, 2010, underwent a Kyphoplasty at L2 and L3. At a follow-up appointment, a
compression fracture at L1, T11 and T12 was observed and he underwent a Kyphoplasty at L1,
T12 and T11 on December 9, 2010. The report stated, “Please accept and review our records
from our office regarding his condition that stems from when he first fell and fractured his spine
in Iraq.” On February 28, 2013 Dr. Murray discussed appellant’s injury and the delay in
obtaining an x-ray. He noted that appellant’s acute back pain began after the fall. Although
Dr. Murray was not 100 percent certain that the compression fractures were caused by
appellant’s fall, it was reasonable to speculate that the fall caused his symptoms of acute back
pain, which he experienced immediately after the fall. He noted that one could speculate that
had an adequate investigation began between August and October 2010, appellant’s diagnosis of
multiple myeloma might have been made sooner. Had appellant received treatment for his
multiple myeloma sooner, the fractures of T11, T12 and L1 might not have occurred.
Dr. Murray noted that appellant was undoubtedly suffering from multiple myeloma when he fell
in August.
By decision dated July 26, 2013, OWCP denied further reconsideration.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.3 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.4 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.5
ANALYSIS
OWCP accepted appellant’s claim for compression fractures at L2 and L3 and approved
the surgery. It denied appellant’s claim for compression fractures at T11 and T12, and denied
surgery to treat this condition in a decision dated April 16, 2012. This determination was
affirmed by the hearing representative, a decision which was affirmed by an OWCP hearing
2

5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
3

20 C.F.R. § 10.606(b)(3).

4

Id. at § 10.607(a).

5

Id. at § 10.608(b).

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representative on December 14, 2012. As noted, the Board does not have jurisdiction over the
merits of the claim and may only address whether appellant’s request for reconsideration was
properly denied without merit review.6
Appellant requested reconsideration and submitted a copy of a report by Dr. Murray’s
physician’s assistant. The report was previously of record but did not have Dr. Murray’s
countersignature until it was submitted on reconsideration.7 Appellant also submitted a note by
Dr. Murray dated February 28, 2013. Dr. Murray discussed his treatment of appellant’s injuries
and discussed the progression of appellant’s myeloma. However, the newly submitted report is
repetitive of Dr. Murray’s prior reports. The Board has held that evidence which is duplicative
or repetitive of evidence existing in the record is not sufficient to warrant further merit review.8
As this evidence is repetitive of Dr. Murray’s earlier reports, it does not constitute relevant and
pertinent new medical evidence and is insufficient to require OWCP to reopen appellant’s case
for further review of the merits.
The Board finds that appellant has not shown that OWCP erroneously applied or
interpreted a specific point of law, has not advanced a relevant legal argument not previously
considered by OWCP, and has not submitted relevant and pertinent new evidence not previously
considered by OWCP. Accordingly, the Board finds that he did not meet any of the necessary
requirements and is not entitled to further merit review.9
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review on the merits pursuant to 5 U.S.C. § 8128(a).

6

Id. at § 501.3(e).

7

The Board has held that such persons as physician’s assistants and physical therapists are not competent to
render a medical opinion under FECA. See David P. Sawchuk, 57 ECAB 316 (2006) (lay individual such as
physician’s assistants, nurses and physical therapists are not competent to render a medical opinion under FECA);
5 U.S.C. § 8101(2) (this subsection defines a physician as surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined by State law).
8

L.T., Docket No. 09-1798 (issued August 5, 2010); L.H., 59 ECAB 253 (2007); Jennifer A. Guillary, 57 ECAB
485 (2005).
9

See L.H., 59 ECAB 253 (2007).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 26, 2013 is affirmed.
Issued: June 19, 2014
Washington, DC

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

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

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

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