United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
S.K., Appellant
and
U.S. POSTAL SERVICE, MAIN OFFICE
LONG ISLAND CITY POST OFFICE,
Long Island City, NY, Employer
_________________________________________

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

Docket No. 20-0102
Issued: June 12, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 10, 2019 appellant filed a timely appeal from an April 17, 2019 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
2

5 U.S.C. § 8101 et seq.

The Board notes that following the April 17, 2019 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.

ISSUE
The issue is whether appellant has met her burden of proof to establish a lumbar, right hip,
or right leg condition causally related to the accepted January 30, 2019 employment incident.
FACTUAL HISTORY
On February 1, 2019 appellant, then a 65-year-old clerk, filed a traumatic injury claim
(Form CA-1) alleging that on January 30, 2019 she experienced pain in the right hip and leg after
lifting a bag of parcels while in the performance of duty. On the reverse side of the claim form,
the employing establishment acknowledged that she was injured in the performance of duty.
Appellant did not stop work.
In a February 25, 2019 development letter, OWCP informed appellant that the evidence of
record was insufficient to establish her claim. It advised her of the type of factual and medical
evidence needed and provided a questionnaire for her completion. OWCP afforded appellant 30
days to submit the necessary evidence.
In a February 6, 2019 attending physician’s report (Form CA-20), Dr. David Guha, a
specialist in internal medicine, diagnosed right hip and leg pain, with findings of mild degenerative
changes from excessive lifting and standing. He checked a box marked “Yes” to indicate that the
conditions were caused or aggravated by an employment activity and noted that appellant was not
advised to return to work.
Electromyography and nerve conduction velocity (EMG/NCV) test studies, dated
February 14, 2019, revealed evidence of right L5-S1 radiculopathy and bilateral tibial motor nerve
neuropathy.
In a February 14, 2019 report, Dr. Farshad Hannanian, a specialist in neurology, noted that
appellant was experiencing lumbar pain, right leg pain, and right hip pain after lifting a heavy bag
at work on January 30, 2019. He reviewed an x-ray of appellant’s right hip and the
electrodiagnostic testing and diagnosed post-traumatic lumbar myofascitis and post-traumatic
lumbar radiculopathy. Dr. Hannanian noted that appellant was totally disabled at that time. He
opined that the work-related accident was the “provocative cause” of appellant’s diagnosed
conditions and concluded that therefore there was a causal relationship between the diagnosed
conditions and the employment incident of January 30, 2019.
In a February 14, 2019 form report, Dr. Hannanian diagnosed lumbar radiculopathy, right
hip pain, and right leg pain. He checked a box marked “Yes” to indicate that the January 30, 2019
employment activity was the cause of appellant’s diagnosed conditions. Dr. Hannanian reported
that appellant was not currently working and noted that she needed magnetic resonance imaging
(MRI) scans of her lumbar spine and right hip to further assess her injury.
In an undated Form CA-20 report, Dr. Hannanian diagnosed lumbar radiculopathy and
checked a box marked “Yes” to indicate that the condition was caused or aggravated by an
employment activity. He noted that appellant had not been advised to return to work.

2

In a March 10, 2019 follow-up report, Dr. Hannanian noted that appellant sustained
injuries in a work-related incident on January 30, 2019. He further explained that appellant was
working, lifting a heavy bag to place it on a skid when she injured her lower back, right hip, and
leg. Dr. Hannanian examined appellant and diagnosed post-traumatic lumbar myofascitis and
post-traumatic lumbar radiculopathy. He again opined that there was a causal relationship between
the January 30, 2019 employment incident and appellant’s diagnosed conditions.
In a March 10, 2019 letter, Dr. Hannanian noted that he was treating appellant for lumbar
pain, hip pain, and leg pain. He recommended that appellant not return to work until further
evaluation.
In a March 25, 2019 state workers’ compensation form report, Dr. Hannanian diagnosed
lumbar radiculopathy, right hip pain, and right leg pain. He checked a box marked “Yes” to
indicate that the January 30, 2019 employment incident was the medical cause of appellant’s
diagnosed conditions. Dr. Hannanian reported that appellant was not working at that time.
In an April 11, 2019 letter, Dr. Hannanian again noted that he was treating appellant for
lumbar pain, hip pain, and leg pain and recommended that appellant not return to work until further
evaluation. He indicated that he would reevaluate appellant on May 9, 2019.
By decision dated April 17, 2019, OWCP denied appellant’s traumatic injury claim finding
that the medical evidence of record was insufficient to establish a causal relationship between
appellant’s diagnosed conditions and the accepted January 30, 2019 employment incident.
LEGAL PRECEDENT
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 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 if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components that must be considered in conjunction with one another. The first
3

Supra note 1.

4

G.L., Docket No. 18-1057 (issued April 14, 2020); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
5

M.G., Docket No. 18-1616 (issued April 9, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB
312 (1988).
6
20 C.F.R. § 10.115; A.S., Docket No. 19-1955 (issued April 9, 2020); L.M., Docket No. 13-1402 (issued
February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).

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component is whether the employee actually experienced the employment incident that allegedly
occurred.7 The second component is whether the employment incident caused a personal injury.8
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.9 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 incident identified by the claimant.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a lumbar, right
hip, or right leg condition causally related to the accepted January 30, 2019 employment incident.
In support of her claim, appellant submitted a February 6, 2019 Form CA-20 report from
Dr. Guha who diagnosed right hip and leg pain with findings of mild degenerative changes. In
this report, Dr. Guha checked a box marked “Yes” to indicate that the conditions were caused or
aggravated by an employment activity. The Board has held that when a physician’s opinion on
causal relationship consists only of checking “yes” to a form question, without explanation or
medical rationale, that opinion is of diminished probative value.11 Accordingly, this report from
Dr. Guha is insufficient to establish appellant’s claim.
Similarly, in February 14 and March 25, 2019 form reports and an undated Form CA-20
report, Dr. Hannanian diagnosed lumbar radiculopathy, right hip pain, and right leg pain. In these
reports, he also checked a box marked “Yes” to indicate that the January 30, 2019 employment
incident was the medical cause of appellant’s diagnosed conditions. As previously explained,
when a physician’s opinion on causal relationship consists only of checking “yes” to a form
question, without explanation or medical rationale, that opinion is of diminished probative value.12
As such, these reports are also insufficient to establish appellant’s claim.
Appellant also submitted February 14 and March 10, 2019 reports from Dr. Hannanian
who diagnosed post-traumatic lumbar myofascitis and post-traumatic lumbar radiculopathy. In
these reports, Dr. Hannanian concluded that these diagnosed conditions were causally related to
the accepted employment incident. In his February 14, 2019 report, he noted that appellant’s
injuries were sustained in a January 30, 2019 work-related incident in which appellant lifted a
heavy bag to place on a skid. Dr. Hannanian opined that “with a reasonable degree of medical
certainty” he could state that the accepted employment incident was the “provocative cause” of
7

R.K., Docket No. 19-0904 (issued April 10, 2020); Elaine Pendleton, 40 ECAB 1143 (1989).

8

Y.D., Docket No. 19-1200 (issued April 6, 2020); John J. Carlone, 41 ECAB 354 (1989).

9

L.F., Docket No. 19-1905 (issued April 10, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

10

A.S., Docket No. 19-1955 (issued April 9, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

11

W.M., Docket No. 19-1853 (issued May 13, 2020).

12

Id.

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appellant’s diagnosed conditions. Although he supported causal relationship, he failed to provide
medical rationale explaining the basis of his conclusory opinion. Without explaining
physiologically how the accepted employment incident caused or aggravated the diagnosed
conditions, these reports are of limited probative value and are insufficient to establish appellant’s
claim.13
In March 10 and April 11, 2019 letters, Dr. Hannanian noted that he was treating appellant
for lumbar pain, hip pain, and leg pain and recommended that appellant not return to work until
further evaluation. In these letters, he did not offer a medical opinion as to whether appellant’s
diagnosed conditions were causally related to the accepted employment incident. The Board has
held that medical evidence that does not provide an opinion regarding the cause of an employee’s
condition is of no probative value on the issue of causal relationship.14 These letters from
Dr. Hannanian are therefore insufficient to establish appellant’s claim.
Appellant also submitted February 14, 2019 EMG/NCV test studies which revealed
evidence of right L5-S1 radiculopathy and bilateral tibial motor nerve neuropathy. The Board has
held, however, that diagnostic studies standing alone lack probative value on the issue of causal
relationship as they do not provide an opinion on causal relationship between an employment
incident and a diagnosed condition.15
As appellant has not submitted rationalized medical evidence explaining the causal
relationship between her diagnosed lumbar, right hip, or right leg condition and the accepted
January 30, 2019 employment incident, the Board finds that she 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 lumbar, right
hip, or right leg condition causally related to the accepted January 30, 2019 employment incident.

13

M.M., Docket No. 20-0019 (issued May 6, 2020).

14

Id.

15

Id.

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ORDER
IT IS HEREBY ORDERED THAT the April 17, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 12, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Dowagiac, MI, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 14-237
Issued: May 6, 2014

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

On November 8, 2013 appellant filed an application for review of an Office of Workers’
Compensation Programs’ (OWCP) decision dated October 16, 2013 which denied modification
of a decision terminating her compensation benefits.
The Board has duly considered the matter and finds that the case is not in posture for a
decision and must be remanded to OWCP. In the case of William A. Couch,1 the Board held that
when adjudicating a claim, OWCP is obligated to consider all evidence properly submitted by a
claimant and received by OWCP before the final decision is issued. Following an April 26, 2013
decision that denied modification of a January 16, 2013 decision terminating appellant’s
compensation benefits,2 appellant’s representative, requested reconsideration on July 25, 2013.
Appellant submitted a July 22, 2013 report from Dr. Ward who had treated her since 2010.
Dr. Ward opined that she should remain out of work until after her cervical spine surgery was
performed. He noted that appellant had a long-standing history of right C6 radiculopathy.
Dr. Ward advised that he previously released her to work because she requested a release to
1
2

41 ECAB 548 (1990).

The January 16, 2013 decision found that appellant’s physician, Dr. Robert Ward, an osteopath who opined that
appellant could return to work without restrictions, represented the weight of the evidence.

return to work without restrictions to try and keep her job. However, he noted that appellant was
unable to perform in that capacity and he returned her to work with restrictions. Dr. Ward noted
her most recent magnetic resonance imaging scan findings and that another physician
recommended neurosurgery. He noted these findings were consistent with appellant’s original
complaints of two years ago. This report was received by OWCP on July 25, 2013. In its
October 16, 2013 decision, OWCP denied modification of the January 16, 2013 decision. It
noted receipt of appellant’s reconsideration request and addressed evidence from Dr. Sonia Eden,
reports of injections and physical therapy reports, but it did not consider the July 22, 2013 report
from Dr. Ward.
The Board finds that OWCP did not review the July 22, 2013 report from Dr. Ward that
was received on July 25, 2013.3 For this reason, the case will be remanded to OWCP to enable it
to properly consider all the evidence submitted at the time of the October 16, 2013 decision.
Following such further development as OWCP deems necessary, it shall issue an appropriate
decision on the reconsideration request.
IT IS HEREBY ORDERED THAT the October 16, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case record is remanded to OWCP for
further proceedings consistent with this order of the Board.
Issued: May 6, 2014
Washington, DC

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

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

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

3

See Linda Johnson, 45 ECAB 439, 440 (1994) (where the Board held that it is necessary that OWCP review all
evidence submitted by a claimant and received by OWCP prior to issuance of its final decision).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Dallas, TX, Employer
__________________________________________

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Appearances:
Mark Doyle, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 06-1596
Issued: February 26, 2007

Case Submitted on the Record

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

JURISDICTION
On June 21, 2006 appellant, through counsel, filed a timely appeal of a March 28, 2006
merit decision of the Office of Workers’ Compensation Programs denying his claim that he
sustained a knee injury in the performance of duty. 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 sustained a right knee injury in the performance of duty.
FACTUAL HISTORY
On March 4, 1998 appellant, a 33-year-old letter carrier, filed a traumatic injury claim
alleging that on January 19, 1998 he sustained a right medial meniscus tear and torn acute

cruciate ligament tear due to squatting down while putting mail in a door slot.1 The employing
establishment controverted the claim noting that January 19, 1998 was a holiday so carriers were
all nonscheduled.2
On July 13, 1998 appellant filed an occupational disease claim alleging that on July 6,
1998 he first realized that his right knee condition was employment related.3 He first became
aware of his knee condition on February 18, 1998. With his claim appellant submitted reports
dated March 24 to July 6, 1998 from Dr. Robert W. Jackson, a treating physician, who diagnosed
right medial meniscus tear and partial right anterior cruciate ligament tear. As to the cause of
this condition, Dr. Jackson opined that “this type of pathology is completely consistent with a
squatting injury.”
In response to the Office’s request for information, appellant addressed his duties as a
letter carrier. He related that, around January 15, 1998, he heard his right knee pop after
squatting to deliver mail. Appellant’s right knee became painful but he thought he would walk it
off.
By decision dated October 23, 1998, the Office denied appellant’s claim on the grounds
that fact of injury was not established. The Office found the evidence insufficient to support
appellant’s claim that he sustained a traumatic injury on January 15, 1998.
Appellant requested an oral hearing which was held on May 25, 1999. At the hearing he
submitted a May 13, 1999 report from Dr. Jackson. He related that appellant’s injury was
“completely consistent with a squatting injury associated usually with some minor rotational
movement.” Dr. Jackson described the mechanism by which squatting can cause a medial
meniscus tear, stating: “there is no question in my mind that this injury was caused by his
employment.”
In a decision dated July 1, 1999, an Office hearing representative affirmed the
October 23, 1998 decision.
On November 30, 2000 the Board issued an order dismissing appellant’s appeal on the
basis that no attorney authorization form had been submitted.4 In a letter dated December 3,
1999, appellant submitted an attorney authorization form. On June 18, 2001 the Board reinstated
his appeal. On July 30, 2003 the Board issued an order remanding the case for reconstruction
and proper assemblage of the record.

1

This traumatic injury claim was assigned file number 16-0312113.

2

By decision dated April 4, 1998, the Office denied his claim on the grounds that he was not scheduled to work
on January 19, 1998 as it was a holiday. Appellant requested reconsideration, which was denied by the Office in a
decision dated June 5, 1998. The Office found that appellant failed to establish that he sustained an injury as
alleged.
3

This occupational disease claim was assigned file number 16-0319010. On August 11, 1998 the Office
combined file numbers 16-0319010 and 16-0312113 with the former number as the master number.
4

Docket No. 00-436 (issued November 30, 2000).

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By decision dated April 2, 2004, the Office denied appellant’s claim on the grounds that
he did not establish an injury as alleged. The Office found that, although the evidence
demonstrated that a specific event, incident or exposure occurred at the time, place and in the
manner alleged, the medical evidence was insufficient to establish that he sustained an injury in
the performance of duty.
On March 21, 2005 appellant, through counsel, requested reconsideration and submitted
evidence in support of his request. In December 14, 2004 report, Dr. Jackson opined that
appellant “did sustain a tear of the posterior horn of the medial meniscus of his right knee” as
well as a partial anterior cruciate tear. He related that a medial meniscus tear was an injury
“commonly associated with squatting combined with a rotatory strain on the flexed knee.”
Dr. Jackson opined that appellant sustained a tear of his medial meniscus, by squatting down to
put mail through a mail slot located at the bottom of a door. Appellant also submitted duplicates
of evidence previously considered.
By decision dated March 28, 2006, the Office denied modification of its prior decisions.
LEGAL PRECEDENT
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee must submit the following: (1) medical evidence establishing the
presence or existence of a condition for which compensation is claimed; (2) a factual statement
identifying employment factors alleged to have caused or contributed to the condition; and
(3) medical evidence establishing that the employment factors identified by the employee were
the proximate cause of the condition or illness, 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 employee.5
Causal relationship is a medical issue and the medical evidence required to establish
causal relationship is rationalized medical evidence.6 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between an employee’s diagnosed conditions and the implicated
employment factors.7 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
conditions and the specific employment factors identified by the employee.8

5

D.D., 57 ECAB ___ (Docket No. 06-1315, issued September 14, 2006); Donna L. Mims, 53 ECAB 730 (2002).

6

M.W., 57 ECAB ___ (Docket No. 06-749, issued August 15, 2006).

7

Sedi L. Graham, 57 ECAB ___ (Docket No. 06-135, issued March 15, 2006).

8

Kathryn E. Demarsh, 56 ECAB ___ (Docket No. 05-269, issued August 18, 2005).

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The mere fact that a disease manifests itself during a period of employment does not raise
an inference that there is a causal relationship between the two. Neither the fact that the disease
became apparent during a period of employment, nor the belief of appellant that the disease was
caused or aggravated by employment conditions, is sufficient to establish causal relation.9
ANALYSIS
Appellant contends that he sustained a right knee injury in the performance of duty. The
medical evidence reveals a right medial meniscus tear and torn acute cruciate ligament tear. The
issue to be resolved is whether appellant sustained these conditions in the performance of duty as
a letter carrier
Appellant first attributed his right knee condition to an injury sustained on
January 19, 1998, while squatting. After this claim was denied, he filed the occupational disease
claim noting that he first became aware that his right knee condition was employment related on
February 18, 1998. The medical evidence submitted with the occupational disease claim and
appellant’s statement attributed his knee injury to a traumatic incident on January 15, 1998,
while squatting to deliver mail. This contradicts the date appellant indicated that he first became
aware that his knee condition was employment related in his occupational disease claim.
Moreover, the Office denied that the squatting incident occurred on January 19, 1998, as this was
a nonscheduled workday.
Dr. Jackson, a treating physician, diagnosed a right medial meniscus tear and partial right
anterior cruciate ligament tear. He attributed appellant’s medial meniscus tear to a squatting
injury. In a December 14, 2004 report, Dr. Jackson opined that appellant sustained a medial
meniscus tear when he squatted “down to put mail through a mail slot located at the bottom of a
door.” As noted, the Office denied appellant’s traumatic injury claim on the basis that he was
not in the performance of duty on January 19, 1998 when the alleged squatting incident occurred.
Dr. Jackson did not address how appellant’s work duties as a mail handler would cause or
contribute to the diagnosed torn meniscus of the left knee beyond attributing the condition to the
alleged squatting incident. The Board has held that medical opinions based on an incomplete or
inaccurate history are of diminished probative value.10 As Dr. Jackson relied upon an inaccurate
history with respect to the squatting incident, his opinion is of diminished probative value and
insufficient to establish appellant’s claim.
There is insufficient rationalized medical evidence of record establishing that appellant
sustained a knee injury while in the performance of duty as alleged. The Board finds that he has
failed to meet his burden of proof.

9

Daniel O. Vasquez, 57 ECAB ___ (Docket No. 06-568, issued May 5, 2006).

10

M.W., 57 ECAB ___ (Docket No. 06-749, issued August 15, 2006); James R. Taylor, 56 ECAB ___ (Docket
No. 05-135, issued May 13, 2005).

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CONCLUSION
The Board finds that appellant has failed to establish that he sustained an injury while in
the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 28, 2006 is affirmed.
Issued: February 26, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.S., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, CENTERS FOR DISEASE
CONTROL & PREVENTION, Fairchance, PA,
Employer
__________________________________________

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

Docket No. 09-1584
Issued: March 4, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 3, 2009 appellant filed a timely appeal of a June 26, 2008 nonmerit decision of
the Office of Workers’ Compensation Programs denying his request for reconsideration without
a merit review. Because more than one year has elapsed from the last merit decision dated
March 25, 2008 to the filing of this appeal on June 3, 2009, the Board lacks jurisdiction over the
merits of this case pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration
without a merit review.
FACTUAL HISTORY
On July 21, 2006 appellant, then a 57-year-old physical science technician, filed a
traumatic injury claim alleging that on July 19, 2006 he injured his right hip, pelvis and foot after

sustaining a fall at which time a steel beam fell on him. He also alleged a head and neck injury
on that same day after passing out and falling at the emergency room while being treated for his
right hip and pelvis condition. Appellant stopped work on July 19, 2006 and returned to light
duty on December 5, 2006. The Office accepted his claim for closed fracture of the right
ischium or hip.
Appellant submitted several Form CA-7s claiming wage-loss compensation beginning
September 3, 2006. In a November 3, 2006 decision, the Office denied wage-loss compensation
beginning August 8, 2006 finding the evidence was insufficient to establish total disability for
work as a result of the accepted injury.
A July 20, 2006 report from Dr. Bruce Teich, Board-certified in family medicine,
diagnosed right hip strain with adductor muscle strain. In a July 22, 2006 addendum, he noted
that appellant had passed out and struck his head against a wall of an emergency room bathroom.
Dr. Teich diagnosed resolved vasovagal syncope, closed head injury with intact neurologic status
and cervical sprain. Appellant also submitted several physical therapy notes.
On November 10, 2006 appellant requested a telephone hearing, which was held on
March 9, 2007. In reports dated August 8 and September 18, 2006, Dr. Michael Seel, a Boardcertified orthopedic surgeon, diagnosed nondisplaced fracture of the right ischium and right
pubic rami status post a July 19, 2006 injury. He advised that appellant could return to sedentary
duty. On December 5, 2006 Dr. Seel released appellant to light duty. In reports dated
January 18, 2007, he advised that appellant could return to full duty without restrictions on
January 22, 2007. Dr. Seel also diagnosed right trochanteric bursitis and resolved right ischium
and pubic ramus fractures.
In a June 19, 2007 decision, an Office hearing representative reversed the November 3,
2006 decision finding the evidence established disability for work from August 8 to
December 5, 2006. She also found that the Office should develop the issue of whether
appellant’s fall at the emergency room constituted a consequential injury.
On July 25, 2007 the Office advised appellant of the factual and medical evidence
necessary to establish a consequential injury and allowed him 30 days to submit such evidence.
Appellant submitted a July 26, 2006 treatment note listing his complaint of arthritis, bilateral
knee pain and right fifth finger pain. In an August 21, 2007 report, Dr. Nancy Shaler, a
chiropractor, noted that appellant’s history and examination were related to the diagnoses of neck
pain with headaches, thoracic/lumbar neuritis and subluxation of the cervical, thoracic, lumbar
and pelvic spine which were complicated by muscle spasms and degenerative joint changes. She
opined that appellant’s fall in the hospital was the result of a work-related injury.
In a September 17, 2007 decision, the Office denied appellant’s consequential injury
claim finding the medical evidence insufficient to establish that the fall was a consequence of the
accepted work injury.
On September 25, 2007 appellant requested a telephone hearing, which was held on
January 10, 2008.

2

In a March 25, 2008 decision, an Office hearing representative affirmed the
September 17, 2007 decision finding the medical evidence failed to establish that appellant
sustained a consequential fall causally related to the accepted work injury.
In a June 14, 2008 letter, appellant requested reconsideration. He noted that, with his
request, he had enclosed new evidence from his primary care physician indicating that he had no
history of passing out or fainting. Appellant also noted that he based his reconsideration request
on his new evidence.
In a June 26, 2008 decision, the Office denied appellant’s reconsideration request without
a merit review finding that appellant did not submit any new and relevant evidence or raise any
substantive legal questions.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a), the
Office’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.1 Section 10.608(b) of Office
regulations provide that when an application for reconsideration does not meet at least one of the
three requirements enumerated under section 10.606(b)(2), the Office will deny the application
for reconsideration without reopening the case for a review on the merits.2
ANALYSIS
Appellant’s June 14, 2008 reconsideration request consists of a letter asking for
reconsideration based on evidence from his primary care physician who indicates that appellant
has no history of fainting. His request does not demonstrate that the Office erroneously applied
or interpreted a specific point of law and it also does not advance a relevant legal argument not
previously considered by the Office. Instead, appellant based his request on his primary care
physician’s report, but it did not specify any particular report from this physician or advance any
legal arguments based on this physician’s report.
The Board also notes that appellant did not submit any new and relevant evidence with
his reconsideration request. As the issue of appellant’s alleged consequential injury is medical in
nature, whether the accepted hip fracture caused appellant to fall and sustain additional injury, it
should be addressed by the submission of pertinent new medical evidence. However, the record
reflects that no new medical evidence was received with appellant’s reconsideration request.
On appeal, appellant asserts that he sustained a consequential injury after passing out at
the hospital while being treated for his original accepted injury. As noted, the Board only has
jurisdiction over whether the Office properly denied appellant’s reconsideration request without
1

D.K., 59 ECAB ___ (Docket No. 07-1441, issued October 22, 2007).

2

K.H., 59 ECAB ___ (Docket No. 07-2265, issued April 28, 2008).

3

conducting further merit review. As the underlying issue is medical in nature, to require the
Office to reopen the claim for a merit review, it was necessary for appellant to submit new
medical evidence supporting that his accepted injury caused him to fall and sustain an injury. No
new medical evidence accompanied appellant’s reconsideration request. Appellant’s general
assertion that he sustained a consequential injury is insufficient to require the Office to conduct a
merit review. Appellant also asserts that he submitted new medical evidence with his
reconsideration request. On appeal, he submitted a certified mail receipt, indicating that a letter
was received by the Office on June 19, 2008, and an April 10, 2008 medical report. However,
the Board may not consider new evidence on appeal as its review is limited to the evidence that
was in the record at the time the Office issued its final decision.3 Appellant also alleges that the
Office claims examiner who issued the June 26, 2008 decision did not conduct an independent
evaluation as she was involved in his claim in October 2006 when he discussed his claim with
her on the telephone. However, his allegations do not establish that the June 26, 2008 decision
was contrary to Office procedures or that Office personnel acted improperly in issuing the
decision. While Office procedures specify that each request for reconsideration must be handled
by a senior claims examiner who was not involved in making the contested decision,4 the claims
examiner in question did not participate in making the March 25, 2008 decision from which
appellant sought reconsideration nor does her name appear on prior Office decisions.5
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration
without conducting a merit review.

3

See 20 C.F.R. § 501.2(c).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.2(b) (May 1996).

5

See Jacqueline M. Williamson, Docket No. 01-1724 (issued May 24, 2002) (where appellant contended that a
claims examiner improperly prepared the Office’s reconsideration decision because this claims examiner had
previously written a letter to her and talked to her on the telephone; the Board found that, as the record did not show
that this claims examiner was involved in making the decision that was the subject of the request for reconsideration,
this claims examiner was not precluded from preparing the decision denying the reconsideration request).

4

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated June 26, 2008 is affirmed.
Issued: March 4, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Stone Mountain, GA, Employer
__________________________________________

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Appearances:
Adam Conti, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-141
Issued: March 27, 2007

Case Submitted on the Record

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

JURISDICTION
On October 19, 2006 appellant filed a timely appeal of a July 13, 2006 merit decision of
the Office of Workers’ Compensation Programs. 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 has established an injury in the performance of duty on
November 24, 2004.
FACTUAL HISTORY
On December 1, 2004 appellant, then a 77-year-old window clerk, filed a traumatic injury
claim (Form CA-1), alleging that she sustained an injury to her lower left stomach and left thigh
on November 24, 2004. She indicated that she was pulling POS (point of service) closed and she
had a sharp pain. An employing establishment supervisor controverted the claim in a
December 13, 2004 memorandum, alleging that appellant initially reported the injury as
occurring on November 22, 2004.

By decision dated February 3, 2005, the Office denied the claim for compensation. The
Office accepted that the November 24, 2004 incident occurred as alleged, but found that there
was no probative medical evidence of record.
Appellant requested reconsideration and submitted additional evidence. In a treatment
note dated January 6, 2005, Dr. Robert Bachner indicated that appellant complained of bilateral
knee pain. He stated that appellant contused the left knee several weeks earlier. In a report dated
January 11, 2005, Dr. Gary Ludi diagnosed left inguinal hernia. He stated that approximately a
month earlier appellant had been moving a heavy door and felt a pop on her left side. On
January 17, 2005 appellant underwent surgery for a left inguinal hernia.
In a decision dated June 1, 2005, the Office reviewed the case on its merits and denied
the claim for compensation.1
Appellant again requested reconsideration and submitted a December 8, 2005 report from
Dr. Ludi, who noted that appellant underwent surgery and stated that she could not return to
work until February 4, 2005. Appellant had a left inguinal hernia “that she had acquired from
her work and thus, the time that she was off work was due to her work injury.” In a report dated
February 3, 2006, Dr. Robert Herrera, an internist, stated that appellant contacted his office on
December 6, 2004 with complaints of pain in the left abdominal area. He stated that she thought
this occurred after pulling and closing a heavy door at work.
In a decision dated July 13, 2006, the Office reviewed the case on its merits and denied
modification of the June 1, 2005 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing that he or she sustained an injury while in the performance of duty.3 In
order to determine whether an employee actually sustained an injury in the performance of duty,
the Office 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. The second component is whether the
employment incident caused a personal injury, and generally this can be established only by
medical evidence.4
The Office’s procedures recognize that a claim may be accepted without a medical report
when the condition is a minor one which can be identified on visual inspection.5 In clear-cut
1

The Office stated that appellant had established fact of injury but failed to establish causal relationship.

2

5 U.S.C. §§ 8101-8193.

3

Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115.

4

See John J. Carlone, 41 ECAB 354, 357 (1989).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(d) (June 1995).

2

traumatic injury claims, such as a fall resulting in a broken arm, a physician’s affirmative
statement is sufficient and no rationalized opinion on causal relationship is needed. In all other
traumatic injury claims, a rationalized medical opinion supporting causal relationship is
required.6
Rationalized medical opinion evidence is medical evidence that includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between a diagnosed
condition and the identified employment factor. The opinion of the physician must be based on a
complete factual and medical background, must be of reasonable medical certainty and
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant. 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.7
ANALYSIS
Appellant filed a traumatic injury claim alleging that she sustained an injury to her left
side on November 24, 2004.8 The Office did not dispute that the incident occurred as alleged.
The issue is whether there is medical evidence on causal relationship between a diagnosed
condition and the employment incident.
To meet her burden of proof, appellant must submit rationalized medical evidence. This
is not a situation with an injury that can be identified on visual inspection or a clear-cut traumatic
injury requiring only an affirmative statement. The medical evidence in this case does not
contain a rationalized medical opinion. Dr. Ludi noted in a January 11, 2005 report that
appellant felt a pop while attempting to close a heavy door without providing an opinion on
causal relationship. In a December 8, 2005 report, he diagnosed a left inguinal hernia “acquired
from her work” without providing a complete history of the incident or supporting the opinion
with medical rationale. Dr. Herrera did not provide an opinion on causal relationship. He
merely noted that appellant experienced pain that she thought occurred after pulling a heavy door
at work.
The Board finds the medical evidence is not sufficient to establish an injury in the
performance of duty on November 24, 2004. There is no medical report with a rationalized
medical opinion based on a complete factual and medical history. Accordingly, the Board finds
that appellant did not meet her burden of proof in this case.

6

Id.

7

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

8

The Office stated in its June 1, 2005 decision that appellant had established fact of injury. This appears to be a
finding that she submitted evidence of a diagnosed condition. It is well established that “fact of injury” requires that
appellant submit sufficient evidence to establish an injury in the performance of duty. See Caroline Thomas,
51 ECAB 451 (2000). It is evident in this case that the Office did not accept that appellant sustained a diagnosed
condition causally related to a November 24, 2004 incident.

3

CONCLUSION
Appellant did not submit sufficient evidence to establish an injury in the performance of
duty on November 24, 2004.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 13, 2006 is affirmed.
Issued: March 27, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.L., Appellant
and
TENNESSEE VALLEY AUTHORITY,
BROWNS FERRY NUCLEAR PLANT,
Chattanooga, TN, Employer
__________________________________________

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

Docket No. 13-1177
Issued: July 17, 2013

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 April 17, 2013 appellant filed a timely appeal from the March 25, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying her claim for a hearing loss
as untimely. 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’s claim for a work-related hearing loss is barred by the
applicable time limitation provisions of FECA.
FACTUAL HISTORY
On November 6, 2012 appellant, then a 68-year-old retired painter, filed an occupational
disease claim alleging that he sustained a hearing loss due to factors of his federal employment.
Regarding the relationship of the claimed condition to his work, appellant stated, “I begin [sic]
having problems hearing [television] and radio. Loud speaking in loud tones, repeating words
1

5 U.S.C. §§ 8101-8193.

during conversation.” Appellant first became aware of his claimed condition on October 26,
2012 and he first realized that it was caused or aggravated by his employment on that date.
Appellant submitted evidence showing that he periodically had federal employment as a
painter from 1968 to 1984 with the Tennessee Valley Authority.2 During this period, he was
exposed to hazardous noise from sand blasters, electric grinders, paint guns and other machines.
Appellant last worked for his federal employer on February 17, 1984 and then held a series of
jobs with private employers from 1988 to 2008.3
Appellant submitted a January 29, 1968 audiogram taken by the employing establishment
when he started working for it. The audiogram showed that testing for the left ear at the
frequency levels of 500, 1,000, 2,000, 3,000 and 4,000 cycles per second revealed decibel losses
of 15, 15, 20, 25 and 60 respectively. Testing for the right ear at the frequency levels of 500,
1,000, 2,000, 3,000 and 4,000 cycles per second revealed decibel losses of 15, 10, 20, 20 and 20
respectively.
The record also contains audiograms dated February 28, 1977, March 6, 1978,
February 28, 1980, September 22, 1982 and October 26, 2012. All of the audiograms of record,
except for the one dated October 26, 2012, were obtained for the employing establishment. The
February 28, 1977, March 6, 1978, February 28, 1980 and September 22, 1982 audiograms do
not show appreciably greater losses than those found in the January 29, 1968 audiogram.
However, the October 26, 2012 audiogram shows significantly higher hearing loss in both ears
than the earlier audiograms.
In letters dated December 26, 2012 and February 11, 2013, OWCP requested that
appellant submit additional evidence because the submitted evidence did not show that his claim
was timely filed. In a brief February 25, 2013 statement, appellant asserted that his claim was
filed “within the guidelines of the procedures” of the employing establishment.
In a March 15, 2013 letter, the employing establishment controverted appellant’s claim
for work-related hearing loss, noting that it was untimely filed. The employing establishment
indicated that his last date of possible exposure to noise from federal employment was
February 17, 1984 and stated that the audiograms from the period of federal employment did not
show a worsening of his hearing that would have placed the employing establishment on notice.
On March 19, 2013 Dr. Eric Puestow, a Board-certified internist serving as an OWCP
medical adviser, reviewed the evidence of record. He noted that the audiograms of record
showed that there was no significant deterioration in appellant’s hearing during his federal
employment. Dr. Puestow stated, “The significant loss of hearing in 2012 is likely due to other
factors including noise exposure in the time following his retirement from federal employment.”
In a March 20, 2013 report, Dr. Whitney R. Mauldin, a Board-certified audiologist for the
employing establishment, noted that appellant’s exposure to noise in federal employment over 28
years prior could not be the source of the hearing loss observed in October 2012. He stated that
appellant’s hearing only changed significantly after he began working for private employers.
2

Appellant did not work for the employing establishment during various periods between 1976 and 1980.

3

Appellant’s private jobs also included work as a painter.

2

In a March 25, 2013 decision, OWCP denied appellant’s claim for a work-related hearing
loss as it was untimely filed. Appellant’s claim was denied because the evidence did not support
a finding that his claim was filed within three years of the date of injury or that his immediate
supervisor had actual knowledge within 30 days of the date of injury. Although the date of
appellant’s injury was listed as October 26, 2012, the date of his last exposure to noise in his
federal employment was February 17, 1984. OWCP determined that appellant’s claim for
compensation was not filed until November 6, 2012, some 28 years after he was last exposed to
the claimed employment factors.
LEGAL PRECEDENT
The issue of whether a claim was timely filed is a preliminary jurisdictional issue that
precedes any determination on the merits of the claim.4 In cases of injury on or after
September 7, 1974, section 8122(a) of FECA provides that an original claim for compensation
for disability or death must be filed within three years after the injury or death. Compensation
for disability or death, including medical care in disability cases, may not be allowed if a claim is
not filed within that time unless:
“(1) the immediate superior had actual knowledge of the injury or death within 30
days. The knowledge must be such as to put the immediate superior reasonably
on notice of an on-the-job injury or death; or
“(2) written notice of injury or death as specified in section 8119 was given within
30 days.”5
Section 8119 of FECA provides that a notice of injury or death shall be given within 30
days after the injury or death; be given to the immediate superior of the employee by personal
delivery or by depositing it in the mail properly stamped and addressed; be in writing; state the
name and address of the employee; state the year, month, day and hour when and the particular
locality where the injury or death occurred; state the cause and nature of the injury, or in the case
of death, the employment factors believed to be the cause; and be signed by and contain the
address of the individual giving the notice.6 Actual knowledge and written notice of injury under
section 8119 serve to satisfy the statutory period for filing an original claim for compensation.7
In a case of occupational disease, the time for filing a claim begins to run when the
employee first becomes aware, or reasonably should have been aware, of a possible relationship
between his condition and his employment. When an employee becomes aware or reasonably
should have been aware that he or she has a condition which has been adversely affected by
factors of his federal employment, such awareness is competent to start the limitation period
even though the employee does not know the precise nature of the impairment or whether the
ultimate result of such affect would be temporary or permanent.8 Where the employee continues
4

Charles Walker, 55 ECAB 238 (2004); see Charles W. Bishop, 6 ECAB 571 (1954).

5

5 U.S.C. § 8122(a).

6

Id. at § 8119; Larry E. Young, 52 ECAB 264 (2001).

7

Laura L. Harrison, 52 ECAB 515 (2001).

8

Larry E. Young, supra note 6.

3

in the same employment after he or she reasonably should have been aware that he or she has a
condition which has been adversely affected by factors of federal employment, the time
limitation begins to run on the date of the last exposure to the implicated factors.9 Section
8122(b) of FECA provides that the time for filing in latent disability cases does not begin to run
until the claimant is aware or by the exercise of reasonable diligence should have been aware, of
the causal relationship between the employment and the compensable disability.10 The
requirement to file a claim within three years is the claimant’s burden and not that of the
employing establishment.11
ANALYSIS
On November 6, 2012 appellant filed an occupational disease claim alleging that he
sustained a hearing loss due to factors of his federal employment. Regarding the relationship of
the claimed condition to his work, appellant stated that he began having problems hearing
television and radio and understanding conversations. He first became aware of his claimed
condition and that it was caused or aggravated by his employment on October 26, 2012.
The Board finds that appellant has not shown that his claim for work-related hearing loss
was filed in a timely manner. The evidence does not support a finding that his claim was filed
within three years of the date of injury or that his immediate supervisor had actual knowledge
within 30 days of the date of injury. Although the date of appellant’s injury was listed as
October 26, 2012, the date of his last exposure to noise in his federal employment position was
February 17, 1984. Appellant submitted an October 26, 2012 audiogram that showed increased
hearing loss since the last audiogram of record, dated in 1982.12 He did not explain why he
believed that his hearing loss was related to his federal employment which he had not held for
more than 28 years. Appellant’s claim for compensation was not filed until November 6, 2012,
some 28 years after he was last exposed to the claimed employment factors, hazardous noise
from his job as a painter for the employing establishment.
Appellant’s claim would still be regarded as timely under section 8122(a)(1) of FECA if
his immediate superior had actual knowledge of the injury within 30 days or under section
8122(a)(2) if written notice of injury was given to his immediate superior within 30 days as
specified in section 8119. Appellant has not made any claim that he has satisfied either of these
provisions, nor does the record support a finding that he has satisfied either of them.13 The
audiograms from the time of appellant’s federal employment do not show a notable worsening of
his hearing during his federal employment such that his immediate superior would have gained
actual knowledge of his claimed injury. This finding is supported by the medical reports of
record, including a March 19, 2013 of Dr. Puestow, a Board-certified internist serving as an

9

Id.

10

5 U.S.C. § 8122(b); see Luther Williams, Jr., 52 ECAB 360 (2001).

11

Debra Young Bruce, 52 ECAB 315 (2001).

12

The October 26, 2012 audiogram did not contain any opinion on the cause of the observed hearing loss.

13

There is no indication in the record that appellant provided a statement to his immediate superior such that he
satisfied the provisions of sections 8119 and 8122(a) of FECA. See supra note 5 and accompanying text.

4

OWCP medical adviser, and a March 20, 2013 report of Dr. Mauldin, a Board-certified
audiologist for the employing establishment.
For these reasons, appellant’s claim for a work-related hearing loss on the grounds that it
was untimely filed is denied. 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’s claim for a work-related hearing loss is barred by the
applicable time limitation provisions of FECA.
ORDER
IT IS HEREBY ORDERED THAT the March 25, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 17, 2013
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.A., Appellant
and
U.S. POSTAL SERVICE, BAYAMON BRANCH
OFFICE, Bayamon, PR, Employer
__________________________________________

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Appearances:
Paul Kalker, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1661
Issued: April 2, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 23, 2009 appellant, through counsel, filed a timely appeal from a merit decision
of the Office of Workers’ Compensation Programs dated June 1, 2009 denying his emotional
condition claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this claim.
ISSUE
The issue is whether appellant sustained an emotional condition in the performance of
duty on February 16, 2008, as alleged.
On appeal, appellant’s counsel contends that the Office erred in developing the claim as
traumatic injury instead of as an occupational disease claim. He also contends that the evidence
of record establishes that appellant was subjected to harassment and discrimination and that his
emotional condition is causally related to these employment factors.

FACTUAL HISTORY
This is the second appeal in this case. In the first appeal, the Board issued a decision on
March 24, 2009 affirming a May 8, 2008 Office decision denying appellant’s traumatic
emotional condition claim and a June 16, 2008 nonmerit decision denying his request for
reconsideration of the merits of his claim.1 The Board found that he failed to establish any
compensable factor with respect to his allegations regarding a February 16, 2008 incident. The
Board further found that appellant’s claim was traumatic in nature as he premised his claim
based on an incident of February 16, 2008 involving his supervisors. In addition, the Board
noted the submission of evidence regarding his Equal Employment Opportunity (EEO) claim of
age and sex discrimination, which occurred over more than one day and stated that he was not
precluded from filing an occupational disease claim based on these allegations. The facts and
circumstances of the Board’s prior decisions are incorporated by reference.2
Subsequent to the Office’s June 16, 2008 nonmerit decision and prior to the Board’s
March 24, 2009 decision, appellant submitted additional medical and factual information
including an October 3, 2008 statement and April 29, 2008 statement detailing alleged
harassment and discrimination from 2000 to 2008, which included one line about the alleged
February 16, 2008 incident; reports dated December 21, 2006, June 13 and 5 and November 19,
2008 report and disability notes dated from April 2, 2007 to February 29, 2008 from Dr. Jaime
Del Toro, a treating physician; a January 30, 2008 EEO information for precomplaint counseling
form; an October 23, 2008 EEO investigative affidavit by appellant; a February 10, 2009
determination by the Office of Personnel Management (OPM) that he was disabled due to
schizoaffective disorder; a January 27, 2009 statement alleging a hostile work environment
created by management for the past 24 months signed by coworkers.
In the June 5, 2008 report, Dr. Del Toro diagnosed schizoaffective disorder which began
in August 2002. He opined that the condition had been aggravated from April to July 2008 and
that appellant was currently totally disabled. In a November 19, 2008 disability report, prepared
for a disability determination program, Dr. Del Toro noted that he had been treating appellant
since April 1981. He diagnosed chronic schizoaffective disorder with active signs of bipolar
type psychosis.
In a letter dated April 29, 2009, appellant’s counsel requested reconsideration. He
contended that the medical and factual evidence established that appellant sustained an emotional
condition as a result of the harassment and discrimination he was subjected to over the years.
Counsel further contends that the Office erred in treating the claim as a traumatic injury instead
of as an occupational claim.

1

Docket No. 08-1984 (issued March 25, 2009).

2

On March 15, 2008 appellant, then a 41-year-old rural carrier, filed a traumatic injury claim alleging that on
February 16, 2008 he sustained an emotional condition due to his supervisor requiring him to leave keys, scanners
and registered mail at the employing establishment in an unsecured area.
3

This report is in Spanish.

2

On May 6, 2009 the Office received an April 26, 2009 report from Dr. Del Toro
diagnosing schizoaffective bipolar type disorder. He noted that he reviewed witness reports from
appellant’s EEO complaint, which detailed alleged harassment and discrimination of appellant
over a number of years. Dr. Del Toro noted that appellant had been treated since 1981 for
psychiatric problems. He opined that appellant was totally disabled and that the condition had
been exacerbated by the February 16, 2008 incident.
By decision dated June 1, 2009, the Office denied modification.
LEGAL PRECEDENT
To establish that he sustained an emotional condition causally related to factors of his
federal employment, appellant must submit: (1) factual evidence identifying and supporting
employment factors or incidents alleged to have caused or contributed to his condition;
(2) rationalized medical evidence establishing that he has an emotional condition or psychiatric
disorder; and (3) rationalized medical opinion evidence establishing that his emotional condition
is causally related to the identified compensable employment factors.4
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment.5 There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation.6 Where the disability results from an
employee’s emotional reaction to his regular or specially assigned duties or to a requirement
imposed by the employment, the disability comes within the coverage of the Federal Employees’
Compensation Act.7 On the other hand, the disability is not covered where it results from such
factors as an employee’s fear of a reduction-in-force or his frustration from not being permitted
to work in a particular environment or to hold a particular position.8
ANALYSIS
As noted by the Board in its prior decision, appellant alleged that he sustained an
emotional condition on February 16, 2008 as a result of his supervisor requiring him to leave
keys, scanners and registered mail at the employing establishment in an unsecured area and
harassment by his supervisor in refusing to follow a cease and desist order. The Board affirmed
the Office’s determination that he failed to establish a compensable factor of employment. The

4

See C.F., 60 ECAB ___ (Docket No. 08-1102, issued October 10, 2008); Doretha M. Belnavis, 57 ECAB 311
(2006); Kathleen D. Walker, 42 ECAB 603 (1991). Unless a claimant establishes a compensable factor of
employment, it is unnecessary to address the medical evidence of record. Garry M. Carlo, 47 ECAB 299,
305 (1996).
5

L.D., 58 ECAB 344 (2007).

6

A.K., 58 ECAB 119 (2006).

7

5 U.S.C. §§ 8101-8193; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

8

J.F., 59 ECAB ___ (Docket No. 07-308, issued January 25, 2008); Gregorio E. Conde, 52 ECAB 410 (2001).

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initial issue to be resolved is whether appellant has submitted sufficient evidence to establish a
compensable factor of employment.
On appeal, appellant’s counsel contends that the Office erred in failing to adjudicate
appellant’s claim as an occupational disease claim instead of a traumatic injury claim. The
Board, in its prior decision, found that the Office properly adjudicated his claim as traumatic
rather than occupational disease claim based on his claim form and initial allegation. The claim
form and initial allegation submitted by appellant attributed his condition to a single incident on
February 16, 2008. As such, his claim is traumatic in nature as it was attributed to a single
workday or shift.9 Appellant, however, is not precluded from filing an occupational disease
claim based on his allegations of discrimination and harassment.
Subsequent to the June 16, 2008 nonmerit decision, appellant submitted additional
medical and factual information. The October 8, 2008 statement which included a brief
description of the alleged February 16, 2008 incident is duplicative of that previously of record
and reviewed by the Board. The January 27, 2009 statement by coworkers and the EEO forms
do not establish any harassment on the part of management with respect to the alleged
February 16, 2008 incident. The January 30, 2008 EEO precomplaint counseling form and the
determination of disability by OPM, are not relevant to the alleged February 16, 2008 incident.
Appellant submitted no other evidence to establish his allegations. He therefore failed to
establish a factual basis for his claim of harassment by his supervisors on February 16, 2008.10
The Board finds that the record is not sufficient to establish a compensable factor as a result of
his supervisor requesting that he leave behind certain office equipment in an unsecured area. As
appellant has not established any compensable work factors, the medical record regarding any
psychiatric conditions need not be addressed.11
CONCLUSION
The Board finds that appellant failed to establish that he sustained an emotional condition
in the performance of duty on February 16, 2008, as alleged.

9

See 20 C.F.R. § 10.5(ee).

10

See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a claimant must substantiate allegations of
harassment or discrimination with probative and reliable evidence).
11

See E.R., 60 ECAB ___ (Docket No. 09-599, issued June 3, 2009); Lori A. Facey, 55 ECAB 217 (2004);
Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 1, 2009 is affirmed.
Issued: April 2, 2010
Washington, DC

Alec J. Koromilas, 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
__________________________________________
S.E., Appellant
and
U.S. POSTAL SERVICE, SOUTH SUBURBAN
POST OFFICE, Bedford Park, IL, Employer
__________________________________________

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

Docket No. 11-1696
Issued: September 20, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On July 15, 2011 appellant filed a timely appeal from a February 17, 2011 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying her claim for an increased
schedule award. 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 schedule award decision.2
ISSUES
The issues are: (1) whether appellant has more than 7 percent right upper extremity
impairment; and (2) whether she has more than 21 percent permanent impairment of the left
upper extremity.

1
2

5 U.S.C. § 8101 et seq.

By order dated March 13, 2012, the Board dismissed appellant’s appeal at her request. Order Dismissing
Appeal, Docket No. 11-1696 (issued March 13, 2012). However, as appellant timely requested that the appeal go
forward, the Board reinstated it on July 26, 2012. Order Vacating Prior Board Order and Reinstating Appeal,
Docket No. 11-1696 (issued July 26, 2012).

FACTUAL HISTORY
OWCP accepted that on April 30, 2001 appellant, then a 55-year-old clerk, sustained
bilateral thumb strain and left trigger thumb with surgical release under file number xxxxxx864.
It had previously accepted that she sustained trigger finger of the right index and thumb under
file number xxxxxx390 and bilateral shoulder strain under file number xxxxxx888. In a report
dated February 1, 2002, issued in file number xxxxxx864, an OWCP medical adviser determined
that appellant had 21 percent permanent impairment of the left thumb due to loss of motion and
sensory impairment.
By decision dated November 12, 2003, OWCP granted appellant a schedule award for
seven percent permanent impairment of the right upper extremity under file number xxxxxx888.
It based the award on loss of shoulder motion and pain in the suprascapular nerve following an
arthroscopic decompression of the right shoulder.
In a report dated September 14, 2010, Dr. James D. Schlenker, a Board-certified surgeon,
discussed appellant’s March 9, 2010 surgical trigger finger release of the right thumb and ring
finger. On examination he found essentially normal two-point discrimination of the hands
bilaterally. Dr. Schlenker measured “full range of motion of the fingers, wrist, elbow and
shoulder. There is no residual triggering activity.” He further found “tenderness and swelling in
the distal palm at the base of the ring finger, but no significant swelling over the
metacarpophalangeal joint of the thumb.” Dr. Schlenker measured grip strength in appellant’s
dominate right hand of 22 pounds and in her left hand of 42 pounds. He opined that she needed
no further treatment and that she had “a satisfactory result following release of triggering of the
right thumb and ring finger.”
On November 5, 2010 appellant requested a schedule award based on Dr. Schlenker’s
evaluation. By letter dated November 22, 2010, OWCP requested that a medical adviser review
the evidence and address whether she had an additional impairment of the left upper extremity
beyond the previously awarded 21 percent left upper extremity impairment. On November 28,
2010 OWCP’s medical adviser advised that appellant had a six percent left upper extremity
impairment due to her left trigger finger release. He further opined that she had one percent
impairment due to left shoulder strain for a total upper extremity impairment of seven percent.
The medical adviser noted that appellant was not entitled to an additional award for the left upper
extremity as she had previously received a schedule award for 21 percent impairment rating.
On January 25, 2011 OWCP informed appellant by telephone that it would again refer
her case to an OWCP medical adviser, noting that it originally asked that the medical adviser
address the extent of impairment of the left rather than right hand. By letter dated January 25,
2011, it requested that OWCP’s medical adviser address whether appellant had more than the
previously awarded seven percent permanent impairment of the right upper extremity under the
American Medical Association, Guides to the Evaluation of Permanent Impairment (6th ed.
2009) (A.M.A., Guides).
On February 2, 2011 the medical adviser discussed appellant’s history of an award for
seven percent right upper extremity impairment as the result of a shoulder injury. He reviewed
Dr. Schlenker’s finding that appellant had “good ROM [range of motion] and mild tenderness to

2

palpation” following a release of right trigger finger. The medical adviser found that, under
Table 15-2 on page 391 of the sixth edition of the A.M.A., Guides, her minimal symptoms
following trigger finger surgery yielded no impairment.
By decision dated February 17, 2011, OWCP denied appellant’s claim for an increased
schedule award. It noted that it had also reviewed evidence in file numbers xxxxxx390 and
xxxxxx888 and concluded that it did not show an increased impairment beyond the previously
paid schedule awards.
On appeal appellant argues that she is entitled to a schedule award for an impairment to
her right ring finger and thumb. She further challenges the left upper extremity award.
LEGAL PRECEDENT -- ISSUES 1 & 2
The schedule award provision of FECA,3 and its implementing federal regulations,4 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.5 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.6
The sixth edition requires identifying the impairment class for the diagnosed condition
(CDX), which is then adjusted by grade modifiers based on Functional History (GMFH),
Physical Examination (GMPE) and Clinical Studies (GMCS).7 The net adjustment formula is
(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained bilateral thumb strain, bilateral trigger thumb
and triggering of the right index finger, bilateral shoulder strain and right shoulder impingement
syndrome due to factors of her federal employment in file numbers xxxxxx864, xxxxxx390 and
xxxxxx888. It granted her a schedule award for a seven percent permanent impairment of the
right upper extremity due to loss of shoulder motion and shoulder pain in file number
xxxxxx888.

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Id. at § 10.404(a).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
7

A.M.A., Guides 494-531.

3

On November 5, 2010 appellant requested an increased schedule award. In support of
her claim, she submitted a September 14, 2010 report from Dr. Schlenker, who discussed her
history of a right thumb and right finger trigger release. Dr. Schlenker found normal range of
motion of the fingers, wrist, elbow and shoulder and normal two-point discrimination of the
bilateral hands. He further found that appellant had some tenderness and swelling at the base of
her ring finger and a loss of grip strength. Dr. Schlenker advised that she needed no further
medical treatment. He did not address the issue of whether appellant had an employment-related
impairment or provide an impairment rating of a scheduled member based on the A.M.A.,
Guides. The Board finds, therefore, that the report of Dr. Schlenker is of diminished probative
value and insufficient to establish entitlement to a schedule award.
It is well established that, when the attending physician fails to provide an estimate of
impairment conforming to the A.M.A., Guides, OWCP may rely on the opinion of an OWCP
medical adviser to apply the A.M.A., Guides to the findings of the attending physician.8 An
OWCP medical adviser reviewed Dr. Schlenker’s report on February 2, 2011. He noted that
Dr. Schlenker found that appellant had a good result following her right trigger finger surgery
with no loss of motion and minimal tenderness. The medical adviser determined that, under
Table 15-2, appellant had no permanent impairment based on her mild complaints after her
surgery. The Board finds that the medical adviser’s report constitutes the weight of the evidence
and establishes that appellant is not entitled to an increased schedule award. There is no
probative evidence of record supporting that appellant has an impairment of the thumb or finger
entitling her to a schedule award.
On appeal appellant argues that she is entitled to a schedule award for an impairment of
the right ring finger and thumb but the issue in this case is medical in nature and must be
resolved through the submission of probative medical evidence.9 She has the burden to submit
medical evidence supporting the degree of permanent impairment.10
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
ANALYSIS -- ISSUE 2
On February 1, 2002 an OWCP medical adviser found that appellant had a 21 percent
permanent impairment of the left thumb. On November 22, 2010 OWCP indicated that appellant
had received a schedule award for 21 percent permanent impairment of the left upper extremity.
By decision dated February 17, 2011, it found that she had no more than the previously awarded
21 percent left upper extremity impairment. The record, however, does not contain a copy of the
decision granting appellant either 21 percent permanent impairment of the left thumb or 21
percent permanent impairment of the left upper extremity. Consequently, the Board is unable to
8

See J.Q., 59 ECAB 366 (2008); Linda Beale, 57 ECAB 429 (2006).

9

See Jaja K. Asaramo, 55 ECAB 200 (2004).

10

See D.H., 58 ECAB 358 (2007); Annette M. Dent, 44 ECAB 403 (1993).

4

render an informed adjudication regarding the extent of her left upper extremity impairment.
The case is therefore remanded for reconstruction of the case record and any further development
necessary to be followed by an appropriate de novo decision on this issue.
CONCLUSION
The Board finds that appellant has no more than seven percent right upper extremity
impairment for which she received a schedule award. The Board further finds that the case is not
in posture for decision regarding the extent of her left upper extremity impairment.
ORDER
IT IS HEREBY ORDERED THAT the February 17, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part and the case is
remanded for further proceedings consistent with this opinion of the Board.
Issued: September 20, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.K., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, New Orleans, LA,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0824
Issued: May 27, 2021

Case Submitted on the Record

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

On May 7, 2021 appellant filed an appeal from April 29 and August 24, 2020 nonmerit
decisions of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate
Boards assigned Docket No. 21-0824.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act.1
For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s review
authority is limited to appeals which are filed within 180 days from the date of issuance of OWCP’s
decision.2
The 180th day following the August 24, 2020 decision was February 22, 2021.3 As
appellant did not file an appeal with the Board until May 7, 2021, more than 180 days after the
1

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

2

Id. at § 501.3(e).

3
As the 180th day fell on Saturday, February 20, 2021, appellant had until the next business day, Monday,
February 22, 2021, to timely file a Board appeal. See 20 C.F.R. § 501.3(f)(3).

August 24, 2020 OWCP decision, the Board finds that the appeal docketed as No. 21-0824 is
untimely filed. The Board is without jurisdiction to review the appeal. Appellant has not offered
a reason to explain the failure to timely file an appeal with supporting documentation sufficient to
establish compelling circumstances.
The Board’s decisions and orders are “final upon the expiration of 30 days from the date
of their issuance.”4
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-0824 is dismissed.
Issued: May 27, 2021
Washington, DC

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

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

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

4

Id. at § 501.6(d).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION, New York, NY,
Employer
__________________________________________

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

Docket No. 18-1358
Issued: June 13, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On July 2, 2018 appellant filed a timely appeal from an April 18, 2018 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish that her diagnosed
medical conditions were causally related to the accepted April 12, 2018 employment incident.
FACTUAL HISTORY
On May 4, 2017 appellant, then a 40-year-old investigative specialist, filed a traumatic
injury claim (Form CA-1) alleging that on April 12, 2017 she sustained a bilateral vertebral
1

5 U.S.C. § 8101 et seq.

dissection and cerebral stroke when driving her employing establishment vehicle during
surveillance activity while in the performance of duty. She explained that, when she turned her
head rapidly to check the traffic movement behind her, she sustained a “dissection of the left and
right [vertebral] arteries which [caused] a blood clot, and then a cerebral stroke.”
On the reverse side of the claim form appellant’s supervisor indicated that appellant was
injured in performance of duty. She noted that appellant was driving her assigned vehicle when
she “turned her head rapidly.” The supervisor did not indicate a date when appellant stopped work.
In a development letter dated May 12, 2017, OWCP informed appellant that additional
factual and medical evidence was necessary to establish her claim. It also requested that she
complete a factual questionnaire regarding the injury. OWCP afforded appellant 30 days to submit
the requested evidence.
OWCP subsequently received an April 12, 2017 report from an emergency medical
technician, an April 12, 2017 sinus bradycardia test report, and an April 17, 2017 admission and
patient discharge instructions from Mount Sinai Hospital.
An April 12, 2017 computerized tomography (CT) scan of the head read by Dr. Marvin
Weingarten, a Board-certified diagnostic radiologist, was found to be within normal limits.
OWCP also received April 12, 2017 treatment notes in which Dr. Robin S. Kim, an
emergency medicine specialist, diagnosed a nonintractable headache, unspecified, and chronicity
pattern, unspecified.
In an April 12, 2017 report, Dr. Purushottam Tiwari, a family medicine specialist,
diagnosed dizziness, possible stroke.
An April 17, 2017 magnetic resonance imaging (MRI) scan of the brain read by
Dr. Stephen Greenberg, a Board-certified diagnostic radiologist, revealed acute/subacute infarct
of the posteromedial left cerebellar hemisphere with restricted diffusion, and no mass effect on the
fourth ventricle or hydrocephalus.
An April 17, 2017 magnetic resonance intracranial angiogram (MRA) read by
Dr. Greenberg revealed fetal origin of right posterior cerebral artery from the right internal carotid
artery, aplastic A1 segment of the right anterior cerebral artery with normal caliber A2 segmented
cross-filled from the left anterior cerebral artery by way of a patent anterior communicating artery,
and patent superior cerebellar arteries bilaterally.
An April 18, 2017 MRA read by Dr. Greenberg revealed focal dissection of the left
vertebral artery as it exited the left transverse foramen at the C1 level, extending over a length of
approximately three centimeters, with intramural hematoma over the proximal one centimeter, and
patent false lumen over the distal two centimeter.
OWCP received an April 19, 2017 report from Dr. Gabriella Tantino, a neurologist, who
indicated that appellant was seen for a stroke and follow up of left cerebellar stroke and bilateral
vertebral dissection. Dr. Tantino advised appellant to avoid sudden neck movements, vigorous
exercise, heavy lifting, chiropractic manipulation, and yoga.
2

In a May 8, 2017 report, Dr. Deborah Horowitz, Board-certified in internal medicine, noted
that appellant was under her care for treatment of bilateral vertebral artery dissection and a left
cerebellar infarction. She explained that appellant had no residual deficits and her prognosis was
excellent. Dr. Horowitz advised that appellant could not do any heavy lifting, but she was able to
drive. She diagnosed cerebral stroke and bilateral vertebral artery dissection and indicated that
appellant could work with restrictions.
By decision dated June 19, 2017, OWCP denied appellant’s claim, finding that she had not
met her burden of proof to establish causal relationship between her diagnosed medical conditions
and the accepted April 12, 2017 employment incident.2
On July 17, 2017 appellant requested reconsideration.
In an April 12, 2017 report, Dr. Chantal Gabriel, an emergency medicine physician
explained that, while driving, appellant’s vision began to change and it seemed like it “rotated,”
appellant had difﬁculty steering due to upper extremity weakness, and could not focus on the road.
At some point, while driving, appellant felt like she was going to pass out, but stated that “she was
trying to ﬁght it off.” When she got home, she went to an urgent care center for evaluation. While
there appellant began to experience pain in the back of her eyes. She also reported associated
symptoms of feeling “shaky,” diaphoresis, and weakness in both extremities (more on her right
side), nausea, vomiting, and a headache and dizziness. Dr. Gabriel opined that her impression/
differential diagnosis was hyperglycemia, but that a final diagnosis was pending.
OWCP received an unsigned and undated statement from the employing which confirmed
that no accident occurred, no police report was filled, and no investigation was conducted.
OWCP received appellant’s undated responses to OWCP’s questionnaire on
August 1, 2017. Appellant denied having any similar disability or symptoms prior to the
employment incident. She explained that immediately after she made a quick turn of her head, she
felt pain in her neck, her vision was affected, and she began to suffer other symptoms.
In a May 8, 2017 report, Dr. Horowitz noted that appellant was under his care for bilateral
vertebral artery dissection and a left cerebellar infarction. She recommended that appellant not
perform heavy lifting, and indicated that she was unable to drive.
By decision dated October 12, 2017, OWCP denied appellant’s request for reconsideration,
finding that the evidence submitted was insufficient to warrant a merit review.
On December 5, 2017 appellant again requested reconsideration. She indicated that she
was submitting additional evidence from her physician, Dr. Horowitz.

2

OWCP also noted that appellant had two prior claims involving motor vehicle accidents. The prior claims included
a June 1, 2011 traumatic injury under File No. xxxxxx977, and a July 21, 2016 traumatic injury under File No.
xxxxxx241, for a head injury. OWCP explained that it was unclear whether there was a correlation between her mini
stroke symptoms and the two previous motor vehicle accidents in 2010 and 2016, or if there were any other similar
injuries she might have sustained prior to April 12, 2017.

3

In a September 19, 2017 report, Dr. Horowitz advised that appellant was under her care
from April 17 to 19, 2017. She noted the employment incident and explained that appellant’s MRI
scan revealed a cerebellar stroke and bilateral vertebral artery dissections. Dr. Horowitz opined:
“[h]ead turning while driving can be a cause of vertebral dissections; this may have been related
to the development of the dissections in this case. The stroke resulted from the dissections.
Concussions in the past are unlikely to be related.”
OWCP also received hospital records from Mount Sinai Hospital dating from
April 17, 2017. The records included nursing notes, laboratory reports, nursing assessments, and
discharge instructions. Dr. Indira Gowda, an emergency medicine physician, diagnosed vertebral
artery dissection and cerebellar infarction.
In a letter dated April 11, 2018, appellant advised OWCP that she had not received a
response to her request for reconsideration.
By decision dated April 18, 2018, OWCP denied modification of the June 19, 2017
decision finding that the medical evidence of record was insufficient to establish that her diagnosed
conditions were causally related to the accepted work incident.
LEGAL PRECEDENT
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 timely filed within the applicable
time limitation 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 if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established.7 Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
allegedly occurred.8 The second component is whether the employment incident caused a personal
3

Id.

4

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
5
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

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

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

8

D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

4

injury.9 An employee may establish that an injury occurred in the performance of duty as alleged,
but fail to establish that the disability or specific condition for which compensation is being
claimed is causally related to the injury.10
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.11 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.12 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s).13
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that her
diagnosed medical conditions were causally related to the accepted April 12, 2017 employment
incident.
In an April 12, 2017 report, Dr. Gabriel opined that her impression/differential diagnosis
was hyperglycemia, but that a final diagnosis had not been established. As she did not provide a
firm diagnosis causally related to the accepted employment incident, the Board finds this report is
of limited probative value.14
Dr. Horowitz saw appellant on April 17 and May 8 and 19, 2017 and diagnosed cerebral
stroke and bilateral vertebral artery dissection. In a September 19, 2017 report, she opined:
“[h]ead turning while driving can be a cause of vertebral dissections; this may have been related
to the development of the dissections in this case. The stroke resulted from the dissections.
Concussions in the past are unlikely to be related.” This opinion on causal relationship was
speculative as she indicated that head turning while driving “can” be a cause of vertebral
dissections and “may” be related to the development of dissections. The Board has held that
speculative and equivocal medical opinions regarding causal relationship have no probative
value.15 The physician’s opinion must be expressed in terms of a reasonable degree of medical

9

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

10

D.D., Docket No. 18-0648 (issued October 15, 2018); Shirley A. Temple, 48 ECAB 404, 407 (1997).

11

T.H., supra note 7 at 388, 393; Robert G. Morris, 48 ECAB 238 (1996).

12

M.V., Docket No. 18-0884 (issued December 28, 2018); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

13

Id.

14

J.P., Docket No. 14-87 (issued March 14, 2014).

15

Ricky S. Storms, 52 ECAB 349 (2001) (while the opinion of a physician supporting causal relationship need not
be one of absolute medical certainty, the opinion must not be speculative or equivocal. The opinion should be
expressed in terms of a reasonable degree of medical certainty).

5

certainty and must be supported by medical rationale, explaining the nature of the relationship
between the diagnosed condition and appellant’s specific employment factor(s).16
Although Dr. Kim, Dr. Gowda, Dr. Tiwari, and Dr. Tantino also provided firm diagnoses,
they offered no opinion regarding the cause of the diagnosed conditions. The Board has held that
medical evidence that does not offer an opinion regarding the cause of an employee’s condition is
of no probative value on the issue of causal relationship.17
The record contains April 12, 2017 hospital admissions records, discharge instructions, and
an April 12, 2017 report from an emergency medical technician. These forms were not signed or
reviewed by a physician. Medical opinions, in general, can only be given by a qualified
physician.18 A report that is unsigned or bears an illegible signature lacks proper identification
and cannot be considered probative medical evidence.19
OWCP also received nursing notes dated April 12, 2017. These notes lack probative value
as healthcare providers such as physician assistants, physical therapists, or nurse practitioners are
not considered physicians as defined under FECA.20 Therefore, these reports are also of no
probative value regarding causal relationship.
The diagnostic reports of record dated April 12 to 18, 2017 are also insufficient to establish
appellant’s claim. The Board has held that reports of diagnostic tests lack probative value as they
do not provide an opinion on causal relationship between appellant’s employment duties and the
diagnosed conditions.21
As appellant submitted insufficient evidence to establish an injury caused by her accepted
employment incident, the Board finds that she has not met her burden of proof to establish her
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.

16

See supra note 13.

17

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

18

E.K., Docket No. 09-1827 (issued April 21, 2010); see 5 U.S.C. § 8101(2) (defines the term physician to include
surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within
the scope of their practice as defined by state law).
19

Thomas L. Agee, 56 ECAB 465 (2005); Richard F. Williams, 55 ECAB 343 (2004).

20

David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as nurses, physician assistants, and physical
therapists are not competent to render a medical opinion under FECA). See also M.M., Docket No. 16-1617 (issued
January 24, 2017).
21

See L.M., Docket No. 18-0473 (issued October 22, 2018).

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CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her
diagnosed medical conditions were causally related to the accepted April 12, 2017 employment
incident.
ORDER
IT IS HEREBY ORDERED THAT the April 18, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 13, 2019
Washington, DC

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

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

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

7