United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
TENNESSEE VALLEY AUTHORITY,
BROWNS FERRY NUCLEAR PLANT,
Decatur, AL, Employer
__________________________________________

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

Docket No. 11-2130
Issued: May 11, 2012

Case Submitted on the Record

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

JURISDICTION
On September 21, 2011 appellant filed a timely appeal from an August 22, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration of the merits of his claim. As more than 180 days has elapsed between the
issuance of OWCP’s last merit decision of September 20, 2010 and the filing of this appeal on
September 21, 2011, the Board has no jurisdiction over the merits of the case.1 Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over only the August 22, 2011 nonmerit decision.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s claim for merit
review pursuant to 5 U.S.C. § 8128(a).
1

20 C.F.R. § 501.3(e).

2

5 U.S.C. §§ 8101-8193.

On appeal, appellant generally asserts that the evidence submitted with his
reconsideration request was sufficient to establish that his claim for employment-related hearing
loss was timely filed.
FACTUAL HISTORY
This case has previously been before the Board.3 By decision dated May 5, 2006, the
Board found that appellant’s claim was barred by the applicable time limitation provisions of
FECA.4 On October 20, 2006 the Board denied his petition for reconsideration. Appellant
thereafter requested reconsideration with OWCP on a number of occasions and in merit
decisions dated August 4 and October 12, 2007, OWCP denied modification of the prior
decisions. In decisions dated January 16 and April 17, 2008, OWCP denied his requests for
reconsideration and in a merit decision dated November 4, 2008, it denied modification of the
prior decisions. By order dated February 23, 2009, the Board dismissed an appeal docketed as
08-1573 on the grounds that appellant wished to pursue reconsideration before OWCP. In a
September 17, 2009 decision, the Board again found that his claim was barred by the applicable
time limitation provisions of FECA.5 On April 13, 2010 the Board denied appellant’s petition
for reconsideration. The law and facts of the previous Board decisions and orders are
incorporated herein by reference.
On August 7, 2010 appellant again requested reconsideration and submitted a
performance evaluation that covered the period May 14, 1992 to March 2, 1993. His supervisor
stated: “[Appellant] may have a hearing disability; previous suggestions by supervisor personnel
for him to have his hearing checked have been ignored.” In a merit decision dated
September 20, 2010, OWCP denied modification of the prior decisions. It noted that the record
contained an audiogram dated July 29, 1992 that was reviewed by an OWCP medical adviser and
did not show hearing loss due to federal employment, and that the supervisor’s statement on the
performance appraisal did not acknowledge an employment-related hearing loss.
On July 25, 2011 appellant requested reconsideration. He asserted that a preponderance
of the evidence of record established that his supervisors reasonably should have known that his
hearing loss was caused by noise exposure in his federal employment. In support of his
contention that his claim was timely, appellant submitted additional performance appraisals that
covered the periods October 24, 1987 to October 20, 1989, October 21, 1989 to March 6, 1991
and March 7, 1991 to May 13, 1992; copies of employing establishment policies regarding safety
procedures and hearing conservation; a Code of Federal Regulations section on training of
supervisors;6 and a copy of the Board case Duet Brinson.7
3

On January 26, 2004 appellant, then a 62-year-old former engineer who had retired on September 30, 1996, filed
an occupational disease claim, alleging that noise exposure during his federal employment caused a hearing loss.
4

Docket No. 06-464 (issued May 5, 2006).

5

Docket No. 09-452 (issued September 17, 2009).

6

20 C.F.R. § 1960.55.

7

51 ECAB 168 (2000).

2

In a nonmerit decision dated August 22, 2011, OWCP reviewed the history of the case,
discussed the evidence and argument submitted with his July 25, 2011 reconsideration request,
and found it immaterial, irrelevant, repetitious or cumulative and denied appellant’s
reconsideration request.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation, either under its own authority or on
application by a claimant.8 Section 10.608(a) of the Code of Federal Regulations provide that a
timely request for reconsideration may be granted if OWCP determines that the employee has
presented evidence and/or argument that meets at least one of the standards described in section
10.606(b)(2).9 This section provides that the application for reconsideration must be submitted
in writing and set forth arguments and contain evidence that either: (1) shows that OWCP
erroneously applied or interpreted a specific point of law; or (2) advances a relevant legal
argument not previously considered by OWCP; or (3) constitutes relevant and pertinent new
evidence not previously considered by OWCP.10 Section 10.608(b) provides that, when a
request for reconsideration is timely but fails to meet at least one of these three requirements,
OWCP will deny the application for reconsideration without reopening the case for a review on
the merits.11
ANALYSIS
The only decision before the Board in this appeal is the nonmerit decision of OWCP
dated August 22, 2011 denying appellant’s request for reconsideration. Because there is no
OWCP merit decision within the Board’s jurisdiction, the Board lacks jurisdiction to review the
merits of appellant’s claim.12
With his July 25, 2011 reconsideration request, appellant asserted that a preponderance of
the evidence of record established that his supervisors reasonably should have known that his
hearing loss was caused by noise exposure in his federal employment. As noted in the Board’s
September 17, 2009 decision, he made a similar argument previously, contending at that time
that the employing establishment had both constructive and actual notice of his hearing loss
because its medical records disclosed an illness. The Board found that the record did not
establish that the employing establishment had constructive notice, finding that it was not enough
that the employing establishment knew appellant suffered from a hearing loss but also that his
8

5 U.S.C. § 8128(a).

9

20 C.F.R. § 10.608(a) (1999).

10

Id. at § 10.608(b)(1) and (2) (1999).

11

Id. at § 10.608(b) (1999).

12

For final adverse OWCP decisions issued prior to November 19, 2008, a claimant has up to one year to appeal
to the Board. See 20 C.F.R. § 501.3(d)(2) (2007). For final adverse decisions issued on or after November 19,
2008, a claimant has 180 days to file an appeal with the Board. See C.F.R. § 501.3(e) (2008); R.C., Docket No.
10-2371 (issued July 14, 2011).

3

supervisors knew or reasonably should have known that the condition was caused by noise
exposure at work.13 In support of his current argument, appellant submitted performance
appraisals covering the period October 24, 1987 to May 13, 1992, copies of employing
establishment policies and federal regulations on training of supervisors and a copy of the
Board’s Duet Brinson decision.14
For actual knowledge of a supervisor to be regarded as timely filing, an employee must
show not only that the immediate superior knew that he or she was injured, but also knew or
reasonably should have known that it was an on-the-job injury.15 The instant case can be
distinguished from Brinson, where the Board found appellant’s claim for polychlorinated
biphenyls exposure was timely filed. Here, as noted in the prior Board decisions, the employing
establishment has conceded noise exposure but noted that when appellant was first employed on
November 5, 1978 an audiogram was obtained that showed a hearing loss and that audiograms
performed while he worked at the employing establishment did not show a significant threshold
shift.16
The performance appraisals submitted with appellant’s request for reconsideration do not
mention a hearing loss and are therefore irrelevant. The policies and regulations are of a general
nature and do not address the specific factual situation at issue in this case.17
As appellant did not show that OWCP erred in applying a point of law, advance a
relevant legal argument not previously considered or submit relevant and pertinent new evidence
not previously considered by OWCP, it properly denied his reconsideration request.18
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
consideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

13

Supra note 5.

14

Supra note 7.

15

5 U.S.C. § 8122(b); M.B., Docket No. 11-673 (issued January 10, 2012).

16

Supra notes 4 and 5.

17

See generally Roger G. Payne, 55 ECAB 535 (2004).

18

Supra note 11.

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ORDER
IT IS HEREBY ORDERED THAT the August 22, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 11, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.M., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Ashland, KY, Employer
__________________________________________

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

Docket No. 18-0613
Issued: October 15, 2018

Case Submitted on the Record

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

JURISDICTION
On January 30, 2018 appellant filed a timely appeal from a December 8, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a pulmonary
embolism causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On July 6, 2017 appellant, then a 37-year-old assistant food service administrator, filed an
occupational disease claim (Form CA-2) alleging that he developed a pulmonary embolism while

1

5 U.S.C. § 8101 et seq.

traveling to training for work. He first became aware of his claimed condition on April 3, 2017
and realized that it was caused or aggravated by his federal employment on April 7, 2017.
In an April 7, 2017 emergency department note, Dr. Solomon Woldetensay, a specialist in
internal medicine, reported that appellant was evaluated for second episode of shortness of breath
that started four days prior when he was in Denver, Colorado. Appellant reported that he initially
thought his shortness of breath was due to the altitude change, but then he realized it was
reminiscent of when he had a pulmonary embolism in 2009. He also reported that he drove to
Florida frequently without stopping, but denied any leg swelling or calf pain. A computerized
tomography angiography (CTA) scan showed bilateral pulmonary embolism. There was no
evidence for deep venous thrombosis (DVT) in his lower extremities.
In a July 19, 2017 development letter, OWCP informed appellant that the evidence of
record was insufficient to establish his claim. It advised him as to the type of medical and factual
evidence required. OWCP afforded appellant 30 days to provide the requested evidence.
In response, OWCP received appellant’s November 1, 2017 statement, training
authorization form, training welcome letter, list of attendees at the training course, training
authorization form SF-182 for the period March 20 through 23, 2017 and April 3 through 6, 2017,
and appellant’s flight itineraries for the listed periods.
In a September 5, 2017 letter, Dr. Kimberly Lucas Day, an internist, noted that appellant
took two round-trip work-related flights to Denver, Colorado in March through April 2017 and
developed a pulmonary embolus. She indicated that long flights (i.e., prolonged immobilization)
were a known risk factor for development of emboli.
By decision dated December 8, 2017, OWCP denied appellant’s occupational disease
claim. It found that the medical evidence of record was insufficient to establish that the claimed
pulmonary embolism condition was employment related.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) medical evidence establishing the presence or existence
2

Id.

3

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

4

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

2

of the disease or condition for which compensation is claimed; (2) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; and (3) medical evidence establishing that the diagnosed condition is causally
related to the identified employment factors.5
While on temporary-duty assignment, an employee is covered by FECA 24 hours a day
with respect to any injury that results from activities incidental to the temporary assignment. The
fact that an employee was on a special mission or in travel status during the time the condition
manifested itself does not raise an inference that the condition was causally related to the incidents
of employment.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.7 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is causal relationship between the employee’s diagnosed condition and the
compensable employment factors.8 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty, and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.9
ANALYSIS
The Board finds that the medical evidence of record is insufficient to establish that
appellant’s pulmonary embolism was caused or aggravated by the accepted factors of his federal
employment.
OWCP accepted that appellant was in the performance of duty while on flights to Colorado
during March and April 2017. While it is accepted that appellant was in travel status and therefore
in the performance of duty at the time of the alleged injury, it remains his burden of proof to
establish causal relationship between his diagnosed condition and the accepted factor of
employment.10
In her September 5, 2017 report, Dr. Day reported an accurate history as she noted that
appellant took two round-trip work-related flights to Denver, Colorado and back in March through
April 2017. While she opined that appellant developed a pulmonary embolus from the flights and
explained that long flights (i.e., prolonged immobilization) were a known risk factor for
5

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

6

See A.F., Docket No. 14-1392 (issued October 21, 2014).

7
Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).
8

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).

9

I.J., 59 ECAB 408 (2008); supra note 5.

10

Supra note 7.

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development of emboli, Dr. Day failed to explain how, in this specific case, two work-related
flights physiologically resulted in the diagnosed pulmonary embolus condition.11 Thus, this report
is insufficient to meet appellant’s burden.
The only other medical evidence of record, the April 7, 2017 emergency department report
from Dr. Woldetensay was also insufficient to establish appellant’s claim. While the report
provided a history of shortness of breath while appellant was in Denver, Colorado and an
assessment of pulmonary embolism by CTA scan, it does not contain an opinion on causal
relationship.12 Lacking a rationalized medical opinion regarding causal relationship, this report is
of limited probative value.13
Accordingly, the record currently before the Board is devoid of any medical opinion, which
is supported by sufficient rationale, explaining how the diagnosed pulmonary condition had been
caused by appellant’s work-related air travel during the accepted time frame.
An award of compensation may not be based on surmise, conjecture, speculation, or on the
employee’s own belief of causal relationship.14 Appellant’s honest belief that the factors of his
federal employment caused his medical conditions, however sincerely held, does not constitute
medical evidence sufficient to establish causal relationship.15
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 his burden of proof to establish a pulmonary
embolism causally related to the accepted factors of his federal employment.

11

See N.C., Docket No. 15-1900 (issued March 7, 2016); S.E., Docket No. 08-2214 (issued May 6, 2009).

12
C.B., Docket No. 09-2027 (issued May 12, 2010); Jaja K. Asaramo, 55 ECAB 200 (2004): Michael E. Smith, 50
ECAB 313 (1990).
13

See supra note 9.

14

G.E., Docket No. 17-1719 (issued February 6, 2018); D.D., 57 ECAB 734 (2006).

15

J.S., Docket No. 18-0477 (issued August 28, 2018).

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ORDER
IT IS HEREBY ORDERED THAT the December 8, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 15, 2018
Washington, DC

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

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

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

5


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

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

Docket No. 07-2144
Issued: February 1, 2008

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 August 20, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated June 25, 2007, denying her claim for
compensation. 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
May 10, 2007.
FACTUAL HISTORY
On May 14, 2007 appellant, then a 53-year-old mail carrier, filed a traumatic injury claim
(Form CA-1) alleging that on May 10, 2007 at 3:00 p.m. she sustained an injury during mail
delivery. She twisted to get a parcel from the back seat, but it was too heavy so she got out of
the vehicle to pick up the parcel. Appellant alleged that she strained muscles in her back and
arm, with numbness in the fingers of her left hand. The reverse of the claim form indicated that

appellant stopped work on May 10, 2007. The employing establishment controverted the claim,
stating that appellant originally reported to her supervisor that she did not know how she hurt her
arm.
The record indicates that appellant was treated on May 12, 2007 at a hospital emergency
room reporting sharp left upper back and shoulder pain for three days. The hospital report by
Dr. Habib Karkavandian also stated that appellant worked at the employing establishment and
carried heavy boxes and mails every day, noting that appellant felt she pulled a muscle in her
back. The report stated, “Patient suffered acute trauma as a result of lifting/turning.”
Dr. Karkavandian diagnosed acute dorsal strain.
In a form report (Form CA-20) dated May 15, 2007, a physician diagnosed neck sprain.1
The history of injury is illegible and a box “yes” was checked in response to a question as to
whether the condition was caused or aggravated by employment, with the physician stating
“most probably.” Appellant also submitted a May 17, 2007 report of a magnetic resonance
imaging scan of the cervical spine, a May 15, 2007 duty status report and a form report
indicating that she could work with restrictions as of May 15, 2007.
By decision dated June 25, 2007, the Office denied the claim for compensation. The
Office found the medical evidence was insufficient to establish the claim.
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
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

1

The signature of the physician is illegible.

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, 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 alleged that on May 10, 2007 at approximately 3:00 p.m. she sustained an
injury to her back and arm. She did not provide a detailed statement regarding the incident. The
claim form noted that she twisted to retrieve a parcel while in her delivery vehicle, although it
appears the injury occurred after she left the vehicle and attempted to lift the parcel. While the
employing establishment controverted the claim because appellant did not notify her supervisor
of an injury until May 14, 2007, the Office did not base the denial of the claim on the first
component of fact of injury. Appellant did report the incident on the claim form within a few
days of the alleged incident, and did seek medical attention on May 12, 2007. The record does
not contain such inconsistencies in the evidence as to cast serious doubt upon the validity of the
claim.8 The record is sufficient to establish the first component of fact of injury.
The May 12, 2007 hospital report provided a history that appellant’s job required lifting
on a daily basis. Although the report referred to acute trauma as a result of lifting/turning, there
was no specific history of a May 10, 2007 employment incident. Moreover, the report did not
contain a rationalized medical opinion on causal relationship between a diagnosed acute dorsal
strain and a May 10, 2007 incident. There must be more than a brief reference to
“lifting/turning” without further explanation.
The form report dated May 15, 2007 with a checked box “yes” on causal relationship is
not sufficient to establish the claim. It is well established that the checking of a box “yes” in a
form report, without additional explanation or rationale, is not sufficient to establish causal
relationship.9 The physician did not provide additional explanation, stating only “most probably”
without further discussion. Moreover, it is not clear what history of injury was provided, as the
report is primarily illegible in noting the history of injury.
6

Id.

7

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

8

Tia L. Love, 40 ECAB 586, 590 (1989); Merton J. Sills, 39 ECAB 572, 575 (1988). An employee’s statement
alleging that an injury occurred at a given time and in a given manner is of great probative value and will stand
unless refuted by strong or persuasive evidence. See Robert A. Gregory, 40 ECAB 478, 483 (1989).
9

See Barbara J. Williams, 40 ECAB 649, 656 (1989).

3

The Board finds that the record does not contain a medical report with an accurate history
and a rationalized opinion on causal relationship between a diagnosed condition and the May 10,
2007 employment incident. It is appellant’s burden of proof and the Board finds that she did not
meet her burden of proof in this case.
CONCLUSION
Appellant did not meet her burden of proof to establish an injury in the performance of
duty on May 10, 2007.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 25, 2007 is affirmed.
Issued: February 1, 2008
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
__________________________________________
A.C., Appellant
and
DEPARTMENT OF THE NAVY, FLEET
READINESS CENTER SOUTHWEST,
San Diego, CA, Employer
__________________________________________

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

Docket No. 21-1307
Issued: March 22, 2022

Case Submitted on the Record

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

JURISDICTION
On August 30, 2021 appellant, through counsel, filed a timely appeal from an August 20,
2021 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a medical condition
causally related to the accepted January 29, 2021 employment incident.
FACTUAL HISTORY
On February 18, 2021 appellant, then a 50-year-old aircraft mechanic, filed a traumatic
injury claim (Form CA-1) alleging that on January 29, 2021 he overstretched the ligaments in his
neck and left arm when torquing drone shafts while in the performance of duty. He asserted that
he experienced extreme pain from the base of his cranium to the tips of the fingers on his left hand.
On the reverse side of the claim form, C.S., an employing establishment supervisor, contended
that appellant’s condition may not have been the result of a traumatic incident. Appellant did not
stop work.
In an attached statement, C.S. further explained that appellant called out of work on
January 28 and 29, 2021 due to shoulder pain and was advised to return to work with a physician’s
note indicating that it was safe for him to return to his regular duties. The following day, appellant
reported that his physician held him out of work February 1 through 5, 2021. On February 8, 2021
he returned to work with a physician’s note releasing him to full duty. However, later that day, at
2:50 p.m., appellant asserted that he reinjured his shoulder and stopped work.
In February 23, 2021 development letter, OWCP informed appellant of the deficiencies of
his claim. It advised him of the type of factual and medical evidence needed to establish his claim
and requested a narrative medical report from his treating physician containing a detailed
description of findings and a diagnosis, explaining how his work incident caused or aggravated a
medical condition. OWCP afforded appellant 30 days to submit the necessary evidence.
In an undated statement, appellant explained that on January 28, 2021 he was installing a
right-sided engine driveshaft, which required him to contort the left side of his body and lean into
the engine in order to reach the bolts and nuts. He related that he felt a click in his neck and
shoulder, followed by a sharp pain in his left arm, shoulder, and neck. Appellant sought emergency
treatment that night and notified his supervisor the following morning. He noted that he attempted
to return to work one week later and experienced excruciating pain while completing another drive
shaft. Appellant recounted that he immediately notified his supervisor and sought additional
medical care.
In a return to work note, Sherri McCarty, a nurse practitioner, indicated that she held
appellant off from work until further notice.
By decision dated April 1, 2021, OWCP accepted that the January 29, 2021 employment
incident occurred, as alleged. However, it denied appellant’s traumatic injury claim, finding that
he had not submitted medical evidence containing a medical diagnosis in connection with the
accepted employment incident. Consequently, OWCP found that he had not met the requirements
to establish an injury as defined by FECA.

2

On April 8, 2021 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
OWCP continued to receive evidence. On April 7, 2021 appellant sought treatment with
Dr. Maxsimo Torres, a family medicine specialist, with complaints of left shoulder and neck pain
with numbness related to a work injury he sustained while installing a drive shaft. Dr. Torres
performed a physical examination and documented tenderness of the left acromioclavicular (AC)
and glenohumeral joints, bicipital groove, and shoulder. He diagnosed joint pain, osteoarthritis,
adhesive capsulitis, and articular cartilage disorder of the left sh oulder and recommended an
orthopedic evaluation, medication, an x-ray of the cervical spine, magnetic resonance imaging
(MRI) scan of the left shoulder, and a rheumatology panel.
In an attending physician’s report (Form CA-20) also dated April 7, 2021, Dr. Torres noted
that appellant sustained an injury to his left shoulder on January 29, 2021. He checked a box
marked “Yes” indicating that the condition was caused or aggravated by an employment activity.
By decision dated August 20, 2021, OWCP’s hearing representative modified the April 1,
2021 decision, finding that appellant had established a medical diagnosis in connection with the
accepted January 29, 2021 employment incident. However, the claim remained denied, because
the evidence of record was insufficient to establish causal relationship between the accepted
January 29, 2021 employment incident and his diagnosed left shoulder conditions.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning 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 whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. The first component is that the
employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time, place, and in the manner alleged. The second component is
3

Id.

4

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

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

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

3

whether the employment incident caused a personal injury and can be established only by medical
evidence.7
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 8 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment incident
identified by the claimant.9
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition. 10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted January 29, 2021 employment incident.
In his narrative report dated April 7, 2021, Dr. Torres noted that appellant related a history
of an injury to his left shoulder while installing a drive shaft at work on the date of the alleged
injury. He diagnosed joint pain, osteoarthritis, adhesive capsulitis, and articular cartilage disorder
of the left shoulder. Dr. Torres did not, however, offer an opinion as to whether these diagnosed
conditions were causally related to the accepted employment injury. 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. 11 Therefore, Dr. Torres’ April 7, 2021
report is insufficient to establish appellant’s claim.
In a Form CA-20 dated April 7, 2021, Dr. Torres noted appellant’s January 29, 2021 left
shoulder injury. He checked a box marked “Yes” to indicate that the condition was caused or
aggravated by an employment activity. While the Form CA-20 provided an affirmative opinion
which supported causal relationship, Dr. Torres did not provide a pathophysiological explanation

7

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

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

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

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
M.B., Docket No. 20-1275 (issued January 29, 2021); see R.D., Docket No. 18-1551 (issued March 1, 2019).
11

See S.S., Docket No. 21-0837 (issued November 23, 2021); J.M., Docket No. 19-1926 (issued March 19, 2021);
L.D., Docket No. 20-0894 (issued January 26, 2021); T.F., Docket No. 18-0447 (issued February 5, 2020); L.B.,
Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

4

as to how the accepted incident either caused or contributed to appellant’s diagnosed conditions. 12
The Board has held that when a physician’s opinion as to the cause of a condition consists only of
a checkmark on a form, without further explanation or rationale, that opinion is of diminished
probative value and is insufficient to establish a claim. 13 Therefore, the April 7, 2021 Form CA20 is also insufficient to establish appellant’s claim.
The remaining medical evidence of record consists of a return-to-work note signed by a
nurse practitioner. Nurse practitioners are not considered “physician[s]” as defined under FECA
and thus their reports do not constitute competent medical opinion evidence.14
As appellant has not submitted rationalized medical evidence establishing a medical
condition causally related to the accepted January 29, 2021 employment incident, the Board finds
that he has not met his burden of proof to establish his claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted January 29, 2021 employment incident.

12

Id.; J.G., Docket No. 20-0009 (issued September 28, 2020).

13

See A.C., Docket No. 21-0087 (issued November 9, 2021); O.M., Docket No. 18-1055 (issued April 15, 2020);
Gary J. Watling, 52 ECAB 278 (2001).
14

Section 8101(2) provides that physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.
See 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See supra note 10 at Chapter 2.805.3a(1) (January 2013); David P.
Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and physical therapists
are not competent to render a medical opinion under FECA); see also D.S., Docket No. 19-1657 (issued July 20, 2020)
(nurse practitioners and registered nurses are not considered physicians under FECA).

5

ORDER
IT IS HEREBY ORDERED THAT the August 20, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 22, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Jamaica Plain, MA, Employer
__________________________________________

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

Docket No. 20-1310
Issued: April 21, 2021

Case Submitted on the Record

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

JURISDICTION
On June 12, 2020 appellant filed a timely appeal from April 10 and 28, 2020 merit
decisions 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 these merit decisions.2
ISSUES
The issues are:
(1) whether OWCP properly suspended appellant’s wage-loss
compensation benefits, effective April 26, 2020, for failure to fully complete an EN1032 form as
requested; and (2) whether OWCP properly suspended appellant’s right to augmented
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the April 28, 2020 decision, appellant submitted additional evidence to OWCP.
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.

compensation, effective April 26, 2020, because he had not established that he had a dependent as
defined under FECA.
FACTUAL HISTORY
On January 29, 2015 appellant, then a 46-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on January 13, 2015 he sustained a right knee injury when he
tripped and twisted his right knee while in the performance of duty.3 He stopped work on
February 2, 2015. OWCP accepted appellant’s claim for joint effusion and medial meniscus tear
of the right knee. It paid him wage-loss compensation for disability from work on the supplemental
rolls for the period March 19 through May 30, 2015, and on the periodic rolls for the period
May 31, 2015 through January 7, 2017.4
Appellant returned to limited-duty work (less than eight hours per day) commencing
January 8, 2017 and OWCP paid wage-loss compensation for partial disability from work for the
period January 9 through 20, 2017. He stopped work in late-January 2017, but did not receive
wage-loss compensation for this work stoppage.
Appellant continued in non-work status and on November 6 and 12, 2017 he filed claims
for compensation (Form CA-7) in which he claimed wage-loss compensation for disability from
October 14 through November 10, 2017 due to his accepted January 13, 2015 employment injury.
On December 10, 2017 he filed a Form CA-7 in which he claimed wage-loss compensation for
disability from November 11 through 24, 2017 due to his January 13, 2015 injury.
Appellant returned to limited-duty work (less than eight hours per day) in lateNovember 2017. OWCP then paid him wage-loss compensation for partial disability from work
on the supplemental rolls commencing November 28, 2017 and on the periodic rolls commencing
June 24, 2018. It paid the wage-loss compensation at the augmented 75 percent rate based on
appellant having a dependent daughter who was under age 18 (born on June 10, 2001).
By decision dated May 1, 2019, OWCP denied appellant’s claim for employment-related
disability for the period October 14 through November 10, 2017. By decision dated June 12, 2019,
it denied his claim for employment-related disability for the period November 11
through 24, 2017.
Appellant requested a hearing before a representative of OWCP’s Branch of Hearings and
Review and, by decision dated December 13, 2019, OWCP’s hearing representative affirmed the
May 1 and June 12, 2019 decisions.

3

OWCP assigned the claim File No. xxxxx2884. On his Form CA-1 appellant indicated that he had a dependent
in the form of a child under 18 years old. Under a separate claim (File No. xxxxx8884), OWCP had previously
accepted that, by early-2014, appellant had sustained the occupational diseases of aggravation of degenerative disc
disease/disc herniation at C5-6, and aggravation of diffuse cervical spondylosis. It administratively combined File
Nos. xxxxx8884 and xxxxx2884, designating the latter file as the master file
4
On May 8, 2015 appellant underwent OWCP-authorized right knee surgery, including debridement of the medial
meniscus.

2

OWCP periodically requested that appellant submit financial disclosure statements
(EN1032 forms), which solicited information about his employment, volunteer work, dependent
status, receipt of other federal benefits and/or payments, and third-party settlements. The forms
advised appellant regarding the standards for establishing whether he had a dependent within the
meaning of FECA and, therefore, qualified for compensation paid at the augmented 75 percent
rate.5 They advised appellant of the consequences for failure to fully provide information about
claimed dependents, including discontinuation of the right to receive augmented compensation.
On February 10, 2020 OWCP provided him with an EN1032 form and informed him that federal
regulations required him to report any earnings received or employment performed during the
previous 15 months. It advised that appellant was required to fully answer all questions on the
EN1032 form and return it within 30 days or his benefits would be suspended pursuant to 20 C.F.R.
§ 10.528. OWCP mailed the letter to his address of record.
On February 18, 2020 OWCP received an EN1032 form, signed by appellant on
February 14, 2020, which was missing pages 1, 3, and 5. In the “Part A -- Employment” section,
appellant did not respond to question 3 with a “Yes” or “No” answer regarding whether he was
unemployed for all periods during the past 15 months. In the “Part D -- Other Federal Benefits or
Payments” section, he did not respond to question 1 (subpart a), with a “Yes” or “No” answer
regarding whether he had been assigned a civil service active (CSA) number by the Office of
Personnel Management (OPM). In the “Part F -- Fraud Offenses” section, appellant did not
respond to question 2 with a “Yes” or “No” answer regarding whether he was incarcerated during
the past 15 months for any felony offenses that resulted in a conviction under state or federal law.
By decision dated April 10, 2020, OWCP suspended appellant’s wage-loss compensation
benefits, effective April 26, 2020, due to his failure to submit a fully completed EN1032 form as
requested. It noted that on February 18, 2020 it received an EN1032 form, signed by appellant on
February 14, 2020, which was missing pages 1, 3, and 5, and which contained inadequately
answered questions in the sections entitled “Part A -- Employment,” “Part D -- Other Federal
Benefits or Payments,” and “Part F -- Fraud Offenses.” OWCP advised that, if appellant fully
completed and returned an enclosed copy of the EN1032 form, it would reinstate his wage-loss
compensation benefits retroactive to the date of suspension.
On April 20, 2020 OWCP received a Form EN1032, signed on April 20, 2020 in which
appellant completed all seven pages and provided responses to the questions in the sections entitled
“Part A -- Employment,” “Part D -- Other Federal Benefits or Payments,” and “Part F -- Fraud
Offenses,” which had been referenced by OWCP in its April 10, 2020 decision. In the section
entitled “Part A – Employment,” appellant reported the pay he received working for the employing

5

The EN1032 forms advised that an unmarried child under 23 years of age could be a dependent after age 18 if he
or she qualified as a student because he or she had not completed four years of education beyond the high school level
and was regularly pursuing a full-time course of study. The forms also advised that an unmarried child could be a
dependent if he or she were living with the claimant or receiving regular contributions for support from the claimant,
and if he or she were incapable of self-support because of a physical or mental disability.

3

establishment. In the section entitled, “Part C -- Dependents,” he indicated that he was not married,
but asserted he had a dependent daughter who was born on June 10, 2001.6
By decision dated April 28, 2020, OWCP suspended payment of appellant’s wage-loss
compensation at the augmented 75 percent rate effective April 28, 2020.7 It advised him that it
had received the EN1032 he completed on April 20, 2020, but found that the form was incomplete
with respect to whether he had a dependent as defined under FECA and qualified for wage-loss
compensation paid at the augmented 75 percent rate. OWCP noted that appellant listed a daughter
who was over 18 years old, but did not explain how she qualified as a dependent. It advised him
that, if he completed and returned an enclosed copy of an EN1032 form, which demonstrated that
he was entitled to augmented wage-loss compensation, such compensation would be restored
retroactively to the date it was suspended.
LEGAL PRECEDENT -- ISSUE 1
Section 8106(b) of FECA authorizes the Secretary of Labor to require a partially disabled
employee to report his or her earnings from employment or self-employment, by affidavit or
otherwise, in the manner and at the times the Secretary specifies.8
Under section 10.528 of OWCP’s implementing federal regulations, an employee in receipt
of compensation benefits must complete an affidavit as to any work or activity indicating an ability
to work which the employee has performed for the prior 15 months.9 If an employee who is
required to file such a report fails to do so within 30 days of the date of the request, his or her right
to compensation for wage loss is suspended until OWCP receives the requested report. At that
time, OWCP will reinstate compensation retroactive to the date of suspension if the employee
remains entitled to compensation.10
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly suspended appellant’s wage-loss compensation
benefits, effective April 26, 2020, for failure to fully complete an EN1032 form as requested.
On February 10, 2020 OWCP provided appellant with the EN1032 form and notified him
that federal regulations required him to complete the form and answer all questions concerning his
employment or earnings. It properly notified him that, if he did not completely answer all
6
In an April 24, 2020 letter, OWCP again advised appellant regarding the standards for receiving wage-loss
compensation at the augmented 75 percent rate. It requested that he submit information verifying that he had a
dependent that qualified him for augmented compensation.
7
Effective April 26, 2020, OWCP paid appellant wage-loss compensation at the non-augmented 66 2/3 percent
rate, rather than the augmented 75 percent rate.
8

5 U.S.C. § 8106(b).

9

20 C.F.R. § 10.528. See also R.B., Docket No. 20-0176 (issued June 25, 2020); A.H., Docket No. 15-0241 (issued
April 3, 2015).
10

Id. See also P.M., Docket No. 16-0382 (issued May 19, 2016).

4

questions and return the form within 30 days, his benefits would be suspended. The record reflects
that OWCP’s letter was sent to appellant’s address of record and there is no indication that it was
returned as undeliverable.11 Under the mailbox rule, a document mailed in the ordinary course of
the sender’s business practices to the addressee’s last known address is presumed to be received
by the addressee.12
Appellant failed to timely submit a fully-completed EN1032 form within 30 days of
OWCP’s request. On February 18, 2020 OWCP received an EN1032 form, which was not fully
completed. The EN1032 form, signed by appellant on February 14, 2020, was missing pages 1, 3,
and 5. In the “Part A -- Employment” section, appellant did not respond question 3 with a “Yes”
or “No” answer regarding whether he was unemployed for all periods during the past 15 months.
In the “Part D -- Other Federal Benefits or Payments” section, he did not respond question 1
(subpart a), with a “Yes” or “No” answer regarding whether he had been assigned a CSA number
by the OPM.13 In the “Part F -- Fraud Offenses” section, appellant did not respond question 2 with
a “Yes” or “No” answer regarding whether he was incarcerated during the past 15 months for any
felony offenses that resulted in a conviction under state or federal law.
Appellant was receiving wage-loss compensation and was, therefore, required to fully
complete and submit the EN1032 form in a timely manner.14 Appellant’s failure to file a fullycompleted EN1032 form within 30 days properly resulted in the suspension of his wage-loss
compensation. Thus, the Board finds that OWCP properly suspended his wage-loss compensation
benefits, effective April 26, 2020, pursuant to 20 C.F.R. § 10.528.15
LEGAL PRECEDENT -- ISSUE 2
The basic rate of compensation under FECA is 66 2/3 percent of the injured employee’s
monthly pay. Where the employee has one or more dependents as defined under FECA, he or she
is entitled to have basic compensation augmented at the rate of 8 1/3 percent, for a total of 75
percent of monthly pay.16 Under FECA, a dependent includes, inter alia, “an unmarried child,
while living with the employee or receiving regular contributions from the employee toward his
support,” who is either under 18 years of age, or over 18 years of age and “incapable of self-support
because of physical or mental disability.”17 FECA further provides that compensation payable for

11

See J.H., Docket No. 20-0785 (issued October 23, 2020); Kenneth E. Harris, 54 ECAB 502 (2003).

12

Id.

13

Appellant indicated, “I don’t believe so. I don’t know what it is.”

14
See R.S., Docket No. 20-0580 (issued September 14, 2020); A.S., Docket No. 17-1530 (issued
November 7, 2017).
15

See R.B., supra note 9?; P.M., supra note 13; M.W., Docket No. 15-0507 (issued June 18, 2015).

16

5 U.S.C. § 8110(b).

17

Id. at § 8110(a)(3).

5

an unmarried child that would otherwise end at the time he or she reaches 18 years of age shall
continue if he or she is a student as defined by 5 U.S.C. § 8101.18
OWCP’s regulations provide that “[a]n employee who is receiving augmented
compensation shall be periodically required to submit a statement as to any dependents, or to
submit supporting documents such as birth or marriage certificates or court orders, to determine if
he or she is still entitled to augmented compensation.”19 According to section 10.536, “If an
employee fails to submit a requested statement or supporting document within 30 days of the date
of the request, OWCP will suspend his or her right to augmented compensation until OWCP
receives the requested statement or supporting document. At that time, OWCP will reinstate
augmented compensation retroactive to the date of suspension, provided that the employee is
entitled to receive augmented compensation.”20
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly suspended appellant’s right to augmented
compensation, effective April 26, 2020, because he had not established that he had a dependent as
defined under FECA.
The appellant claimed one dependent in the August 20, 2020 EN1032 form he submitted:
an 18-year-old daughter. The EN1032 form does not contain information to establish that
appellant’s daughter as eligible for dependent status under FECA.21 Although the EN1032 form
informed appellant of the qualifications for a dependent as defined under FECA, appellant only
indicated that he had a daughter who was born on June 10, 2001.
Through the submission of an EN1032 form appellant was required to submit evidence that
he had an eligible dependent as defined under FECA. Section 10.535 of OWCP’s regulations
indicates that a claimant shall be required to submit necessary evidence to support entitlement to
augmented compensation.22 OWCP, through the language of the EN1032 form, specifically
advised appellant of the information/evidence necessary to establish a continuing right to
augmented compensation, and of the consequences for failure to respond, including
discontinuation of the right to receive augmented compensation. Within the 30 days afforded by
OWCP, appellant failed to submit information/evidence, which would establish that he had a
dependent as defined under FECA. Under section 10.536 of the regulations, OWCP properly

18

Id. 5 U.S.C. § 8101(17) defines a student as an individual under 23 years of age who has not completed four
years of education beyond the high school level and is regularly pursuing a full-time course of study.
19

20 C.F.R. § 10.535(c).

20

Id. at § 10.536.

21

Id.

22

Id.

6

suspended entitlement to augmented compensation, effective April 26, 2020, as the necessary
information/evidence was not received.23
CONCLUSION
The Board finds that OWCP properly suspended appellant’s wage-loss compensation
benefits, effective April 26, 2020, for failure to fully complete an EN1032 form as requested. The
Board further finds that OWCP properly suspended appellant’s right to augmented compensation,
effective April 26, 2020, because he had not established that he had a dependent as defined under
FECA.
ORDER
IT IS HEREBY ORDERED THAT the April 10 and 28, 2020 decisions of the Office of
Workers’ Compensation Programs are affirmed.
Issued: April 21, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

23

See Jacqueline S. Harris, Docket No. 04-1730 (issued January 13, 2005).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.D., Appellant
and
DEPARTMENT OF LABOR, MINE SAFETY &
HEALTH ADMINISTRATION, Homewood, AL,
Employer
__________________________________________

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

Docket No. 15-0966
Issued: September 4, 2015

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 March 27, 2015 appellant filed a timely appeal from a March 16, 2015 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant has more than 23 percent bilateral hearing loss, for which
he previously received a schedule award.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 24, 2014 appellant, then a 63-year-old special investigator, filed an occupational
disease claim (Form CA-2) alleging that he experienced a threshold shift and noticed louder
ringing in his ears. He reported that he first became aware of his condition on August 19, 2004.
In an August 22, 2014 letter, OWCP advised appellant of the type of evidence needed to
establish his claim. On the same date it requested the employing establishment to address the
sources of his noise exposure, decibel and frequency level, period of exposure, and whether
hearing protection was provided.
On September 3, 2014 appellant explained that he worked for the employing
establishment since 1998 and was exposed to noise from coal-mining equipment during that
time. He also acknowledged that he was previously awarded compensation benefits for his
hearing loss after experiencing a 2007 threshold shift. In an April 8, 2008 decision, OWCP
granted appellant a schedule award for 23 percent bilateral hearing loss in case number
xxxxxx005. The period of the award ran from July 11, 2007 to April 12, 2008. Appellant
declared that his hearing had progressively deteriorated and that he had difficulty understanding
women and children.
The employing establishment, in a July 23, 2014 letter, specified that appellant was
exposed to noise from mining machinery for five to six hours a day and five days per week. It
provided him with various types of hearing protection.
OWCP received medical records and audiograms administered by the employing
establishment, dated October 6, 1998 to May 29, 2014. Also received were two e-mails, dated
August 3, 2012 and June 27, 2014, from the employing establishment’s human resources
division, advising appellant that repeat audiograms revealed increased hearing loss.
On January 13, 2015 OWCP referred appellant, along with a statement of accepted facts,
to Dr. Jack Aland, a Board-certified otolaryngologist, for a second opinion to evaluate the nature
and extent of his claimed hearing loss. In a January 29, 2015 report, Dr. Aland described the
examination and diagnosed bilateral neurosensory hearing loss. He opined that the condition
was due to employment-related noise exposure. Dr. Aland submitted the results of an
audiometric examination performed for him on January 29, 2015, reflecting testing at the
frequency levels of 500, 1,000, 2,000, and 3,000 cycles per second (cps). The results revealed
the following decibel losses: right ear 30, 35, 40, and 60 decibels (dBs); and left ear 25, 25, 45,
and 60 dBs. He advised that appellant may require new hearing aids.
By report dated February 23, 2015, an OWCP medical adviser, utilizing the sixth edition
of the American Medical Association, Guides to the Evaluation of Permanent Impairment,
(A.M.A., Guides), opined that appellant sustained 18 percent binaural hearing loss. The medical
adviser’s report was based on the results of the January 29, 2015 audiogram and Dr. Aland’s
second opinion report. To calculate appellant’s hearing loss, the medical adviser added
appellant’s decibel losses at the frequencies of 500, 1,000, 2,000, and 3,000 cps, averaged the
losses, and then deducted the fence of 25 dBs. The remaining amounts were multiplied by 1.5 to
arrive at the percentage of monaural hearing loss. According to the medical adviser’s report, the

2

above formula resulted in 16.875 percent monaural loss in the left ear and 24.375 percent
monaural loss in the right ear. The binaural loss was determined by calculating the loss in each
ear using the formula for monaural loss, then multiplying the lesser loss, in this case 16.875, by
five, and adding the greater loss, 24.375. The total was divided by six to arrive at a binaural
hearing loss of 18.125, rounded down to 18 percent. The medical adviser recommended
authorizing hearing aids and recorded the date of maximum medical improvement as
January 29, 2015. By comparing appellant’s 18 percent bilateral hearing loss to his 23 percent
bilateral hearing loss, for which he previously received a schedule award, the medical adviser
concluded that appellant did not suffer an increased impairment.
In a March 16, 2015 decision, OWCP advised appellant that his claim had been accepted
for bilateral hearing loss due to employment-related noise exposure. However, it denied his
claim for a schedule award, finding that the evidence did not support more than 23 percent
bilateral hearing loss, for which he was previously compensated in case number xxxxxx005.
OWCP informed appellant that he remained entitled to medical benefits, including hearing aids.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations2 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 to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants.3 The A.M.A., Guides (6th ed. 2009) have been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.4
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.5 Using the frequencies of 500, 1,000, 2,000, and 3,000 cps, the losses at each
frequency are added up and averaged. Then, the fence of 25 dBs is deducted because, as the
A.M.A., Guides point out, losses below 25 dBs result in no impairment in the ability to hear
everyday speech under everyday conditions. The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss. The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss; the lesser loss is multiplied
by five, then added to the greater loss and the total is divided by six to arrive at the amount of
binaural hearing loss. The Board has concurred in OWCP’s adoption of this standard for
evaluating hearing loss.6

2

20 C.F.R. § 10.404.

3

See D.K., Docket No. 10-174 (issued July 2, 2010); Michael S. Mina, 57 ECAB 379, 385 (2006).

4

Supra note 3; see F.D., Docket No. 09-1346 (issued July 19, 2010).

5

See A.M.A., Guides 250 (6th ed. 2009).

6

J.H., Docket No. 08-2432 (issued June 15, 2009); J.B., Docket No. 08-1735 (issued January 27, 2009).

3

FECA, and its implementing regulations, provide for the reduction of compensation for
subsequent injury to the same scheduled member.7 Benefits payable under 5 U.S.C. § 8107(c)
shall be reduced by the period of compensation paid under the schedule for an earlier injury if:
(1) compensation in both cases is for impairment of the same member or function or different
parts of the same member or function; and (2) the latter impairment in whole or in part would
duplicate the compensation payable for the preexisting impairment.8
ANALYSIS
OWCP previously awarded appellant a schedule award for 23 percent bilateral hearing
loss on April 8, 2008, in case number xxxxxx005. In the current case, it accepted that he
sustained bilateral hearing loss due to employment-related noise exposure. To develop the
claim, OWCP referred appellant to Dr. Aland, who, on January 29, 2015, examined appellant
and had an audiogram performed on his behalf. The audiogram tested decibel losses at 500,
1,000, 2,000, and 3,000 cps. The audiogram revealed losses in the right ear of 30, 35, 40, and 60
dBs, respectively, totaling 165 dBs. When divided by four, the result is an average hearing loss
of 41.25 dBs. The average loss of 41.25 dBs is reduced by the 25 dBs fence and multiplied by
the established factor of 1.5. The result is 24.375 percent monaural hearing loss in the right ear.
For appellant’s left ear, the audiogram revealed decibel losses of 25, 25, 45, and 60 dBs,
resulting in a total decibel loss of 155. When divided by 4, the result is an average hearing loss
of 38.75 dBs. The average loss of 38.75 dBs is reduced by the 25 dBs fence to equal 13.75 dBs.
When multiplied by the established factor of 1.5, it results in a 20.625 monaural hearing loss for
the left ear.
The 20.625 percent monaural loss in the left ear is multiplied by five, added to the 24.375
percent monaural loss in the right ear, and divided by six. The result is 21.25, which when
rounded down in accordance with OWCP policy, equals 21 percent binaural hearing loss.9
There is no other current medical evidence of record which contains audiometric testing
supporting a bilateral hearing loss greater than 23 percent.
In a February 23, 2015 report, an OWCP medical adviser concluded that appellant was
not entitled to an additional schedule award, as he had not suffered an increased impairment.
The Board notes that the medical adviser erroneously recorded a loss of 50 dBs at 3,000 cps for
appellant’s left ear, leading to the miscalculation of 18 percent bilateral hearing loss. As
recorded in the January 29, 2015 audiogram, at 3,000 cps his left ear rated a 60 dBs loss, which,
when used in the standardized formula, yields a bilateral loss of 21 percent, as explained above.
The medical adviser’s miscalculation, however, amounts to harmless error, as appellant’s 21
percent bilateral hearing loss still results in a percentage of impairment lower than his original
schedule award for which he previously received compensation.
7

5 U.S.C. § 8108; 20 C.F.R. § 10.404(c).

8

20 C.F.R. § 10.404(c)(1), (c)(2).

9

See L.B., Docket No. 14-479 (issued August 6, 2014); Federal (FECA) Procedure Manual, Part 3 -- Medical,
Schedule Awards, Chapter 3.700.4(b)(2)(b) (September 2010).

4

As appellant’s current impairment is 21 percent bilateral hearing loss and he was
previously paid for 23 percent bilateral hearing loss, the Board finds that he is not entitled to an
additional schedule award. OWCP properly denied his claim for an increased schedule award.
On appeal appellant contends that the August 3, 2012 and June 27, 2014 e-mails from the
employing establishment’s human resources division show that he experienced a threshold shift.
He also maintains that Dr. Aland’s January 29, 2015 report confirmed that he suffered hearing
loss. While Dr. Aland’s report clearly confirms that appellant sustained bilateral sensorineural
hearing loss, it does not demonstrate that he suffered a greater impairment for which he was
previously awarded. Under OWCP’s standardized formula, there is no current medical evidence
of record showing a greater hearing loss. Appellant also asserts that he should be compensated
for disability caused by his injury, noting that he cannot perform an underground mine inspection
while wearing hearing aids. The Board notes that it has no jurisdiction over whether the
accepted injury has caused disability as OWCP has not issued a decision regarding this.10 To the
extent that appellant asserts that his accepted hearing loss has limits his activities, the Board has
held that factors such as employability or limitations on daily activities have no bearing on the
calculation of a schedule award.11
The Board’s decision in this case does not preclude appellant’s entitlement to medical
benefits for his accepted bilateral hearing loss. Moreover, appellant may request an increased
schedule award based on evidence of new exposure or medical evidence showing progression of
an employment-related condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established that he is entitled to an additional
schedule award for hearing loss due to noise exposure from his federal employment.

10

See 20 C.F.R. § 501.2(c). The record does not indicate that appellant stopped work because of his accepted
condition nor does it contain a claim for wage loss caused by his accepted condition.
11

Kimberly M. Held, 56 ECAB 670 (2005).

5

ORDER
IT IS HEREBY ORDERED THAT the March 16, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 4, 2015
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Houston, TX, Employer
__________________________________________

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

Docket No. 18-0288
Issued: June 8, 2018

Case Submitted on the Record

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

JURISDICTION
On November 22, 2017 appellant filed a timely appeal from an October 18, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish total disability from
July 18 to August 13, 2017 causally related to her accepted January 27, 2017 employment injuries.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of OWCP’s October 18, 2017 decision and on appeal, appellant
submitted new evidence. The Board is precluded from reviewing evidence that was not before OWCP at the time of
its final decision. Thus, the Board will not review this new evidence for the first time on appeal. See 20 C.F.R.
§ 501.2(c)(1).

On appeal appellant contends that she developed spinal stenosis as a consequence of her
accepted employment injury. She notes that she received two injections, which provided no pain
relief. Appellant further contends that a medical report she submitted on appeal establishes the
need to undergo surgery to treat her back condition.
FACTUAL HISTORY
On January 30, 2017 appellant, then a 56-year-old medical support assistant, filed a
traumatic injury claim (Form CA-1) alleging that on January 27, 2017 she experienced pain and
swelling in her right ankle, left knee, and lower/upper back, and radiating pain from her neck to
right arm as a result of slipping on a wet floor as she walked down a hallway at work.
On February 22, 2017 OWCP accepted the claim for sprain of ligaments of the lumbar
spine and cervical spine, sprain of other ligament of the right ankle, and sprain of the medial
collateral ligament of the left knee.
On June 30, 2017 appellant filed a claim for compensation (Form CA-7), requesting
compensation for leave without pay (LWOP) from July 18 to August 13, 2017. In an attached
time analysis form (Form CA-7a) dated June 30, 2017, she attributed her lost time for work to
doctor visits and physical therapy. On the reverse side of the Form CA-7, the employing
establishment indicated that appellant received intermittent continuation of pay from January 30
to March 2, 2017. It noted that she stopped work on June 26, 2017.
OWCP, by development letter dated August 11, 2017, advised appellant that it had not
received any medical evidence to support her claim and afforded her 30 days to submit additional
evidence to establish disability for work during the claimed period.
Appellant submitted hospital records, including a June 12, 2017 radiology order and
June 13, 2017 laboratory requisition from Dr. William H. Hadnott, III, and a Board-certified
orthopedic surgeon. Dr. Hadnott diagnosed low back and lumbar radicular pain and ordered a
lumbar spine magnetic resonance imaging (MRI) scan. In a June 25, 2017 lumbar spine MRI scan
report, Dr. Stephen G. Parven, a Board-certified radiologist, provided an impression of spinal
stenosis greatest at L2-L3, L3-L4, and L4-L5 that was less pronounced at L5-S1 and multi-level
foraminal stenosis.
Appellant submitted additional medical records from Dr. Hadnott. In a Texas Workers’
Compensation Work Status Report form dated August 8, 2017, Dr. Hadnott indicated a history of
injury that appellant fell down on January 20, 2017. He diagnosed lumbar radiculopathy and
advised that appellant’s medical condition prevented her from returning to work as of July 24
through August 23, 2017. In reports dated July 24 and August 21, 2017, Dr. Hadnott examined
appellant and again diagnosed lumbar radicular pain. In a prescription dated August 22, 2017, he
ordered physical therapy, twice a week, for eight weeks and reiterated his diagnosis of lumbar
radiculopathy.
On September 12, 2017 Dr. Nitesh A. Banker, a Board-certified radiologist, reported that
appellant had a clinical history of lumbar radiculopathy and back pain. He treated her with a
lumbar epidural therapeutic injection.

2

On October 16, 2017 OWCP accepted appellant’s recurrence claim for additional medical
care.
By decision dated October 18, 2017, OWCP denied appellant’s claim for total disability
compensation for the period July 18 to August 13, 2017. It found that the medical evidence of
record failed to establish that the claimed disability was related to the accepted January 27, 2017
employment injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish essential
elements of his or her claim by the weight of the evidence.3 For each period of disability claimed,
the employee has the burden of proof to establish that he or she was disabled for work as a result
of the accepted employment injury.4 Whether a particular injury causes an employee to become
disabled for work, and the duration of that disability, are medical issues that must be proved by a
preponderance of probative and reliable medical opinion evidence.5
Under FECA the term disability means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.6 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.7 An employee who has a physical impairment causally related to his or her federal
employment, but who nonetheless has the capacity to earn the wages that he or she was receiving
at the time of injury, has no disability and is not entitled to compensation for loss of wage-earning
capacity.8 When, however, the medical evidence establishes that the residuals or sequelae of an
employment injury are such that, from a medical standpoint, they prevent the employee from
continuing in his or her employment, he or she is entitled to compensation for any loss of wages.
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify his or her disability and
entitlement to compensation.9

3

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986).

4

See Amelia S. Jefferson, id.

5

See Edward H. Horton, 41 ECAB 301 (1989).

6

S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); 20 C.F.R. § 10.5(f).

7

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

8

Merle J. Marceau, 53 ECAB 197 (2001).

9

See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

3

ANALYSIS
The Board finds that appellant has failed to establish that she was totally disabled from
work from July 18 to August 13, 2017 due to her accepted January 27, 2017 employment injuries.
OWCP accepted appellant’s claim for sprain of ligaments of the lumbar spine and cervical
spine, sprain of other ligament of the right ankle, and sprain of the medial collateral ligament of
the left knee. It denied her claim for total disability compensation for the period July 18 to
August 13, 2017, finding that she failed to submit sufficient medical evidence to establish a causal
relationship between her claimed total disability for that period and the accepted conditions.
Appellant has the burden of proof to establish by the weight of the substantial, reliable, and
probative evidence, a causal relationship between her claimed disability for that period and the
accepted conditions.10
Appellant submitted Dr. Hadnott’s August 8, 2017 Texas Workers’ Compensation Work
Status Report form in which he found that appellant was totally disabled from work from July 24
to August 23, 2017 due to lumbar radiculopathy, an additional condition not accepted as work
related by OWCP. Where an employee claims conditions not accepted or approved by OWCP
were due to an employment injury, appellant bears the burden of proof to establish that the
condition is causally related to the work injury.11 Dr. Hadnott did not explain his reasoning for
why he believed that appellant was totally disabled due to her accepted conditions. Further, he did
not explain how and why the additional condition was causally related to the accepted employment
injuries. A physician’s opinion on causal relationship between a claimant’s employment injury
and additional conditions or disability is not conclusive simply because it is rendered by a
physician. To be of probative value, the physician must provide rationale for the opinion reached.
Where no such rationale is present, the medical opinion is of diminished probative value.12
Dr. Hadnott also failed to provide an accurate history of injury. He reported that appellant
fell down on January 20, 2017. However, appellant explained that she fell down at work on
January 27, 2017. It is well established that medical reports must be based on a complete and
accurate factual and medical background, and medical opinions based on an incomplete or
inaccurate history are of little probative value.13
In a radiology order dated June 12, 2017, a laboratory requisition dated June 13, 2017, and
reports dated July 24 and August 21, 2017, Dr. Hadnott diagnosed lumbar radicular pain. The
Board notes that he failed to provide a firm medical diagnosis as he only diagnosed lumbar
radicular pain. The Board has consistently held that pain is a symptom, rather than a compensable
medical diagnosis.14 Furthermore, Dr. Hadnott did not offer a specific medical opinion addressing
10

Amelia S. Jefferson, supra note 3.

11

L.N., Docket No. 16-0137 (issued October 14, 2016); Jaja K. Asaramo, 55 ECAB 200 (2004).

12

L.N., id.

13

Douglas M. McQuaid, 52 ECAB 382 (2001).

14

C.F., Docket No. 08-1102 (issued October 10, 2008).

4

whether appellant had any total disability during the claimed period causally related to the accepted
January 27, 2017 work injuries. The Board has held that medical evidence that does not offer any
opinion regarding the cause of an employee’s condition is of limited probative value on the issue
of causal relationship.15 Likewise, Dr. Hadnott’s August 22, 2017 prescription is of limited
probative value on the issue of causal relationship. He reiterated his diagnosis of lumbar
radiculopathy, but failed to offer a medical opinion addressing whether the diagnosed condition
and any resultant total disability during the claimed period were causally related to the accepted
employment injuries.16 Therefore, for these reasons, Dr. Hadnott’s reports are insufficient to meet
appellant’s burden of proof.
Appellant also submitted Dr. Banker’s September 12, 2017 report in which he noted
appellant’s clinical history of lumbar radiculopathy and back pain and treated her with a lumbar
epidural therapeutic injection. Dr. Banker did not explain how the diagnosed conditions and any
resultant total disability during the claimed period were causally related to the accepted
conditions.17 Thus, his report is insufficient to meet appellant’s burden of proof.
On appeal appellant contends that she developed spinal stenosis as a consequence of her
accepted employment injuries. She notes that she received two injections, which provided no pain
relief. Appellant has not submitted rationalized medical evidence to establish a causal relationship
between the claimed total disability from July 18 to August 13, 2017 and the accepted employment
injuries. Thus, she has not met her burden of proof to establish that she is entitled to compensation
for the claimed disability.
Appellant further contends on appeal that a medical report she submitted on appeal
establishes the need to undergo surgery to treat her back condition. As previously noted, the Board
lacks the jurisdiction to review new evidence for the first time on appeal.18
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 failed to meet her burden of proof to establish total
disability from July 18 to August 13, 2017 causally related to her accepted January 27, 2017
employment injuries.

15

See M.S., Docket No. 17-0105 (issued December 7, 2017); S.E., Docket No. 08-2214 (issued May 6, 2009).

16

Id.

17

Id.

18

See supra note 2.

5

ORDER
IT IS HEREBY ORDERED THAT the October 18, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 8, 2018
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.U., Appellant
and
DEPARTMENT OF DEFENSE, FALLON
COMMISSARY, Fallon, NV, Employer
__________________________________________

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

Docket No. 10-721
Issued: October 25, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 25, 2010 appellant filed a timely appeal from the December 16, 2009
decision of the Office of Workers’ Compensation Programs which denied her reconsideration
request on the grounds that it was untimely filed and failed to present clear evidence of error.
Because more than one year elapsed since the most recent merit decision of the Office dated
September 16, 2008 to the filing of this appeal, the Board lacks jurisdiction to review the merits
of appellant’s claim 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 as
it was not timely filed and failed to present clear evidence of error.
FACTUAL HISTORY
On July 15, 2007 appellant, then a 50-year-old store worker, filed an occupational disease
claim alleging that she developed neck pain and shoulder and arm numbness as a result of
performing her work duties. She became aware of her condition on February 4, 1999 and

realized it was causally related to her work duties on April 1, 2006.
April 1, 2006.1

Appellant retired on

Appellant submitted a May 3, 2007, magnetic resonance imaging (MRI) scan of the
cervical spine which revealed a left paracentral disc osteophyte at C5-6, left facet degeneration
with left neural foraminal narrowing, moderate disc desiccation and disc osteophyte at C6-7 and
facet arthropathy at mid cervical levels. She came under the care of Dr. Viviane Ugalde, a
Board-certified physiatrist, who treated her for chronic neck pain after a work-related cervical
strain injury in 1999. Appellant diagnosed chronic cervical pain, residual myofascial pain and
distal symmetric numbness related to her myofascial pain.
By letter dated September 12, 2007, the Office advised appellant of the factual and
medical evidence needed to establish her claim and requested that she submit additonal evidence,
within 30 days. It asked that she submit a physician’s reasoned opinion addressing the
relationship of her claimed condition and specific employment factors.
In a June 7, 2005 report, Dr. Scott Playford, a Board-certified neurosurgeon, treated
appellant for neck pain which began in 1999 after a bag of rice fell on her head while at work.
He noted appellant underwent physical therapy with improvement only to have recurrent neck
pain after two years. On July 3, 2007 appellant was treated by Dr. James Lynch, a Boardcertified neurosurgeon, for neck and bilateral upper extremity radicular pain, weakness and
parenthesis. She reported a history of a work-related trauma in 1999 involving a bag of rice.
Dr. Lynch diagnosed neck pain refractory to conservative therapy, C5-6 and C6-7 multilevel
cervical degeneration, C5-6 and C6-7 foraminal stenosis bilaterally, C5-6 and C6-7 cervical
osteophytic disease, failed conservative therapy and work-related injury aggravating probable
degenerative age-related disc disease.
In a decision dated November 1, 2007, the Office denied appellant’s claim, findings that
the medical evidence was not sufficient to establish that her cervical condition was caused by the
accepted work duties.
On April 5, 2008 appellant requested reconsideration. She submitted physical therapy
reports dated March 12, 1999 and March 25, 2002. Appellant was treated by Dr. Playford on
June 24, 2004 and May 23, 2005. He diagnosed anxiety disorder and allergic rhinitis. On
March 22, 2006 Dr. Charles Quaglieri, a Board-certified neurologist, diagnosed cervical pain
syndrome secondary to blunt trauma in 1999 and migraine headaches, most likely secondary to
the trauma appellant received in 1999. On April 12, 2007 appellant sought treatment from
Dr. Ugalde for chronic neck pain which began after a work-related cervical strain injury in 1999.
Dr. Ugalde diagnosed chronic cervical pain after cervical strain in 1999 and in 2005, residual
myofascial pain in the left cervical paraspinal and distal symmetrical numbness of unknown
etiology. On January 7, 2008 appellant was treated by Dr. Walker for recurrent neck and arm
pain with numbness which began after a trauma at work in 1999. Dr. Walker diagnosed neck
pain with left arm symptoms most likely coming from the C5-6 disc or the C6-7 disc, possible
bilateral carpal tunnel syndrome and low back pain. A January 28, 2008 electromyogram (EMG)
1

Appellant filed the other claims relating to neck and arm conditions. These other claims are not before the
Board on the present appeal.

2

revealed no abnormalities. A January 29, 2008 x-ray of the cervical spine revealed mild
degenerative changes of the lower cervical spine, no fracture, subluxation or other abnormality.
On September 16, 2008 the Office denied modification of the November 1, 2007
decision.
In an undated letter postmarked October 17, 2009 appellant requested reconsideration.
She noted that she was in constant pain and experienced depression due to her condition,
reviewing the prior history of injury in 1999. Appellant requested to be sent to an Office referral
physician, but her request was denied. She was granted social security disability. In a May 8,
2009 report, Dr. Lynch noted appellant had evidence of bilateral C6 and C7 radiculopathies,
multilevel degenerative disc disease and foraminal stenosis. He recommended a two level
anterior cervical discectomy in 2007; however, appellant was not interested in pursuing surgery.
Dr. Lynch advised that he would not continue to be her physician because she had a negative
attitude and poor interaction with his office staff. Appellant submitted an October 15, 2009
decision from the Social Security Administration which granted her disability benefits.
In a December 16, 2009 decision, the Office denied appellant’s reconsideration request
finding that the request was not timely filed and did not present clear evidence of error.
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act vests the Office with
discretionary authority to determine whether it will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may (1) end, decrease or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”2
The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607(a)
provides that the Office will not review a decision unless the application for review is filed
within one year of the date of that decision.3 However, the Office will reopen a claimant’s case
for merit review, notwithstanding the one-year filing limitation, if the claimant’s application for
review shows clear evidence of error on the part of the Office in its most recent merit decision.
To establish clear evidence of error, a claimant must submit evidence relevant to the issue that
was decided by the Office. The evidence must be positive, precise and explicit and must be
manifest on its face that the Office committed an error.4
2

5 U.S.C. 8128(a).

3

20 C.F.R. § 10.607(a); Annie L. Billingsley, 50 ECAB 210 (1998).

4

Id. at § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997).

3

To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflicting medical opinion or establish a clear procedural error, but
must be of sufficient probative value to shift the weight of the evidence in favor of the claimant
and raise a substantial question as to the correctness of the Office’s decision.5 Evidence that
does not raise a substantial question concerning the correctness of the Office’s decision is
insufficient to establish clear evidence of error.6 It is not enough merely to show that the
evidence could be construed so as to produce a contrary conclusion.7 This entails a limited
review by the Office of the evidence previously of record and whether the new evidence
demonstrates clear error on the part of the Office.8 The Board makes an independent
determination as to whether a claimant has submitted clear evidence of error on the part of the
Office.9
ANALYSIS
The Board finds that appellant failed to file a timely application for review. The Office
issued its most recent merit decision on September 16, 2008. Appellant’s undated request for
reconsideration was postmarked October 17, 2009 more than one year after September 16, 2008.
Her request was not timely filed.
The Board also finds that appellant has not established clear evidence of error on the part
of the Office. Appellant’s October 17, 2009 request noted that she had persistent pain and
experienced depression due her 1999 injury. She stated that she had requested to be sent to an
Office referral physician, but her request was denied. Appellant also noted that she was granted
social security disability benefits. While she addressed her disagreement with the Office’s
decision to deny her claim for an occupational disease, her general allegations do not establish
clear evidence of error or raise a substantial question as to the correctness of the Office’s
decision. The Office properly found that appellant’s October 17, 2009 request did not establish
clear evidence of error.
The May 8, 2009 report from Dr. Lynch, noted appellant had evidence of bilateral C6 and
C7 radiculopathies, multilevel degenerative disc disease and foraminal stenosis.
He
recommending a discectomy in 2007; however, appellant was not interested in pursuing surgery.
Dr. Lynch advised that he would not continue as her attending physician. This evidence is
insufficient to raise a substantial question as to the correctness of the Office’s decision. The
report addresses appellant’s general medical condition but is not responsive to the basis of the
Office’s denial of the claim. As noted, the underlying deficiency in the claim is appellant’s
failure to submit a rationalized medical evidence which establishes a causal relationship between
her claimed cervical, shoulder and arm numbness and her work duties as claimed on
5

Annie L. Billingsley, supra note 3.

6

Jimmy L. Day, 48 ECAB 652 (1997).

7

Id.

8

Id.

9

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, 44 ECAB 765, 770 (1993).

4

July 15, 2007. Evidence that is not germane to the issue on which the claim was denied is
insufficient to demonstrate clear evidence of error.10 The Board notes that clear evidence of
error is intended to represent a difficult standard.11 This evidence is insufficient to establish clear
evidence of error.
The October 15, 2009 decision from the Social Security Administration on her claim for
disability benefits is not relevant to the underlying issue of whether appellant established her
occupational disease claim. The Board has held that entitlement to benefits under another act
does not establish entitlement to benefits under the Act.12 Appellant has not provided any
argument or evidence of sufficient probative value to shift the weight of the evidence in her favor
or raise a substantial question as to the correctness of the Office’s decision.
On appeal, appellant asserts that she filed an untimely reconsideration request because
she was waiting for a decision from the Social Security Administration prior to requesting
reconsideration. She included diagnostic testing pertaining to her back problem. Appellant
asserted that she was released to work which caused additional damage to her neck and had to
quit her job as a result of her neck, arm and shoulder conditions. As note, a decision of the
Social Security Administration is not binding upon the Board as the Federal Employees’
Compensation Act and the Social Security Act have different standards of medical proof on the
question of disability. With regard to appellant’s allegation that she submitted sufficient
evidence in support of her claim, the Board notes that this is insufficient to show clear evidence
of error in an Office decision denying appellant’s claim for an occupational disease. As noted,
clear evidence of error is intended to be a difficult standard and appellant has not provided
evidence or argument of sufficient probative value to shift the weight of the evidence in her favor
and raise a substantial question as to the correctness of the Office’s decision.
CONCLUSION
The Board finds that appellant’s request for reconsideration was untimely filed and did
not demonstrate clear evidence of error.

10

F.R., 61 ECAB ___ (Docket No. 09-575, issued January 4, 2010).

11

D.G., 59 ECAB 455 (2008); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.3c (January 2004).
12

Freddie Mosley, 54 ECAB 255 (2002) (noting that the Act and the Social Security Act have different standards
of medical proof on the question of disability).

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ORDER
IT IS HEREBY ORDERED THAT the December 16, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 25, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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