United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE
CANAL STREET STATION, New York, NY,
Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0051
Issued: September 2, 2021

Case Submitted on the Record

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

JURISDICTION
On October 19, 2020 appellant, through counsel, filed a timely appeal from a May 5, 2020
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.

ISSUES
The issues are: (1) whether appellant has met his burden of proof to expand the acceptance
of his claim to include additional conditions as causally related to the accepted April 28, 2017
employment injury; and (2) whether appellant has met his burden of proof to establish disability
from work for the period beginning October 24, 2017 causally related to the accepted April 28,
2017 employment injury.
FACTUAL HISTORY
On April 28, 2017 appellant, then a 65-year-old building equipment mechanic, filed a
traumatic injury claim (Form CA-1) alleging that on that date he sustained a muscle strain when
he was climbing down a ladder and lost his footing while in the performance of duty. He stopped
work on April 28, 2017 and worked intermittently thereafter.
On April 28, 2017 appellant was treated in the emergency room by Dr. Omar Corujo
Vazquez, a Board-certified emergency room physician, for back pain radiating down his legs that
developed after he twisted his back while descending a ladder at work. Dr. Vazquez diagnosed
muscle strain and radicular pain. In a work excuse note of even date, he indicated that appellant
was disabled from work through April 30, 2017.
Appellant was treated by Dr. Craig Capeci, a Board-certified orthopedist, on May 1, 2017
for a low back injury sustained at work when he was descending a ladder. Dr. Capeci diagnosed
low back strain and spasm.
On May 18, 2017 Dr. Martin Quirno, a Board-certified orthopedist, evaluated appellant for
radiating low back pain. Appellant reported descending a ladder at work when he slipped. X-rays
of the lumbar spine revealed mild degenerative disc disease at L5-S1 and L2-3 with no
spondylolisthesis and no fractures. Dr. Quirno diagnosed low back pain status post work accident
on April 28, 2017, bilateral lower extremity radiculopathy, and numbness and weakness slightly
worse on the left. In a September 14, 2017 attending physician’s report (Form CA-20), Dr. Quirno
recounted a history of the low back injury occurring on April 28, 2017. He diagnosed
radiculopathy of the lumbar region. Dr. Quirno affirmed that the diagnosed conditions were
caused or aggravated by the described employment incident. He noted that appellant was totally
disabled from work from April 28, 2017 through February 27, 2018.
A magnetic resonance imaging (MRI) scan of the lumbar spine dated May 31, 2017
revealed a medium size L4-5 posterolateral/foraminal disc herniation associated with moderate
congenital and acquired spinal canal stenosis, mild-to-moderate left foraminal narrowing slightly
compressing the left L4 nerve root, small left L5-S1 foraminal disc herniation, disc bulging and
degenerative changes at remaining levels resulting in mild-to-moderate L2-3, and mild L3-4
congenital and acquired spinal canal stenosis.
On June 8 and August 15, 2017 Dr. Syed Husain, a Board-certified physiatrist, treated
appellant for low back and leg pain that developed when he was descending a ladder at work and
slipped. Findings on examination revealed limited range of motion of the lumbar spine, tenderness
to palpation over L3, L4, L5 facet joints bilaterally, slightly diminished sensation in the lower

2

extremities, and positive straight leg test on the left. Dr. Husain diagnosed lumbar radicular pain
and recommended a bilateral L4-5 and L5-S1 transforaminal epidural steroid injection and a back
brace.
On December 1, 2017 OWCP accepted appellant’s claim for low back strain.
OWCP received additional evidence. On June 1, 2017 Dr. Quirno related that appellant
continued to complain of low back pain with bilateral lower extremity radiculopathy and weakness
after a fall from a ladder at work. He reviewed an MRI scan, which revealed bilateral recess
stenosis at L4-5 with a large left disc bulge producing severe bilateral recess stenosis with severe
foraminal stenosis at L4-5. Dr. Quirno diagnosed L4-5 severe bilateral recess stenosis and severe
foraminal stenosis secondary to a large disc bulge. He recommended epidural injections and
physical therapy.
In subsequent reports dated August 10 through October 26, 2017, Dr. Quirno noted that
appellant presented with persistent lower back pain, progressive weakness, and lower extremity
radiculopathy. Appellant reported that he did not begin treatment because OWCP had not
approved his claim.
In duty status reports (Form CA-17) dated December 22, 2017 and January 2, 2018,
Dr. Quirno noted clinical findings of low back pain. He noted the diagnosis due to injury was
radiculopathy of the lumbar region and indicated that appellant could not work. Dr. Quirno treated
appellant again on December 28, 2017 for significant weakness and radiculopathy on the left side.
He noted that appellant began physical therapy. In a January 2, 2018 attending physician’s report
(Form CA-20), Dr. Quirno noted a history of the low back injury occurring on April 28, 2017. He
diagnosed radiculopathy of the lumbar region. Dr. Quirno affirmed by checking a box marked
“Yes” indicating that the diagnosed conditions were caused or aggravated by the described
employment incident. Dr. Quirno noted the period of total disability began on April 18, 2017.
On January 23 and February 1, 2018 appellant filed claims for compensation (Form CA-7)
for work-related disability for the period commencing October 24, 2017.
In a development letter dated February 7, 2018, OWCP requested that appellant submit
medical evidence to support disability during the period claimed causally related to the accepted
April 28, 2017 employment injury. It afforded him 30 days to submit the requested evidence.
By decision dated February 22, 2018, OWCP denied expansion of the acceptance of
appellant’s claim to include the additional conditions of lumbar radiculopathy, disc bulge at L4-5,
foraminal stenosis at left L4-5, L4-5 bilateral recess stenosis, and lumbar spine stenosis.
Appellant submitted additional evidence. On February 20, 2018 Dr. Quirno examined
appellant who reported bilateral lower extremity radiculopathy and significant weakness. He
reported improvement with physical therapy.
By decision dated April 3, 2018, OWCP denied appellant’s claims for wage-loss
compensation, finding that he had not established disability from work commencing October 24,
2017 causally related to the accepted April 28, 2017 employment injury.

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Appellant continued to submit additional evidence. In a July 10, 2017 report, Dr. Jeffrey
Benjamin, a Board-certified neurologist, treated appellant for low back pain radiating into the left
lower extremity and left foot weakness. Appellant reported that on April 28, 2017 he was
descending a vertical ladder and slipped injuring his back. Findings on examination revealed
decreased bilateral grip strength, decreased light touch and pinprick in the distal right C7, left drop
foot, and tenderness over the bilateral lumbar paraspinal musculature. Dr. Benjamin diagnosed
lumbosacral radiculopathy, cervical radiculopathy, and carpal tunnel syndrome.
In a report dated February 6, 2018, Dr. Husain treated appellant, reporting good pain relief
with physical therapy; however, appellant continued to have back pain radiating into the legs. He
noted tenderness to palpation over the L3, L4, and L5 facet joints bilaterally and diminished
sensation to light touch in the lower extremities. Dr. Husain diagnosed lumbar radiculopathy and
recommended additional physical therapy and epidural injections.
On April 12, 2018 Dr. Quirno related treating appellant since May 18, 2017 for spinal
stenosis, large disc bulge at L4-5, and partial foot drop. Appellant experienced improvement in
his symptoms secondary to physical therapy. Dr. Quirno diagnosed lumbar sprain and severe
spinal stenosis. On May 17 and August 16, 2018 appellant presented with left buttock pain and
reported being assaulted in the subway two weeks prior, jolting his spine. X-rays revealed mild
degenerative disc disease at L2-3, L3-4, and L4-5. Dr. Quirno diagnosed left buttock pain after an
assault. On January 10, 2019 he again recommended physical therapy and epidural injections.
On February 18, 2019 appellant, through counsel, requested reconsideration on a
February 22, 2018 decision concerning expansion of the acceptance of the claim.
On March 28, 2019 appellant
April 3, 2018.

requested reconsideration of the decision

dated

By decision dated May 16, 2019, OWCP denied modification of both the February 22,
2018 decision concerning expansion of the claim and the April 3, 2018 OWCP decision denying
appellant’s claims for wage-loss compensation for disability from work commencing
October 24, 2017.
Appellant continued to submit additional evidence. In a May 9, 2019 report, Dr. Quirno
noted that appellant was assaulted on May 17, 2018 and developed significant back pain. He
prescribed another trial of physical therapy and epidural injections. On May 30, 2019 Dr. Quirno
provided a summary of appellant’s treatment from May 18, 2017 through May 9, 2019. He
provided a history of injury of the April 28, 2017 work incident and an assault that occurred on
May 17, 2018. Dr. Quirno noted that appellant did not have low back symptoms prior to the work
accident on April 28, 2017. He opined that appellant developed left leg radiculopathy, back pain,
and left partial foot drop, which resolved after physical therapy; however, these symptoms returned
after he was assaulted on May 17, 2018.
On April 21, 2020 appellant requested reconsideration.
By decision dated May 5, 2020, OWCP denied modification of the May 16, 2019 decision.

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LEGAL PRECEDENT -- ISSUE 1
When an employee claims that a condition not accepted or approved by OWCP was due to
an employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury. 3
To establish causal relationship between the condition as well as any additional conditions
claimed and the employment injury, an employee must submit rationalized medical evidence. 4
The opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant. 5
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish that the
acceptance of his claim should be expanded to include additional conditions causally related to the
accepted April 28, 2017 employment injury.
In reports dated May 18, 2017 through May 9, 2019, Dr. Quirno noted his treatment of
appellant for low back pain and diagnosed additional conditions including: low back pain status
post work accident on April 28, 2017 with bilateral lower extremity radiculopathy, numbness, and
weakness in the left lower extremity; L4-5 severe bilateral recess stenosis and severe foraminal
stenosis secondary to a large disc bulge; and partial foot drop.” In none of those reports, however,
did Dr. Quirno provide an opinion regarding causal relationship between appellant’s additional
diagnosed conditions and the accepted April 28, 2017 employment injury. The Board has held
that medical evidence that does not offer an opinion regarding the cause of an employee’s
condition or disability is of no probative value on the issue of causal relationship. 6 As such, this
evidence is insufficient to establish expansion of the claim.
In Form CA-17 reports dated December 22, 2017 and January 2, 2018, Dr. Quirno noted
that the diagnosis due to injury was radiculopathy of the lumbar region and indicated that appellant
could not work. He opined that the diagnosed conditions were caused or aggravated by the
described employment incident. Dr. Quirno, however, did not provide rationale explaining how
appellant’s diagnosed conditions were caused or aggravated by the April 28, 2017 accepted
employment injury. He did not explain how the mechanism of injury would have physiologically
caused or aggravated the additional diagnosed conditions. 7 As Dr. Quirno failed to provide
3

M.M., Docket No. 19-0951 (issued October 24, 2019); Jaja K. Asaramo, 55 ECAB 200 (2004).

4

T.K., Docket No. 18-1239 (issued May 29, 2019); M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB
465 (2004).
5

T.K., id.; I.J., 59 ECAB 408 (2008).

6

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

7

See F.H., Docket No. 18-1238 (issued January 18, 2019); J.R., Docket No. 18-0206 (issued October 15, 2018).

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medical rationale in support of a causation finding, these reports are insufficient to meet appellant’s
burden of proof.8
In Form CA-20 reports dated September 14, 2017 and January 2, 2018, Dr. Quirno
diagnosed radiculopathy of the lumbar region and checked a box marked “Yes” indicating that the
condition was caused or aggravated by an employment activity. The Board has held, however,
that an opinion on causal relationship with an affirmative check mark, without more by the way of
medical rationale, is insufficient to establish the claim.9
On May 30, 2019 Dr. Quirno provided a summary of appellant’s medical treatment through
May 9, 2019 and a history of the April 28, 2017 employment incident and an assault that occurred
on May 17, 2018. He noted that appellant did not have low back symptoms prior to the
employment incident on April 28, 2017. The Board has held that an opinion that the employee
was asymptomatic before the injury is insufficient, without supporting rationale, to establish causal
relationship.10
Reports from Dr. Vazquez dated April 28, 2017 noted appellant’s treatment for radiating
back pain. He diagnosed muscle strain and radicular pain and advised that appellant was disabled
through April 30, 2017. Similarly, on May 1, 2017 Dr. Capeci treated appellant for a low back
injury and diagnosed low back strain and spasm. Reports from Dr. Husain dated June 8 and
August 15, 2017 and February 6, 2018, related treatment for low back and leg pain. Dr. Husain
diagnosed lumbar radicular pain. Likewise, Dr. Benjamin treated appellant on July 10, 2017 for
radiating low back pain and left foot weakness that developed on April 28, 2017. He diagnosed
lumbosacral radiculopathy, cervical radiculopathy, and carpal tunnel syndrome. None of these
physicians, however, provided an opinion regarding causal relationship between appellant’s
additional diagnosed conditions and the accepted employment injury. As noted above, the Board
has held that medical evidence that does not offer an opinion regarding the cause of an employee’s
condition or disability is of no probative value on the issue of causal relationship. 11 As such, these
reports are insufficient to establish expansion of the claim.
Appellant submitted multiple diagnostic testing reports. The Board has held that diagnostic
studies, standing alone, are of limited probative value as they do not address whether the
employment injury caused any of the diagnosed conditions. 12
As the medical evidence of record is insufficient to establish causal relationship between
appellant’s additional diagnosed conditions and the accepted employment injury, the Board finds
that appellant has not met his burden of proof.
8

M.C., Docket No. 18-0361 (issued August 15, 2018).

9

See D.S., Docket No. 21-0037 (issued May 27, 2021); Richard G. Chasse, Docket No. 99-1574 (issued
June 27, 2000).
10

J.F., Docket No. 19-1694 (issued March 18, 2020); Kimper Lee, 45 ECAB 565 (1994).

11

Supra note 8.

12

J.P., Docket No. 19-0216 (issued December 13, 2019); A.B., Docket No. 17-0301 (issued May 19, 2017).

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LEGAL PRECEDENT -- ISSUE 2
An employee seeking benefits under FECA 13 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury. 14 For each period of
disability claimed, the employee has the burden of proof to establish that he or she was disabled
from work as a result of the accepted employment injury. 15 Whether a particular injury causes an
employee to become disabled from work, and the duration of that disability, are medical issues
that must be proven by a preponderance of probative and reliable medical opinion evidence. 16
Under FECA, the term disability means an incapacity because of an employment injury, to
earn the wages the employee was receiving at the time of the injury.17 When, however, the medical
evidence establishes that the residuals or sequelae of an employment injury are such that, from a
medical standpoint, prevent the employee from continuing in his or her employment, he or she is
entitled to compensation for any loss of wages. 18
To establish causal relationship between the disability claimed and the employment injury,
an employee must submit rationalized medical evidence, based on a complete factual and medical
background, supporting such causal relationship. 19 The opinion of the physician 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.20
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met his burden of proof to establish disability for
the period commencing October 24, 2017, causally related to his accepted April 28, 2017
employment injury.

13

Supra note 2.

14

See D.S., Docket No. 20-0638 (issued November 17, 2020); F.H., Docket No. 18-0160 (issued August 23, 2019);
C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40
ECAB 1143 (1989).
15

See M.B., Docket No. 18-1455 (issued March 11, 2019); D.W., Docket No. 18-0644 (issued November 15, 2018);
Amelia S. Jefferson, 57 ECAB 183 (2005).
16

See 20 C.F.R. § 10.5(f); N.M., Docket No. 18-0939 (issued December 6, 2018).

17

Id. at § 10.5(f); Cheryl L. Decavitch, 50 ECAB 397 (1999).

18

See G.T., Docket No. 18-1369 (issued March 13, 2019); Merle J. Marceau, 53 ECAB 197 (2001).

19

See S.J., Docket No. 17-0828 (issued December 20, 2017); Kathryn E. DeMarsh, 56 ECAB 677 (2005).

20
C.B., Docket No. 18-0633 (issued November 16, 2018); Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler,
45 ECAB 365 (1994).

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In reports dated October 26 and December 28, 2017 and February 20, 2018, Dr. Quirno
treated appellant for persistent lower back pain, progressive weakness, and bilateral lower
extremity radiculopathy. Dr. Husain treated appellant on February 6, 2018 for back pain radiating
into the legs and diagnosed lumbar radiculopathy. However, Drs. Quirno and Husain do not
specifically address dates of disability or offer an opinion regarding appellant’s disability from
work for the period commencing October 24, 2017.21 Accordingly, their reports are of no
probative value and are insufficient to establish appellant’s claim for compensation. 22
On April 12, 2018 Dr. Quirno related treating appellant since May 18, 2017 for spinal
stenosis and large disc bulge at L4-5 and partial foot drop. He diagnosed lumbar sprain and severe
spinal stenosis. While he provided a diagnoses of lumbar sprain, Dr. Quirno did not provide an
opinion regarding appellant’s disability from work commencing October 24, 2017.23 Without a
medical explanation, supported by objective findings, explaining why appellant was disabled on
specific dates due to the accepted employment injury, appellant would be self-certifying
disability.24 Thus, this report is of no probative value and insufficient to establish the claim.
In Form CA-17 reports dated December 22, 2017 and January 2, 2018, Dr. Quirno noted
the diagnosis due to injury of radiculopathy of the lumbar region and indicated that appellant could
not work. Similarly, in a Form CA-20 report dated January 2, 2018, he diagnosed radiculopathy
of the lumbar region. Dr. Quirno opined that the diagnosed conditions were caused or aggravated
by the described employment incident. He noted that the period of total disability began on
April 18, 2017. Dr. Quirno, however, did not otherwise provide an opinion on whether appellant
was disabled from work during the claimed period due to his accepted employment injury.
Accordingly, this report is of no probative value and is insufficient to establish appellant’s claim
for compensation.25
In a May 30, 2019 report, Dr. Quirno provided a summary of appellant’s treatment from
May 18, 2017 through May 9, 2019 and a history of the April 28, 2017 work incident and the
assault that occurred on May 17, 2018. He noted that appellant did not have low back symptoms
prior to the work accident on April 28, 2017 and thereafter developed left leg radiculopathy, back
pain, and left partial foot drop. However, these reports are of no probative value because, despite
the fact that Dr. Quirno mentioned an April 28, 2017 employment injury, he did not provide an
opinion that appellant was disabled from work during the claimed period, beginning October 24,

21

Supra note 8; see also William A. Archer, 55 ECAB 674 (2004) (the Board will not require OWCP to pay
compensation for disability in the absence of medical evidence directly addressing the specific dates of claimed
disability).
22

See M.M., Docket No. 18-0817 (issued May 17, 2019); M.C., Docket No. 16-1238 (issued January 26, 2017).

23

Supra note 21.

24

See B.K., Docket No. 18-386 (issued September 14, 2018); Amelia S. Jefferson, 57 ECAB 183 (2005); see also
C.S., Docket No. 17-1686 (issued February 5, 2019).
25

Supra note 21.

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2017, causally related to the accepted April 28, 2017 lower back strain. 26 Therefore, these reports
are insufficient to establish his claim.
In other reports dated May 17, 2018 through May 9, 2019, Dr. Quirno diagnosed left
buttock pain after a May 17, 2018 subway incident. As these reports do not address the issue of
disability stemming from the April 28, 2017 employment injury, they are of no probative value. 27
A July 10, 2017 report from Dr. Benjamin, predates the claimed period of disability and
thus is not relevant to the specific period of disability claimed. 28 Thus, this report is insufficient
to establish appellant’s disability claims.
As the medical evidence of record is insufficient to establish disability from work
commencing October 24, 2017 causally related to the accepted April 28, 2017 employment injury,
the Board finds that appellant has not met his burden of proof
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that the
acceptance of his claim should be expanded to include additional conditions causally related to the
accepted April 28, 2017 employment injury. The Board further finds that he has not met his burden
of proof to establish disability from work for the period commencing October 24, 2017 causally
related to his accepted April 28, 2017 employment injury.

26

Id.

27

Supra note 21.

28

See E.B., Docket No. 17-0875 (issued December 13, 2018); C.L., Docket No. 16-0004 (issued June 14, 2016).

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ORDER
IT IS HEREBY ORDERED THAT the May 5, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: September 2, 2021
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.D., Appellant
and
U.S. POSTAL SERVICE, MORGAN
PROCESSING & DISTRIBUTION CENTER,
New York, NY, Employer
__________________________________________

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

Docket No. 14-913
Issued: January 12, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On March 12, 2014 appellant, through his attorney, filed a timely appeal from a
February 5, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established a traumatic injury in the performance of
duty, as alleged.
FACTUAL HISTORY
This is the second appeal before the Board in this case. By order issued January 24,
2014,2 the Board set aside OWCP’s November 15, 2012 decision denying a traumatic injury
claim and remanded the claim to OWCP for doubling of File No. xxxxxx537 with File No.
1

5 U.S.C. § 8101 et seq.

2

Docket No. 13-574 (issued January 24, 2014).

xxxxxx864, as both claims concerned the same parts of the body and contained similar medical
evidence. The Board also directed that following any other necessary development, that OWCP
issue a de novo decision in the case. The law and facts of the case as set forth in the Board’s
order are incorporated by reference.
Under File No. xxxxxx864, OWCP accepted that on July 17, 2009 appellant, then a 50year-old mail handler, sustained a neck sprain and bilateral shoulder sprain when he lifted a
bucket of mail. He stopped work at the time of injury. Dr. Marc M. Levinson, an attending
Board-certified physiatrist, ordered magnetic resonance imaging (MRI) scans of the cervical
spine and both shoulders, which were performed on June 17, 2010. These studies showed
cervical spondylosis, foraminal compromise and osteophyte formation from C3-7, a central disc
herniation with cord compression at C4-5 and acromioclavicular (AC) joint degeneration with
subacromial subdeltoid bursitis and a glenoid labrum tear in both shoulders. Following
vocational rehabilitation, appellant returned to full-time restricted duty on August 5, 2011.
On September 6, 2011 appellant filed a traumatic injury claim (Form CA-1) alleging that
while reaching to place mail in a machine sorter earlier that day, he experienced severe pain and
spasm in his neck and shoulders with paresthesias into his fingers and toes. He was treated at an
emergency room and released.3 Appellant did not return to work. OWCP assigned the claim
File No. xxxxxx537.
Dr. Levinson related appellant’s history of the onset of severe cervical spine and bilateral
shoulder spasm the day before. He found severely restricted motion in the cervical spine and in
both shoulders and positive Neer, Hawkins’ and apprehension signs in both shoulders.
Dr. Levinson diagnosed an exacerbation of cervical spinal pain syndrome and exacerbation of
internal derangement of both shoulders.
On September 30, 2011 Dr. Levinson noted that appellant had not fully recovered from
the July 17, 2009 cervical spine and bilateral shoulder sprain, although he returned to full-time
work in August 2011. On examination, he noted continued restriction of neck and shoulder
motion, with bilaterally positive impingement and apprehension signs. Dr. Levinson diagnosed
“[c]ervical spine pain syndrome exacerbation from repetitive use” and “[s]prain/strain bilateral
shoulders -- exacerbation with internal derangement” due to repetitive use. [He] opined that
there was “a direct causal relationship between the accident described and [appellant’s] current
injuries. [Appellant’s] symptoms and clinical findings [were] consistent with musculoskeletal
injuries to the described areas.” Dr. Levinson found appellant totally disabled for work from
September 7 to October 28, 2011, for bilateral shoulder sprain/strain and cervical pain syndrome.
In a September 15, 2011 letter, OWCP advised appellant of the type of evidence needed
to establish his claim, including factual evidence supporting timely filing and performance of
duty and medical evidence explaining how and why the September 6, 2011 incident would cause
the claimed neck injury. Appellant was afforded 30 days to submit such evidence.

3

The emergency room reports do not contain an identifiable signature from a physician. The employing
establishment controverted the claim, alleging that appellant’s “accident was premeditated” to force the employing
establishment to comply with his attending physician’s restriction limiting him to working four hours a day.

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By decision dated October 20, 2011, OWCP denied appellant’s claim because it found
that causal relationship was not established. While the September 6, 2011 incident occurred at
the time, place, and in the manner alleged, OWCP found that appellant’s physicians did not
explain the medical reasons why the incident would cause an injury.
In an August 10, 2012 letter, counsel requested reconsideration, contending that a new
report from Dr. Levinson, in conjunction with his prior opinions, contained sufficient medical
rationale supporting causal relationship to meet appellant’s burden of proof.4 In a June 19, 2012
report, Dr. Levinson related appellant’s account of the onset of severe neck and bilateral shoulder
pain on September 6, 2011 “while reaching for mail” at work. March 14, 2012 MRI scans of
both shoulders showed supraspinatus, infraspinatus and subscapularis tendinosis on the right and
a superior labral tear, AC joint arthrosis, and supraspinatus tendinosis on the left. Dr. Levinson
noted that these findings demonstrated a worsening of bilateral shoulder conditions compared to
June 17, 2010 MRI scans.
On examination, Dr. Levinson found restricted motion of the cervical spine and both
shoulders, with bilaterally positive apprehension tests, Neer, and Hawkins signs. He diagnosed
cervical spinal pain syndrome and internal derangement of both shoulders.
Regarding causal relationship, Dr. Levinson opined that the “above mentioned injuries
[were] causally related to [appellant’s] work injury on September 6, 2011. It is obvious that the
injuries happened at this time because [appellant] gives no other history or explanation for the
injuries and where [he was] in such discomfort that he had to go to the emergency room.” He
explained that the subscapularis tendinosis in the left shoulder and supraspinatus and
infraspinatus tendinosis in the right shoulder were not present on June 17, 2010 studies. Rather,
they were new injuries which “within medical probability … did occur on September 6, 2011.”
Dr. Levinson found appellant totally disabled for work and recommended a surgery for both
shoulders.
By decision dated November 15, 2012, OWCP denied modification of its prior decision
on the grounds that Dr. Levinson’s opinion was insufficient to meet appellant’s burden of proof.
It found that Dr. Levinson did not explain how reaching for mail caused the alleged cervical
spine or shoulder injuries.
Counsel filed his first appeal with the Board and the Board’s January 24, 2013 decision
set aside OWCP’s November 15, 2012 decision and remanded the case for additional
development. On remand of the case, OWCP doubled File No. xxxxxx864 under File No.
xxxxxx537 effective January 31, 2014. Appellant submitted additional medical evidence.
In a September 9, 2011 report, Dr. Darren J. Friedman, an attending Board-certified
orthopedic surgeon, noted appellant’s history of a July 2009 occupational left shoulder injury
with demonstrated rotator cuff tears. He recommended arthroscopic debridement and
subacromial decompression.
In monthly reports from October 28, 2011 to July 9, 2012, Dr. Levinson diagnosed an
exacerbation of cervical spinal pain syndrome and exacerbation of internal derangement of both
4

Counsel also submitted evidence previously of record.

3

shoulders. On examination, he observed continued restriction of cervical and bilateral shoulder
motion, with positive impingement and apprehension signs in both shoulders. Dr. Levinson
recommended bilateral shoulder surgery.5 He found appellant totally disabled for work through
March 2, 2012.
By decision dated February 5, 2014, under File No. xxxxxx537, OWCP affirmed its
October 11, 2011 decision, finding that the medical evidence did not contain a sufficient
explanation supporting causal relationship. It found that Dr. Levinson did not explain how
“reaching for mail on September 6, 2011 directly caused or aggravated” the claimed cervical
spine and bilateral shoulder conditions.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.6 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.7
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, OWCP begins with an analysis of whether “fact of injury” has been
established. Generally, fact of injury consists of two components that must be considered
conjunctively. First, the employee must submit sufficient evidence to establish that he or she
actually experienced the alleged employment incident.8 Second, the employee must submit
sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.9
ANALYSIS
OWCP accepted that appellant sustained cervical spine and bilateral shoulder sprains in
the performance of duty on July 17, 2009. Appellant remained off work through August 5, 2011,
when he returned to a full-time restricted-duty position. He claimed that, while reaching for mail
on September 6, 2011, he experienced severe cervical spine and bilateral shoulder pain with
paresthesias into all extremities. Appellant did not return to work. OWCP accepted that the
September 6, 2011 incident occurred at the time, place, and in the manner alleged, but denied the
claim by October 20, 2011 and February 5, 2014 decisions, finding that his physicians did not
5

Appellant also submitted an April 10, 2012 report from, Dr. Andrew D. Brown, an attending Board-certified
physiatrist, who diagnosed “[t]raumatic lumbosacral pain syndrome with [herniated nucleus pulposus]” related to a
March 15, 2008 incident.
6

Joe D. Cameron, 41 ECAB 153 (1989).

7

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

8

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

9

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

4

provide sufficient reasoning supporting a causal relationship between the accepted incident and
the claimed neck and shoulder injuries.
In support of his claim, appellant submitted reports from Dr. Levinson, an attending
Board-certified physiatrist, who treated appellant beginning in 2010. Dr. Levinson noted in his
September 7, 2011 and June 19, 2012 reports that appellant experienced the onset of severe neck
and shoulder symptoms while reaching for mail on September 6, 2011. He opined that
appellant’s symptoms and objective findings on September 6, 2011 were consistent with acute
cervical pain syndrome and bilateral shoulder derangement. Dr. Levinson noted on June 19,
2012 that the left subscapularis tendinosis, right supraspinatus and infraspinatus tendinosis,
which disabled appellant as of September 6, 2011, were not present on June 17, 2010 MRI scans
but visible on March 14, 2012 studies. He found that these were new injuries which occurred on
September 6, 2011.
The Board finds that Dr. Levinson’s opinion is not sufficiently rationalized to meet
appellant’s burden of proof in establishing his claim. Dr. Levinson posited a temporal
relationship between the September 6, 2011 onset of symptoms and subsequently diagnosed
bilateral shoulder tendinosis. However, the Board has held that a temporal relationship alone is
insufficient to establish causal relationship.10 Dr. Levinson did not explain the medical reasons
why reaching for mail on September 6, 2011 would cause or aggravate any of the diagnosed
medical conditions. He did not specify why the physical stresses of reaching for mail would
alter appellant’s cervical spine and shoulders, resulting in subscapularis tendinosis, infraspinatus
tendinosis, or an aggravation of a cervical sprain. Without such rationale, Dr. Levinson’s
opinion is of diminished probative value.11
Appellant also provided a September 9, 2011 report from Dr. Friedman, an attending
Board-certified orthopedic surgeon, who noted a July 2009 occupational left shoulder injury, and
recommended arthroscopy. However, Dr. Friedman did not address causal relationship. His
opinion is therefore insufficient to meet appellant’s burden of proof.
On appeal, counsel asserts that the medical evidence of record, in particular
Dr. Levinson’s June 19, 2012 report, was sufficient to establish causal relationship. He contends
that, under the Board’s precedent in John P. Broll,12 it was “not necessary that the evidence be so
conclusive as to establish causal connection beyond all reasonable doubt. Where the relative
circumstances strongly suggest a causal relationship, the claimant has met his burden of proof.”
In the Broll case appellant suffered a visible condition to his face, the left orbital area, as a result
of being struck by a falling object. Appellant’s eye glasses were broken by the impact. The
supervisor and witness agreed that the incident occurred as described by appellant. Appellant
sought emergency room treatment the same day and was diagnosed with a contusion by a
physician. The facts and medical issues in the Broll case are distinguishable because they are
less complex than those presented in the current appeal. In Broll appellant had no preexisting
condition affecting the same part of the body. The Board believes that the cervical and bilateral
10

Louis R. Blair, Jr., 54 ECAB 348. (2003).

11

Deborah L. Beatty, supra note 9.

12

42 ECAB 410 (1991).

5

shoulder conditions in this appeal are more complex and require more extensive and detailed
explanation than is provided in Dr. Levinson’s reports.
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 established that he sustained a traumatic injury in
the performance of duty as alleged.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 5, 2014 is affirmed.
Issued: January 12, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.L., Appellant
and
DEPARTMENT OF THE NAVY,
NAVAL AIR STATION, Pensacola, FL,
Employer
__________________________________________

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

Docket No. 20-0392
Issued: October 28, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On December 9, 2019 appellant filed a timely appeal from a November 18, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that OWCP received additional evidence following the November 18, 2019 decision. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP has abused its discretion by denying appellant’s request for
authorization of carpal tunnel surgery.
FACTUAL HISTORY
On August 24, 1999 appellant, then a 49-year-old carpenter, filed a traumatic injury claim
(Form CA-1) alleging that on August 20, 1999 he was lifting sheet rock and felt a sharp pain in
his left elbow while in the performance of duty. He stopped work on August 20, 1999.
OWCP accepted the claim for lateral epicondylitis of the left arm and brachial neuritis or
neuritis. Appellant underwent ulnar nerve transposition surgery on August 22, 2001. OWCP
granted him a schedule award for 20 percent permanent impairment of the left arm. Appellant
retired from federal employment effective September 30, 2002.
In a February 27, 2019 report, Dr. Michael Gilmore, a Board-certified orthopedic surgeon,
noted that appellant was seen for a chief complaint of left elbow pain. He also noted that appellant
had previously treated with another orthopedic specialist following his August 20, 1999 work
injury. Dr. Gilmore reported appellant’s history of injury and medical treatment. He diagnosed
left carpal tunnel syndrome, with an associated diagnosis of postoperative elbow cubital tunnel
release.
In an April 10, 2019 report, Dr. Gilmore noted appellant’s physical examination findings
and diagnosed carpal tunnel syndrome on the left with thenar atrophy. He opined that appellant’s
condition was “[m]ore likely than not related to overuse of digits from contributions of previous
work-related cubital tunnel release” and “repetitious gripping over the years with mainly the first
three fingers instead of full grip ulnar numbness since 1999, despite two cubital tunnel releases.”
Dr. Gilmore also diagnosed medial epicondylitis on the left. He requested authorization for
surgery to include left endoscopic carpal tunnel release on the left wrist. Dr. Gilmore also
requested authorization for carpal tunnel surgery on May 7, 2019.
In a May 6, 2019 development letter, OWCP advised appellant that the medical evidence
of record was insufficient to authorize carpal tunnel surgery because the requested treatment did
not appear to be medically necessary for and/or causally related to ahis accepted conditions. It
requested a medical narrative from appellant’s physician describing how the newly diagnosed
condition was caused or aggravated by the accepted employment injury.
Appellant was seen again by Dr. Gilmore on May 15, 2019 due to pain from his left elbow
up to his left shoulder. Dr. Gilmore noted that appellant was seen in follow up for medial
epicondylitis of the left elbow, with flexor/pronator tendinosis partial tear. He treated appellant
with a steroid injection for the medial epicondylitis.
An August 16, 2019 electromyography (EMG) scan read by Dr. Stephen Slobodian, a
physiatrist, revealed severe left median neuropathy at the wrist and mild-to-moderate ulnar nerve
compression across the left elbow.

2

In a September 11, 2019 report, Dr. Gilmore explained that appellant had carpal tunnel and
cubital tunnel syndrome. He explained that carpal tunnel could occur with excess pressure on the
nerve in the carpal tunnel in the wrist and that there were many factors that contributed to the
development of carpal tunnel syndrome, such as heredity, overweight, overuse of the hand, and
medical conditions such as diabetes and thyroid disease. Dr. Gilmore noted appellant’s surgical
options and that appellant decided to proceed with the previously ordered left wrist surgery.
On October 8, 2019 OWCP prepared a statement of accepted facts (SOAF) and referred it,
together with the case record, to Dr. Todd Fellars, a Board-certified orthopedic surgeon serving as
a district medical adviser (DMA), to determine the medical necessity of the requested surgery and
whether the surgery was due to the accepted August 20, 1999 employment injury. The DMA, in
an October 31, 2019 report, noted his review of the medical evidence of record. He noted that
appellant underwent ulnar nerve transposition in August 2001, received a schedule award for 20
percent upper extremity impairment for his left arm, and retired on disability on
September 30, 2002. The DMA explained that given appellant’s EMG findings, surgical release
of the carpal tunnel would be reasonable and necessary, but not due to the accepted employment
injury claim. He noted that he had reviewed Dr. Gilmore’s September 11, 2019 report and
disagreed with a finding that the need for surgery was due to the accepted employment injury as it
had not contributed to his current carpal tunnel symptoms. The DMA explained that the proposed
left carpal tunnel release was not causally related to the accepted medical conditions and that
development of carpal tunnel, which was “typically idiopathic,” 17 years after appellant retired,
would not be work related. He concluded that if the SOAF was correct and appellant actually
retired in 2002 “there would be no relation between [appellant’s] current carpal tunnel syndrome
and his work activities.”
By decision dated November 18, 2019, OWCP denied authorization for carpal tunnel
surgery.
LEGAL PRECEDENT
Section 8103 of FECA provides that the United States shall furnish to an employee who is
injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree, or the period of disability, or aid in lessening the amount of the monthly compensation.3
In interpreting this section of FECA, the Board has recognized that OWCP has broad discretion in
approving services provided under FECA.4 OWCP has the general objective of ensuring that an
employee recovers from his or her injury to the fullest extent possible in the shortest amount of
time. It therefore has broad administrative discretion in choosing means to achieve this goal. The
only limitation on OWCP’s authority is that of reasonableness.5

3

5 U.S.C. § 8103.

4

See D.M., Docket No. 17-1563 (issued January 15, 2019); J.B., Docket No. 11-1301 (issued March 22, 2012).

5

Id.

3

Abuse of discretion is generally shown through proof of manifest error, clearly
unreasonable exercise of judgment, or actions taken which are contrary to both logic and probable
deductions from established facts. It is not enough to merely show that the evidence could be
construed so as to produce a contrary factual conclusion.6
To be entitled to reimbursement of medical expenses, a claimant has the burden of proof
to establish that the expenditures were incurred for treatment of the effects of an employmentrelated injury or condition. Proof of causal relationship in a case such as this must include
supporting rationalized medical evidence.7 In order for a surgical procedure to be authorized, a
claimant must submit evidence to show that the surgery is for a condition causally related to an
employment injury and that it is medically warranted. Both of these criteria must be met in order
for OWCP to authorize payment.8
ANALYSIS
The Board finds that OWCP has not abused its discretion by denying appellant’s request
for authorization of carpal tunnel surgery.
Following appellant’s request for authorization of carpal tunnel surgery, OWCP sent a copy
of the case record, and a SOAF to a DMA for an opinion as to whether the requested surgery was
medically necessary and resulting from the accepted August 20, 1999 employment injury. The
DMA reviewed the medical evidence of record and concluded that the proposed carpal tunnel
surgery was neither warranted nor necessitated by any of appellant’s work-related conditions. He
noted appellant’s history of injury and treatment, including that appellant underwent ulnar nerve
transposition in August 2001, received a 20 percent upper extremity impairment for his left arm,
and retired on disability on September 30, 2002. The DMA explained that the development of
carpal tunnel is “typically idiopathic” and that development of the condition 17 years after
appellant retired would not be work related. He concluded, therefore, that the requested surgery
was not work related and was not medically necessary.
As the requested surgery was not determined to be medically necessary and resulting from
the accepted August 20, 1999 employment injury, OWCP did not abuse its discretion by denying
appellant’s requests for authorization for the surgery.
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.

6

E.L., Docket No. 17-1445 (issued December 18, 2018); L.W., 59 ECAB 471 (2008); P.P., 58 ECAB 673 (2007);
Daniel J. Perea, 42 ECAB 214 (1990).
7

K.W., Docket No. 18-1523 (issued May 22, 2019).

8

Id.; see also R.C., 58 ECAB 238 (2006).

4

CONCLUSION
The Board finds that OWCP has not abused its discretion by denying appellant’s request
for authorization for carpal tunnel surgery.
ORDER
IT IS HEREBY ORDERED THAT the November 18, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 28, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


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

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

Docket No. 17-0103
Issued: May 2, 2017

Case Submitted on the Record

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

JURISDICTION
On October 21, 2016 appellant filed a timely appeal from a September 14, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that her right knee
condition is causally related to factors of her federal employment.
FACTUAL HISTORY
On July 20, 2016 appellant, then a 53-year-old postal clerk, filed an occupational disease
claim (Form CA-2) alleging that she developed right knee arthritis from standing, bending, and
walking on the workroom floor. She first became aware of her condition and of its relationship
1

5 U.S.C. § 8101 et seq.

to her employment on May 20, 2016. Appellant first received medical care on June 21, 2016 and
notified her supervisor on June 24, 2016.
By letter dated July 27, 2016, OWCP informed appellant that the evidence of record was
insufficient to support her claim. Appellant was advised of the factual and medical evidence
necessary and afforded 30 days to respond.
In an undated narrative statement, appellant reported problems with her right knee
beginning in May 2016, which caused her to seek medical treatment on June 21, 2016. She
noted that she had fallen on her right knee at work on December 21, 2005. Appellant had a
recurrence of disability in April 2007 when she underwent right knee surgery.2 On May 20,
2016 she began to experience knee pain while standing, walking, and bending. Upon seeking
medical treatment, appellant’s physician informed her that the pain was related to the fall in 2005
and surgery in 2007.
In a July 27, 2016 medical report, Dr. James R. Rollins, a Board-certified orthopedic
surgeon, reported that appellant sustained a work injury to her right knee in December 2005
which subsequently resulted in an osteochondral autograft transfer system (OATS) procedure on
April 20, 2007. He reported that this work-related cartilage injury required the OATS procedure
which then lead to her post-traumatic osteoarthritis. Dr. Rollins diagnosed primary osteoarthritis
of the right knee and recommended a future total knee arthroplasty should her knee become
unmanageable.
In an August 11, 2016 attending physician’s report (Form CA-20), Dr. Rollins related
that on December 21, 2005 appellant fell at work resulting in surgical intervention from her
injury. Appellant subsequently developed post-traumatic arthritis of the right knee. Dr. Rollins
noted that a June 21, 2016 x-ray revealed tri-compartment joint space narrowing. He diagnosed
post-traumatic arthritis of the right knee and checked the box marked “yes” when asked if the
condition was caused or aggravated by the employment activity.
By decision dated September 14, 2016, OWCP denied appellant’s claim, finding that the
evidence of record failed to establish that her diagnosed condition was causally related to her
accepted federal employment duties.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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

2

The record reflects that appellant’s December 21, 2005 injury was accepted and this claim remains open for
medical treatment.

2

employment injury.3 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.4
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.5 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.6
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.7 The opinion of the physician must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant. This
medical opinion must include an accurate history of the employee’s employment injury and must
explain how the condition is related to the injury. The weight of medical evidence is determined
by its reliability, its probative value, its convincing quality, the care of analysis manifested, and
the medical rationale expressed in support of the physician’s opinion.8
ANALYSIS
Appellant has a prior accepted claim for a right knee condition. She filed the current
claim, however, alleging that new factors of her employment caused or aggravated her current
right knee condition. OWCP accepted that appellant engaged in repetitive activities of walking,
standing, and bending in her employment duties as a postal clerk. The Board finds that the
medical evidence of record is insufficient to establish that appellant developed a right knee
condition causally related to the alleged factors of her federal employment as a postal clerk.
3

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

4

Michael E. Smith, 50 ECAB 313 (1999).

5

Elaine Pendleton, supra note 3.

6

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

7

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

8

James Mack, 43 ECAB 321 (1991).

3

The only medical reports received in support of appellant’s claim was a July 27, 2016
report and an August 11, 2016 Form CA-20 from Dr. Rollins, her treating physician. The Board
finds that the reports of Dr. Rollins are not well rationalized. Dr. Rollins did not provide a
medical opinion, supported by medical rationale, explaining the nature of the relationship
between the diagnosed condition and the specific new employment factors alleged by appellant.9
Dr. Rollins failed to discuss appellant’s employment duties with a clear understanding of
the number of hours per day spent performing each task and the frequency of the physical
movements which she attributes to her injury. His statement on causation failed to provide a
sufficient explanation as to the mechanism of injury pertaining to this occupational disease claim
as alleged by appellant, namely, how standing, walking, and bending would cause or aggravate
her right knee osteoarthritis.10 Without explaining how physiologically the movements involved
in appellant’s employment duties caused or contributed to her diagnosed condition, his opinion
on causal relationship is equivocal in nature and of limited probative value.11
The Board notes that Dr. Rollins attributed appellant’s right knee osteoarthritis to a
preexisting right knee injury for which she underwent surgery in 2007. A well-rationalized
opinion is particularly warranted when there is a history of a preexisting condition.12
In his August 11, 2016 Form CA-20, Dr. Rollins diagnosed right knee osteoarthritis and
checked the box marked “yes” when asked if the condition was caused or aggravated by the
employment activities. The Board has held that a report that addresses causal relationship with a
check mark, without medical rationale explaining how the work factors caused the alleged
injury, is of diminished probative value and insufficient to establish causal relationship.13
Appellant’s honest belief that her occupational employment duties caused her medical
injury is not in question, but that belief, however sincerely held, does not constitute the medical
evidence necessary to establish causal relationship. An award of compensation may not be based
on surmise, conjecture, speculation, or on the employee’s own belief of causal relation.14
In the instant case, the record lacks rationalized medical evidence establishing a causal
relationship between appellant’s federal employment duties as a postal clerk and her diagnosed
right knee condition. Thus, appellant has failed to meet her burden of proof.15

9

Id.

10

S.W., Docket 08-2538 (issued May 21, 2009).

11

See L.M., Docket No. 14-973 (issued August 25, 2014); R.G., Docket No. 14-113 (issued April 25, 2014);
K.M., Docket No. 13-1459 (issued December 5, 2013); A.J., Docket No. 12-548 (issued November 16, 2012).
12

T.M., Docket No. 08-975 (issued February 6, 2009); Michael S. Mina, 57 ECAB 379 (2006).

13

See Calvin E. King, Jr., 51 ECAB 394 (2000); see also Frederick E. Howard, Jr., 41 ECAB 843 (1990).

14

D.D., 57 ECAB 734 (2006).

15

R.M., Docket No. 11-1921 (issued April 10, 2012).

4

Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof to establish that her
right knee condition was causally related to factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated September 14, 2016 is affirmed.
Issued: May 2, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.W., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
REGION III, Philadelphia, PA, Employer
__________________________________________

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

Docket No. 15-1260
Issued: November 4, 2015

Case Submitted on the Record

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

JURISDICTION
On May 15, 2015 appellant filed a timely appeal from a February 27, 2015 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
emotional condition in the performance of duty.
FACTUAL HISTORY
On August 21, 2014 appellant, then a 36-year-old service representative, filed an
occupational disease claim (Form CA-2) alleging that she sustained severe and acute depression,
anxiety, and irritable syndrome due to being harassed by supervisors at work. She asserted that
she was verbally harassed on a daily basis and subjected to taunting. Appellant claimed that
1

5 U.S.C. § 8101 et seq.

management harassed her by giving her more work than coworkers in the same position. She
stopped work on June 11, 2014.
Appellant submitted medical evidence including May 28 and June 18, 2014 reports in
which Dr. Kevin Ferentz, an attending Board-certified family medicine physician, stated that she
could only work four hours per day due to ongoing stress issues that affected her health. She
also submitted a June 13, 2014 letter from the employing establishment indicating that she had
been placed on absence without leave status due to denial of a leave request.
In a letter dated September 9, 2014, OWCP requested that appellant submit additional
factual and medical evidence. It also requested information from the employing establishment.
In an undated statement received on October 15, 2014, appellant provided additional
discussion of the incidents and conditions at work which she believed caused her claimed stressrelated conditions. She asserted that in early 2013 an operations supervisor texted her on her
personal telephone in a threatening manner, and addressed her in a derogatory manner in front of
coworkers and the public. Appellant alleged that in May 2013 another superior searched her
desk and personal belongings without prior notice and that her immediate supervisor treated her
in an aggressive and hostile manner when discussing her leave request. She alleged that in
April 2013 the operations supervisor harassed her regarding the use of leave and that in
December 2013 she unfairly chastised her and yelled at her from a distance. Appellant also
claimed that in early 2014 her immediate supervisor yelled at her and improperly singled her out
with questions about her entries in the sign-in sheet. She asserted that her immediate supervisor
improperly denied leave requests, mismanaged her work assignments, overly scrutinized and
monitored her work, and had a “horrible communication style.”
In an undated statement received on September 29, 2014, appellant’s immediate
supervisor denied that appellant was subjected to harassment or discrimination as alleged. He
indicated that management acted properly when it carried out actions relating to the handling of
leave requests, the management of work assignments, and the monitoring of work product. The
immediate supervisor denied that appellant was given more work than coworkers in the same
position or that her supervisors verbally harassed her.
Appellant submitted numerous documents from grievances and Equal Employment
Opportunity (EEO) claims she filed with respect to some of her claimed employment factors.
None of the EEO documents indicate that a final decision was issued in her favor with respect to
any of these matters. The record does contain a February 2013 grievance settlement through
which an element of appellant’s performance evaluation was raised to a higher level. However,
the agreement specifically indicates that it does not create a precedent and that it cannot be used
in any other forum.
Appellant submitted a number of e-mails and letters she sent to union representatives and
management officials in which she discussed her claims of management wrongdoing. In a
September 25, 2014 statement, a coworker related that appellant was “badly” treated by her
immediate supervisor and the operations supervisor. The coworker stated that appellant received
work that two service representatives did not want to complete. Appellant also submitted
additional medical evidence in support of her claim.

2

By decision dated February 27, 2015, OWCP denied appellant’s emotional condition
because she did not establish any compensable employment factors. It found that she did not
submit sufficient evidence to establish that supervisors committed harassment or discrimination
or that management committed error or abuse with respect to administrative matters.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his or her regular or specially assigned duties or to a requirement imposed
by the employment, the disability comes within the coverage of FECA.2 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a
reduction-in-force or his or her frustration from not being permitted to work in a particular
environment or to hold a particular position.3
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employing establishment rather than the regular
or specially assigned work duties of the employee and are not covered under FECA.4 However,
the Board has held that, where the evidence establishes error or abuse on the part of the
employing establishment in what would otherwise be an administrative matter, coverage will be
afforded.5 In determining whether the employing establishment has erred or acted abusively, the
Board will examine the factual evidence of record to determine whether the employing
establishment acted reasonably.6
To the extent that disputes and incidents alleged as constituting harassment and
discrimination by supervisors and coworkers are established as occurring and arising from
appellant’s performance of her regular duties, these could constitute employment factors.7
However, for harassment or discrimination to give rise to a compensable disability under FECA,
there must be evidence that harassment or discrimination did in fact occur. Mere perceptions of
harassment or discrimination are not compensable under FECA.8
Appellant has the burden of establishing by the weight of the reliable, probative, and
substantial evidence that the condition for which she claims compensation was caused or
2

Lillian Cutler, 28 ECAB 125 (1976).

3

Gregorio E. Conde, 52 ECAB 410 (2001).

4

Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 556 (1991).
5

William H. Fortner, 49 ECAB 324 (1998).

6

Ruth S. Johnson, 46 ECAB 237 (1994).

7

David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, 42 ECAB 603, 608 (1991).

8

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).

3

adversely affected by employment factors.9 This burden includes the submission of a detailed
description of the employment factors or conditions which appellant believes caused or adversely
affected a condition for which compensation is claimed and a rationalized medical opinion
relating the claimed condition to compensable employment factors.10
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.11 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, it must base its decision on an analysis of the
medical evidence.12
ANALYSIS
Appellant alleged that she sustained an emotional condition as a result of a number of
employment incidents and conditions. OWCP denied her emotional condition claim, finding that
she did not establish any compensable employment factors. The Board must, thus, initially
review whether these alleged incidents and conditions of employment are covered employment
factors under the terms of FECA. The Board notes that none of appellant’s claimed employment
factors are alleged to be related to her regular or specially assigned duties under Cutler.13
Appellant has alleged error and abuse in administrative matters and harassment and
discrimination on the part of her supervisors.
Appellant alleged that managers, especially her immediate supervisor, committed
wrongdoing by improperly denying leave requests, mismanaging her work assignments, and
overly scrutinizing and monitoring her work.14 Such administrative and personnel matters,
although generally related to the employee’s employment, are administrative functions of the
employer rather than the regular or specially assigned work duties of the employee and are not
covered under FECA. However, the Board has held that, where the evidence establishes error or
abuse on the part of the employing establishment in what would otherwise be an administrative

9

Pamela R. Rice, 38 ECAB 838, 841 (1987).

10

Effie O. Morris, 44 ECAB 470, 473-74 (1993).

11

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

12

Id.

13

See supra note 2.

14

Appellant also asserted that her immediate supervisor had a “horrible communication style.” However, the
Board has held that an employee’s dissatisfaction with perceived poor management constitutes frustration from not
being permitted to work in a particular environment or to hold a particular position and is not compensable under
FECA. See Michael Thomas Plante, 44 ECAB 510, 515 (1993).

4

matter, coverage will be afforded.15 The employing establishment denied that it committed error
or abuse with respect to such matters and appellant has not submitted sufficient evidence to
establish specific incidents, as to time and place of error or abuse with respect to these
allegations. Appellant submitted grievances and EEO documents with respect to some of these
claimed employment factors, but no final decision was issued showing error or abuse by
management.
Appellant claimed that her immediate supervisor and the operations supervisor subjected
her to harassment and discrimination on numerous occasions in 2013 and 2014. For example,
she claimed that they yelled at her and subjected her to taunting, sent her improper texts on her
personal telephone, and treated her disparately with respect to work assignments and other
matters. The employing establishment denied that appellant was subjected to harassment or
discrimination and she has not submitted sufficient evidence to establish the factual basis as to
time, place, and specialist, so as to establish that she was harassed or discriminated against by
her supervisors.16 Appellant alleged that supervisors made statements and engaged in actions
which she believed constituted harassment and discrimination, but these broad allegations
provided no probative corroborating evidence to establish that the statements actually were made
or that the actions actually occurred.17
Appellant submitted a September 25, 2014 coworker statement that appellant had been
“badly” treated by her immediate supervisor and the operations supervisor. However, this
statement does not contain a detailed account or date stamp the particular actions or statements
of the immediate supervisor or the operations supervisor. The coworker suggested that appellant
had been harassed because she received work that two service representatives did not want to
complete, but she did not provide any further specificity about this matter. The Board notes that
appellant filed grievances and EEO complaints regarding some of her claims of management
harassment and discrimination, but the record does not contain a final decision of any such
grievance or EEO complaint finding error or abuse by management18
For the foregoing reasons, appellant has not established any compensable employment
factors under FECA and, therefore, has not met her burden of proof to establish an emotional
condition in the performance of duty.19

15

See supra notes 4 through 6.

16

See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a claimant must substantiate allegations of
harassment or discrimination with probative and reliable evidence).
17

See William P. George, 43 ECAB 1159, 1167 (1992).

18

On appeal, appellant noted that the case record contained a copy of an OWCP decision concerning another
claimant for FECA benefits and she questioned whether OWCP claims examiners intertwined the facts of the two
cases. The Board notes that there is no indication in the record that the facts of the two cases were intertwined.
OWCP only considered evidence relevant to appellant’s case in reaching its conclusions.
19

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record; see Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).

5

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish an emotional
condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the February 27, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 4, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


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

)
)
)
)
)
)
)
)

Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1480
Issued: April 7, 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 August, 5, 2020 appellant, through counsel, filed a timely appeal from a May 8, 2020
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180
days has elapsed from OWCP’s last merit decision, dated October 3, 2019, to the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c)
and 501.3, the Board lacks jurisdiction over the merits of this case.

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 OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On July 28, 2003 appellant, then a 51-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that she developed bilateral multiple crush syndrome, bilateral carpal
tunnel syndrome, osteoarthritis, and exostoses of the right and left third metacarpal due to factors
of her federal employment. She noted that she first became aware of her conditions on June 4,
2002 and realized their relationship to her federal employment on June 4, 2003. Appellant stopped
work on March 11, 2002.
On August 4, 2004 OWCP accepted the claim for aggravation of bilateral carpal tunnel
syndrome and aggravation of bilateral osteoarthritis of the hands. It paid appellant wage-loss
compensation on the daily rolls from June 4, 2002 through October 30, 2004 and then on the
periodic rolls commencing October 31, 2004.
Appellant underwent OWCP-authorized left carpal tunnel release, flexor
tenosynovectomy, and basal joint first carpometacarpal arthroplasty on February 28, 2006.
On September 1, 2016 OWCP referred appellant, a statement of accepted facts (SOAF),
and a list of questions to Dr. Ludwig Licciardi, a Board-certified orthopedic surgeon, for a second
opinion evaluation to determine whether appellant had any continuing disability arising from the
accepted employment injuries. In a September 28, 2016 report, Dr. Licciardi provided physical
examination findings and diagnosed bilateral osteoarthritis of the hands and bilateral carpal tunnel
syndrome. He noted that appellant’s conditions were aggravated by her employment activities and
were permanent. Dr. Licciardi opined that appellant could perform sedentary or light-duty work
for four hours per day with permanent restrictions. He found that appellant had not yet reached
maximum medical improvement (MMI) and that her conditions were permanent and progressive.
In a July 6, 2017 report, Dr. Seymour L. Edelstein, a Board-certified orthopedic surgeon,
examined appellant and diagnosed bilateral carpal tunnel syndrome, flexor tendinitis and
triggering of the left second digit, and rupture of the ulnar sagittal band of the left fourth digit. He
opined that appellant was not capable of working and had severe loss of sensation bilaterally.
Dr. Edelstein noted that appellant’s conditions were aggravated by her employment activities and
found that she was totally disabled from her position as a letter carrier.
On August 21, 2017 OWCP determined that a conflict of medical opinion existed between
the treating physician, Dr. Edelstein, who indicated that appellant remained totally disabled from
work due to the accepted conditions, and the second opinion physician, Dr. Licciardi, who advised
that appellant could return to light-duty work with restrictions.
On August 24, 2017 OWCP referred appellant, along with a SOAF and the case record, for
an impartial medical examination with Dr. Alan Crystal, a Board-certified orthopedic surgeon, to

2

resolve the conflict of medical opinion regarding appellant’s continuing employment-related
residuals and disability.
In a September 13, 2017 report, Dr. Crystal noted appellant’s history of injury and medical
treatment. He conducted a physical examination and opined that appellant’s aggravation of
bilateral carpal tunnel syndrome was temporary and had resolved. He found that appellant could
work in a limited/light-duty position as a modified letter carrier. Dr. Crystal opined that appellant
had reached MMI.
In addendum reports dated May 29 through December 3, 2018, Dr. Crystal clarified that
appellant’s accepted employment injuries had resolved. He opined that appellant could only work
four hours per day in a light-duty position because of her preexisting osteoarthritis of her hands.
Dr. Crystal further opined that appellant would suffer from aggravation of osteoarthritis if she
returned to full-duty work.
On January 17, 2019 OWCP advised appellant that it proposed to terminate her entitlement
to wage-loss compensation and medical benefits based on Dr. Crystal’s opinion that the accepted
conditions had ceased without residuals or disability. It afforded her 30 days to submit additional
evidence or argument challenging the proposed termination.
In a letter dated February 12, 2019, counsel argued that Dr. Crystal’s December 3, 2018
addendum report established that appellant was only capable of working four hours per day in a
light-duty position. He resubmitted a July 6, 2017 report from Dr. Edelstein and asserted that it
confirmed appellant’s continuing employment-related disability.
By decision dated February 27, 2019, OWCP terminated appellant’s wage-loss
compensation and medical benefits, effective February 28, 2019, based on the special weight
accorded to Dr. Crystal as the IME.
OWCP subsequently received a January 31, 2019 report from Dr. Edelstein, who noted that
appellant had severe loss of sensation and arthritis in her hands. Dr. Edelstein examined appellant
and provided physical findings.
On July 12, 2019 appellant, through counsel, requested reconsideration. Counsel asserted
that Drs. Crystal, Licciardi, and Edelstein all found that appellant had a continuing employmentrelated disability.
In a May 16, 2019 report, Dr. Edelstein noted that appellant was originally seen on June 4,
2002 and noted that she had developed swelling of the left third digit as a result of a fall of
approximately one year prior. He provided physical examination findings and diagnosed bilateral
carpal tunnel syndrome, flexor tendinitis and triggering of the left second digit, and rupture of the
ulnar sagittal band of the left fourth digit. Dr. Crystal again opined that appellant was totally
disabled from her position as a letter carrier.
By decision dated October 3, 2019, OWCP denied modification of the February 27, 2019
decision.

3

On April 29, 2020 appellant, through counsel, requested reconsideration. Counsel
resubmitted a May 16, 2019 report from Dr. Edelstein with a correction stating that appellant never
fell at work. He again asserted that the medical evidence of record established that OWCP failed
to meet its burden of proof to justify termination of appellant’s compensation and medical benefits.
By decision dated May 8, 2020, OWCP denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128 (a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation, at any time, on his or her own motion or on application.3
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.4
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.5 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.6 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.7
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
Appellant filed a timely request for reconsideration on April 29, 2020. In support of her
request, counsel argued that the medical evidence of record established that appellant had a
3

5 U.S.C. § 8128(a); see J.T., Docket No. 19-1829 (issued August 21, 2020); W.C., 59 ECAB 372 (2008).

4

20 C.F.R. § 10.606(b)(3); see J.V., Docket No. 19-0990 (issued August 26, 2020); C.N., Docket No. 08-1569
(issued December 9, 2008).
5

Id. at § 10.607(a); see M.M., Docket No. 20-0523 (issued August 25, 2020). The one-year period begins on the
next day after the date of the original contested decision. For merit decisions issued on or after August 29, 2011, a
request for reconsideration must be received by OWCP within one year of OWCP’s decision for which review is
sought. Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016).
Timeliness is determined by the document receipt date of the request for reconsideration as indicated by the received
date in the Integrated Federal Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
6

Id. at § 10.608(a); see M.M., Docket No. 20-0574 (issued August 19, 2020); M.S., 59 ECAB 231 (2007).

7

Id. at § 10.608(b); see J.V., supra note 4; E.R., Docket No. 09-1655 (issued March 18, 2010).

4

continuing employment-related disability and that OWCP failed to meet its burden of proof to
justify termination of her compensation and medical benefits. The Board finds that these
arguments do not show that OWCP erroneously applied or interpreted a specific point of law, nor
do they advance a relevant legal argument not previously considered by OWCP. Consequently,
appellant is not entitled to further review of the merits of her claim based on either the first or
second above-noted requirements under 20 C.F.R. § 10.606(b)(3).8
Appellant also resubmitted a May 16, 2019 report from Dr. Edelstein with a correction
stating that she never fell at work. While this correction is new, the report is substantially similar
to the prior evidence of record. Providing additional medical evidence that either duplicates or is
substantially similar to evidence of record does not constitute a basis for reopening a case.9 As
appellant did not provide relevant and pertinent new evidence, she is not entitled to a merit review
based on the third requirement under 20 C.F.R. § 10.606(b)(3).10
The Board therefore finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.11
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

8

Supra note 4.

9

See B.S., Docket No. 20-0927 (issued January 29, 2021); Eugene F. Butler, 36 ECAB 393, 398 (1984).

10
S.H., Docket No. 19-1897 (issued April 21, 2020); M.K., Docket No. 18-1623 (issued April 10, 2019); Edward
Matthew Diekemper, 31 ECAB 224-25 (1979).
11

See C.M., Docket No. 19-1610 (issued October 27, 2020); A.K., Docket No. 09-2032 (issued August 3, 2010);
M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006) (when a request for reconsideration does not meet
at least one of the three requirements enumerated under section 10.606(b), OWCP will deny the request for
reconsideration without reopening the case for a review on the merits).

5

ORDER
IT IS HEREBY ORDERED THAT the May 8, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 7, 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

6