United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Salt Lake City, UT, Employer
__________________________________________

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

Docket No. 08-1950
Issued: February 12, 2009

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 July 7, 2008 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ merit decisions dated September 14, 2007 and June 2, 2008, finding that she did not
sustain an injury while in the performance of duty. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that she sustained an injury while in the
performance of duty.
FACTUAL HISTORY
On June 13, 2007 appellant, then a 47-year-old postmaster, filed a claim for an
occupational disease. In December 1999 she first became aware of chronic pain in her left knee.
In August 2005 appellant first realized that her condition was caused by heavy lifting, standing
and walking at work. In an August 31, 2005 surgical report, Dr. Scott T. Jackson, performed left
knee diagnostic arthroscopic surgery and diagnosed chrondomalacia of the left knee. In

treatment notes covering August 18, 2005 through January 29, 2007, Dr. Jackson stated that
appellant received injections for left knee pain. Following the left knee arthroscopy, appellant
was doing well with the exception of persistent mild to moderate effusion and debridement with
findings of medial compartment chondromalacia. On September 23, 2005 Dr. Jackson
diagnosed degenerative joint disease of the left knee. Appellant was released to return to parttime work four to five hours per day with restrictions. On December 22, 2005 and February 2,
2006 Dr. Jackson stated that appellant was unable to perform her regular work duties but could
work eight hours per day with restrictions.
By letter dated June 19, 2007, the Office advised appellant that the evidence submitted
was insufficient to establish her claim. It addressed the additional factual and medical evidence
she needed to submit. Regarding the medical evidence, the Office requested a rationalized
medical report from an attending physician which described appellant’s symptoms, results of
examination and tests, diagnosis, treatment provided the effect of treatment and opinion with
medical reasons on whether exposure or incidents in appellant’s federal employment contributed
to her condition. It also requested that the employing establishment respond to appellant’s claim
and provide a copy of a position description including the physical requirements of the jobs she
held from December 1, 1998 through her start date as postmaster.
In a June 27, 2007 letter, appellant stated that during her 20 years of working at the
employing establishment she had lifted up to 69 pounds, walked extensively and stood in the
positions of sales associate, letter carrier, mail processing clerk, supervisor and postmaster.
Although her claim was for a left knee injury, she also experienced problems with her right knee.
Appellant noted a nonwork-related fall that she experienced in 2001 and her hobbies. She
submitted Dr. Jackson’s October 19, 2005 report regarding the total left knee arthroplasty.
By letters dated July 25 and 26, 2007, the employing establishment controverted
appellant’s claim, contending that she did not sustain an injury causally related to her
employment. It submitted descriptions of her positions. The physical requirements included,
among other things, lifting up to 70 pounds, walking and standing.
By decision dated September 14, 2007, the Office found that appellant did not sustain an
injury while in the performance of duty. The medical evidence of record failed to establish a
causal relationship between the alleged left knee conditions and her employment duties.
In an undated letter received by the Office on March 18, 2008, appellant requested
reconsideration. She resubmitted Dr. Jackson’s October 19, 2005 report. In an October 19, 2005
discharge summary, Dr. Jackson recommended that appellant continue with physical therapy.
On May 10, 2007 he opined that appellant’s arthritis, a prior menisectomy that was performed
when she was 19 years old and her work activities caused her to develop post-traumatic arthritis
that required total knee arthroscopy. In a January 4, 2008 report, Dr. Jackson stated that
appellant was doing well following total knee arthroscopy. He reviewed a history of her left
knee problems. In 1978 appellant underwent surgery to remove what Dr. Jackson believed was a
ganglion cyst on the left knee. Dr. Jackson stated that appellant did not give a history of trauma
to the knee but noted that she had worked at the employing establishment for 17 years, 3 of
which involved walking and standing 8 hours per day and lifting up to 70 pounds as a carrier,
walking approximately 4 hours per day for 1 year as a supervisor and walked and stood 6 to 8

2

hours per day and lifted up to 70 pounds for 13 years as a clerk. When appellant first presented
for evaluation in 2005, she had clinical and radiographic symptoms of degenerative joint disease.
She underwent arthroscopic surgery which revealed significant chondromalacia in all three
compartments of the left knee. Because appellant did not respond well to surgery, she underwent
total knee arthroscopy. The surgery was successful and appellant returned to modified-duty
work. Dr. Jackson opined that appellant’s work duties were at least an aggravating source which
hastened or precipitated her knee condition leading to the total knee arthroscopy.
By decision dated June 2, 2008, the Office denied modification of the September 14,
2007 decision. The evidence submitted by appellant was insufficient to establish a causal
relationship between her left knee conditions and accepted work duties.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of her claim including the fact that the individual is
an “employee of the United States” within the meaning of the Act, that the claim was timely filed
within the applicable time limitation period of the Act, that an injury was sustained 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.2 These are the essential
elements of each compensation claim regardless of whether the claim is predicated upon a
traumatic injury or an occupational disease.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish a causal relationship is rationalized medical opinion
evidence. Rationalized medical opinion evidence is medical evidence, which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.4 Neither the fact that appellant’s condition became apparent during a
1

5 U.S.C. §§ 8101-8193.

2

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

3

See Delores C. Ellyett, 41 ECAB 992, 994 (1990); Ruthie M. Evans, 41 ECAB 416, 423-25 (1990).

4

Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

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period of employment nor her belief that the condition was caused by her employment is
sufficient to establish a causal relationship.5
ANALYSIS
The Board finds that appellant has failed to establish a causal relationship between her
left knee conditions and the accepted factors of her federal employment. Dr. Jackson’s reports
and treatment notes covering the period August 18, 2005 through January 29, 2007 stated that
appellant suffered from persistent mild to moderate effusion and debridement with findings of
medial compartment chondromalacia and, degenerative joint disease of the left knee. On
September 23, 2005 he released appellant’s to return to part-time work four to five hours per day
with restrictions. However, this evidence fails to address whether the diagnosed conditions were
caused or contributed to by the accepted employment factors. The Board finds that
Dr. Jackson’s reports and treatment notes are insufficient to establish appellant’s claim.
Dr. Jackson’s December 22, 2005 and February 2, 2006 reports stated that, appellant
could not perform her regular work duties but, appellant could perform full-time work eight
hours per day with restrictions. In an October 19, 2005 discharge summary, he recommended
that appellant continue with physical therapy. However, this evidence does not provide a
diagnosis or discuss how the diagnosed condition was caused or contributed to by the accepted
employment factors. The Board finds that Dr. Jackson’s reports and discharge summary are
insufficient to establish appellant’s claim.
Dr. Jackson’s May 10, 2007 and January 4, 2008 reports stated that appellant’s arthritis,
open menisectomy and work duties as a letter carrier, supervisor and clerk which included,
walking, standing and lifting caused or at least aggravated her post-traumatic arthritis and
degenerative joint disease, resulting in the total left knee arthroscopy. However, he did not
provide medical rationale explaining how or why the accepted employment factors caused or
aggravated the diagnosed conditions and resultant surgery. Dr. Jackson did not discuss the
mechanism of the injury or its relationship to the employment factors. The Board has held that a
medical opinion not supported by medical rationale is of little probative value.6
The Board finds that there is insufficient rationalized medical evidence of record to
establish that appellant sustained a left knee condition causally related to factors of her federal
employment as postmaster. She did not meet her burden of proof.
CONCLUSION
The Board finds that appellant has failed to establish that she sustained an injury while in
the performance of duty.

5

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

6

Caroline Thomas, 51 ECAB 451 (2000).

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ORDER
IT IS HEREBY ORDERED THAT the June 2, 2008 and September 14, 2007 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: February 12, 2009
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.M., Appellant
and
DEPARTMENT OF LABOR, WAGE & HOUR
DIVISION, Dallas, TX, Employer
__________________________________________

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

Docket No. 14-655
Issued: September 11, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 28, 2014 appellant1 filed a timely appeal from a November 25, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for
reconsideration.2 As more than 180 days has elapsed between the last merit decision of OWCP
dated, May 20, 2013, to the filing of this appeal, the Board lacks jurisdiction to review the merits

1

Appellant indicated in her AB-1 form that Harry James, Jr. was her representative on appeal before the Board,
but did not respond within the allotted time to the February 26, 2014 letter from the Clerk of the Appellate Boards to
provide a statement signed by her authorizing him to serve as her representative. Although appellant filed a valid
appeal with the Board, Mr. James is not presently authorized to serve as her representative in connection with this
appeal. See 20 C.F.R. § 501.9(b).
2

Appellant requested oral argument, but did not respond within the allotted time to the April 10, 2014 letter from
the Clerk of the Appellate Boards to confirm the need for oral argument. The Board will decide the appeal on the
record as submitted.

of this case pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.34 but has jurisdiction over the nonmerit issue.
ISSUE
The issue is whether OWCP properly denied appellant’s request for further merit review
of her claim pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant contends that neither she nor her physicians were given a fair
chance to address her work-related claims in a timely fashion. She also contends that she never
received a request to submit the claimed relevant evidence, including clarification of a witness
statement or her medical treatment prior to October 19, 2012.
FACTUAL HISTORY
On October 12, 2012 appellant, then a 45-year-old human resources compensation
specialist, filed a traumatic injury claim alleging that she experienced a sharp stinging pain in her
head and left arm when a metal bin above her desk fell on her head and left arm on
September 21, 2012.5
In an e-mail dated September 21, 2012, Rita A. Lunsford, an employee, stated that she
witnessed the September 21, 2012 incident. She related that shelving dividers and documents
from the shelving in appellant’s cubicle did not strike appellant. Ms. Lunsford stated that she did
not demonstrate any signs of physical harm.
By letter dated October 12, 2012, OWCP advised appellant that the evidence submitted
was insufficient to establish her claim. It requested factual and medical evidence. OWCP also
requested that the employing establishment submit medical evidence if appellant was treated at
its medical facility. The letter was sent to appellant’s address of record.
On October 31, 2012 appellant stated that she took files from her top left file drawer
while waiting for her computer to upload on September 21, 2012. She stated that she delayed in
filing her claim because she could not access the electronic system and she was not allowed to
enter her office building by her supervisor and administration. Appellant related that the
immediate effects of her injury included a throbbing chronic migraine headache, and sharp pain
and bruising on the left arm and hand.

3

5 U.S.C. § 8101 et seq.

4

See 20 C.F.R. § 501.3(e).

5

The Board notes that appellant had separate claims under OWCP File Nos. xxxxxx954, xxxxxx901 and
xxxxxx008 for an emotional condition. These claims were previously before the Board and denied in decisions
dated January 12, 2012 and April 1 and June 6, 2013, respectively. Docket Nos. 11-796 (issued January 12, 2012),
12-1238 (issued April 1, 2013) and 12-1899 (issued June 6, 2013). Appellant also had a separate claim under
OWCP File No. xxxxxx459 for a bilateral wrist condition. This claim was previously before the Board and denied
in an August 15, 2014 decision. Docket No. 14-707 (issued August 15, 2014).

2

In a September 28, 2012 letter, Dr. R. Anthony Moore, a Board-certified psychiatrist and
neurologist, stated that appellant had been off work since September 21, 2012. He advised that
she would be off work for one month due to depression. In a November 19, 2012 letter,
Dr. Moore advised that appellant would be off work until January 1, 2013.6
In a medical report dated October 19, 2012, Dr. Les Benson, a general practitioner,
obtained a history that appellant was sitting at her desk getting files from a top file drawer when
some of the overhead files fell and struck her on the arm between the elbow and shoulder and
then fell to her wrist. Appellant told Dr. Benson that she had a contusion and scratches on her
arm and that she went to an emergency room. Dr. Benson provided her medical, family and
employment background. He noted appellant’s left upper extremity symptoms and listed
findings on physical and neurological examination. Dr. Benson diagnosed contusion of the left
arm with laceration, sprain of the left arm, and cervical and shoulder strain. He opined that the
diagnosed conditions were caused by the September 21, 2012 incident. In an October 19, 2012
letter, Dr. Benson advised that appellant sustained left shoulder strain and sprain, brachium
contusion, left wrist and hand contusion and brachium laceration due to the September 21, 2012
incident.
He opined that appellant was totally disabled from September 22 through
November 16, 2012. In a November 20, 2012 letter, Dr. Benson reiterated his opinion that
appellant’s diagnosed left shoulder and wrist conditions were caused by the September 21, 2012
incident. He advised that appellant was totally disabled from September 22, 2012 through
January 18, 2013.
In magnetic resonance imaging scan left shoulder and wrist reports dated November 9,
2012, Dr. Paul Marsh, a Board-certified radiologist, listed appellant’s diagnoses.
In an October 15, 2012 memorandum, the employing establishment controverted
appellant’s claim based on Ms. Lunsford’s September 21, 2012 statement. It also stated that, at
the time of the claimed injury, appellant was to begin a two-week suspension on
September 24, 2012. The employing establishment noted that the suspension had been served,
but she was currently on 30 days of administrative leave. In a September 25, 2012 e-mail, JoAnn
Murrell, a management and program analyst, stated that appellant reported an injury to her on
September 21, 2012. She told Ms. Murrell that pieces of her cubicle fell and indicated that her
arm and forehead were hurt.
By decision dated January 9, 2013, OWCP denied appellant’s claim. It found that the
evidence did not establish that the September 21, 2012 incident occurred as alleged.
On January 12, 2013 appellant requested a review of the written record by an OWCP
hearing representative.
In a May 20, 2013 decision, an OWCP hearing representative affirmed the January 9,
2013 decision. She found that the evidence was insufficient to establish that the September 21,
2013 incident occurred as alleged.

6

The Board notes that it appears that Dr. Moore incorrectly stated that appellant would be off work until
January 1, 2012 rather than January 1, 2013 as his report is dated November 19, 2012.

3

On August 27, 2013 appellant requested reconsideration. She resubmitted Dr. Benson’s
October 19, 2012 report, which was annotated as an “Addendum.”
In a November 25, 2013 decision, OWCP denied merit review of appellant’s claim on the
grounds that the medical evidence submitted was cumulative and repetitious of Dr. Benson’s
prior October 19, 2012 report.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128 of the FECA,7
OWCP’s regulation provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.8 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.9 Section 10.608(b) of the implementing regulation states that any
application for review that does not meet at least one of the requirements listed in 20 C.F.R.
§ 10.606(b)(3) will be denied by OWCP without review of the merits of the claim.10
ANALYSIS
On August 27, 2013 appellant disagreed with OWCP’s May 20, 2013 decision, denying
her traumatic injury clam on the grounds that she failed to establish that the September 21, 2012
incident occurred as alleged. She requested reconsideration. The Board finds that appellant did
not establish that OWCP erroneously applied or interpreted a specific point of law, or advance a
relevant legal argument not previously considered.
Appellant submitted Dr. Benson’s October 19, 2012 report, which was previously of
record. The history of injury that she was sitting at her desk getting files from a top file drawer
when several of the overhead files fell and struck her on the arm between the elbow and shoulder
and then to her wrist. Dr. Benson opined that she had a contusion of the left arm with laceration,
sprain of the left arm, and cervical and shoulder strain caused by the September 21, 2012
incident. This report is identical to the October 19, 2012 report, with the exception of being
captioned as an “Addendum.” The Board has held that evidence which is cumulative or
duplicative of material already in the case record is insufficient to warrant reopening a claim for
merit review.11 The Board finds, therefore, that Dr. Benson’s report is insufficient to reopen
appellant’s claim for a merit review.
7

5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, the Secretary of Labor may review an award for or
against payment of compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
8

20 C.F.R. § 10.606(b)(3).

9

Id. at § 10.607(a).

10

Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

11

A.F., Docket No. 11-1297 (issued December 20, 2011).

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The Board accordingly finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted
a specific point of law, advance a relevant legal argument not previously considered by OWCP
or submit relevant and pertinent new evidence not previously considered by OWCP. Pursuant to
20 C.F.R. § 10.608, OWCP properly denied merit review.
On appeal, appellant contended that neither she nor her physicians were given a fair
chance to address her work-related claims in a timely fashion. She further contended that she
never received a request to submit the claimed relevant evidence, including clarification of a
witness statement or her medical treatment prior to October 19, 2012. As noted, the Board does
not have jurisdiction over the merits of appellant’s claim, only whether she submitted sufficient
evidence to warrant reopening of her claim for a merit review under 20 C.F.R. § 10.606(b)(3).
The evidence submitted in support of appellant’s request for reconsideration is insufficient to
warrant reopening her claim for merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for further merit review
of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the November 25, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 11, 2014
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Mobile, AL, Employer
__________________________________________

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

Docket No. 11-2078
Issued: April 20, 2012

Case Submitted on the Record

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

JURISDICTION
On September 23, 2011 appellant, through his attorney, filed a timely appeal from a
September 2, 2011 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 cervical condition causally related to
factors of his federal employment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
The case was before the Board on a prior appeal.2 As the Board noted, appellant had
filed an occupational disease claim (Form CA-2) on August 12, 2009 alleging that he sustained a
cervical herniated disc causally related to repetitive motion in his federal employment as a
distribution clerk. The medical evidence included a September 8, 2009 report from Dr. Andre
Fontana, an orthopedic surgeon, which stated that appellant “was working with the mail boxes
and was using repetitive movements and also working at the window region and pushing for the
mail when he became more symptomatic in his neck associated with disc problems.” The Board
affirmed an April 13, 2010 OWCP decision denying the claim for compensation, finding the
medical evidence did not provide a rationalized opinion on causal relationship between a
diagnosed neck condition and employment factors. The additional history of the case as
provided in the Board’s prior decision is incorporated herein by reference.
In a letter dated February 11, 2011 appellant, through his representative, requested
reconsideration. Appellant submitted a May 27, 2010 report from Dr. Fontana, who stated that
appellant had remained under his care for a work-related herniated cervical disc. Dr. Fontana
stated that over the last few months appellant had an exacerbation of his problems, for which he
had undergone treatment. He noted the results of past MRI scans and indicated that appellant
was back to work with limitations. Dr. Fontana concluded, “The patient’s work activity includes
moving and handling mail material, pushing and pulling which can aggravate his cervical
conditions.”
By decision dated September 2, 2011, OWCP reviewed the merits of the claim for
compensation. It denied the claim on the grounds that the medical evidence was insufficient to
establish the claim.
LEGAL PRECEDENT
A claimant seeking benefits under FECA3 has the burden of establishing the essential
elements of his claim by the weight of the reliable, probative and substantial evidence, including
that an injury was sustained in the performance of duty as alleged and that any specific condition
or disability claimed is causally related to the employment injury.4
To establish that an injury was sustained in the performance of duty, a claimant must
submit: (1) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; (2) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
and (3) medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant.5
2

Docket No. 10-1578 (issued February 2, 2011).

3

5 U.S.C. §§ 8101-8193.

4

20 C.F.R. § 10.115(e), (f) (2005); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

5

Ruby I. Fish, 46 ECAB 276, 279 (1994).

2

Causal relationship is a medical question that can generally be resolved only by
rationalized medical opinion evidence.6 A physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors must be based on a complete factual and medical background of the claimant.7
Additionally, in order to be considered rationalized, the opinion must be expressed in terms of a
reasonable degree of medical certainty, and must be supported by medical rationale, explaining
the nature of the relationship between the diagnosed condition and appellant’s specific
employment factors.8
ANALYSIS
As the Board noted in its prior decision, the September 8, 2009 report from Dr. Fontana
was insufficient to establish the claim because it did not provide a complete background or a
rationalized medical opinion on causal relationship between a diagnosed cervical condition and
the employment factors. The May 27, 2010 report from Dr. Fontana is similarly deficient in this
regard. While Dr. Fontana provided additional references to MRI scan results, he did not
provide a complete medical and factual history. Dr. Fontana refers briefly to appellant’s work
activity as including pushing and pulling, without discussing when this occurred or providing
other detail showing he understood appellant’s work history. In addition, his opinion that the
work activity can aggravate a cervical condition is speculative and unaccompanied by supporting
medical rationale. It is well established that medical opinions based on an incomplete history or
opinions that are speculative in character are of diminished probative value.9 Dr. Fontana
provided no explanation of how appellant’s specific work activities aggravated his condition, or
a discussion of the nature, extent and duration of such aggravation.
It is appellant’s burden of proof to establish the claim for compensation. The Board finds
appellant did not meet his burden of proof in this case.
CONCLUSION
The Board finds appellant did not establish a cervical condition causally related to factors
of his federal employment.

6

See Robert G. Morris, 48 ECAB 238 (1996).

7

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

8

Id.

9

See Leonard J. O’Keefe, 14 ECAB 42, 48 (1962).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 2, 2011 is affirmed.
Issued: April 20, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 09-1574
Issued: February 2, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 3, 2009 appellant timely appealed the May 4, 2009 merit decision of the Office
of Workers’ Compensation Programs, which declined to modify a February 25, 2008 decision
denying her traumatic injury claim. Pursuant to 20 C.F.R. §§ 501.2 and 501.3, the Board has
jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty on
November 17, 2007.
FACTUAL HISTORY
On January 11, 2008 appellant, then a 59-year-old rural carrier associate, filed a claim
(Form CA-1) for injury to her head, third and fourth ribs, right shoulder, right arm and right leg.
The injury reportedly occurred on November 17, 2007 when the back tire of the motor vehicle
she was operating slid into a ditch. Appellant indicated that she was treated at the Paris Regional
Medical Center emergency room on November 17, 2007. Although she submitted invoices for

ambulance and emergency room services, as she did not submit any medical evidence regarding
the particular diagnoses and treatment she received on November 17, 2007.
By letter dated January 24, 2008, the Office advised appellant that the evidence submitted
was insufficient to support her claim. It specifically noted that there was no medical evidence
that included a diagnosis of any condition resulting from the November 17, 2007 incident. The
Office requested a detailed, narrative medical report from appellant’s attending physician.
Appellant was afforded 30 days to submit the requested information. However, the Office did
not receive any additional information within the allotted time frame.
In a decision dated February 25, 2008, the Office denied appellant’s claim because she
failed to establish fact of injury. Appellant had not submitted any medical evidence that
provided a diagnosis which could be connected to the described employment incident.
On February 26, 2008 the Office received a January 10, 2008 return to work certificate
from Dr. Victoria E. Pardue, a family practitioner, who indicated that appellant had been under
her care since November 17, 2007 for a “medical condition.” Dr. Pardue further noted that it
was “unknown” as to when appellant would be able to return to work.
Appellant requested reconsideration on January 30, 2009. The Office received June 24,
2002 and March 25, 2008 magnetic resonance imaging (MRI) scans of the lumbar spine
indicating degenerative changes at L3-4 and L4-5. Appellant also provided cervical MRI scans
dated September 13, 2005 and October 23, 2008 that revealed multilevel degenerative disc
disease.1 A January 14, 2008 MRI scan of the thoracic spine showed evidence of edema at T1
and T4 suggestive of a compression injury.2
Dr. Pardue provided work restrictions on October 11, 2008 and noted that appellant had a
permanent disability. She diagnosed degenerative joint disease of the lumbar spine and
osteopenia.
In a report dated January 22, 2009, Dr. Curtis W. Cutrell, a Board-certified family
practitioner, noted that appellant had ongoing complaints involving her back, thoracic spine and
some radiation of pain to the infrascapular regions bilaterally. He also noted that she had
recurrent problems involving her neck with radiation of pain and neuropathic profile to the left
arm from the distribution of C6-7 primarily. Dr. Cutrell indicated that appellant was involved in
a motor vehicle accident on November 17, 2007 and she sustained fractures of the first (T1) and
fourth (T4) thoracic vertebra as a result. He further indicated that, based on a comparison of
appellant’s pre- and post-injury cervical MRI scans, she had multiple levels of disc bulging that
she did not have previously. Dr. Cutrell also commented on what seemed to be an exacerbation
of a previous cervical injury. He explained that, while appellant had preexisting arthritis, bone
spurs and degenerative changes, the accident caused severe exacerbation with resultant problems
involving her neck. Dr. Cutrell also stated that she did not “apparently” have the thoracic

1

The September 13, 2005 cervical MRI scan referenced an injury that reportedly occurred four years prior.

2

The radiologist noted that the edema suggested an “acute/subacute chronicity.”

2

fractures prior to November 17, 2007. He further noted that the thoracic condition had been an
ongoing and limiting factor in appellant’s ability to return to any type of work activity.
By decision dated May 4, 2009, the Office denied modification of the February 25, 2008
decision.
LEGAL PRECEDENT
A claimant seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing the essential elements of her claim by the weight of the reliable, probative
and substantial evidence, including that an injury was sustained in the performance of duty as
alleged and that any specific condition or disability claimed is causally related to the
employment injury.4
To determine if an employee sustained a traumatic 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 that must be considered in conjunction with one another.
The first component to be established is that the employee actually experienced the employment
incident that is alleged to have occurred.5 The second component is whether the employment
incident caused a personal injury.6
ANALYSIS
Appellant has failed to establish that she sustained an employment-related injury. The
medical evidence consists of several MRI scans, a couple notes from Dr. Pardue regarding work
restrictions and a January 22, 2009 report from Dr. Cutrell. Either individually or collectively
this evidence is insufficient to satisfy appellant’s burden of proof. Appellant’s various MRI
scans do not address the cause of the diagnosed conditions and two of the studies predated the
claimed November 17, 2007 injury. Consequently, this evidence by itself does not establish that
she has an employment-related cervical, thoracic and/or lumbar condition.7

3

5 U.S.C. §§ 8101-8193 (2006).

4

20 C.F.R. § 10.115(e), (f) (2009); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996). Causal relationship is
a medical question, which generally requires rationalized medical opinion evidence to resolve the issue. See
Robert G. Morris, 48 ECAB 238 (1996). A physician’s opinion on whether there is a causal relationship between
the diagnosed condition and the implicated employment factors must be based on a complete factual and medical
background. Victor J. Woodhams, 41 ECAB 345, 352 (1989). Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty and must be supported by medical rationale,
explaining the nature of the relationship between the diagnosed condition and appellant’s specific employment
factors. Id.
5

Elaine Pendleton, 40 ECAB 1143 (1989).

6

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

7

The January 14, 2008 thoracic MRI scan is particularly troublesome and confusing in that the radiologist
characterized the noted compression injury as both acute and chronic.

3

Dr. Pardue’s January 10 and October 11, 2008 work restrictions also do not satisfy
appellant’s burden of proof. Her first note mentioned that appellant had been under her care
since November 17, 2007, but it did not include a specific diagnosis. The January 10, 2008
return to work certificate described the nature of appellant’s illness as “medical condition.” This
is not sufficient to establish that she sustained an employment-related injury on
November 17, 2007. Dr. Pardue’s October 11, 2008 report did not even reference a specific date
of injury. Although she diagnosed lumbar degenerative joint disease and osteopenia and
identified various work restrictions, her latest submission did not address the cause of the
diagnosed conditions or even mention an injury having occurred on November 17, 2007.
Dr. Cutrell is the only physician of record to relate appellant’s current cervical and
thoracic conditions to her reported November 17, 2007 employment injury. However, other than
noting that appellant was involved in a “motor vehicle accident,” Dr. Cutrell did not explain how
the alleged accident occurred or describe the mechanism of injury. It is not at all clear how she
sustained a compression fracture in her thoracic spine or aggravated her preexisting cervical
degenerative condition when her back tire reportedly slid into a ditch on November 17, 2007.
Dr. Cutrell indicated that appellant’s condition was “directly related by time and place.”
However, a mere temporal relationship will not suffice in this instance. Dr. Cutrell’s January 22,
2009 report is speculative at best and cannot be considered a rationalized medical opinion on
causal relationship.8
The medical evidence of record is insufficient to establish that appellant sustained an
employment-related injury on November 17, 2007. Accordingly, the Office properly denied her
traumatic injury claim.
CONCLUSION
Appellant has not established that she sustained an injury in the performance of duty on
November 17, 2007.

8

See Victor J. Woodhams, supra note 4.

4

ORDER
IT IS HEREBY ORDERED THAT the May 4, 2009 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 2, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
DEPARTMENT OF THE NAVY, MILITARY
SEALIFT COMMAND, Norfolk, VA, Employer
__________________________________________

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

Docket No. 15-0345
Issued: September 20, 2016

Case Submitted on the Record

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

JURISDICTION
On November 24, 2014 appellant filed a timely appeal from a September 11, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied his
consequential injury claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established a consequential injury of tinnitus causally
related to his employment-related hearing loss.
FACTUAL HISTORY
On January 12, 2001 appellant, then a 47-year-old deck mechanic, filed an occupational
disease claim alleging that he sustained hearing loss as a result of excessive noise in the
workplace. He first became aware of his condition and realized it resulted from his employment
on July 17, 2000. Appellant had been disabled from work since June 5, 1998 due to a previous
1

5 U.S.C. § 8101 et seq.

traumatic injury.2 OWCP accepted his claim for noise-induced hearing loss and paid wage-loss
and medical benefits. Appellant was granted a schedule award of six percent permanent
impairment for bilateral hearing loss.
On November 30, 2012 appellant requested information via telephone regarding how to
expand his case to include tinnitus.
In an April 26, 2013 report, Dr. T. Oma Hester, a Board-certified otolaryngologist,
examined appellant for complaints of increasing bilateral ringing tinnitus. Appellant stated that
the tinnitus was constant and prevented him from sleep. Dr. Hester related that appellant had a
history of loud noise exposure, which included working in the military and around heavy
equipment and diesel engines for about 14 years. He also noted that appellant had hearing tests
over the years which revealed a mild-to-moderate downsloping sensorineural loss into the higher
frequencies with some recovery after a peak loss at 4,000 Hz. Upon examination, Dr. Hester
observed clear bilateral ear canals and translucent and mobile tympanic membranes. He
diagnosed bilateral sensorineural hearing loss and tinnitus.
In a May 2, 2013 report, Dr. Hester stated that appellant had mild-to-moderate
sensorineural hearing loss, with a peak loss at 4,000 Hz, consistent with a noise-induced pattern.
He also noted that appellant had a significant amount of loud noise exposure in the workplace
during his time in the military over 14 years.
On July 17, 2013 appellant again requested via telephone that OWCP expand his claim to
include tinnitus.
By letter dated July 17, 2013, OWCP advised appellant that medical evidence was
needed to expand the accepted conditions in his claim. It advised that appellant’s physician
provide a medical statement showing that his new condition was part of the original July 17,
2000 hearing loss injury, that the new condition was caused by the accepted work-related hearing
loss, or that his new condition was caused by the treatment of the accepted injury.
In a January 2, 2014 report, Dr. Hester related appellant’s complaints of constant bilateral
ringing tinnitus. He noted that appellant had a history of loud noise exposure from working in
the military and around heavy equipment and diesel engines for approximately 14 years.
Dr. Hester related that appellant had hearing tests performed over the years which showed a
mild-to-moderate downsloping sensorineural loss in the higher frequencies. He reported that a
March 20, 2013 audiogram demonstrated mild to borderline flat sensorineural hearing loss up to
2,000 Hz and a slight drop at 4,000 Hz with some recovery at 8,000 Hz. Dr. Hester stated that
appellant’s hearing tests over a series of years showed evidence of primarily isolated highfrequency loss with some recovery after a peak drop at 4,000 Hz. He opined that appellant’s
tinnitus complaints were most likely related to the hearing loss and a direct result of the hearing
loss itself.
In a decision dated April 11, 2014, OWCP denied appellant’s claim for tinnitus as a result
of his employment-related hearing loss. It found that the medical evidence was insufficient to
establish that tinnitus was causally related to his employment hearing loss.
2

Appellant has a previously accepted traumatic injury case (File No. xxxxxx423) for an April 14, 1997 injury.

2

On June 11, 2014 appellant requested reconsideration. He submitted an April 11, 2014
audiology evaluation which revealed a mild-to-moderate hearing loss in each ear. The
audiologist noted that appellant’s hearing thresholds had been stable since March 20, 2013.
In a May 19, 2014 report, Dr. Hester related that appellant continued to have problems
with bilateral ringing-type tinnitus. He noted that appellant had bilateral sensorineural hearing
loss due to loud noise exposure while employed for the Department of Labor. Upon
examination, Dr. Hester observed clear ear canals and translucent and mobile tympanic
membranes. He related that an April 11, 2014 hearing test demonstrated a bilateral mild-tomoderate sensorineural hearing loss with a peak loss at 4,000 Hz and some recovery beyond.
Dr. Hester explained that it was very difficult to determine the cause of tinnitus. He stated that it
was an extremely common problem that was believed to be related to sensorineural hearing loss.
Thus, Dr. Hester concluded that appellant’s tinnitus was related to his sensorineural hearing loss,
which was related to the employment factors of loud noise exposure.
By decision dated September 11, 2014, OWCP denied modification of the April 11, 2014
decision. It found that the medical evidence was insufficient to establish that appellant’s tinnitus
was a direct and natural result of his employment-related hearing loss.
LEGAL PRECEDENT
It is an accepted principle of workers’ compensation law that when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent, intervening cause attributable to the employee’s own intentional conduct.3 The
basic rule is that a subsequent injury, whether an aggravation of the original injury or a new and
distinct injury, is compensable if it is the direct and natural result of a compensable primary
injury.4 The Board has held that the subsequent progression of an employment-related condition
“remains compensable so long as the worsening is not shown to have been produced by an
independent nonindustrial cause.”5
A claimant bears the burden of proof to establish a claim for consequential injury. As
part of this burden, he must present rationalized medical opinion evidence, based on a complete
medical and factual background, establishing causal relationship.6 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.7

3

Clement Jay After Buffalo, 45 ECAB 707, 715 (1994); John R. Knox, 42 ECAB 193, 196 (1990).

4

See A. Larson, The Law of Workers’ Compensation § 10.01 (November 2000).

5

Raymond A. Nester, 50 ECAB 173, 175 (1998); Robert W. Meeson, 44 ECAB 834, 839 (1993).

6

R.C., Docket No. 10-1789 (issued April 22, 2001); Jennifer Atkerson, 55 ECAB 317 (2004).

7

B.B., 59 ECAB 234 (2007); D.S., Docket No. 09-860 (issued November 2, 2009).

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ANALYSIS
OWCP accepted appellant’s claim for employment-related bilateral hearing loss.
Appellant alleges that he sustained tinnitus as a consequence of his accepted employment injury.
The Board finds that appellant has failed to submit sufficient medical evidence to establish
tinnitus as causally related to his employment-related hearing loss.
In support of his consequential injury claim, appellant submitted various reports by
Dr. Hester from April 26, 2013 to May 19, 2014. He stated that he treated appellant for
complaints of increasing bilateral ringing tinnitus. Dr. Hester related that appellant had a history
of loud noise exposure, working in the military and around heavy equipment and diesel engines
for about 14 years. He also noted that appellant had hearing tests over the years which revealed
a mild-to-moderate downsloping sensorineural loss into the higher frequencies with some
recovery after a peak loss at 4,000 Hz. Upon examination, Dr. Hester observed clear bilateral ear
canals and translucent and mobile tympanic membranes. He diagnosed bilateral sensorineural
hearing loss and tinnitus. In his January 2, 2014 report, Dr. Hester opined that appellant’s
tinnitus complaints were most likely related to the hearing loss and a direct result of the hearing
loss itself. His opinion, however, that appellant’s tinnitus was “most likely related” to his
hearing loss is speculative in nature. The Board has held that medical opinions that are
speculative or equivocal in character are of diminished probative value.8 An award of
compensation may not be based on surmise, conjecture, speculation or upon appellant’s own
belief that there is causal relationship between his claimed condition and his employment.9 The
Board finds that Dr. Hester’s opinion is insufficient to establish appellant’s claim.
Furthermore, in a May 19, 2014 report, Dr. Hester related that appellant continued to
have problems with bilateral ringing-type tinnitus. He noted that appellant had bilateral
sensorineural hearing loss due to loud noise exposure while employed for the Department of
Labor. Dr. Hester explained that it was very difficult to determine the cause of tinnitus and
noted that it was an extremely common problem that was believed to be related to sensorineural
hearing loss. He concluded that appellant’s tinnitus was related to his sensorineural hearing loss,
which was related to his loud noise exposure. Although Dr. Hester provided an opinion on
causal relationship, the Board notes that he failed to offer any medical explanation as to how
appellant’s tinnitus resulted from his employment-related hearing loss.10 A medical opinion that
states a conclusion but does not offer any rationalized medical explanation regarding the cause of
an employee’s condition is of limited probative value on the issue of causal relationship.11
The additional April 11, 2014 audiology evaluation is likewise insufficient to establish
appellant’s consequential injury claim. The report does not contain any diagnosis of tinnitus nor
provide any opinion on whether appellant sustained tinnitus as a consequence of his
employment-related hearing loss. The Board has held that medical evidence that does not offer
8

D.D., 57 ECAB 734, 738 (2006); Kathy A. Kelley, 55 ECAB 206 (2004).

9

Robert A. Boyle, 54 ECAB 381 (2003); Patricia J. Glenn, 53 ECAB 159 (2001).

10

See D.M., Docket No. 13-1798 (issued November 12, 2013); see also R.K., Docket No. 10-415 (issued
January 21, 2011).
11

J.F., Docket No. 09-1061 (issued November 17, 2009); A.D., 58 ECAB 149 (2006).

4

any opinion regarding the cause of an employee’s condition is of limited probative value on the
issue of causal relationship.12
The Board notes that the A.M.A., Guides at section 11.2b, page 24913 states that, if the
tinnitus interferes with the activities of daily living such as sleep, reading, enjoyment of quiet
recreation, and emotional well-being, up to five percent may be added to a measureable hearing
impairment. Dr. Hester did not, in any of his reports, make a finding that tinnitus impacted
appellant’s ability to perform activities of daily living. Thus his rating for an additional
impairment for tinnitus is not substantiated in this case.14
On appeal, appellant stated that Dr. Hester provided letters explaining in depth about his
tinnitus to support his case. As discussed above, however, Dr. Hester’s medical reports are
insufficient to establish a consequential relationship between appellant’s employment-related
hearing loss and his claimed tinnitus.
The Board finds that appellant has failed to meet his burden of proof to establish tinnitus
as a consequential injury as the medical evidence is insufficient.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish tinnitus as a
consequence of his employment-related hearing loss.

12

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., supra note 11; A.D., supra note 11.

13

A.M.A., Guides 249.

14

K.G., Docket No. 14-1827 (issued January 5, 2015).

5

ORDER
IT IS HEREBY ORDERED THAT the September 11, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.15
Issued: September 20, 2016
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

15

James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the
Board effective November 16, 2015.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.R., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, Indianapolis, IN, Employer
__________________________________________

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Appearances:
Joseph E. Allman, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 16-0411
Issued: June 10, 2016

Case Submitted on the Record

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

JURISDICTION
On January 5, 2016 appellant, through counsel, filed a timely appeal from a July 9, 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.2
ISSUE
The issue is whether appellant has met his burden of proof to establish an injury causally
related to a January 30, 2013 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted new evidence on appeal. However, the Board cannot consider this
evidence as its review of the case is limited to the evidence of record which was before OWCP at the time of its final
decision. 20 C.F.R. § 501.2(c)(1); see Steven S. Saleh, 55 ECAB 169 (2003).

FACTUAL HISTORY
In the present case, appellant filed two similar traumatic injury claims (Forms CA-1). On
January 30, 2013 appellant, then a 45-year-old deportation officer, completed a traumatic injury
claim (Form CA-1) alleging that he sustained a left shoulder injury in the performance of duty on
January 30, 2013 (OWCP File No xxxxxx119). He noted that he was using “breaching tools”
while being instructed on breaching doors. On February 6, 2013 he completed another
Form CA-1 also alleging that he sustained a left shoulder injury using breaching tools, but noting
the date of injury as February 6, 2013 (OWCP File No. xxxxxx695). On June 26, 2015 OWCP
administratively combined the two claims, with OWCP File No. xxxxxx119 as the master file.
The evidence from the January 30, 2013 claim indicates that appellant submitted a report
dated February 21, 2013 from Dr. Ripley Worman, a Board-certified orthopedic surgeon.
Dr. Worman provided a history of February 6, 2013 employment incidents that included
breaking down doors and manual contact activities. He indicated that radiographs performed
that day showed prior surgical changes and osteoarthritic changes. Dr. Worman diagnosed left
shoulder pain and left shoulder osteoarthritis. The record indicates that Dr. Worman performed
left shoulder hemiarthroplasty surgery on March 8, 2013, with a diagnosis of left shoulder
osteoarthritis.
By letter dated March 13, 2013, OWCP requested that appellant submitted additional
factual and medical evidence. It noted that he had claimed an injury on January 30, 2013, but
Dr. Worman referred to a February 6, 2013 incident. On April 16, 2013 appellant submitted
statements from two coworkers that he was involved in a training course that involved
instruction of door breaching techniques and using tools such as sledge hammers and battering
rams. The coworkers reported observing appellant on January 31, 2013.3
By decision dated April 24, 2013, OWCP denied the January 30, 2013 traumatic injury
claim (OWCP File No. xxxxxx119), finding that the medical evidence of record was insufficient
to establish the claim.
As to the February 6, 2013 traumatic injury claim (OWCP File No. xxxxxx695), on
April 15, 2013 appellant submitted the February 21, 2013 report from Dr. Worman. By letter
dated May 3, 2013, OWCP requested that appellant submit additional information. It noted that
it had previously advised appellant of confusion regarding the date of injury in the January 30,
2013 claim.
By decision dated July 29, 2013, OWCP denied the February 6, 2013 traumatic injury
claim on February 6, 2013 (OWCP File No. xxxxxx695), finding that the medical evidence of
record was insufficient to establish the claim.
On August 27, 2013 appellant, through counsel, requested a hearing before an OWCP
hearing representative of the July 29, 2013 OWCP decision, in OWCP File No. xxxxxx695. A
hearing was held on February 13, 2014. At the hearing appellant’s counsel asserted that the date
of injury was January 30, 2013, not February 6, 2013. He indicated that appellant had seen a
3

One coworker reported that the training course occurred from January 28 to February 15, 2013.

2

physician on February 6, 2013 and was “advised to file another CA-1.” The hearing
representative indicated that she believed the issue presented was for an injury on February 6,
2013, and she had not reviewed evidence from the January 30, 2013 claim. The transcript of the
hearing indicates that the hearing representative stated, “I guess we [will] consider -- can
consider this as an appeal related to that causal denial in the original case.”
By decision dated April 14, 2014, the hearing representative affirmed the July 29, 2013
OWCP decision in OWCP File No. xxxxxx695. She indicated that the issue was whether
appellant had established an injury on February 6, 2013. The hearing representative found that
appellant should pursue any further action for an injury on January 30, 2013 under that claim.
On April 13, 2015 OWCP received an April 10, 2015 request for reconsideration from
appellant’s counsel that identified both OWCP case files. Counsel did not identify a specific
decision but noted the date of injury as January 30, 2013. The medical evidence submitted
included a March 23, 2014 report from Dr. Worman, who opined that appellant sustained a left
shoulder injury on January 30, 2013. Dr. Worman reported that appellant had hit a door using
his left shoulder, and appellant had significant pain in the left shoulder. He indicated that
radiographs showed prior shoulder surgery with significant osteoarthritic changes, and appellant
underwent left shoulder surgery on March 8, 2013. Dr. Worman opined that appellant sustained
an injury on January 30, 2013 that caused further cartilage damage to the shoulder requiring
surgery. He noted that appellant did have preexisting arthritic changes, but had been doing full
duties until his new injury. Appellant also submitted additional treatment reports from
Dr. Worman. In a report dated September 8, 2014, Dr. Worman indicated that appellant was
doing well and needed no further orthopedic intervention.
By decision dated July 9, 2015, OWCP found that appellant was entitled to a merit
review of the April 24, 2013 OWCP decision in OWCP File No. xxxxxx119. It found that
because the hearing representative had mentioned at the February 13, 2014 hearing that she
could consider this as an appeal regarding the original case, appellant was entitled to a merit
review with respect to a claim for a January 30, 2013 employment incident. OWCP, however,
denied modification, finding that the medical evidence of record was insufficient “to alter the
decision dated April 14, 2014 (April 24, 2013)” and denied modification.
LEGAL PRECEDENT
FECA provides for the payment of compensation for “the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.”4 The
phrase “sustained while in the performance of duty” in FECA is regarded as the equivalent of the
commonly found requisite in workers’ compensation law of “arising out of and in the course of
employment.”5 An employee seeking benefits under FECA has the burden of establishing that
he or she sustained an injury while in the performance of duty.6 In order to determine whether
4

5 U.S.C. § 8102(a).

5

Valerie C. Boward, 50 ECAB 126 (1998).

6

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

3

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. The second component is whether the employment incident
caused a personal injury, and generally this can be established only by medical evidence.7
OWCP’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.8 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
traumatic injury claims, a rationalized medical opinion supporting causal relationship is
required.9
Rationalized medical opinion evidence is medical evidence that is based on a complete
factual and medical background, 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.10
ANALYSIS
In the present case, appellant filed two traumatic injury claims with different dates of
injury: January 30, 2013 and February 6, 2013. Both claims alleged the use of breaching tools
and a left shoulder injury, and two claim numbers were created. OWCP issued a decision dated
April 24, 2013, denying the January 30, 2013 claim. After receiving a July 29, 2013 decision
denying the February 6, 2013 claim, appellant requested a hearing before an OWCP hearing
representative.
At the February 13, 2014 hearing, appellant reported there was only one date of injury,
January 30, 2013. OWCP has administratively combined the two claim files, with OWCP File
No. xxxxxx119 serving as the master file.11 Thus the issue before the Board is whether appellant
has established a left shoulder injury casually related to the January 30, 2013 employment
incident.

7

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

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(c) (January 2013).

9

Id., Chapter 2.805.3(d) (January 2013).

10

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

11

See T.M., Docket No. 14-1310 (January 2, 2014) (OWCP procedures contemplate that duplicate cases should
not be created and development should not occur under the duplicate case).

4

The Board finds that the medical evidence of record is insufficient to establish an injury
causally related to the January 30, 2013 employment incident. Dr. Worman had initially
provided an incorrect date of injury in his February 21, 2013 report. In the March 23, 2014
report, Dr. Worman provided a history of the January 30, 2013 incident. However, he did not
provide a rationalized medical opinion on causal relationship between a diagnosed left shoulder
condition and the January 30, 2013 employment incident. As Dr. Worman noted, appellant had a
history of prior left shoulder surgery and osteoarthritic changes. The diagnosis provided was left
shoulder osteoarthritis. Dr. Worman did not clearly explain what injury occurred from the
incident and why he felt it contributed to the need for surgery on March 8, 2013. He referred
briefly to cartilage damage without further explanation.12 Dr. Worman also noted that appellant
was performing regular duties prior to the incident. Being asymptomatic prior to an incident,
however, does not establish causal relationship. A medical opinion stating that a condition is
causally related to an employment injury because the employee was asymptomatic before the
injury but symptomatic after is insufficient, without supporting rationale, to establish causal
relationship.13
The Board accordingly finds that the medical evidence of record is insufficient to meet
appellant’s burden of proof in this case. The record does not contain a medical report with a
complete and accurate factual and medical history, and a rationalized opinion on causal
relationship between a diagnosed condition and the January 30, 2013 employment incident.
On appeal, appellant’s counsel argues that the medical evidence from Dr. Worman was
sufficient to require further development. For the reasons discussed above, the Board finds the
medical evidence is of diminished probative value to the issue presented.
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 an injury causally related to a
January 30, 2013 employment incident.

12

A physician should describe the pathophysiologic mechanism whereby the employment incident would
contribute to the diagnosed condition. See K.M., Docket No. 09-0003 (issued April 9, 2009).
13

T.M., Docket No. 08-0975 (issued February 6, 2009); Cleopatra McDougal-Saddler, 47 ECAB 480 (1996).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 9, 2015 is affirmed.
Issued: June 10, 2016
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, Washington, DC,
Employer
__________________________________________

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)

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

Docket No. 13-1632
Issued: November 13, 2013

Case Submitted on the Record

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

JURISDICTION
On July 1, 2013 filed a timely appeal from March 8 and May 30, 2013 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
the merits of this case.2
ISSUE
The issue is whether appellant sustained an injury to her low back in the performance of
duty on November 20, 2012.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence to the record following OWCP’s May 30, 2013
decision. The Board’s jurisdiction is limited to a review of evidence which was before OWCP at the time of its final
review. 20 C.F.R. § 501(c).

FACTUAL HISTORY
On November 21, 2012 appellant, a 47-year-old management assistant, filed a claim
alleging that she experienced pain in her low back while lifting and moving boxes on
November 20, 2012.
By letter dated January 30, 2013, OWCP advised appellant that it required additional
factual and medical evidence to determine whether she was eligible for compensation benefits.
It asked her to submit a comprehensive medical report from a treating physician describing her
symptoms with a medical opinion explaining the cause of any diagnosed condition.
In a report dated December 3, 2012, Dr. Reva S. Gill, Board-certified in internal
medicine, advised that appellant was currently under his care for a work-related injury which
occurred on November 20, 2012. Due to this injury, appellant had been out of work since that
date.
By decision dated March 8, 2013, OWCP denied appellant’s claim. It found that she
failed to provide medical evidence sufficient to establish the claimed injury at the time, place and
in the manner alleged.
In a March 15, 2013 report, Dr. Gill indicated that appellant was treated for injuries she
sustained while lifting and moving boxes. On examination, appellant had tenderness in her low
back region and complained of numbness and tingling in her right leg. Dr. Gill related that
appellant was placed on an alternate work assignment while she recovered from her
November 20, 2012 work injury. Appellant returned to full duty on February 12, 2013. Dr. Gill
advised that the results of a lumbar magnetic resonance imaging (MRI) scan showed a central
disc herniation in her lumbar spine.
Appellant submitted several form reports from Dr. Gill who indicated that the history of
injury corresponded with the condition claimed.
On March 20, 2013 appellant requested a review of the written record.
By decision dated May 30, 2013, an OWCP hearing representative affirmed the March 8,
2013 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing that the
essential elements of his or her claim including the fact that the individual is an “employee of the
United States” within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as
alleged, and that any disability and/or specific condition for which compensation is claimed are
causally related to the employment injury.4 These are the essential elements of each and every
3

5 U.S.C. §§ 8101-8193.

4

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

2

compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
First, 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.6 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.7
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.8
An award of compensation may not be based on surmise, conjecture or speculation.
Neither, the fact that appellant’s condition became apparent during a period of employment nor
the belief that his condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.9 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
ANALYSIS
OWCP accepted that appellant experienced pain while lifting and moving boxes at work on
November 20, 2012. The issue is whether the employment incident caused the claimed low back
injury and this can only be established by probative medical evidence.10 The Board finds that
appellant has not submitted sufficient medical evidence to establish that the November 20, 2012
employment incident caused her claimed injury.
Appellant submitted reports from Dr. Gill, who diagnosed a herniated central disc which
he generally attributed to the November 20, 2012 work incident. She did not provide a
sufficiently rationalized opinion explaining how the November 20, 2012 work incident caused or
contributed to her low back injury.
The weight of medical opinion is determined by the opportunity for and thoroughness of
examination, the accuracy and completeness of the physician’s knowledge of the facts of the
case, the medical history provided, the care of analysis manifested and the medical rationale
expressed in support of stated conclusions.11 Although Dr. Gill provided a diagnosis of herniated
5

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

6

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

7

Id. For a definition of the term “injury,” see 20 C.F.R. § 10.5(e)(e).

8

See Joe T. Williams, 44 ECAB 518, 521 (1993).

9

Id.

10

Carlone, supra note 6.

11

See Anna C. Leanza, 48 ECAB 115 (1996).

3

disc, she did not submit a report which sufficiently addressed how the condition was causally
related to the November 20, 2012 work incident. She stated in her December 3, 2012 report that
appellant was currently under her care for a work-related injury which occurred on
November 20, 2012. Dr. Gill stated that due to this injury appellant had been off work since that
date. In her March 15, 2013 report, she stated that she was treating appellant for injuries she
sustained while lifting and moving boxes. Dr. Gill stated on examination that appellant had
tenderness in her lower back area and was complaining of numbness and tingling in her right leg.
She related that appellant was placed on an alternate work assignment while she recovered from
her November 20, 2012 work injury; appellant returned to full duty on February 12, 2013.
Dr. Gill advised that the results of a lumbar magnetic resonance imaging (MRI) scan showed that
appellant had a central disc herniation in her lumbar spine. She asserted that appellant had with
tenderness to palpation, muscle weakness and lower back aches radiating down her right leg.
Dr. Gill’s reports did not sufficiently explain how appellant’s back injury occurred while
moving and lifting boxes on November 20, 2012. She did not adequately describe the accepted
incident or how it would have been competent to cause the claimed condition. Dr. Gill’s opinion
regarding causal relationship is of limited probative value for the further reason that she did not
provide adequate medical rationale in support of her conclusions.12 Her reports do not constitute
sufficient medical evidence demonstrating a causal connection between appellant’s
November 20, 2012 work incident and her claimed lower back condition.
OWCP advised appellant of the evidence required to establish her claim; however,
appellant failed to submit such evidence. Causal relationship must be established by rationalized
medical opinion evidence. Appellant failed to provide a medical opinion which described or
explained the medical process as to her November 20, 2012 work accident would have caused
the claimed injury. Accordingly, she did not establish a right shoulder condition in the
performance of duty. OWCP properly denied appellant’s claim for compensation.
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 establish that she sustained a lower back
injury in the performance of duty on November 20, 2012.

12

William C. Thomas, 45 ECAB 591 (1994).

4

ORDER
IT IS HEREBY ORDERED THAT the May 30 and March 8, 2013 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: November 13, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Boca Raton, FL, Employer
__________________________________________

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Appearances:
Joanne Marie Wright, for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1320
Issued: January 17, 2020

Case Submitted on the Record

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

JURISDICTION
On May 26, 2019 appellant, through her representative, filed a timely appeal from a
December 6, 2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
As more than 180 days has elapsed from OWCP’s last merit decision, dated November 29, 2017,
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 to review the merits of this case.3

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.

3
The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedure
provides: The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the time
of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.
20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on
appeal. Id.

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 March 29, 2016 appellant, then a 30-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on March 2, 2016 her supervisor, D.Z., struck her on the left side of her
eye/forehead with his wooden clipboard while he was talking to another carrier, as she bent down
to pick up flats while in the performance of duty. She indicated that she sustained injury to her
forehead, left eye, both knees, and the left side of her back. Appellant did not initially stop work.
OWCP accepted the claim for concussion with loss of consciousness, contusion to unspecified part
of the head, and headache.
In a May 20, 2016 report, Dr. David B. Ross, a Board-certified neurologist, noted that he
was only authorized to evaluate and treat appellant for headaches. He indicated that appellant’s
headaches were not disabling and that appellant had no work restrictions.
In a May 26, 2016 form report, Dr. Michael Mikolajczak, a Board-certified orthopedic
surgeon, diagnosed lumbar strain and bilateral knee sprain, and noted appellant’s work restrictions.
Between June 10 and August 5, 2016, appellant filed claims for wage-loss compensation
(Form CA-7) for intermittent disability for the period May 7 to August 5, 2016.
In a July 18, 2016 memorandum of interview conducted by the Office of Inspector General,
Dr. Mikolajczak explained that appellant had preexisting conditions involving her back and knees
because she played basketball in college. He also indicated there were signs of symptom
magnification, and that “he did not know why [appellant] is not working.”
By decision dated August 9, 2016, OWCP denied appellant’s claims for wage-loss
compensation for intermittent disability for the period May 7 to August 5, 2016. It also found that,
while appellant alleged injury to both knees and her back as a result of the March 2, 2016 injury,
the medical evidence of record did not support that allegation.
On August 1, 2017 appellant requested reconsideration.
OWCP subsequently received additional evidence including a July 29, 2016 report from
Dr. Mikolajczak, who opined that appellant had a preexisting history of bilateral chondromalacia
patella. Dr. Mikolajczak related that on March 2, 2016 appellant was bending down when she was
hit with a clipboard, “fell backward onto a desk,” and complained of pain in the head, neck, and
both knees. He indicated that magnetic resonance imaging (MRI) scans obtained on June 22, 2016
revealed no acute disc herniation or neural element compression. Dr. Mikolajczak released

2

appellant to light-duty work, with restrictions of no lifting over 10 pounds and no repetitive
bending or twisting at the waist.
OWCP also received an August 29, 2016 report from Dr. Ross who indicated that he was
following up for treatment of appellant’s headaches. Dr. Ross diagnosed chronic post-traumatic
headache, not intractable, and sprain of ligaments of the cervical spine.
In a November 29, 2017 decision, OWCP denied modification of the August 9, 2016
decision. It noted that Dr. Mikolajczak based his opinion on a history of injury that appellant fell
backward onto her desk, which was different from the initial description of the injury.
On November 26, 2018 appellant requested reconsideration. She described her injury and
summarized the reports of Drs. Jones and Malpica. With her reconsideration request, appellant
provided a drawing illustrating how she was injured, as well as a photograph of a mail case.
OWCP received Form CA-17s dated July 12 and 13, 2018, from Dr. Danita Jones, a
neurologist, who diagnosed fibromyalgia, chronic pain syndrome, and cervicalgia. Dr. Jones
indicated that appellant could work part time commencing July 13, 2019, with restrictions.
OWCP also received a March 2, 2016 report from Dr. Indira Malpica, a chiropractor.
Dr. Malpica diagnosed lumbosacral radiculopathy, low back pain, degenerative disc disease in the
lumbar region, myalagia, segmental, and somatic dysfunction of lumbar region, cervicocranial
syndrome, degenerative disc disease in the cervical region, cervicalgia, cervicogenic headaches,
segmental and somatic dysfunction of the cervical region, thoracic spine pain, and segmental and
somatic dysfunction of the thoracic region.
In a December 18, 2017 report, Dr. Jones noted that appellant had no evidence of cervical
radiculopathies. She indicated that imaging revealed mild degenerative disease within the spine,
which might be exacerbating her musculoskeletal pain. Dr. Jones noted that chronic pain
syndrome and/or fibromyalgia might be playing a part in appellant’s symptoms.
By decision dated December 6, 2018, 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. It may review an award for or against payment
of compensation at any time based on its own motion or on application.4
A claimant seeking reconsideration of a final decision must present arguments or provide
evidence 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.5 If OWCP determines
4

5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.606(b)(3); see also M.S., Docket No. 18-1041 (issued October 25, 2018); C.N., Docket No. 081569 (issued December 9, 2008).

3

that at least one of these requirements is met, 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’s reconsideration request summarized the reports of Drs. Jones and Malpica.
However, it did not show that OWCP erroneously applied or interpreted a specific point of law,
and did not advance a new and relevant legal argument not previously considered.8 Consequently,
appellant is not entitled to further review of the merits of her claim based on the first or second
above-noted requirements under 20 C.F.R. § 10.606(b)(3).9
Appellant also failed to submit relevant and pertinent new evidence not previously
considered by OWCP under 20 C.F.R. § 10.606(b)(3). The drawings and photographs submitted
with her reconsideration request were irrelevant, as the factual basis had already been established.
The underlying issues in this case were whether appellant had established intermittent disability
during the period May 7 to August 5, 2016 due to her accepted conditions and whether she had
met her burden of proof to expand the acceptance of her claim to include low back and bilateral
knee conditions causally related to the accepted March 2, 2016 employment injury. These are
medical issues which must be determined by rationalized medical evidence.10 The Board notes
that the submission of evidence that does not address the particular issue involved does not
constitute a basis for reopening a case.11
The Board also finds that the Form CA-17s and December 18, 2017 report from Dr. Jones
indicating that appellant could work part time commencing July 13, 2019, with restrictions were
irrelevant to the issues at hand because they did not address whether appellant was disabled from

6

Id. at § 10.608(a); see also C.K., Docket No. 18-1019 (issued October 24, 2018).

7

Id. at § 10.608(b). 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. Id. at Chapter 2.1602.4b.
8

20 C.F.R. § 10.606(b)(3)(i) and (ii); see also M.S., Docket No. 19-0291 (issued June 21, 2019).

9

Id.

10

See J.B., Docket No. 18-1531 (issued April 11, 2019); E.D., Docket No. 18-0138 (issued May 14, 2018);
Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).
11

M.C., Docket No. 18-1278 (issued March 7, 2019); Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M.
Nixon-Steward, 52 ECAB 140 (2000).

4

work during the claimed period May 7 to August 5, 2016, or whether appellant’s low back and
bilateral knee conditions were causally related to the accepted employment injury.12
The report from Dr. Malpica while new, was also not relevant or pertinent to the underlying
issues. Dr. Malpica did not diagnose a subluxation based upon x-ray evidence and therefore is
not considered a physician under FECA.14
13

Although evidence submitted on reconsideration need not carry appellant’s burden entirely
to suffice for reconsideration, the new evidence must at least be relevant and pertinent to the issue
upon which the claim was denied.15 While appellant submitted new evidence, it does not address
the underlying medical issues. Therefore, she also failed to satisfy the third requirement under 20
C.F.R. § 10.606(b)(3).
The Board accordingly 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.
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).

12

Id.

13

See L.H., Docket No. 16-0868 (issued September 12, 2016).

14
R.P., Docket No. 19-0271 (issued July 24, 2019). Section 8101(2) of FECA provides as follows: (2) physician
includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic
practitioners within the scope of their practice as defined by State law. The term physician includes chiropractors
only to the extent that their reimbursable services are limited to treatment consisting of manual manipulation of the
spine to correct a subluxation as demonstrated by x-ray to exist and subject to regulation by the Secretary. See R.M.,
59 ECAB 690 (2008); Merton J. Sills, 39 ECAB 572 (1988).
15

R.R., Docket No. 18-1562 (issued February 22, 2019); A.A., Docket No. 18-0031 (issued April 5, 2018); K.B.,
Docket No. 18-1392 (issued January 15, 2019).

5

ORDER
IT IS HEREBY ORDERED THAT the December 6, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 17, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6