United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL EMERGENCY MANAGEMENT
AGENCY, Webster, TX, Employer
__________________________________________

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

Docket No. 10-1195
Issued: March 23, 2011

Case Submitted on the Record

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

JURISDICTION
On March 26, 2010 appellant, through his attorney, filed a timely appeal from the
February 19, 2010 merit decision of the Office of Workers’ Compensation Programs denying his
claim for an employment-related injury. Pursuant to the Federal Employees’ Compensation
Act,1 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 his burden of proof to establish that his respiratory,
cardiac or neurological conditions are causally related to a January 7, 2009 employment incident.
On appeal, appellant contends that the Office’s February 19, 2010 decision was contrary
to fact and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 12, 2009 appellant, then a 27-year-old disaster reservist, filed a traumatic
injury claim (Form CA-1) alleging that on January 7, 2009 he sustained respiratory, cardiac and
neurological injuries after being exposed to chemicals from an industrial explosion at a site in
Pasadena, TX.
A medical report of January 7, 2009 from Immediate Medical Care indicated that he was
exposed to chemicals and had “abnormal Nares (mucosa, septum, turbinates).” A January 7,
2009 chest x-ray report by Dr. Larry L. Patchell, a Board-certified radiologist, revealed evidence
of chronic spondylosis in the mid and lower portions of the thoracic spine with minimal disc
space narrowing and anterior osteophyte formation from approximately T4-5 through T9-10.
Appellant’s coworker, Jim Swillery, reported in a witness statement dated January 12,
2009 that he was also chemically exposed. He felt an explosion on January 7, 2009, smelled a
very strange odor and saw appellant responding to the scene.
Appellant submitted a narrative statement describing the events from January 7
through 10, 2009. On January 7, 2009 he was in the kitchen at work when he felt shaking and
heard what sounded like an explosion. Appellant was told that the first explosion was caused by
a hydrogen valve that experienced too much pressure and a second explosion was caused by the
opening of the same valve. A number of employees complained of headaches after the
explosions. Appellant was sent to the medical clinic for diagnostic testing. On January 8, 2009
he was directed to work off site and his blood pressure was high. Appellant stated that he had his
blood pressure taken again three hours later and it was lower. On January 9, 2009 he was told to
report to the occupational health clinic because he was to take part in an investigation of the
explosion. Appellant stated that on January 10, 2009 he still experienced headaches and chest
congestion and that his blood pressure went up again. On January 14, 2009 he received a call
from occupational health with negative chest x-rays for him and all of the other employees.
On July 24, 2009 the Office requested additional factual and medical information from
appellant.2 It allotted him 30 days to submit evidence and respond to its inquiries.
Appellant submitted a narrative statement dated August 3, 2009. The immediate effects
of the chemical exposure were headache, high blood pressure, hypertension, dry nasal cavity,
and a heavy chest as if his lungs were filled with mucus with difficult breathing. Appellant
alleged that, over the eight months post-explosion, his medical condition had worsened, his
headaches became worse to the point of incapacitation, he was light headed, had occasional
blurred vision and coughed up mucus. This caused him to be out of his regular job as a
correctional officer in Washington. Appellant had no allergies and only had bronchitis once
when he was a teenager. He claimed he never had asthma or any other respiratory issues before
the explosion and was a healthy 27-year-old who used to play sports all the time and was a
2

According to another letter from the Office dated July 24, 2009 requesting additional factual and medical
information, appellant also filed a notice of occupational disease (Form CA-2), on a date unknown as the form is not
found in the record, alleging that he sustained a “pulmonary condition.” It did not issue a final decision on the
occupational disease claim, therefore, this issue is not properly before the Board on appeal. 20 C.F.R. § 501.2(c).

2

volunteer/Resident Fire Fighter. Appellant used a preventative inhaler to help with his chest
congestion. He reported that he smoked for about six months while serving in the military.
In a medical report dated August 3, 2009, Dr. John S. Smoots, a Board-certified internist,
stated that appellant was seen for complaints of headache, dizziness and lightheadedness.
Appellant had dyspnea on exertion and chest congestion with productive cough. He had no
family history of asthma or lung disease but of heart disease, hypertension, stroke, diabetes,
seizure disorder, psychological illness, migraine in a cousin, thyroid disease,
hypercholesterolemia and osteoporosis. Dr. Smoots diagnosed asthma new onset, headache,
dizziness, lightheaded and fatigue syndrome. He noted that a January 2009 chest x-ray was
normal.
By decision dated September 4, 2009, the Office denied appellant’s claim, finding that
the medical evidence was insufficient to establish a firm medical diagnosis or that the noted
conditions were causally related to factors of his federal employment.
On September 28, 2009 appellant requested an oral hearing. In a letter dated April 24,
2009, Kyle Killebrew of Centauri Technologies advised Mr. Swilley that a fire occurred on
January 7, 2009. Their calculations revealed that the limited amount of ammonia and hydrogen
that was not burned was below the reportable quantity thresholds established by the Texas
Commission on Environmental Quantity.
In a September 23, 2009 report, Dr. Smoots opined that appellant’s asthma was more
probable than not the result of chemical exposure on the job.
On December 9, 2009 a telephonic hearing was held. The hearing representative
accepted that the January 7, 2009 employment incident occurred at the time, place and in the
manner alleged. He clarified that appellant’s claim was for respiratory problems, headaches,
high blood pressure, lightheadedness and dizziness. Appellant testified that he was currently
treated for occupational asthma. The hearing representative requested additional medical
evidence.
A March 8, 2007 chest x-ray was reported negative and showed appellant’s lungs to be
clear. An April 30, 2006 Material Safety Data Sheet (MSDS) for ammonia indicated potential
acute health effects as toxic by inhalation and severely corrosive to the respiratory system. An
August 12, 2008 MSDS for hydrogen indicated potential health effects for inhalation as
asphyxiation and loss of mobility or consciousness.
On January 14, 2009 Dr. Alexandra M. Popescu-Vladimir, a Board-certified internist,
advised that there were no findings on examination. Dr. Popescu-Vladimir stated that appellant
complained of headaches and increased blood pressure after the incident. She measured a
systolic of 192 as the highest blood pressure he had since the incident and that it had come down.
Dr. Popescu-Vladimir stated that appellant’s respiratory system was “[c]lear to auscultation
bilaterally” and that the chemicals to which appellant was exposed were still unknown.
In a progress report dated March 13, 2009, Dr. Popescu-Vladimir reported that
appellant’s blood pressure was normal when he first visited in January 2009 and continued to be
normal that day. Appellant reported that he no longer had issues with hypertension, but still had
3

chest tightness, headaches and lightheadedness. Dr. Popescu-Vladimir concluded that the cause
of appellant’s headaches and lightheadedness was currently unknown and ordered a
computerized axial tomography (CAT) scan of his head.
Dr. Nancy Sahakian, an occupational health physician Board-certified in family and
occupational medicine, reported on April 13, 2009 that appellant’s January 7, 2009 EKG was
normal, a January 7, 2009 chest x-ray showed mild arthritis in his thoracic spine and his
January 9, 2009 lab tests revealed normal levels of urine cadmium blood cadmium and blood
lead.
In a progress report of April 14, 2009, Dr. Popescu-Vladimir reported that appellant’s
head CAT scan was negative. The chemical substance to which appellant was exposed was still
unknown.
On April 17, 2009 Dr. Sahakian confirmed that, on January 8, 2009, the day after the
explosion, an environmental and medical investigation of the incident commenced. She reported
that discussions between an occupational medicine physician and a toxicologist at the Centers for
Disease Control and Prevention failed to determine what possible chemical exposure may have
caused worker symptoms. The daily pressure readings of workers by the occupational health
nurse daily for two days showed normalization of blood pressure. Dr. Sahakian opined that “it is
not likely that these blood pressure changes are due to the incident.” She also noted that the
nature of the workers’ headaches was not identified and the cause of the persistent headaches
was not clear. The headaches might relate to an exacerbation of a prior sinus problem or likely
due to unrelated causes. Again, Dr. Sahakian stated that it was unknown whether the workers’
respiratory symptoms were related to the accepted exposure.
A January 28, 2009 Industrial Hygiene Air Monitoring Assessment report, noted that the
source of the odors that the employees were exposed to on January 7, 2009 “could not be
determined.” The air monitoring survey results “indicated that all airborne concentrations of
detected contaminants were well below the [Occupational Safety and Health Administration]
Permissible Exposure Limits.”
In an Employee Fact Sheet, Dr. Sahakian reported that occupational health found that
symptoms experienced by workers are unlikely to have long-term health consequences. She
reported that the suspect chemicals were not identified, no “clear cause” for the workers’
symptoms and testing found no indication of health impairment believed to be related to the
suspect exposure. Dr. Sahakian identified periodic headaches as an unexplained mild symptom
that persisted in some workers and, while the exact cause of these symptoms was not clear, due
to the time lapse and pattern of the symptoms it was “unlikely they are associated with the
suspected event.” As for the chest tightness, she concluded that the lack of clinical findings at
the time of the incident made an association with the incident less likely. A July 14, 2009
magnetic resonance imaging (MRI) scan of appellant’s brain showed no significant abnormality.
On July 14, 2009 Dr. Gregory D. Foltz, a Board-certified neurosurgeon, indicated that
appellant complained of dizziness, lightheadedness, and headaches. He stated that the July 14,
2009 MRI scan of appellant’s brain was within normal limits.

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In a report dated July 30, 2009, Dr. Lawrence Murphy, a Board-certified neurologist,
diagnosed lightheadedness and headaches of “[p]ossible neurological/labyrinthine versus
cardiovascular etiology.” He reported that appellant had a CAT scan and an MRI scan of the
brain that showed a suspected left temporal lobe cyst. Appellant subsequently saw Dr. Foltz who
did not think there was a cyst on repeat imaging.
Appellant submitted an August 3, 2009 chest x-ray which was reported negative. It
showed that his lungs were clear and no acute cardiovascular or pulmonary abnormality.
An August 14, 2009 videonystagmography (VNG) test, for vertigo, dizziness and balance
disorders, was stated to be within normal limits. Audiologist Merill Hill reported that
audiometric results were normal and appellant’s performance results were within clinical limits.
Although appellant reported experiencing symptoms, “the VNG showed no clinically significant
gaze, spontaneous or positional nystagmus,” the Dix-Hallpike test for benign paroxysmal
positioning vertigo was negative for both sides, the reduced vestibular response was normal and
the Directional Preponderance was also normal limits.
An August 14, 2009 electroencephalogram showed “no focal or lateralizing
abnormalities.” Dr. Murphy’s found the test normal for appellant’s age. In a progress report
dated August 31, 2009, Dr. Murphy diagnosed persistent dizziness and headaches.
A series of pulmonary functions tests from December 1 and 15, 2009 showed “possible
early obstructive pulmonary impairment” possibly due to a mild degree of small airway disease
and/or the earliest stages of emphysema. On December 1, 2009 Dr. Taiil Ted Song, a Boardcertified internist, reported that the pulmonary study he conducted on December 1, 2009 showed
reactive airway dysfunction syndrome (RADS), but did not meet the criteria for asthma. He
stated that appellant had “no history of allergic rhinitis as trigger for his dyspnea.” Appellant
tested positive for allergies to grass, but because he had respiratory symptoms outside of grass
pollinating season, it was most likely a false positive.
In a December 15, 2009 progress report, Dr. Song diagnosed RADS and described
appellant as a “nonatopic patient who has respiratory symptoms after exposure to chemical fire.”
He characterized ammonia and hydrogen as known irritants. Although appellant showed signs of
asthma, Dr. Song reported that the diagnostic tests showed “no obstruction or restriction at
baseline and his postforced expiratory volume in one second (FEV1) showed “no reversibility,”
meaning appellant did not meet the American Thoracic Society criteria for asthma.
By decision dated February 19, 2010, the Office denied modification of the September 4,
2009 decision. While appellant was exposed to a fire involving ammonia and hydrogen on
January 7, 2009, he did not establish any claimed medical condition as causally related to the
January 7, 2009 incident.
LEGAL PRECEDENT
An employee seeking benefits under the Act3 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
3

5 U.S.C. §§ 8101-8193.

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States” within the meaning of the Act, that the claim was timely filed within the applicable time
limitation period of the Act, that an injury4 was sustained in the performance of duty, as alleged,
and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.5
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.
A fact of injury determination is based on two elements. 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. 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. An employee may establish that the employment incident
occurred as alleged but fail to show that his or her condition relates to the employment incident.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.7
ANALYSIS
The Office accepted the employment incident of January 7, 2009, appellant’s exposure to
a fire involving ammonia and hydrogen. The issue is whether his conditions of high blood
pressure, asthma or RADS, lightheadedness, dizziness and headaches resulted from the
January 7, 2009 incident. The Board finds that appellant did not submit sufficient medical
evidence to establish a causal relationship between the conditions for which compensation is
claimed and the January 7, 2009 employment incident.8
On August 3, 2009 Dr. Smoots diagnosed asthma, headache, dizziness, lightheaded and
fatigue syndrome. He noted that a January 2009 chest x-ray was normal. On September 23,
2009 Dr. Smoots concluded that appellant’s asthma was more probable than not the result of
4

The Office’s regulations define a traumatic injury as a condition of the body caused by a specific event or
incident, or series of events or incidents, within a single workday or shift. Such condition must be caused by
external force, including stress or strain, which is identifiable as to time and place of occurrence and member or
function of the body affected. 20 C.F.R. § 10.5(ee).
5

M.W., 57 ECAB 710 (2006).
1143 (1989).

See Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB

6

Id. See John J. Carlone, 41 ECAB 354 (1989); Shirley A. Temple, 48 ECAB 404 (1997).

7

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

8

E.K., Docket No. 09-1827 (issued April 21, 2010). See also W.W., Docket No. 09-1619 (issued June 2, 2010).

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chemical exposure from work. An August 3, 2009 chest x-ray, ordered by Dr. Smoots, was
negative and showed appellant’s lungs to be clear with no acute cardiovascular or pulmonary
abnormality. Although Dr. Smoots provided a firm diagnosis, he failed to address the issue of
causal relationship. He did not explain how the January 7, 2009 employment incident cause was
competent to or aggravate appellant’s high blood pressure, asthma, lightheadedness, dizziness or
headaches. The reports of Dr. Smoots are not sufficient to establish that appellant sustained an
injury on January 7, 2009.
In a December 1, 2009 medical report, Dr. Song reported that he conducted pulmonary
studies on December 1, 2009 which showed RADS, but did not meet the criteria for asthma. He
noted that appellant had no history of allergic rhinitis as trigger for his dyspnea. On
December 15, 2009 Dr. Song diagnosed RADS and described appellant as a nonatopic patient
who had respiratory symptoms after exposure to a chemical fire. He identified ammonia and
hydrogen as known irritants. Although appellant showed signs of asthma, Dr. Song reiterated
that testing showed no obstruction or restriction and the post FEV1 showed no reversibility.
Therefore, appellant did not meet the American Thoracic Society’s criteria for asthma. Although
Dr. Song suspected asthma, did not relate the asthma his reports do not establish that appellant
sustained asthma under accepted protocols. He did not adequately support the issue of causal
relationship. Dr. Song’s reports are not sufficient to establish that appellant sustained a
compensable injury.
In a January 14, 2009 medical report, Dr. Popescu-Vladimir noted that appellant
complained of headaches and increased blood pressure after the explosion. On examination,
appellant’s respiratory system was clear to auscultation bilaterally and the chemicals to which he
was exposed was unknown. On March 13, 2009 Dr. Popescu-Vladimir reported that appellant’s
blood pressure was normal when he first went to see her after the work incident in January 2009
and continued to be normal. Appellant reported no further problems with hypertension, but
complained of headaches, lightheadedness and chest tightness. Dr. Popescu-Vladimir noted that
the cause of appellant’s headaches and lightheadedness was unknown. On April 14, 2009 she
reported that appellant’s head CAT scan was negative. Again Dr. Popescu-Vladimir advised that
the chemical substance to which he was exposed was unknown. She did not provide a firm
diagnosis of appellant’s condition. Diagnostic studies were reported as normal and she failed to
offer any opinion regarding the cause of appellant’s conditions, except to allude to the fact that
he complained of headaches and hypertension immediately following the incident at work. This
medical evidence is of limited probative value on the issue of causal relationship. The reports of
Dr. Popescu-Vladimir’s do not establish injury, as claimed.
Drs. Patchell, Foltz and Murphy provided the results of various diagnostic test.
Dr. Murphy reported lightheadedness and headaches of neurological origin, conditions for which
appellant claimed compensation. Drs. Patchell, Foltz and Murphy did not provide a rationalized
opinion relating any findings to the January 7, 2009 employment incident. This medical
evidence is of limited probative value on the issue of causal relationship and fails to establish
injury.9

9

Id.

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Dr. Sahakian reviewed the occupational request for suspected environmental exposure.
She found that it was not likely that any blood pressure changes were due to the work incident.
As for complaints of chest tightness, Dr. Sahakian concluded that the lack of clinical findings at
the time of the incident made any association to the incident less likely. She explained how it
was difficult to identify the origins of symptoms regarding any exposure appellant experienced.
The Board finds that the reports of Dr. Sahakian are not adequate to establish injury.
Dr. Sahakian did not provide a medical opinion which supported that the incident of January 7,
2009 caused or contributed to any diagnosed condition. Consequently, her medical reports are
insufficient to establish appellant’s claim.
In an August 14, 2009 VNG test report, Audiologist Merill Hill reported that audiometric
results were within normal limits and appellant’s performance results for VNG were within
clinical limits. The Board has held that audiologists are not physicians under the Act.10
Therefore, the report is not probative medical evidence.11
Appellant has not submitted sufficient rationalized medical evidence to support that he
sustained an injury causally related to the January 7, 2009 employment incident. He failed to
meet his burden of proof to establish a claim for compensation.
CONCLUSION
The Board finds that appellant has not submitted rationalized medical opinion evidence to
establish that he sustained a traumatic injury in the performance of duty on January 7, 2009, as
alleged.

10

5 U.S.C. § 8101(2). Section 8101(2) of the Act provides in pertinent part: (2) “physician” includes surgeons,
podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the
scope of their practice as defined by State law.
11

Leon Thomas, 52 ECAB 202 (2001).

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ORDER
IT IS HEREBY ORDERED THAT the February 19, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 23, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

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

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

Docket No. 10-1065
Issued: January 11, 2011

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 March 2, 2010 appellant filed a timely appeal from a November 19, 2009 nonmerit
decision of the Office of Workers’ Compensation Programs, which denied his request for
reconsideration. Because more than one year elapsed from the most recent merit decision dated
November 5, 2008 to the filing of this appeal, the Board lacks jurisdiction to review the merits of
his case pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.1
ISSUE
The issue is whether the Office properly denied appellant’s November 1, 2009 request for
reconsideration under 5 U.S.C. § 8128(a).

1

For final adverse Office decisions issued prior to November 19, 2008, a claimant had up to one year to appeal to
the Board. See 20 C.F.R. § 501.3(d)(2). For final adverse Office decisions issued on and after November 19, 2008,
a claimant has 180 days to file an appeal with the Board. See 20 C.F.R. § 501.3(e).

FACTUAL HISTORY
On August 14, 2008 appellant, then a 46-year-old letter carrier, filed a claim for
occupational disease alleging back and right shoulder pain resulting from carrying a heavy
mailbag and repetitive motion on his right side during his federal employment.2 He first became
aware of his claimed condition on January 4, 2008 and realized it resulted from his federal
employment on March 13, 2008. Appellant reported that his physical therapist, whom he had
seen for back and shoulder pain since March 2008, advised that his alleged condition resulted
from carrying a mailbag and repetitive use of his right side. He stopped work on July 15, 2008
and returned on August 4, 2008.
Appellant submitted a work excuse slip dated August 1, 2008, Dr. Paramjit Sikand, an
internist and general family practitioner, noted that appellant was seen in his office and could
return to work on August 4, 2008. Dr. Sikand recommended physical therapy. Appellant also
submitted two duty status reports dated July 11 and 25, 2008, which listed left knee, right
shoulder and right back pain. The employing establishment controverted his claim based on
insufficient medical evidence establishing how factors of his federal employment caused his
claimed condition.
On September 3, 2008 the Office advised appellant that there was insufficient evidence to
support his claim. It stated that his description of “pain” did not constitute a proper medical
diagnosis and that the medical evidence failed to address how factors of his federal employment
caused his alleged condition. The Office requested that appellant provide a description of the
employment-related activities he believed contributed to his medical condition, including how
often and for how long he performed these activities, and an explanation regarding the
development of his alleged condition, including symptoms and treatments received. In addition,
it requested a comprehensive medical report from his physician providing a description of his
symptoms, results of examinations and tests, a firm diagnosis and a medical opinion regarding
the causal relationship between his alleged medical condition and factors of his federal
employment.
On September 9, 2008 appellant submitted a (Form CA-7) for 15.84 hours of leave
without pay from August 4 to 26, 2008 due to physical therapy appointments. In a letter dated
September 22, 2008, the Office informed him that it was unable to authorize payment because it
had not yet determined whether his claimed medical condition was work related.
In a letter dated September 23, 2008, appellant described his employment-related
activities as a letter carrier, which involved standing, reaching and throwing with his right arm,
as well as continuous twisting from left to right. His driving route required him to twist and
reach into curbside mailboxes with his right side continuously from 2 to 2½ hours and his
walking route required him to carry his mailbag, which could weigh up to 50 pounds, on his
shoulder. Appellant listed his symptoms as shooting pain in his neck, back and shoulder,

2

Appellant initially filed (Form CA-2A), claiming a consequential injury to a left knee operation, but refilled a
Form CA-2 for occupational disease when he was later told by his physical therapist that his back and shoulder pain
was a new injury.

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tightness, swelling and throbbing. He further mentioned a previous work-related left knee injury
that occurred on July 3, 2007.
Appellant also submitted discharge summaries by Dr. Sikand and his physical therapist
dated May 22 and August 26, 2008 regarding his back, right shoulder and left knee pain.
Dr. Sikand stated that appellant’s right thoracolumbar hypertonicity most likely resulted from
carrying his mailbag on his left side and continuously using these muscles. He noted that
appellant sustained hypoertonicity in his right thoracolumbar. Dr. Sikand further opined that his
shoulder and back pain were consistent with repetitive strain of the right shoulder.
In a November 5, 2008 decision, the Office denied appellant’s claim for compensation on
the grounds that the factual evidence failed to establish that the employment events occurred as
alleged and the medical evidence did not provide a firm diagnosis related to the claimed
employment factors. It found that the medical evidence failed to provide a firm, medical
diagnosis, other than back and left knee pain.
On November 1, 2009 appellant submitted a request for reconsideration. He stated that
his injury was caused by repetitive motion in his job as a full-time letter carrier and that his
physician and physical therapist agreed that his work activities resulted in increased swelling and
aggravation of his shoulder. Appellant added that he had a new seven-hour walking route, which
had worsened his back and shoulder strain. In addition, he noted that he was enclosing a copy of
the discharge summary from his doctor and physical therapist. No further evidence was received
by the Office in support of his request for reconsideration.
On November 19, 2009 the Office denied appellant’s request for reconsideration, without
conducting a merit review. It found that he failed to raise any substantive legal questions or
provide new and relevant evidence not previously considered.
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act vests the Office with
discretionary authority to determine whether to review an award for or against compensation.3
The Office’s regulations provide that the Office may review an award for or against
compensation at any time on its own motion or upon application. The employee shall exercise
his right through a request to the district Office.4
To require the Office to reopen a case for merit review pursuant to the Act, the claimant
must provide evidence or an argument that: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously

3

5 U.S.C. § 8128(a); see also F.R., 61 ECAB __ (Docket No. 09-575, issued January 4, 2010); W.C., 59 ECAB
372 (2008).
4

20 C.F.R. § 10.605; see also R.B., 61 ECAB __ (Docket No. 09-1241, issued February 23, 2010); A.L., 60
ECAB __ (Docket No. 08-1730, issued March 16, 2009).

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considered by the Office; or (3) constitutes relevant and pertinent new evidence not previously
considered by the Office.5
A request for reconsideration must also be sent within one year of the date of the Office
decision for which review is sought.6 A timely request for reconsideration may be granted if the
Office determines that the employee has presented evidence or provided an argument that meets
at least one of the requirements for reconsideration. If the Office chooses to grant
reconsideration, it reopens and reviews the case on its merits.7 If the request is timely but fails to
meet at least one of the requirements for reconsideration, the Office will deny the request for
reconsideration without reopening the case for review on the merits.8
The Board has held that the submission of evidence which repeats or duplicates evidence
previously submitted in the case record has no evidentiary value and does not constitute a basis
for reopening a case.9 Evidence that does not address the particular issue involved does not
constitute a basis for reopening a case.10
ANALYSIS
The Board finds that the Office properly denied appellant’s November 1, 2009 request for
reconsideration because he did not meet any of the requirements for reconsideration under 20
C.F.R. § 10.606(b). Appellant did not allege that the Office erroneously applied or interpreted a
specific point of law. He also failed to advance a relevant legal argument not previously
considered by the Office or to submit relevant and pertinent evidence not previously considered
by the Office.
On reconsideration, appellant submitted a letter reiterating his assertion that his injury
was caused by repetitive motion from his letter carrier job and stated that he had a new walking
route which took seven hours. While the information regarding the seven-hour walking route is
new, it is not relevant to the issue in the August 14, 2008 claim that was adjudicated in the
November 5, 2008 decision. Thus, appellant did not advance a new legal argument sufficient to
constitute a basis for reconsideration.

5

Id. at § 10.606(b); see also L.G., 61 ECAB __ (Docket No. 09-1517, issued March 3, 2010); C.N., 60 ECAB __
(Docket No. 08-1569, issued December 9, 2008).
6

Id. at § 10.607(a).

7

Id. at § 10.608(a); see also R.B., 61 ECAB __ (Docket No. 09-1241, issued January 4, 2010); M.S., 59 ECAB
231 (2007).
8

Id. at § 10.608(b); E.R., 61 ECAB __ (Docket No. 09-1655, issued March 18, 2010); Y.S., 60 ECAB __ (Docket
No. 08-440).
9

L.T., 61 ECAB ___ (Docket No. 09-1798, issued August 5, 2010); S.J., 60 ECAB __ (Docket No. 08-2048,
issued July 9, 2009); James E. Norris, 52 ECAB 93 (2000).
10

Id.; C.N., 60 ECAB __ (Docket No. 08-1569, issued December 9, 2008); Ronald A. Eldridge, 53 ECAB
218 (2001).

4

In addition, the submission on reconsideration does not address the particular issue
involved in his claim, and thus, does not constitute a basis for reconsideration.11 The underlying
issue in his claim was that he failed to submit medical evidence establishing a medical diagnosis
and causal relationship. As the issue was medical in nature, it could only be resolved through the
submission of probative medical evidence.12 Although appellant stated that he would submit
new evidence in support of his request for reconsideration, no further evidence was received. He
did not offer any new, pertinent medical evidence pursuant to his request for reconsideration.
Since he did not meet any of the requirements warranting reconsideration under 20 C.F.R.
§ 10.606, the Office properly denied his request for reconsideration without further review on the
merits.13
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration of
his claim pursuant to 5 U.S.C. § 8128(a).14

11

D.K., 59 ECAB 141 (2007); R.M., 59 ECAB 690 (2008).

12

Y.S., 60 ECAB __ (Docket No. 08-440, issued March 16, 2009); L.H., 59 ECAB 253 (2007).

13

20 C.F.R. § 10.608; J.M., 60 ECAB __ (Docket No. 09-218, issued July 24, 2010); A.L., 60 ECAB __ (Docket
No. 08-1730, issued March 16, 2009).
14

The Board notes that appellant submitted additional evidence following the November 11, 2009 nonmerit
decision. Since the Board’s jurisdiction is limited to evidence that was before the Office at the time it issued its final
decision, the Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D.
Pruitt, 57 ECAB 126 (2005).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 19, 2009 is affirmed.
Issued: January 11, 2011
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Philadelphia, PA, Employer
__________________________________________

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

Docket No. 15-1892
Issued: February 1, 2016

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 September 14, 2015 appellant filed a timely appeal from an August 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 his burden of proof to establish a traumatic injury on
January 16, 2015 in the performance of duty.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 15, 2015 appellant, then a 56-year-old housekeeping aid, filed a traumatic injury
claim (Form CA-1) alleging that on January 16, 2015 he pulled his groin and abdomen when
lifting heavy boxes. He did not stop work.
Appellant was examined in the occupational health unit of the employing establishment
on January 20, 2015. In a handwritten report, with an illegible signature, it was noted that
appellant was returned to work with restrictions of no heavy lifting, pushing, or pulling more
than 15 pounds. Appellant was advised that he should be examined by a surgical specialist.
In a January 22, 2015 report, Susan Potts-Nulty, a certified nurse practitioner, noted that
appellant was lifting a canister at work that weighed more than 50 pounds when he felt a pull.
She reported a history of umbilical hernia and diagnosis of aggravated umbilical hernia.
Ms. Potts-Nulty checked a box marked “yes” that indicated that appellant’s condition was caused
or aggravated by an employment activity. She reported that appellant was not disabled from
work, but noted that he could not lift more than 15 pounds.
On February 20, 2015 appellant underwent an ultrasound of the abdomen by Dr. Esther
Kim, a Board-certified diagnostic radiologist. Dr. Kim noted a history of umbilical hernia and
reported a hernia of bowel loops seen in the umbilical area of the abdominal wall.
In a February 25, 2015 note, Ms. Potts-Nulty indicated that appellant could return to
work full time with limitations of lifting no greater than 15 pounds without a device or
assistance. She advised appellant to return to her office in three to four months.
Appellant was examined by Cheryl L. Powell, a physician assistant, who noted in a
May 12, 2015 surgical consultation record that appellant had an umbilical hernia and recently
injured himself when lifting a biohazard canister. She reported a preoperative diagnosis of
reducible umbilical hernia. Ms. Powell reviewed appellant’s history and provided examination
findings. She counseled appellant about undergoing umbilical hernia repair surgery.
By letter dated May 22, 2015, OWCP advised appellant that the evidence submitted was
insufficient to establish his claim. It requested additional evidence to establish that he actually
experienced the January 16, 2015 incident as alleged and that he sustained a diagnosed condition
causally related to the employment incident.
On June 2, 2015 OWCP received additional medical evidence. Appellant provided
progress notes from Ms. Potts-Nulty dated January 22 to May 22, 2015. In January 21 and
February 25, 2015 notes, Ms. Potts-Nulty related that appellant came in for a visit for a workrelated injury and also noted that he had not been taking his insulin for his diabetes. Upon
examination, she observed soreness in appellant’s lower abdomen and noted a recent hernia.
Ms. Potts-Nulty diagnosed umbilical hernia and hyperlipidemia. In a February 25, 2015 note,
she advised appellant that he could return to full-time work with limitations of no lifting greater
than 15 pounds unless with assistance.
In a February 19, 2015 note, Dr. Karim B. Nakhgevany, a Board-certified surgeon,
examined appellant for umbilical hernia. He related that appellant was diagnosed a year ago, but
2

did not elect to have surgery. Dr. Nakhgevany reported that appellant worked for the employing
establishment and that a month ago he was lifting boxes when he felt sharp, abdominal muscular
pain. Upon examination, he observed a small, umbilical hernia in the abdomen, but no
tenderness. Dr. Nakhgevany advised appellant that he could not recommend surgery.
Appellant was again examined by Dr. Nakhgevany, who reported in a May 5, 2015 note
that he diagnosed reducible umbilical hernia with a soft and protuberant abdomen.
In a May 22, 2015 note, Carol Johnson, a registered nurse, indicated that appellant had no
new complaints and requested a talking glucometer because he had difficulty seeing the
numerical results on the accu-check glucometer.
In a decision dated June 29, 2015, OWCP denied appellant’s claim, finding the evidence
insufficient to establish that the January 16, 2015 incident occurred as alleged or that he
sustained a diagnosed condition causally related to a work incident.
On July 20, 2015 OWCP received appellant’s reconsideration request. In a handwritten
statement, appellant explained that on January 16, 2015 he was handling waste and putting boxes
on the truck as he did every night. He reported that there were more boxes that night and that
they were really heavy with some weighing more than 45 pounds. Appellant stated that one box
was so heavy that it almost slipped out of his hand. He was able to stop it from hitting the
ground, but he felt a sharp pain in his stomach. Appellant noted that he did not know how bad
the pain was until he got up the next morning and still felt the pain. He notified his supervisors
that he needed to go to the employing establishment health unit. Appellant received medical
treatment from the health unit and his own doctor. He was informed that he had sustained an
umbilical hernia.
A July 13, 2015 attending physician’s report, with an illegible signature, indicated a date
of injury of January 20, 2015 and noted that the patient injured himself while lifting at work. A
history of umbilical hernia since March 12, 2012 was provided and an abdominal hernia was
diagnosed. A box marked “yes” was checked indicating that appellant’s condition was caused or
aggravated by the described employment activity.
Appellant also provided an order form dated July 9, 2015 for a magnetic resonance
imaging (MRI) scan examination of the cervical and lumbar spine.
By decision dated August 27, 2015, OWCP denied modification of the June 29, 2015
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence3 including that he or she sustained an injury in the performance of duty and that any
2

5 U.S.C. §§ 8101-8193.

3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

3

specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether “fact of injury” has been established.5
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place, and in the manner alleged.6 Second, the employee must submit evidence,
generally only in the form of probative medical evidence, to establish that the employment
incident caused a personal injury.7 An employee may establish that the employment incident
occurred as alleged but fail to show that his or her disability or condition relates to the
employment incident.8
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence.9 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.10 The weight of the 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.11
ANALYSIS
Appellant alleged that on January 16, 2015 he felt a pull and sharp pain in his groin and
abdomen when lifting heavy boxes at work. OWCP denied his claim finding that he did not
establish that the January 16, 2015 incident occurred as alleged. The Board finds that the
evidence submitted is sufficient to establish that on January 16, 2015 appellant was lifting heavy
boxes at work and experienced a sharp pain.
OWCP determined that appellant had failed to meet his burden of proof to establish fact
of injury because he did not respond to its questionnaire. The Board finds, however, that there is
sufficient factual evidence to establish that on January 16, 2015 appellant felt a sharp pull and
4

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

6

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

7

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

8

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

9

See J.Z., 58 ECAB 529 (2007); Paul E. Thams, 56 ECAB 503 (2005).

10

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

11

James Mack, 43 ECAB 321 (1991).

4

experienced pain in his abdomen and groin while in the performance of duty. Along with his
reconsideration request, appellant provided a detailed description of the January 16, 2015
incident. He explained that on that night he was handling waste and loading boxes onto a truck
as he did every night. Appellant noted that the boxes were heavier than usual that night, some
weighing more than 45 pounds. He was able to stop one box from slipping out of his hand, but
in doing so, he felt a sharp pain in his abdomen. Appellant sought medical treatment from the
employing establishment health unit four days later. In addition, in a January 22, 2015 attending
physician’s report, Ms. Potts-Nulty, noted that appellant was lifting a canister at work that
weighed more than 50 pounds when he felt a pull in his abdomen.
The Board has found that an injury does not have to be confirmed by eyewitnesses in
order to establish the fact that an employee sustained an injury in the performance of duty, as
alleged, but the employee’s statements must be consistent with the surrounding facts and
circumstances and his subsequent course of action.12 In this case, the Board finds that appellant
has sufficiently described the January 16, 2015 incident which he believed caused a medical
condition and there is no evidence on the record to contradict his statement. Appellant has not
provided any inconsistent statements as to cast serious doubt on his version of the January 16,
2015 employment incident. Thus, under the circumstances of this case, the Board finds that the
January 16, 2015 incident occurred as appellant alleged.
The Board finds, however, that appellant did not submit sufficient medical evidence to
establish that his abdominal condition was causally related to the January 16, 2015 employment
incident.
Appellant received medical treatment from Dr. Nakhgevany. In a February 19, 2015
surgical consult record, Dr. Nakhgevany related that appellant had been diagnosed a year
previously with umbilical hernia, but had elected not to have surgery. He reported that a month
previously appellant was working at the employing establishment lifting boxes when he felt
sharp, abdominal muscular pain. Upon examination, Dr. Nakhgevany observed a small,
umbilical hernia in the abdomen, but no tenderness. In a May 5, 2015 note, he diagnosed
reducible umbilical hernia.
The Board notes that Dr. Nakhgevany provided an accurate history, examination
findings, and a diagnosed condition of umbilical hernia. Although he described the January 16,
2015 lifting incident Dr. Nakhgevany did not provide any opinion on whether this event caused
or contributed to appellant’s medical condition. The Board has held that medical evidence which
does not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship.13 Dr. Nakhgevany failed to opine or provide any
medical explanation regarding whether appellant’s umbilical hernia resulted from the January 16,
2015 incident. A medical opinion is especially needed in this case as the record reflects that

12

Joseph H. Surgener, 42 ECAB 541, 547 (1991); Gene A. McCracken, Docket No. 93-2227 (issued
March 9, 1995).
13

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

5

appellant had a preexisting hernia condition.14 Likewise, Dr. Kim’s February 20, 2015
ultrasound report also did not contain any opinion on the cause of appellant’s umbilical hernia.
Appellant was also treated by Ms. Potts-Nulty, the nurse practitioner, and Ms. Johnson,
the registered nurse. In a January 22, 2015 attending physician’s report and medical notes dated
January 21 and February 15, 2015, Ms. Potts-Nulty described the January 16, 2015 incident at
work and reported a history of injury of umbilical hernia. She diagnosed aggravated umbilical
hernia and indicated that appellant’s condition was caused by the employment activity. These
reports, however, are of no probative value to the issue of causal relationship as neither
practitioners nor registered nurses are physicians as defined under FECA.15 Similarly, the
May 12, 2015 surgical consultation record by Ms. Powell, a physician assistant, also fails to
establish appellant’s claim because a physician assistant is not considered a physician according
to FECA.16
Appellant also submitted a January 20, 2015 form from a physician with an illegible
signature and a July 13, 2015 attending physician’s report with an illegible signature. The Board
has held that unsigned reports or ones that bear illegible signatures cannot be considered as
probative medical evidence because they lack proper identification.17
Causal relationship is a medical question that must be established by probative medical
opinion from a physician.18 In this case, the Board finds that none of the medical evidence
appellant submitted constitutes rationalized medical evidence, based upon a specific and accurate
history of employment conditions, which are alleged to have caused or exacerbated his medical
condition.19 Accordingly, the Board finds that while it is found that appellant has established
fact of injury, OWCP still properly denied appellant’s claim because he has not established a
causal relationship between the work incident and his diagnosed condition.
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.

14

See B.T., Docket No. 13-138 (issued March 20, 2013).

15

Section 8102(2) of FECA provides that the term “physician” includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. See 5 U.S.C. § 8101(2); Roy L. Humphrey, 57 ECAB 238 (2005). See Paul Foster, 56 ECAB 208
(2004) (when the Board found nurse practitioners were not physicians under FECA); see also E.K., Docket No. 091827 (issued April 21, 2010) (when the Board noted reports from physician assistants and registered nurses were of
no probative value as they are not physicians under FECA).
16

Id.

17

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

18

W.W., Docket No. 09-1619 (issued June 2010); David Apgar, 57 ECAB 137 (2005).

19

Patricia J. Bolleter, 40 ECAB 373 (1988).

6

CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish an injury on
January 16, 2015 causally related to the accepted employment incident.
ORDER
IT IS HEREBY ORDERED THAT the August 27, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: February 1, 2016
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARTMENT OF AGRICULTURE,
FOREST SERVICE, St. Maries, ID, Employer
__________________________________________

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

Docket No. 11-126
Issued: August 2, 2011

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 October 19, 2010 appellant timely appealed the August 6, 2010 merit decision of the
Office of Workers’ Compensation Programs (OWCP), which granted a schedule award.
Pursuant to the Federal Employees’ Compensation Act (FECA)1 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 has more than 10 percent impairment of the right arm.

1
2

5 U.S.C. §§ 8101-8193.

The record on appeal contains evidence received after OWCP issued its August 6, 2010 decision. The Board is
precluded from considering evidence that was not in the case record at the time OWCP rendered its final decision.
20 C.F.R. § 501.2(c)(1) (2010).

FACTUAL HISTORY
Appellant, then a 54-year-old forestry technician, has an accepted OWCP claim for right
shoulder acromioclavicular sprain, right rotator cuff sprain and right shoulder impingement
syndrome, which occurred on August 24, 2007. He underwent authorized right shoulder
arthroscopy on November 23, 2009. On April 8, 2010 appellant’s surgeon released appellant to
return to his regular duties. Appellant subsequently filed a claim for a schedule award, Form
CA-7.
In a report dated May 11, 2010, Dr. George R. Harper, a Board-certified orthopedic
surgeon, found 10 percent impairment of the right upper extremity. He applied the sixth edition
of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(2008). Based on appellant’s November 2009 right shoulder arthroscopy, Dr. Harper found a
class 1, grade C impairment of the acromioclavicular (AC) joint, with a default rating of 10
percent.3
On June 23, 2010 the district medical adviser (DMA) reviewed the record, including
Dr. Harper’s report and concurred with the finding of ten percent impairment of the right upper
extremity.
By decision dated August 6, 2010, OWCP issued a schedule award for 10 percent
impairment of the right arm. The award covered a period of 31.2 weeks from May 11 to
December 15, 2010.
LEGAL PRECEDENT
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions and organs of the body.4 FECA,
however, does not specify the manner by which the percentage loss of a member, function or
organ shall be determined. To ensure consistent results and equal justice under the law, good
administrative practice requires the use of uniform standards applicable to all claimants. The
implementing regulations have adopted the A.M.A., Guides as the appropriate standard for
evaluating schedule losses.5 Effective May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2008).6
ANALYSIS
Under the sixth edition of the A.M.A., Guides, impairments of the upper extremities are
covered by Chapter 15. Section 15-2, entitled Diagnosis-Based Impairment, indicates that
3

Table 15-5, A.M.A., Guides 403.

4

For a total loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C. § 8107(c)(1).

5

20 C.F.R. § 10.404.

6

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).

2

“[d]iagnosis-based impairment is the primary method of evaluation of the upper limb.”7 The
initial step in the evaluation process is to identify the impairment class by using the
corresponding diagnosis-based regional grid. Dr. Harper and the DMA utilized the “Shoulder
Regional Grid,” Table 15-5, A.M.A., Guides 403 and identified a class 1 impairment based on an
AC joint injury. Appellant’s November 23, 2009 right shoulder arthroscopy included a distal
clavicle excision. Under Table 15-5, status post distal clavicle resection represents an upper
extremity impairment range of 8 to 12 percent. Once the impairment class has been determined
based on the diagnosis, the grade is initially assigned the default value “C,” which in this
instance corresponds to 10 percent impairment of the upper extremity.8
After determining the Impairment Class (CDX) and default grade, the next step is to
determine if there are any applicable grade adjustments. These include adjustments for
Functional History (GMFH), Physical Examination (GMPE) and Clinical Studies (GMCS). The
grade modifiers are used in the Net Adjustment Formula to calculate a net adjustment.9 The final
impairment grade is determined by adjusting the grade up or down from the default value C by
the calculated net adjustment. According to Dr. Harper and the DMA, there was no basis for an
adjustment from the default grade C, which represented 10 percent impairment of the right arm.
The Board finds that the reports of the physicians of record conform to the A.M.A., Guides (6th
ed. 2008) and represent the weight of the medical evidence regarding the extent of appellant’s
right upper extremity impairment. Appellant has not submitted any medical evidence to
establish greater than 10 percent impairment of the right upper extremity.
A claimant retains the right to file for an increased schedule award, at anytime based on
new exposure or on medical evidence indicating progression of an employment-related
condition, resulting in permanent impairment or increased impairment.10
CONCLUSION
Appellant failed to establish that he has greater than 10 percent impairment of the right
upper extremity.

7

Section 15.2, A.M.A., Guides 387.

8

Table 15-5, A.M.A., Guides 403.

9

Net Adjustment = GMFH - CDX + GMPE - CDX + GMCS - CDX. Section 15.3d, A.M.A., Guides 411.

10

See Tommy R. Martin, 56 ECAB 273 (2005).

3

ORDER
IT IS HEREBY ORDERED THAT the August 6, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 2, 2011
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

4


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

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

Docket No. 20-0634
Issued: September 25, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 10, 2019 appellant filed a timely appeal from an October 3, 2019 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated June 4, 2019, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.2
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).

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the October 3, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
On April 24, 2017 appellant, then a 35-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that on that day she sustained a right shoulder strain when she pulled on a
mailbox door to open it while in the performance duty.3 On the reverse side of the claim form, the
employing establishment indicated that she stopped work on the date of injury. Appellant returned
to part-time limited-duty work on April 28, 2017.
On May 30, 2017 OWCP accepted appellant’s claim for right shoulder and upper arm level
unspecified muscle, fascia and tendon strain, initial encounter.
On June 27, 2017 appellant returned to full-time regular-duty work with no restrictions as
advised by Dr. Charles J. Lilly, a Board-certified orthopedic surgeon. She stopped work on
April 20, 2019 and on April 22, 2019 she filed a notice of recurrence (Form CA-2a) alleging that
her work stoppage on April 20, 2019 was due to her accepted employment injury of right shoulder
and upper arm strain. Appellant asserted that at approximately 3:30 p.m. on April 20, 2019 a piece
of hair flipped into her face and as she reached with her right arm to flip it back into place her
shoulder slipped out of the socket. She had excruciating pain for which she sought medical
treatment. Appellant noted that her shoulder instability had progressively worsened.
In support of her claim, appellant submitted an April 20, 2019 letter from Dr. Michelle
Lim, a Board-certified family practitioner, who indicated that appellant was treated in the
emergency room on that day. Dr. Lim advised that appellant may return to work on April 24, 2019.
Appellant also submitted an undated medical report by Dr. Michael J. Moutsatson, an
orthopedic surgeon, who examined appellant on April 22, 2019. Dr. Moutsatson noted a history
that on April 20, 2019 she felt a pop in her right shoulder when she tried to wipe her hair out of
her eyes. He reported findings on physical examination and diagnosed pain in the right shoulder
and acromioclavicular (AC) joint, unspecified subluxation of the right shoulder joint, initial
encounter, and bicipital tendinitis of the right shoulder.
Thereafter, OWCP received additional medical evidence from Dr. Moutsatson. In an
April 22, 2019 prescription, Dr. Moutsatson ordered physical therapy to treat appellant’s
diagnosed conditions of right shoulder and AC joint pain, bicipital tendinitis, and unspecified
subluxation of the right shoulder. In a work status report of even date, he reiterated his prior
diagnosis of unspecified subluxation of the right shoulder, initial encounter. Dr. Moutsatson
placed appellant off work until April 24, 2019 when she could return to work with no restrictions.
In an April 24, 2019 work status report, he reiterated her diagnosed right shoulder conditions and
advised that she could return to work with restrictions as of the date of his report.
Dr. Lim, in an April 20, 2019 report, related a history that, on that day, appellant may have
dislocated her right shoulder when she brushed hair away from her face. She discussed findings
on physical and x-ray examination. Dr. Lim provided a clinical impression of acute right shoulder
pain.

3

Appellant had filed prior claims before OWCP. These claims include OWCP File No. xxxxxx563 and OWCP
File No. xxxxxx516 for right shoulder injuries. These claims have been administratively combined with the current
claim, which OWCP designated as the master file.

2

In an April 30, 2019 development letter, OWCP informed appellant that it had received her
claim for a recurrence of disability. It informed her that the evidence submitted was insufficient
to establish how her current condition worsened and rendered her unable to work. OWCP advised
appellant of the type of medical and factual evidence needed to establish her recurrence of
disability claim. It afforded her 30 days to submit the requested information.
In an April 26, 2019 duty status report (Form CA-17), Dr. Moutsatson listed a date of injury
as March 7, 2011. He reiterated his prior diagnosis of right shoulder pain and that appellant injured
her right shoulder while lifting hair out of her face. Dr. Moutsatson described clinical findings
and diagnosed right shoulder pain due to injury. He advised that appellant was unable to perform
her regular work, but she could work with restrictions as of the date of his examination.
On April 26, 2019 appellant accepted the employing establishment’s offer of a full-time
modified-duty position.
In a May 1, 2019 work capacity evaluation, Dr. Moutsatson continued to advise that
appellant was unable to perform her usual job, but she could work eight hours per day with
restrictions.
Appellant responded to OWCP’s questionnaire on May 9, 2019. She reported that her
claimed recurrence of disability on April 20, 2019 occurred when she was at home and not while
she was working. Appellant contended that her accepted right shoulder condition had progressed
to the current level of instability.
In additional narrative and work status reports dated May 8, 2019, Dr. Moutsatson
continued to reiterate appellant’s right shoulder conditions and indicate that she could work with
restrictions.
A May 1, 2019 magnetic resonance imaging scan report was received from Dr. Nriprendra
Devanath, a Board-certified diagnostic radiologist.
In an April 20, 2019 provider notes, Dr. Lim reiterated the history of appellant’s claimed
recurrence of disability, discussed examination findings, and noted her prior diagnosis of acute
right shoulder pain.
By decision dated June 4, 2019, denied appellant’s claim for a recurrence of disability
commencing April 20, 2019 finding that the medical evidence of record was insufficient to
establish that she was disabled from work due to a material change/worsening of her accepted
April 24, 2017 employment-related conditions.
OWCP subsequently received copies of Dr. Moutsatson’s April 22, 2019 physical therapy
prescription and April 24, 2019 work status report. It also received a June 5, 2019 report in which
he provided examination findings and continued to diagnose right shoulder and AC joint pain,
bicipital tendinitis of the right shoulder, and unspecified subluxation of the right shoulder joint,
subsequent encounter. Dr. Moutsatson advised that appellant could perform light-duty work with
restrictions.
Additionally, chart, reports, and progress and daily notes dated April 29 to May 28, 2019
and signed by appellant’s physical therapists were received which addressed the treatment of
3

appellant’s pain, effusion, and bicipital tendinitis of the right shoulder, and unspecified subluxation
of the right shoulder joint, subsequent encounter.
On July 8, 2019 appellant requested reconsideration of the June 4, 2019 decision and
submitted a report in which Dr. Moutsatson noted that on June 21, 2019 she presented for a followup evaluation of her right shoulder pain. Dr. Moutsatson indicated that she was doing well until
three days ago when her pain acutely worsened. Appellant denied any new injury. She related to
Dr. Moutsatson that her right shoulder pain felt the same as the pain she experienced when she
injured her right shoulder at work on April 24, 2017, but it had lasted longer. Dr. Moutsatson
reported findings on physical examination and reviewed diagnostic test results. He noted his prior
diagnoses of right shoulder and AC joint pain and bicipital tendinitis of the right shoulder and
diagnosed unspecified subluxation of the right shoulder joint, subsequent encounter.
Dr. Moutsatson again advised that appellant could perform light-duty work with restrictions.
OWCP thereafter continued to receive work status reports dated May 8, June 21, and
August 26, 2019 by Dr. Moutsatson who again noted his right shoulder diagnoses and advised that
appellant could work with restrictions. In an additional physical therapy prescription dated June 5,
2019, Dr. Moutsatson ordered physical therapy for her diagnosed right shoulder conditions.
Additional physical therapy reports and daily notes dated from July 25 to September 13,
2019 were received by OWCP which again addressed the treatment of appellant’s diagnosed right
shoulder conditions.
By decision dated October 3, 2019, OWCP denied appellant’s request for reconsideration
of the merits of the claim under 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.4 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.5 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.6
A timely request for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (i) shows that OWCP erroneously applied or
interpreted a specific point of law; (ii) advances a relevant legal argument not previously
considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously

This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
4

5

20 C.F.R. § 10.607.

6

Id. at § 10.607(a). 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.

4

considered by OWCP.7 When a timely request for reconsideration does not meet at least one of
the above-noted requirements, OWCP will deny the request for reconsideration without reopening
the case for a review on the merits.8
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).
Although appellant timely requested reconsideration, she neither alleged nor demonstrated
that OWCP erroneously applied or interpreted a specific point of law. Additionally, she did not
advance relevant legal arguments not previously considered by OWCP. Accordingly, the Board
finds that appellant is not entitled to a review of the merits based on either the first or second
requirements under 20 C.F.R. § 10.606(b)(3).
The Board further finds that appellant did not submit relevant and pertinent new evidence
not previously considered by OWCP. OWCP previously denied her claim because the medical
evidence of record was insufficient to establish that she sustained a recurrence of disability
commencing April 20, 2019 causally related to the accepted April 24, 2017 employment injury.
In support of her request for reconsideration, appellant submitted Dr. Moutsatson’s May 8,
June 21, and August 26, 2019 reports in which he reiterated his prior diagnoses of right shoulder
and AC joint pain, and bicipital tendinitis of the right shoulder, and unspecified subluxation of the
right shoulder joint, initial and subsequent encounters, and opinion that she could work with
restrictions. The Board has held that the submission of evidence or argument which repeats or
duplicates evidence or argument already in the case record does not constitute a basis for reopening
a case.9 Appellant also submitted a chart, reports, and progress and daily notes dated between
April 29 to May 28, 2019 and July 25 and September 13, 2019 of her physical therapists. Physical
therapists are not considered physicians as defined under FECA and thus their reports do not
constitute competent medical evidence.10 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).11

7

Supra note 5 at § 10.606(b)(3); see also E.W., Docket No. 19-1393 (issued January 29, 2020); L.D., Docket No.
18-1468 (issued February 11, 2019); B.W., Docket No. 18-1259 (issued January 25, 2019).
8

Id. at § 10.608(a), (b).

9

See B.H., Docket No. 19-0169 (issued June 24, 2019); G.Q., Docket No. 18-1697 (issued March 21, 2019).

Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
5 U.S.C. § 8101(2); see also supra note 6 at Chapter 2.805.3a(1) (January 2013); J.R., Docket No. 20-0496 (issued
August 13, 2020) (physical therapists are not considered physicians as defined by FECA); David P. Sawchuk, 57
ECAB 316, 322 n.11 (2006) (lay individuals such as physician assistants, nurses, and physical therapists are not
competent to render a medical opinion under FECA).
10

11

Supra note 5 at § 10.606(b)(3)(iii); T.W., Docket No. 18-0821 (issued January 13, 2020).

5

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.12
On appeal appellant contends that she submitted sufficient evidence to establish that she
sustained an employment-related recurrence of disability in 2019. As noted, the Board does not
have jurisdiction over the merits of her claim. The evidence submitted with appellant’s July 8,
2019 reconsideration request was insufficient to warrant a merit review of her claim.
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).
ORDER
IT IS HEREBY ORDERED THAT the October 3, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 25, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

12

D.G., Docket No. 19-1348 (issued December 2, 2019); S.H., Docket No. 19-1115 (issued November 12, 2019);
M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006).

6

7


United States Department of Labor
Employees’ Compensation Appeals Board

_________________________________________
P.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
White Plains, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-100
Issued: November 21, 2014

Case Submitted on the Record

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

JURISDICTION
On October 18, 2013 appellant filed a timely appeal from the April 30, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied his 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 met his burden of proof to establish that he sustained an
injury in the performance of duty on August 22, 2011.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 22, 2011 appellant, then a 52-year-old mail handler, filed a traumatic injury
claim alleging that he injured his right shoulder that day while pushing a heavy hamper at work.
He stopped work on August 22, 2011. The employing establishment controverted the claim.
On a September 26, 2011 facsimile transmittal sheet, the employing establishment
advised that no medical evidence was received. It noted that appellant merely indicated that “his
shoulder was ‘hurt’ as he ‘started’ to turn a hamper of mail.” The employing establishment also
noted that appellant was the subject of a disciplinary action, a removal from service, for
attendance abuse.
By letter dated September 29, 2011, OWCP informed appellant of the evidence needed to
support his claim. It requested that he submit such evidence within 30 days. OWCP noted that
no documentation was received with his claim form. No further evidence was received.
In a November 10, 2011 decision, OWCP denied appellant’s claim, finding that the
evidence was insufficient to establish that he sustained the August 22, 2011 employment incident
as alleged. It also found that the medical evidence was insufficient on causal relationship.
On December 1, 2011 appellant requested reconsideration. On December 5, 2011 OWCP
received his responses to the medical portion of its September 29, 2011 letter. Dr. Richard
Seldes, a Board-certified orthopedic surgeon, noted examining appellant on December 1, 2011
for an August 22, 2011 injury to the right shoulder. Appellant had pain and weakness in the right
shoulder. Dr. Seldes diagnosed clavicular arthritis causing impingement, tendinitis, distal
infraspinatus tendinitis. He stated that his injury was caused by pushing a large orange plastic
hamper.
In a December 1, 2011 progress report, Dr. Seldes listed an August 25, 2011 date of
injury and diagnosed right rotator cuff tear and sprain of the right shoulder. In a December 1,
2011 duty status report, he noted complaints of pain and weakness in the right shoulder and
indicated that appellant could not return to work.
A September 20, 2011 magnetic resonance imaging (MRI) scan obtained by Dr. Najma
Ahmed, a Board-certified internist, revealed degenerative changes at the acromioclavicular joint
causing impingement and findings consistent with tendinitis/tendinosis of the distal infraspinatus
tendon and no evidence of rotator cuff tear. Dr. Ahmed provided treatment notes dated
August 23 to November 3, 2011 and advised that appellant was under his care and should be
excused from work due to a sprained right shoulder.
By decision dated March 6, 2012, OWCP denied modification of the prior decision. It
found that the medical evidence was insufficient to establish the claim.
On February 26, 2013 counsel for appellant requested reconsideration and submitted new
medical evidence. He argued that appellant had met his burden of proof to establish his claim.
Counsel argued that the medical evidence established causal relationship.

2

OWCP received several treatment notes dated May 31 to June 29, 2012. The reports
were electronically signed by a physician’s assistant.
By decision dated April 30, 2013, OWCP denied modification of its prior decision.
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 timely filed within the applicable time
limitation period of FECA2 and that an injury was sustained in the performance of duty.3 These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon 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. The second
component is whether the employment incident caused a personal injury and generally this
can be established only by medical evidence.5 The employee must also submit sufficient
evidence, generally only in the form of medical evidence, to establish that the employment
incident caused a personal injury.6
An employee’s statement that an injury occurred at a given time and in a given
manner is of great probative value and will stand unless refuted by strong or persuasive
evidence.7 Moreover, an injury does not have to be confirmed by eyewitnesses. The
employee’s statement, however, must be consistent with the surrounding facts and
circumstances and his or her subsequent course of action. An employee has not met his or
her burden in establishing the occurrence of an injury when there are such inconsistencies in
the evidence as to cast serious doubt upon the validity of the claim. Circumstances such as
late notification of injury, lack of confirmation of injury, continuing to work without
apparent difficulty following the alleged injury and failure to obtain medical treatment may,
if otherwise unexplained, cast doubt on an employee’s statement in determining whether a
prima facie case has been established.8
2

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

3

James E. Chadden, Sr., 40 ECAB 312 (1988).

4

Delores C. Ellyett, 41 ECAB 992 (1990).

5

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

6

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

7

Gregory J. Reser, 57 ECAB 277 (2005); R.T., Docket No. 08-408 (issued December 16, 2008).

8

Betty J. Smith, 54 ECAB 174 (2002).

3

The medical evidence required to establish causal relationship is usually rationalized
medical 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.9
ANALYSIS
Appellant alleged that he developed a right shoulder condition on August 22, 2011 while
pushing a hamper in the performance of his work duties as a mail handler. The employing
establishment controverted the claim. It advised that appellant merely indicated that “his
shoulder was ‘hurt’ as he ‘started’ to turn a hamper of mail.” The employing establishment also
noted that he was the subject of a disciplinary action, a removal from service, for attendance
abuse. The Board notes in a letter dated September 29, 2011, that OWCP requested that
appellant provide additional evidence to support his claim and address the factual aspects of his
claim. However, appellant failed to provide any further details. After OWCP denied his claim
on November 10, 2011, appellant requested reconsideration. He indicated that his injury was
caused by pushing a large orange plastic hamper. This general statement did not describe the
contents of the hamper or how much it weighed. Additionally, the treatment notes from
August 23, 2011 reflect that appellant had a sprained right shoulder; there was no description of
how the sprain occurred. Without additional details to confirm the activities that he was doing
on that date, such as where he was when he was pushing the hamper or the time the incident
occurred; the facts are unclear and the first component of fact of injury is not established. The
Board finds that appellant has not established that the claimed incident -- that he was pushing a
hamper on August 22, 2011 occurred.10
On appeal, counsel reiterated his arguments made on reconsideration. However, as noted
above, the evidence is insufficient to meet appellant’s burden of proof. Appellant may submit
new evidence or argument with a written request for reconsideration to OWCP within one year
of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
sustained an injury in the performance of duty on August 22, 2011.

9

Id.

10

As appellant has not established the factual component of his claim, the medical evidence need not be
considered. See Bonnie A. Contreras, 57 ECAB 364 (2006).

4

ORDER
IT IS HEREBY ORDERED THAT the April 30, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 21, 2014
Washington, DC

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

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

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

5