United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, Bremerton, WA,
Employer
__________________________________________

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

Docket No. 12-1767
Issued: February 15, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 20, 2012 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) merit decision dated July 18, 2012 which denied appellant’s
request for a schedule award. Pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
hearing loss in the performance of duty.
FACTUAL HISTORY
On December 14, 2011 appellant, then a 66-year-old assistant fire chief, filed a claim for
compensation alleging that he developed hearing loss due to his federal employment. He
1

5 U.S.C. § 8101 et seq.

became aware of his hearing loss on January 1, 1995 and realized it was causally related to his
employment on the same day. Appellant retired from the employing establishment on
February 3, 1995.
By letter dated February 3, 2012, OWCP advised appellant of the type of evidence
needed to establish his claim. It also requested the employing establishment address appellant’s
workplace noise exposure.
In a February 17, 2012 statement, appellant indicated that from 1968 to 1970 he worked
as a rigger and was exposed to noise from chipping guns, grinders, chain falls, cranes, diesel
motors, vent blowers, pumps and deck crawlers for eight hours a day without hearing protection;
from 1970 to 1971 he worked as a firefighter and was exposed to noise from fire trucks, sirens
and aircraft helicopters for eight hours a day without hearing protection; and from approximately
1971 to 1995 he worked as a firefighter assistant/assistant fire chief and was exposed to noise
from trades working with chipping guns and carbon arc, fire engines, sirens and cranes for eight
hours a day without hearing protection. From 2006 to 2010 he worked in the private sector and
was not exposed to noise.
The employing establishment provided a December 20, 2011 report from Dr. Gerald G.
Randolph, a Board-certified otolaryngologist, who performed an otologic evaluation of appellant
on December 14, 2011 and audiometric testing was conducted on the doctor’s behalf on the same
date. Testing at the frequency levels of 500, 1,000, 2,000 and 3,000 revealed the following:
right ear 55, 40, 35 and 40 decibels; left ear 50, 30, 30 and 60 decibels. Appellant reported
noticing progressive hearing loss for 20 years. He reported being retired from the employing
establishment since 1995 and totally unemployed since 2010. Dr. Randolph noted that physical
examination revealed external auditory canals and tympanic membranes were normal and air
conduction was greater than bone conduction bilaterally at 500 cycles per second. He advised
that audiometric tests revealed a relatively flat bilateral sensorineural hearing loss with speech
reception thresholds of 45 decibels in the right ear and 40 decibels in the left ear. Dr. Randolph
diagnosed sensorineural hearing loss bilaterally. He noted that appellant’s relatively flat
audiogram revealed hearing loss which was largely due to causes other than industrial noise
exposure; however, he noted dipping in the higher tones of the left ear which suggested the
hearing loss was aggravated by past noise exposure. Dr. Randolph opined that, pursuant to the
fifth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment,2 (A.M.A., Guides), appellant had 26.25 percent hearing loss in the right and left ears
with binaural hearing loss of 26.25 percent. He recommended bilateral hearing aids.
Dr. Randolph requested to review appellant’s industrial audiograms performed during his
employing establishment employment to see if the hearing loss would be attributed to his
workplace exposure to noise.
On March 16, 2012 the employing establishment advised that appellant retired on
February 3, 1995 from his position as a supervisory firefighter. Appellant reported exposure to
noise from fire engines, sirens, cranes and various shop noise while inspecting buildings. The
employing establishment noted that hearing protection was not available to firefighters in prior
2

A.M.A., Guides (5th ed. 1993).

2

years. Appellant also worked as a rigger and was exposed to various degrees of noise while
using required tools. The employing establishment submitted medical records, including the
employing establishment audiograms taken from the hearing conservation program from
May 29, 1968 to February 9, 1994.3 The employing establishment submitted testing results from
December 14, 2011.
In an April 25, 2012 letter, OWCP referred appellant to Dr. Randolph for further opinion
about his hearing loss. It provided Dr. Randolph with a statement of accepted facts, available
exposure information, and copies of all medical reports and audiograms and requested that he
provide an addendum report to his December 20, 2011 evaluation.
In a May 3, 2012 addendum report, Dr. Randolph noted that the earliest audiogram
present in appellant’s record was May 29, 1968 which revealed a mild hearing loss at 4,000
cycles per second in the left ear with normal hearing in the right ear. He noted that appellant left
civil service employment in 1995 and the audiogram performed on February 9, 1994 revealed
that appellant had normal hearing in those frequencies affected by noise in his right ear.
Dr. Randolph indicated that there was very mild loss in the left ear which had increased no
greater than that which would be expected on the basis of presbycusis. He advised that the
hearing loss was not ratable in both ears and no treatment was required based on the audiogram
of February 9, 1994. Dr. Randolph opined that since 1994 appellant’s hearing has degenerated
very significantly resulting in a flat sensorineural hearing loss with an audiometric configuration
which was not compatible with hearing loss aggravated by noise exposure. He advised that
appellant was a candidate for hearing aids; however, the need was not related to his civil service
employment. Dr. Randolph opined that appellant’s current hearing loss was not due to industrial
noise exposure, rather the hearing loss occurred since appellant left civil service employment and
he could not identify the underlying cause of appellant’s relatively flat sensorineural hearing
loss. He noted findings from his December 14, 2011 examination and noted that the hearing loss
at that time of the revealed an audiometric configuration not compatible with hearing loss due to
noise exposure. Dr. Randolph diagnosed sensorineural hearing loss, bilaterally which was
unrelated to noise exposure at the employing establishment. He opined that the hearing loss
occurred after appellant left the employing establishment and advised that hearing loss occurs at
the time of the noise exposure and does not get worse at a later date because of past noise
exposure. Dr. Randolph noted that appellant may benefit from bilateral hearing aids.
On June 8, 2012 OWCP’s medical adviser reviewed Dr. Randolph’s report and the
audiometric test of December 14, 2011. The medical adviser concluded that, in accordance with
the sixth edition of the A.M.A., Guides,4 appellant had a 26.25 percent monaural hearing loss in
each ear and a 26.25 percent binaural hearing loss. The medical adviser opined that, pursuant to
Dr. Randolph’s May 3, 2012 report, appellant’s current hearing loss was not due to noise
exposure from federal employment.

3

The February 9, 1994 audiogram revealed, at the frequency levels of 500, 1,000, 2,000 and 3,000, the following
thresholds: left ear 20, 15, 5 and 35 decibels; right ear 20, 15, 5 and 0 decibels.
4

A.M.A., Guides (6th ed. 2008).

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In a July 18, 2012 decision, OWCP denied the claim finding that the medical evidence
did not support that the hearing loss was causally related to workplace noise exposure.
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 FECA, that the 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. These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.5
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) 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 claimant. The
medical evidence required to establish causal relationship is generally 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.6
ANALYSIS
It is not disputed that appellant was exposed to noise from 1968 to 1995 in the course of
his employment.7 However, the medical evidence is insufficient to establish that he has hearing
loss causally related to his workplace noise exposure.
In a report dated December 20, 2011, Dr. Randolph diagnosed sensorineural hearing loss
bilaterally. He advised that audiometrics performed revealed a relatively flat bilateral
sensorineural hearing loss which was largely due to causes other than industrial noise exposure.
5

Gary J. Watling, 52 ECAB 357 (2001).

6

Solomon Polen, 51 ECAB 341 (2000).

7

The record establishes that the employing establishment had a hearing conservation program in which appellant
underwent annual audiometric testing. See Jose Salaz, 41 ECAB 743 (1990); Kathryn A. Bernal, 38 ECAB
470 (1987).

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Although he noted that there was some dipping in the higher tones in the left ear that suggested
probable aggravation by past noise exposure, Dr. Randolph advised that he did not have
appellant’s industrial audiograms and stated that he would like to review these audiograms to see
if the hearing loss would be attributed to his workplace noise exposure. In an addendum report
dated May 3, 2012, he noted being provided with appellant’s employing establishment
audiograms and additional information regarding the duration and extent of appellant’s work
place exposure to noise. Dr. Randolph noted that the earliest audiogram present in appellant’s
record was May 29, 1968 which revealed a mild hearing loss at 4,000 cycles per second in the
left ear with normal hearing in the right ear. He noted that appellant left his civil service
employment in 1995 and the last audiogram performed on February 9, 1994 revealed that
appellant had normal hearing in those frequencies affected by noise in his right ear.
Dr. Randolph indicated that there was very mild loss in the left ear which had increased no
greater than that which would be expected on the basis of presbycusis. He advised that the
hearing loss was not ratable in both ears and no treatment was required based on the audiogram
of February 9, 1994. Dr. Randolph opined that since 1994 appellant’s hearing has degenerated
very significantly resulting in a flat sensorineural hearing loss with an audiometric configuration
which is not compatible with hearing loss aggravated by noise exposure. He diagnosed
sensorineural hearing loss, bilaterally which was unrelated to noise exposure at the employing
establishment. Dr. Randolph opined that appellant’s current hearing loss was not due to
industrial noise exposure as the hearing loss occurred since he left civil service employment and
he could not identify the underlying cause of his relatively flat sensorineural hearing loss. He
advised that the hearing loss at the time of the December 14, 2011 testing revealed an
audiometric configuration not compatible with hearing loss due to noise exposure. Dr. Randolph
advised that appellant was a candidate for hearing aids; however, the need was not related to his
civil service employment.
The Board finds that the medical evidence does not support that appellant has any hearing
loss causally related to workplace noise exposure. Dr. Randolph examined appellant, reviewed
audiological records and provided a reasoned opinion explaining why the hearing loss was not
due to the employment. There is no other medical evidence supporting that appellant’s hearing
loss is employment related. Thus, appellant has not met his burden of proof to establish that his
hearing loss is causally related to employment factors.
On appeal, appellant asserts that his hearing loss was causally related to workplace
exposure to noise. As noted above, the medical evidence did not establish that his hearing loss is
causally related to workplace exposure to noise. Dr. Randolph opined that since 1994
appellant’s hearing loss was not compatible with hearing loss aggravated by noise exposure.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that his hearing loss was caused or
aggravated by his federal employment.

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ORDER
IT IS HEREBY ORDERED THAT the July 18, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 15, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Knoxville, TN, Employer
__________________________________________

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

Docket No. 07-946
Issued: August 9, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge

JURISDICTION
On February 21, 2007 appellant filed a timely appeal from a January 3, 2007 merit
decision of the Office of Workers’ Compensation Programs denying his traumatic injury claim
and a February 6, 2007 nonmerit decision denying his request for reconsideration. Under 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met his burden of proof in establishing that he
sustained an injury on November 9, 2006, as alleged; and (2) whether the Office properly denied
his request for merit review under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On November 13, 2006 appellant, then a 48-year-old technical carrier, filed a traumatic
injury claim for November 9, 2006. He stated that he slipped and fell on some steps while in the
performance of duty. Appellant stated that he injured his hand, head, neck and back as a result
of the fall. He sought medical attention from Dr. Gary O’Shaughnessy, an osteopath, at the
Lensgraft Clinic and VAX-D Back Pain Institute on November 9, 2006. In a November 16,

2006 report, Dr. O’Shaughnessy’s nurse noted the history of injury and provided objective
findings of decreased range of motion in all planes of the cervical spine, positive orthopedic
findings of left soto balls, linders test, double leg raise test, kempts test and positive left shoulder
depression. Diagnosis codes were provided along with a recommendation that appellant undergo
physical therapy daily for 12 days.1 Medical notes of November 9, 2006 were provided along
with a November 13, 2006 return to work slip which advised that appellant had injured his neck
and upper trapezius muscles and could return to work on November 16, 2006.2
On November 22, 2006 the Office advised appellant that the evidence was insufficient to
establish that he sustained an injury or medical condition arising from the performance of his
duties on November 9, 2006. Appellant was directed to provide a detailed narrative report from
his physician that would include a history of the injury, a detailed description of findings, results
of all x-ray and laboratory tests, diagnosis and clinical course of treatment. The Office requested
that the physician also provide a medical opinion with rationale as to whether the diagnosed
condition was caused or aggravated by the employment. In response, appellant resubmitted
medical notes which indicated that the medical codes referred to cervico-cranial syndrome,
thoracic nerve root disorder, cervical root lesion and muscle weakness. A November 16, 2006
return to work order advised that appellant was unable to work until November 30, 2006.
By decision dated January 3, 2007, the Office denied appellant’s claim on the grounds
that he did not establish fact of injury. It found that appellant had established the occurrence of
the November 9, 2006 employment incident but failed to submit sufficient medical evidence
addressing causal relation.
In a letter dated January 28, 2007, appellant requested reconsideration. On February 6,
2007 the Office received both new and previously submitted medical notes from
Dr. O’Shaughnessy’s office and physical therapy notes of his progress along with a
November 13, 2006 memorandum from the employing establishment regarding employee
benefits and responsibilities in traumatic injury claims.
By decision dated February 6, 2007, the Office denied appellant’s request for
reconsideration finding that the evidence submitted in support of the request did not warrant a
merit review.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing that he or she sustained an injury while in the performance of duty.4 In
1

The Office authorized 12 days of electrical stimulation therapy, electrical stimulation, ultrasound therapy and
chiropractic manipulation for the period November 27 to December 27, 2006.
2

Some of the signatures on these records are illegible.

3

5 U.S.C. §§ 8101-8193.

4

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

2

order to determine whether an employee actually sustained an injury in the performance of duty,
the Office begins with an analysis of whether fact of injury has been established. Generally, fact
of injury consists of two components which must be considered in conjunction with one another.
The first component to be established is that the employee actually experienced the employment
incident which is alleged to have occurred. The second component is whether the employment
incident caused a personal injury and generally this can be established only by medical
evidence.5
The Office’s procedures recognize that a claim may be accepted without a medical report
when the condition is a minor one which can be identified on visual inspection.6 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.7
Rationalized medical opinion evidence is medical evidence that includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between a diagnosed
condition and the identified employment factor. The opinion of the physician must be based on a
complete factual and medical background, must be of reasonable medical certainty and
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.8
ANALYSIS -- ISSUE 1
Appellant alleged that on November 9, 2006 he sustained several injuries (hand, head,
neck and back) as a result of a slip and fall down stairs during the performance of his federal
duties. The Office accepted that the employment incident of November 9, 2006 occurred as
alleged. Appellant must, however, submit probative medical evidence on the issue of causal
relationship between a diagnosed condition and the employment incident. The claimed injuries
are not the type of injury that can be identified on visual inspection or a clear-cut injury requiring
only an affirmative statement. Appellant must submit rationalized medical evidence in support
of his claim.
The evidence of record does not provide a rationalized medical opinion supporting causal
relationship between a diagnosed condition and the accepted employment incident. The medical
records before the Board appear to be from Dr. O’Shaughnessy’s nurse or a physical therapist
and not from a physician. The Board has held that medical opinion, in general, can only be

5

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

6

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

7

Id.

8

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

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given by a qualified physician.9 Thus, to the extent that these medical records were issued by a
nurse or physical therapist, the reports are not from a physician and are of no probative value.
To the extent that Dr. O’Shaughnessy may have issued these records, they are insufficient to
establish the claim as they do not provide a specific opinion on causal relationship between any
of the diagnosed condition and the November 9, 2006 employment incident. Consequently,
appellant has not submitted medical evidence containing a physician’s reasoned opinion
regarding whether he has a diagnosed condition caused or aggravated by the accepted
employment incident.10
The Board finds that appellant did not meet his burden of proof to establish his claim.
LEGAL PRECEDENT -- ISSUE 2
The Act11 provides that the Office may review an award for or against compensation
upon application by an employee (or his or her representative) who receives an adverse decision.
The employee may obtain this relief through a request to the district Office. The request, along
with the supporting statements and evidence, is called the application for reconsideration.12
The application for reconsideration must set forth arguments and contain evidence that
either: (1) shows that the Office erroneously applied or interpreted a specific point of law;
(2) advances a relevant legal argument not previously considered by the Office; or (3) constitutes
relevant and pertinent new evidence not previously considered by the Office.13
A timely request for reconsideration may be granted if the Office determines that the
employee has presented evidence or argument that meets at least one of these standards. If
reconsideration is granted, the case is reopened and the case is reviewed on its merits.14 Where
the request is timely but fails to meet at least one of these standards, the Office will deny the
application for reconsideration without reopening the case for a review on the merits.15

9

See 5 U.S.C. § 8101(2). This subsection defines the term “physician.” See David P. Sawchuk, 57 ECAB ___
(Docket No. 05-1635, issued January 13, 2006) (lay individuals such as physician’s assistants, nurses and physical
therapists are not competent to render a medical opinion under the Act).
10

Although the record indicates that the Office may have authorized a limited period of medical treatment or
therapy, this does not establish that the Office accepted that appellant sustained an employment injury. See Gary L.
Whitmore, 43 ECAB 441 (1992); James F. Aue, 25 ECAB 151 (1974).
11

5 U.S.C. § 8101 et seq.

12

20 C.F.R. § 10.605.

13

20 C.F.R. § 10.606.

14

Donna L. Shahin, 55 ECAB 192 (2003).

15

20 C.F.R. § 10.608.

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ANALYSIS -- ISSUE 2
In his request for reconsideration, appellant did not allege or demonstrate that the Office
erroneously applied or interpreted a specific point of law or advance a relevant legal argument
not previously considered by the Office. The Board finds that appellant is not entitled to a
review of the merits of his claim based on the first and second above-noted requirements under
section 10.606(b)(2).16
With respect to the third requirement under section 10.606(b)(2), the underlying issue is
medical in nature. However, appellant did not submit any relevant and pertinent new evidence
regarding the pertinent issue of causal relationship. To the extent that additional new medical
notes were issued by a physician, these documents do not address how any diagnosed conditions
were caused or contributed to by the November 9, 2006 employment incident. Records from
physical therapists are not relevant because, as noted, a physical therapist is not a physician
under the Act17 and the underlying deficiency in the claim is the absence of medical evidence
addressing causal relationship. As only a physician can competently address the issue, reports
from physical therapists and other nonphysicians are irrelevant to the deficiency in the claim.
Also irrelevant is the memorandum from the employing establishment as it has no bearing on the
pertinent issue of causal relationship.
Because appellant’s January 28, 2007 request for reconsideration does not show that the
Office erroneously applied or interpreted a specific point of law, does not advance a relevant
legal argument not previously considered by the Office and provides no relevant and pertinent
new evidence not previously considered by the Office, the Board finds that the Office properly
denied a reopening of appellant’s case for a review on its merits. The Board will affirm the
Office’s February 6, 2007 decision denying appellant’s request.
CONCLUSION
The Board finds that appellant did not submit sufficient medical evidence to meet his
burden of proof in establishing an injury in the performance of duty on November 9, 2006 and
that the Office properly denied appellant’s request for merit review.

16

20 C.F.R. § 10.606(b)(2).

17

See supra note 9.

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 6 and January 3, 2007 are affirmed.
Issued: August 9, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
TENNESSEE VALLEY AUTHORITY,
PARADISE FOSSIL PLANT, Drakesboro, KY,
Employer
__________________________________________

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Appearances:
Ronald K. Bruce, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-452
Issued: June 18, 2014

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 December 27, 2013 appellant, through his attorney, filed a timely appeal of a
November 27, 2013 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 to consider the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish a lung condition due
to factors of his federal employment.
On appeal counsel argued that the report of his pulmonologist was entitled to the weight
of the medical evidence as he is a B reader. In the alternative, there is an unresolved conflict of
medical evidence.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 19, 2012 appellant, then a 55-year-old laborer, filed an occupational disease
claim alleging that he first became aware of his occupational pneumoconiosis on August 31,
2012 and attributed his condition to his employment on that date.
In a letter dated November 13, 2012, OWCP requested additional factual and medical
evidence in support of appellant’s claim. The employing establishment responded on
November 5, 2012. It submitted an August 31, 2012 report stating that appellant worked as a
laborer for 106 months or approximately 9 years. Air quality studies found that currently at the
employing establishment background levels of asbestos were 80 to 90 percent below the
established Occupational Safety and Health Administration (OSHA) limits for schools and
public buildings. Furthermore, exposure to respirable dust was found to be consistently under
the limit set by OSHA.
Appellant stated that he was exposed to coal dust on a daily basis and asbestos when
insulation would be blown off pipes or break off pipes. He stated that he had dust on his skin
and clothing at work on a daily basis. Appellant noted that he was exposed to flue gas and rock
dust and wore a paper mask.
Dr. Glen Baker, a Board-certified pulmonologist and B reader, completed a report on
September 21, 2012 noting that appellant worked as a laborer with exposure to coal dust and
asbestos. He stated that appellant worked for 10 years at the employing establishment
consistently and that he worked there periodically for another 20 years. Dr. Baker noted
appellant’s statement that he had exposure to coal dust primarily, but that he was also exposed to
asbestos fibers. He reported that appellant had shortness of breath with dyspnea on exertion and
a cough. Appellant stated that his breathing was worse with exertion, damp or dust. Dr. Baker
examined appellant’s chest x-ray dated July 6, 2012 and found evidence of occupational
pneumoconiosis, category 1/0. Appellant’s pulmonary function studies were within normal
limits. Dr. Baker diagnosed occupational pneumoconiosis with a history of exposure to coal dust
and asbestos fibers in the work environment, mild bronchitis, obstructive sleep apnea, diabetes
mellitus and hyperlipidemia. He stated that appellant had 23.3 years of dust exposure including
coal dust and periodic asbestos exposure. Dr. Baker found that appellant had x-ray changes with
irregular opacities primarily in the lower lobes of his lungs which were consistent with
pulmonary asbestosis as coal workers’ pneumoconiosis primarily caused rounded opacities. He
concluded that appellant had no impairment based on his pulmonary function studies and did not
currently require treatment.
In a letter dated December 10, 2012, the employing establishment noted that appellant
began his federal employment on June 16, 2003 and retired on August 10, 2012. It could neither
confirm nor deny his statement of exposure. The employing establishment provided a list of
appellant’s health records.
On March 14, 2013 OWCP referred appellant for a second opinion examination with
Dr. Harold Dale Haller, Jr., a Board-certified pulmonologist. It prepared a statement of accepted
facts listing appellant’s daily exposure to coal dust and occasional exposure to asbestos. In a
report dated April 25, 2013, Dr. Haller requested a high resolution computerized tomography
(CT) scan. On examination appellant’s pulmonary function tests were normal. Dr. Haller stated
that he did not see evidence for asbestosis or pneumoconiosis and found that appellant’s chest
2

x-ray was normal. He attributed appellant’s symptoms to his morbid obesity and found no
evidence of asbestosis or pneumoconiosis. Due to the disagreement with Dr. Baker on chest
x-ray interpretation, Dr. Haller recommended a high resolution CT scan of appellant’s chest.
The CT scan dated April 29, 2013 demonstrated bilateral noncalcified pulmonary nodules which
may be postinfectious or inflammatory with a possibility of metastatic disease to be correlated
with a history of malignancy or a follow-up CT scan. The scan demonstrated no evidence of
pulmonary fibrosis. Dr. Haller reviewed the CT scan on May 3, 2013 and found no evidence of
fibrosis or interstitial lung disease with no bronchiectasis or peribronchial thickening. He opined
that appellant’s pulmonary nodules were most likely postinflammatory due to histoplasmosis.
Dr. Haller further stated that appellant’s work exposures did not cause his dyspnea or cough. He
found that appellant had no pulmonary limitations.
By decision dated May 24, 2013, OWCP denied appellant’s occupational disease claim
finding that Dr. Haller represented the weight of medical opinion. It noted that Dr. Baker’s
report was based on an inaccurate history of injury as he found that appellant had exposures of
23 rather than 9 years. OWCP further found that Dr. Baker failed to provide sufficient medical
rationale regarding the relationship of the employment exposure versus other work exposures
and medical conditions.
On June 11, 2013 appellant requested an oral hearing before an OWCP hearing
representative. In a report dated May 6, 2008, Dr. Matthew V. Vuskovich, a physician Boardcertified in preventative medicine and a B reader, stated that B readers did not interpret CT scans
for pneumoconiosis as there were no standard images. He further noted that high resolution CT
scans effectively “wash out” pneumoconiosis lesions because they visualize a thin slice of tissue
and result in prohibitively high false negatives. Dr. Vuskovich stated, “In summary, to establish
a positive pneumoconiosis diagnosis and to accurately determine the severity of the disease chest
CT scan imaging should not be utilized.”
At the oral hearing, appellant testified that his work as a laborer required him to shovel
and vacuum coal dust. He noted that pipes insulated with asbestos frequently burst. Appellant
stated that he could see asbestos fibers in the air.
By decision dated November 27, 2013, OWCP’s hearing representative found that
Dr. Haller’s report was entitled to the weight of the medical evidence as he discussed appellant’s
morbid obesity and sleep apnea. She affirmed OWCP’s decision.
LEGAL PRECEDENT
OWCP regulations define an occupational disease as “a condition produced by the work
environment over a period longer than a single workday or shift.”2 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
2

20 C.F.R. § 10.5(q).

3

differently, medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant. The evidence required to establish causal
relationship is rationalized medical opinion evidence, based upon a complete factual and medical
background, showing a causal relationship between the claimed condition and identified factors.
The belief of a claimant that a condition was caused or aggravated by the employment is not
sufficient to establish causal relation.3
ANALYSIS
In support of his occupational disease claim, appellant submitted a report dated
September 21, 2012 from Dr. Baker, a B reader, diagnosing occupational pneumoconiosis with a
history of exposure to coal dust and asbestos fibers in the work environment, mild bronchitis,
obstructive sleep apnea, diabetes mellitus and hyperlipidemia. He submitted evidence that he
was exposed to coal dust on a daily basis and asbestos when insulation would be blown off pipes
or break off pipes.
Dr. Baker reported appellant’s employment exposure to coal dust and asbestos for 10
years at the employing establishment as well as additional exposure in other employment. He
examined appellant’s chest x-ray dated July 6, 2012 and found evidence of occupational
pneumoconiosis, category 1/0. Dr. Baker found that appellant had x-ray changes with irregular
opacities primarily in the lower lobes of his lungs consistent with pulmonary asbestosis.
OWCP referred appellant for a second opinion evaluation with Dr. Haller who reviewed
appellant’s chest x-ray and found that it was normal. To resolve his disagreement with
Dr. Baker’s findings on x-ray, Dr. Haller recommended a high resolution CT scan of appellant’s
chest. On May 3, 2013 he found no evidence of fibrosis or interstitial lung disease. Dr. Haller
noted that the CT scan did not demonstrate bronchiectasis or peribronchial thickening. He
opined that appellant’s pulmonary nodules were most likely postinflammatory due to
histoplasmosis. Dr. Haller opined that appellant’s work exposures did not cause his dyspnea or
cough.
The Board finds that this case is not in posture for a decision due to an unresolved
conflict of medical opinion evidence. Dr. Baker, a certified B reader, examined appellant’s chest
x-rays and determined that he had 1/0 occupational pneumoconiosis. Dr. Haller disagreed with
the finding on x-ray and requested a high resolution CT scan which demonstrated noncalcified
lung nodules. He opined that these nodules were postinflammatory due to histoplasmosis. The
Board finds that there is disagreement between the two physician’s regarding the results of
appellant’s diagnostic studies. Due to the disagreement on the cause and nature of appellant’s
findings on diagnostic studies, the Board finds that there is a conflict of medical opinion
evidence.
When there are opposing reports of virtually equal weight and rationale, the case will be
referred to an impartial medical specialist pursuant to section 8123(a) of FECA which provides
that, if there is disagreement between the physician making the examination for the United States
and the physician of the employee, the Secretary shall appoint a third physician who shall make

3

Lourdes Harris, 45 ECAB 545, 547 (1994).

4

an examination and resolve the conflict of medical evidence.4 This is called a referee
examination and OWCP will select a physician who is qualified in the appropriate specialty and
who has no prior connection with the case.5
On remand, OWCP should refer appellant a statement of accepted facts, a list of specific
questions and his diagnostic studies to an appropriate Board-certified physician and B reader to
determine whether appellant has any employment-related lung condition.6
CONCLUSION
The Board finds that this case is not in posture for a decision due to an unresolved
conflict of medical opinion evidence regarding the interpretation of appellant’s chest x-ray.
ORDER
IT IS HEREBY ORDERED THAT the November 27, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further development consistent
with this decision of the Board
Issued: June 18, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4

5 U.S.C. §§ 8101-8193, 8123; B.C., 58 ECAB 111 (2006); M.S., 58 ECAB 328 (2007).

5

R.C., 58 ECAB 238 (2006).

6

See e.g., S.T., Docket No. 13-1977 (issued March 18, 2014 (the interpretation of a B reader carries more weight
when interpreting chest x-rays for evidence of pneumoconiosis).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bedford Park, IL, Employer
__________________________________________

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

Docket No. 16-0256
Issued: April 19, 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 November 24, 2015 appellant filed a timely appeal from an October 21, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish disability for the
period February 26, 2010 to February 4, 2011 due to her accepted employment injury.
FACTUAL HISTORY
This case has previously been before the Board. In a May 1, 2015 order,2 the Board set
aside OWCP’s April 18, 2014 decision denying appellant’s claim because her request for
1

5 U.S.C. § 8101 et seq.

2

Y.R., Docket No. 15-0123 (issued May 1, 2015).

reconsideration was untimely filed and failed to show clear evidence of error in OWCP’s prior
merit decision dated May 25, 2010.3 The Board found that OWCP had misinterpreted a
March 10, 2014 letter of appellant as an untimely request for reconsideration of its May 25, 2010
decision. The Board explained that appellant’s March 10, 2014 letter constituted her attempt to
have OWCP address her claim for entitlement to wage-loss compensation for the period
February 26, 2010 to February 4, 2011.4
Appellant filed this claim after OWCP reversed its July 25, 2008 wage-earning capacity
determination and advised her that she should file Forms CA-7 if she wished to claim wage-loss
compensation for any period beginning September 18, 2009. The Board determined that
appellant had filed a claim for wage-loss compensation (Form CA-7) for the period February 26,
2010 to February 4, 2011 which had not been properly addressed by OWCP. The Board
remanded the case to OWCP for consideration of that claim for disability, to be followed by the
issuance of a de novo decision on the matter.
Prior to the issuance of the Board’s May 1, 2015 order remanding case, appellant had
submitted medical reports from attending physicians regarding her disability in 2010 and 2011.
In a January 20, 2010 form report, Dr. Edward Abraham, an attending Board-certified
orthopedic surgeon, noted that appellant was incapacitated and that she “may not work until
future notice.” In a narrative report produced on the same date, he reported that his physical
examination revealed that she had normal full range of motion of fingers and wrists bilaterally
and that there was no thenar atrophy. Appellant did have some minimal soreness at the base of
the metacarpal phalangeal joints bilaterally, but the fingers were not snapping or locking.
Dr. Abraham diagnosed mild bilateral carpal tunnel syndrome and noted, “[Appellant] is
requesting that she be placed on complete disability, because she thinks her symptoms are
getting worse. This was granted to her for three months. [Appellant] was advised that she needs
to resolve her problems with the employing establishment, since this situation cannot be
continued indefinitely.”
In a form report dated February 3, 2010, Dr. Abraham diagnosed bilateral carpal tunnel
syndrome. He checked a box marked “yes” as to whether appellant’s condition was work related
and added the notation, “Possible. Did not see her initially.”5 Dr. Abraham noted, “[Appellant]
3

On May 6, 1998 appellant, then a 32-year-old regional mail letter carrier, filed an occupational disease claim
(Form CA-2) alleging that she sustained bilateral arm and wrist conditions due to the performance of her repetitive
work duties overtime. OWCP accepted her claim for bilateral carpal tunnel syndrome and authorized left carpal
tunnel release surgery performed on May 3, 2007 and right carpal tunnel release surgery performed on
August 16, 2008. Appellant received disability compensation on the daily rolls beginning May 3, 2007. In a
July 25, 2008 decision, OWCP reduced appellant’s entitlement to compensation to zero based on its determination
that her actual wages as a modified city carrier fairly and reasonably represented her wage-earning capacity. In a
May 25, 2010 decision, it denied her claim for recurrence of disability beginning January 20, 2010. By decision
dated January 28, 2011, OWCP reversed its July 25, 2008 wage-earning capacity determination as the modified city
carrier position constituted odd-lot or make shift work.
4

On August 19, 2011 appellant filed a claim for compensation (Form CA-7) alleging disability from February 26,
2010 to February 4, 2011 due to her accepted employment injury.
5

Dr. Abraham noted that he first saw appellant on November 30, 2009.

2

to take three [months] off all work.” In an April 26, 2010 form report, he noted that appellant
was incapacitated until the next medical evaluation which was scheduled for July 29, 2010. On
October 21, 2010 Dr. Abraham reported the findings of a physical examination he performed on
that date noting that her condition was “about the same.” He indicated that the findings of recent
electromyogram (EMG) testing showed mild carpal tunnel syndrome whereas EMG testing
obtained prior to appellant’s 2007 surgeries showed a more severe condition. Dr. Abraham
noted, “We will bring [appellant] back in January. [Appellant] is to remain disabled until we see
her at that point. In a December 15, 2010 form report, he diagnosed carpal tunnel syndrome and
noted, “[She] unable to work at this time.”
In a duty status report (Form CA-17) dated January 27, 2011, Dr. Abraham diagnosed
bilateral carpal tunnel syndrome as the diagnosis due to the “March 12, 1998” injury and
recommended work restrictions, including lifting no more than 10 pounds with the right arm and
lifting no more than 20 pounds with the left arm. He also recommended, “No casing mail or
fingering mail until next visit.” In a January 27, 2011 report, Dr. Abraham noted that appellant
would be returned to work on February 7, 2011 with restrictions from casing and fingering mail.6
In a July 27, 2011 report, Dr. Florian Miranzadeh, an attending osteopath and Boardcertified family practitioner, diagnosed bilateral carpal tunnel syndrome, cervical strain and/or
sprain with disc disease, and bilateral elbow pain due to epicondylitis. He posited that appellant
“is fully incapacitated and may discontinue work as she has been.”7
On remand from the Board’s May 1, 2015 order, OWCP considered the medical evidence
of record in connection with appellant’s claim of disability from February 26, 2010 to
February 4, 2011 due to her accepted employment injury.8 By decision dated October 21, 2015,
it denied her claim because she had failed to submit sufficient rationalized medical evidence to
establish disability from February 26, 2010 to February 4, 2011 due to her accepted employment
injury. OWCP determined that the reports of attending physicians did not contain adequate
medical rationale to support their opinions on causal relationship.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an “employee of the
United States” within the meaning of FECA, that the claim was 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

6

In a January 27, 2011 report, Dr. Abraham noted that appellant was “physically able to return to work as of
[February 7, 2011].”
7

In a note dated July 27, 2011, Dr. Miranzadeh noted that appellant was fully incapacitated through August 24,
2011 due to her work injury, bilateral carpal tunnel syndrome.
8

In an August 12, 2015 letter, appellant again requested that OWCP consider her claim for work-related
disability from February 26, 2010 to February 4, 2011. She submitted several medical reports to OWCP which had
previously been submitted.

3

causally related to the employment injury.9 The medical evidence required to establish a causal
relationship between a claimed period of disability and an employment injury is rationalized
medical opinion evidence. 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.10
The Board will not require OWCP to pay compensation for disability in the absence of
any medical evidence directly addressing the specific dates of disability for which compensation
is claimed. To do so would essentially allow employees to self-certify their disability and
entitlement to compensation.11
ANALYSIS
OWCP accepted appellant’s claim for bilateral carpal tunnel syndrome. Appellant filed a
claim for compensation (Form CA-7) alleging disability from February 26, 2010 to February 4,
2011 due to her accepted employment injury. After development of the case, OWCP issued an
October 21, 2015 decision denying appellant’s disability claim for this period because she had
not submitted the sufficient medical evidence to establish her claim.
The Board finds that appellant has failed to meet his burden of proof to establish
disability from February 26, 2010 to February 4, 2011 due to her accepted employment injury.
In the January 20, 2010 form report, Dr. Abraham noted that appellant was incapacitated
and that she “may not work until future notice.” In a narrative report produced on the same date,
he reported findings of his physical examination of appellant. Dr. Abraham diagnosed mild
bilateral carpal tunnel syndrome and noted, “[Appellant] is requesting that she be placed on
complete disability, because she thinks her symptoms are getting worse. This was granted to her
for [three] months. She was advised that she needs to resolve her problems with the employer,
since this situation cannot be continued indefinitely.” The submission of these reports does not
establish appellant’s claim for work-related disability from February 26, 2010 to February 4,
2011 because Dr. Abraham did not provide any opinion that appellant’s disability was work
related or provide rationale for why she was completely disabled. The Board has held that
medical evidence which does not offer a clear opinion regarding the cause of an employee’s
condition or disability is of limited probative value on the issue of causal relationship.12
In the February 3, 2010 form report, Dr. Abraham diagnosed bilateral carpal tunnel
syndrome. He checked a box marked “yes” indicating that appellant’s condition was work
related and added the notation, “Possible. Did not see [appellant] initially.” Dr. Abraham
indicated, “[Appellant] to take [three months] off all work.” This report is of limited probative
9

J.F., Docket No. 09-1061 (issued November 17, 2009).

10

See E.J., Docket No. 09-1481 (issued February 19, 2010).

11

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

12

See Charles H. Tomaszewski, 39 ECAB 461 (1988).

4

value because the physician’s opinion on causal relationship is equivocal in nature and it does
not contain medical rationale in support of its box check regarding causal relationship.13 In the
April 26, 2010 form report, Dr. Abraham noted that appellant was incapacitated until the next
medical evaluation which was scheduled for July 29, 2010. On October 21, 2010 he noted, “We
will bring [appellant] back in January. [Appellant] is to remain disabled until we see her at that
point. In a December 15, 2010 form report, he diagnosed carpal tunnel syndrome and noted,
“[Appellant] unable to work at this time.” These reports do not establish appellant’s claim for
work-related disability from February 26, 2010 to February 4, 2011 because Dr. Abraham did
not provide a clear opinion that her disability was work related for this period.14
In the duty status report (Form CA-17) dated January 27, 2011, Dr. Abraham diagnosed
bilateral carpal tunnel syndrome as the diagnosis due to the “March 12, 1998” injury and
recommended work restrictions, including lifting no more than 10 pounds with the right arm and
lifting no more than 20 pounds with the left arm. He noted, “No casing mail or fingering mail
until next visit.” In the January 27, 2011 report, Dr. Abraham noted that appellant would be
returned to work on February 7, 2011 with restrictions from casing and fingering mail. Although
he suggested that her work-related condition necessitated these work restrictions, he did not
provide a clear opinion in this regard or provide a rationalized medical opinion explaining how a
work-related condition justified such restrictions. Dr. Abraham did not explain how specific
findings on examination and/or diagnostic testing supported this level of disability. The Board
has held that a medical report is of limited probative value on the issue of causal relationship if it
contains a conclusion regarding causal relationship which is unsupported by medical rationale.15
Dr. Miranzadeh’s July 27, 2011 report diagnosed bilateral carpal tunnel syndrome,
cervical strain and/or sprain with disc disease, and bilateral elbow pain due to epicondylitis. He
posited that appellant “is fully incapacitated and may discontinue work as she has been.” In a
note dated July 27, 2011, Dr. Miranzadeh noted that she was fully incapacitated through
August 24, 2011 due to her work injury, bilateral carpal tunnel syndrome. However, these
reports are not relevant to appellant’s present claim because they provide no opinion on her
disability for the period February 26, 2010 to February 4, 2011.
On appeal, appellant argues that the medical evidence of record supports disability for the
period February 26, 2010 to February 4, 2011 due to her accepted employment injury, but the
Board has explained why that medical evidence fails to establish work-related disability for this
period.

13

The Board has held that an opinion which is equivocal or speculative is of limited probative value regarding the
issue of causal relationship. See Leonard J. O’Keefe, 14 ECAB 42, 48 (1962); James P. Reed, 9 ECAB 193,
195 (1956). The Board has also held that when a physician’s opinion on causal relationship consists only of checking
“yes” to a form question, that opinion has little probative value and is insufficient to establish causal relationship.
Lillian M. Jones, 34 ECAB 379, 381 (1982).
14

Supra note 12.

15

C.M., Docket No. 14-88 (issued April 18, 2014).

5

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish disability
from February 26, 2010 to February 4, 2011 due to her accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the October 21, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 19, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
White Cloud, MI, Employer
__________________________________________

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

Docket No. 17-0644
Issued: July 10, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 1, 2017 appellant, through counsel, filed a timely appeal from a
December 14, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish an injury causally
related to a November 28, 2015 employment incident.
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.

On appeal counsel asserts that the December 14, 2016 decision is contrary to fact and
law.
FACTUAL HISTORY
On December 2, 2015 appellant, then a 41-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on November 28, 2015, while placing a package on the bottom
shelf of an all-purpose container, he felt a sharp back pain that caused spasms and locked-up his
back. He subsequently indicated that he stopped work on December 3 or 4, 2015.
On a form medical report dated December 3, 2015, Dr. Jocelyn Pouliot, a Board-certified
internist at Family Health Care, noted a diagnosis of back pain with sciatica. She recommended
physical therapy. Additional reports from Dr. Pouliot’s office dated December 3, 2015 were
signed by Mary Snell, a nurse practitioner. She noted a history of low back injury on
November 28, 2015 that was work related and found back pain on examination. Ms. Snell
advised that appellant should remain off work until his next visit in two weeks.3 She also
completed a duty status report (Form CA-17) on December 3, 2015 in which she noted findings
of decreased back range of motion and severe pain from the shoulder blades down. Ms. Snell
advised that appellant could not work. On an attending physician’s report (Form CA-20) also
dated December 3, 2015, she noted a history of injury that on November 28, 2015 appellant was
sorting mail and, when he bent over to do a task, his back froze. Ms. Snell reiterated appellant’s
complaints and checked a form box marked “yes,” indicating that his condition was employment
related. A December 3, 2015 thoracic spine x-ray was negative.
In December 15, 2015 reports, Dr. Pouliot noted complaints of constant back pain since
November 28, 2015. Examination findings of pain with palpation across the shoulder to the low
back and a positive straight leg raise test bilaterally were described. Dr. Pouliot diagnosed back
pain with sciatica and appellant was advised to remain off work for another two weeks. On a
form report dated December 29, 2015 Ms. Snell reiterated her findings and conclusions, again
advising that he remain off work for two weeks. In reports dated January 11, 2016, Dr. Pouliot
noted examination findings of an antalgic gait and bilateral positive straight leg raise tests. A
magnetic resonance imaging (MRI) scan of the lumbar spine was recommended.
By letter dated February 11, 2016, OWCP informed appellant of the evidence needed to
support his claim. This included a narrative report from a physician with a medical explanation
as to how the reported work incident caused or aggravated the claimed injury. OWCP informed
appellant that a nurse practitioner was not considered a qualified physician under FECA, and that
a chiropractor was only considered a physician if spinal subluxation was demonstrated by x-ray.
Appellant thereafter submitted a patient history that he had completed on
December 3, 2015. He noted that his job required sorting, pulling down, loading, and delivering
mail which included packages weighing up to 70 pounds. Appellant indicated that he hurt his
back loading packages onto a low shelf.4 In reports dated December 29, 2015 and February 19,
3

An undated, unidentified, and unsigned handwritten note from Great Lakes Family Care was also submitted.

4

An undated, unidentified, and unsigned medical report was also submitted.

2

2016, Ms. Snell provided examination findings and reiterated her conclusions. In the latter
report, she indicated that appellant should remain off work until March 4, 2016.
A January 28, 2016 MRI scan of the lumbar spine demonstrated chronic degenerative
disc disease at L3-4 and L4-5 with a small disc protrusion at L3-4 without nerve root
impingement.
In a report dated February 15, 2016, Dr. Hayden M. Boyce, a Board-certified
neurosurgeon, noted his review of the January 28, 2016 MRI scan. He diagnosed bilateral low
back pain without sciatica. Dr. Boyce recommended physical therapy and referral to a pain
clinic.
In correspondence dated March 7, 2016, Dr. Pouliot and Ms. Snell noted that appellant
was under their care for a work-related injury. They asserted that patients with workers’
compensation injuries should be told of the requirements for medical evidence and recommended
that physical therapy be authorized.
By decision dated March 17, 2016, OWCP found that the claimed November 28, 2015
incident occurred as alleged, but denied the claim because the medical evidence submitted did
not establish a causal relationship between the diagnosed condition and the November 28, 2015
accepted work incident.
On August 11, 2016 appellant, through counsel, requested reconsideration.
resubmitted the March 7, 2016 correspondence from Dr. Pouliot.

He

Additional medical evidence received by OWCP subsequent to the March 17, 2016
decision included a more complete February 15, 2016 report from Dr. Boyce who noted that
appellant had reported that on November 28, 2015, while loading packages onto a bottom shelf
at work, he had sudden back pain, his back locked up, and he was unable to stand. Appellant
reported that he had to change positions frequently, that he had been off work for three months,
and that physical therapy helped, but his aching back pain continued. Dr. Boyce reviewed the
MRI scan. He provided physical and neurological examination findings, noting that gait and
station were normal, and that sensation to light touch was intact. Dr. Boyce diagnosed bilateral
low back pain without sciatica, and recommended medication, pain management, and physical
therapy.
In a progress note dated March 31, 2016, Dr. Pouliot reported examination findings of
negative straight leg raise, normal thoracic and lumbar range of motion with pain, and that
appellant could heel walk without difficulty. She advised that he could return to work with a
10-pound weight restriction and a sit/stand option. Dr. Pouliot reiterated the work restriction on
April 14, 2016. On April 28, 2016 she advised that appellant could return to work without
restriction on May 3, 2016, working every-other-day for three days a week.
On August 2, 2016 Dr. Nick Dreliozis, a chiropractor, reported that he began treating
appellant on March 29, 2016. He advised that the repetitive work duties of bending and twisting,
up and down for a long time reached the point in November 2015 where appellant’s “back could
not take it anymore” Dr. Dreliozis noted that his examination on August 1, 2016 demonstrated
severe subluxations in the lumbar region. He diagnosed lumbalgia and sprain/strain of the
3

lumbar region. Dr. Dreliozis opined that appellant’s back problems resulted from his injury in
November 2015.
In a merit decision dated December 14, 2016, OWCP denied modification of the
March 17, 2016 decision, again finding the medical evidence of record insufficient to establish
causal relationship.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of reliable, probative, and substantial
evidence,5 including that he or she is an “employee” within the meaning of FECA and that he or
she filed a claim within the applicable time limitation.6 The employee must also establish that he
or she sustained an injury in the performance of duty as alleged and that disability for work, if
any, was causally related to the employment injury.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.8
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.9 The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.10 Neither the mere fact that a disease or condition manifests itself during a period
of employment nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.11
Under section 8101(2) of FECA, 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
5

J.P., 59 ECAB 178 (2007).

6

R.C., 59 ECAB 427 (2008).

7

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

8

T.H., 59 ECAB 388 (2008).

9

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

10

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

11

Dennis M. Mascarenas, 49 ECAB 215 (1997).

4

by the Secretary.12 Implementing regulations indicate that the diagnosis of spinal subluxation
must appear in the chiropractor’s report, and a chiropractor may interpret his or her x-rays to the
same extent as any other physician.13 Likewise, a nurse practitioner is not considered a
physician under FECA.14
ANALYSIS
There is no dispute that on November 28, 2015 appellant placed a package on the bottom
shelf of an all-purpose container at work. The Board also finds, however, that the medical
evidence is insufficient to establish that this incident resulted in an employment injury.
Medical evidence submitted to support a claim for compensation should reflect a correct
history and the physician should offer a medically sound explanation of how the claimed work
event caused or aggravated the claimed condition.15 No physician did so in this case.
The December 3, 2015 thoracic spine x-ray and January 28, 2016 lumbar MRI scan did
not provide a cause of any diagnosed conditions. Likewise, Dr. Boyce did not offer an opinion
regarding the cause of his diagnosis of low back pain without sciatica. Medical evidence that
does not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship.16
As to Dr. Dreliozis’ August 2, 2016 report, as noted, in assessing the probative value of
chiropractic evidence, the initial question is whether the chiropractor is considered a physician
under section 8101(2) of FECA. A chiropractor is not considered a physician under FECA
unless it is established that there is a spinal subluxation as demonstrated by x-ray to exist.17 The
evidence in this case does not reflect that Dr. Dreliozis diagnosed subluxation based on results of
an x-ray. While he advised that appellant had severe subluxations in the lumbar region, he did
not reference an x-ray. Dr. Dreliozis’ report, therefore, does not constitute probative medical
evidence as he does not meet the statutory definition of a physician.18
Dr. Pouliot first saw appellant on December 3, 2015 and continued to submit reports until
April 28, 2016. She noted his report that low back pain began at work on November 28, 2015
and diagnosed back pain with sciatica. Dr. Pouliot, however, did not provide an explanation as
to how the November 28, 2015 work incident caused a diagnosed condition. The fact that a
12

5 U.S.C. § 8102(2); see D.S., Docket No. 09-0860 (issued November 2, 2009).

13

20 C.F.R. § 10.311(b), (c). 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 Phillip L. Barnes, 55 ECAB 426 (2004).
14

L.D., 59 ECAB 648 (2008).

15

D.D., Docket No. 13-1517 (issued April 14, 2014).

16

Willie M. Miller, 53 ECAB 697 (2002).

17

Supra note 12.

18

See J.G., Docket No. 15-1468 (issued October 7, 2015).

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condition manifests itself during a period of employment is insufficient to establish causal
relationship.19
As to the reports signed solely by Ms. Snell, these do not constitute competent medical
evidence as a nurse practitioner is not considered a physician under FECA.20
While the medical opinion of a physician supporting causal relationship does not have to
reduce the cause or etiology of a disease or condition to an absolute certainty, neither can such
opinion be speculative or equivocal. The opinion of a physician supporting causal relationship
must be one of reasonable medical certainty that the condition for which compensation is
claimed is causally related to federal employment and such relationship must be supported with
affirmative evidence, explained by medical rationale, and be based upon a complete and accurate
medical and factual background of the claimant.21 There is no medical evidence of record of
sufficient rationale to establish a back injury caused by the November 28, 2015 employment
incident.22
It is appellant’s burden of proof to establish that a diagnosed condition is causally related
to the November 28, 2015 incident. As none of the medical evidence of record provides the
necessary rationale explaining how and why the physician opines that this accepted incident
resulted in a diagnosed back condition, the evidence of record is insufficient to establish an
injury caused by this incident. Appellant has failed to meet his 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 did not meet his burden of proof to establish an injury
causally related to a November 28, 2015 employment incident.

19

See R.J., Docket No. 15-0088 (issued February 25, 2015).

20

5 U.S.C. § 8101(2); supra note 14.

21

Patricia J. Glenn, 53 ECAB 159 (2001).

22

Supra note 11.

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ORDER
IT IS HEREBY ORDERED THAT the December 14, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 10, 2017
Washington, DC

Christopher J. Godfrey, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.T., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Richmond, VA, Employer
__________________________________________

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Appearances:
Debra Hauser, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-786
Issued: June 10, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION

On February 26, 2015 appellant, through counsel, filed a timely appeal from an
October 24, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
injury in the performance of duty on February 11, 2013.
FACTUAL HISTORY
On February 19, 2013 appellant, then a 29-year-old criminal investigator, filed a
traumatic injury claim (Form CA-1) alleging that she sustained a work-related injury to her left
knee, back, and forearms on February 11, 2013 at 10:45 a.m. Regarding the cause of injury,
1

5 U.S.C. §§ 8101-8193.

appellant stated, “[she] was thrown to the floor forcefully by another employee.” On the same
form, appellant’s supervisor indicated that appellant’s regular tour of duty was 9:00 a.m. to 5:30
p.m., Monday through Friday. He indicated that the employing establishment was challenging
appellant’s claim because the alleged injury did not occur in the performance of duty. The
supervisor asserted that the February 11, 2013 injury occurred as a “result of [the injured
worker’s] private life issues spilling over into the workplace.”
In statements dated February 11 and 20, 2013, appellant’s supervisor provided further
information about the events of February 11, 2013. He noted that at approximately 11:30 a.m.
on that date appellant advised him that a coworker had just “picked her up and thrown her to the
floor.”2 Mr. Tudor indicated that appellant advised that she and the coworker had lived together
from March 2012 to January 2013, but that they had spilt up and moved into separate apartments.
He stated, “[Appellant] had wanted to discuss reconciliation and was preventing [the coworker]
from leaving the office when the incident occurred.”
Appellant submitted medical evidence in support of her claim. In a February 13, 2013
note, Dr. Shari Gamarnik, an attending Board-certified family practitioner, related that on
February 11, 2013 appellant was “involved in a fight at work and got thrown to the ground by a
coworker.” She diagnosed acute lumbar strain and acute left knee pain.
In a March 6, 2013 development letter, OWCP requested that appellant submit additional
factual and medical evidence in support of her claim for a February 11, 2013 work injury. It
provided appellant with a questionnaire form containing questions to be answered about her
claimed injury.
On March 27, 2013 appellant completed the development questionnaire form provided by
OWCP. She indicated that her claimed injury occurred at approximately 11:00 a.m. on
February 11, 2013 during her tour-of-duty hours which were from 7:45 a.m. to 4:30 p.m.
Appellant stated that the supervisor, a coworker with whom she had a previous dating
relationship, asked to speak with her. At the conclusion of the conversation, she told the
coworker that they needed to speak to management. Appellant noted that the coworker was
walking to the eighth floor freight elevator access and she was on his left side. Before entering
the elevator area, she attempted to reach for a portfolio in his left hand. Appellant stated, “I was
then thrown to the opposite of the hallway, from which I was standing, and landed on my left
knee and side.” She indicated that there were no witnesses and that the incident has been
reported to the local law enforcement and the employing establishment’s Inspector General.
In a March 26, 2013 report, another attending physician noted that appellant reported that
on February 11, 2013 she stretched out her hand to pick up a file from a coworker, was shoved
and pushed aside. Appellant then fell on her left knee.
In an April 19, 2013 decision, OWCP denied appellant’s claim that she sustained a workrelated injury on February 11, 2013. It noted that she had not submitted sufficient evidence to
establish that the events occurred as described and stated, “The reason for this finding is that
2

Appellant’s supervisor spoke to the coworker by telephone shortly thereafter and he asserted that he only
“picked [appellant] up and set her to the side and she fell.” The coworker indicated that appellant had been
impeding his attempt to enter the elevator.

2

your history of the claimed events are different with each medical report.” OWCP concluded
that appellant’s claim was denied because she had not established the fact of injury.
In a November 20, 2013 brief, appellant’s counsel argued that the evidence of record
was sufficient to show that appellant established the fact of injury for a work-related injury on
February 11, 2103. Counsel asserted that appellant consistently stated that she was thrown to the
ground by her coworker. Appellant also submitted additional medical evidence in support of her
claim.
By decision dated November 22, 2013, OWCP denied appellant’s request for further
review of the merits of her claim pursuant to 5 U.S.C. § 8128(a). It found that the evidence and
argument submitted by appellant was cumulative in nature and that the submitted argument did
not show that OWCP erroneously applied or interpreted a specific point of law.
Appellant requested reconsideration. In a January 24, 2014 brief, counsel continued to
argue that appellant established that she sustained an injury in the performance of duty on
February 11, 2013. Appellant submitted an affidavit, signed on January 22, 2014, in which she
further described the events of February 11, 2013. She stated:
“At approximately 11:00 a.m. on February 11, 2013, during my tour of duty
hours, co-worker … threw me to the ground, causing me injury. Immediately
leading to this incident, [the coworker] had asked to speak with me. At the
conclusion of the conversation, I told [the worker] that we needed to have a
conversation with management. As we walked toward the eighth floor freight
elevator access, I was on his left side when I attempted to reach for a portfolio
also in [the coworker’s] left. At this time, [the coworker] threw me to the
opposite side of the hallway from where I had been standing. I landed on my left
knee and side. I reported the incident to local law enforcement and to the
Inspector General for Tax Administration.”
Appellant also submitted additional medical evidence in support of her claim, including a
September 19, 2013 report of an attending orthopedic surgeon. In a February 7, 2014 statement,
appellant’s supervisor clarified that it was the coworker who advised him that he had recently
moved out of the apartment he had shared with appellant and that their relationship had ended.
In an October 24, 2014 decision, OWCP’s Branch of Hearings and Review affirmed the
April 19, 2013 decision as modified to reflect that appellant’s claim for a work-related
February 11, 2013 injury was denied for the reason that it did not occur in the performance of
duty. In denying the claim, it stated:
“It is clear from the submitted statements that the incident arose out of a personal
matter having no connection with your employment. The incident did not occur
simply because you were reaching for a work file. The relative circumstances
leading up to the incident clearly demonstrates that you were not in the
performance of your regular duties.”

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LEGAL PRECEDENT
Congress, in providing for a compensation program for federal employees, did not
contemplate an insurance program against any and every injury, illness, or mishap that might
befall an employee contemporaneous or coincidental with his or her employment; liability does
not attach merely upon the existence of any employee/employer relation.3 FECA provides for
the payment of compensation for disability or death of an employee resulting from a personal
injury sustained while in the performance of duty. The term in the performance of duty has been
interpreted to be the equivalent of the commonly found prerequisite in workers’ compensation
law, arising out of and in the course of employment.4 In the course of employment deals with
the work setting, the locale, and time of injury.5 In addressing this issue, the Board has stated:
“In the compensation field, to occur in the course of employment, in general, an
injury must occur: (1) at a time when the employee may reasonably be said to be
engaged in [her] master’s business; (2) at a place where [she] may reasonably be
expected to be in connection with the employment; and (3) while [she] was
reasonably fulfilling the duties of [her] employment or engaged in doing
something incidental thereto.”6
This alone is not sufficient to establish entitlement to benefits for compensability. The
concomitant requirement of an injury arising out of the employment must be shown, and this
encompasses not only the work setting but also a causal concept, the requirement being that the
employment caused the injury in order for an injury to be considered as arising out of the
employment, the facts of the case must show some substantial employer benefit is derived or an
employment requirement gave rise to the injury.7
Assaults arise out of the employment either if the risk of assault is increased because of
the nature or setting of the work or if the reason for the assault was a quarrel having its origin in
the work. Assaults for private reasons do not arise out of the employment unless, by facilitating
an assault that would not otherwise be made, the employment becomes a contributing factor.8
The Board has held that when animosity or a dispute which culminates in an assault is
imported into the employment from a claimant’s domestic or private life, the assault does not
arise in the performance of duty.9 In Agnes V. Blackwell,10 the employee sustained injury
following an assault by a coworker with whom she had been romantically involved outside of
3

Minnie N. Heubner (Robert A. Heubner), 2 ECAB 20 (1948); Christine Lawrence, 36 ECAB 422 (1985).

4

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

5

Denis F. Rafferty, 16 ECAB 413 (1965).

6

Carmen B. Gutierrez (Neville R. Baugh), 7 ECAB 58 (1954).

7

See Eugene G. Chin, 39 ECAB 598 (1988).

8

A. Larson, The Law of Workers’ Compensation § 8.00 (2006); see also R.S., 58 ECAB 660 (2007).

9

S.S., Docket No. 13-318 (issued March 26, 2013).

10

44 ECAB 200 (1992).

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work. The Board denied coverage under FECA, finding that the altercation arose out of a prior
personal relationship between the employee and her coworker. The Board found that the
animosity which precipitated the assault was imported into the employment from the prior
private relationship between the parties and not out of or in the course of their employment.
ANALYSIS
The Board finds that appellant’s injury on February 11, 2013 did not arise in the course
of her federal employment.
At the time of the assault on February 11, 2013, appellant was performing her duties
during work hours. As noted, however, time, place, and manner are not alone sufficient to
establish entitlement to compensation. Appellant must also establish that her injury arose out of
her employment or that a factor of her employment gave rise to the assault.11
The evidence of record does not establish that appellant’s employment contributed to or
facilitated the assault of February 11, 2013.12 The increased risk of injury arose from a prior
personal relationship which was imported into the workplace. Appellant’s injury did not arise
from the type of work she was required to perform. Rather, it was the result of personal
animosity that arose out of her private life and prior relationship with the coworker. The facts of
appellant’s case are similar to those of Agnes V. Blackwell where coverage was denied for an
assault that arose from animosity which precipitated the assault and was imported into the
employment from a prior romantic relationship.13
On appeal counsel argued that the case of Yvonne D. McCrary14 supported a finding that
appellant sustained an injury in performance of duty on February 11, 2013 because the dispute
between appellant and the coworker that led to the assault on that date was “exacerbated by the
employment.” The Board notes, however, that this case does not provide support for a finding of
coverage under FECA. In Yvonne D. McCrary, the Board cited portions of a workers’
compensation treatise by Professor Larson, including a portion in which it was stated, “Assaults
for private reasons do not arise out of the employment unless, by facilitating an assault which
would not otherwise be made, the employment becomes a contributing factor.” Professor Larson
also noted, “When the animosity or dispute that culminates in an assault is imported into the
employment from claimant’s domestic or private life, and is not exacerbated by the employment,
the assault does not arise out of the employment under any test.” The Board found that the facts
of the case, which involved an assault of the claimant by an exboyfriend, did not involve an
exacerbation of the underlying dispute between the two by her employment.15 Similarly, in the
present case, appellant did not show that the dispute which led directly to the February 11, 2013
assault was exacerbated by her employment or that the assault would not have occurred but for

11

See supra note 7.

12

See supra note 8.

13

See supra note 10.

14

Docket No. 04-1154 (issued July 27, 2005).

15

Id.

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the contribution of her employment. OWCP properly denied her claim on the grounds that her
claimed February 11, 2013 injury did not occur in the performance of duty.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an injury in the performance of duty on February 11, 2013.
ORDER
IT IS HEREBY ORDERED THAT the October 24, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 10, 2015
Washington, DC

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

Patricia H. Fitzgerald, Deputy Chief 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
__________________________________________
P.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Oklahoma City, OK, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0945
Issued: March 16, 2022

Case Submitted on the Record

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

On June 3, 2021 appellant filed a timely appeal from the December 8, 2020 OWCP
decision, to which the Clerk of the Appellate Boards assigned Docket No. 21-0945.
By decision dated March 13, 2020, the Board set aside the December 3, 2018 OWCP
decision and remanded the case for OWCP to apply the more stringent clear evidence of error
standard for an untimely request for reconsideration.
In accordance with the Board’s March 13, 2020 decision, OWCP issued a December 8,
2020 decision and denied appellant’s November 20, 2018 request for reconsideration of the merits
of her claim, finding that it was untimely filed and failed to demonstrate clear evidence of error.
On March 7, 2022 the Board issued an order under Docket No. 19-1354, finding that the
March 13, 2020 Board decision was void ab initio and of no effect. The Board reissued the
decision on March 13, 2022, finding that appellant’s November 20, 2018 request for
reconsideration was timely filed from the most recent merit decision dated March 13, 2018.
The Board, having duly considered the matter, notes that because the Board voided the
prior decision under Docket No. 19-1354, OWCP had no jurisdiction to issue the December 8,
2020 decision. Consequently, the December 8, 2020 decision is null and void.

Pursuant to 5 U.S.C. § 8149 and 20 C.F.R. §§ 501.2(c) and 501.3(a), the Board’s
jurisdiction is limited to review of final adverse decisions of OWCP issued under the Federal
Employees’ Compensation Act (FECA). 1 As the December 8, 2020 decision is null and void, the
appeal assigned Docket No. 21-0945 does not contain a final adverse decision over which the
Board may properly take jurisdiction.2 Therefore, the Board finds that the appeal docketed as No.
21-0945 is dismissed. Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-0945 is dismissed.
Issued: March 16, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

1

5 U.S.C. § 8101 et seq.; 20 C.F.R. §§ 501.2(c) and 501.3(a).

2

See Order Dismissing Appeal, L.R., Docket No. 20-1447 (issued April 7, 2021).

2