United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Tacoma, WA, Employer
__________________________________________

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

Docket No. 08-159
Issued: May 19, 2008

Case Submitted on the Record

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

JURISDICTION
On October 23, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ March 7, 2007 merit decision denying his occupational injury claim,
and the July 27, 2007 nonmerit decision denying his request for further merit review. Pursuant
to 20 C.F.R. §§ 501.2 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 to establish that he
sustained an injury causally related to factors of his federal employment; and (2) whether the
Office properly refused to reopen appellant’s case for further review of the merits pursuant to
5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 29, 2007 appellant, a 45-year old nursing assistant, filed an occupational
disease claim (Form CA-2) alleging that he developed a lower back herniated disc and groin

hernia, as a result of his employment duties. He stated that he worked both sides of the nursing
home helping out his coworkers because they were shorthanded.
On February 2, 2007 the Office informed appellant that the information submitted was
insufficient to establish his claim and requested details regarding the employment activities he
believed caused or contributed to his alleged condition. The Office advised appellant to submit a
medical report which contained a diagnosis and a rationalized opinion as to the cause of the
diagnosed condition.
In a narrative statement dated January 15, 2007, appellant indicated that his back pain
began in 1982, and worsened when he began working at the employing establishment in
April 2004. He developed a hernia in his groin in December 2006 as a result of his work
activities, which included washing, changing and dressing patients and lifting them into
wheelchairs.
Appellant submitted reports from Dr. Michael Hatzakis, a Board-certified physiatrist. In
a report dated February 27, 2006, Dr. Hatzakis related appellant’s complaints of back pain
exacerbated by pulling, lifting and bending at work. On examination, appellant was unable to
bend more than 45 degrees in flexion, and had pain to palpation of the paraspinals while lying
prone. He had limited range of motion in the hips while lying on his side, and he experienced
pain at 10 degrees of hip flexion. Low back hypertension was visible. Based on radiology
reports, Dr. Hatzakis noted complete sacralization of the lumbar spine, minimal calcification in
the abdominal aorta, and minimal bulging of the nucleus pulposus at C5-6. He diagnosed back
pain primarily as a result of severe low back irritation from hip tightness, with likely underlying
degenerative disc disease pathology. In follow-up notes dated March 6, 2006, Dr. Hatzakis
documented appellant’s complaints of significant pain. He opined that appellant’s work-related
lifting was exacerbating his pain and recommended restricted duty.
Appellant submitted progress notes for the period January 20 through November 9, 2006
from Jonathan L. Wolman, a nurse practitioner, who treated him for chronic lower back, neck
and knee pain. He told Mr. Wolman that his pain was greatly exacerbated by lifting and bending
at work. Mr. Wolman recommended permanent work restrictions, including lifting no more than
10 pounds.
In progress notes dated October 21, 2005, Ludmila Chumak, a physician’s assistant,
diagnosed lumbar strain and bilateral knee pain. In notes dated December 28, 2005, Mark
Abrams, a nurse practitioner, stated that appellant had been suffering from low back pain for 20
years, and that his condition may be service related.
The record includes numerous nursing notes, including: May 26, 2005 progress notes
from Bruce M. Meredith, a registered nurse; October 21, 2005 emergency care visitation notes
from Jan Hampti, a licensed vocational nurse; August 3, 2005 and January 5, 2006 urgent care
triage notes from Laura J. Rice, a registered nurse; January 5, 2006 progress notes from
Eugene A. Jessen, a licensed practical nurse; March 21, 2006 progress notes from Candace Reed,
a registered nurse; and October 27, 2006 notes from Sharon Cruea, a registered nurse. The
record also contains therapy notes from Michael J. Roelofsen, a physical therapist, for the period

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January 23 through 31, 2006. Mr. Roelofsen stated that appellant’s work activities, including
transferring patients, aggravated his symptoms.
Appellant submitted radiology reports, including reports of: a January 21, 2006 x-ray of
the lumbosacral spine; January 24, 2006 x-rays of the cervical and thoracic spine and bilateral
knees; a February 2, 2006 x-ray of the ribs; a February 2, 2006 computerized tomography (CT)
scan of the lower cervical spine; and a February 9, 2006 CT scan of the thoracic spine. The
record also contains February 8, 2006 results of laboratory tests.
By decision dated March 7, 2007, the Office denied appellant’s claim on the grounds that
there was no medical evidence of record which provided a diagnosed condition that could be
connected with the alleged employment factors.
On May 1, 2007 appellant requested reconsideration. In a letter dated June 5, 2007, he
stated that he injured his back while assisting a patient during a restroom visit. Appellant
indicated that he informed his supervisor of the injury and went to the emergency room for
treatment. He did not identify the date of the alleged injury.
Appellant submitted duplicates of documents previously of record and reviewed by the
Office. On June 25, 2007 he also submitted copies of consult requests and medical reports that
were previously received by the Office, but were subsequently signed by Dr. Bruce Buchanan, a
Board-certified internist. These documents included: May 26, 2005 progress notes from
Mr. Meredith reflecting appellant’s complaints of low back pain; December 28, 2005 progress
notes from Mr. Abrams, who assessed chronic low back pain; radiology reports dated January 24
and February 2, 2006; a January 24, 2006 consult request from appellant’s physical therapist,
Mr. Roelofsen, which provided an assessment of mechanical low back pain and knee arthralgia;
a February 27, 2006 report from Dr. Hatzakis; and progress notes for the period January 31
through November 9, 2006 from Mr. Wolman, who provided an assessment of chronic lower
back and neck pain.
Appellant submitted: August 3, 2005 progress notes from Dr. Buchanan reflecting an
assessment of low back pain; a June 15, 2007 report from Mr. Wolman providing an assessment
of lower back pain, neck pain, hip arthralgia and groin pain; a June 16, 2007 duty status report
from Mr. Wolman, which contained a diagnosis of lower back pain; and a July 3, 2007 report
from Mr. Wolman, which reiterated his assessment of lower back pain, neck pain, hip arthralgia
and groin pain.1
By decision dated June 27, 2007, the Office denied appellant’s request for
reconsideration, on the grounds that the evidence submitted was insufficient to warrant a merit
review.

1

The Board notes that the record on appeal contains additional evidence which was not before the Office at the
time it issued its June 27, 2007 decision. The Board has no jurisdiction to review this evidence for the first time on
appeal. See 20 C.F.R. § 501.2(c). See also Dennis E. Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB
35, 36 n.2 (1952). Appellant may submit this evidence to the Office, together with a formal request for
reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b)(2).

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LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his claim, including the fact that an injury was
sustained in the performance of duty as alleged,3 and that any disability and/or specific condition
for which compensation is claimed are causally related to the employment injury.4
An occupational disease or illness means a condition produced by the work environment
over a period longer than a single workday or shift.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) a factual statement identifying the employment factors alleged to
have caused or contributed to the presence or occurrence of the disease or condition; and
(3) medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant.6 The medical evidence required to establish a
causal relationship, generally, is rationalized medical opinion evidence, i.e., medical evidence
presenting a physician’s well-reasoned opinion on how the established factor of employment
caused or contributed to the claimant’s diagnosed condition. To be of probative value, 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.7 The Board has held that the mere
diagnosis of pain does not constitute a basis for the payment of compensation.8
Additionally, the Board has consistently held that unsigned medical reports are of no
probative value9 and that any medical evidence upon which the Office relies to resolve an issue
must be in writing and signed by a qualified physician.10 Lay individuals such as physician

2

5 U.S.C. §§ 8101-8193.

3

Joseph W. Kripp, 55 ECAB 121 (2003); see also Leon Thomas, 52 ECAB 202, 203 (2001). “When an
employee claims that he sustained injury in the performance of duty he must submit sufficient evidence to establish
that he experienced a specific event, incident or exposure occurring at the time, place and in the manner alleged. He
must also establish that such event, incident or exposure caused an injury.” See also 5 U.S.C. § 8101(5) (“injury”
defined); 20 C.F.R. § 10.5(q) and (ee) (2002) (“Occupational disease or Illness” and “Traumatic injury” defined).
4

Dennis M. Mascarenas, 49 ECAB 215, 217 (1997).

5

20 C.F.R. § 10.5(q).

6

Michael R. Shaffer, 55 ECAB 386 (2004); see also Solomon Polen, 51 ECAB 341, 343 (2000).

7

Leslie C. Moore, 52 ECAB 132, 134 (2000); see also Ern Reynolds, 45 ECAB 690, 695 (1994).

8

Robert Broome, 55 ECAB 339, 342 (2004).

9

Merton J. Sills, 39 ECAB 572, 575 (1988).

10

James A. Long, 40 ECAB 538, 541 (1989).

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assistants, nurse practitioners and social workers are not competent to render a medical
opinion.11
An award of compensation may not be based on appellant’s belief of causal relationship.
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 a causal relationship.12
ANALYSIS -- ISSUE 1
Appellant has not submitted sufficient medical evidence to establish that he sustained a
diagnosed medical condition as a result of employment factors. Thus, he has not met his burden
of proof in establishing that he sustained an occupational disease in the performance of duty.
On February 27, 2006 Dr. Hatzakis related appellant’s complaints of back pain, which
was allegedly exacerbated by pulling, lifting and bending at work. He stated that appellant was
unable to bend more than 45 degrees in flexion; had pain to palpation of the paraspinals while
lying prone; had limited range of motion in the hips while lying on his side; and experienced
pain at 10 degrees of hip flexion. Low back hypertension was visible. Based on radiology
reports, Dr. Hatzakis noted complete sacralization of the lumbar spine, minimal calcification in
the abdominal aorta, and minimal bulging of the nucleus pulposus at C5-6. He diagnosed back
pain primarily as a result of severe low back irritation from hip tightness, with likely underlying
degenerative disc disease pathology. On March 6, 2006 Dr. Hatzakis opined that appellant’s
work-related lifting was exacerbating his pain and recommended restricted duty. However, he
did not provide a definitive diagnosis. The Board has held that pain is a symptom, rather than a
condition, and the mere diagnosis of pain does not constitute a basis for the payment of
compensation.13 Therefore, Dr. Hatzakis’ report is of limited probative value.
Appellant submitted progress notes from Mr. Wolman and Mr. Abrams, nurse
practitioners; progress notes from Ms. Chumak, a physician’s assistant; nursing notes from
Mr. Meredith, Ms. Cruea, Ms. Reed and Ms. Rice, registered nurses; emergency care visitation
notes from Ms. Hampti, a licensed vocational nurse; progress notes from Mr. Jessen, a licensed
practical nurse; and notes from Mr. Roelofsen, a physical therapist. Nurse practitioners,
physicians’ assistants, nurses, and physical therapists do not qualify as “physicians” under the
Act. Therefore, their opinions are of no probative value.14
Appellant submitted radiology reports and results of laboratory tests. As none of these
reports was accompanied by a narrative report from a physician, providing a definitive diagnosis
11

Janet L. Terry, 53 ECAB 570 (2002).

12

Phillip L. Barnes, 55 ECAB 426 (2004); see also Dennis M. Mascarenas, supra note 4.

13

Robert Broome, supra note 8.

14

Section 8101(2) of the Act provides as follows: “(2) ‘physician’ includes surgeons, podiatrists, dentists,
clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as
defined by State law.”

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that was causally related to identified employment factors, they are insufficient to establish
appellant’s claim.
Appellant expressed his belief that his alleged condition resulted from his employment
duties. The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.15
Neither the fact that the condition became apparent during a period of employment nor the belief
that the condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.16 Causal relationship must be substantiated by reasoned medical
opinion evidence, which is appellant’s responsibility to submit. Therefore, appellant’s belief that
his condition was caused by work activities is not determinative.
The Office advised appellant that it was his responsibility to provide a comprehensive
medical report which described his symptoms, test results, diagnosis, treatment and the doctor’s
opinion, with medical reasons, on the cause of his condition. Appellant failed to do so. As there
is no probative, rationalized medical evidence addressing how appellant’s claimed conditions
were caused or aggravated by his employment, he has not met his burden of proof in establishing
that he sustained an occupational disease in the performance of duty causally related to factors of
employment.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Act,17 the Office regulations provide that the evidence or argument submitted by a claimant
must: (1) show that the Office erroneously applied or interpreted a specific point of law;
(2) advance a relevant legal argument not previously considered by the Office; or (3) constitute
relevant and pertinent new evidence not previously considered by the Office.18 To be entitled to
a merit review of an Office decision denying or terminating a benefit, a claimant also must file
his or her application for review within one year of the date of that decision.19 When a claimant
fails to meet one of the above standards, the Office will deny the application for reconsideration
without reopening the case for review on the merits.20 The Board has held that the submission of
evidence which does not address the particular issue involved does not constitute a basis for

15

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

16

Id.

17

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, [t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
18

20 C.F.R. § 10.606(b)(2).

19

20 C.F.R. § 10.607(a).

20

20 C.F.R. § 10.608(b).

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reopening a case.21 Evidence that repeats or duplicates evidence already in the case record has
no evidentiary value and does not constitute a basis for reopening a case.22
ANALYSIS -- ISSUE 2
Appellant’s May 1, 2007 request for reconsideration neither alleged, nor demonstrated
that the Office erroneously applied or interpreted a specific point of law. Additionally, appellant
did not advance a relevant legal argument not previously considered by the Office.
Consequently, he 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).
In support of his request for reconsideration, appellant submitted August 3, 2005 progress
notes from Dr. Buchanan reflecting an assessment of low back pain. This document does not
address the basis for the central issue before the Office, namely whether appellant developed a
diagnosed condition as a result of employment activities. The report is therefore irrelevant.
Moreover, as Dr. Buchanan’s report merely repeats Dr. Hatzakis’ diagnosis of pain, which the
Office found to be insufficient to establish appellant’s claim, it has no evidentiary value and does
not constitute a basis for reopening this case.23 Appellant also submitted copies of consult
requests and medical reports that were previously of record, but were subsequently signed by
Dr. Buchanan. None of these reports contained a specific diagnosis, but rather reflected
assessments of pain. As they are repetitive and irrelevant to the central issue in this case, the
reports do not constitute a basis for granting merit review.
Appellant submitted reports dated June 15 and 16, and July 3, 2007, from Mr. Wolman,
who reiterated his assessments of lower back pain, neck pain, hip arthralgia and groin pain.
These reports merely repeat evidence contained in the record and therefore have no evidentiary
value. Duplicates of documents previously of record and reviewed by the Office prior to its
March 7, 2007 decision, do not constitute relevant and pertinent new evidence not previously
considered by the Office.24 Therefore, the Office properly determined that this evidence did not
constitute a basis for reopening the case for a merit review.
The Board finds that the Office properly determined that appellant was not entitled to a
review of the merits of his claim pursuant to any of the three requirements under section
10.606(b)(2) and properly denied his May 1, 2007 request for reconsideration .
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. The Board further finds that the Office properly

21

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

22

See Helen E. Paglinawan, 51 ECAB 591 (2000).

23

Id.

24

See Susan A. Filkins, 57 ECAB 630 (2006).

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refused to reopen appellant’s case for further review of the merits of his claim pursuant to
5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated July 27 and March 7, 2007 are affirmed.
Issued: May 19, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.T., Appellant
and
U.S. POSTAL SERVICE, TONEY POST
OFFICE, Toney, AL, Employer
__________________________________________

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

Docket No. 17-0351
Issued: April 3, 2017

Case Submitted on the Record

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

JURISDICTION
On December 5, 2016 appellant filed a timely appeal from a September 15, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish an injury causally
related to a May 20, 2016 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The case record provided to the Board includes evidence received after OWCP issued its September 15, 2016
decision. The Board is precluded from considering evidence that was not in the case record at the time OWCP
rendered its final decision. Thus, the Board is precluded from reviewing this additional evidence. 20 C.F.R.
§ 501.2(c)(1).

FACTUAL HISTORY
On May 20, 2016 appellant, then a 28-year-old part-time flexible clerk, filed a traumatic
injury claim (Form CA-1) alleging that she sustained a work-related injury at 4:20 a.m. on
May 20, 2016. She claimed that she sustained stress to her nervous system and noted regarding
the cause of the injury, “Man standing on the west side of the building.” Appellant stopped work
on May 20, 2016 and returned to work on May 21, 2016.
On the same Form CA-1, appellant’s immediate supervisor indicated that appellant’s
regular work schedule was 4:00 a.m. to 6:00 a.m. “as scheduled daily.” The supervisor indicated
that appellant was not injured in the performance of duty and noted that the alleged injury
occurred when appellant pulled into the parking lot and she was not on the clock. Additionally,
she noted that appellant was unhappy with working at 4:00 a.m. The supervisor indicated that
the employing establishment was controverting the claim due to “performance of duty.”
Appellant submitted a form report entitled “Authorization for Examination and/or
Treatment.” A portion of the form was completed on May 20, 2016 by an attending physician
with an illegible signature. The physician noted that appellant related the history of injury,
“[T]hat a man was on the side of the building that she didn’t know and it gave her an anxiety
attack.” The physician diagnosed anxiety disorder and checked a box marked “Yes” indicating
that the condition was caused or aggravated by the employment incident. Appellant submitted
other reports dated May 20, 2016 from the same attending physician.
In a June 6, 2016 letter, the employing establishment controverted appellant’s May 20,
2016 claimed injury.
In a June 13, 2016 letter, OWCP requested that appellant submit additional factual and
medical evidence in support of her claim for a work-related May 20, 2016 injury. It requested
that she complete and return a development questionnaire which asked for additional factual
information as follows:
“1. Since the time of this event was, according to your employing agency, before
you began your work shift on 05/20/2016. State where you were and what you
were doing at the time your injury occurred. Provide a detailed description as to
how your injury occurred.
“2. Provide statements from any persons who witnessed your injury or had
immediate knowledge of it, or other documentation that supports your claim.
“3. State the immediate effects of the injury and what you did immediately
thereafter.
“4. Did you have any similar disability or symptoms before the injury? If so,
describe the prior condition. Please send records of all prior treatment.”3

3

On June 13, 2016 OWCP also requested additional information from the employing establishment.

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The record contains a report completed on May 20, 2016 by a deputy with the Madison
County Sheriff’s Office. The deputy noted that he was dispatched to the employing
establishment at approximately 4:23 a.m. on May 20, 2016 and that upon arrival he made contact
with the complainant (i.e., appellant). He noted that appellant reported that she arrived for work
at the listed address and reported that there was a white male on the premises, who yelled “Hey!”
to her, and then took off running away from her. Appellant reported to the sheriff that she left
the premises and then contacted the sheriff’s office. The deputy noted that he responded, but did
not make contact with the male subject. Another deputy provided a supplemental narrative to the
report on June 16, 2016 noting, “The complainant in this report contact[ed] this office and
advised she wanted to change a sentence in the report she had filed. She advised that the deputy
had written that the subject in question took off running away from her and it should say ‘he
came towards her in an aggressive manner.’”
Appellant’s supervisor submitted a June 7, 2016 e-mail that appellant had sent to another
employing establishment official. She indicated that appellant called her at 4:17 a.m. on May 20,
2016 and advised her of the claimed incident. The supervisor noted that she arrived at the office
approximately 15 minutes later and saw that law officials were in the parking lot after being
called by appellant. She advised that one officer entered the building with her and they searched
the building, but were unable to find an intruder or people in the vicinity. The supervisor
indicated that appellant had arrived and had not entered the building. She contended that
appellant was not in the performance of duty as she was exiting her car when she saw a man who
yelled “Hey” to her. The supervisor noted that appellant returned to her car and left the
premises. Appellant had previously complained that she did not want to be returned to the
employing establishment’s Toney, AL facility where she worked.
The record contains a hand-drawn map of the employing establishment facility, showing
appellant located on the south side of the premises and an “assailant” located at the southwest
corner of the premises building. It is unclear from the record who produced the drawing.
In a June 14, 2016 report, an attending clinical psychologist, Dr. Danny E. Blanchard,
noted that appellant reported that on May 20, 2016 “while arriving at work during her normal
work shift and exiting her vehicle in a dark parking lot she was accosted by an unidentified white
male.”
By decision dated July 15, 2016, OWCP denied appellant’s traumatic injury claim. It
found that she had failed to establish the factual component of her claim as she had not
responded to the June 13, 2016 development letter or return the attached questionnaire.
On August 2, 2016 appellant requested reconsideration of the July 15, 2016 decision
denying her claim.
Appellant submitted a July 25, 2016 narrative statement in which she asserted that at
approximately 4:05 a.m. on May 20, 2016 she was exiting her vehicle to enter the employing
establishment facility and “there was a white man standing on the west side of the building.”
She indicated that, once she exited her vehicle, “he yelled ‘Hey’ to me walking towards me in an
aggressive manner.” Appellant indicated that she then ran back to her car and drove away from
the building. She noted that she had never seen this man before and that she reported the

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incident to 911. Appellant called her immediate supervisor who responded, “I need you to go
back so that you can do Amazon” and “the Amazon man can search the property.” She noted
that, despite being fearful, she returned to the employing establishment facility. Appellant
indicated that she gave her verbal report when the police arrived.
By decision dated September 15, 2016, OWCP denied modification of its July 15, 2016
decision denying appellant’s claim for a work-related May 20, 2016 injury. It noted:
“Your entire file was reviewed including the most recent July 25, 2016 statement.
The evidence on file is not sufficient to support the 05/20/2016 incident occurred
as alleged. The factual component of the case file does not support you were
approached and/or accosted by an unidentified white male on postal premises on
the above date.”
***
“I find that you have not submitted sufficient evidence to establish the first
component of fact of injury…. To date, evidence sufficient to demonstrate that
you sustained a work-related injury on May 20, 2016 as alleged has not been
received. The information of record is such as to cast doubt as to whether the
incident occurred as alleged. For the foregoing reasons, you have failed to meet
your burden of proof requirement, as fact of injury has not been established.”
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
causally related to the employment injury.4 These are the essential elements of each
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at

4

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

5

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989). A traumatic injury refers to injury
caused by a specific event or incident or series of incidents occurring within a single workday or work shift whereas an
occupational disease refers to an injury produced by employment factors which occur or are present over a period
longer than a single workday or work shift. 20 C.F.R. § 10.5 (q), (ee); Brady L. Fowler, 44 ECAB 343, 351 (1992).

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the time, place, and in the manner alleged.6 Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.7
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, but the employee’s statements
must be consistent with the surrounding facts and circumstances and his or her subsequent course
of action.8 An employee has not met his or her burden of proof 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.9 Such circumstances 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 sufficient doubt on an employee’s
statements in determining whether a prima facie case has been established.10 However, an
employee’s statement alleging that an injury occurred at a given time and in a given manner is of
great probative value and will stand unless refuted by strong or persuasive evidence.11
ANALYSIS
The Board finds that the evidence of record contains inconsistencies that cast serious
doubt upon the validity of appellant’s claim for a traumatic injury. The Board notes that
appellant’s account of what happened on the morning of May 20, 2016 changed over time.
However, appellant has not provided any explanation for these changes.
When appellant initially filed her Form CA-1 on May 20, 2016 she indicated that she
sustained injury to her nervous system when, at 4:20 a.m. on that date, she saw a man “standing
on the west side of the building.” In a May 20, 2016 report, an attending physician noted that
appellant reported that the history of injury on May 20, 2016 was as follows, “[T]hat a man was
on the side of the building that she didn’t know and it gave her an anxiety attack.”
The Board notes that the record contains a report completed on May 20, 2016 by a deputy
with the Madison County Sheriff’s Office which contains a different account. The deputy noted
that he was dispatched to the employing establishment’s Toney, AL facility, at approximately
4:23 a.m. on May 20, 2016 at which time appellant reported that there had been a white male on
the premises who yelled “Hey!” to her, and then took off running away from her. A June 16,
2016 narrative supplement to this report shows that appellant’s account of the event of May 20,
2016 changed again. The addendum reads, “The complainant in this report contact[ed] this
office and advised she wanted to change a sentence in the report she had filed. She advised the
6

Julie B. Hawkins, 38 ECAB 393 (1987).

7

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

8

Charles B. Ward, 38 ECAB 667, 670-71 (1987); Joseph Albert Fournier, Jr., 35 ECAB 1175, 1179 (1984).

9

Tia L. Love, 40 ECAB 586, 590 (1989); Merton J. Sills, 39 ECAB 572, 575 (1988).

10

Samuel J. Chiarella, 38 ECAB 363, 366 (1987); Henry W.B. Stanford, 36 ECAB 160, 165 (1984).

11

Robert A. Gregory, 40 ECAB 478, 483 (1989); Thelma S. Buffington, 34 ECAB 104, 109 (1982).

5

deputy had written that the subject in question took off running away from her and it should say
‘he came towards her in an aggressive manner.’”
The Board notes that appellant did not respond to OWCP’s June 13, 2016 federal
development letter or questionnaire. After OWCP denied her claim on July 15, 2016, appellant
submitted a narrative account of the events of May 20, 2016. In the July 25, 2016 statement, she
asserted that at approximately 4:05 a.m. on May 20, 2016 she was exiting her vehicle to enter her
workplace building at the employing establishment and “there was a white man standing on the
west side of the building.” Appellant indicated that, once she exited her vehicle, “he yelled
‘Hey’ to me walking towards me in an aggressive manner.” However, she did not explain the
discrepancy of this account with her earlier accounts which indicated that either the man was
simply standing on the premises or that he stood on the premises and then ran away from her.
In a June 14, 2016 report, an attending clinical psychologist, Dr. Blanchard, noted that
appellant reported that on May 20, 2016 “while arriving at work during her normal work shift
and exiting her vehicle in a dark parking lot she was accosted by an unidentified white male.”
Appellant also failed to explain why this account of the May 20, 2016 incident differed from her
earlier accounts of the events of that date.
The Board finds that given these unresolved discrepancies, there are inconsistencies in
the evidence of record that cast serious doubt upon the validity of appellant’s claim for a workrelated May 20, 2016 injury.12 For these reasons, appellant did not establish the factual aspect of
her claim for a work-related injury on May 20, 2016 and OWCP properly denied her claim.
Appellant may submit new evidence or argument with a written request for
reconsideration 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.
The Board notes that where an employing establishment properly executes a (Form CA16) which authorizes medical treatment as a result of an employee’s claim for an employmentrelated injury, the (Form CA-16) form creates a contractual obligation, which does not involve
the employee directly, to pay for the cost of the examination or treatment regardless of the action
taken on the claim.13 The period for which treatment is authorized by a (Form CA-16) is limited
to 60 days from the date of issuance, unless terminated earlier by OWCP.14 The record is silent
as to whether OWCP paid for the cost of appellant’s examination or treatment for the period
noted on the form.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an injury
causally related to a May 20, 2016 employment incident.
12

See supra note 10.

13

See Tracy P. Spillane, 54 ECAB 608 (2003).

14

See 20 C.F.R. § 10.300(c).

6

ORDER
IT IS HEREBY ORDERED THAT the September 15, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 3, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
SAN DIEGO VA MEDICAL CENTER,
San Diego, CA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-1065
Issued: March 30, 2022

Case Submitted on the Record

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

On July 9, 2021 appellant filed a timely appeal from a May 3, 2021 merit decision and a
July 1, 2021 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The
Clerk of the Appellate Boards docketed the appeal as Docket No. 21-1065.
On August 6, 2008 appellant, then a 31-year-old vocational nurse, filed an occupational
disease claim (Form CA-2) alleging that she sustained right upper extremity injuries as a result of
factors of her federal employment including repetitive use of a computer, keyboarding, and
extensive dressing changes for patients. She indicated that she first became aware of her condition
and its relationship to her federal employment on March 3, 2008. OWCP accepted the claim for
right-sided thoracic outlet syndrome, also known as brachial plexus lesions.
On November 18, 2009 appellant underwent a right first rib resection with right anterior
scalenectomy to treat her diagnosed right thoracic outlet syndrome.
In a report dated May 8, 2010, Dr. Christopher Chisholm, a pain medicine specialist,
diagnosed reflex sympathetic dystrophy (RSD), also known as complex regional pain syndrome
(CRPS), of the upper right limb, and myofascial myalgia and myositis.

In a report dated October 11, 2010, Dr. Marilyn Carlin, an internist, diagnosed RSD
secondary to thoracic outlet syndrome despite surgical intervention.
Dr. Carlin, in a report dated April 4, 2011, diagnosed thoracic outlet syndrome with failed
response to surgery, right upper extremity chronic pain syndrome, possibly RSD, and right
hemidiaphragm paralysis as a complication of thoracic outlet syndrome, causing dyspnea on
exertion.
In a report dated October 10, 2011, Dr. Carlin diagnosed thoracic outlet syndrome,
myofascial pain syndrome versus RSD secondary to thoracic outlet syndrome and right
diaphragmatic paralysis secondary to thoracic outlet surgery.
In a report dated June 10, 2013, Dr. Carlin diagnosed thoracic outlet syndrome with
increasing pain following surgical intervention, RSD, myofascial pain syndrome, diaphragmatic
paralysis causing dyspnea on exertion, and recurrent major depression exacerbated by chronic
pain. She opined that factors of appellant’s federal employment caused appellant’s increased pain.
Dr. Carlin recommended work restrictions.
In a report dated June 25, 2014, Dr. Carlin diagnosed cervicalgia, diaphragmatic paralysis,
myofascial pain syndrome, recurrent major depression in full remission, RSD of the right upper
extremity, and thoracic outlet syndrome. In a report dated September 22, 2014, she diagnosed
thoracic outlet syndrome with poor results after surgical intervention , flare-up of chronic
cervicalgia and myofascial pain syndrome, RSD of the right upper extremity, also in flare-up, and
recurrent major depression in remission. Dr. Carlin again diagnosed these conditions in progress
notes dated August 22, 2014.
In a letter dated February 2, 2015, Dr. Carlin requested that the acceptance of appellant’s
claim be expanded to include fibromyalgia. She explained that it had developed as a result of
appellant’s chronic neck, chest wall, and right arm pain, secondary to failed surgery for thoracic
outlet syndrome and secondary RSD.
In a report dated June 25, 2015, Dr. Carlin explained that appellant continued to suffer from
thoracic outlet syndrome with increased pain following failed surgical intervention, along with
RSD and a postsurgical right partially paralyzed diaphragm. She noted that appellant had been
diagnosed with fibromyalgia as a result of her chronic myofascial pain. Dr. Carlin stated that
appellant’s conditions continued to be medically present and disabling and that appellant was
permanently disabled from all work. She reiterated appellant’s diagnoses and disability status in
narrative medical reports dated June 27, 2016 and July 17, 2017.
In progress notes dated August 24, 2016, Dr. Carlin noted, as part of appellant’s history of
present illness, that appellant had been diagnosed with fibromyalgia, failed surgery for thoracic
outlet syndrome, and development of RSD of the right upper extremity.
In a report dated July 13, 2018, Dr. Carlin again diagnosed thoracic outlet syndrome with
increased pain following surgical intervention, RSD of the right upper extremity, which began
after the failed surgery, fibromyalgia, secondary to chronic pain, diaphragmatic paralysis causing
some dyspnea on exertion, also a result of the failed surgery , and recurrent major depression
exacerbated by her chronic pain syndromes. She stated that appellant’s conditions continued to be
2

medically present and disabling, noting that appellant’s physical restrictions were extensive and
unlikely to allow her to work effectively in any job. Dr. Carlin reiterated these diagnoses and
opinions in a letter dated August 20, 2019.
In progress notes dated February 10, 2021, Dr. Peter Weis, a Board-certified
rheumatologist, examined appellant to evaluate her for fibromyalgia. He diagnosed left hip
trochanteric bursitis, pain syndrome related to complications of thoracic outlet s urgery with
chronic neck pain, and CRPS of the right upper extremity, refractory to surgery.
In a development letter dated March 24, 2021, OWCP advised appellant that it had received
notification of a possible consequential condition of CRPS of the right upper extremity. It noted
receipt of Dr. Weis’ February 10, 2021 report, but indicated that it required a detailed description
of the newly diagnosed condition. OWCP afforded appellant 30 days to submit additional medical
evidence. No additional evidence was received by OWCP.
By decision dated May 3, 2021, OWCP denied appellant’s request to expand the
acceptance of her claim to include CRPS of the right upper extremity. It again referenced
Dr. Weis’ February 10, 2021 report. By appeal request form dated June 2, 2021, postmarked on
June 3, 2021 and received by OWCP on June 9, 2021, appellant requested an oral hearing before
a representative of OWCP’s Branch of Hearings and Review. By decision dated July 1, 2021,
OWCP denied her request for an oral hearing, as the request was untimely filed. It noted that
appellant’s case had been considered in relation to the issues involved and that the issues could be
equally well addressed by requesting reconsideration and submitting evidence not previously
considered establishing that she sustained a consequential injury due to her accepted injury of
March 3, 2008.
The Board has duly considered the matter and finds that th is case is not in posture for
decision.
In the case of William A. Couch,1 the Board held that when adjudicating a claim OWCP is
obligated to consider all evidence properly submitted by a claimant and received by OWCP before
the final decision is issued. As detailed above, OWCP received a report from Dr. Chisholm dated
May 8, 2010, containing a diagnosis of RSD, also known as CRPS. It also received numerous
reports, letters, and progress notes from Dr. Carlin beginning October 11, 2010 containing
diagnoses of RSD. OWCP, however, did not review this evidence in its May 3, 2021 merit
decision. It, thus, failed to follow its procedures by not considering all of the relevant evidence of
record.2

1

41 ECAB 548 (1990); see also K.B., Docket No. 20-1320 (issued February 8, 2021); R.D., Docket No. 17-1818
(issued April 3, 2018).
2

OWCP’s procedures provide that all evidence submitted should be reviewed and discussed in the decision.
Evidence received following development that lacks probative value also should be acknowledged. Whenever
possible, the evidence should be referenced by author and date. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Initial Denials, Chapter 2.1401.5(b)(2) (November 2012).

3

As Board decisions are final with regard to the subject matter appealed, it is crucial that
OWCP address all relevant evidence received prior to the issuance of its final decision. 3 On
remand shall review and consider all evidence properly submitted by appellant prior to the issuance
of the May 3, 2021 OWCP decision. Following other such further development as deemed
necessary, OWCP shall issue an appropriate decision.
IT IS HEREBY ORDERED THAT the May 3, 2021 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this order of the Board. 4
Issued: March 30, 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

3

E.D., Docket No. 20-0620 (issued November 18, 2020); see also L.B., Docket No. 21-0140 (issued August 25,
2021); C.S., Docket No. 18-1760 (issued November 25, 2019); Yvette N. Davis, 55 ECAB 475 (2004); William A.
Couch, supra note 1.
4

As this case is remanded for further proceedings, the July 1, 2021 denial of appellant’s request for an oral hearing
before an OWCP hearing representative is rendered moot.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tulsa, OK, Employer
__________________________________________

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

Docket No. 12-1942
Issued: February 14, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On September 21, 2012 appellant filed a timely appeal from April 16 and August 27,
2012 merit decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. § 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s claim for wage-loss
compensation from September 23, 2005 through February 23, 2007.
On appeal, appellant contends that the medical evidence establishes that she was unable
to work during the claimed period.
FACTUAL HISTORY
This case has previously been before the Board. In a September 30, 2011 decision, the
Board affirmed OWCP’s October 12, 2010 decision denying appellant’s claim for compensation
1

5 U.S.C. § 8101 et seq.

for the period September 23, 2005 to February 23, 2007.2 OWCP accepted appellant’s March 8,
2007 occupational disease claim for sprains of the cervical and lumbar spines, aggravation of
degenerative cervical and lumbosacral intervertebral disc disease and cervical subluxation. In a
decision dated May 3, 2011, the Board reversed OWCP’s May 25, 2010 decision terminating
appellant’s compensation and schedule award benefits for refusing an offer of suitable
employment, due to an unresolved conflict in medical opinion.3 The facts and the law contained
in the Board’s prior decisions are incorporated herein by reference. Relevant facts are discussed
below.
On August 25, 2011 OWCP referred appellant to Dr. Dennis Foster, a Board-certified
orthopedic surgeon, for a second-opinion examination regarding her work capacity relative to her
lumbar and neck condition. In an October 3, 2011 report, Dr. Foster opined that the overall
degenerative condition of her neck and lower back conditions would prevent her from working
eight hours per day and that she was unable to return to work as a mail processor. He further
opined, however, that her accepted injuries had resolved.
Appellant submitted a November 3, 2011 report from Dr. Gerald Snider, a Boardcertified family practitioner, who noted that appellant was originally injured in September 2005
when she began having marked low back and recurring neck pain. Dr. Snider diagnosed
degenerative disc disease of the lumbar and cervical spine due to cumulative work trauma. He
stated:
“Given the nature of her condition and the fact that it continually deteriorated
and was consistently aggravated at that time, I believe that it is plausible that
she would have suffered from intermittent periods of being totally disabled
from September 28, 2005 to February 23, 2007.”
On December 19, 2011 Dr. Snider agreed with Dr. Foster that appellant could work up to
four hours per day with restrictions. He disagreed, however, that her accepted condition had
resolved.
On January 10, 2012 appellant requested reconsideration of OWCP’s October 12, 2010
decision, which was affirmed by the Board on September 30, 2011.
Appellant submitted a February 28, 2012 report from Dr. M. Stephen Wilson, an
orthopedic surgeon, who provided a history of injury and examination findings. Dr. Wilson
noted decreased range of motion and strength in all planes of the cervical and lumbar spine. He
diagnosed cervical spine sprain/strain; degeneration of cervical spine intervertebral discs; closed
dislocation of cervical spine vertebra; lumbar spine sprain/strain; and degeneration of lumbar
spine lumbosacral intervertebral discs. Dr. Wilson opined that appellant continued to experience
ongoing pain, weakness and instability in her cervical and lumbar spine due to her accepted
injury. He recommended MRI scan studies of the cervical and lumbar spine to further assess her
injury and evaluation by a Board-certified orthopedic specialist. Dr. Wilson agreed with
Dr. Foster’s opinion that appellant was unable to work in her date-of-injury job or any other

2

Docket No. 11-756 (issued September 30, 2011).

3

Docket No. 10-1785 (issued May 3, 2011).

2

gainful employment. The record contains a March 6, 2012 report of a follow-up examination by
Dr. Wilson.
By decision dated April 16, 2012, OWCP denied modification of its October 12, 2010
decision. It found that the medical evidence of record lacked objective findings and rationale to
support appellant’s claim for disability.
On August 1, 2012 appellant again requested reconsideration. She submitted follow-up
reports from Dr. Wilson for the period April 3 through July 10, 2012.
In his June 5, 2012 report, Dr. Wilson provided a history of injury and treatment. He
noted that Dr. Daren Kirk, a chiropractor, had initially evaluated appellant on September 27,
2005, with complaints of chronic neck and low back pain. Although she was placed on lightduty status, she was unable to perform her duties on a routine basis due to the physically
demanding requirements of her job and the repetitive nature of her work-related duties.
Dr. Wilson noted that appellant had been treated by Dr. Snider, who opined that she was unable
to work from September 28, 2005 through February 23, 2007. He stated that, at the time of his
February 28, 2012 evaluation, appellant continued to experience pain in her neck and low back,
which was exacerbated with physical activity involving lifting bending, twisting and sitting or
standing in a static position for prolonged periods. Dr. Snider opined that appellant missed a
substantial amount of work from September 27, 2005 through February 24, 2007 for which she
should be reimbursed. As seen on her work forms, appellant attempted to return to work
multiple times but was unable to sustain and endure the physical demands of her work-related
duties. She was actively receiving treatment during that time, and was placed on light-duty
restrictions which could not be accommodated.
By decision dated August 27, 2012, OWCP denied modification of its prior decisions,
finding that the medical evidence was insufficient to establish that appellant was disabled from
September 23, 2005 through February 23, 2007.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.4 For each period of
disability claimed, the employee has the burden of establishing that he or she was disabled for
work as a result of the accepted employment injury.5 Whether a particular injury causes an
employee to become disabled for work and the duration of that disability are medical issues that
must be proved by a preponderance of probative and reliable medical opinion evidence.6 The
Board will not require OWCP to pay compensation for disability in the absence of medical
evidence directly addressing the specific dates of disability for which compensation is claimed.

4

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986); Joseph M.
Whelan, 20 ECAB 55 (1968).
5

See Amelia S. Jefferson, supra note 4. See also David H. Goss, 32 ECAB 24 (1980).

6

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

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To do so, would essentially allow an employee to self-certify their disability and entitlement to
compensation.7
The medical evidence required to establish a causal relationship, generally, is rationalized
medical opinion evidence.8 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,9 must be one of reasonable medical certainty10 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.11
Under FECA, the term disability means the incapacity, because of an employment injury,
to earn the wages that the employee was receiving at the time of injury.12 Disability is thus not
synonymous with physical impairment, which may or may not result in incapacity to earn wages.
An employee who has a physical impairment causally related to a federal employment injury, but
who nevertheless has the capacity to earn the wages he or she was receiving at the time of injury,
has no disability as that term is used in FECA.13
ANALYSIS
In its September 30, 2011 decision, the Board affirmed OWCP’s October 12, 2010
decision denying appellant’s claim for compensation for the period September 23, 2005 to
February 23, 2007, finding that there was no medical evidence of record establishing that she
was totally disabled from work during the claimed period. As noted, the findings of the Board in
its September 30, 2011 decision remain the law of this case.14 Appellant had the burden to
establish that she was totally disabled from September 23, 2005 to February 23, 2007 due to her
accepted condition.15 The reports of her physicians do not provide a rationalized medical

7

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

8

See Viola Stanko, claiming as widow of Charles Stanko, 56 ECAB 436 (2005); see also Naomi A. Lilly, 10
ECAB 560, 572-73 (1959).
9

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

10

See Morris Scanlon, 11 ECAB 384, 385 (1960).

11

See William E. Enright, 31 ECAB 426, 430 (1980).

12

20 C.F.R. § 10.5(f).

13

Cheryl L. Decavitch, 50 ECAB 397, 401 (1999).

14

The Board has final authority to determine questions of law and fact. Its determinations are binding upon
OWCP and must, of necessity, be so accepted and acted upon by the Director of OWCP. Otherwise, there could be
no finality of decisions; the whole appeals procedure would be nullified and questions would remain moot. Anthony
Greco, 3 ECAB 84, 85 (1949).
15

See Amelia S. Jefferson, supra note 4.

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opinion finding her disabled for work during the claimed period. The Board finds, therefore, that
the medical evidence submitted is insufficient to meet appellant’s burden of proof.16
Medical evidence submitted by appellant subsequent to OWCP’s October 12, 2010
decision included an October 3, 2011 second-opinion report from Dr. Foster, which found that,
although appellant’s cervical and back conditions would prevent her from working eight hours
per day, she was unable to return to work as a mail processor. Dr. Foster also opined, however,
that her accepted injuries had resolved. Dr. Foster’s report, which addressed appellant’s current
ability to work, was not designed to, and did not address the issue of her disability during the
claimed period. Therefore, it is not relevant to the issue at hand and is if limited probative value.
In a November 3, 2011 report, Dr. Snider diagnosed degenerative disc disease of the
lumbar and cervical spine due to cumulative work trauma. He opined that it was plausible that
appellant would have suffered from intermittent periods of being totally disabled from
September 28, 2005 to February 23, 2007, given the nature of her condition and the fact that it
continually deteriorated and was consistently aggravated at that time. Dr. Snider’s speculative
statement regarding appellant’s alleged disability during unidentified periods, without references
to specific dates, supported by probative, reliable medical opinion evidence, is insufficient to
establish appellant’s claim.17 His December 19, 2011 report did not address the claimed period
of disability. Therefore, it is irrelevant to the issue at hand.
Reports from Dr. Wilson are also insufficient to establish appellant’s claim. On
February 28, 2012 Dr. Wilson provided a diagnosis and examination findings and opined that
appellant continued to experience ongoing pain, weakness, and instability in her cervical and
lumbar spine due to her accepted injury. He agreed with Dr. Foster’s opinion that appellant was
unable to work in her date-of-injury job or any other gainful employment. He did not, however,
provide an opinion as to whether appellant was disabled from the period September 23, 2005 to
February 23, 2007. Therefore, the report does not support appellant’s claim.
In his June 5, 2012 report, Dr. Wilson opined that appellant missed a substantial amount
of work from September 27, 2005 through February 24, 2007 for which she should be
reimbursed. Referencing her work forms, he concluded that appellant had attempted to return to
work multiple times but was unable to sustain and endure the physical demands of her workrelated duties. Dr. Wilson stated that she was actively receiving treatment during that time, and
was placed on light-duty restrictions which could not be accommodated. He did not explain,
however, how appellant’s accepted cervical and lumbar conditions were responsible for her
claimed disability. A medical opinion that is not fortified by rationale is of diminished probative
value,18 nor did he identify specific dates on which appellant was allegedly disabled. The Board
will not require OWCP to pay compensation for disability in the absence of medical evidence
directly addressing the specific dates of disability for which compensation is claimed. To do so,
would essentially allow an employee to self-certify their disability and entitlement to

16

Alfredo Rodriguez, 47 ECAB 437 (1996).

17

See notes 6 through 8 and accompanying text.

18

Cecilia M. Corley, 56 ECAB 662 (2005).

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compensation.19 Follow-up reports from Dr. Wilson, which do not address appellant’s ability to
work during the claimed period, are irrelevant and insufficient to establish her claim.
Because appellant has not submitted any probative medical opinion evidence to show that
she was disabled for the period September 23, 2005 through February 23, 2007 as a result of her
accepted employment injury, the Board finds that OWCP properly denied her claim for wageloss compensation.
Appellant may submit new evidence or argument with a written request for
reconsideration to the 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 she was disabled for work and
entitled to wage-loss compensation for the period September 23, 2005 through
February 23, 2007.
ORDER
IT IS HEREBY ORDERED THAT the August 27 and April 16, 2012 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: February 14, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

19

See William A. Archer, supra note 7; Fereidoon Kharabi, 52 ECAB 291 (2001).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.W., Appellant
and
U.S. POSTAL SERVICE, LOGISTICS &
DISTRIBUTION CENTER, Charlotte, NC,
Employer
__________________________________________

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

Docket No. 16-1656
Issued: December 15, 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 August 15, 2016 appellant timely appealed from a May 26, 2016 merit decision and a
July 27, 2016 nonmerit 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.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish an injury in the
performance of duty on June 15, 2015; and (2) whether OWCP properly denied appellant’s
request for reconsideration pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On June 15, 2015 appellant, then a 43-year-old mail handler, filed an occupational disease
claim (Form CA-2) alleging a left shoulder condition which arose on or about June 14, 2015
1

5 U.S.C. § 8101 et seq.

(File No. xxxxxx624). He explained that he had gone home from work and fell asleep, and when
he awoke he felt pain in his shoulder. In a separate June 15, 2015 statement requesting medical
attention, appellant indicated that he aggravated his shoulder “last night when [offloading bulk
mail container]” (BMC).
On July 7, 2015 appellant filed a traumatic injury claim (Form CA-1) and advised OWCP
that he wished to withdraw the June 15, 2015 Form CA-2, noting that he should have filed a
Form CA-1 instead.2 He claimed to have suffered a left shoulder strain at 3:00 a.m. on June 15,
2015 while offloading BMCs of mail.3
In a June 15, 2015 hospital emergency room (ER) report, Dr. Patrick R. Burnside, a
specialist in emergency medicine, advised that appellant had complaints of left shoulder and
neck pain. He noted that he had experienced preexisting bursitis problems with the left shoulder.
Dr. Burnside related that appellant denied any acute injury or trauma, but noted that he was
offloading a truck, which may have triggered the pain. He reported complaints of left superior
shoulder pain radiating into the neck and that the pain began the day before, but had since
worsened.
In a July 2, 2015 report, Alvin Haymond, a physician assistant (PA-C), noted that
appellant began experiencing left shoulder pain on May 15, 2015, due to an injury. Appellant
related that he was pushing a cart that had a bad wheel, causing him to strain his left shoulder
while trying to stabilize the cart. He reported having burning and aching pain, which he rated as
a seven on a scale of one to ten. Mr. Haymond advised that radiographic studies of the left
shoulder were normal. He diagnosed left shoulder impingement syndrome and prescribed a
course of physical therapy. Mr. Haymond advised that appellant should undergo subacromial
injections and possibly a magnetic resonance imaging (MRI) scan in the event conservative
management did not resolve his symptoms.
On August 9, 2015 appellant returned to the hospital ER after having recently aggravated
his left shoulder at work while pulling a cart with mail. He complained of left shoulder pain for
the past two days after injuring his existing shoulder injury from two months ago. Dr. Caleb C.
Gerhart, an emergency medicine specialist, diagnosed rotator cuff syndrome.
In an August 19, 2015 report, Dr. John Temple, Board-certified in orthopedic surgery,
noted that appellant had sustained a work-related injury in May of that year when he was
working for the employing establishment and moving a large box of mail. Appellant reported
that the box was stuck under another box and that as he pulled, he felt a traction injury on his left
side, up into his left trapezial region and around his left scapular region. Dr. Temple advised that
the injury was initially treated as an impingement problem and that his shoulder symptoms had
completely resolved. However, appellant was currently having severe pain around his cervical
spine and thoracic spine, extending to the medial aspect of his scapula. Dr. Temple reported that
appellant underwent physical therapy, but continued to experience pain in his spine. He noted
that x-rays of his left shoulder showed no acute bony abnormality. Dr. Temple advised that
2

On July 27, 2015 OWCP granted appellant’s request to withdraw his occupational disease claim (File No.
xxxxxx624).
3

Appellant’s regular work hours were 11:00 p.m. to 7:50 a.m.

2

appellant’s condition was totally spine-related based on his examination and current symptoms.
He prescribed a course of steroids and changed appellant’s physical therapy program to focus on
a cervical and thoracic spine rehabilitation program.
On August 25, 2015, the employing establishment offered appellant a limited-duty
assignment scanning placards and trucks, which he accepted.
By letter dated October 2, 2015, OWCP advised appellant that it required additional
factual and medical evidence to determine whether he was eligible for FECA benefits. It asked
appellant to submit a comprehensive medical report from his treating physician. OWCP also
indicated that there were several discrepancies in the factual portion of the claim, noting that
appellant provided different dates of injury and different mechanisms of injury to different
medical providers. Additionally, it noted that appellant initially had filed a Form CA-2 with a
June 14, 2015 date of injury, which he had since withdrawn. OWCP asked appellant to address
the noted discrepancies, and to provide statements from individuals who may have witnessed the
alleged June 15, 2015 injury.
On October 15, 2015 appellant signed and returned OWCP’s October 2, 2015
development questionnaire.
In a September 18, 2015 report, Dr. Leo Spector, Board-certified in orthopedic surgery,
advised that appellant had left-sided neck/scapular pain and pain between his shoulder blades,
stemming from a June 15, 2015 work-related injury. He noted that x-rays of the cervical and
thoracic spine taken that day showed spondylosis at C4-5, C5-6, and C6-7 with straightening of
his cervical lordosis. Dr. Spector opined that the tests revealed no obvious acute abnormalities in
the cervical or thoracic spine. He diagnosed left scapular pain and left shoulder pain.
Dr. Spector recommended that appellant undergo a cervical spine and a left shoulder MRI scan.
OWCP also received physical therapy treatment records covering the period July 30
through October 6, 2015.
By decision dated November 4, 2015, OWCP denied the claim, finding that appellant had
failed to meet his burden of proof to establish fact of injury.
In a November 3, 2015 report, received by OWCP on November 16, 2016, Dr. Spector
advised that appellant continued to have pain in his neck and mid-shoulder blade region. He
reported that appellant had undergone a cervical MRI scan on October 29, 2015, which showed
evidence of mild left foraminal stenosis at C5-6 and mild-to-moderate left-sided foraminal
stenosis at C6-7. A left shoulder MRI scan revealed mild subacromial/subdeltoid bursitis and
synovitis, with low-grade partial-thickness tearing of the anterior supraspinatus undersurface and
mild-to-moderate degenerative changes at the acromioclavicular (AC) joint. Dr. Spector
recommended that appellant continue working with restrictions and resume physical therapy. He
further recommended a referral for a left C6 and left C7 selective nerve root block.
On March 31, 2016 appellant requested reconsideration. In a March 31, 2016 letter, he
advised OWCP that one of his doctors listed the wrong date of injury in his report, which he had
since corrected. Appellant also submitted a copy of a “request for correction/amendment of
health information” which he sent to Mr. Haymond, asking him to change the date of injury from
May to June 15, 2015.
3

By decision dated May 26, 2016, OWCP denied modification of the November 4, 2015
decision. It found that the record contained several discrepancies, including providing different
dates of injury and different mechanisms of injury to different medical providers. In addition,
OWCP noted that appellant initially filed an occupational disease claim in File No. xxxxxx624
indicating a date of injury of June 14, 2015, the day before the alleged injury in the instant claim.
It reported that appellant indicated in the previous claim that he “went to sleep when (he) got
home woke up and had pain in (his) shoulder,” and had subsequently requested withdrawal of
that claim.
On July 1, 2016 appellant again requested reconsideration. In a handwritten letter dated
July 1, 2016, he asserted that management required him to perform work that exceeded his
physical restrictions, which resulted in his reinjuring the left shoulder.
Appellant submitted an amended equal employment opportunity (EEO) complaint dated
January 27, 2016, in which he alleged various grievances pertaining to his working outside of his
medical restrictions and his use of leave.
By decision dated July 27, 2016, OWCP denied appellant’s request for reconsideration as
it neither raised substantive legal questions nor included pertinent and relevant new evidence
sufficient to require OWCP to review the merits of its prior decision.
LEGAL PRECEDENT -- ISSUE 1
A claimant seeking benefits under FECA has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.4
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether “fact of injury” has been established. Generally, fact
of injury consists of two components that must be considered in conjunction with one another.
The first component is whether the employee actually experienced the employment incident that
allegedly occurred.5 The second component is whether the employment incident caused a
personal injury.6
OWCP cannot accept fact of injury if there are such inconsistencies in the evidence to
seriously question whether the specific event or incident occurred at the time, place, and in the
4

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

5

Elaine Pendleton, 40 ECAB 1143 (1989).

6

John J. Carlone, 41 ECAB 354 (1989). Causal relationship is a medical question that generally requires
rationalized medical opinion evidence to resolve the issue. Robert G. Morris, 48 ECAB 238 (1996). A physician’s
opinion on whether there is a causal relationship between the diagnosed condition and the implicated employment
factor(s) must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB 345,
352 (1989). Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of medical
certainty, and must be supported by medical rationale, explaining the nature of the relationship between the
diagnosed condition and appellant’s specific employment factor(s). Id.

4

manner alleged.7 An injury need not be confirmed by an eyewitness. However, the employee’s
statements must be consistent with surrounding facts and circumstances and his subsequent course
of action.8 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 cast doubt on an employee’s statements regarding the alleged employment
injury.9
ANALYSIS -- ISSUE 1
The Board finds that appellant has not established that he injured his left shoulder on
June 15, 2015 while offloading BMCs of mail. Dr. Spector indicated in his September 18, 2015
report, that appellant had injured his left shoulder in a June 15, 2015 work-related incident. This
assertion was contradicted, however, by differing accounts that appellant provided to several
other medical personnel. In his July 2, 2015 report, Mr. Haymond advised that appellant began
experiencing left shoulder pain due to an incident which occurred on May 15, 2015. He reported
that appellant strained his left shoulder while trying to stabilize a cart with a bad wheel that he
had been pushing. Dr. Temple indicated in his August 19, 2015 report that appellant was injured
in May 2015 while moving a large box of mail. Appellant informed him that the box was stuck
under another box and that, as he pulled, he felt a traction injury on his left side which radiated
into his left trapezial region and around his left scapular region. Further, OWCP noted that
appellant initially filed an occupational disease claim (File No. xxxxxx624) with a June 14, 2015
date of injury, which he later withdrew. Appellant indicated on the Form CA-2 that he “went to
sleep when I got home woke up and had pain in my shoulder.” Therefore, there are discrepancies
in the accounts of injury appellant provided in the course of his treatments. This contradictory
evidence created an uncertainty as to the time, place, and manner in which appellant allegedly
injured his left shoulder. It is unclear whether the physicians of record had an accurate history of
the June 15, 2015 incident as they related differing accounts of how the left shoulder injury
occurred.
Lastly, appellant failed to provide factual information in response to OWCP’s October 2,
2015 development questionnaire. He also did not provide any corroborating witness statements.
The lack of supporting documentation, coupled with inconsistent accounts of the alleged
incident/injury, casts doubt on appellant’s assertion that he injured his left shoulder on June 15,
2015 offloading BMCs of mail.
Therefore, given the inconsistencies in the evidence regarding how appellant sustained his
injury, the Board finds that there is insufficient evidence to establish fact of injury or to prove that
he sustained an injury in the performance of duty as alleged.10
7

Supra note 5.

8

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

See Constance G. Patterson, 42 ECAB 206 (1989).

10

See Mary Joan Coppolino, 43 ECAB 988 (1992) (where the Board found that discrepancies and inconsistencies in
appellant’s statements describing the injury created serious doubts that the injury was sustained in the performance of
duty).

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.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.11 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.12 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.13 A timely application 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 considered by OWCP.14 When a timely application 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.15
ANALYSIS -- ISSUE 2
In the present case, appellant has not shown that OWCP erroneously applied or
interpreted a specific point of law, nor has he advanced a relevant legal argument not previously
considered by OWCP, or presented new evidence that is relevant and pertinent to the issue on
appeal.
The Board has held that the submission of evidence which does not address the particular
issue in the case does not constitute a basis for reopening the claim.16 The January 27, 2016
amended EEO complaint contains allegations appellant made subsequent to the alleged June 15,
2015 work incident, which pertain to matters of leave and assertions of being required to do
work exceeding his restrictions. The issue in this case is whether the June 15, 2015 incident
occurred as alleged. Appellant’s reconsideration request thus failed to show that OWCP
erroneously applied or interpreted a point of law, nor did it advance a relevant legal argument not
previously considered by OWCP, or present new evidence relevant and pertinent to the issue on
11

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/her] own motion or on application.” 5 U.S.C. § 8128(a).
12

20 C.F.R. § 10.607.

13

Id. § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be “received” by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt
date of the request for reconsideration as indicated by the “received date” in the Integrated Federal Employees’
Compensation System (iFECS). Id. at Chapter 2.1602.4b.
14

20 C.F.R. § 10.606(b)(3).

15

Id. at § 10.608(a), (b).

16

See David J. McDonald, 50 ECAB 185 (1998).

6

appeal. Accordingly, OWCP properly declined to reopen appellant’s case under 5 U.S.C.
§ 8128(a).
CONCLUSION
The Board finds that appellant failed to establish that he sustained an injury in the
performance of duty on June 15, 2015. The Board further finds that OWCP properly denied
appellant’s July 1, 2016 request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the July 27 and May 26, 2016 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: December 15, 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