United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
DEPARTMENT OF THE INTERIOR, BUREAU
OF SAFETY & ENVIRONMENTAL
ENFORCEMENT, Washington, DC, Employer
__________________________________________

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Appearances:
Andrew Douglas, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-1285
Issued: March 4, 2022

Case Submitted on the Record

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

JURISDICTION
On August 25, 2021 appellant, through counsel, filed a timely appeal from an August 13,
2021 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). 2 Pursuant

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

Counsel did not appeal from July 2 and 16, 2021 OWCP merit decisions. He identified only the August 13, 2021
nonmerit decision on the application for review (Form AB-1). As such, the July 2 and 16, 2021 merit decisions are
not properly before the Board on the current appeal. See 20 C.F.R. § 501.3; see also M.M., Docket No. 20-0523
(issued August 25, 2020).

to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case. 4
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 25, 2017 appellant, then a 63-year-old administrative specialist, filed a
traumatic injury claim (Form CA-1) alleging that on that date she injured her left foot when a
19-pound box fell on her foot while in the performance of duty. She stopped work on the date of
injury. OWCP accepted appellant’s claim for left ankle and foot arthropathies and left foot
fracture. It paid wage-loss compensation on the supplemental rolls beginning March 20, 2017 and
placed her on the periodic rolls, effective February 4, 2018.
On March 1, 2018 OWCP referred appellant, along with a statement of accepted facts
(SOAF), a copy of the case record, and a series of questions, to Dr. Robert Smith, a Board-certified
orthopedic surgeon, for second opinion evaluation regarding the status of her accepted January 25,
2017 employment injury. In a March 15, 2018 report, Dr. Smith reviewed her history, including
the SOAF, and conducted a physical examination. In response to OWCP’s questions, he indicated
that appellant’s accepted left foot fracture and left foot and ankle arthropathies had resolved and
that the only remaining medical condition of concern was Complex Regional Pain Syndrome
(CPRS)/Reflex Sympathetic Dystrophy (RSD). Dr. Smith recommended a bone scan for the left
lower extremity.
On March 14, 2018 OWCP also referred appellant to Dr. Ira Kornbluth, a Board-certified
pain management and physical medicine and rehabilitation physician, for a second -opinion
examination. In an April 6, 2018 progress note, Dr. Kornbluth indicated that he had reviewed the
SOAF, and provided examination findings. In response to OWCP’s questions, he reported that
appellant had residuals of her left foot arthropathy condition. Dr. Kornbluth opined that she was
capable of working in “a light physical capacity level.” He completed a work capacity evaluation
form (Form OWCP-5c) which indicated that appellant could work full time with restrictions of
sitting up to 4 hours, walking, standing, bending/stooping, and operating a motor vehicle up to 1
hour, pushing, pulling, and lifting up to 10 pounds, and no squatting, kneeling, or climbing.
In a June 15, 2018 report, Dr. Lee Ann Rhodes, a Board-certified anesthesiologist and pain
medicine physician, recounted appellant’s complaints of left lower extremity pain since a
January 2017 work-related injury. She noted physical examination findings of slightly reduced
3

5 U.S.C. § 8101 et seq.

4

The Board notes that, following the August 13, 2021 decision, appellant submitted additional evidence to
OWCP. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence
in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be
considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from
reviewing this additional evidence for the first time on appeal. Id

2

range of motion and strength on the left lower extremity. Dr. Rhodes assessed RSD and opined
that appellant’s left foot RSD/CPRS was a direct result of her work injury. She also reported that
there were no tests to confirm this diagnosis and that bone density tests were not diagnostic.
On August 31, 2018 the employing establishment offered appellant a full-time, modifiedduty position as an administrative specialist based on Dr. Kornbluth’s work restrictions. The
physical requirements of the position included sitting up to 4 hours, walking, standing, operating
a motorized scooter, twisting, bending, and stooping up to 1 hour, and pushing, pulling, and lifting
up to 10 pounds less than 1 hour.
In an October 18, 2018 supplemental report, Dr. Kornbluth noted appellant’s accepted left
foot arthropathy and left foot fracture conditions. He indicated that she was not disabled from
work and could work at the sedentary physical capacity level.
In a November 30, 2018 letter, Dr. Smith opined that appellant did not have RSD in her
left lower extremity causally related to the accepted January 25, 2017 employment incident. He
explained that physical examination on March 15, 2018 did not show dystrophic signs of any kind
in her left lower extremity.
In a February 1, 2019 addendum note, Dr. Rhodes provided examination findings and
assessed CRPS of the left lower extremity. She reported that appellant met the criteria on skin
color changes, sensory changes in the area of pain, and edema. Dr. Rhodes indicated that
appellant’s pain prohibited appellant from working until August 2019.
In a February 5, 2019 letter, a human resources specialist for the employing establishment,
advised that the August 31, 2018 job offer remained available. He also noted that appellant did
not respond to the August 31, 2018 job offer.
By notice dated February 12, 2019, OWCP advised appellant that it determined that she
refused or failed to report to the offered position as a modified administrative specialist. It
informed her that it had reviewed the offered position and found that it was suitable in accordance
with the medical limitations provided by Dr. Kornbluth in his October 18, 2018 report. Pursuant
to 5 U.S.C. § 8106(c)(2), OWCP afforded appellant 30 days to either accept the position or to
provide adequate reasons for refusal. It informed her that, if she failed to report to work or failed
to demonstrate that the failure was justified, her right to compensation for wage loss or a schedule
award would be terminated.
By notice dated March 19, 2019, OWCP notified appellant that her reasons for refusing the
August 31, 2018 job offer were not valid. It provided her 15 days to accept the position or have
her entitlement to wage-loss compensation benefits terminated. OWCP advised appellant that the
offered position remained available.

3

On April 3, 2019 appellant returned to work, but stopped working after a few hours.5
By decision dated April 10, 2019, OWCP terminated appellant’s wage-loss compensation
and entitlement to a schedule award, effective April 10, 2019.
On April 9, 2020 appellant, through then-counsel, requested reconsideration. She asserted
that new medical documentation from appellant’s treating physician demonstrated that appellant
was justified in rejecting the August 31, 2018 job offer due to work restrictions resulting from the
January 25, 2017 employment injury.
Appellant submitted an April 24, 2019 functional capacity evaluation summary report,
which indicated that she was capable of working full-time modified light-duty work. OWCP also
received additional treatment notes, laboratory test result reports, and physical therapy notes dated
April 24 through November 4, 2019.
By decision dated July 6, 2020, OWCP denied modification of the April 10, 2019 decision.
On April 6, 2021 appellant, through counsel, requested reconsideration. Counsel argued
that OWCP failed to meet its burden of proof to terminate appellant’s wage-loss compensation
because a conflict in medical evidence existed between Dr. Smith, OWCP’s second opinion
examiner, and Dr. Rhodes, appellant’s treating physician, regarding whether appellant had CPRS
of the left lower extremity as a result of the January 25, 2017 employment incident and the need
for further medical treatment. Counsel asserted that this issue should have been resolved before
OWCP terminated appellant’s wage-loss compensation and entitlement to schedule award benefits
based on her refusal of suitable work.
In a June 14, 2019 report, Dr. Rhodes reviewed appellant’s history and recounted
appellant’s complaints of low back pain radiating into the left buttock, thigh, and calf. She
provided examination findings and diagnosed CRPS of the left lower extremity. Dr. Rhodes
reported that appellant was 100 percent disabled and could not return to work in any capacity.
By decision dated July 2, 2021, OWCP denied modification of the July 6, 2020 decision.
On July 23, 2021 appellant, through counsel, requested reconsideration. Counsel argued
that OWCP erroneously interpreted the law regarding a conflict in the medical evidence
requirement for a referee medical examination. He contended that a conflict in the medical opinion
evidence existed between Dr. Smith and Dr. Rhodes regarding whether appellant had CPRS
causally related to the accepted January 25, 2017 employment incident and whether appellant
required further medical treatment in order to return to work. Counsel asserted that OWCP erred
in terminating appellant’s wage-loss compensation benefits before a referee medical examiner
could resolve the conflict in medical evidence.

5

Appellant subsequently filed a notice of recurrence of disability (Form CA-2a) claim alleging that on April 3,
2019 she sustained a recurrence of the accepted January 25, 2017 employment injury. In a May 12, 2020 decision,
OWCP denied the recurrence claim. The recurrence issue is currently not before the Board.

4

By decision dated August 13, 2021, OWCP denied appellant’s request for reconsideration
of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 6
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.7
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 8 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 9 If the request is timely but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsidera tion without
reopening the case for review on the merits. 10
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
With appellant’s July 23, 2021 request for reconsideration, counsel submitted a statement
alleging that OWCP erroneously interpreted the law regarding a conflict in the medical evidence.
He argued that OWCP erred in terminating appellant’s wage-loss compensation benefits before an
impartial medical examiner could resolve the conflict in medical evidence between Dr. Smith and
Dr. Rhodes regarding whether appellant had CPRS causally related to the accepted January 25,
2017 employment incident and whether appellant required further medical treatment in order to
6

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
7

20 C.F.R. § 10.606(b)(3); see P.M., Docket No. 20-0780 (issued November 24, 2020); J.W., Docket No. 19-1795
(issued March 13, 2010); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
8

Id. at § 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 (September 2020). 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.
9

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

10

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

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return to work. Appellant’s reconsideration request does not advance a new legal argument not
previously considered nor show that OWCP erroneously applied or interpreted a specific point of
law. Her argument was substantially similar to that which was previously considered and
discussed in OWCP’s July 2, 2021 decision.11 Consequently, appellant is not entitled to further
review of the merits of her claim based on either the first or second above-noted requirements
under 20 C.F.R. § 10.606(b)(3). 12
Furthermore, the Board finds that appellant has not provided any relevant and pertinent
new evidence not previously considered. 13 Thus, appellant is also not entitled to a review of the
merits of her claim based on the third above-noted requirement under section 10.606(b)(3).14
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review. 15
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

11

See T.S., Docket No. 20-0968 (issued August 17, 2021); see also J.V., Docket No. 19-1554 (issued
October 9, 2020).
20 C.F.R. § 10.606(b)(3)(i) – (ii); P.M., Docket No. 20-0780 (issued November 24, 2020); G.Q., Docket No. 181697 (issued March 21, 2019); Alan G. Williams, 52 ECAB 180 (2000).
12

13

T.H., Docket No. 20-1598 (issued June 2, 2021); F.D., Docket No. 19-0890 (issued November 8, 2019).

14

20 C.F.R. § 10.606(b)(3)(iii); J.V., Docket No. 19-1554 (issued October 9, 2020); T.M., Docket No. 19-0535
(issued July 25, 2019).
15

S.M., Docket No. 21-0392 (issued August 12, 2021); D.G., Docket No. 19-1348 (issued December 2, 2019); A.R.,
Docket No. 16-1416 (issued April 10, 2017); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006)
(when a request for reconsideration does not meet at least one of the three requirements enumerated under section
10.606(b), OWCP will deny the request for reconsideration without reopening the case for a review on the merits).

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ORDER
IT IS HEREBY ORDERED THAT the August 13, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 4, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


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

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

Docket No. 15-629
Issued: June 1, 2015

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 January 27, 2015 appellant filed a timely application for review from a December 2,
2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). Because
more than 180 days elapsed from June 13, 2014, the date of the most recent merit decision, to the
filing of this appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of appellant’s
claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for further merit review
of her claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 3, 2013 appellant, then a 50-year-old medical clerk, filed a traumatic injury claim
(Form CA-1) alleging that on October 26, 2012 she injured her left ankle and foot as a result of
slipping on black ice on her way into work from a parking lot. A supervisor checked a box
indicating that appellant was not injured within the performance of duty, as the incident occurred
one hour before her shift started. The supervisor also noted that appellant had not reported the
injury within 30 days.
By letter dated July 16, 2013, OWCP informed appellant that the evidence of record was
insufficient to support her claim. It asked that she respond to a questionnaire regarding the
factual elements of her claim, and noted that it had not received any medical evidence. OWCP
afforded appellant 30 days to submit additional evidence. Appellant did not respond.
In a report dated January 8, 2013, Dr. Alvin T. Ngan, a podiatrist, noted, “[Appellant] has
a somewhat vague h[istory] of possibly injuring her foot one week prior to onset of symptoms
when she inverted her foot at work [...] I believe she is developing some posterior medial ankle
tend[i]nitis which could include the PT or FHL tendon. This is unlikely related to her injury the
week before.”
In a report dated July 26, 2013, Dr. Ngan noted, “[Appellant] returns today to follow up
left ankle and foot L&I injury in January 2013 when she slipped on ice.”
On August 15, 2013 OWCP denied appellant’s claim for compensation. It found that she
had not established that the event of October 26, 2012 had occurred as described. OWCP noted
that appellant delayed filing her claim and did not provide any response or medical evidence
supporting that her injury occurred as reported. It further noted that she had not provided
medical evidence containing a diagnosis in connection with the event of October 26, 2012.
OWCP stated, “In fact, the July 23, 2013 medical report discusses an injury of January 2013.”
In a letter received by OWCP on August 22, 2013, appellant responded to OWCP’s
inquiries. She noted that she had delayed filing her claim because she thought she had only
twisted her ankle and foot, so she treated it with ice for several weeks. Appellant stated that she
had not sustained any injury between the incident of October 26, 2012 and the date she reported
that incident to a supervisor. She noted that the injury occurred when she was dropping off a box
containing booklets, pens, pencils, highlights, and handouts weighing from 10 to 20 pounds.
Appellant stepped off a curb with her left foot, sliding sideways, and fell to the ground. She
noted that she arrived at work 45 minutes to an hour early because her physician would like for
her to lose weight.
On August 23, 2013 appellant requested an oral hearing before an OWCP hearing
representative. The hearing took place on March 27, 2014. At the hearing, appellant stated that
she liked to get to work early because there was no parking, and because her physician wanted
her to lose weight. She stated that she walked around the area for exercise every morning.
Appellant noted that at the time of the incident on October 26, 2012 she was headed to her
workstation from the parking lot. She stated that she waited eight months to file a claim because
she thought her injury was a mere sprain, but later came to the conclusion that she should visit a

2

physician. Appellant explained that Dr. Ngan was confused as to the date of her alleged injury,
and that is why his report referred to a date in January 2013 rather than October 2012. She noted
that she had surgery on her foot and that afterward, she was absent from work for five months
and had exhausted all of her leave. Appellant stated that she had a report from Dr. Ngan
containing a clear opinion as to how her condition was related to the October 26, 2012 workrelated incident, and that she would submit it to the case file. The hearing representative allowed
an additional 30 days to submit evidence.
In a report dated October 29, 2013, Dr. Ngan stated that appellant was three weeks’ status
postsurgery for an on-the-job injury. He noted that he had performed a left gastrocnemius
recession, a left medializing calcaneal osteotomy, a left Evan’s osteotomy with a tricortical iliac
bone crest graft, a left first metatarsocuneiform fusion; a left flexor digitorum longus to navicular
transfer with posterior tibial tenodesis, and a spring ligament repair. Dr. Ngan stated, “If not
stated previously, I do believe her injury is job related, and my impression is her initial
slipping/twisting injury caused the tendon to tear and her foot deformity to progress to the point
of requiring surgical intervention.” Appellant also submitted diagnostic reports and progress
reports from Dr. Ngan.
By decision dated June 13, 2014, the hearing representative affirmed OWCP’s decision
of August 15, 2013. He found that appellant had failed to provide a convincing explanation for
the significant delay between the dates of injury, the filing of the claim, and the first date she
sought medical treatment, and had not provided factual evidence to corroborate that the work
incident occurred. The hearing representative noted that “The medical evidence in the file
reports a different history of injury and date of injury than that reported by the claimant. The
attending physician indicated in his initial report of January 8, 2013 that the claimant did not
have any symptoms until one week after the work incident, and that her condition was not due to
the work incident. He also reported the date of injury as January 2013 in several reports. These
inconsistencies in the medical evidence cast serious doubt upon the validity of the claim, and
remain unexplained at this date.”
By letter dated September 24, 2014, appellant requested reconsideration of her claim.
She noted that she was submitting a witness statement from a coworker who did not initially
want to submit a statement due to fear of retaliation.2 Appellant further noted that she had
previously assumed she was at work performing an “Outreach” on October 23, 2012, but that in
fact she was there early for moving, and that she had previously forgotten this fact.
Appellant submitted a timesheet noting that she was scheduled for “moving offices” on
October 23, 2012.
In a letter dated September 12, 2014, Dr. Nkeiruka C. Duze, a Board-certified internist,
stated that appellant was under his care, and that she saw a colleague, Dr. Sarah K. Toner, a
Board-certified internist, on November 28, 2012. Dr. Toner’s report stated, “[A]nkle/foot pain -gotten bad in the past couple of weeks, one month ago patient was moving boxes and she hit her
ankle/foot against a box.” She assessed appellant with left foot pain of “unknown etiology.”
2

This witness statement does not appear in the case record.

3

By decision dated December 2, 2014, OWCP denied appellant’s request for
reconsideration of her claim and did not review the merits of her case. It found that the
timesheet and report from Dr. Toner dated November 28, 2012 were not relevant to the issue
concerning its prior decision and raised no substantive legal questions.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a), OWCP’s
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.3 Section 10.608(b) of OWCP’s regulations
provide that when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(2), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.4
The Board has found that evidence that repeats or duplicates evidence already in the case
record has no evidentiary value.5 The Board also has held that the submission of evidence which
does not address the particular issue involved does not constitute a basis for reopening a case.6
While the reopening of a case may be predicated solely on a legal premise not previously
considered, such reopening is not required where the legal contention does not have a reasonable
color of validity.7
ANALYSIS
OWCP issued a June 13, 2014 decision denying appellant’s claim for traumatic injury, as
the evidence of record failed to establish a factual basis for her claim. On September 24, 2014
appellant requested reconsideration of this decision.
As noted above, the Board does not have jurisdiction over the merits of the June 13, 2014
decision. The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of her claim.
In her September 24, 2014 request for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law, or advance a new and relevant legal
argument not previously considered. Thus, she is not entitled to a review of the merits of her
claim based on the first and second above-noted requirements under section 10.606(b)(2).

3

20 C.F.R. § 10.606(b)(2); D.K., 59 ECAB 141, 146 (2007).

4

Id. at § 10.608(b); see K.H., 59 ECAB 495, 499 (2008).

5

See Daniel Deparini, 44 ECAB 657, 659 (1993).

6

P.C., 58 ECAB 405, 412 (2007); Ronald A. Eldridge, 53 ECAB 218, 222 (2001); Alan G. Williams, 52 ECAB
180, 187 (2000).
7

Vincent Holmes, 53 ECAB 468, 472 (2002); Robert P. Mitchell, 52 ECAB 116, 119 (2000).

4

The underlying issue in this case is whether appellant has submitted sufficient factual
evidence to substantiate that the incident of October 26, 2012 occurred as alleged. A claimant
may be entitled to a merit review by submitting new and relevant evidence, but appellant did not
submit any new and relevant evidence in this case. With her request, appellant submitted a
statement, noting that the incident of October 26, 2012 had occurred while moving offices, rather
than while performing “Outreach” as previously described, and a timesheet confirming that she
was scheduled to move offices on that date. While these pieces of evidence concern the date of
the incident, they are irrelevant to the issue of whether the incident itself occurred as alleged.
They do not address the actual manner in which her alleged injury was sustained. As to the
report of Dr. Toner, it describes yet another mechanism of injury that is inconsistent with
appellant’s own statement on the matter. Dr. Toner stated that she injured her ankle and foot
when she hit it against a box. Appellant had previously described her mechanism of injury as
slipping on black ice.
While these documents were not previously of record, they are irrelevant to the grounds
upon which OWCP denied appellant’s claim. Appellant’s claim was denied because she had not
submitted sufficient evidence to substantiate that the incident of October 26, 2012 occurred as
described. The evidence submitted to the record on reconsideration does not substantiate the
factual elements of appellant’s claim. Rather it fails to describe exactly how the injury occurred,
and raises further inconsistencies with appellant’s earlier description of the alleged injury. As
such, these documents were not relevant and insufficient to require a merit review of her claim.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
submit relevant and pertinent evidence not previously considered by OWCP. Pursuant to 20
C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for review of the merits
of her claim pursuant to 5 U.S.C. § 8128(a).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 2, 2014 is affirmed.
Issued: June 1, 2015
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
__________________________________________
C.M., Appellant
and
DEPARTMENT OF VETERAN AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
CINCINNATI VA MEDICAL CENTER,
Cincinnati, OH, Employer
__________________________________________

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

Docket No. 21-1245
Issued: March 11, 2022

Case Submitted on the Record

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

JURISDICTION
On August 17, 2021 appellant, through counsel, filed a timely appeal from a June 21, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a medical condition
causally related to the accepted December 4, 2018 employment incident.
FACTUAL HISTORY
On November 3, 2020 appellant, then a 41-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging that on December 4, 2018 she injured her right arm when she grabbed a
patient who attempted to leave the premises while in the performance of duty. She explained that
the patient became agitated, started to swing his cane at the staff, and attempted to leave the
hospital. Appellant asserted that she grabbed him at the same time the police attempted to subdue
him by placing him on the bed which jerked her arm to the left and pulled her down with the patient
onto the bed. She noted that she initially experienced immediate pain to her wrist and arm, which
worsened with certain activities and continued days later. Appellant stopped work on
December 7, 2018.
In a November 18, 2020 development letter, OWCP notified appellant of the deficiencies
of her claim. It advised her of the type of factual and medical evidence needed and provided a
factual questionnaire for her completion. OWCP afforded appellant 30 days to respond. No
further evidence was submitted.
By decision dated December 21, 2020, OWCP denied appellant’s traumatic injury claim,
finding that the evidence of record was insufficient to establish a medical diagnosis in connection
with the accepted December 4, 2018 employment incident. It concluded, therefore, that the
requirements had not been met to establish an injury as defined by FECA.
In a December 4, 2018 report, Dr. Jason T. Hildebrant, an internist, related that appellant
was involved in a work-related altercation with a patient who was trying to leave the hospital. He
summarized her account that the patient became agitated and aggressive, and that she tried to
redirect him back to his bed while a coworker relieved him of his cane. Dr. Hildebrant noted that
appellant was unsure whether she injured her arm from being hit by the cane or by the patient.
Appellant reported having aching pain in her right forearm. Dr. Hildebrant conducted a physical
examination and diagnosed right arm pain.
A December 15, 2018 x-ray of the right wrist revealed no acute osseous injury. A right
hand x-ray of even date demonstrated no fracture or dislocation. A right forearm x-ray of even
date revealed mild degenerative changes.
In an August 31, 2020 medical report, Dr. Glen A. McClung, a Board-certified orthopedic
surgeon, noted that appellant presented with right shoulder pain after she fell on her right shoulder.
He conducted a physical examination and diagnosed a possible right shoulder partial rotator cuff
tear.
In a November 18, 2020 medical report, Dr. McClung reported that appellant sustained a
work-related injury of the right shoulder “back in December” when a patient grabbed and pulled
her arm. He noted that she reinjured her right shoulder “in April.” Dr. McClung conducted a

2

physical examination and diagnosed probable right shoulder distal clavicle osteolysis, right
shoulder impingement, and a possible partial rotator cuff tear.
A November 30, 2020 magnetic resonance imaging (MRI) scan of the right shoulder
revealed moderate-to-severe supraspinatus and mild infraspinatus tendinosis without tear as well
as mild acromioclavicular (AC) joint osteoarthritis with acromial morphology.
In a December 2, 2020 medical report, Dr. McClung conducted a physical examination and
diagnosed right shoulder impingement, AC arthrosis, and rotator cuff tendinitis.
In a December 10, 2020 form report, Dr. McClung noted that appellant’s condition began
in April 2020 and diagnosed right shoulder pain, rotator cuff tendonitis, impingement, and AC
arthrosis. He advised that she was scheduled for right shoulder surgery on December 28, 2020.
In a December 28, 2020 operative report, Dr. McClung noted that appellant underwent
surgery, including right shoulder arthroscopies with subacrominal decompression, distal clavicle
excision, and extensive debridement. He diagnosed right shoulder impingement, AC arthrosis,
bursitis, and synovitis.
In a letter dated January 12, 2021, appellant, through counsel, requested a telephonic
hearing before a representative of OWCP’s Branch of Hearings and Review. The hearing was
held on April 19, 2021.
By decision dated June 21, 2021, the hearing representative affirmed, as modified, the
December 21, 2020 decision, finding that the medical evidence submitted was sufficient to
establish a diagnosed medical condition. The claim remained denied, however, as the medical
evidence of record was insufficient to establish causal relationship between appellant’s diagnosed
conditions and the accepted December 4, 2018 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an emp loyee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 4 that an injury was sustained in the performance of duty, as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the

3

Supra note 1.

4

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).

3

employment injury. 5 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. 6
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. The first component is that the
employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time and place, and in the manner alleged. The second component is
whether the employment incident caused a personal injury and can be established only by medical
evidence.7
The medical evidence required to establish a causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 8 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specif ic employment factors
identified by the employee. 9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted December 4, 2018 employment incident.
In his November 18 2020 medical report, Dr. McClung noted that appellant sustained a
work-related injury of the right shoulder “back in December” when a patient grabbed and pulled
her arm. He also indicated that she reinjured her right shoulder “in April.” Dr. McClung diagnosed
right shoulder distal clavicle osteolysis, right shoulder impingement, and a possible partial rotator
cuff tear. While his report is generally supportive of causal relationship, he did not offer any
explanation or medical rationale as to how appellant could have developed the diagnosed right
shoulder conditions due to the accepted December 4, 2018 employment incident. The Board has
held that a report is of limited probative value regarding causal relationship if it does not contain

5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
9

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).

4

medical rationale explaining how a given medical condition is related to the accepted employment
incident.10 For these reasons, this report is insufficient to establish the claim.
In his reports dated December 2, 10, and 28, 2020, Dr. McClung provided multiple
diagnoses related to appellant’s right shoulder and arm. However, he did not provide an opinion
on causal relationship. The Board has held that medical evidence that does not offer an opinion
regarding the cause of an employee’s condition is of no probative value. 11 Thus, these reports are
also insufficient to establish appellant’s claim.
In an August 31, 2020 medical report, Dr. McClung noted that appellant fell on her right
shoulder and diagnosed a possible right shoulder partial rotator cuff tear. However, he failed to
provide a firm diagnosis in connection with the accepted December 4, 2018 employment incident.
The Board has long held that a medical report lacking a firm diagnosis and a rationalized medical
opinion regarding causal relationship is of no probative value.12 Thus, this report is insufficient to
establish appellant’s claim.
Dr. Hildebrant, in his December 4, 2018 medical report, indicated that appellant was
involved in a work-related altercation with a patient who was trying to leave the hospital while
threatening staff members with his cane. He diagnosed right arm pain. However, the Board has
held that pain is a description of a symptom, not a clear diagnosis of a medical condition. 13 A
medical report lacking a firm diagnosis is of no probative value.14 This report is, therefore,
insufficient to establish a diagnosed medical condition causally related to the accepted
employment incident.
The remaining medical evidence includes radiographic studies. The Board has held,
however, that diagnostic studies, standing alone, lack probative value and are, therefore,
insufficient to establish the claim. 15

10
B.H., Docket No. 20-077 (issued October 21, 2020); see S.Y., Docket No. 20-0470 (issued July 15, 2020); T.J.,
Docket No. 19-1339 (issued March 4, 2020); Y.D., Docket No. 16-1896 (issued February 10, 2017) (finding that a
report is of limited probative value regarding causal relationship if it does not contain medical rationale describing the
relation between work factors and a diagnosed condition/disability).
11
L.T., Docket No. 20-0582 (issued November 15, 2021); A.C., Docket No. 21-0087 (issued November 9, 2021);
D.B., Docket No. 19-0514 (issued January 27, 2020); L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,
Docket No. 17-1549 (issued July 6, 2018).
12

W.G., Docket No. 20-0439 (issued July 13, 2020); R.L., Docket No. 20-0284 (issued June 30, 2020); P.C., Docket
No. 18-0167 (issued May 7, 2019).
13

C.S., Docket No. 20-1354 (issued January 29, 2021); D.R., Docket No. 18-1408 (issued March 1, 2019); D.A.,
Docket No. 18-0783 (issued November 8, 2018).
14

C.S., id.; J.P., Docket No. 20-0381 (issued July 28, 2020); R.L., Docket No. 20-0284 (issued June 30, 2020).

15

J.E., Docket No. 21-0956 (issued November 23, 2021); J.K., Docket No. 20-0591 (issued August 12, 2020); J.P.,
Docket No. 19-0129 (issued December 13, 2019).

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As the medical evidence of record is insufficient to establish that appellant’s diagnosed
right arm condition is causally related to the accepted December 4, 2018 employment incident, the
Board finds that appellant has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted December 4, 2018 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the June 21, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 11, 2022
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.C., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
WEAPONS STATION, Charleston, SC,
Employer
__________________________________________

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Appearances:
David G. Jennings, Esq., for the appellant
Office of the Solicitor, for the Director

Docket No. 12-1783
Issued: January 29, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge
JURISDICTION
On August 23, 2012 appellant, through his attorney, filed a timely appeal from an
August 1, 2012 decision of the Office of Workers’ Compensation Programs (OWCP) denying his
occupational disease claim on the grounds it was not timely filed. 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 determined that appellant’s claim for occupational
hearing loss is barred by the applicable time limitation provisions of FECA.
On appeal, counsel asserts that employing establishment audiograms performed as part of
a hearing conservation program provided timely actual notice of a ratable hearing loss.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 18, 2012 appellant, then an 80-year-old former ordnance equipment repairman,
filed an occupational disease claim (Form CA-2) alleging that he sustained a bilateral hearing
loss due to hazardous noise exposure at work on or before January 1, 1975.2 He first became
aware of his hearing loss and its relationship to his federal employment on January 1, 1975.
Appellant delayed filing a claim for more than 30 days after January 1, 1975 and only recently
learned that he could file one. He retired from federal employment on July 1, 1989.
In a May 9, 2012 letter, appellant noted working in the employing establishment’s
ordnance division from August 1960 until his retirement on July 1, 1989. Throughout his
employment, he was exposed to hazardous noise from overhead cranes, air wrenches, air
compressors, forklifts and hammering. Appellant wore earplugs and earmuffs provided by the
employing establishment.
The employing establishment provided position descriptions, medical surveillance
questionnaires and a June 20, 2012 memorandum documenting that appellant was exposed to
hazardous noise above 85 decibels (dBA) at work from 1960 through July 1, 1989. In a June 11,
2012 letter, the employing establishment noted that he participated in a hearing conservation
program monitored through annual audiograms. Appellant’s final audiogram was obtained on
May 11, 1989.
The employing establishment submitted appellant’s baseline audiogram obtained on
August 8, 1960. Audiometric testing at the frequency levels of 500, 1,000, 2,000 and 3,000
cycles per second (cps) revealed decibel losses of 15, 15, 15 and 20 decibels in both ears,
indicating normal hearing. A hearing conservation audiogram performed on May 14, 1974
revealed decibel losses of 20, 20, 55 and 70 decibels on the left and 20, 30, 60 and 65 decibels on
the right, demonstrating a ratable binaural hearing loss.3 Annual hearing conservation
audiograms from May 18, 1983 through May 11, 1989 demonstrated a worsening binaural
hearing loss.4 On July 9, 1984 Dr. John R. Wechsler, an employing establishment physician,
diagnosed a severe hearing loss despite his use of earplugs and earmuffs.
In a June 25, 2012 letter, counsel asserted that annual employing establishment
audiograms performed as part of a hearing conservation program established actual, timely
notice that appellant had a work-related hearing loss. He submitted a March 16, 2012 audiogram
from a private audiology clinic which showed a severe bilateral hearing loss, with decibel losses
on the left at 85, 80, 80 and 80 decibels and 45, 60, 70 and 80 decibels on the right at the
frequencies of 500, 1,000, 2,000 and 3,000 cps.
2

In a June 21, 2012 letter, OWCP advised appellant of the type of additional medical and factual evidence needed
to establish his claim. It afforded appellant 30 days to submit such evidence.
3

Under FECA, hearing loss impairments are determined by the average of the hearing levels at 500, 1,000, 2,000
and 3,000 cps. See American Medical Association, Guides to the Evaluation of Permanent Impairment (6th ed.,
2008) at section 11.2d, page 250. If the average is less than 25, the hearing impairment is not ratable.
4

In a June 20, 2012 report, an OWCP medical adviser noted that there was no significant threshold shift in
employing establishment audiograms from May 14, 1974 to May 11, 1989.

2

By decision dated August 1, 2012, OWCP denied appellant’s claim on the grounds that it
was not timely filed under the three-year time limitation at section 8122 of FECA. It found that
appellant did not file his claim until June 14, 2012, more than three years after he first noticed a
hearing loss on January 1, 1975. OWCP further found that the evidence did not establish that the
employing establishment had actual notice of the hearing loss within 30 days of the date of
injury.
LEGAL PRECEDENT
Under section 8122 of FECA,5 as amended in 1974, a claimant has three years to file a
claim for compensation.6 In a case of occupational disease, the Board has held that the time for
filing a claim begins to run when the employee first becomes aware or reasonably should have
been aware, of a possible relationship between his condition and his employment. When an
employee becomes aware or reasonably should have been aware that he has a condition which
has been adversely affected by factors of his federal employment, such awareness is competent
to start the limitation period even though he does not know the nature of the impairment or
whether the ultimate result of such affect would be temporary or permanent.7 Where the
employee continues in the same employment after such awareness, the time limitation begins to
run on the date of his last exposure to the implicated factors.8
Section 8122(b) provides that, in latent disability cases, the time limitation does not begin
to run until the claimant is aware or by the exercise of reasonable diligence, should have been
aware, of the causal relationship between his employment and the compensable disability.9
Even if the claim is not filed within the three-year period, it may be regarded as timely
under section 8122(a)(1) if appellant’s immediate supervisor had actual knowledge of his alleged
employment-related injury within 30 days such that the immediate superior was put reasonably
on notice of an on-the-job injury or death.10 In interpreting section 8122(a)(1) of FECA,
OWCP’s procedure manual states that, if the employing establishment provides regular physical
examinations, which might have detected signs of illness, such as hearing tests, it should be
asked whether the results of such tests were positive for illness and whether the employee was
notified of the results.11 The Board has held that a program of annual audiometric examinations
conducted by an employing establishment in conjunction with an employee testing program for
5

5 U.S.C. § 8122.

6

Duet Brinson, 52 ECAB 168 (2000); William F. Dorson, 47 ECAB 253, 257 (1995); see 20 C.F.R. § 10.101(b).

7

Larry E. Young, 52 ECAB 264 (2001); Duet Brinson, id.

8

See Larry E. Young, id.

9

5 U.S.C. § 8122(b); Bennie L. McDonald, 49 ECAB 509, 514 (1998).

10

William C. Oakley, 56 ECAB 519 (2005); Duet Brinson, supra note 4; Delmont L. Thompson, 51 ECAB
155 (1999).
11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.6(c) (March 1993); L.C., 57 ECAB
740 (2006); Ralph L. Dill, 57 ECAB 248 (2005).

3

hazardous noise exposure is sufficient to constructively establish actual knowledge of a hearing
loss, such as to put the immediate supervisor on notice of an on-the-job injury.12 A hearing loss
identified on such a test would constitute actual knowledge on the part of the agency of a
possible work injury.13
ANALYSIS
Appellant stated on his claim form that he was aware of a relationship between the
claimed condition and his federal employment as of January 1, 1975. Under section 8122(b), the
time limitation begins to run when appellant became aware of causal relationship, or, if he
continued to be exposed to noise after awareness, the date he is no longer exposed to noise.
Appellant retired from federal employment on July 1, 1989. Therefore, the three-year time
limitation began to run on July 1, 1989. As appellant did not file his occupational disease claim
until May 7, 2012, the Board finds that it was not filed within the three-year time period under
section 8122(b).
As set forth above, appellant’s claim would still be regarded as timely under section
8122(a)(1) of FECA if his immediate supervisor, another employing establishment official or
employing establishment physician or dispensary had actual knowledge of the injury within 30
days of his last exposure to noise, i.e., within 30 days of July 1, 1989.14 The Board finds that the
employing establishment hearing conservation audiograms, obtained on May 14, 1974 and
annually from May 18, 1983 to May 11, 1989, are sufficient to establish actual knowledge of the
claimed hearing loss within 30 days of July 1, 1989. Each of the audiograms from May 14, 1974
onward demonstrated a ratable hearing loss. Additionally, in a July 9, 1984 report,
Dr. Wechsler, an employing establishment physician, diagnosed a severe hearing loss based on a
hearing conservation program audiogram. The ratable bilateral hearing loss15 evident on the
hearing conservation audiograms and associated report constitutes actual knowledge by the
employing establishment of a possible work-related hearing loss within 30 days of
July 1, 1989.16 Therefore, appellant’s hearing loss claim is considered timely.
The case must, therefore, be remanded for OWCP to address the merits of the claim.
After any further development as deemed necessary, it should issue an appropriate decision.
On appeal, counsel asserts that employing establishment audiograms performed as part of
a hearing conservation program provided timely actual notice of a ratable hearing loss. As stated

12

James W. Beavers, 57 ECAB 254 (2005); Ralph L. Dill, id.

13

See 5 U.S.C. § 8122(a)(1); Federal (FECA) Procedure Manual, supra note 11 at Chapter 2.801(3); Ralph L.
Dill, supra note 11; Larry E. Young, supra note 7; Roger D. Dicus, 56 ECAB 290 (2005).
14

See 5 U.S.C. § 8122(a)(1); Federal (FECA) Procedure Manual, supra note 11 at Chapter 2.801(3); Ralph L.
Dill, supra note 11; Larry E. Young, supra note 7.
15

See A.M.A., Guides 250.

16

Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.8016(c) (March 1993); Ralph L. Dill,
supra note 11; Larry E. Young, supra note 7; Roger D. Dicus, supra note 13.

4

above, appellant’s claim is timely. The case will be remanded to OWCP for consideration of the
merits of the claim.
CONCLUSION
The Board finds that appellant’s claim for hearing loss was timely filed. The employing
establishment had actual knowledge of a possible work-related hearing loss within 30 days of
July 1, 1989, the date appellant was last exposed to hazardous noise at work.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 1, 2012 is set aside and the case remanded for further
development in accordance with this decision.
Issued: January 29, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
DEPARTMENT OF VETERAN AFFAIRS,
TENNESSEE VALLEY HEALTHCARE
SYSTEMS, Murfreesboro, TN, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0722
Issued: July 23, 2021

Case Submitted on the Record

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

On April 13, 2021 appellant filed a timely appeal from a March 19, 2021 merit decision of
the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 21-0722.
In a letter dated April 22, 2021 appellant requested that the appeal be dismissed.
The Board has duly considered the matter and concludes that appellant’s request for the
dismissal of the appeal should be granted. Accordingly,

IT IS HEREBY ORDERED THAT appellant’s request for the dismissal of the appeal is
granted. The appeal docketed as No. 21-0722 is dismissed.
Issued: July 23, 2021
Washington, DC

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

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

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

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Houston, TX, Employer
__________________________________________

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

Docket No. 15-1367
Issued: October 6, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 2, 2015 appellant, through counsel, filed a timely appeal from a February 20,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).1 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 OWCP properly suspended appellant’s compensation benefits
effective February 25, 2014 due to her failure to attend a scheduled medical examination.

1

The February 20, 2015 merit decision appears to be a reissuance of a January 22, 2015 decision by the Branch
of Hearings and Review. It is unclear from the record why the decision was reissued as the decisions appear to be
identical.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 9, 2011 appellant, then a 48-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on May 7, 2011 she sustained heatstroke while in the performance of
her federal employment duties. By decision dated June 28, 2011, OWCP accepted the claim for
heatstroke.3 Appellant stopped work and received medical and wage-loss compensation benefits
and was placed on the periodic rolls.
By letter dated December 16, 2013, OWCP notified appellant and counsel that a referee
examination was needed in order to address the conflict in medical evidence between her
attending physician and the second opinion physician as to whether and under what conditions
she could return to work. Appellant was notified that an appointment had been scheduled for
January 24, 2014 at 3:15 p.m. with Dr. Gabriel Habib, Board-certified in internal medicine. She
was further advised that, if she refused to attend or obstructed the examination, her compensation
could be suspended under 5 U.S.C. § 8123(d).4
In another letter dated January 29, 2014, OWCP notified appellant and counsel that the
appointment had been rescheduled for February 7, 2014 at 3:20 p.m. with Dr. Habib. Appellant
was again advised that, if she refused to attend or obstructed the examination, her compensation
could be suspended under 5 U.S.C. § 8123(d).
In a February 7, 2014 e-mail correspondence, Dr. Habib’s office informed OWCP that
appellant had not attended her scheduled appointment. His office called to ask her if she was
attending the appointment and appellant advised that she was off work, but would not be coming
in as she had other things to do.
On February 10, 2014 OWCP proposed to suspend appellant’s compensation benefits
pursuant to section 8123(d) of FECA for failure to attend the February 7, 2014 examination with
Dr. Habib. Appellant was advised to provide a written explanation of her reasons, with
substantive corroborating evidence, within 14 days for failing to attend the scheduled
examination.
By letter dated February 18, 2014, received on February 24, 2014, appellant reported that
her initial January 24, 2014 visit with Dr. Habib had to be rescheduled because she was ill with
bronchitis. The appointment was rescheduled for February 7, 2014, the week of inspections
3

The Board notes that on April 16, 2014 OWCP proposed to rescind acceptance of appellant’s claim for
heatstroke as a result of the May 7, 2011 employment injury. It found that the weight of the medical evidence rested
with Dr. Habib, serving as the referee physician. By decision dated May 20, 2014, OWCP finalized its proposed
rescission and rescinded the acceptance of appellant’s claim for heatstroke causally related to the May 7, 2011
employment injury. Appellant, through counsel, requested a hearing before the Branch of Hearings and Review
regarding the May 20, 2014 decision on May 27, 2014. In a letter to the Branch of Hearings and Review dated
May 20, 2015 appellant’s counsel noted that his May 27, 2014 hearing request had been acknowledged, but that no
hearing date had yet been set. The May 20, 2014 decision is not before the Board on appeal and the issue of
rescission of acceptance of the claim is currently in an interlocutory posture. The Board has jurisdiction to consider
and decide appeals from final decisions; there shall be no appeal with respect to any interlocutory matter disposed of
during the pendency of the case). 20 C.F.R. § 501.2(c)(3).
4

The Board notes that appellant requested the January 24, 2014 appointment be rescheduled due to illness.

2

scheduled for all postal routes by employing establishment. Appellant reported that the
employing establishment informed all city carriers not to miss any workdays due to the
importance of inspection coverage for each route. Moreover, she stated that she did not have
enough notice to reschedule her walking route inspection. Appellant apologized stating that she
would attend the next scheduled appointment.
By decision dated February 25, 2014, OWCP finalized its proposed suspension, effective
that same date.
On March 5, 2014 appellant, through counsel, requested a telephone hearing before an
OWCP hearing representative.
In a March 7, 2014 letter, counsel argued that appellant wrote a letter explaining why she
missed her examination and agreed to attend the rescheduled examination. He requested that
OWCP acknowledge her letter and advise them of a new examination date.
By letter dated March 13, 2014, OWCP notified appellant and counsel that a referee
examination had been rescheduled for March 28, 2014 at 3:30 p.m. with Dr. Habib. Appellant
was again advised that, if she refused to attend or obstructed the examination, her compensation
could be suspended under 5 U.S.C. § 8123(d).
On March 28, 2014 Dr. Habib submitted a referee report documenting appellant’s
attendance at the examination.
By letter dated May 9, 2014, counsel argued that appellant’s compensation benefits were
suspended effective February 25, 2014, but she had since attended the examination. He
requested that OWCP vacate the order and overturn the prior decision so that she could proceed
forth with other issues.
By letter dated May 14, 2014, OWCP informed appellant and counsel that her benefits
had been reinstated following her attendance at examination.
At the September 9, 2014 hearing, counsel noted that appellant attended the rescheduled
March 28, 2014 examination with Dr. Habib, that the issue was moot, and that the prior
February 25, 2014 decision no longer had bearing.
By decision dated February 20, 2015, the hearing representative affirmed the
February 25, 2014 decision finding that appellant failed to attend an OWCP-directed
examination and failed to provide an adequate reason for failure to do so, meriting suspension of
her benefits.
LEGAL PRECEDENT
Section 8123 of FECA authorizes OWCP to require an employee, who claims disability
as a result of federal employment, to undergo a physical examination as it deems necessary.5
5

5 U.S.C. § 8123.

3

The determination of the need for an examination, the type of examination, the choice of locale,
and the choice of medical examiners are matters within the province and discretion of OWCP.6
OWCP regulations provide that a claimant must submit to an examination by a qualified
physician as often and at such times and places as OWCP considers reasonably necessary.7
Section 8123(d) of FECA and OWCP regulations provide that, if an employee refuses to submit
to or obstructs a directed medical examination, his or her right to compensation is suspended
until the refusal or obstruction ceases.8 OWCP procedures provide that, before OWCP may
invoke these provisions, the employee is to be provided a period for 14 days within which to
present in writing his or her reasons for the refusal or obstruction.9 If good cause for the refusal
or obstruction is not established, entitlement to compensation is suspended in accordance with
section 8123(d) of FECA.10
ANALYSIS
OWCP scheduled a referee examination on February 7, 2014 with Dr. Habib. Appellant
did not appear for the scheduled examination. By decision dated February 25, 2014, OWCP
suspended her compensation benefits based on her failure to appear. On February 20, 2015
OWCP hearing representative affirmed the February 25, 2014 decision. The Board finds that
OWCP properly suspended appellant’s compensation for failure to attend a medical examination.
The only limitation on OWCP’s authority, with regard to instructing a claimant to
undergo a medical examination, is that of reasonableness.11 The Board has interpreted the plain
meaning of section 8123(d) to provide that compensation is not payable while a refusal or
obstruction of an examination continues.12
On January 29, 2014 OWCP advised appellant and her representative of the appointment
and that, if she did not keep the appointment, her benefits could be suspended. Appellant did not
attend the scheduled February 7, 2014 appointment.
After the February 10, 2014 proposed suspension of benefits, appellant was provided 14
days to provide reasons for failing to attend the scheduled examination.13

6

J.T., 59 ECAB 293 (2008); S.B., 58 ECAB 267 (2007); James C. Talbert, 42 ECAB 974 (1991).

7

20 C.F.R. § 10.320.

8

5 U.S.C. § 8123; 20 C.F.R. § 10.323; Dana D. Hudson, 57 ECAB 298 (2006).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.14(d) (July 2000).
10

Id.

11

Lynn C. Huber, 54 ECAB 281 (2002).

12

M.B., Docket No. 10-1755 (issued March 24, 2011).

13

5 U.S.C. § 8123; S.B., 58 ECAB 267 (2007).

4

Appellant reported that she could not attend the scheduled February 7, 2014 appointment
because she was required to work due to inspections scheduled for all postal routes, and that she
had not received the appointment notification in time to take off work. The Board notes that
Dr. Habib’s office confirmed that she was off work that day and there is no evidence supporting
her allegations that work prevented her attendance at the examination, nor did appellant submit
any other evidence to justify her failure to attend the examination.14 As appellant did not provide
good cause for failing to appear at the February 7, 2014 scheduled examination, the Board finds
that OWCP properly suspended her right to compensation benefits effective February 25, 2014.15
Thus, the Board finds that OWCP properly suspended entitlement to compensation in
accordance with 5 U.S.C. § 8123.16
CONCLUSION
The Board finds that OWCP properly suspended appellant’s compensation benefits
effective February 25, 2014 for failure to attend a medical examination.

14

D.K., Docket No. 14-933 (issued April 15, 2015).

15

L.B., Docket No. 14-2005 (issued January 28, 2015).

16

When the claimant actually reports for examination, payment retroactive to the date on which the claimant
agreed to attend the examination on February 24, 2014 may be made. Supra note 9 at Developing and Evaluating
Medical Evidence, Suspension of Benefits, Chapter 2.810.13(e) (September 2010).

5

ORDER
IT IS HEREBY ORDERED THAT the February 20, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 6, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.H., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, Ogden, UT,
Employer
__________________________________________

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Appearances:
Frank M. Wells, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-589
Issued: August 24, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 31, 2008 appellant filed a timely appeal from the September 25, 2008 merit
decision of the Office of Workers’ Compensation Programs, denying continuation of pay.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant established entitlement to continuation of pay.
FACTUAL HISTORY
On July 25, 2008 appellant, then a 35-year-old clerk, filed a traumatic injury claim (Form
CA-1) alleging that on June 24, 2008 she experienced pain in her hand. After pulling
“suspenses” she was unable to type or grip anything. Appellant stopped work on June 24, 2008.
The employing establishment controverted the claim contending, among other things, that it was
not timely filed.

By letter dated August 4, 2008, the Office advised appellant that the evidence submitted
was insufficient to establish her claim. It addressed the medical and factual evidence she needed
to submit, including why she did not provide written notice of her injury to a supervisor within
30 days of the date of injury. By letter dated September 12, 2008, the Office accepted that
appellant sustained mild left carpal tunnel syndrome.
In a September 25, 2008 decision, the Office denied continuation of pay on the grounds
that appellant did not report her injury on an Office-approved form within 30 days. It noted that
this decision did not affect her entitlement to wage-loss compensation benefits.1
LEGAL PRECEDENT
Section 8118 of the Act provides for payment of continuation of pay, not to exceed 45
days, to an employee who has filed a claim for a period of wage loss due to traumatic injury with
her immediate supervisor on a form approved by the Secretary of Labor within the time specified
in section 8122(a)(2) of this title.2 Section 8122(a)(2) provides that written notice of injury must
be given as specified in section 8119.3 Section 8119 provides in part that notice of injury shall
be given in writing within 30 days after the injury.4
Claims that are timely under section 8122 are not necessarily timely under section
8118(a). Section 8118(a) makes continuation of pay contingent on the filing of a written claim
within 30 days of the injury.5 When an injured employee makes no written claim for a period of
wage loss within 30 days, she is not entitled to continuation of pay, notwithstanding prompt
notice of injury.6
The Act’s implementing regulations provide, in pertinent part, that to be eligible for
continuation of pay, a claimant must: (1) have a traumatic injury which is job related and the
cause of the disability, and/or the cause of lost time due to the need for medical examination and
treatment; (2) file Form CA-1 within 30 days of the date of the injury; and (3) begin losing time
from work due to the traumatic injury within 45 days of the injury.7
ANALYSIS
The Office accepted that appellant sustained left mild carpal tunnel syndrome on
June 24, 2008. Appellant filed a Form CA-1 on July 25, 2008. Because the claim was not filed
1

The Office issued decisions on April 8, June 24 and July 27, 2009 denying appellant’s claims for compensation
for the period February 2 through June 19, 2009. These decisions are not before the Board on the present appeal.
2

5 U.S.C. § 8118.

3

Id. at § 8122(a)(2).

4

Id. at § 8119(a), (c). See also Gwen Cohen-Wise, 54 ECAB 732 (2003).

5

Id. at § 8118(a).

6

See Laura L. Harrison, 52 ECAB 515 (2001).

7

20 C.F.R. § 10.205(a)(1-3). See also Carol A. Lyles, 57 ECAB 265 (2005); Federal (FECA) Procedure Manual,
Part 2 -- Claims, Continuation of Pay and Initial Payments, Chapter 2.807(7) (March 2004).

2

within 30 days of the injury, as specified in section 8118(a) of the Act, the Board finds that she is
not entitled to continuation of pay.8 The rationale for this holding is set forth in William E.
Ostertag.9 There is no provision for excusing an employee’s failure to file a claim for
continuation of pay within 30 days of the employment injury.10
CONCLUSION
The Board finds that the Office properly denied continuation of pay on the grounds that
appellant failed to give written notice of injury within the time limitation provision of the Federal
Employees’ Compensation Act.
ORDER
IT IS HEREBY ORDERED THAT the September 25, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 24, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

8

The Board notes that, although appellant is barred from receiving continuation of pay, she may be eligible for
other types of compensation benefits under the Act. The Office accepted her claim on September 12, 2008. On
September 25, 2008 it explained that the decision denying appellant’s continuation of pay did not affect her
entitlement to compensation benefits. Appellant may claim wage-loss compensation benefits for disability or claim
compensation for medical treatment rendered due to the effects of the accepted employment injury.
9

33 ECAB 1925, 1932 (1982).

10

See Dodge Osborne, 44 ECAB 849 (1993).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
U.S. POSTAL SERVICE, CHARDON POST
OFFICE, Chardon, OH, Employer
__________________________________________

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

Docket No. 06-1739
Issued: January 22, 2007

Case Submitted on the Record

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

JURISDICTION
On July 24, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ November 29, 2005 and June 19, 2006 merit decisions denying his
occupational disease claim. Pursuant to 20 C.F.R. §§ 501.2 and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof in establishing that he
sustained an injury causally related to factors of his federal employment
FACTUAL HISTORY
On July 5, 2005 appellant, a 58-year old rural mail carrier, filed an occupational disease
claim form (CA-2) alleging that he developed severe pain in both shoulders as a result of
constant horizontal and vertical reaching motions in the employing establishment and on his
route. In an accompanying statement, appellant indicated that he underwent rotator cuff surgery
in February 2002. He began experiencing pain six months after he returned to work in

June 2002, but he “put up with it.” When his symptoms appeared again in 2004, he was told that
his pain was caused by bursitis and scar tissue. Appellant stated that he first became aware that
his condition was related to his employment in February 2004.
On September 12, 2005 the Office informed appellant that the evidence submitted was
insufficient to establish his claim and requested detailed information regarding the activities he
believed contributed to his condition and a comprehensive medical report with a diagnosis,
results of examinations and tests, and a doctor’s opinion with medical reasons on the cause of his
condition.
In response to the Office’s request, appellant submitted numerous reports from Dr. Syed
Akhtar-Zaidi, a Board-certified physiatrist. In a report dated January 17, 2005, Dr. Akhtar-Zaidi
stated that appellant had been complaining of pain since he underwent arthroscopic surgery two
and one half years before. He indicated that appellant’s reports of pain radiating up to his neck
and down his arms at a level of seven to eight on a scale of ten. Dr. Akhtar-Zaidi noted that
appellant’s work as a postman involved “quite a bit of twisting and turning of his neck and
shoulders on a consistent basis everyday.” On January 31, 2005 he provided diagnoses of
lumbar radiculitis and bilateral shoulder pain. On examination Dr. Akhtar-Zaidi found moderate
tenderness in the shoulders bilaterally, especially over the subacromial space. Range of motion
was good, but abduction was painful. On February 28, 2005 Dr. Akhtar-Zaidi provided a
diagnosis of right shoulder pain. On April 18, 2005 he diagnosed neck and shoulder pain and
bilateral suprascapular neuritis and recommended bilateral suprascapular nerve blocks. On
June 13, 2005 Dr. Akhtar-Zaidi noted appellant’s ongoing chronic bilateral shoulder pain, more
so on the right. On June 20, 2005 he reported that appellant underwent “RF lessoning of the
right suprascapular nerve” with an excellent result. In a report dated November 7, 2005,
Dr. Akhtar-Zaidi provided a diagnosis of shoulder sprain/strain. He stated that appellant was in
so much pain that he could hardly move his shoulder.
Appellant also submitted a report dated May 1, 2002 from Dr. Christopher J. Walsh, a
Board-certified orthopedic surgeon, who stated that appellant had been diagnosed with a right
rotator cuff tear and subacromial impingement. He subsequently underwent surgery for a repair
of a right rotator cuff tear and an acromioplasty. In a November 1, 2005 letter to the Office,
appellant stated that he should have filed a claim for his 2002 rotator cuff tear, because he
distinctly remembered reaching for a mailbox in a snowdrift and feeling something pull in his
shoulder.
By decision dated November 29, 2005, the Office denied appellant’s claim on the
grounds that the medical evidence did not demonstrate that his claimed medical condition was
causally related to established work-related events. The Office found that appellant had failed to
provide any medical opinion on the issue of causal relationship.
On December 3, 2005 appellant, through his representative, requested an oral hearing. In
support of his request, appellant submitted a January 5, 2006 report from Dr. R. Denison Stewart,
a Board-certified orthopedic surgeon, who stated that he and his former partner, Dr. Walsh, had
treated appellant for bilateral shoulder conditions since 2002. In 2002, Dr. Walsh performed an
extensive repair of the right rotator cuff. Dr. Stewart began treatment for low back pain
beginning December 7, 2004. At that time, x-rays revealed the presence of a degenerative

2

spondylolisthesis of L5 on S1, which he opined “could be the cause of ongoing low back pain
that would limit appellant’s ability to perform his regular duties with the post office.” Appellant
was also treated for left shoulder pain. Although x-rays were, “by and large,” within normal
limits, Dr. Stewart “suspected” that appellant had a chronic bursitis in the left shoulder.
At the April 20, 2006 hearing, appellant testified that he injured his shoulders as a result
of constant reaching in the course of his job as a rural mail carrier. He stated that he had been
treated for low back pain by a chiropractor, Dr. Roediger.1 Appellant’s representative indicated
that the x-ray taken by the chiropractor did not reveal a subluxation. He conceded that
Dr. Roediger’s report would not establish a causal relationship between appellant’s shoulder
condition and factors of his employment.
By decision dated June 19, 2006, the Office hearing representative affirmed the
November 29, 2005 decision, finding that the medical evidence of record failed to establish that
appellant’s bilateral shoulder condition was causally related to accepted work-related activities.
LEGAL PRECEDENT
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 alleged3 and that any disability and/or specific condition
for which compensation is claimed are causally related to the employment injury.4
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.5
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
1

The Board notes that the record does not contain a report by Dr. Roediger.

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.
Appellant 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

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

3

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 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.7
ANALYSIS
The Office accepted that the reaching activities described by appellant occurred in the
performance of duty. The issue at hand, therefore, is whether the medical evidence submitted is
sufficient to establish that his diagnosed condition is causally related to the employment factors
identified. The Board finds that appellant has submitted insufficient medical evidence to
establish that his diagnosed medical condition was caused or aggravated by factors of his federal
employment.
Medical evidence of record consists of reports from Drs. Walsh, Stewart and
Akhtar-Zaidi. Dr. Walsh’s May 1, 2002 report reflects that appellant underwent surgery for a
repair of a right rotator cuff tear and an acromioplasty in 2002. However, Dr. Walsh did not
provide any opinion on the cause of appellant’s condition. Therefore, his report lacks probative
value. Dr. Stewart’s January 5, 2006 report also fails to support appellant’s claim. He stated that
he and Dr. Walsh had treated appellant for bilateral shoulder conditions since 2002, when
Dr. Walsh performed an extensive repair of the right rotator cuff, and that he “suspected” that
appellant had a chronic bursitis in his left shoulder. However, Dr. Stewart failed to offer any
opinion as to the cause of appellant’s diagnosed shoulder condition. Therefore, his report also
lacks probative value.8 Appellant submitted numerous reports from Dr. Akhtar-Zaidi, who
provided diagnoses of lumbar radiculitis; bilateral suprascapular neuritis; and shoulder
sprain/strain. Dr. Akhtar-Zaidi noted that appellant’s work as a postman involved “quite a bit of
twisting and turning of his neck and shoulders on a consistent basis everyday.” However, none
of his reports contained a definitive opinion as to the cause of appellant’s condition, nor did he
describe the physiological process whereby any specific duties performed by appellant caused or
contributed to his condition. Therefore, his reports lack probative value. The Board notes that
appellant’s current shoulder condition could be related to his 2002 rotator cuff tear or to another
traumatic event not related to his employment. As the medical evidence of record does not
contain a rationalized medical opinion explaining how work-related incidents or factors caused
or aggravated any medical condition or disability, appellant has failed to satisfy his burden of
proof.
Appellant expressed his belief that his condition resulted from repetitive work activities.
The Board has held that the mere fact that a condition manifests itself during a period of

6

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

7

Phillip L. Barnes, 55 ECAB 426 (2004); see also Dennis M. Mascarenas, supra note 3 at 218.

8

See Leslie C. Moore, supra note 6.

4

employment does not raise an inference that there is a causal relationship between the two.9
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.10 Causal relationship must be substantiated by reasoned medical
opinion evidence, which it is appellant’s responsibility to submit. Therefore, appellant’s belief
that his condition was caused by work-related 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.
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.
ORDER
IT IS HEREBY ORDERED THAT the June 19, 2006 and November 29, 2005
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: January 22, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

9

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

10

Id.

5