United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
U.S. POSTAL SERVICE, MORGAN
PROCESSING & DISTRIBUTION CENTER,
New York, NY, Employer
__________________________________________

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

Docket No. 06-2126
Issued: February 8, 2007

Case Submitted on the Record

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

JURISDICTION
On September 18, 2006 appellant filed a timely appeal from a June 16, 2006 decision by
the Office of Workers’ Compensation Programs that denied his request for an oral hearing and
an April 5, 2006 merit decision that denied his claim for an occupational disease. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merit and nonmerit decisions.
ISSUES
The issues are: (1) whether appellant met his burden of proof in establishing that he
developed an occupational disease in the performance of duty; and (2) whether the Office
properly denied appellant’s request for an oral hearing.
FACTUAL HISTORY
On February 1, 2006 appellant, then a 63-year-old mail processor, filed an occupational
disease claim alleging that he was exposed to air drafts while at work when postal conveyors
were moved. This irritated his previous injury to the neck and lower back region. Appellant

stated that the “post cons” were draft barriers. He noted that he had previously injured his neck
and right shoulder during military service. Appellant did not stop work.
In support of his claim, appellant submitted a note from Dr. Jacqueline Friedman, a
Board-certified psychologist and neurologist with the Department of Veterans Affairs.
Dr. Friedman noted that appellant had degenerative disease of the cervical spine, and that his
neck pain was worsened by drafts. She advised that the employing establishment should arrange
for a barrier to block drafts from entering appellant’s work space.
On February 8, 2006 the Office requested additional information concerning appellant’s
claim. Specifically, the Office noted that appellant had not clearly identified his claimed
condition and that, while Dr. Friedman had stated that he had degenerative disc disease, she did
not explain how the condition was related to appellant’s employment.
By decision dated April 5, 2006, the Office denied appellant’s claim. The Office found
that the employment exposure occurred as appellant alleged, but that no medical condition had
been diagnosed. Moreover, the medical evidence did not provide a physician’s opinion as to
how the injury/condition related to appellant’s work activity.
Appellant requested an oral hearing by letter postmarked May 10, 2006.
By decision dated June 16, 2006, the Office denied appellant’s request for an oral hearing
on the grounds that it was untimely filed. The Office noted that the decision appealed had been
issued on April 5, 2006 and that the request for an oral hearing was postmarked more than 30
days later, on May 10, 2006. The Office exercised its discretion and advised appellant to request
reconsideration of the merits of his case.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that an injury
was sustained in the performance of duty as alleged and that any disabilities and/or specific
conditions for which compensation is claimed are causally related to the employment injury.2
An award of compensation may not be based on surmise, conjecture, speculation or upon the
claimant’s own belief that there is a causal relationship between his or her claimed injury and his
or her employment.3 To establish a causal relationship, the employee must submit a physician’s
report, in which the physician reviews the employment factors identified by the employee as
causing his condition and, taking these factors into consideration as well as findings upon

1

5 U.S.C. §§ 8101-8193.

2

Elaine Pendleton, 40 ECAB 1143 (1989).

3

Donald W. Long, 41 ECAB 142 (1989).

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examination of appellant, state whether the employment injury caused or aggravated the
diagnosed conditions and present medical rationale in support of that opinion.4
An occupational disease or injury is one caused by specified employment factors
occurring over a longer period than a single shift or workday.5 The test for determining whether
appellant sustained a compensable occupational disease or injury is three-pronged. To establish
the factual elements of the claim, appellant must submit: “(1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying the factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the factors
identified by the claimant were the proximate cause of the condition for which compensation is
claimed or, stated differently, medical evidence establishing that the diagnosed condition is
causally related to the factors identified by the claimant.”6
ANALYSIS -- ISSUE 1
The Board finds that appellant has failed to meet his burden of proof to establish that he
developed an occupational disease in the performance of duty. The record supports that
appellant has certain preexisting neck and back conditions. It is also not disputed that postal
conveyors were moved in his workplace. Dr. Friedman’s note indicates that appellant was
treated for a specific condition, namely degenerative disease of the cervical spine. However, she
did not provide a medical narrative explaining how the movement of postal conveyors would
cause or contribute to the diagnosed degenerative disease process.
On his notice of occupational disease, appellant indicated that he had previously
sustained injuries to the neck and shoulder region during his military service. Dr. Friedman did
not explain how appellant’s diagnosed condition or prior injuries were aggravated by any
employment exposure to air drafts.
Dr. Friedman’s report does not render a specific opinion on causal relationship. Rather,
she only suggested that the employing establishment take steps to shield appellant from drafts in
his work space. However, Dr. Friedman did not provide medical reasoning to support that drafts
in appellant’s work space either caused or aggravated his cervical condition. She merely noted
that appellant claimed that drafts worsened his neck pain. The Board has held that a physician’s
mere repetition of a claimant’s complaints does not constitute a basis for the payment of
compensation.7

4

Id.

5

D.D., 57 ECAB ___ (Docket No. 06-1315, issued September 14, 2006).

6

Michael R. Shaffer, 55 ECAB 386, 389 (2004), citing Lourdes Harris, 45 ECAB 545 (1994); Victor J.
Woodhams, 41 ECAB 345 (1989).
7

See William A. Archer, 55 ECAB 674 (2004); see also Dennis M. Mascarenas, 49 ECAB 215 (1997).

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Dr. Friedman did not render a specific medical opinion on causal relationship based on a
complete and accurate medical history and thorough examination.8 Her opinion is of diminished
probative weight in establishing that appellant developed an occupational disease in the
performance of duty. Appellant submitted no other evidence, medical or factual, prior to the
Office’s April 5, 2006 decision.9
The Board finds that appellant failed to meet his burden of proof in establishing that he
developed an occupational disease in the performance of duty, because the medical evidence was
insufficient to establish causal relationship between appellant’s condition and factors of his
employment.

LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of the Act provides that “before review under section 8128(a) of this
title, a claimant for compensation not satisfied with a decision of the Secretary ... is entitled, on
request made within 30 days after the date of the issuance of the decision, to a hearing on his
claim before a representative of the Secretary.”10 Section 10.615 of the federal regulations
implementing this section of the Act provides that a claimant shall be afforded a choice of an
oral hearing or a review of the written record.11 The Office’s regulations provide that the request
must be sent within 30 days of the date of the decision for which a hearing is sought and also that
the claimant must not have previously submitted a reconsideration request (whether or not it was
granted) on the same decision.12
The Board has held that the Office, in its broad discretionary authority in the
administration of the Act, has the power to hold hearings in certain circumstances where no legal
provision was made for such hearings and that the Office must exercise this discretionary
authority in deciding whether to grant a hearing.13 The Office’s procedures, which require the

8

Melvina Jackson, 38 ECAB 443 (1987) (notes factors considered in assessing the weight of medical evidence,
including the importance of an accurate and complete medical history); see also James A. Wyrich, 31 ECAB
1805 (1980).
9

On appeal, appellant submitted additional factual and medical evidence. He also stated that his appeal was
based on “information not previously presented.” The Board, however, notes that it cannot consider this evidence
for the first time on appeal because the Office did not consider this evidence in reaching its final decision. The
Board’s review is limited to the evidence in the case record at the time the Office made its final decision. 20 C.F.R.
§ 501.2(c).
10

5 U.S.C. § 8124(b)(1).

11

20 C.F.R. § 10.615.

12

20 C.F.R. § 10.616(a).

13

Marilyn F. Wilson, 52 ECAB 347 (2001).

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Office to exercise its discretion to grant or deny a hearing when the request is untimely or made
after reconsideration, are a proper interpretation of Board precedent.14
ANALYSIS -- ISSUE 2
The Board finds that the Office properly denied appellant’s request for an oral hearing on
the grounds that it was untimely filed. Appellant requested an oral hearing in response to a
decision issued on April 5, 2006. His request was dated May 9, 2006 and postmarked May 10,
2006, more than 30 days after the date of issuance of the decision.
Although the Office determined that appellant’s request was untimely, it nevertheless
exercised its discretion by examining appellant’s request for an appeal. The Office determined
that appellant’s case would be best served by his submission of a request for reconsideration
along with his new supporting evidence. Accordingly, the Board finds that the Office acted
within its discretion in denying appellant’s hearing request as untimely, because appellant failed
to file the request within the statutory time frame.
CONCLUSION
The Board finds that appellant did not meet his burden of proof in establishing that he
developed an occupational disease in the performance of duty, and that the Office properly
denied appellant’s untimely request for an oral hearing.

14

Teresa M. Valle, 57 ECAB __ (Docket No. 06-438, issued April 19, 2006). See Federal (FECA) Procedure
Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter 2.1601.4(b)(3) (October 1992).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 16 and April 5, 2006 are affirmed.
Issued: February 8, 2007
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, New Orleans, LA, Employer
__________________________________________

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Appearances:
Bennie Hooker, for the appellant
Office of Solicitor, for the Director

Docket No. 13-917
Issued: September 4, 2013

Case Submitted on the Record

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

JURISDICTION
On March 7, 2013 appellant, through her representative, filed a timely appeal from a
September 17, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
traumatic injury in the performance of duty on March 5, 2012.
FACTUAL HISTORY
On March 5, 2012 appellant, then a 61-year-old Veterans Affairs (VA) laborer, filed a
traumatic injury claim (Form CA-1) alleging that on that same date he sustained a split upper lip,
1

5 U.S.C. § 8101 et seq.

chipped tooth and knocked out two teeth when he was walking down the hall on 10G and “slip
down,” causing him to hit his face on the floor. He notified his supervisor and received medical
attention on March 5, 2012, the date of injury. The employing establishment controverted the
claim stating that there were different accounts about the circumstances surrounding the injury.
By letter dated March 13, 2012, OWCP informed appellant that the evidence of record
was insufficient to support his claim. It requested additional factual and medical evidence and
provided him 30 days to respond.
In a March 5, 2012 narrative statement, William St.Clair, appellant’s supervisor, reported
that at approximately 7:28 a.m. on March 5, 2012, heexited the elevator on the 10th floor and
entered the hallway to find appellant on the floor bleeding by the mouth surrounded by nurses.
The clinical staff was checking appellant’s vitals and appellant stated that he had tripped.
Mr. St.Clair noted that appellant had an impediment due to an old injury. After appellant was
transported to urgent care, Mr. St.Clair checked in on him and asked him how he was. Appellant
was crying and uncomfortable and responded, “I just tripped, the floor was too dry and you know
I drag my foot, I just didn’t pick it up enough.” The following day he reported to Mr. St.Clair
with a return to work note and when asked how he felt responded, “I feel okay, I just
slipped.”Mr. St.Clair informed appellant that he had told him that he had tripped several times
and appellant responded, “Well, I don’t remember that but I did trip and I slipped, there was
water on the floor from condensation.”He stated that he was there minutes after appellant fell and
the only fluid on the floor was his blood.
In a March 6, 2012 witness statement, Jeffrey Hudson, of VA facilities management,
stated that he reported for duty that date at 6:05 a.m. and was doing his walk through of 10G. At
no time did he notice any spills, excessive wax or any moisture on the floors. Mr. Hudson
further noted that he did not receive any complaints or notifications concerning slippery floors.
In a March 5, 2012 witness statement, Tonic Smith, a VA housekeeping aid, reported that
he reported to work on March 5, 2012 at 6:00 A.M. and began to tour his area of responsibility
on 10G. During his tour, he noticed that the hallways were free of spills and trash.
In a March 5, 2012 urgent care report, Barbara A. Johnson, a registered nurse, reported
that appellant fell and suffered facial and oral trauma. She noted that he ambulated with a limp
and his right foot stuck on the tile flooring.
In a March 5, 2012 urgent care report, Dr. Vernon E. Chee, Board-certified in internal
medicine, reported that appellant presented to urgent care after he fell. Appellant recalled
walking in the hallway, then his left leg “gave out,” causing him to fall forward and strike his
face on the floor. Hethought he lost consciousness and stated that there was a witness to the fall
who left soon after VA staff was summoned. Appellant was dizzy and stayed on the floor for
about 10 minutes. He reported a history of muscle weakness and numbness in the left lower
extremity which sometimes caused him to trip while walking. A computerized tomography scan
of the brain showed no acute intracranial abnormalities and x-rays revealed no fractures.
Dr. Chee diagnosed trauma to the face, mouth and teeth, noting that appellant had several loose
teeth. After returning from radiology, appellant was missing tooth 8 and part of 7 and 10.He

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reported that he sneezed and the tooth flew out. Dr. Chee noted that the other teeth were loose
but remained in place and the bleeding had slowed. Appellant was referred to VA Dental Clinic.
In a March 5, 2012 report, Dr. Georgia K. McDonald, a doctor of dental surgery, reported
that appellant presented to the dental clinic for an emergency visit after he fell on the job.
Appellant was last seen three years ago by another dentist for a dental extraction for decay.
Recently a tooth on the upper right had “fallen out on its own” and the extraction socket was still
healing on the upper right in the position of tooth four. Dr. McDonald provided a medical
history of osteoarthritis, particularly in the left leg. Appellant stated that he sometimes had
difficulty walking when his leg got stiff.
Dr. McDonald noted on clinical examination fracture of tooth 9 with partial exfoliation,
crack on root of 10 probable and probable fracture of right porcelain fused to metal bridge on the
upper right. Examination and clinical evaluation of radiographs demonstrated chronic
generalized advanced periodontitis with poor demonstrated homecare of the teeth in need of
restorative repair. Mobility of the upper and lower anterior teeth could not be definitively
determined to have been caused by the fall. Dr. McDonald noted that the mobility could be
anatomic and pathologic in nature due to the 80 to 90 percent horizontal bone loss and
attachment loss on those teeth.He reported fractured facial aspects and loose bridge from number
eight to six.Dr. McDonald also noted residual root tip on nine which was probably a result of
fracture from the fall. Appellant stated that he just “spit the tooth out”and couldnot find it.
Radiographs show periapical infection on 14 and 8, which would have been there before today.
Dr. McDonald also noted semilunar lip laceration approximately three-fourths of an inch. He
recommended that tooth 6, 8, 9 and 10residual root tip be removed.
By decision dated April 20, 2012, OWCP denied appellant’s claim finding that the
evidence of record failed to establish that his diagnosed conditions were caused by the accepted
March 5, 2012 employment incident.
By letter dated August 8, 2012, appellant requested reconsideration of OWCP decision.
In an August 21, 2012 narrative statement, appellant reported that he informed his
supervisor Mr. St.Clair that he tripped three consecutive times during his periods of questioning
and visitations. He stated that his impediment should not be an issue, as well as whether or not
the floor was dry. Appellantstated that Mr. St.Clair misunderstood the terminology of the word
“slipped.”He stated that because he cannot walk or move in a smooth sliding motion, he was
referring to moving quickly and as cautiously as possible so as not be late for work.
Appellantstated that the floor was dry. He reported that temperature change was an ongoing
issue on floor 10G and patients did not have access to that portion of the hospital with staff
having only limited access. Appellant reiterated that as noted in the witness statement, the floor
was dry. In response to Mr. Smith’s March 6, 2012 statement, he reported that though the floor
may have been free of spills, that did not mean that it was free of moisture. Appellantnoted that
Mr. Howard2 self-diagnosed his impediment and attributed it to his leg giving out.

2

The Board notes that it is unclear who appellant is referring to as Mr. Howard has not been identified in the
record.

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By decision dated September 17, 2012, OWCP affirmed its April 20, 2012 decision, as
modified, finding that the evidence of record failed to establish that the March 5, 2012
employment incident occurred at the time, place and in the manner alleged.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.5 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
When an employee claims that he or she sustained an injury in the performance of duty
he must submit sufficient evidence to establish that he or she experienced a specific event,
incident or exposure occurring at the time, place and in the manner alleged. He or she must also
establish that such event, incident or exposure caused an injury.6 Once an employee establishes
that he or she sustained an injury in the performance of duty, he or she has the burden of proof to
establish that any subsequent medical condition or disability for work, for which he or she claims
compensation is causally related to the accepted injury.7
To establish that an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
circumstances and his or her subsequent course of action. In determining whether a case has
been established, such circumstances as late notification of injury, lack of confirmation of injury,
and failure to obtain medical treatment may, if otherwise unexplained, cast substantial doubt on

3

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

4

Michael E. Smith, 50 ECAB 313 (1999).

5

Elaine Pendleton,supra note 3 at 1143.

6

See generally John J. Carlone, 41 ECAB 354 (1989); see also 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R.
§ 10.5(q) and (ee) (1999) (occupational disease or illness and traumatic injury defined). See Victor J. Woodhams, 41
ECAB 345 (1989) regarding a claimant’s burden of proof in an occupational disease claim.
7

Supra note 4.

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the employee’s statements. The employee has not met his burden when there are such
inconsistencies in the evidence as to cast serious doubt on the validity of the claim.8
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.9 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.10
It is a well-settled principle of workers’ compensation law and the Board has so held, that
an injury resulting from an idiopathic fall -- where a personal, nonoccupational pathology causes
an employee to collapse and to suffer injury upon striking the immediate supporting surface and
there is no intervention or contribution by any hazard or special condition of employment -- is
not within coverage of FECA.11 Such an injury does not arise out of a risk connected with the
employment and is, therefore, not compensable. The Board has made equally clear, the fact that
the cause of a particular fall cannot be ascertained or that the reason it occurred cannot be
explained, does not establish that it was due to an idiopathic condition.
This follows from the general rule that an injury occurring on the industrial premises
during working hours is compensable unless the injury is established to be within an exception to
such general rule.12 If the record does not establish that the particular fall was due to an
idiopathic condition, it must be considered as merely an unexplained fall, one which is
distinguishable from a fall in which it is definitely proved that a physical condition preexisted
and caused the fall.13
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence supporting such a causal relationship.14 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. This medical opinion must include an accurate history of the employee’s
employment injury and must explain how the condition is related to the injury. The weight of
8

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

9

Katherine J. Friday, 47 ECAB 591, 594 (1996).

10

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

11

See Carol A. Lyles, 57 ECAB 265 (2005).

12

Dora J. Ward, 43 ECAB 767, 769 (1992); Fay Leiter, 35 ECAB 176, 182 (1983).

13

John R. Black, 49 ECAB 624 (1998); Judy Bryant, 40 ECAB 207 (1988); Martha G. List, 26 ECAB 200 (1974).

14

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

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medical evidence is determined by its reliability, its probative value, its convincing quality, the
care of analysis manifested and the medical rationale expressed in support of the physician’s
opinion.15
ANALYSIS
The Board finds that appellant sustained an unexplained fall in the performance of duty.
Appellant must establish all of the elements of his claim in order to prevail. He must
prove his employment, the time, place and manner of injury, a resulting personal injury and that
his injury arose in the performance of duty. In its September 17, 2012 decision, OWCP found
that appellant did not establish that the March 5, 2012 employment incident occurred as alleged.
The Board finds, however, that the evidence of record is sufficient to establish that the March 5,
2012 employment incident occurred, as alleged.
On his March 5, 2012 Form CA-1, appellant stated, “I was walking down the hall on 10G
and slip down and hit my face on the floor.”He notified Mr. St.Clairand sought medical attention
on that same date. In a March 5, 2012 narrative statement, Mr. St.Clair stated that at
approximately 7:28 a.m. on March 5, 2012, he exited the elevator on the 10th floor and entered
the hallway to find appellant on the floor bleeding from the mouth surrounded by nurses. At that
time, appellant told Mr. St.Clairhe had tripped. Mr. St.Clair checked in on appellant after being
taken to urgent care and reported that appellant informed him, “I just tripped, the floor was too
dry and you know I drag my foot, I just didn’t pick it up enough.” The following day,he reported
that appellant informed him that he slipped. When Mr. St.Clair told him that he was informed he
tripped the day before, appellant responded, “Well, I don’t remember that but I did trip and I had
slipped, there was water on the floor from condensation.”
In its September 17, 2012 decision, OWCP found that appellant did not establish that the
March 5, 2012 employment incident occurred as alleged because there were various allegations
made regarding the mechanism of injury, including that he slipped and hit his face on the floor,
he was walking when his leg gave out and his right foot stuck on the tile flooring. The Board
finds, however, that his statements have sufficiently established that the March 5, 2012
employment incident occurred as alleged. Whether appellant tripped or slipped or whether the
floor was dry or wet. It has been established that he suffered a fall on the morning of
March 5, 2012. Though there are reports that appellant’s foot stuck on the tile and his leg gave
out, this does not negate the fact that the incident resulted in a fall on the floor. The Board has
held that a claimant’s statement that an injury occurred at a given time, place and in a given
manner is of great probative value and will stand unless refuted by strong or persuasive
evidence.16
The Board further notes that an injury resulting from an idiopathic condition is not
compensable. The fact that the cause of a particular fall cannot be ascertained or that the reason it
occurred cannot be explained, does not establish that it was due to an idiopathic condition. If the
15

James Mack, 43 ECAB 321 (1991).

16

Thelma Rogers, 42 ECAB 866, 869-70 (1991).

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record does not establish that the particular fall was due to an idiopathic condition, it must be
considered as merely an unexplained fall, one which is distinguishable from a fall in which it is
definitely proved that a physical condition preexisted the fall and caused the fall.17
The factual evidence of record is insufficient to establish that appellant’s fall was
idiopathic.18 Witnesses confirmed that appellant did, indeed, fall as alleged at the time, place
and in the manner alleged. Mr. St.Clair, stated that on March 5, 2012 he exited the elevator on
the 10th floor and entered the hallway to find appellant on the floor bleeding by the mouth
surrounded by nurses after he fell. As noted, an injury resulting from an idiopathic fall is not
compensable.19 OWCP has the burden of proof to submit medical evidence showing the
existence of a personal, nonoccupational pathology if it chooses to make a finding that a given
fall is idiopathic in nature. The fact that the cause of a particular fall cannot be determined does
not establish that it was due to an idiopathic condition.
Themedical evidence in this case does not clearly establish that appellant’s fall was
idiopathic, i.e., due to a personal, nonoccupational pathology.20 Dr. Chee’s report noted that
appellant’s “leg gave out.”He did not, however, provide information regarding the cause of the
fall. While appellant reported a history of muscle weakness and numbness in the left lower
extremity which sometimes caused him to trip while walking, the medical evidence does not
establish that his fall was a result of this preexisting condition. The remaining medical evidence
also fails to shed light on the cause of his fall or a preexisting idiopathic condition. Based on the
contemporaneous medical evidence, the Board finds there is no conclusive evidence regarding
the cause of the fall. Consequently it must be considered an unexplained fall that occurred in the
performance of duty.21
As OWCP denied appellant’s claim on the grounds that he did not establish the factual
element of the claim, it did not develop or evaluate the medical evidence of record. The case
will be remanded to OWCP for consideration of the medical evidence. After such further
development as necessary, OWCP shall issue an appropriate decision.
CONCLUSION
The Board finds that appellant’s March 5, 2012 fall at work was sustained in the
performance of duty within the meaning of FECA.

17

P.W., Docket No. 13-170 (issued March 15, 2013).

18

Id.

19

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

20

H.B., Docket No. 12-840 (issued November 20, 2012).

21

See Steven S. Saleh, 55 ECAB 169 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the September 17, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: September 4, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.W., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
CORPS OF ENGINEERS, Fountain City, WI,
Employer
__________________________________________

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

Docket No. 09-1681
Issued: April 8, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 12, 2009 appellant filed a timely appeal of a December 23, 2008 decision of the
Office of Workers’ Compensation Programs affirming the denial of his recurrence claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(e), the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant sustained a recurrence of disability beginning on
October 23, 2007 causally related to his accepted employment injury.
FACTUAL HISTORY
On May 14, 1991 appellant, then a 29-year-old deckhand, filed a traumatic injury claim
alleging that on that day he injured his left knee after it was struck with a piece of equipment.
He stopped work that day. Appellant returned to light duty on July 1, 1991 until approximately
November 1991 when he was laid off. He was rehired and returned to regular duty on or about

June 1992. The Office accepted the claim for acute mid substance tear, posterior cruciate
ligament (PCL) left; knee bucket-handle tear, lateral meniscus left knee; and left knee
arthroscopy.
On June 4, 1991 appellant underwent arthroscopic left partial lateral
meniscectomy. He resigned from the employing establishment in 1997 and continued working at
various jobs in the private sector.
Initial reports included a June 4, 1991 surgical report from Dr. Bradford Currier, a Boardcertified orthopedic surgeon, who performed an arthroscopic left partial lateral meniscectomy.
In an October 31, 1991 report, he diagnosed PCL deficient knee and no evidence of retear of the
lateral meniscus. On January 30, 1992 Dr. Currier released appellant from treatment and advised
him to follow up as needed. On June 29, 1992 he noted that appellant was working full time
without restrictions. Dr. Currier found excellent short-term result following partial lateral
meniscectomy and debridement of the PCL stump. He noted that appellant could develop
degenerative arthritis long term but that no further treatment was necessary unless appellant had
problems. Dr. Currier found that appellant had 7 percent impairment for his PCL moderate
laxity and 3 percent impairment for partial removal of his lateral meniscus for a total of
10 percent whole person impairment under Minnesota’s compensation guidelines.
The claim was dormant until October 23, 2007 when appellant filed a claim for a
recurrence of disability causally related to his May 14, 1991 work injury. He asserted that the
recurrence occurred “on and off” since the 1991 work injury whenever he worked or walked for
a longtime on hard surfaces. Appellant noted that, since leaving the employing establishment, he
had worked in a factory. He was currently self-employed and did not indicate if he stopped work
after the alleged recurrence. Appellant indicated that he sought compensation for medical
treatment and lost time from work.
On January 7, 2008 the Office advised appellant of the medical evidence necessary to
establish his recurrence claim and allowed him 30 days to submit such evidence. Appellant
submitted a partial radiology report of his left knee dated May 20, 1991, with findings that
included acute midsubstance tear of PCL, associated displaced bucket handle-type or flap tear of
the lateral meniscus with posterior displacement of a large meniscal fragment and lateral
collateral ligament injury.
In a June 22, 2007 magnetic resonance imaging (MRI) scan report of appellant’s left
lower extremity, Dr. James Vesely, a Board-certified diagnostic radiologist, found that appellant
had abnormal configuration of medial and lateral menisci and no discrete meniscal tear.
Dr. Vesely noted that the anterior cruciate ligament (ACL) and PCL did not appear completely
disrupted although they appeared thinner than usually seen. He also noted some bowing and lax
appearance of the PCL, triocompartmental articular cartilaginous irregularity, mild degenerative
spurring and serpiginous proximal tibial abnormality consistent with bone infarct. Dr. Vesely
determined that these findings could be due to a chronic or partial ACL tear and functional
deficiency.
In a January 18, 2008 report, Dr. Dean Krueger, an osteopath specializing in family
medicine, described appellant’s 1991-work injury and noted his chronic history of left knee
problems that dated back to 1991. He also noted that appellant had continued problems with his
left knee ACL and PCL injury. Dr. Krueger reviewed appellant’s 2007 MRI scan of the left

2

knee. He noted that appellant had filed a claim for his left knee injury. Dr. Krueger reviewed
the medical evidence and opined that “there is a legitimate concern here for his injury.” He
diagnosed left knee arthralgia, hyperlipidemia and seizure disorder.
In a February 19, 2008 x-ray report of appellant’s right knee, Dr. Christopher Kelley, a
Board-certified diagnostic radiologist, noted negative findings for acute fracture, dislocation or
subluxation. In a report of the same date, Dr. Chris Cornett, an orthopedic surgeon, noted that
appellant reported sustaining a left knee injury in 1991 that resulted in PCL deficiency and
lateral meniscus tear. Appellant also reported chronic knee pain and instability that
progressively worsened with time. Upon examination, Dr. Cornett found evidence of posterior
instability, medial joint line pain, full motion and early arthritic changes. He noted that it was
difficult to assess whether appellant’s pain was related to posterior instability or early
degenerative changes.
In a March 12, 2008 decision, the Office denied appellant’s claim finding the evidence
insufficient to establish that the claimed recurrence resulted from the accepted work injury.
On March 18, 2008 appellant requested an oral hearing, which was held via telephone on
October 6, 2008.
Appellant subsequently submitted a November 4, 2008 report from Dr. Kevin
MacDonald, an orthopedic surgeon who noted that appellant injured his left knee at work in 1991
when a beam struck his left tibia causing a posterior force on his left knee. Dr. MacDonald
indicated that appellant’s PCL was never reconstructed but that he underwent rehabilitation. He
noted that appellant’s left knee had symptoms of pain and instability and gave out at times.
Dr. MacDonald found that appellant had a previous work injury to his left knee with deficient
PCL and some mild degenerative changes in his left knee likely related to chronic instability,
especially given appellant’s young age. He determined that overall appellant was doing well.
Dr. MacDonald advised that appellant follow up as needed. Appellant also submitted a
March 11, 2008 physical therapy consultation report.
In a December 23, 2008 decision, an Office hearing representative affirmed the
March 12, 2008 decision finding that appellant did not establish that the knee condition claimed
in 2007 was causally related to the 1991 work injury.
LEGAL PRECEDENT
A recurrence of disability means “an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which has resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.”1 A person who claims a recurrence of disability due to an accepted
employment-related injury has the burden of establishing by the weight of the substantial,
reliable and probative evidence that the disability for which she claims compensation is causally
related to the accepted injury. This burden of proof requires that an employee furnish medical
evidence from a physician who, on the basis of a complete and accurate factual and medical
1

R.S., 58 ECAB 362 (2007); 20 C.F.R. § 10.5(x).

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history, concludes that the disabling condition is causally related to the employment injury and
supports that conclusion with sound medical reasoning.2 Where no such rationale is present,
medical evidence is of diminished probative value.3
A recurrence of a medical condition means a documented need for further medical
treatment after release from treatment for the accepted condition or injury when there is no
accompanying work stoppage. Continuous treatment for the original condition or injury is not
considered a need for further medical treatment after release from treatment, nor is an
examination without treatment.4
In order to establish that a claimant’s alleged recurrence of the condition was caused by
the accepted injury, medical evidence of bridging symptoms between his present condition and
the accepted injury must support the physician’s conclusion of a causal relationship.5
The Office’s procedure manual provides that, after 90 days of release from medical care
(based on the physician’s statement or instruction to return as needed, or computed by the claims
examiner from the date of last examination), a claimant is responsible for submitting an
attending physician’s report, which contains a description of the objective findings and supports
causal relationship between the claimant’s current condition and the previously accepted work
injury.6
ANALYSIS
The Office accepted appellant’s May 14, 1991 employment injury for acute mid
substance tear, PCL left; knee bucket-handle tear, lateral meniscus left knee; and left knee
arthroscopy. The record reflects that Dr. Currier released appellant from medical care on
October 31, 1991 and that he returned to full duty on or about June 1992. Appellant filed a
recurrence claim on October 23, 2007 for both wage loss and medical treatment although he did
not identify a particular time at which he stopped work due to the work injury. The Board finds
that the medical evidence is insufficient to establish a recurrence of disability or a medical
condition causally related to the accepted left knee injury.
On November 4, 2008 Dr. MacDonald found that appellant had a previous left knee
injury with deficient PCL and mild degenerative changes in his left knee likely related to chronic
instability. Although he refers to appellant’s original and current knee condition, he failed to
explain whether appellant required medical treatment beginning October 23, 2007 due to the

2

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

3

See Ronald C. Hand, 49 ECAB 113 (1957); Michael Stockert, 39 ECAB 1186, 1187-88 (1988).

4

20 C.F.R. § 10.5(y).

5

Mary A. Ceglia, 55 ECAB 626 (2004).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5(b) (January 1995).

4

accepted May 14, 1991 work injury.7 Similarly, Dr. Krueger’s January 18, 2008 report noted
that appellant filed a claim for his left knee and opined that “there is legitimate concern here for
his injury.” However, this statement is broad and vague as it does not explain whether
appellant’s accepted knee injury attributed to his current left knee condition. This explanation is
particularly important as there is no bridging evidence of medical treatment between October 31,
1991 and June 22, 2007 and appellant had been released to regular duty since 1992.
In his June 22, 2007 MRI scan report, of appellant’s left knee, Dr. Vesely found
abnormal configuration of medial and lateral menisci, thinner-appearing PCL and ACL and mild
degenerative spurring. He opined that these findings “could be due” to chronic or partial ACL
tear and functional deficiency. However, Dr. Vesely did not directly address whether appellant’s
current left knee condition was causally related to his originally accepted left knee injury.
Medical evidence that does not offer any opinion regarding the cause of an employee’s condition
is of limited probative value on the issue of causal relationship.8 Likewise, Dr. Kelley noted xray findings but he did not specifically address causal relationship between the claimed
recurrence beginning October 23, 2007 and the May 14, 1991 work injury. Accompanying
Dr. Kelley’s report was a February 19, 2008 report from Dr. Cornett. However, Dr. Cornett’s
report is insufficient as he did not specifically support causal relationship between appellant’s
current condition and the 1991 work injury and advised that it was difficult to determine whether
his condition was related to posterior instability or degenerative changes.
A May 20, 1991 diagnostic report submitted by appellant is of no value in establishing
his claim as it clearly predates the claimed recurrence. Moreover, the report from appellant’s
physical therapist is of no probative value as physical therapists are not considered physicians
under the Federal Employees’ Compensation Act and as a result, they are not competent to
provide a medical opinion.9 For these reasons, the medical evidence is insufficient to establish a
recurrence of a medical condition causally related to the accepted left knee condition.
On appeal, appellant asserts that the medical evidence was not thoroughly evaluated as
Dr. Currier’s report provided percentages of loss and explained the long-term effects of his
injury. However, a 1992 opinion from Dr. Currier regarding impairment in 1992 is not relevant
to the issue before the Board, whether appellant sustained a recurrence in 2007. Appellant also
asserts that his treating physicians documented that his present condition is directly caused by his
May 1991 injury. As noted, he has the burden of proof to submit rationalized medical evidence
establishing the relationship of the claimed recurrence to the original injury. While the record
establishes that the 1991 work injury caused several left knee conditions, appellant has not
submitted a physician’s reasoned opinion in which the physician explains the reasons why
appellant’s current left knee condition is causally related to the 1991 work injury. This lack of

7

See Mary A. Ceglia, 55 ECAB 656 (2004) (appellant has the burden of furnishing medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes that the condition is
causally related to the employment injury and supports that conclusion with sound rationale).
8

See K.W., 59 ECAB ___ (Docket No. 07-1669, issued December 13, 2007).

9

Barbara J. Williams, 40 ECAB 649 (1989). A.C., 60 ECAB __ (Docket No. 08-1453, issued November 18,
2008); 5 U.S.C. § 8101(2).

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current medical evidence addressing causal relationship is the reason his recurrence claim has
been denied.
CONCLUSION
The Board finds that appellant did not sustain a recurrence of disability beginning on
October 23, 2007 causally related to his accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated December 23, 2008 is affirmed.
Issued: April 8, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New Orleans, LA, Employer
__________________________________________

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

Docket No. 10-1837
Issued: May 10, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On June 28, 2010 appellant filed a timely appeal from March 29 and April 8, 2010 merit
decisions of the Office of Workers’ Compensation Programs denying her claim for disability
compensation. Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has established that she was disabled from October 31
until November 20, 2009 due to her accepted condition of tenosynovitis of the left hand and
wrist.

1
2

5 U.S.C. § 8101 et seq.

The Office also issued an April 14, 2010 decision accepting the diagnosed condition of traumatic arthropathy of
the left hand, but this decision is not before the Board as it was not adverse to appellant’s claim. See 20 C.F.R.
§ 501.3(a).

FACTUAL HISTORY
On July 8, 2009 appellant, then a 56-year-old assistant window clerk, filed an
occupational disease claim alleging that she developed left forearm and wrist conditions due to
her federal employment. She stated that her doctor explained that her left arm movements
caused her pain. Appellant stopped work on June 29, 2009.
By decision dated September 17, 2009, the Office accepted her claim for tenosynovitis of
the left hand and wrist.
Appellant provided several medical reports from her treating physician, Dr. Richard E.
Matis, a Board-certified family practitioner. In a June 30, 2009 medical report, Dr. Matis related
that she had experienced left forearm and hand discomfort for the past six to seven months. He
noted that in performing appellant’s work duties she held most of the letters and periodicals in
her left arm while she filed with her right arm. In a July 6, 2009 medical report, Dr. Matis stated
that she continued to experience pain in her wrist and when gripping, which limited her hand use.
In a letter to the employing establishment, he stated that appellant had an overuse injury related
to her work and he recommended that she remain off work for two to four weeks. In a July 27,
2009 medical report, Dr. Matis diagnosed her with de Quervain’s tenosynovitis. In an
August 10, 2010 medical report, he referred appellant to an orthopedic doctor and stated that her
symptoms were too aggravated to consider returning to work.
Dr. Harold J. Granger, a Board-certified orthopedic surgeon, reviewed appellant’s
medical background and by report dated August 18, 2009 noted that she tested negative for
Finklestein’s test, Tinel’s test carpal canal and Phalen’s test carpal canal. He ultimately
diagnosed her with tenosynovitis of hand and wrist, which resulted from her repetitive activities
at work in the employing establishment. Dr. Granger also provided an August 18, 2009 work
excuse slip stating that appellant was unable to work.
In a September 15, 2009 medical note, Dr. Granger reported that appellant’s left wrist
had no swelling and was tender in her anatomic snuffbox. He further stated that she tested
negative for Finklestein’s test, Tinel’s test carpal canal and Phalen’s test carpal canal and an xray of her wrist revealed no acute or chronic abnormalities. Dr. Granger referred appellant for
electromyograms (EMGs).
In September 17, 2009 diagnostic testing results, Dr. Stuart A. Begnaud, Board-certified
in physical medicine and rehabilitation, reported that appellant’s bilateral upper extremity was
normal throughout with no findings of entrapment centrally or peripherally.
In a September 25, 2009 letter, Dr. Granger stated that he did not know when appellant
could return to work.
In an October 7, 2009 duty status report, Dr. Granger checked a form box stating that the
employee was not advised to resume work.
By letter dated October 22, 2009, the employing establishment advised appellant that her
eligibility for continuation of pay expired on November 2, 2009 and enclosed a (Form CA-7)
claim for compensation, to be completed for subsequent compensation benefits.
2

On November 9, 2009 appellant submitted a Form CA-7 claim for the period October 31
to November 6, 2009. She submitted another Form CA-7 on November 23, 2009 requesting
compensation for the period of November 4 to 20, 2009.
In a November 20, 2009 letter, the Office advised appellant that the evidence submitted
was insufficient to support her claim for disability compensation for the period October 31 to
November 6, 2009. It informed her to submit a comprehensive medical report providing
reasonable medical rationale regarding why she could not work for the specified time period and
explaining the cause of her disability during the applicable time period.
Appellant provided various medical notes from Dr. Rowdy C. Abshire, a chiropractor.
On October 26, 2009 Dr. Abshire reported that cervical x-rays had been taken in his office which
revealed spondylosis of C5-6, degeneration of facet joints C5-6 and a reversed cervical
curvature. In an October 26, 2009 letter, he requested that appellant’s claim be upgraded to
include cervical spondylosis with myelopathy and cervicalgia. On November 3, 2009 the Office
issued a letter requesting additional information in order to determine whether chiropractic care
would be authorized for appellant’s work-related condition.
In an October 30, 2009 duty status report, Dr. Abshire checked a form box noting that
appellant was advised not to return to work. In an October 23, 2009 work excuse slip, he also
stated that she should be excused from work from October 6, 2009 until the present. In an
October 30, 2009 attending physician’s report, Dr. Abshire further noted that appellant was
partially disabled beginning on June 30, 2009 and that he treated her from October 6, 2009 until
the present. He diagnosed appellant with cervical spondylosis with myelopathy and explained
that this condition was caused or aggravated by the repetitive activities and heavy lifting as
documented in the 2002 incident.
Dr. Granger stated in a December 8, 2009 letter that appellant had been under his care
since August 18, 2009 for left wrist and hand pain and was unable to perform her repetitive work
duties at the employing establishment. He further explained that if she returned to work, her
progress would be adversely affected and she would continue to have pain.
By decision dated December 22, 2009, the Office disallowed appellant’s claim for
disability compensation for wage loss for the period October 31 to November 20, 2009 due to
insufficient medical evidence establishing that she was disabled for work during the requested
time periods due to her accepted work-related conditions. It noted that the medical evidence
providing a medical diagnosis of cervical spondylosis were not sufficient because it was
provided by a chiropractor, who is not considered a physician as defined under the Act.
Appellant provided additional medical reports from Dr. Granger. In a December 3, 2009
medical report, Dr. Granger stated that her hand condition was an overuse injury from her job
and that the reason she had not returned to work was because her work was what precipitated her
condition. In a January 14, 2010 work excuse slip, he also noted that appellant was unable to
work from October 23, 2009 until present.
On January 15, 2010 appellant requested a review of the written record.

3

In a January 14, 2010 medical note, Dr. Granger stated that appellant was still unable to
return to work since her job required repetitive motion. He reviewed her medical and social
background, and upon examination, noted that she had a negative Finklestein test, Tinnel’s test
carpal canal and Phalen’s test. Appellant’s x-ray and diagnostic test results were also normal.
In a March 1, 2010 letter, the Office submitted a copy of appellant’s request for a review
of the written record to the employing establishment for review and comment. No response was
received.
In a decision dated March 29, 2010, an Office hearing representative affirmed the
December 22, 2009 decision on the grounds of insufficient evidence establishing that her
disability was causally related to her accepted employment-related condition.
By decision dated April 8, 2010, the Office denied appellant’s claim for disability
compensation for the period October 31 to November 20, 2009 because she failed to provide any
medical opinion evidence establishing that her disability resulted from her work-related accepted
conditions.
LEGAL PRECEDENT
The term disability as used in the Act3 means the incapacity because of an employment
injury to earn the wages that the employee was receiving at the time of injury.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 be disabled for employment is a medical issue which must be proved by a
preponderance of the reliable, probative and substantial medical evidence.6 Findings on
examination are generally needed to support a physician’s opinion that an employee is disabled
for work.7
The Board will not require the Office to pay compensation for disability in the absence of
any medical evidence addressing the specific dates of disability for which compensation is
claimed. To do so would essentially allow employees to self-certify their disability and
entitlement to compensation.8
5 U.S.C. § 8101(2) of the Act provides that the term “physician” includes surgeons,
podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic
practitioners within the scope of their practice as defined by state law.
3

5 U.S.C. §§ 8101-8193.

4

20 C.F.R. § 10.5(f); Paul E. Thams, 56 ECAB 503 (2005).

5

Sandra D. Pruitt, 57 ECAB 126 (2005); Dennis J. Balogh, 52 ECAB 232 (2001).

6

G.T., 59 ECAB 447 (2008); Gary J. Watling, 52 ECAB 278 (2001).

7

See S.F., 59 ECAB 525 (2008); Fereidoon Kharabi, 52 ECAB 291 (2001).

8

Amelia S. Jefferson, 57 ECAB 183 (2005); see William A. Archer, 55 ECAB 674 (2004).

4

ANALYSIS
On September 17, 2009 the Office accepted appellant’s occupational disease claim for
tenosynovitis of the left hand and wrist. Appellant received continuation of pay through
October 31, 2009. She claimed compensation for October 31 to November 20, 2009, and it is
her burden of proof to establish the claimed period of employment-related disability. When
determining whether appellant’s burden of proof has been met, the Board considers factors such
as whether there are objective findings, a thorough understanding of the job duties by the
physician, a firm diagnosis and a rationalized, unequivocal opinion that appellant was disabled
due to the employment injury for the period claimed.9 Appellant has not met her burden of proof
in this case.
Appellant provided medical reports from Dr. Granger. In a September 25, 2009 medical
slip, Dr. Granger reported that he did not know when she could return to work. Similarly, in a
December 8, 2009 letter, he stated that appellant was unable to perform her repetitive work
duties at employing establishment due to her left wrist and hand pain. In a December 3, 2009
medical report, Dr. Granger also noted that she was unable to return to work as her work was the
cause of her condition. In a January 14, 2010 work excuse slip, he further reported that appellant
was unable to work from October 23, 2009 until present.
Dr. Granger, however, failed to provide any medical basis for appellant’s claimed
disability for work after October 31, 2009. By September 15, 2009, Dr. Granger had reported
that appellant’s Finklestein’s test, Tinel’s test and Phalen’s tests were all negative, she had no
swelling of her left wrist and x-ray of her wrist revealed no acute or chronic abnormalities. Only
tenderness in appellant’s anatomic snuffbox was noted. Although Dr. Granger referred her for
EMG evaluation, the results of this testing were also reported as within normal limits by
Dr. Begnaud on September 17, 2009. He reconfirmed the negative findings on further testing as
of January 14, 2010. Dr. Granger never explained, with medical rationale, why appellant
continued to be disabled during the time period in question, given the lack of objective findings.
While in his December 8, 2009 report he stated that if she returned to work, her progress would
be adversely affected, the Board has held that fear of future injury is not compensable.10
Appellant also submitted reports from Dr. Abshire, a chiropractor. In an October 23,
2009 work excuse slip, Dr. Abshire stated that she should be excused from work from October 6,
2009 until the present. In an October 30, 2009 attending physician’s report, he noted that
appellant was partially disabled beginning on June 30, 2009. Although Dr. Abshire opined that
she was partially disabled and that her condition was a result of her federal employment, this
opinion regarding disability is of no probative value as he is not considered a “physician” as
defined under the Act.11 The term “physician” includes chiropractors only to the extent that their
reimbursable services are limited to treatment consisting of manual manipulation of the spine to
9

See L.D., Docket No. 09-1503 (issued April 15, 2010); V.M., Docket No. 10-1056 (issued December 16, 2010).

10

I.J., 59 ECAB 408 (2008).

11

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

5

correct a subluxation as demonstrated by x-ray to exist and subject to regulations by the
Secretary.12 Dr. Abshire had x rays taken in his office, but his diagnoses do not relate
subluxation, and thus, he is not considered a physician under the Act.
As previously stated, 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.13 In this case, appellant did not meet her burden of proof because she submitted
insufficient medical evidence explaining why she was disabled during the relevant time periods
and why the claimed disability was causally related to her accepted conditions.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish an
employment-related disability from October 31 to November 20, 2009.
ORDER
IT IS HEREBY ORDERED THAT the April 8 and March 29, 2010 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: May 10, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

12

Paul Foster, 56 ECAB 208 (2004); Mary A. Ceglia, 55 ECAB 626 (2004).

13

See Sandra D. Pruitt, supra note 5.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.G., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Chicago, IL, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 11-1643
Issued: January 25, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

Appellant, through her attorney, filed an application for review of the Office of Workers’
Compensation Programs’ (OWCP) June 1, 2011 merit decision denying her occupational disease
claim. The appeal was docketed as File No. 11-1643. The Board finds that this case is not in
posture for a decision.
On April 20, 2007 appellant filed an occupational disease claim under File
No. xxxxxx357 for neck and back injuries resulting from employment activities. OWCP
accepted the claim for temporary aggravation of three preexisting conditions, namely lumbar
sprain, cervical disc herniation and lumbar disc bulge.
The present appeal involves appellant’s August 25, 2009 occupational disease claim
under File No. xxxxxx817 in which she alleged that she sustained an aggravation her preexisting
herniated disc condition as a result of her employment activities as a security screener. By
decision dated November 20, 2009, OWCP denied her claim finding that the evidence was
insufficient to establish that she had a medical condition that was causally related to the
established work-related activities. By decision dated June 17, 2010, an OWCP hearing
representative affirmed the November 20, 2009 decision, noting that he was unable to determine
whether appellant’s condition was an aggravation of a preexisting condition or a natural

progression of the condition. In a decision dated June 1, 2011, OWCP denied modification of its
prior decision.
In the instant case, OWCP has accepted that appellant was engaged in the same work
activities that were responsible for her accepted condition under File No. xxxxxx357. The issue
is whether those same activities are responsible for a new injury. As appellant’s diagnosed
cervical and lumbar conditions are at issue in both cases, medical evidence contained in File No.
xxxxxx357 will necessarily bear directly on her claim for compensation in the instant case.
Because it is essential for the Board to review the medical evidence contained in File No.
xxxxxx357 in order to render a full and fair adjudication of the present appeal, this case will be
remanded for OWCP to consolidate case file numbers xxxxxx357 and xxxxxx817. After
developing the medical evidence as it deems necessary, OWCP should issue a de novo decision
on the merits of the claim, in order to protect appellant’s appeal rights.
IT IS HEREBY ORDERED that the Office of Workers’ Compensation Programs’
June 1, 2011 decision be set aside and the case remanded for further development consistent with
this order.
Issued: January 25, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, FEDERAL AIR
MARSHAL SERVICE, Sunrise, FL, Employer
__________________________________________

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

Docket No. 17-0519
Issued: May 12, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 9, 2017 appellant filed a timely appeal from a November 17, 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’s claim for compensation was timely filed pursuant to 5
U.S.C. § 8122.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the November 17, 2016 OWCP decision, appellant submitted
new evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued
its final decision. Thus, the Board is precluded from reviewing this evidence on appeal. See 20 C.F.R.
§ 501.2(c)(1); see also Dennis E. Maddy, 47 ECAB 259 (1995).

On appeal appellant contends that he did not receive any notices regarding his claim
because he was in the middle of his move from Miami, FL, to the Washington, DC, area. He
asserts that he had all of his mail held at a post office from October 31, 2016, the date he moved
into temporary quarters, until November 22, 2016,3 the closing date of his new home.
FACTUAL HISTORY
On September 1, 2016 appellant, then a 40-year-old federal air marshal, filed a traumatic
injury claim (Form CA-1) alleging that on February 2, 2013 he had constant ringing in his ears
while on descent in a flight from Florida to Washington, DC. He alleged that his head and ears
became clogged and were not able to clear and equalize the pressure.
On the reverse of the claim form, R.P., a supervisor, indicated that he did not receive
notice of appellant’s alleged injury until September 9, 2016.
By letter dated October 14, 2016, OWCP advised appellant that the evidence submitted
was insufficient to establish his claim. It informed him of the medical and factual evidence
needed and also advised him that the evidence was insufficient to show that he timely filed his
claim. OWCP requested that appellant submit such evidence and respond to the provided
questions within 30 days. The letter was mailed to his address provided on the September 9,
2016 Form CA-1. In another letter dated October 14, 2016, OWCP requested that the employing
establishment submit evidence within 30 days regarding the timeliness of appellant’s claim.
Neither appellant nor the employing establishment responded to OWCP’s factual inquiries.
In a November 17, 2016 decision, OWCP denied appellant’s claim that he sustained an
injury in the performance of duty on February 2, 2013. It found that he had established that he
was a federal civilian employee who filed a timely claim and that the injury and/or event(s)
occurred as described. However, OWCP further found that appellant had not established the
medical component of the third basic element, fact of injury. It noted that he had not submitted
any evidence containing a medical diagnosis in connection with the accepted February 2, 2013
work incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that 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 employment injury.4

3

It appears that appellant inadvertently stated that he had his mail held at the post office until November 22, 2017
rather than November 22, 2016 as he provided a new street address in Haymarket, Virginia, on his January 9, 2017
Application for Review (Form AB-1).
4

J.H., Docket No. 14-1219 (issued November 24, 2014).

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The issue of whether a claim was timely filed is a preliminary jurisdictional issue that
precedes any determination on the merits of the claim.5 The Board may raise the issue on appeal
even if OWCP did not base its decision on the time limitation provisions of FECA.6
In cases of injury on or after September 7, 1974, section 8122(a) of FECA provides that
an original claim for compensation for disability or death must be filed within three years after
the injury or death. Compensation for disability or death, including medical care in disability
cases, may be allowed even if a claim is not filed within three years if the immediate superior
had actual knowledge of the injury or death within 30 days such as to put the immediate superior
reasonably on notice of an on-the-job injury or death, or written notice of injury or death as
specified in section 8119 was given within 30 days.7
Section 8119 of FECA provides that a notice of injury or death shall be given within 30
days after the injury or death; be given to the immediate superior of the employee by personal
delivery or by depositing it in the mail properly stamped and addressed; be in writing; state the
name and address of the employee; state the year, month, day, and hour when and the particular
locality where the injury or death occurred; state the cause and nature of the injury, or in the case
of death, the employment factors believed to be the cause; and be signed by and contain the
address of the individual giving the notice.8 Actual knowledge and written notice of injury under
section 8119 serve to satisfy the statutory period for filing an original claim for compensation.9
For actual knowledge of a supervisor to be regarded as timely filed, an employee must show not
only that the immediate superior knew that he or she was injured, but also knew or reasonably
should have known that it was an on-the-job injury.10
When a traumatic injury definite in time, place, and circumstances is involved, the time
for giving notice of injury and filing for compensation begins to run at the time of the incident,
even though the employee may not have been aware of the seriousness or ultimate consequences
of his or her injury.11 The Board has held that the applicable statute of limitations commences to
run although the employee does not know the precise nature of the injury.12
ANALYSIS
On September 1, 2016 appellant filed a traumatic injury claim alleging that on
February 2, 2013 he sustained an injury to his ears as a result of the descent during a flight from
5

Charles Walker, 55 ECAB 238, 239 (2004); see Charles W. Bishop, 6 ECAB 571, 571 (1954).

6

Id.

7

5 U.S.C. § 8122(a).

8

Id. at § 8119; Larry E. Young, 52 ECAB 264, 266 (2001).

9

Laura L. Harrison, 52 ECAB 515, 517 (2001).

10

Delmont L. Thompson, 51 ECAB 155, 156 (1999).

11

Emma L. Brooks, 37 ECAB 407, 411 (1986).

12

Delmont L. Thompson, supra note 10.

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Florida to Washington, DC, while at work. The Board finds that his claim was not timely filed
in a timely manner.
The time for appellant giving notice of injury and filing for compensation began to run at
the time of the claimed incident on February 2, 2013.13 Appellant did not file his Form CA-1 for
a work injury until September 1, 2016. Therefore, appellant’s claim for this injury was not filed
within the requisite three-year time limitation period.
Appellant’s claim could still be considered timely if the 30-day notice provisions of 5
U.S.C. § 8122 were met, but in this case no probative evidence was presented that he provided
notice of injury within 30 days. R.P. reported that he did not receive notice of appellant’s
claimed injury until September 9, 2016. Further, appellant did not provide any evidence that his
immediate superior had actual knowledge of an employment injury within 30 days, nor is there
any evidence that written notice of injury was given within 30 days. He did not respond to
OWCP’s questionnaire and did not provide OWCP with additional factual evidence regarding
the delay in filing his claim.
The Board finds, therefore, that the claim in this case was untimely filed. The evidence
of record does not establish that the claim was timely under the provisions of 5 U.S.C. § 8122.
On appeal appellant contends that he did not receive any notices regarding his claim
because he was in the middle of his move from Miami, FL, to the Washington, DC, area. He
asserts that he had all of his mail held at a post office from October 31, 2016, the date he moved
into temporary quarters, until November 22, 2016, the closing date of his new home, but the
claim was already untimely at that time and, whether appellant had received notice or not, would
not render timely the otherwise untimely claim.
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’s claim for compensation was not timely filed pursuant to
5 U.S.C. § 8122.

13

See supra notes 10 and 11.

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ORDER
IT IS HEREBY ORDERED THAT the November 17, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified herein.
Issued: May 12, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.D., (widow of C.D.), Appellant
and
DEPARTMENT OF THE NAVY, NAVAL AIR
STATION, Alameda, CA, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-2497
Issued: August 19, 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 September 19, 2008 appellant filed a timely appeal from the February 12, 2008
decision of the Office of Workers’ Compensation Programs regarding the employee’s schedule
award. 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 the Office properly determined that the employee’s increased
schedule award should commence February 14, 2000.
FACTUAL HISTORY
The case was before the Board on a prior appeal. By decision dated November 3, 2006,
the Board found that appellant was not precluded from pursuing an increased schedule award on
behalf of the employee’s estate, since the employee had filed a claim for an increased schedule

award prior to his death on November 3, 2001.1 The history of the case as contained in the
Board’s prior decision is incorporated herein by reference.
In a report dated May 29, 2007, an Office medical adviser reviewed the medical evidence
and opined that the employee had a 52 percent right arm impairment and a 39 percent left arm
impairment. With respect to the date of maximum medical improvement (MMI), the medical
adviser found that the MMI was February 14, 2000, based on a July 29, 2005 report from the
attending orthopedic surgeon, Dr. George Pugh.
By decision dated June 25, 2007, the Office found the employee was entitled to an
increased schedule award. Since the employee had previously received schedule awards totaling
a 39 percent impairment of the right arm and a 20 percent left arm impairment, he was entitled to
an additional 13 percent for the right arm and 19 percent for the left arm. The Office found the
date of MMI was February 14, 2000, and the period of the award was 99.84 weeks from
February 14, 2000 to January 12, 2002. In addition, it noted that the employee had received
compensation for wage loss until his death on November 3, 2001. The wage-loss compensation
paid for February 14, 2000 to November 3, 2001 would therefore be converted into a schedule
award.
Appellant, through her representative, requested a hearing before an Office hearing
representative, which was held on November 28, 2007. She contended that the schedule award
should commence at the employee’s death and run for 99.84 weeks. By decision dated
February 12, 2008, the hearing representative affirmed the June 25, 2007 decision with respect to
the commencement of the schedule award.
LEGAL PRECEDENT
The period covered by a schedule award commences on the date that the employee
reaches MMI from the residuals of the injury. The question of when MMI has been reached is a
factual one, which depends upon the medical findings in the record. The determination of such
date is to be made in each case upon the basis of the medical evidence in that case.2
ANALYSIS
Appellant did not contest the determination as to the degree of permanent impairment to
the employee’s right and left arms. On appeal, appellant’s counsel argues that the schedule
award should not have begun on February 14, 2000, but should have been delayed until the
employee’s death on November 3, 2001. Appellant acknowledges that compensation for wage
loss and a schedule award cannot be paid concurrently.3 She contends that the schedule award
benefit is akin to a recurrence claim. Under Office procedures, a claimant who has an accepted

1

Docket No. 06-1010 (issued November 3, 2006).

2

L.H., 58 ECAB ___ (Docket No. 06-1691, issued June 18, 2007); Jerre R. Rinehart, 45 ECAB 518 (1994).

3

See Michael J. Biggs, 54 ECAB 595 (2003).

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recurrence of disability while receiving a schedule award would be entitled to a recurrent pay
rate for the balance of the schedule award after the recurrent disability had ceased.4
The present case does not involve a recurrence of disability or a recurrent pay rate. The
employee was receiving wage-loss compensation for total disability until his death. It is well
established that a schedule award commences on the date of MMI. In this case, the evidence is
clear and unequivocal on the issue. Dr. Pugh, the attending physician, stated in a July 29, 2005
report that the employee had reached a permanent and stationary status by February 14, 2000.
An attending osteopath, Dr. David Weiss, opined in an August 26, 2005 report that the employee
had reached MMI on February 14, 2000, the date of his last examination by Dr. Pugh. The
Office medical adviser also concurred that the date of maximum medical improvement was
February 14, 2000.
Based on the medical evidence of record, the date of MMI was properly found to be
February 14, 2000. Appellant does not discuss the medical evidence. There is no provision in
the Federal Employees’ Compensation Act, its regulations or in Board precedent that would
require the Office to disregard the medically established date of MMI in this case and begin the
schedule award on the date of the employee’s death.
On appeal, appellant cites Franklin L. Armfield5 and the Office procedure manual at
2.808(7)(a)(1). In Armfield, the Office had commenced a schedule award on the date the
claimant had last been exposed to job-related noise. The Board found the proper date to
commence the schedule award was the date of MMI as determined by the medical evidence,
which was approximately four years later. This decision is consistent with the general principle
that a schedule award begins on the date of MMI and with the holding in the present case. The
Board finds that the Office considered the medical evidence and found the date of the
employee’s MMI was February 14, 2000. The increased schedule award properly commenced
on that date.
CONCLUSION
The Office properly determined that the period of the increased schedule award should
begin on February 14, 2000.

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.7(a)(3) (August 2002).
5

28 ECAB 445 (1977).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 12, 2008 is affirmed.
Issued: August 19, 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

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