United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New York, NY, Employer
__________________________________________

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

Docket No. 12-651
Issued: August 8, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 23, 2012 appellant filed a timely appeal from November 28, 2011 and
January 4, 2012 nonmerit decisions of the Office of Workers’ Compensation Programs (OWCP)
denying his requests for a hearing and reconsideration.1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board does not have
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly denied appellant’s request for a review of
the written record; and (2) whether OWCP properly denied appellant’s January 3, 2012 request
for reconsideration under 5 U.S.C. § 8128(a) as untimely.

1

The last merit decision in this case was a decision of the Board dated September 30, 2011.

2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case was previously before the Board.3 In a September 30, 2011 decision, the Board
affirmed a November 19, 2010 decision of OWCP, finding that appellant failed to establish that
he sustained an injury on October 1, 2010 in the performance of duty. The facts and history of
the case as set forth in the prior decision are incorporated by reference.
On October 30, 2011 appellant submitted a request for a review of the written record.
In a decision dated November 28, 2011, an OWCP hearing representative denied
appellant’s request for a review of the written record. It found that the Board’s decision of
September 30, 2011 addressed appellant’s traumatic injury claim. Because decisions of the
Board were final, the hearing representative determined that the Branch of Hearings and Review
did not have jurisdiction to review decisions of the Board. It also exercised its discretion and
determined that the issue in this case could equally well be addressed by requesting
reconsideration from OWCP.
On December 19, 2011 OWCP received a request for reconsideration of the
November 19, 2010 OWCP merit decision together with additional medical evidence. Appellant
included a magnetic resonance imaging (MRI) scan and ambulance report to support that he
sustained an injury on October 1, 2010 when he was involved in a motor vehicle accident at
work.
By decision dated January 4, 2012, OWCP denied appellant’s request for reconsideration
finding that it was untimely filed and failed to present clear evidence of error.
LEGAL PRECEDENT -- ISSUE 1
Section 8124(b)(1) of FECA provides that 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 or her claim before a representative of the
Secretary.4 Sections 10.617 and 10.618 of the federal regulations implementing this section of
FECA provide that a claimant shall be afforded a choice of an oral hearing or a review of the
written record by a representative of the Secretary.5
FECA provides OWCP with original jurisdiction in the processing of compensation
claims and section 8124(a) provides OWCP with the duty and authority to issue an initial
decision on an employee’s claim for compensation.6 Once an initial decision is made in a
compensation case, the claimant’s rights arise by which the claimant may seek further review of
her claim: the right to a hearing before OWCP, the right to reconsideration before OWCP or an
appeal to the Board. The Board has clarified that OWCP does not have discretionary authority to
grant a request for hearing or review of the written record immediately following a Board
3

Docket No. 11-644 (issued September 30, 2011).

4

5 U.S.C. § 8124(b) (1).

5

20 C.F.R. §§ 10.616, 10.617.

6

Id. at § 8124(a).

2

decision. OWCP’s Branch of Hearing and Review may not assume jurisdiction in the claims
process absent a final adverse decision by the Director, which has not previously been reviewed.7
ANALYSIS -- ISSUE 1
Appellant filed a claim alleging that on October 1, 2010 he sustained a traumatic injury in
the performance of duty. In a decision dated November 19, 2010, OWCP denied his claim.
Following the issuance of this decision, appellant exercised filed an appeal to the Board. The
Board reviewed the case and issued its final decision on this claim on September 30, 2011. On
October 30, 2011 appellant requested a review of the written record. By decision dated
November 28, 2011, OWCP denied his request for a review of the written record. The Board
finds that OWCP properly denied appellant’s request.
OWCP properly found that the Branch of Hearings and Review did not have jurisdiction
to review a decision of the Board. Section 8149 of FECA and its implementing regulations
provide that decisions of the Board, on appeals taken from claims of employees are final as to the
subject matter appealed and such decision shall not be subject to review, except by the Board.8
In this case, the Board issued a final decision on appellant’s traumatic injury claim on
September 30, 2011. OWCP did not subsequently issue a final decision. Rather, on October 30,
2011, appellant requested a review of the written record. The Board has held that, following
review of an OWCP decision, a claimant does not have the right under 5 U.S.C. § 8124(b)(1) to
request an oral hearing or a review of the written record in the absence of a final OWCP
decision.9 Appellant had no right to request an oral hearing or a review of the written record
following the issuance of the Board’s September 30, 2011 decision. Because the record contains
no final and unreviewed OWCP decision over which OWCP’s Branch of Hearings and Review
could assume jurisdiction to exercise its discretionary appellate authority, the Board finds that
OWCP properly denied appellant’s request for a review of the written record.10
LEGAL PRECEDENT -- ISSUE 2
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a
claimant must file his application for review within one year of the date of that decision.11 The
Board has found that the imposition of the one-year time limitation does not constitute an abuse
of the one-year period begins on the date of the original decision. However, a right to
reconsideration within one year accompanies any subsequent merit decision on the issues. This
includes any hearing or review of the written record decision, any denial of modification
following reconsideration, any merit decision by the Board and any merit decision following
action by the Board.12
7

Robert N. Thomas, 51 ECAB 180 (1999); Eileen A. Nelson, 46 ECAB 377 (1994).

8

5 U.S.C. § 8149; 20 C.F.R. § 501.6(c).

9

Id. See also William P. Maher, Docket No. 95-700 (issued January 23, 1996).

10

See also J.H., Docket No. 09-1406 (issued January 14, 2010).

11

20 C.F.R. § 10.607(a).

12

D.G., 59 ECAB 455 (2008); Veletta C. Coleman, 48 ECAB 367 (1997); Leon D. Faidley, 41 ECAB 104,
111 (1989).

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ANALYSIS -- ISSUE 2
The Board finds that OWCP improperly determined that appellant failed to file a timely
request for reconsideration.
The Board issued a merit decision in this case on
September 30, 2011. Appellant had one year to request further review before OWCP. His
request for reconsideration was received by OWCP on December 19, 2011, within one year of
the Board’s decision. Accordingly, appellant request for reconsideration was timely filed. On
remand of this case, OWCP shall review the evidence submitted by appellant with his
December 19, 2011 request for reconsideration and issue a decision under the appropriate
standard of review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for a review of the
written record. The Board further finds that OWCP improperly denied his request for
reconsideration as untimely and failing to establish clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the November 28, 2011 decision is affirmed and
the January 4, 2012 decision of the Office of Workers’ Compensation Programs is set aside for
further proceedings consistent with this opinion.
Issued: August 8, 2012
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Brooklyn, NY, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 13-1135
Issued: April 24, 2014

Case Submitted on the Record

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

On April 10, 2013 appellant filed an application for review of Office of Workers’
Compensation Programs’ (OWCP) decisions dated January 11 and March 18, 2013. The appeal
was docketed as No. 13-1135.
The Board, having reviewed the case record submitted by OWCP, finds that the record is
incomplete. The record lacks documentation regarding the origin and development of the
traumatic injury claim which is the subject of the instant appeal. While OWCP’s decisions in
this case make reference to a November 8, 2012 traumatic injury, the record contains no
documentation of this alleged incident. In addition, it must be consolidated with three other case
files which are inextricably intertwined with the facts in this case. Appellant indicates in her
appeal that she has filed an occupational disease claim, a traumatic injury claim and a recurrence
claim and that she stopped work due to alleged injury on several occasions. The instant record
must be consolidated and clarified in order to have an informed adjudication of this case. The
case record before the Board is incomplete.
Accordingly, the case file does not include a significant portion of the record pertaining
to the history and development of appellant’s claim, as is required for an informed adjudication
of this case. As all the records pertaining to appellant’s claim are necessary for complete
consideration and adjudication of the issue raised on appeal, the Board, therefore, finds that the

appeal docketed as No. 13-1135 is not in posture for a decision as the Board is unable to render
an informed adjudication of the case. The January 11, 2013 decision will be set aside and
remanded for reconstruction and consolidation of the case records to include the entire case file
pertaining to claim file numbers xxxxxx018, xxxxxx826, xxxxxx970 and xxxxxx318. The
district office should be instructed to research its records and ascertain whether appellant filed a
Form CA-1 traumatic injury claim in November 2013, and whether she submitted any evidence
in support of such a claim. After such further development as OWCP deems necessary, it should
issue an appropriate decision to protect appellant’s appeal rights. Once OWCP obtains this
information, clarifies the instant record and composes a new statement of accepted facts, it
should then issue a de novo decision resolving all of the pertinent issues in this case.
IT IS HEREBY ORDERED THAT this case is remanded for reconstruction and
consolidation of the case records.
Issued: April 24, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Perth Amboy, NJ, Employer
__________________________________________

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

Docket No. 07-131
Issued: May 1, 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 October 18, 2006 appellant timely appealed the May 3, 2006 merit decision of the
Office of Workers’ Compensation Programs, which affirmed a schedule award for permanent
impairment of the left lower extremity. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the
Board has jurisdiction over the merits of the schedule award.
ISSUE
The issue is whether appellant has greater than 20 percent impairment of the left lower
extremity.
FACTUAL HISTORY
On April 28, 1997 appellant, then a 36-year-old distribution window clerk, sustained an
employment-related lower back injury while lifting a sack weighing 40 to 60 pounds. The Office
accepted her claim for lumbosacral strain and authorized a November 4, 1997 discectomy at
L5-S1.

Appellant filed a claim for a schedule award on February 19, 2003. In a report dated
December 28, 2002, Dr. David Weiss, a Board-certified orthopedist, found 45 percent
impairment of the left lower extremity. The Office referred appellant to Dr. Robert Dennis, a
Board-certified orthopedic surgeon, for a second opinion. Dr. Dennis examined appellant on
May 13, 2003 and found 31 percent impairment of the left lower extremity.
The Office declared a conflict of medical opinion and referred appellant for an impartial
medical examination with Dr. Ian B. Fries, a Board-certified orthopedic surgeon. In a report
dated August 25, 2003, Dr. Fries provided two alternative methods for calculating appellant’s
left lower extremity impairment. Both methods took into account impairment for left hallux
extension weakness 4+/5, left lateral plantar foot sensory deficit and loss of left ankle reflex.
One rating method resulted in a finding of 20 percent impairment and the other method revealed
a lesser impairment of 16 percent. The district medical adviser agreed with Dr. Fries 20 percent
impairment rating.
By decision dated October 15, 2003, the Office granted a schedule award for 20 percent
impairment of the left lower extremity. The award covered a period of 57.6 weeks from
August 25, 2003 to October 1, 2004. However, the October 15, 2003 schedule award was
subsequently vacated and the case was remanded to the Office to obtain clarification from
Dr. Fries regarding his alternative impairment ratings.
In a January 3, 2005 supplemental report, Dr. Fries explained, among other things, that
the American Medical Association, Guides to the Evaluation of Permanent Impairment (5th ed.
2001) indicate that several evaluation methods may be applicable to an individual case. He also
noted that the A.M.A., Guides suggest the greatest impairment rating be chosen. According to
Dr. Fries, the difference between the two alternative impairment ratings was consistent with the
inaccuracies of biological measurements, the inherent inaccuracies of the A.M.A., Guides, and
estimates required by an examining physician.
The Office also received supplemental reports from both Dr. Weiss and Dr. Dennis
reaffirming their earlier impairment ratings of 45 and 31 percent, respectively.
In a February 11, 2005 decision, the Office found that appellant was not entitled to an
award in excess of the previously awarded 20 percent impairment of the left lower extremity.
Appellant requested a hearing, which was held on February 28, 2006. Following the
hearing, she submitted an amended December 28, 2002 report from Dr. Weiss. The amended
report differed from the original in two respects. Initially, Dr. Weiss assigned five percent
impairment for 3/5 motor strength deficit involving the left gastrocnemius. In his amended
report, Dr. Weiss increased the left gastrocnemius impairment to 25 percent. But unlike the
initial report, the amended report did not include an additional three percent impairment for pain.
Dr. Weiss’ amended report found a combined left lower extremity impairment of 42 percent.
In a decision dated May 3, 2006, the hearing representative affirmed the Office’s
February 11, 2005 decision.

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LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.1 The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice under the law, good administrative practice requires the use of uniform
standards applicable to all claimants. The implementing regulations have adopted the A.M.A.,
Guides as the appropriate standard for evaluating schedule losses.2 Effective February 1, 2001,
schedule awards are determined in accordance with the A.M.A., Guides (5th ed. 2001).3
ANALYSIS
The Office determined that a conflict of medical opinion existed based on the opinions of
Dr. Weiss and Dr. Dennis. Therefore, the Office properly referred appellant to an impartial
medical examiner.4 Dr. Fries, the impartial medical examiner, provided alternative impairment
ratings of 16 and 20 percent of the left lower extremity. Both ratings included impairment for
loss of left ankle reflex, lateral plantar foot sensory deficit and left hallux extension weakness. In
his supplemental report, Dr. Fries explained that the A.M.A., Guides suggests that the greatest
impairment rating be chosen. When the district medical adviser reviewed Dr. Fries’ findings on
September 12, 2003, he concurred with the 20 percent impairment rating.
The Board finds that the Office properly relied on the impartial medical examiner’s
findings. Dr. Fries’ opinion is sufficiently well rationalized and based upon a proper factual
background. He not only examined appellant, but also reviewed appellant’s medical records.
Dr. Fries also reported accurate medical and employment histories. Furthermore, his 20 percent
impairment rating is consistent with the A.M.A., Guides (5th ed. 2001) and the district medical
adviser concurred.5 Accordingly, the Office properly accorded determinative weight to the
impartial medical examiner’s findings.6
Appellant has not submitted any credible medical evidence indicating that he has greater
than 20 percent impairment of the left lower extremity. The supplemental reports from both
1

The Act provides that, for a total, or 100 percent loss of use of a leg, an employee shall receive 288 weeks of
compensation. 5 U.S.C. § 8107(c)(2) (2000).
2

20 C.F.R. § 10.404 (2006).

3

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 (June 2003).

4

The Act provides that, if there is disagreement between the physician making the examination for the Office and
the employee’s physician, the Office shall appoint a third physician who shall make an examination. 5 U.S.C.
§ 8123(a); Shirley L. Steib, 46 ECAB 309, 317 (1994).
5

See A.M.A., Guides 482, Table 16-10; A.M.A., Guides 484, Table 16-11; A.M.A., Guides 551, Figures 17-8
and 17-9; A.M.A., Guides 552, Table 17-37; A.M.A., Guides 604-06, Combined Values Chart.
6

Where the Office has referred appellant to an impartial medical examiner to resolve a conflict in the medical
evidence, the opinion of such a specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight. Gary R. Sieber, 46 ECAB 215, 225 (1994).

3

Dr. Dennis and Dr. Weiss are insufficient to overcome the weight accorded Dr. Fries’ opinion.
Moreover, these reports are insufficient to create a new conflict of medical opinion.7
CONCLUSION
Appellant has not demonstrated that she has greater than 20 percent impairment of the
left lower extremity.
ORDER
IT IS HEREBY ORDERED THAT the May 3, 2006 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 1, 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

7

A subsequently submitted report of a physician on one side of a resolved conflict of medical opinion is generally
insufficient to overcome the weight of the impartial medical specialist or to create a new conflict of medical opinion.
Richael O’Brien, 53 ECAB 234, 242 n.6 (2001).

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

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

Docket No. 07-967
Issued: August 1, 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 February 26, 2007 appellant filed a timely appeal from the December 14, 2006 merit
decision of the Office of Workers’ Compensation Programs, which denied his claim for
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review
the merits of his claim.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty on
October 30, 2006.
FACTUAL HISTORY
On November 1, 2006 appellant, then a 44-year-old letter carrier, filed a claim alleging
that he sustained a right knee injury on October 30, 2006 while in the performance of duty:
“Went in a new path to mailbox because of a dog and stepped in a small hole hyperextending my
right knee.” On November 9, 2006 the Office asked appellant to submit medical evidence to
support his claim, including a physician’s report diagnosing his condition and medically

explaining how the work incident caused or aggravated the injury. The Office advised: “This
explanation is crucial to your claim.”
On November 8, 2006 Dr. Richard A. Rivers, a family practitioner, completed a form
report. He diagnosed right knee pain and indicated with an affirmative mark that this condition
was caused or aggravated by stepping into a hole while delivering mail. Dr. Rivers prescribed a
magnetic resonance imaging (MRI) scan.
In a decision dated December 14, 2006, the Office denied appellant’s claim for
compensation. The Office found that the incident at work occurred as alleged but denied
appellant’s claim because there was no medical evidence providing an objective diagnosis that
could be connected to the event.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides compensation for the disability or
death of an employee resulting from personal injury sustained while in the performance of duty.1
An employee seeking benefits under the Act has the burden of proof to establish the essential
elements of his claim. When an employee claims that he sustained an injury in the performance
of duty, he must submit sufficient evidence to establish that he experienced a specific event,
incident or exposure occurring at the time, place and in the manner alleged. He must also
establish that such event, incident or exposure caused an injury.2
A person who claims benefits for a work-related condition has the burden of establishing
by the weight of the medical evidence a firm diagnosis of the condition claimed and a causal
relationship between that condition and factors of federal employment.3 Causal relationship is a
medical issue,4 and the medical evidence generally required to establish causal relationship is
rationalized medical opinion evidence. Rationalized medical opinion evidence is medical
evidence that includes a physician’s rationalized opinion on whether there is a causal relationship
between the claimant’s diagnosed condition and the established incident or factor of
employment. The opinion of the physician must be based on a complete factual and medical
background of the claimant,5 must be one of reasonable medical certainty,6 and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the established incident or factor of employment.7
1

5 U.S.C. § 8102(a).

2

See generally John J. Carlone, 41 ECAB 354 (1989); Abe E. Scott, 45 ECAB 164 (1993).

3

E.g., Patricia Bolleter, 40 ECAB 373 (1988).

4

Mary J. Briggs, 37 ECAB 578 (1986).

5

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

6

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

7

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

2

ANALYSIS
The Office does not dispute that appellant stepped into a small hole while delivering mail
on October 30, 2006. Appellant has met his burden to establish that he experienced a specific
event, incident or exposure occurring at the time, place and in the manner alleged. The question
that remains is whether this incident caused a specific injury.
Dr. Rivers, the family practitioner, diagnosed no particular medical condition or disease.
His diagnosis of knee pain is merely a repetition of appellant’s symptom. It identifies no
underlying pathology responsible for this pain. As a result, the Office does not know whether
appellant has a simple strain/sprain, a ruptured anterior cruciate ligament, a meniscal tear,
osteochondritis dissecans or some other right knee pathology. Appellant may well have injured
his right knee on October 30, 2006, but as a practical matter, the Office cannot authorize medical
treatment or pay compensation for a medical condition that has no identity.
The absence of a differential diagnosis is only part of the problem with the medical
evidence. Should Dr. Rivers offer a specific diagnosis of appellant’s right knee condition (he
ordered an MRI scan), he must still provide sound medical reasoning to explain how stepping
into a small hole on October 30, 2006 caused or aggravated this particular medical condition. As
the Office advised, his explanation of causal relationship is crucial to appellant’s claim.8 The
Board has held that, when a physician’s opinion on causal relationship consists only of checking
“yes” to a form question, that opinion has little probative or evidentiary value and is insufficient to
establish causal relationship.9 Appellant’s burden includes furnishing an affirmative opinion from
a physician who supports his conclusion with sound medical reasoning.
Because the medical evidence fails to establish the critical element of causal relationship,
appellant has not met his burden of proof. The Board will affirm the Office’s December 14,
2006 decision denying his claim for compensation.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained an injury in the performance of duty on October 30, 2006. The medical evidence
offers no specific diagnosis of the injury and provides no medical explanation of how the
October 30, 2006 incident caused or aggravated that condition.

8

See Connie Johns, 44 ECAB 560 (1993) (holding that a physician’s opinion on causal relationship must be one of
reasonable medical certainty, supported with affirmative evidence, explained by medical rationale and based on a
complete and accurate medical and factual background). See generally Melvina Jackson, 38 ECAB 443, 450 (1987)
(addressing factors that bear on the probative value of medical opinions).
9

E.g., Lillian M. Jones, 34 ECAB 379 (1982).

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ORDER
IT IS HEREBY ORDERED THAT the December 14, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 1, 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

4


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

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

Docket No. 19-0479
Issued: August 8, 2019

Case Submitted on the Record

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

JURISDICTION
On December 27, 2018 appellant filed a timely appeal from a July 26, 2018 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated April 16, 2018, 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 this case.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence on appeal. 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 evidence for the first time on appeal. Id.

FACTUAL HISTORY
On February 20, 2018 appellant, then a 66-year-old casual mail handler, filed a traumatic
injury claim (Form CA-1) alleging that on December 16, 2017 she injured her left hip when
pushing loaded all-purpose containers (APCs), some with bad wheels, into dumpers while in the
performance of duty. She noted that Supervisor D.S., an operations support specialist, saw her
leave the work area in tears because of the pain. On December 18, 2017 appellant resigned from
the employing establishment.
OWCP received a March 2, 2018 letter from the employing establishment challenging the
claim. No other information was received.
In a development letter dated March 6, 2018, OWCP informed appellant that the evidence
of record was insufficient to establish her claim. It noted that the evidence did not establish that
the December 16, 2017 incident occurred as alleged. OWCP advised appellant of the factual and
medical evidence necessary to establish her claim and provided a questionnaire for completion. It
also requested that she clarify whether she was claiming an occupational disease or a traumatic
injury. OWCP afforded appellant 30 days to provide the necessary factual information and
medical evidence.
OWCP received a March 19, 2018 statement from the employing establishment along with
a March 2, 2018 statement from D.S., who had walked appellant to the time clock on the date of
the incident. D.S. indicated that appellant had complained that she was sore due to her age and
the physical aspects of her job, but that she had not mentioned that she was injured. He also noted
that appellant indicated that she might resign as the job was too much for her.
In support of her claim, appellant submitted a December 17, 2017 emergency department
note from Dr. Justin L. Benoit, a Board-certified emergency medical specialist. Dr. Benoit
reported that appellant had been performing a new job pushing large heavy crates and that certain
movements worsened her pain, but that she had no significant trauma. He provided an impression
of left hip pain.
Appellant also submitted a December 17, 2017 left hip x-ray which showed mild arthrosis
of the pubic symphysis and bilateral S1 joints, but no acute osseous abnormality.
By decision dated April 16, 2018, OWCP denied appellant’s claim finding that the
evidence of record was insufficient to establish that the December 16, 2017 incident occurred as
alleged. It explained that she had not responded to its March 6, 2018 questionnaire regarding how
the alleged injury occurred. OWCP also noted that appellant had not submitted sufficient medical
evidence to establish a diagnosed condition causally related to the alleged incident. It concluded,
therefore, that the requirements had not been met to establish an injury as defined by FECA.
In a January 9, 2018 report, Dr. Clyde E. Henderson, a Board-certified orthopedic surgeon,
noted that appellant reported injuring her left groin/hip region while pushing carts of mail and
packages while working as a seasonal worker for the employing establishment. He indicated that
this happened after she worked for 17 days and that she had resigned after the pain became worse.
Dr. Henderson noted left hip examination findings, reviewed x-ray findings, and provided an

2

assessment of left hip strain. In a March 15, 2018 report, he again diagnosed a left hip strain.
Dr. Henderson indicated that he had discussed with appellant the etiology of her pain and how it
related to her employment activity. He ordered a lift hip magnetic resonance imaging (MRI) scan,
noting that he would have expected a soft-tissue injury to have resolved by now.
An April 4, 2018 MRI scan of the left hip revealed gluteus medius/minimus tendinosis
without evidence of a focal tear and mild diffuse degenerative chondral thinning of the left hip.
In an April 17, 2018 report, Dr. Nicholas Mirkopoulos, a Board-certified orthopedic
surgeon, noted that appellant, a patient of Dr. Henderson, had a work-related injury in
December 2017 and retired. He reported the results of the x-rays and the MRI scan and noted
examination findings. Dr. Mirkopoulos opined that the gluteus medius injury was directly related
to the December 2017 employment-related injury.
OWCP also received February 23 and March 8, 2018 physical therapy notes and other
medical evidence pertaining to a left elbow condition.
On April 30, 2018 appellant requested reconsideration. In an April 26, 2018 statement, she
discussed the medical evidence submitted and her symptoms.
By decision dated July 26, 2018, OWCP denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a). It determined that the evidence submitted
was irrelevant to the issue of whether she established a factual basis for her claim.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.3 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.4 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.5
A timely application for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (i) shows that OWCP erroneously applied or
interpreted a specific point of law; (ii) advances a relevant legal argument not previously
considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously

3
This section provides in pertinent part: the Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
4

20 C.F.R. § 10.607.

5

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 (February 2016). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the integrated Federal Employees’ Compensation
System (iFECS). Chapter 2.1602.4b.

3

considered by OWCP.6 When a timely application for reconsideration does not meet at least one
of the above-noted requirements, it will deny the request for reconsideration without reopening the
case for a review on the merits.7
In support of a request for reconsideration, a claimant is not required to submit all evidence
which may be necessary to discharge his or her burden of proof.8 He or she needs only to submit
relevant, pertinent evidence not previously considered by OWCP.9 When reviewing an OWCP
decision denying a merit review, the function of the Board is to determine whether OWCP properly
applied the standards set forth at section 10.606(b)(3) to the claimant’s application for
reconsideration and any evidence submitted in support thereof.10
ANALYSIS
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).11
The underlying issue in this case was whether appellant had established the factual
component of fact of injury. OWCP denied her claim finding that she had not submitted a
statement describing how the alleged injury occurred on December 16, 2017. It also found that
the medical evidence was insufficient to establish a diagnosed condition casually related to the
alleged incident.
On reconsideration, appellant did not show that OWCP erroneously applied or interpreted
a specific point of law, nor did she advance a relevant legal argument not previously considered
by OWCP. Consequently, she is not entitled to a review of the merits of her claim based on the
first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).12
Along with her reconsideration request, appellant submitted physical therapy notes, an
April 4, 2018 MRI scan of the left hip, and medical reports from Dr. Henderson and
Dr. Mirkopoulos. Dr. Henderson, in his January 9, 2018 report, provided a history of injury of
appellant injuring her left groin/hip region while pushing carts of mail and packages after working
17 days for the employing establishment. He also provided an assessment of left hip strain. The
Board finds that Dr. Henderson’s report is new and relevant to the underlying issue of fact of injury
because he includes a detailed account of the factual basis of the alleged injury and therefore the

6

20 C.F.R. § 10.606(b)(3).

7

Id. at § 10.608(a), (b).

8

P.L., Docket No. 18-1145 (issued January 4, 2019); Helen E. Tschantz, 39 ECAB 1382 (1988).

9

See S.A., Docket No. 18-1638 (issued April 5, 2019); S.S., Docket No. 18-0647 (issued October 15, 2018).

10

P.L., supra note 8; Annette Louise, 54 ECAB 783 (2003).

11

See A.G., Docket No. 18-1720 (issued May 7, 2019); C.F., Docket No. 18-0583 (issued October 16, 2018).

12

T.B., Docket No. 18-1214 (issued January 29, 2019); C.B., Docket No. 08-1583 (issued December 9, 2008).

4

refusal of OWCP to reopen appellant’s case for further consideration of the merits of her claim
constituted an abuse of discretion.13
Thus, the Board will set aside OWCP’s July 26, 2018 decision and remand the case for
merit review of appellant’s claim. After such further development as is deemed necessary, OWCP
shall issue an appropriate merit decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the July 26, 2018 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: August 8, 2019
Washington, DC

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

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

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

13

See A.G., supra note 11; L.N., Docket No. 12-1326 (issued November 21, 2012); see also Federal (FECA)
Procedure Manual, supra note 5 at Chapter 2.810.6 (September 2010) (to obtain merit review, a claimant need not
submit all evidence that may be necessary to discharge his burden of proof); Helen E. Tschantz, 39 ECAB 1382 (1988);
V.B., Docket No. 12-1057 (issued October 23, 2012).

5


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

)
)
)
)
)
)
)
)
)

Appearances:
Howard L. Graham, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-131
Issued: December 21, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 24, 2010 appellant, through his attorney, filed a timely appeal from a
June 24, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP)
finding that appellant’s accepted condition of aggravation of degenerative disc disease had
resolved. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden to establish that the employment-related
temporary aggravation degenerative disc disease had resolved.
On appeal appellant, through his attorney, contends that the impartial medical examiner’s
opinion is unrationalized, that OWCP used leading questions of the impartial medical specialist
and an incorrect standard on causation.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 24, 2002 appellant, then a 53-year-old supervisory general engineer, filed
an occupational disease claim alleging a low back condition as a result of riding the shipyard’s
handicapped vehicles. He had a prior plantar fasciitis foot injury in September 2001. While
riding in the vehicles, appellant was exposed to pronounced bumps in the route due to numerous
conditions such as railroad tracks, utility service entrances, storm drains, ramps, mechanisms for
protecting hoses and cables crossing the roads, transitions to concrete sections due to repairs,
maintenance and irregular surfaces. Appellant’s medical history is significant for obesity,
diabetes, asthma, sleep apnea and hypertension.
Appellant was treated by Dr. Michael J. Benoit, a Board-certified family practitioner, for
chronic low back pain secondary to injuries and a herniated disc. In a June 11, 2003 report,
Dr. Benoit noted that in 1977 appellant suffered from a T12-L1 compression fracture back injury
and had chronic back pain. He noted that in December 2001 appellant was hit by a moving
vehicle and his low back pain increased. Dr. Benoit opined that appellant’s increased symptoms
were due to a combination of stress while riding over bumps in vehicles at the shipyard
following his foot injury and by having been bumped and twisted by the passing truck. The
shock while riding in the handicapped vehicle transmitted through the vehicle’s structure to his
back, particularly in the L4-L5-S1 region. Dr. Benoit noted that this type of impact caused the
discs between the vertebrae to rupture/tear or significantly aggravated a preexisting condition.
Appellant was referred to Dr. Sarah D. Beshlian, a Board-certified orthopedic surgeon
with a subspecialty in surgery of the hand, for a second opinion. In a November 20, 2003 report,
Dr. Beshlian noted that appellant’s work activities of September 18, 2001 caused his plantar
fasciitis and that the herniated L4-5 disc and chronic low back pain was aggravated by the
twisting injury that occurred on December 15, 2001. She opined that the ongoing use of the
handicapped vehicles and jarring may have caused enough stress on the back to prevent recovery
from the twisting injury of December 15, 2001, but she did not see how it would have caused any
structural injury, exacerbation or aggravation of a back problem.
In a June 30, 2004 report, Dr. Benoit noted that appellant had no chronic low back pain
prior to 2001; rather, he experienced occasional mild low back muscle pain after his 1977 injury
that resolved with a TENS unit. Appellant had no known or documented repetitive or continuous
lower back problems until he sustained a twisting injury when struck by a passing truck while at
a gas station in December 2001. He noted that repetitive riding over sharp bumps in shipyard
vehicles at other than very slow speeds caused him significant discomfort and contributed to his
nonrecovery. The repeated bumps experienced while riding in the handicapped vehicles resulted
in exacerbation and aggravation to his lower back pain and may have contributed to some of the
structural changes by moving disc fragments into proximity of the spine or nerves.
Appellant was referred for an impartial medical examination by William T. Thieme,
M.D., who issued reports on March 31 and December 16, 2005 and April 18, 2006. OWCP
found that the reports and clarifications of Dr. Thieme were nonresponsive. Appellant
underwent a new impartial medical examination with Dr. Donald Hubbard, a Board-certified
orthopedic surgeon. In an opinion dated July 14, 2006 and a supplemental opinion of

2

November 2, 2006, Dr. Hubbard stated that any aggravation of appellant’s herniated disc or
lumbar strain/sprain would be considered temporary and ceased within two weeks.
On November 15, 2006 OWCP accepted appellant’s claim for lumbar strain -- resolved.
In a separate decision of the same date, it declined to accept his claim for herniated disc at L4L5.
In a July 16, 2007 decision, the hearing representative found that Dr. Hubbard’s opinion
could not be given the special weight of an impartial medical examiner as it was not consistent
with the factual background. She set aside the November 15, 2006 decision that the disc
herniation was not related to the accepted employment factors and remanded for referral to a new
impartial medical examiner.
Based on the unresolved opinion, on October 22, 2007 OWCP referred appellant to
Dr. Dennis Kvidera, a Board-certified orthopedic surgeon, for an impartial medical examination.
However, OWCP determined that the opinions of Dr. Kvidera dated November 12 and
December 20, 2007 and February 11, 2008 were insufficient to resolve the conflict.
In a May 8, 2008 report, Dr. Benoit indicated that he had been appellant’s primary
physician since 1983. He noted that on May 21, 1977 appellant had a back injury T12-L1
compression fracture but was able to work and never had radicular symptoms from this injury.
Dr. Benoit stated that in September 2001 appellant developed plantar fasciitis while walking at
the shipyard, which required him to use the handicap shuttle. He indicated that, after having to
use these shuttles, appellant began having low back pain. Dr. Benoit stated that the pain was
increased by the trauma of going over bumps, crane/train tracks and service lines crossing the
roadways. He noted that appellant tried to minimize the pain by standing on the shuttles.
Dr. Benoit noted that in August 2002 appellant had a magnetic resonance imaging (MRI) scan
which showed an L4-5 disc with L4 right nerve impingement and L5-S1 annular tear. He stated
that this pain had clearly been of the radicular type and unrelated to the type of pain people get
from diabetes or chronic neuropathy. Dr. Benoit noted that there were no notes in his chart that
described pain in that area of appellant’s back prior to having to ride this shuttle. He opined that
although one may not be able to say that the shuttle use caused all of appellant’s L4-L5-S1
problems, it clearly aggravated his symptoms. Dr. Benoit assessed appellant’s conditions as
follows: chronic mid (thoracic) back pain from 1977 accident; and chronic low (lumbar) back
pain due to disc disease which started with shuttle use in the shipyard. He also noted that the
shuttle use was caused by his chronic plantar fasciitis. Dr. Benoit stated that in his view
appellant was disabled because of his plantar fasciitis and lumbar disc disease.
By letter dated April 22, 2008, OWCP referred appellant to Dr. Lance Brigham, a Boardcertified orthopedic surgeon, for an impartial medical examination. In a May 8, 2008 report,
Dr. Brigham listed diagnoses of history of plantar fasciitis of the left heel, administratively
accepted as secondary to walking on uneven ground on December 17, 2001; history of low back
injury, December 21, 2001, not industrially related; and alleged injury to low back secondary to
repetitive riding in handicapped vehicles at work from September 2001 though August 2002. He
stated, “It is felt that the alleged back condition occurring from riding in the handicapped
vehicles from September 2001 through August 2002 would have been only a temporary
aggravation of the preexisting back condition.” Dr. Brigham explained that the medical records

3

are quite explicit, but multiple different physicians indicated that the back condition was caused
solely by appellant being hit by a glass truck on December 21, 2001, and it is felt that any other
injury after that was a temporary aggravation and has long since returned to the preexisting status
and that there was no acceleration and no precipitation. He noted that on physical examination
there were no findings for radiculopathy or orthopedic findings of any neural damage. This
would only be mechanical back pain which would be along with the previous injury stemming
originally from the compression fractures at T12-L1 in 1977, as well as the December 21, 2001
incident.
In a May 29, 2008 letter, OWCP asked Dr. Brigham to clarify what preexisting condition
was aggravated as a result of riding in the handicapped vehicles. It asked him to clarify the
preexisting condition, the clinical findings that support the conclusion and to explain why he
believed that this aggravation was temporary. OWCP also asked Dr. Brigham to indicate an
approximate date that the temporary aggravation ceased and how he arrived at that conclusion.
In a June 3, 2008 addendum, Dr. Brigham opined that appellant sustained “just a temporary
aggravation of pain in the lumbar area, where there were preexisting degenerative changes.” He
noted that this was supported by OWCP notes that there was a low back injury sustained when
appellant was hit by a glass truck on December 21, 2001. Dr. Brigham continued, “It is felt by
this examiner that this is the cause of the low back pain and any incident of riding on vehicles for
the disabled on uneven ground would only be a temporary aggravation and would not be a
permanent aggravation of the preexisting condition of the low back pain.” He opined that any
complaints due to riding in the vehicles for the disabled would have resolved within a period of a
day or two, and that the present treatment is solely due to appellant being struck by the glass
truck.
On June 16, 2008 OWCP accepted appellant’s claim for resolved temporary aggravation
of lumbar degenerative disc disease.
On July 7, 2008 appellant requested an oral hearing. However, by decision dated
October 6, 2008, the hearing representative remanded the case for OWCP to ask Dr. Brigham for
clarification of his opinion with regard to the extent and degree of the aggravation of the
degenerative disc disease. However, in an addendum dated October 23, 2008, the hearing
representative noted that Dr. Brigham did respond to the inquiry on clarification but found that
his opinion could not carry the weight of the medical evidence as although he made statements
that were clear and unequivocal, he offered little if any medical reasoning to support his
conclusion. The hearing representative stated that OWCP must again request clarification from
Dr. Brigham.
In a November 21, 2008 letter, OWCP asked Dr. Brigham for a clarification of his
opinions. It asked Dr. Brigham to, inter alia, provide a specific diagnosed medical condition and
explain results confirming the diagnosis. OWCP noted that pain was not considered a condition
under FECA but rather a symptom of a condition. It also asked Dr. Brigham to explain, if
aggravation was assessed, whether such aggravation was permanent or temporary, and to explain
if the condition had resolved, if it resolved immediately upon appellant’s removal from the
employment environment and if not, at what point the symptoms resolved.

4

On December 16, 2008 Dr. Brigham responded, explaining why he believed that the
repetitive use of the shipyard’s handicapped vehicles from September 2001 to August 2002 was
not the cause of appellant’s present back conditions or complaints. He opined that any repetitive
jostling of the low back from riding in the handicapped vehicles would only cause a temporary
aggravation and would not be the cause of any of the findings noted on the MRI scan dated
August 15, 2002. Dr. Brigham noted that riding in the handicapped vehicles may have caused
short periods of symptomatic aggravation of appellant’s preexisting degenerative low back
condition, however, there were no objective changes in the degenerative low back condition. He
noted that all of appellant’s medical records up until the December 24, 2002 note increasing low
back symptoms secondary to being struck by a glass truck in December 2001. Dr. Brigham
opined that the medical records clearly indicate that the major precipitating event for his pain
complaints was the December 2001 glass truck collision.
On March 13, 2009 OWCP accepted appellant’s claim for resolved temporary
aggravation of lumbar degenerative disc disease.
On April 12, 2009 appellant requested an oral hearing.
By decision dated August 24, 2009, the hearing representative found that the case was not
in posture for decision as the reports of Dr. Brigham neither provided medical rationale for his
opinion nor did he conduct a full or accurate review of the reports which would support his
opinion.
By letter dated September 21, 2009, OWCP asked Dr. Brigham to provide further
information.
In an October 1, 2009 addendum, Dr. Brigham noted that appellant had pain in his left
foot due to the planar fasciitis which has been administratively accepted as work related. He
opined, “It is felt that the condition of aggravation of the low back secondary to repetitive riding
in handicapped vehicles over uneven ground does not meet the standards of modern science for
degenerative joint disease of the lumbar spine. Dr. Brigham referred to an article in The Spine
Journal which found that there was no evidence to suggest that exposure to whole-body
vibration through motorized vehicles leads to accelerated disc degeneration. He further noted
that more recent results indicate that the effect on anthropometric factors, such as body weight
and muscle strength, on disc degeneration, although modest, appear to be greater than those of
occupational physical demands. Dr. Brigham also noted a study in The Lancet which found that
although driving may exacerbate symptoms of back problems, it does not damage discs. He
concluded that there has been no aggravation to the low back, either temporary or permanent,
due to riding on uneven ground.
By decision dated November 27, 2009, OWCP found that the temporary aggravation of
appellant’s degenerative disc disease due to the effects of the employment factor (riding in the
van for the disabled) from September 2001 to August 2002 had resolved.
In a May 6, 2010 report, Dr. Benoit stated that he reviewed Dr. Brigham’s report. He
noted that, although OWCP approved appellant’s claim for resolved temporary aggravation of
lumbar disc condition, the more significant duration and injury occurred from January to

5

August 2002. Dr. Benoit reviewed appellant’s history noting that appellant had thoracic back
pain following an original injury of May 21, 1977, which was controlled with a TENS unit.
However, he noted that the effects of appellant’s riding in the handicapped vehicles were
compounded when he sustained increased pain caused by a glancing bump from the side of a
glass truck, for which the TENS unit did not help his pain. Dr. Benoit noted that, after this,
appellant developed worsening pain from riding in the transport buses in the shipyard for an
additional eight months. Appellant now had ruptured discs and experienced occasional
radiculopathy. Dr. Benoit noted that Dr. Brigham’s application of the Spine and Lancet journal
studies on whole body vibration was not applicable to appellant’s case. Appellant’s lumbar back
had been healthy and without injury prior to riding the shipyard’s handicapped vehicles.
Dr. Benoit stated that appellant started experiencing low back discomfort, which escalated in
severity and lasted 11 months, causing him to stand and cushion his body over the sharpest
bumps. The majority of appellant’s injury was incurred within a controlled industrial area, the
study’s conclusions were not applicable. Dr. Benoit addressed several of Dr. Brigham’s
comments directly. He noted that Dr. Brigham referred to annular tears found in normal
individuals but Dr. Benoit noted that appellant had no lumbar back pain prior to riding the
handicapped vehicles. Dr. Benoit noted that Dr. Brigham mentioned only subjective complaints
and concluded that there appeared to be no neurologic findings to support ongoing complaints of
radiculopathy. Dr. Brigham did not address the objective records from the MRI scans and those
made by shipyard medical staff and written testimonials by fellow handicapped vehicle riders
and did not note that appellant tried to make every effort to exhibit as little negative effect of his
injury and pain as possible. He noted that the cited reports were limited to drivers and not riders
and that there is little parallel or even similarity to appellant’s circumstances. Dr. Benoit further
noted that Dr. Brigham had “tremendously oversimplified” appellant’s condition despite
statements to the contrary provided by other orthopedic specialists. He concluded that, on a
more probable than not basis, the worsening of appellant’s disc condition at L4-5 is
demonstrated by appellant’s March 20, 2006 MRI scan and that riding in the handicap van for 11
months contributed, to a reasonable medical certainty, to the acceleration and permanent
aggravation of appellant’s disc disease at L4-5. Dr. Benoit further noted that, on a more
probable than not basis, appellant’s riding in the handicap van for 11 months contributed to and
accelerated the worsening of symptoms of pain. He concluded that clearly a causal connection
existed between appellant’s riding in the handicapped vans in the industrial work area and his
permanent injury.
By decision dated June 24, 2010, the hearing representative affirmed the November 27,
2009 decision.
LEGAL PRECEDENT
The United States shall pay compensation for the disability of an employee resulting
from personal injury sustained while in the performance of duty.2 Once OWCP accepts a claim
it has the burden of justifying modification or termination of compensation. After it has
determined that an employee has disability causally related to his employment, it may not
terminate compensation without establishing that the disability has ceased or is no longer related
2

5 U.S.C. § 8102(a).

6

to the employment injury.3 The fact that OWCP accepted an employee’s claim for a specified
period of disability does not shift the burden of proof to the employee. The burden is on OWCP
to demonstrate an absence of employment-related disability or residuals in the period subsequent
to the date of termination or modification.4
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an evaluation.5 In situations where there exist opposing
medical reports of virtually equal weight and rationale and the case is properly referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based on proper factual and medical background,
must be given special weight.6 When OWCP obtains an opinion from an impartial medical
specialist for the purpose of resolving a conflict in the medical evidence and the specialist’s
opinion requires clarification or elaboration, OWCP must secure a supplemental report from the
specialist to correct the defect in his original report.7 However, when the impartial specialist is
unable to clarify or elaborate on the original report or if a supplemental report is also vague,
speculative or lacking in rationale, OWCP must submit the case record and a detailed statement
of accepted facts to another impartial specialist for the purpose of obtaining a rationalized
medical opinion on the issue.8
ANALYSIS
OWCP accepted appellant’s claim for resolved temporary aggravation of lumbar
degenerative disc disease for the period September 2001 through August 2002. As noted,
OWCP’s acceptance of a claim for a specified period does not shift the burden of proof to the
claimant. It is OWCP’s burden to establish that appellant did not have residuals from the
accepted injury. It based its decision to terminate compensation and medical benefits on
Dr. Brigham’s reports. The Board finds that OWCP properly terminated benefits.
The initial conflict in medical evidence was between the opinions of Dr Benoit,
appellant’s treating physician, and the second opinion physician, Dr. Beshlian, with regard to the
impact that riding in the employing establishment’s handicapped vehicles had on appellant’s
back. Appellant saw Dr. Theime to resolve this conflict. However, after repeated attempts to get
a rationalized opinion from Dr. Theime, OWCP referred appellant to Dr. Hubbard who also
3

Edwin Lester, 34 ECAB 1807 (1983); D.M., Docket No. 10-857 (issued January 3, 2011).

4

See Elsie L. Price, 54 ECAB 734, 739 (2003); Raymond M. Shulden, 31 ECAB 297 (1979); Anna M. Blaine
(Gilbert H. Blaine), 26 ECAB 351 (1975).
5

5 U.S.C. § 8123(a).

6

Federal (FECA) Procedure Manual, Medical, Medical Examinations, Chapter 3.500.4b(3)(b) (March 1994,
October 1995, May 2003), citing Raymond E. Heathcock, 32 ECAB 2004 (1981).
7

Raymond A. Fondots, 53 ECAB 637, 641 (2002); Nancy Lackner (Jack D. Lackner), 40 ECAB 232 (1988);
Rayon K. Ferrin, Jr., 39 ECAB 736 (1988).
8

Nancy Keenan, 56 ECAB 687 (2005); R.G., Docket No. 11-79 (September 9, 2011).

7

submitted a June 17, 2008 medical opinion and a clarification. However, a hearing
representative determined that Dr. Hubbard’s opinions were not consistent with the factual
background and appellant was referred to Dr. Kvidera for an impartial opinion. OWCP
determined that Dr. Kvidera’s opinions were conflicting and provided no substantiating
rationale, so OWCP prepared a new statement of accepted facts, and referred appellant to
Dr. Brigham for a new impartial medical examination.
Dr. Brigham conducted an impartial medical examination and issued reports dated
May 8, June 3 and December 16, 2008 and October 1, 2009. He concluded that if appellant did
have any aggravation of his back condition while riding in the handicapped vehicles from
September 2001 through August 2002, this would have only been a temporary aggravation of the
preexisting conditions. Dr. Brigham gave a variety of reasons for this conclusion throughout his
multiple reports. In his initial report of May 8, 2008, he explained that the medical records
indicate that many different physicians found that the back condition was caused solely by
appellant being hit by a glass truck on December 21, 2001 and that any other injury after that
was just a temporary aggravation. Dr. Brigham noted that on physical examination there were
no findings for radiculopathy or orthopedic findings of any neural damage. In his June 3, 2008
addendum, he opined that riding in vehicles for the disabled on uneven ground would only cause
a temporary aggravation of preexisting low back pain and would have resolved in a day or two,
and that appellant’s present treatment for her low back was solely related to his being struck by
the glass truck. In his December 16, 2008 report, Dr. Brigham further explained that any
repetitive jostling of the low back from riding in the handicapped vehicles would only cause a
temporary aggravation and would not be the cause of findings noted on the MRI scan, noting that
riding in the handicapped vehicles may have caused short periods of symptomatic aggravation of
appellant’s preexisting degenerative low back condition, but there were no objective changes in
the degenerative back condition. He reiterated that the medical records clearly indicate that the
major precipitating event for appellant’s pain complaints was the December 2001 glass truck
collision. In his October 1, 2009 report, Dr. Brigham opined that repetitive riding in
handicapped vehicles over uneven ground does not meet these standards of modern science for
degenerative joint disease of the lumbar spine. In addition to the rationale provided in earlier
reports, he further referenced articles in The Spine Journal and The Lancet which he indicated
suggested that there was no evidence to suggest that exposure to whole body vibration through
motorized vehicles leads to accelerated disc degeneration. Dr. Brigham further noted that more
recent results indicate that the effect of anthropometic factors on disc degeneration, such as body
weight and muscle strength, appear to be greater than those of occupational physical demands.
Accordingly, OWCP’s conclusion that any aggravation of appellant’s degenerative disc disease
had resolved was supported by the well-rationalized medical opinion of Dr. Brigham.
Dr. Brigham’s conclusion that appellant no longer had any residuals from any temporary
aggravation caused by riding in the handicapped vehicle was supported by his medical
evaluation of appellant, his review of the medical record including objective tests, appellant’s
work history, and Dr. Brigham’s further research in medical journals. Although appellant
submitted multiple reports by Dr. Benoit wherein he concluded that a causal connection existed
between appellant’s riding in the handicapped vans at the employing establishment and his
permanent back injury, and although Dr. Benoit raised specific objections with the reports of

8

Dr. Brigham, these objections are not sufficient to overcome the special weight given the opinion
of the impartial medical examiner.9
Addressing specific concerns raised by appellant’s attorney on appeal, the Board initially
rejects the argument that that the hearing representative’s decision is unrationalized and
contradictory. Although the hearing representative does not give a specific date that the
aggravation ceased, the hearing representative relied upon the report of Dr. Brigham, who stated
that the aggravation had resolved within a day or two of exposure to the employment factor of
riding in the handicapped vehicle. The Board also rejects the argument that Dr. Brigham’s
opinion is unrationalized, speculative and not probative. As previously discussed, Dr. Brigham’s
opinion is supported by his evaluation of appellant’s history, evaluation of the medical evidence,
physical examination and discussion of medical journal articles, nor does the Board finds that
OWCP used leading questions in asking Dr. Brigham for clarification of his opinion in its
November 21, 2008 letter. OWCP asked Dr. Brigham to provide the specified diagnosed
medical conditions found on examination and, in asking the question, noted that pain is not
considered a condition under FECA but rather a symptom of a condition. Appellant’s counsel
argues that a diagnosis of pain based upon work factors is compensable. The Board does not
find that this question is misleading. The Board has frequently held that a diagnosis of pain does
not constitute a basis for payment of compensation as pain is considered to be a symptom rather
that a specific diagnosis.10 Appellant argues that pain due to an employment factor can be the
basis for payment of compensation under FECA. However, there must be a proven basis for the
pain in that a specific diagnosis must be made referencing a specific medical condition.
Therefore, OWCP did not err in this question. The Board also rejects the argument that OWCP
erred in asking Dr. Brigham to indicate that, if aggravation is assessed, to explain whether the
aggravation is temporary or permanent and to support his opinion with medical rationale. This
question further asked Dr. Brigham to determine if appellant’s symptoms would have subsided
or resolved immediately upon appellant’s removal from the work environment and if not at what
point these symptoms would have resolved. Appellant’s counsel contends that this question
leads no doubt as to OWCP’s desired answer. The Board does not agree that a question simply
asking the physician to answer questions regarding whether a condition has resolved and if so
when is leading; in fact, it is the basic question to be resolved by the physician. Accordingly,
counsel’s argument is without merit. The Board is further not persuaded by counsel’s argument
that OWCP used an incorrect standard for causation in the November 21, 2008 letter to
Dr. Brigham. OWCP asked Dr. Brigham whether the diagnosed conditions were causally related
to the accepted work factors either through direct causation or aggravation, precipitation,
exacerbation or acceleration. Contrary to counsel’s argument, this does not indicate an improper
causal relationship standard, it recognizes that the employment conditions need not be the direct
cause of appellant’s condition. Further, the Board notes that an appropriate conflict in the
medical evidence existed and the case was properly referred to Dr. Brigham for an impartial
medical examination after the previous impartial medical examiners did not resolve the
conflict.11
9

Richard O’Brien, 53 ECAB 234 (2001).

10

Robert Broome, 55 ECAB 339 (2004); R.S., Docket No. 11-323 (issued September 15, 2011).

11

See supra note 8.

9

Therefore, the Board finds that OWCP properly determined that appellant’s employmentrelated aggravation of degenerative disc disease had resolved.
CONCLUSION
The Board finds that OWCP met its burden to establish that the employment-related
temporary aggravation of degenerative disc disease had resolved.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 24, 2010 is affirmed.
Issued: December 21, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.R., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, Los Fresnos, TX, Employer
__________________________________________

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

Docket No. 07-2141
Issued: February 13, 2008

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 August 20, 2007 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ hearing representative’s merit decision dated June 22, 2007 finding
that he had not established an injury on December 10, 2004 in the performance of duty. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant sustained an injury on December 10, 2004 as
alleged; and (2) whether the hearing representative properly denied his request for a subpoena.
FACTUAL HISTORY
On December 10, 2004 appellant, then a 41-year-old immigration enforcement agent,
filed a traumatic injury claim alleging that on that date he was involved in a motor vehicle
accident on the employing establishment premises. He stated that the lights were off in the entire
camp, that he missed a turn and drove into the drainage ditch hitting his head on the windshield

of his vehicle. Appellant experienced head and neck pain. He initially sought treatment from a
chiropractor, Dr. R. Todd Brewer, who took x-rays on December 13, 2004 and diagnosed
cervical facet syndrome and ligamentous strain as well as thoracic sprain/strain.
In a letter dated December 28, 2004, the Office requested additional factual and medical
evidence from appellant regarding his claim. Appellant responded on January 27, 2005 and
noted that the accident occurred on the employing establishment premises as he was driving from
his duty station in route to the main building. He noted that it was dark and foggy and that he did
not navigate a curve and drove into a ditch on the side of the roadway. Appellant alleged that he
struck the steering wheel with his chest and the windshield with his face and head. He stated that
pain in his head, face and neck was minimal and the following day he sought treatment with
Dr. Brewer.
By decision dated February 2, 2005, the Office denied appellant’s claim finding that he
was not in the performance of duty at the time the injury occurred. Appellant requested an oral
hearing on February 11, 2005. By decision dated September 1, 2005, the hearing representative
set aside the Office’s February 2, 2005 decision and remanded the case for additional
development of the issue of whether appellant’s motor vehicle accident occurred in the
performance of duty.
The Office received additional information regarding the employing establishment
premises from the employing establishment. By decision dated March 20, 2006, the Office
found that appellant’s motor vehicle accident occurred in the performance of duty, however, it
found that the evidence was not sufficient to establish an injury resulting from this accident as
appellant had not submitted medical evidence in support of his claim. The Office noted that the
only documentation of appellant’s claim was from a chiropractor and that there was no diagnosis
of a subluxation of the spine as a result of the December 10, 2004 employment incident.
Appellant requested an oral hearing on April 15, 2006. In a letter dated May 31, 2006, he
requested that the hearing representative issue a subpoena for Supervisor Ruth Schultz.
Appellant resubmitted the documentation from Dr. Brewer. He testified at his oral hearing on
April 12, 2007 that Dr. Brewer took x-rays and diagnosed sprained ligaments. Appellant stated
that he did not have a copy of the emergency room report from the date of accident. He stated
that he had a laceration on his head treated with a bandage by Public Health Service. Appellant
felt dizzy later that night and sought treatment from the local emergency room where he was
prescribed Tylenol and given a neck brace.
By decision dated June 22, 2007, the hearing representative affirmed the Office’s
March 20, 2006 decision finding that appellant had not submitted sufficient medical evidence to
meet his burden of proof in establishing an injury as the result of his December 10, 2004
employment incident. He noted that Dr. Brewer took x-rays of appellant’s spine, but that his
reports did not include a diagnosis of subluxation of the spine and that therefore he was not a
physician for the purposes of the Federal Employees’ Compensation Act. The hearing
representative stated that appellant had not submitted the necessary medical opinion evidence to
meet his burden of proof. He also noted that appellant requested a subpoena for his supervisor,
Ms. Schultz, but that he failed to state the pertinent facts that he expected Ms. Schultz to

2

establish and that it did not appear that her testimony would have served a useful purpose. The
hearing representative denied the requested subpoena.
LEGAL PRECEDENT -- ISSUE 1
The Office’s regulations define a traumatic injury as a condition of the body caused by a
specific event or incident, or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain, which is identifiable as to
time and place of occurrence and member or function of the body affected.1 In order to
determine whether an employee sustained a traumatic injury in the performance of duty, the
Office begins with an analysis of whether “fact of injury” has been established. Generally, fact
of injury consists of two components that must be considered in conjunction with one another.
The first component to be established is that the employee actually experienced the employment
incident that is alleged to have occurred. The second component is whether the employment
incident caused a personal injury. Causal relationship is a medical question that can generally be
resolved only by rationalized medical opinion evidence.2
Section 8101(2) of the Act provides that the term “‘physician’ … includes chiropractors
only to the extent that their reimbursable services are limited to treatment consisting of manual
manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist.”3
ANALYSIS -- ISSUE 1
The Office has accepted that appellant, a federal employee, was in the performance of
duty on December 10, 2004 when his motor vehicle accident occurred. It found that he had not
submitted sufficient medical opinion evidence to support his claim for a compensable injury
resulting from this accident.
In support of his claim, appellant submitted a series of reports from Dr. Brewer, a
chiropractor, who x-rayed appellant’s cervical and thoracic spine on December 13, 2004.
However, Dr. Brewer did not provide a diagnosis of cervical or thoracic spinal subluxation based
on these x-rays as resulting from appellant’s December 10, 2004 employment incident. As he
did not diagnose a subluxation of the spine as demonstrated by x-ray, he is not a physician for
the purpose of the Act.4 It is well established that to constitute competent medical opinion
evidence the medical evidence submitted must be signed by a qualified physician.5 As
Dr. Brewer is not a qualified physician under the Act, his reports do not constitute the medical
evidence necessary to meet appellant’s burden of proof in establishing his claim for a traumatic
injury.
1

20 C.F.R. § 10.5(ee).

2

Steven S. Saleh, 55 ECAB 169, 171-172 (2003).

3

5 U.S.C. § 8101(2).

4

Id.

5

Vickey C. Randall, 51 ECAB 357, 360 (2000); Arnold A. Alley, 44 ECAB 912, 921 (1993).

3

LEGAL PRECEDENT -- ISSUE 2
Section 8126 of the Act provides that the Secretary of Labor, on any matter within her
jurisdiction, may issue subpoenas for and compel attendance of witnesses within a radius of 100
miles.6 This provision gives the Office discretion to grant or reject requests for subpoenas. The
Office regulation states that subpoenas for witnesses will be issued only where oral testimony is
the best way to ascertain the facts.7
In requesting a subpoena, a claimant must explain why the testimony is relevant to the
issues in the case and why a subpoena “is the best method or opportunity to obtain such evidence
because there is no other means by which, the testimony could have been obtained.”8 The Office
hearing representative retains discretion on whether to issue a subpoena. The function of the
Board on appeal is to determine whether there has been an abuse of discretion. Abuse of
discretion is generally shown through proof of manifest error, a clearly unreasonable exercise of
judgment or actions taken which are clearly contrary to logic and probable deductions from
established facts.9
ANALYSIS -- ISSUE 2
By letter dated May 31, 2006, appellant requested that the Office hearing representative
issue a subpoena to compel Ms. Schultz to testify at his oral hearing. The hearing representative
denied this request as appellant provided no reason explaining how the requested testimony was
relevant for the hearing.
Appellant did not provide any explanation for his request for a subpoena or show why
relevant evidence could not be provided by other means. The Board, therefore, finds that the
Office hearing representative acted within his discretion in not issuing a subpoena to Ms. Schultz
as requested by appellant.
CONCLUSION
The Board finds that appellant failed to submit the necessary medical opinion evidence to
establish that he sustained a traumatic injury on December 10, 2004 as alleged. It further finds
that the hearing representative properly denied appellant’s request for a subpoena.

6

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

7

20 C.F.R. § 10.619.

8

Id.

9

Lottie M. Williams, 56 ECAB 302, 309 (2005).

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ORDER
IT IS HEREBY ORDERED THAT the June 22, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 13, 2008
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Baltimore, MD, Employer
__________________________________________

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

Docket No. 10-1765
Issued: May 12, 2011

Case Submitted on the Record

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

JURISDICTION
On June 22, 2010 appellant filed a timely appeal from January 15 and June 9, 2010
decisions of the Office of Workers’ Compensation Programs. 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 the case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained a traumatic injury in the performance of duty on April 10, 2009; and (2) whether
appellant abandoned an oral hearing scheduled for May 5, 2010.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 24, 2009 appellant, then a 47-year-old tractor-trailer operator, filed a
traumatic injury claim alleging that he sustained right shoulder pain on April 10, 2009 while
opening the backdoor of a trailer. He did not stop work.
The Office informed appellant in a December 4, 2009 letter that additional evidence was
needed to establish his claim. It gave him 30 days to submit a medical report containing the
history of injury, diagnosis, findings, course of treatment, period and extent of disability, and a
physician’s explanation as to whether the employment incident caused or aggravated the injury.
In December 3, 2009 reports, Dr. Rosemary Olivo, a Board-certified internist, related that
appellant presented with complaints of right shoulder pain since April. She stated that he “was
pulling up on a door that was stuck while working as a truck driver for the [employing
establishment]” and “felt a wrenching in his right shoulder.” Dr. Olivo commented that the
“onset of pain in the right shoulder clearly followed the event of wrenching in the right shoulder
which [appellant] felt when he pulled up on a door that was jammed while performing his duties
at work.” She diagnosed a complete rupture of the right shoulder rotator cuff and recommended
surgery. Dr. Olivo noted that appellant sustained a prior rotator cuff tear to his left shoulder and
had surgery in 2004. In a December 3, 2009 magnetic resonance imaging (MRI) scan report,
Dr. John Filigenzi, a Board-certified diagnostic radiologist to whom appellant was referred by
Dr. Olivo, found a full thickness tear involving the distal anterior fibers of the supraspinatus
tendon, mild tendinosis of the subscapularis tendon and degenerative changes of the
acromioclavicular joint of the right shoulder. He noted that “patient motion artifact degrade[d]
image quality.”
In December 24, 2009 statements, appellant detailed that he was pulling up a 250-pound
backdoor of a trailer when it jammed and he felt a sharp pain in his right shoulder. He
previously underwent left shoulder rotator cuff surgery on May 14, 2004.
Appellant provided photocopies of a one-page excerpt from unidentified literature, which
stated that full thickness rotator cuff tears “are most often the result of impingement, partial
thickness rotator cuff tears, heavy lifting or falls.” He also provided a position description, a
December 3, 2009 orthopedic consultation form and his signed April 10, 2009 employing
establishment form rejecting medical care.
By decision dated January 15, 2010, the Office denied appellant’s claim, finding the
medical evidence insufficient to establish that the April 10, 2009 employment incident caused a
right rotator cuff tear.
On January 22, 2010 appellant requested an oral hearing. In a March 30, 2010 notice, the
Office’s Branch of Hearings and Review scheduled the hearing for 11:30 a.m. on May 5, 2010 at
the U.S. Custom House in Baltimore, Maryland. It advised appellant that postponement would
only be permitted upon receipt of documentation showing his nonelective hospitalization or that
the death of a spouse, parent or child prevented his attendance. The notice was mailed to his
address of record.

2

By decision dated June 9, 2010, the Office found that appellant abandoned his hearing
request. It noted that he failed to appear at the hearing and did not contact the Office before or
after the scheduled hearing to explain his failure to appear.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking compensation under the Act has the burden of establishing the
essential elements of his claim by the weight of reliable, probative and substantial evidence,2
including that he is an “employee” within the meaning of the Act and that he filed his claim
within the applicable time limitation.3 The employee must also establish that he sustained an
injury in the performance of duty as alleged and that his disability for work, if any, was causally
related to the employment injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.5
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.6
ANALYSIS -- ISSUE 1
The evidence supports that appellant pulled up the backdoor of a trailer as alleged on
April 10, 2009. The Board finds that he did not furnish sufficient medical evidence
demonstrating that this employment incident caused or contributed to a right rotator cuff tear or
other right shoulder condition.

2

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

3

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

4

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

5

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

6

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

3

Dr. Olivo noted in a December 3, 2009 report that appellant wrenched his right shoulder
while he was pulling up on a door.7 She diagnosed a complete rupture of the right shoulder
rotator cuff and opined that the injury “clearly followed” this work event; however, she did not
explain the pathophysiological process by which pulling up on a door would contribute to this
rupture.8 Medical opinion not fortified by medical rationale is of little probative value.9 Dr. Olivo
brief report that appellant was asymptomatic before the incident and symptomatic thereafter,
without supporting medical rationale, cannot establish causal relationship.10 The Board also
notes that Dr. Olivo offered no opinion regarding why appellant did not sooner seek medical
treatment for complaints of right shoulder pain since April 2009. Appellant did not submit
medical evidence more contemporaneous with the claimed date of injury documenting his
condition and supporting that it was caused by the April 10, 2009 work incident.11
The record also contains photocopies of an unidentified, one-page excerpt describing the
primary etiology of full thickness rotator cuff tears as “the result of impingement, partial
thickness rotator cuff tears, heavy lifting or falls.” The Board has held, though, that articles and
excerpts from medical literature are of no evidentiary value as they are not supported by medical
opinion relating to the facts of the claimant’s specific situation.12 Dr. Filigenzi’s December 3,
2009 MRI scan report, is of limited probative value as it did not offer any opinion regarding the
cause of injury.13 The December 3, 2009 orthopedic consultation form cannot be considered as
medical evidence as it was not signed by a physician.14
Consequently, appellant did not meet his burden to establish his claim as he has not
submitted reasoned medical evidence explaining how the April 10, 2009 work incident caused or
aggravated a right shoulder condition.
LEGAL PRECEDENT -- ISSUE 2
Under the Act and its implementing regulations, a claimant who has received a final
adverse decision by the Office is entitled to receive a hearing upon writing to the address
7

The Board points out that Dr. Olivo failed to identify the date of the injury. See M.W., 57 ECAB 710 (2006);
James A. Wyrick, 31 ECAB 1805 (1980) (medical opinions based on an incomplete or inaccurate history are of
diminished probative value).
8

See Joan R. Donovan, 54 ECAB 615, 621 (2003); Ern Reynolds, 45 ECAB 690, 696 (1994).

9

George Randolph Taylor, 6 ECAB 986, 988 (1954).

10

See T.M., Docket No. 08-975 (issued February 6, 2009).

11

S.S., 59 ECAB 315 (2008) (the Board has held that contemporaneous evidence is entitled to greater probative
value than later evidence).
12

Harry Cowling, 17 ECAB 426 (1966). See also Robert S. Winchester, 54 ECAB 191 (2002).

13

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

14

See R.M., 59 ECAB 690 (2008) (medical reports lacking proper identification, such as unsigned treatment
notes, do not constitute probative medical evidence). See also 5 U.S.C. § 8101(2). Even if this form was signed by
a physician, it would be of limited probative value as it does not address causal relationship.

4

specified in the decision within 30 days of the date of the decision for which a hearing is
sought.15 Unless otherwise directed in writing by the claims examiner, the Office hearing
representative will mail a notice of the time and place of the hearing to the claimant and any
representative at least 30 days before the scheduled date.16 The Office has the burden of proving
that it mailed notice of a scheduled hearing to a claimant.17
The Office’s procedure manual provides that a hearing can be considered abandoned only
under very limited circumstances.18 All three of the following conditions must be present:
(1) the claimant has not requested a postponement; (2) the claimant has failed to appear at a
scheduled hearing; and (3) the claimant has failed to provide any notification for such failure
within 10 days of the scheduled date of the hearing. Under these circumstances, the Office
hearing representative will issue a formal decision finding that the claimant has abandoned his or
her request for a hearing.19
ANALYSIS -- ISSUE 2
Appellant argues on appeal that he was never sent the March 30, 2010 notice about the
May 5, 2010 hearing date and only became aware of the hearing date when he received the
Office’s June 15, 2010 decision holding that he abandoned his request for one.20 As noted, the
Office has the burden of proving that it mailed notice of a scheduled hearing to a claimant. The
Board has held that, in the absence of evidence to the contrary, a notice mailed to an individual
in the ordinary course of business is presumed to have been received by that individual. The
presumption arises after it appears from the record that the notice was duly mailed and the notice
was properly addressed.21 Here, the record shows that the Office scheduled a May 5, 2010
hearing and mailed proper written notice with the designated time, date and location of the
hearing to appellant’s address of record on March 30, 2010. On the other hand, appellant did not
submit any rebutting evidence. The record also shows that he did not request postponement or
explain his failure to appear at the hearing within 10 days of the scheduled hearing date. Thus,
under these circumstances, the Office properly found that appellant abandoned his hearing
request.

15

5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.616(a).

16

20 C.F.R. § 10.617(b).

17

See Michelle R. Littlejohn, 42 ECAB 463 (1991).

18

Claudia J. Whitten, 52 ECAB 483 (2001).

19

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(e) (January 1999).
20

Appellant also asserted that he received a February 6, 2010 letter informing him that the Office “would not be
in Baltimore for six to eight months.” The record does not contain such a letter.
21

Newton D. Lashmett, 45 ECAB 181 (1993) (mailbox rule); Michelle R. Littlejohn, supra note 17.

5

CONCLUSION
The Board finds that appellant did not establish that he sustained a traumatic injury in the
performance of duty on April 10, 2009. Furthermore, the Board finds that the Office properly
determined that appellant abandoned his request for an oral hearing.
ORDER
IT IS HEREBY ORDERED THAT the June 9 and January 15, 2010 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: May 12, 2011
Washington, DC

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

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

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

6