United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
BRUCE W. CARTER VETERANS
ADMINISTRATION MEDICAL CENTER,
Miami, FL, Employer
__________________________________________

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

Docket No. 19-1237
Issued: November 12, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 16, 2019 appellant filed a timely appeal from a May 10, 2019 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the May 10, 2019 decision, OWCP received additional evidence. 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.

ISSUE
The issue is whether appellant has met her burden of proof to establish an injury causally
related to the accepted March 27, 2019 employment incident.
FACTUAL HISTORY
On March 27, 2019 appellant, then a 54-year-old secretary, filed a traumatic injury claim
(Form CA-1) alleging that on that day a snake bit her right foot while in the performance of duty.
She stated that she unlocked her office door and after taking a couple steps inside the office, she
felt a pinch on her right foot and something brush the top of her foot. Appellant looked down and
saw a snake had bitten her and it was still on her foot. She screamed and kicked her foot to shake
the snake loose. Appellant then left her office to seek medical treatment. On the reverse side of
the claim form the employing establishment indicated that appellant was injured in the
performance of duty and stopped working on March 27, 2019.
In a March 27, 2019 report of contact, appellant’s supervisor, M.W., indicated that she was
at Starbucks that morning (7:15 a.m.) when she received a text from appellant, which included a
picture of a snake. Appellant’s text message also indicated that she was going to the emergency
room (ER). After initially thinking it was a joke, M.W. went to the ER, where appellant recounted
her story of having encountered a snake in the office that was “attempting to bite her foot.” She
noted that appellant was visibly shaken. M.W. reported the incident to various employing
establishment officials. When she returned to the office, the employing establishment police were
there searching for the snake, which they soon captured. A pest control officer identified the snake
as a Corn snake, and no additional snakes were found. M.W. further noted that, after being
discharged from the ER, appellant went to the employing establishment’s occupational health unit,
where a nurse practitioner, Zaida Bruno, determined that she was unfit to return to work that day.
A copy of the March 27, 2019 work excuse form accompanied the report of contact.
In an April 8, 2019 development letter, OWCP advised appellant that additional evidence
was required in support of her claim for FECA benefits. It noted that no diagnosis of any condition
resulting from her injury had been received. OWCP requested that appellant submit a
comprehensive narrative medical report from a qualified physician that included a diagnosis and
an opinion, supported by medical rationale, addressing how the claimed employment incident
caused or aggravated a medical condition. It afforded her 30 days to submit the requested medical
evidence. No evidence was received.
By decision dated May 10, 2019, OWCP denied appellant’s traumatic injury claim, finding
that, although she established that employment incident occurred, as alleged, no further evidence
had been received in response to the April 8, 2019 claim development letter. Consequently, it
found that appellant failed to establish a medical diagnosis in connection with the accepted
employment incident. OWCP concluded, therefore, that the requirements had not been met to
establish an injury as defined by FECA.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,4 that an injury was sustained in the performance of duty, as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.7 First,
the employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time, place, and in the manner alleged.8 Second, the employee must
submit sufficient evidence, generally in the form of medical evidence, to establish that the
employment incident caused a personal injury.9
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.10 The opinion of the physician must be based on a
complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors or incidents identified by
the employee.11 Neither the mere fact that a disease or condition manifests itself during a period
of employment, nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.12

3

Supra note 1.

4

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6
R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990
7

R.B., Docket No. 17-2014 (issued February 14, 2019); B.F., Docket No. 09-0060 (issued March 17, 2009);
Bonnie A. Contreras, 57 ECAB 364 (2006).
8

S.F., Docket No. 18-0296 (issued July 26, 2018); D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

9
A.D., Docket No. 17-1855 (issued February 26, 2018); C.B., Docket No. 08-1583 (issued December 9, 2008);
D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra note 7.
10

L.D., Docket No. 17-1581 (issued January 23, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

11

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

12

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

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ANALYSIS
The Board finds that appellant has not met her burden of proof to establish an injury
causally related to the accepted March 27, 2019 employment incident.
The record includes a March 27, 2019 report of the employee’s emergency treatment (VA
Form 3831b), which noted that appellant had been examined and/or treated for an injury and was
unfit for duty that day. The form report did not include a specific diagnosis. Moreover, it was
signed by a nurse practitioner, who is not considered a “physician” as that term is defined under
FECA.13
In its April 8, 2019 development letter, OWCP noted that no diagnosis of any condition
resulting from appellant’s injury had been received and advised appellant on the type of medical
evidence needed to establish her claim. It provided her 30 days to submit the requested medical
evidence. It is appellant’s burden of proof to obtain and submit medical documentation containing
a firm diagnosis, and that diagnosis must have medical evidence upon which it stands.14 Appellant
failed to submit appropriate medical evidence within the 30-day period provided and on May 10,
2019 OWCP denied her traumatic injury claim.15
As appellant has not submitted rationalized medical evidence establishing an injury
causally related to the accepted March 27, 2019 employment incident, she has not met her burden
of proof.
Appellant may submit new evidence and/or argument with a written request for
reconsideration within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an injury
causally related to the accepted March 27, 2019 employment incident.

13

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). A report from a physician assistant or certified nurse practitioner will
be considered medical evidence if countersigned by a qualified physician. Federal (FECA) Procedure Manual,
Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013).
14

C.W., Docket No. 19-0468 (issued July 16, 2019).

15
As previously noted, appellant submitted additional evidence after the May 10, 2019 OWCP decision, but the
Board can only review the evidence that was before OWCP at the time of its final decision. Supra note 2.

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ORDER
IT IS HEREBY ORDERED THAT the May 10, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: November 12, 2019
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.H., Appellant
and
DEPARTMENT OF AGRICULTURE,
POULTRY GRADING BRANCH, Austin, TX,
Employer
__________________________________________

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

Docket No. 07-48
Issued: June 4, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 2, 2006 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ decision dated September 21, 2006 which denied his recurrence of
disability claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3 the Board has jurisdiction over the
merits of this appeal.
ISSUE
The issue is whether appellant has established that he sustained a recurrence of disability
on November 1, 1995 causally related to his accepted work injury of February 21, 1984.

FACTUAL HISTORY
This case has previously been before the Board. The facts of this case as presented in the
previous Board decisions are hereby incorporated by reference.1 The facts pertinent to this
appeal are set forth.
On February 21, 1984 appellant, then a 32-year-old eggshell grader, sustained an injury
to his back while attempting to catch a falling box of eggs. The Office accepted his claim for a
lumbosacral strain and herniated nucleus pulposus L4-5. Appellant received appropriate
compensation and medical benefits. On October 16, 1985 the Office accepted that appellant
sustained an aggravation of his preexisting knee joint disease. Appellant returned to work on
February 15, 1991 in a modified job as a Veterans’ Service Officer for Lavaca County.
On December 10, 1995 appellant filed a notice of recurrence due to the February 21,
1984 employment injury. He alleged that the recurrence occurred in August 1995 with work
stoppage on November 1, 1995. Appellant stated that the position of Veterans’ Service Officer
changed when his secretary’s position was eliminated and required him to perform most of her
duties in addition to his own. This forced him to resign from the position. In a December 27,
1999 medical report, Dr. Maurice G. Wilkinson, a family practitioner, indicated that appellant
was experiencing discomfort and noted that appellant’s back condition was aggravated by the
amount of filing, bending and stooping that he was required to perform. In a report dated
February 10, 1999, Dr. Wilkinson indicated that appellant was still unable to perform duties
which required him to lift or sit for long periods.
The Office referred appellant to Dr. Jonathan Clark Race, a Board-certified orthopedic
surgeon, for a second opinion. In a report dated May 27, 2003, Dr. Race stated that he did not
believe that the effects of the accepted lumbar strain and degenerative disc disease condition had
resolved. He opined that appellant’s slip and fall had probably aggravated his knee condition,
but would not be the primary reason that he continued to have knee problems of the current
magnitude. Dr. Race noted that appellant had multiple surgeries prior to his work-related
injuries and that appellant’s ongoing conditions are primarily related to his degenerative arthritis
of the knee, which was primarily related to his preexisting injuries.
The Office found a conflict between Dr. Wilkinson and Dr. Race with regard to whether
the accepted condition caused or contributed to total disability on or after November 1, 1995. By
letter dated February 17, 2004, it referred appellant to Dr. Eradio Arredondo, a Board-certified
orthopedic surgeon, for an impartial medical examination. In a report dated March 16, 2004,
Dr. Arredondo opined:
“It is my impression that his main problem with his back is degenerative and
congenital, but mostly degenerative. There is no evidence of a disc herniation.
That by itself, should not keep him from doing sedentary work. His right knee
1

Allen W. Hermes, 41 ECAB 838 (1990); Docket No. 04-1758 (issued March 1, 2005); Docket No. 03-1859
(issued December 19, 2003); Docket No. 02-1591 issued November 14, 2002); Docket No. 98-161 (issued
December 13, 1999); Docket No. 94-2143 (issued August 22, 1996); Docket No. 93-72 (issued January 6, 1994);
Docket No. 93-185, (issued December 17, 1993); 43 ECAB 435 (1992).

2

has severe osteoarthritis and that would preclude him from doing any standing or
walking, any climbing of stairs, or working on uneven ground. In short, it will be
hard for him to be employed with these two problems. But, at the present time,
his worse problem is the right knee.”
Dr. Arredondo noted that appellant’s degenerative disc disease has not resolved. He also
indicated that the work-related aggravation of appellant’s right knee condition had not resolved.
Dr. Arredondo predicted that appellant would continue to have problems with his knee and
would need a joint replacement. With regard to returning to work, he indicated that, if it was
only for the lumbar condition, he could do sedentary work, but that his knee kept him from being
on his feet for any significant period of time. Dr. Arredondo noted that appellant could be
employed if accommodations were made. He found that appellant could not do prolonged
sitting, prolonged standing, any prolonged walking, no climbing, no crawling, no walking on
uneven ground. With regard to his work, Dr. Arredondo stated:
“If this work that he had was something that was for the most part done by his
secretary. When he lost the secretary, he lost the job, because he could not do it.
But, the job itself did not cause him any further disability. The reason he has been
totally disabled is because a job with the just mentioned restriction has not been
offered to him, at least not to my knowledge.”
Dr. Arredondo concluded that appellant was capable of sedentary work.
On April 29, 2004 the Office referred appellant to Dr. David Willhoite for an impartial
medical examination. Dr. Willhoite submitted a medical report dated May 27, 2004.
By decision dated June 25, 2004, the Office denied appellant’s claim for a recurrence in
August 1995. However, in a March 1, 2005 decision, the Board set aside this decision, finding
that the Office improperly referred appellant to a second impartial medical examination without
giving Dr. Arredondo a chance to correct any deficiencies in his initial reports.2
In a medical opinion dated May 24, 2004, Dr. Susan L. Boullioun, a Board-certified
family practitioner, stated that appellant had significant lumbar disc disease and that due to these
degenerative changes appellant has difficulty sitting for long periods of time. She noted that
appellant used a cane for stability and that, even with his daily use of narcotics for pain
management, his pain was only partially controlled.
On June 14, 2005 the Office referred appellant to Dr. Arredondo for a functional capacity
examination. In a medical report dated July 18, 2005, Dr. Arredondo stated that appellant has
“chronic nonspecific low back pain” and a “very prolonged and severe disability on account of
his back.” He noted that appellant was clinically better than at that time of his last evaluation.
Dr. Arredondo opined:
“It is my impression that [appellant] can do a full-time job doing sedentary work.
He would have to avoid doing repetitive lifting or lifting anything over 20 pounds.
2

Allen W. Hermes, Docket No. 04-1758 (issued March 1, 2005).

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[Appellant] would have to avoid being on uneven ground, any climbing, or
crawling or kneeling or squatting. He cannot do running. [Appellant] cannot be
up on his feet for more than 4 hours a day, either walking or standing, even with
breaks of 10 minutes every 1 hour or be allowed to sit. His job category is
sedentary.”
In a medical report dated July 18, 2005, Dr. Boullioun noted that, due to spinal changes
resulting from lumbar disc disease, appellant has difficulty sitting for long periods of time. She
also noted significant degenerative joint disease in appellant’s right knee.
In a medical report dated November 2, 2005, Dr. G. Steven White, a Board-certified
orthopedic surgeon, indicated that appellant has advanced osteoarthritis, particularly to the
medial joint of the right knee. He recommended a pressed fit total knee arthoplasty. On
December 5, 2005 Dr. White performed this surgery.
Appellant submitted decisions with regard to his social security claim.
By decision dated September 21, 2006, the Office denied appellant’s claim for recurrence
of total disability as of August 1995 as the evidence submitted failed to establish a causal
relationship between the alleged recurrence and the work-related injury of February 21, 1984.
LEGAL PRECEDENT
When an employee, who is disabled from the job he held when injury on account of
employment-related residuals, returns to a light-duty position or the medical evidence of record
establishes that he can perform the light-duty position, the employee has the burden of
establishing by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and show that he cannot perform such light duty. As part of this burden the employee
must show a change in the nature and extent of the injury-related condition or a change in the
nature and extent of the light duty-job requirements.3
ANALYSIS
The Board finds that this case is not in posture for decision. In this case, the Office
accepted that appellant sustained a lumbosacral strain and herniated nucleus pulposus L4-5.
The Office also later accepted appellant’s claim for aggravation of his preexisting knee joint
disease. Appellant returned to work in a modified job as a Veterans’ Service Officer on
February 15, 1991. He alleged a recurrence of disability when he stopped work on
November 1, 1995. Appellant alleged that the position of Veterans’ Service Officer changed
when his secretary’s position was eliminated which required him to perform most of her duties
as well as his own, and this required him to resign from the position.
In order to resolve the conflict between appellant’s treating physician, Dr. Wilkinson, and
the second opinion physician, Dr. Race with regard to whether the accepted condition caused or
contributed to total disability on or after November 1, 1995, the Office referred appellant for an
3

Cynthia M. Judd, 42 ECAB 246, 25 (1990); Terry R. Hedman, 38 ECAB 222, 227 (1986).

4

impartial medical examination to Dr. Arredondo. In his March 16, 2004 report, Dr. Arredondo
opined that, if it was only for appellant’s back condition, he could do sedentary work, but that his
knee keeps him from being on his feet for any significant period of time. He noted that he could
be employed if accommodations were made, but that when appellant lost his secretary, he could
not perform his job. Dr. Arredondo’s opinion was insufficient to show a recurrence as it was not
fully rationalized. His opinion did not provide a complete description of appellant’s duties,
sufficiently explain how the disability had worsened or why appellant could no longer perform
the job. The Board previously found that Dr. Arredondo’s opinion did not provide a clear
response to the questions raised and remanded the case with instructions that the Office provide
Dr. Arredondo an opportunity to clarify his opinion with regard to whether appellant’s accepted
work injury caused or contributed to total disability on or after November 1, 1995. On remand,
the Office only asked Dr. Arredondo to perform a functional capacity evaluation. The Office
never asked Dr. Arredondo to clarify aspects of his reports, as directed in the prior Board
decision.
This case will be remanded in order for the Office to provide Dr. Arredondo an
opportunity to clarify his opinion with regard to whether appellant sustained a recurrence of
disability on November 1, 1995, causally related to the February 21, 1984 employment injury. If
Dr. Arredondo is unable or declines to clarify his opinion once proper instructions are given, the
case should be referred to another impartial medical examiner.4
CONCLUSION
The case is not in posture for decision.

4

See Guiseppe Aversa, 55 ECAB 164 (2003); Harold Travis, 30 ECAB 1071 (1979).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 21, 2006 is vacated and the case is remanded for
further action consistent with this opinion.
Issued: June 4, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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

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

Docket No. 14-249
Issued: March 18, 2014

Case Submitted on the Record

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

JURISDICTION

On November 15, 2013 appellant filed a timely appeal from a September 19, 2013
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The most recent
merit decision of record is dated September 13, 2012. There is no merit decision within 180
days of November 15, 2013, the date appellant filed his appeal with the Board. Therefore,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board does not have jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration.
1
2

5 U.S.C. § 8101 et seq.

Appellant requested an oral argument. The Clerk of the Board mailed a letter to appellant to confirm a
continuing desire for an oral argument in Washington, D.C. No written confirmation was received; thus the Board
has decided the appeal on the record.

On appeal, appellant asserts that medical evidence establishes that he sustained an injury
as claimed.
FACTUAL HISTORY
On July 23, 2012 appellant, then a 43-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) claiming that earlier that day, he sustained left shoulder tendinitis when pulling
down a jammed postal vehicle door. He stopped work that day. Appellant submitted a July 23,
2012 report from Dr. Andrew E. Farber, an attending osteopathic physician Board-certified in
orthopedic surgery, who related appellant’s account of injuring his shoulder while pulling down
the vehicle door earlier that day. Dr. Farber diagnosed left shoulder tendinitis and prescribed
physical therapy.
In an August 8, 2012 letter, OWCP advised appellant of the evidence needed to establish
his claim, including a medical narrative from his attending physician explaining how and why
the July 23, 2012 incident would cause the claimed left shoulder injury.
In response, appellant submitted August 7 and 20, 2012 reports from Dr. Farber,
releasing him to full duty as of August 11, 2012 as his condition resolved with physical therapy.
In an August 28, 2012 narrative report, Dr. Farber noted that a July 23, 2012 ultrasound
examination of the left shoulder showed inflammation and possible partial tearing of the biceps
tendon. Appellant was substantially improved as of August 21, 2012. Dr. Farber opined that
appellant’s “condition of left shoulder pain” was related to pulling the jammed door.
By decision dated September 13, 2012, OWCP denied appellant’s claim on the grounds
that causal relationship was not established. It accepted that the July 23, 2012 incident occurred
at the time, place and in the manner alleged. However, the medical evidence did not support a
causal connection between the accident and any injury. OWCP noted that Dr. Farber diagnosed
left shoulder pain was speculative about whether appellant sustained a biceps tendon injury.
Also, he did not provide medical rationale to support any causal relationship.
In an October 29, 2012 letter, appellant requested reconsideration. He contended that
Dr. Farber’s diagnosis of left shoulder tendinitis was sufficient to meet his burden of proof.
Appellant submitted July 23, August 7 and 21, 2012 reports from Dr. Farber diagnosing
resolving left shoulder pain, improved with physical therapy. He also submitted physical therapy
notes.
By decision dated January 29, 2013, OWCP denied reconsideration on the grounds that
the new evidence submitted was cumulative and therefore insufficient to warrant a merit review.
It found that Dr. Farber’s reports were either duplicative or cumulative of his reports previously
of record. OWCP further found that as the physical therapy notes were not signed by a
physician, they did not constitute medical evidence and were therefore irrelevant to the claim.
In an undated letter received by OWCP on June 24, 2013, appellant requested
reconsideration. He asserted that Dr. Farber’s reports were sufficient to establish that he
sustained left shoulder tendinitis on July 23, 2012. Appellant submitted copies of Dr. Farber’s

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July 23, August 7 and 21, 2012 reports. He also provided July and August 2012 physical therapy
notes that were not signed or reviewed by a physician.
By decision dated September 19, 2013, OWCP denied reconsideration on the grounds
that appellant’s June 24, 2013 request did not contain new, relevant evidence or legal argument.
LEGAL PRECEDENT
To require the office to reopen a case for merit review under section 8128(a) of FECA,3
section 10.606(b)(2) of Title 20 of the Code of Federal Regulations provide that a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.4 Section 10.608(b) provides that
when an application for review of the merits of a claim does not meet at least one of the three
requirements enumerated under section 10.606(b)(2), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.5
In support of a request for reconsideration, an appellant is not required to submit all
evidence which may be necessary to discharge his or her burden of proof.6 Appellant need only
submit relevant, pertinent evidence not previously considered by OWCP.7 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)(2) to the claimant’s
application for reconsideration and any evidence submitted in support thereof.8
ANALYSIS
OWCP denied appellant’s traumatic injury claim by decision dated September 13, 2012.
It accepted that on July 23, 2012, appellant pulled a jammed vehicle door as alleged, but denied
the claim as the medical evidence was insufficient to establish causal relationship between that
incident and a left shoulder injury. In a January 29, 2013 decision, OWCP denied appellant’s
October 29, 2012 request for reconsideration on the grounds that the additional reports from
Dr. Farber, an attending osteopathic physician Board-certified in orthopedics, were cumulative
and that the physical therapy notes provided were not medical opinion evidence. Appellant
again requested reconsideration on June 24, 2013, reiterating that Dr. Farber’s reports were
sufficient to establish his claim. He submitted copies of reports previously submitted and
physical therapy notes not signed by a physician. OWCP denied reconsideration by decision
3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.606(b)(2).

5

20 C.F.R. § 10.608(b). See also D.E.., 59 ECAB 438 (2008).

6

Helen E. Tschantz, 39 ECAB 1382 (1988).

7

See 20 C.F.R. § 10.606(b)(3). See also Mark H. Dever, 53 ECAB 710 (2002).

8

Annette Louise, 54 ECAB 783 (2003).

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dated September 19, 2013 on the grounds that appellant’s argument and the evidence submitted
were cumulative or irrelevant.
In his June 24, 2013 application for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law. He did not identify a specific point of
law or show that it was erroneously applied or interpreted. Appellant did not advance a new and
relevant legal argument. He repeated his assertions that Dr. Farber’s opinion was sufficient to
establish causal relationship. Appellant also submitted duplicate copies of evidence previously
of record. However, evidence which is duplicative or cumulative in nature is insufficient to
warrant reopening a claim for merit review.9 The physical therapy notes do not constitute
medical evidence as they were not signed or reviewed by a physician.10 As they are irrelevant to
the crucial medical issue of causal relationship, the physical therapy notes do not warrant a merit
review of the case.11 A claimant may be entitled to a merit review by submitting new and
relevant evidence, but appellant did not submit any new and relevant evidence in this case.
The Board accordingly finds that appellant has not met any of the requirements of 20
C.F.R. § 10.606(b)(2). He did not show that OWCP erroneously applied or interpreted a specific
point of law, advance a relevant legal argument not previously considered by OWCP, or submit
relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R. § 10.608,
OWCP properly denied merit review.
On appeal, appellant asserts that medical evidence establishes that he sustained an injury
as claimed. This argument pertains to the merits of the claim, which are not before the Board on
the present appeal.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration.

9

Denis M. Dupor, 51 ECAB 482 (2000).

10

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

11

Joseph A. Brown, Jr., 55 ECAB 542 (2004).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 19, 2013 is affirmed.
Issued: March 18, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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)
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and
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U.S. POSTAL SERVICE, POST OFFICE,
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St Paul, MN, Employer
)
___________________________________________ )
P.B., Appellant

Docket No. 06-2017
Issued: May 15, 2007

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

Case Submitted on the Record

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

JURISDICTION
On August 30, 2006 appellant filed a timely appeal from the June 26, 2006 merit decision
of the Office of Workers’ Compensation Programs which terminated his compensation benefits
effective July 8, 2006 and an August 23, 2006 decision denying appellant’s request for
reconsideration. 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 on appeal are: (1) whether the Office properly terminated appellant’s medical
and wage-loss compensation effective July 8, 2006; and (2) whether the Office properly refused
to reopen appellant’s case for further review of the merits of his claim under 5 U.S.C. § 8128(a).

FACTUAL HISTORY
On May 26, 1992 appellant, then a 49-year-old rural route carrier, filed an occupational
disease claim for a right arm condition due to casing his route and delivering mail.1 The claim
was accepted for right shoulder chronic tendinitis, partial right rotator cuff tear, a bilateral
shoulder impingement syndrome, left rotator cuff tendinitis and left rotator cuff tear. The Office
subsequently accepted right shoulder bicep tendon rupture and bilateral carpal tunnel syndrome.2
Appellant received appropriate compensation benefits.
Appellant began treatment with Dr. Jeffrey T. Garske, a Board-certified orthopedic
surgeon. In a report dated October 20, 2003, Dr. Garske provided work restrictions which
included no overhead work, medium restrictions for the left side and light for the right side. He
also advised that, for the hands, appellant could do no fine hand manipulation or gross
manipulation or firm grasping. He requested authorization for carpal tunnel surgery.
On April 9, 2004 Dr. Garske performed a decompression of the right median nerve for
appellant carpal tunnel syndrome. On May 5, 2004 he provided medium-duty restrictions for
appellant, including standing and walking and stretching or resting every two to three hours,
bending and lifting of 15 pounds with the back straight and no twisting frequently. Appellant
was limited to carrying and lifting up to 35 pounds and 15 pounds frequently, pushing and
pulling of 35 pounds without bending or 50 pounds on wheels.
On May 6, 2004 the employing establishment offered appellant a modified position as a
mail processing clerk which complied with Dr. Garske’s restrictions. On May 10, 2004
appellant rejected the modified job offer as it did not address his nonwork-related conditions.
In a June 14, 2004 report, Dr. Garske noted that appellant had full range of motion on
examination. He reviewed the May 6, 2004 job offer and opined that, from the standpoint of his
carpal tunnel surgery, as well as his underlying degenerative foot disease and spinal stenosis,
appellant was capable of performing the job duties. Dr. Garske also opined that appellant did not
have any restrictions for work commencing June 15, 2004. However, he noted that, for the
hands, appellant had light-duty restrictions that included primarily standing and walking and
stretching or resting every hour, bending and lifting of 10 pounds with the back straight and no
twisting frequently. Appellant could carry and lift up to 20 pounds occasionally, push and pull
20 pounds without bending or 35 pounds on wheels.
By letter dated July 9, 2004, the Office requested that appellant’s physician, Dr. Mark W.
Mahowald, a Board-certified neurologist, provide restrictions related to appellant’s narcolepsy
and a rationalized opinion to support his restrictions.
1

The record reflects that appellant had preexisting conditions of diabetes, heart disease, lupus, ulcer,
prostate cancer and narcolepsy. Appellant also filed a traumatic injury to his right shoulder on July 25, 2001 after
performing repetitive tasks under claim File No. 102002380. This claim was doubled into the file presently before
the Board.
2

On December 20, 2002 the Office granted appellant a schedule award for a 16 percent permanent impairment of
the left upper extremity and a 16 percent permanent impairment of the right upper extremity. The Office also
accepted a January 29, 2002 and October 20, 2003 claim for recurrence.

2

In a July 19, 2004 report, Dr. Mahowald noted that appellant had restrictions which
included his systemic lupus erythematosus, bilateral shoulder tendinitis, right partial rotator cuff
tear and repair, bilateral carpal tunnel syndrome, right shoulder biceps tendon repair and
significant narcolepsy. He indicated that the work restrictions placed on appellant “confined him
to a very sedentary unstimulating job.” Dr. Mahowald noted that “[i]ndividuals with narcolepsy
even when treated medically can be expected to be unable to maintain adequate alertness under
those circumstances.” He recommended that appellant either be offered a less sedentary and
more productive job or that the employing establishment refuse to hire him. Dr. Mahowald
noted that being assigned meaningless sedentary activities raised the issue of disability or
medical retirement.
On December 7, 2004 the Office referred appellant, together with a statement of accepted
facts, a set of questions and the medical record, to Dr. Robert J. Tierney, a Board-certified
internist, to determine whether appellant’s work-related conditions had resolved and his work
capacity. The Office requested a determination as to whether the current restrictions were for
work-related conditions and nonwork-related conditions. On December 20, 2004 the Office
referred appellant for a second opinion, along with a statement of accepted facts, a set of
questions and the medical record to Dr. Gilbert Westreich, a Board-certified neurologist.
In a December 22, 2004 report, Dr. Tierney noted appellant’s history of injury and
treatment. He also noted that appellant had lupus since the early 1980’s and narcolepsy.
Dr. Tierney advised that appellant had other health problems which included spinal stenosis,
stress, anxiety, depression and hypertension. He noted that appellant refused a job offer on
May 6, 2004 because the employing establishment was not able to accommodate his sleep
requirement. Dr. Tierney stated that appellant related that he had bilateral shoulder pain. He
conducted a physical examination and advised that appellant had a full range of motion of all
joints, normal spine motion, a normal finger to floor measurement, a normal Schober’s and
normal reflexes, motor and sensory examinations. Dr. Tierney diagnosed bilateral rotator cuff
pathology, systemic lupus, narcolepsy and multiple health problems. He opined that appellant’s
shoulder injuries “certainly could be the result of his work as a mail route carrier. It obviously
gave him trouble for four years prior to his initial surgery on the shoulder.” Dr. Tierney noted
that appellant’s problems were “likely related to the work that he was doing or aggravated by
them.” He found that appellant’s shoulder problems were unrelated to the underlying lupus.
Dr. Tierney stated that appellant could be released to full-time work with regard to his carpal
tunnel syndrome and noted that he would have work restrictions related to his narcolepsy. He
opinion appellant’s underlying lupus was not disabling and advised that his rotator cuff
pathology was secondary to his previous job as a rural carrier or related to his narcolepsy which
was unrelated to his employment. Dr. Tierney opined that appellant reached maximum medical
improvement with respect to his shoulders, carpal tunnel and lupus. He indicated that, other than
light clerical activities and answering the telephone, he did not believe that appellant could
continue to work at the employing establishment. Dr. Tierney stated that appellant “certainly is
not totally and permanently disabled from any gainful employment on the basis of the rotator
cuff tenosynovitis.” He noted that appellant’s narcolepsy was a limiting disease and he would
defer to Dr. Mahowald.
In a January 7, 2005 report, Dr. Westreich noted appellant’s history and set forth findings
on examination. Appellant related that his problems were basically in his shoulders because of

3

pain and not decreased mobility. Dr. Westreich indicated that appellant was obese, had wrist
scars related to carpal tunnel surgery and had a ruptured right biceps tendon. He otherwise
reported normal muscle strength, advised that appellant could stand on his toes and heels without
difficulty and noted that there was no atrophy in the arms and legs. Dr. Westreich advised that
appellant had a normal sensory examination in the arms and legs and that detailed testing of the
shoulders revealed no limitation of motion. He also conducted extensive testing of the upper
back, neck and shoulders. Although appellant complained of some shoulder pain, there was no
limitation of motion. Dr. Westreich stated that appellant had a heart attack 15 years prior due to
a change in enzymes and opined that appellant’s problems were related to his “polymalgia or as
stated in the chart, to his lupus.” He stated that, as a neurologist, it was “probably not
appropriate for me to spend much time commenting on [appellant’s] shoulder difficulties as far
as any orthopedic problems are concerned, but I again would suggest that the shoulder problems
are due to the polymyalgia rather than any kind of orthopedic problem.” Dr. Westreich opined
that appellant did not have any orthopedic shoulder problem that would prevent him from
working. This was based on the absence of any limitation of motion of his shoulders or any
muscle spasm. Dr. Westreich did not believe that appellant’s employment had anything to do
with his shoulder difficulties and explained that polymyalgia, was not a result of activity or any
work-related enterprise. He listed no objective findings to support appellant’s subjective
complaints. Dr. Westreich noted that appellant did not exhibit definite weakness or limitation of
motion which made it clear that his problems were polymyalgia. Regarding appellant’s hands,
he found no Tinel’s signs at the wrists and an absent Phalen’s sign. Dr. Westreich opined that
appellant’s carpal tunnel syndrome had resolved with surgery. He advised that appellant had two
problems that would require restrictions, polymalgia in the shoulders and narcolepsy.
Dr. Westreich explained that the polymalgia would prevent repetitive action in the arms,
especially reaching and lifting for any prolonged period of time and the narcolepsy would require
him to take frequent naps. He opined that appellant had reached maximum medical
improvement. Dr. Westreich noted that the ruptured biceps tendon was not limiting ordinary
activities but noted that he might have problems if he was lifting 75-pound boxes. He further
recommended that appellant continue treatment with his rheumatology specialist in sleep
medicine. Dr. Westreich opined that appellant would be able to work within certain limitations.
He advised that appellant not work for more than two hours at a time without taking a one-hour
break for a nap. Dr. Westreich clarified his restrictions and opined that appellant could sit, walk,
stand for a ½ to 1 hour and then require at 45-minute break, with the ability to sleep during this
time. He added that movements of reaching and reaching above the shoulder would be limited,
that appellant could operate a motor vehicle, without difficulty going to and from work and he
could operate a motor vehicle at work but for no more than an hour at a time. Dr. Westreich had
no limits on movements of the wrists or elbows. He noted that appellant could push, pull and lift
again with difficulty. Dr. Westreich also advised that appellant could kneel, climb or squat. He
added that appellant needed to take breaks of one hour after two hours of work. Additionally,
Dr. Westreich explained that these restrictions were consistent with appellant’s polymalgia and
narcolepsy.
By letter dated February 24, 2005, the Office requested that Dr. Mahowald review
Dr. Westreich’s findings. In a March 2, 2005 response, Dr. Mahowald indicated that he
concurred with the January 7, 2005 report of Dr. Westreich.

4

On April 27, 2006 the Office issued a notice of proposed termination of compensation
finding that the medical evidence established that appellant could work 8 hours per day at
40 hours a week with no restrictions. The Office found that the medical evidence established
that appellant no longer had any residuals or disability that was due to his accepted work injury.
By letter dated May 4, 2006, appellant disagreed with the notice of proposed termination.
He contended that he had injury-related residuals.
By decision dated June 26, 2006, the Office terminated appellant’s medical benefits and
compensation for wage-loss compensation effective July 8, 2006.3 The Office determined that
appellant had failed to submit relevant evidence to support continuation of residuals due to the
injury-related condition and/or disability. The Office found that the weight of the medical
evidence rested with his treating physician, Dr. Garske, and the second opinion physicians,
Drs. Westreich and Tierney, which supported that, from an orthopedic standpoint, appellant
could work 8 hours per day at 40 hours a week with no restrictions.
On June 29, 2006 appellant request reconsideration. He contended that Dr. Garske
provided no restrictions specifically for his “hands” and enclosed a copy of his report. Appellant
also referenced Dr. Westreich’s January 7, 2005 report and reiterated that it was not entitled to
greater weight as the physician was “outside of his medical expertise.” He alleged that
Dr. Garske’s report supported that he continued to have residual and permanent effects from the
biceps tendon rupture. Appellant argued that Dr. Tierney’s report supported that he continued to
have shoulder problems. He reiterated that his work-related injuries were permanent and that he
continued to have residuals.
By decision dated August 23, 2006, the Office denied appellant’s request for
reconsideration without further review of the merits. The Office found that appellant did not
raise any substantive legal questions nor did he include any new and relevant evidence and thus
his request was insufficient to warrant a merit review.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.4 Having determined that an employee has a disability
causally related to his or her federal employment, the Office may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.5

3

This decision was an amendment of an original decision dated June 23, 2006.

4

Curtis Hall, 45 ECAB 316 (1994).

5

Jason C. Armstrong, 40 ECAB 907 (1989).

5

ANALYSIS -- ISSUE 1
The Board finds that the weight of the medical evidence was represented by the second
opinion physicians, Drs. Tierney and Westreich, as well as appellant’s treating physicians,
Drs. Garske and Mahowald.
In a December 22, 2004 report, Dr. Tierney noted appellant’s history of injury and
treatment and conducted a physical examination, which was essentially normal. He opined that
appellant was released full time for his carpal tunnel syndrome and that he did not believe that
appellant’s underlying lupus was disabling. Dr. Tierney opined that appellant reached maximum
medical improvement with respect to his shoulders, carpal tunnel and lupus. He indicated that
other than “light clerical” activities and answering the telephone, he did not believe that
appellant could continue to work at the employing establishment. However, Dr. Tierney opined
that appellant “certainly is not totally and permanently disabled from any gainful employment on
the basis of the rotator cuff tenosynovitis.” He noted that appellant’s narcolepsy was a limiting
disease and he would defer his decision to Dr. Mahowald.
In a January 7, 2005 report, Dr. Westreich found that appellant had normal muscle
strength, no atrophy and normal sensory findings in the arms and legs and no limitation of
shoulder motion. He advised that appellant’s shoulder problems were “due to the polymyalgia
rather than any kind of orthopedic problem” and advised that appellant did “not have any
orthopedic shoulder problem that would prevent him from working.” Dr. Westreich explained
that he arrived at this conclusion based upon the “absence of any limitation of motion of his
shoulders or any spasm.” He explained that polymyalgia, was “not a result of activity or any
work-related enterprise.” Dr. Westreich added that there were no objective findings to support
appellant’s subjective complaints. He explained that what appellant was referring to was “pain
rather than definite weakness or limitation of motion” which made it clear that appellant’s
problems were polymyalgia. Regarding appellant’s hands, Dr. Westreich concluded that
appellant’s carpal tunnel syndrome had resolved with surgery as he found no Tinel’s signs at the
wrists and the Phalen’s sign was absent. He noted that the only conditions that required work
restrictions were polymalgia in the shoulders and narcolepsy. Dr. Westreich explained that the
polymalgia would prevent repetitive action in the arms, especially reaching and lifting for any
prolonged period of time and the narcolepsy would also require him to take frequent naps during
the day. He also added that appellant’s ruptured biceps tendon did not limit ordinary activities
and, while he might have some problems if he was lifting “75[-]pound boxes,” he did not
indicate a need for continuing treatment or restrictions due to this condition. Additionally,
Dr. Westreich explained that appellant’s restrictions were related to appellant’s polymalgia and
narcolepsy.
On March 2, 2005 appellant’s physician, Dr. Mahowald, indicated that he concurred with
the January 7, 2005 report of Dr. Westreich. The Board also notes that appellant’s treating
physician, Dr. Garske, a Board-certified orthopedic surgeon, advised that on June 14, 2004
appellant had full range of motion on examination and that appellant did not have any
restrictions for work commencing June 15, 2004.

6

The reports of Drs. Westreich and Tierney are based on an accurate factual background
and provide medical rationale for their conclusions and are consistent with the opinions of
appellant’s physicians, Drs. Garske and Mahowald.6 The Office met its burden of proof to
terminate appellant’s benefits as the weight of the medical evidence indicates that residuals of
the employment-related conditions had ceased effective July 8, 2006.
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of the Federal Employees’ Compensation Act,7 the Office may
reopen a case for review on the merits in accordance with the guidelines set forth in section
10.606(b)(2) of the implementing federal regulations, which provides that a claimant may obtain
review of the merits if the written application for reconsideration, including all supporting
documents, sets forth arguments and contains evidence that:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(ii) Advances a relevant legal argument not previously considered by the Office;
or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by the [the Office].”8
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.9
ANALYSIS -- ISSUE 2
The Board finds that the Office properly denied appellant’s request for review. The
underlying issue on reconsideration was whether the Office properly terminated appellant’s wage
loss and medical compensation effective July 8, 2006.
In support of his June 29, 2006 request for reconsideration, appellant alleged that the
claims examiners did not fully read nor comprehend the documents relied upon to terminate his
benefits. He provided a copy of Dr. Garske’s June 14, 2004 report and questioned the
restrictions in that report. However, the report of Dr. Garske was previously of record and
6

Michael S. Mina, 57 ECAB ___ (Docket No. 05-1763, issued February 7, 2006) (in assessing medical
evidence, the weight of such evidence is determined by its reliability, its probative value and its convincing quality;
the opportunity for and thoroughness of examination, the accuracy and completeness of the physician’s knowledge
of the facts and medical history, the care of analysis manifested and the medical rationale expressed in support of the
physician’s opinion are facts, which determine the weight to be given to each individual report).
7

5 U.S.C. § 8128(a).

8

20 C.F.R. § 10.606(b).

9

Id. at § 10.608(b).

7

Office had previously considered this report and other medical reports of record in reaching its
prior decision. The submission of evidence which repeats or duplicates evidence that is already
in the case record does not constitute a basis for reopening a case for merit review.10
Appellant also referenced Dr. Westreich’s January 7, 2005 report and stated his belief
that the physician had stated opinions “outside of his medical expertise.” However, his
allegation does not show that the Office erroneously applied or interpreted a specific point of law
or advance a relevant legal argument not previously considered. The underlying issue is medical
in nature and the evidence reflects that Dr. Westreich, as a Board-certified neurologist, is
competent to render a medical opinion. Appellant provided no evidence supporting his
contention. Thus, this argument does not constitute a basis for reopening appellant’s case for a
merit review. Appellant also referred to Dr. Tierney’s report and alleged that it supported that he
had a shoulder problem. However, this report was already reviewed and considered by the
Office.11
Consequently, the evidence and argument submitted by appellant on reconsideration does
not satisfy one of the three regulatory criteria, noted above, for reopening a claim for merit
review. Therefore, the Office properly denied his request for reconsideration
CONCLUSION
The Board finds that the Office met its burden of proof in terminating appellant’s
compensation benefits effective July 8, 2006. The Board also finds that the Office properly
refused to reopen appellant’s case for further review of the merits of her claim under 5 U.S.C.
§ 8128(a).

10

David J. McDonald, 50 ECAB 185 (1998); John Polito, 50 ECAB 347 (1999); Khambandith Vorapanya,
50 ECAB 490 (1999).
11

Id.

8

ORDER
IT IS HEREBY ORDERED THAT the August 23 and June 26, 2006 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: May 15, 2007
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board

R.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
SHERIDAN VETERANS AFFAIRS MEDICAL
CENTER, Sheridan WY, Employer
__________________________________________

)
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)
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)
)
)

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

Docket No. 21-1382
Issued: March 7, 2022

Case Submitted on the Record

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

JURISDICTION
On May 15, 2020 1 appellant filed a timely appeal from a February 5, 2020 merit decision
and an April 29, 2020 nonmerit decision of the Office of Workers’ Compensation Programs

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from February 5, 2020, the date of OWCP’s last decision, was
August 3, 2020. Because using September 9, 2021, the date the appeal was received by the Clerk of the Appellate
Boards, would result in the loss of appeal rights, the date of the postmark is considered the date of filin g. The date of
the U.S. Postal Service postmark is May 15, 2020, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

(OWCP).2 Pursuant to the Federal Employee’s Compensation Act3 (FECA) and 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 has met his burden of proof to establish a diagnosed
medical condition causally related to the accepted August 28, 2019 employment incident; and
(2) whether OWCP properly denied appellant’s request for reconsideration of the merits of his
claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On September 2, 2019 appellant, then a 54-year-old police officer, filed a traumatic injury
claim (Form CA-1) alleging on August 28, 2019 he injured his lower back and was exposed to
blood when escorting and controlling a patient while in the performance of duty. He stopped work
on August 30, 2019. On the reverse of the claim form, appellant’s supervisor acknowledged that
appellant was in the performance of duty.
On August 30, 2019 Melanie Kawalok, a family nurse practitioner, opined that appellant
was partially disabled from work and recommended light duty with lifting restrictions.
In a development letter dated September 18, 2019, OWCP informed appellant of the
deficiencies of his claim. It advised him of the type of additional factual and medical evidence
needed and provided a questionnaire for his completion. OWCP afforded appellant 30 days to
submit the necessary evidence. Appellant did not respond.
By decision dated October 21, 2019, OWCP accepted that the August 18, 2019 incident
occurred as alleged, but denied appellant’s traumatic injury claim, finding that he had not
submitted evidence containing a medical diagnosis in connection with the injury. Consequently,
it found that he had not met the requirements to establish an injury as defined by FECA.
On November 8, 2019 appellant requested reconsideration of the October 21, 2019
decision. He provided the completed September 18, 2019 development questionnaire and asserted
that he did not initially experience low back pain and was more concerned about the blood
exposure that had occurred on the date of injury. Appellant noted that he first sought medical
treatment on September 9, 2019.
Appellant resubmitted the August 30, 2019 note from Ms. Kawalok and provided an
additional September 7, 2019 note that she completed. On September 11, 2019 Sean Schoonover,

2
The Board notes that, following the April 29, 2020 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.
3

5 U.S.C. § 8101et seq.

2

a physician assistant, completed a form report and a work release note. He also complete d form
reports on November 7, 2019.
On February 5, 2020 OWCP denied modification of its October 21, 2019 decision.
OWCP continued to receive evidence. Appellant submitted September 25 and October 28,
2019 notes from Mr. Schoonover who noted that he presented with continued complaints of low
back pain. He also resubmitted copies of Mr. Schoonover’s September 11 and November 7, 2019
notes.
On April 3, 2020 appellant requested reconsideration of OWCP’s February 5, 2020
decision.
By decision dated April 29, 2020, OWCP denied reconsideration of the merits of
appellant’s claim.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA 4 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning FECA, that the claim was timely filed within the applicable time
limitation period of FECA, 5 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury. 6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. The first component is that the
employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time, place, and in the manner alleged. The second component is
whether the employment incident caused a personal injury and can be established only by medical
evidence.8

4

Id.

5

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
6

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
7

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

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

3

The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 9 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee. 10
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted August 28, 2019 employment incident.
In support of his claim, appellant submitted an August 30, 2019 note from Ms. Kawalok,
a family nurse practitioner, as well as September 11 and November 7, 2019 notes from
Mr. Schoonover, a physician assistant. The Board has long held that certain healthcare providers
such as physician assistants and nurse practitioners are not considered qualified physicians as
defined under FECA. 11 Their medical findings, reports and/or opinions, unless cosigned by a
qualified physician, will not suffice for purposes of establishing entitlement to FECA benefits.12
Consequently, the notes from Ms. Kawalok and Mr. Schoonover are insufficient to meet his burden
of proof.13
As the evidence of record is insufficient to establish a diagnosed medical condition causally
related to the accepted August 28, 2019 employment incident, the Board finds that appellant has
not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

9

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
10

O.P., Docket No. 19-0445 (issued July 24, 2019); L.H., Docket No. 18-1217 (issued May 3, 2019); S.C., Docket
No. 16-0293 (issued May 10, 2016); A.C., Docket No. 08-1453 (issued November 18, 2008) (as there was no medical
evidence diagnosing an emotional condition, appellant failed to establish a prima facie claim).
Section 8102(2) of FECA provides as follows: “(2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as d efined
by State law.” 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See Federal (FECA) Procedure Manual, Part 2 -- Claims,
Causal Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay
individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion
under FECA); see also E.W., Docket No. 20-0338 (issued October 9, 2020).
11

12

Id.; K.A., Docket No. 18-0999 (issued October 4, 2019); K.W., 59 ECAB 271, 279 (2007).

13

S.E., Docket No. 21-0666 (issued December 28, 2021).

4

LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 14
To require OWCP to reopen a case for merit review, pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.15
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 16 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 17 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 18
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Appellant’s timely request for reconsideration on November 8, 2019 neither alleged nor
demonstrated that OWCP erroneously applied or interpreted a specific point of law. Additionally,
the Board finds that he did not advance a relevant legal argument not previously considered by
OWCP. Consequently, appellant is not entitled to further review of the merits of his claim based
on either the first or second above-noted requirements under 20 C.F.R. § 10.606(b)(3).
The Board further finds that appellant did not submit relevant and pertinent new evidence
not previously considered by OWCP. OWCP previously denied his claim because there was no
medical evidence of record establishing a diagnosed medical condition causally related to the
accepted August 28, 2019 employment incident. In support of his reconsideration request,
14

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 171287 (issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
15

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
16

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 the merit decision for which review is sought. Supra note 11 at Chapter 2.1602.4 (February 2016).
Timeliness is determined by the document receipt date of the request for reconsideration as indicated by the received
date in the Integrated Federal Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
17

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

18

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

5

appellant submitted September 25 and October 28, 2019 notes from Mr. Schoonover. The Board
finds that submission of these notes did not require reopening appellant’s case for merit review
because they have no probative value on the underlying issue on reconsideration. These reports
do not constitute competent medical evidence because physician assistants are not considered
physicians as defined under FECA. 19 Therefore, this evidence is not relevant and is insufficient to
require a merit review. 20
The Board, accordingly, finds that appellant did not meet any of the requireme nts of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review. 21
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a diagnosed
medical condition causally related to the accepted August 28, 2019 employment incident. The
Board further finds that OWCP properly denied his request for reconsideration of the merits of his
claim pursuant to 5 U.S.C. § 8128(a).

19

Supra note 11.

20

Id.; see R.G., Docket No. 19-1889 (issued April 14, 2021).

21

R.G., id.; D.G., Docket No. 19-1348 (issued December 2, 2019).

6

ORDER
IT IS HEREBY ORDERED THAT the February 5 and April 29, 2020 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 7, 2022
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.N., Appellant
and
U.S. POSTAL SERVICE, FORT WORTH
PROCESSING & DISTRIBUTION CENTER,
Fort Worth, TX, Employer
__________________________________________

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

Docket No. 21-0402
Issued: January 31, 2022

Case Submitted on the Record

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

JURISDICTION
On January 28, 2021 appellant filed a timely appeal from a January 5, 2021 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case. 2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the January 5, 2021 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal.

ISSUE
The issue is whether appellant has met her burden of proof to establish entitlement to
continuation of pay (COP).
FACTUAL HISTORY
On May 23, 2019 appellant, then a 61-year-old mail processing clerk, filed a traumatic
injury claim (Form CA-1) alleging that on December 9, 2018 she was working on a sorting
machine while in the performance of duty when she rotated to sit down and experienced shooting
pain down her back and into her right leg, aggravating a previously-accepted employment injury.3
On the reverse side of the claim form the employing establishment indica ted that, following her
original injury, she returned to work in a modified position. Appellant stopped work on
December 9, 2018.
In a December 12, 2018 medical note, Dr. Christopher Mann, an osteopath specializing in
occupational medicine, indicated that appellant fell at work on December 9, 2018 that caused her
to aggravate her back injury. He indicated that she would be disabled from work from
December 12 through 18, 2018.
In a December 18, 2018 diagnostic report, Dr. Albert Tesoriero, a Board-certified
radiologist, performed a magnetic resonance imaging (MRI) scan of appellant’s lumbar spine,
revealing straightening of the lower lumbar lordosis, a mild spondylitic annular bulge at L2 -3 and
L3-4 as well as stenosis of the spinal canal at L4-5 and L5-S1.
In a December 27, 2018 report, Dr. Mann explained that he had been treating appellant
since April 9, 2015 and that she experienced a material worsening of her back injury on
December 10, 2018 where her right leg gave out and caused her to fall at work. Upon further
medical observation, he found that she was temporarily disabled and she was held off of work
from December 10, 2018 to January 23, 2019 for therapeutic treatment. Dr. Mann reviewed the
December 18, 2018 lumbar spine MRI scan and explained that her diagnoses of lordosis,
compressions of the spinal nerve roots and bilateral foraminal narrowing would have made her
more susceptible to an aggravation of her injury with basic increases in her physical activity. He
noted that this would correlate with the fact that she reported her leg suddenly “gave way” and
caused her to fall. Dr. Mann further opined that appellant’s fall to the floor would have most likely
contributed to her current physical findings of impinged nerve roots causin g numbness, tingling
and poor standing or walking endurance. He diagnosed a lumbosacral intervertebral disc disorder
with radiculopathy. Dr. Mann noted that the upgraded diagnosis had been submitted to OWCP’s
office since May 10, 2018 with no response to date. He concluded that she sustained a material
worsening of her original April 8, 2015 employment injury.

3

Appellant initially filed a notice of recurrence (Form CA-2a) related to a previously accepted April 8, 2015 claim
for thoracic or lumbosacral neuritis or radiculitis and a displacement of lumbar intervertebral disc without myelopathy
under OWCP File No. xxxxxx732. On August 27, 2020 OWCP notified her that it had administratively converted her
recurrence claim under OWCP File No. xxxxxx732 to a new traumatic injury claim occurring on December 9, 2018
under OWCP File No. xxxxxx231.

2

In a May 10, 2018 letter, Dr. Mann diagnosed lumbosacral neuritis and a lumbar disc
displacement. He recommended that appellant’s diagnosis be expanded to include lumbosacral
intervertebral disc disorder with radiculopathy so that she could receive medical treatment
necessary to treat her condition.
In a January 9, 2019 duty status report (Form CA-17), Dr. Mann diagnosed a lumbar disc
displacement and checked a box marked “No” to advise that appellant was unable to return to
work. In a medical note of even date, he indicated that she would be totally disabled from work
January 9 through 23, 2019 due to her claimed December 9, 2018 employment injury. 4
In a February 5, 2019 medical report, Dr. Patrick Stanton, Board-certified in pain medicine,
evaluated appellant for pain in her lower back, buttocks and legs and identified the onset of her
injury as April 8, 2015. He diagnosed lumbosacral radiculopathy and ordered a lumbosacral
steroid injection.
In medical reports dated December 12, 2018 to February 18, 2019, Dr. Mann recounted the
December 9, 2018 employment incident in which appellant reported that her right leg gave out and
caused her to fall, aggravating the muscles in her lower back. He diagnosed lumbosacral region
radiculopathy and lumbosacral region other intervertebral disc displacement.
In medical reports dated from February 22 to May 8, 2019, Dr. Stanton reviewed
appellant’s history of lower back pain radiating into her right lower extremity and diagnosed
lumbosacral radiculopathy. He administered lumbar therapeutic epidural steroid installations to
treat her lumbosacral radiculopathy.
In a May 10, 2019 letter, Dr. Mann indicated that OWCP had failed to acknowledge the
receipt of medical evidence appellant submitted. He asserted that her claim for compensation
began on December 10, 2018 when she was seen in his office on December 12, 2018 and was
found to have experienced a material worsening of her April 8, 2015 employment injury under
OWCP File No. xxxxxx732.
In attending physician’s reports (Form CA-20) dated January 16 to September 4, 2019,
Dr. Mann diagnosed lumbosacral intervertebral disc disorder, lumbar herniated disc and lumbar
radiculopathy due to the April 8, 2015 employment injury. He checked a box marked “Yes” to
indicate his opinion that her condition was caused or aggravated by the April 8, 2015 employment
incident.
In a September 11, 2019 letter, Dr. Mann expressed his disagreement with OWCP’s
July 30, 2019 decision in OWCP File No. xxxxxx732. He explained that appellant’s injury was a
recurrence of her April 8, 2015 injury and should not have been categorized as a new injury.
In a March 23, 2020 report, Dr. Mann described his treatment history in relation to
appellant’s April 8, 2015 employment injury. He opined that she was totally disabled from full,

4

Dr. Mann indicated that appellant’s employment injury occurred on November 9, 2018, however, this appears to
be a typographical error.

3

unrestricted work duty as the result of her accepted conditions and that her injuries had continued
to digress over the last three years.
By decision dated August 28, 2020, OWCP accepted appellant’s traumatic injury claim for
lumbosacral region radiculopathy and lumbosacral region other intervertebral disc displac ement.
By separate decision of even date, it denied her claim for COP, finding that she had not reported
her injury on an OWCP-approved form within 30 days of the accepted December 9, 2018
employment injury. OWCP noted that the denial of COP did not affect her entitlement to other
compensation benefits.
OWCP continued to receive evidence. Appellant submitted a May 22, 2019 physical
therapy report from Landrie Johansen, a physical therapist.
In an August 31, 2020 Form CA-20, Dr. Mann diagnosed intervertebral disc displacement
and radiculopathy and checked a box marked “Yes” to indicate that appellant’s conditions were
caused or aggravated by the December 9, 2018 employment injury.
On October 13, 2020 appellant requested reconsideration of OWCP’s August 28, 2020
decision denying COP. She submitted arguments in support of her request, including the allegation
that no one informed her of the documentation she needed to submit and that her attending
physician submitted medical evidence supporting her claim.
OWCP also received physical therapy reports dated May 23 to July 1, 2019.
In an October 12, 2020 Form CA-20, Dr. Mann diagnosed intervertebral disc displacement
and radiculopathy and checked a box marked “Yes” to indicate that appellant’s conditions were
caused or aggravated by the December 9, 2018 employment injury.
By decision dated January 5, 2021, OWCP denied modification of its August 28, 2020
decision.
LEGAL PRECEDENT
Section 8118(a) of FECA authorizes COP, not to exceed 45 days, to an employee who has
filed a claim for a period of wage loss due to a traumatic injury with his or her immediate superior
on a form approved by the Secretary of Labor within the time specified in section 8122(a)(2) of
this title.5 This latter section provides that written notice of injury shall be given within 30 days. 6
The context of section 8122 makes clear that this means within 30 days of the injury. 7
OWCP s regulations provide, in pertinent part, that to be eligible for COP, an employee
must: (1) have a traumatic injury which is job related and the cause of the disability and/or the
5

Supra note 1 at § 8118(a).

6

Id. at § 8122(a)(2).

7

E.M., Docket No. 20-0837 (issued January 27, 2021); J.S., Docket No. 18-1086 (issued January 17, 2019);
Robert M. Kimzey, 40 ECAB 762, 763-64 (1989); Myra Lenburg, 36 ECAB 487, 489 (1985).

4

cause of lost time due to the need for medical examination and treatment; (2) file Form CA-1
within 30 days of the date of the injury; and (3) begin losing time from work due to the traumatic
injury within 45 days of the injury. 8
The employee must provide a written report on a Form CA-1 to the employing
establishment within 30 days of the injury. 9 OWCP’s procedures provide that another OWCPapproved form, such as CA-2, CA-2a, or CA-7 forms, which contain words of claim, can be used
to satisfy timely filing requirements. 10
The Board has held that section 8122(d)(3) of FECA,11 which allows OWCP to excuse
failure to comply with the time limitation provision for filing a claim for compensation because of
exceptional circumstances, is not applicable to section 8118(a), which sets forth the filing
requirements for COP. Thus, there is no provision in the law for excusing an employee’s failure
to file a claim within 30 days of the employment injury.12
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish entitlement to
COP.
Appellant filed written notice of her traumatic injury on May 23, 2019, which was more
than 30 days after her December 9, 2018 employment injury. Because she filed her claim on
May 23, 2019, the Board finds that it was not filed within 30 days of the injury, as specified in
sections 8118(a) and 8122(a)(2) of FECA. In her October 13, 2020 request for reconsideration,
appellant reported that no one informed her of the documentation she needed to submit in support
of her claim. However, there is no provision in FECA for excusing such a late filing. 13
Additionally, appellant claimed that her physician submitted medical evidence relating to her
claim. However, despite this, there remains no evidence of written notice on an OWCP-approved
form prior to May 23, 2019.14 The Board, therefore finds that OWCP properly denied COP as
appellant did not file her claim within the requisite 30 days from the date of injury. 15

8

20 C.F.R. § 10.205(a)(1-3); see also J.M., Docket No. 09-1563 (issued February 26, 2010).

9

Id. at § 10.210(a).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Continuation of Pay and Initial Payments, Chapter 2.807.5
(June 2012).
11

5 U.S.C. § 8122(d)(3).

12

E.M., Docket No. 20-0837 (issued January 27, 2021); Dodge Osborne, 44 ECAB 849, 855 (1993); William E.
Ostertag, 33 ECAB 1925 (1982).
13

Id.; see also E.S., Docket No. 15-1800 (issued December 10, 2015).

14

Supra note 9 and 10.

15

20 C.F.R. § 10.210(a); J.S., Docket No. 18-1086 (issued January 17, 2019).

5

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish entitlement to
COP.16
ORDER
IT IS HEREBY ORDERED THAT the January 5, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 31, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

16

Upon return of the case record, OWCP shall administratively combine the present claim file with OWCP File
No. xxxxxx732.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
JESSE BROWN MEDICAL CENTER,
Chicago, Il, Employer
__________________________________________

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

Docket No. 12-227
Issued: May 17, 2012

Case Submitted on the Record

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

JURISDICTION
On November 22, 2011 appellant, through his attorney, filed a timely appeal of a July 13,
2011 Office of Workers’ Compensation Programs’ (OWCP) merit decision denying continuation
of pay. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant established entitlement to continuation of pay.
FACTUAL HISTORY
On May 20, 2011 appellant, then a 64-year-old pipe fitter, filed a traumatic injury claim
for compensation alleging that on March 9, 2010 he fell in the hallway due to dizziness, high
blood pressure, stress and anxiety. He stated that his head was cut from the fall. On the reverse
1

5 U.S.C. § 8101 et seq.

of the form, appellant’s supervisor noted that appellant stopped work on March 9, 2010 and
returned to work on March 16, 2010.
By decision dated July 13, 2011, OWCP accepted appellant’s claim for a contusion of the
face, scalp and neck. In a separate decision of the same date, it denied his claim for continuation
of pay finding that the injury was not reported on an appropriate form within 30 days of the
injury.
LEGAL PRECEDENT
Section 8118 of FECA2 provides for payment of continuation of pay, not to exceed 45
days, to an employee who has filed a claim for a period of wage loss due to traumatic injury with
his immediate supervisor on a form approved by the Secretary of Labor within the time specified
in section 8122(a)(2) of this title. Section 8122(a)(2) provides that written notice of injury must
be given as specified in section 8119. The latter section provides in part that notice of injury
shall be given in writing within 30 days after the injury.3
Claims that are timely under section 8122 are not necessarily timely under section
8118(a). FECA authorizes continuation of pay for an employee who has filed a valid claim for
traumatic injury.4 Section 8118(a) makes continuation of pay contingent on the filing of a
written claim within 30 days of the injury. When an injured employee makes no written claim
for a period of wage loss within 30 days, he or she is not entitled to continuation of pay,
notwithstanding prompt notice of injury.5
Continuation of pay requires the employing establishment to continue the employee’s
regular pay during any periods of disability, up to a maximum of 45-calendar days. This is paid
by the employing establishment, not OWCP. However, the ultimate decision as to whether
appellant is eligible for continuation of pay rests with OWCP.6
Continuation of pay is payable only for time lost from work due to an initial traumatic
injury. To be eligible for continuation of pay, an employee must: (1) have a traumatic injury
which is job related and the cause of the disability, and/or the cause of lost time due to the need
for medical examination and treatment; (2) file Form CA-1 within 30 days of the date of the
injury (but if that form is not available, using another form would not alone preclude receipt);
and (3) begin losing time from work due to the traumatic injury within 45 days of the injury.8
7

2

5 U.S.C. §§ 8101-8193, 5 U.S.C. § 8118.

3

Id. at § 8119(a)(c).

4

Id. at § 8118(a).

5

See W.W., 59 ECAB 533 (2008). See also P.R., Docket No. 08-2239 (issued June 2, 2009).

6

20 C.F.R. § 10.200.

7

Id. at § 10.205(a)(3). See also Carol A. Lyles, 57 ECAB 265 (2005).

8

Id. at 10.205(a)(1-3). See also J.M., Docket No. 09-1563 (issued February 26, 2010).

2

Whether a particular injury caused an employee disability from employment is a medical issue,
which must be resolved by competent medical evidence.9
The employee must provide a written report on Form CA-1 to the employing
establisment within 30 days of the injury.10 OWCP’s procedure manual states that another
OWCP-approved form, such as Form CA-2, CA-2a or CA-7, which contains words of claim, can
be used to satisfy timely filing requirements.11
ANALYSIS
Appellant filed a notice of traumatic injury on May 20, 2011 alleging that he fell and
injured his head on March 9, 2010. The record establishes that he did not file a claim for
traumatic injury of pay within 30 days. Appellant filed his traumatic injury claim on May 20,
2011, more than one year after his employment injury on March 9, 2010. As appellant did not
file his within 30 days of his employment injury, he is not entitled to continuation of pay.
Section 8118(a) makes continuation of pay contingent on the filing of a written claim within 30
days of the injury. FECA makes no provision for an exception to the time limitation in section
8118(a), no exceptional or mitigating circumstance, including error by the employing
establishment, can entitle a claimant to continuation of pay who has not filed a written claim
within 30 days of injury.12 As appellant did not file his traumatic injury claim within 30 days he
is not entitled to continuation of pay.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant is not entitled to continuation of pay for his March 9, 2010
employment injury.

9

Carol A. Lyles, supra note 7.

10

20 C.F.R. § 10.210(a).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Continuation of Pay and Initial Payments, Chapter
2.807.7(a) (March 2004). .
12

C.S., Docket No. 11-1056 (issued November 7, 2011).

3

ORDER
IT IS HEREBY ORDERED THAT the July 13, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 17, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.K., Appellant
and
DEPARTMENT OF THE AIR FORCE,
EGLIN AIR FORCE BASE, FL, Employer
__________________________________________

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Docket No. 08-1284
Issued: October 6, 2008

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

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 1, 2008 appellant filed a timely appeal from the December 10, 2007 nonmerit
decision of the Office of Workers’ Compensation Programs, which denied a review of the
written record. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review
this denial. The Board has no jurisdiction to review appellant’s September 25, 2006 schedule
award or the Office’s February 9, 2007 merit decision denying modification of that schedule
award. Appellant had one year from the date of each of those decisions to file an appeal to this
Board. Because he did not file his appeal until March 1, 2008, the Board’s jurisdiction is now
limited to reviewing whether on December 10, 2007 the Office properly denied appellant’s
request for a review of the written record.1
ISSUE
The issue is whether the Office properly denied appellant’s October 23, 2007 request for
a review of the written record.
1

The Board has no jurisdiction to review the new evidence appellant submitted on appeal. 20 C.F.R. § 501.2(c).

FACTUAL HISTORY
On September 25, 2005 appellant, then a 62-year-old test programming specialist, filed a
claim alleging that his hearing loss was a result of his federal employment: “Being near military
aircraft and active flight line, also conducted mission where … unused munitions are blown up
using cases of C-4 explosives by [explosive ordinance disposal] personnel.” The Office accepted
his claim for bilateral hearing loss due to noise.
On September 25, 2006 the Office issued a schedule award for a 33 percent bilateral
hearing loss.2 Appeal rights attached to the schedule award notified appellant that any request
for an oral hearing or review of the written record must be made before any request for
reconsideration. The appeal rights further notified him that any request for a hearing must be
made within 30 calendar days after the date of the schedule award, as determined by the
postmark of the letter.
On October 13, 2006 appellant made a timely request for an oral hearing before an Office
hearing representative. In an undated letter received on November 13, 2006, however, appellant
withdrew his request for an oral hearing and requested reconsideration.
The Office granted appellant’s request for reconsideration. In a decision dated
February 9, 2007, the Office reviewed the merits of his claim but denied modification of the
schedule award. Appeal rights attached to the February 9, 2007 decision notified appellant that
he had one year, or until February 9, 2008, to request reconsideration. The appeal rights further
notified appellant that he had no more than one year to file an appeal to this Board.
Appellant did neither. Instead, in a letter postmarked October 23, 2007, he requested a
review of the written record by an Office hearing representative.
In a decision dated December 10, 2007, the Office denied appellant’s request. It found
that he was not entitled to a review of the written record as a matter of right because he had
previously requested reconsideration of the schedule award. The Office nonetheless considered
the matter and denied a discretionary hearing on the grounds that appellant could equally well
address the matter by requesting reconsideration and submitting evidence not previously
considered establishing that he is entitled to a greater schedule award.

2

Under the law, a claimant with 100 percent loss of hearing in both ears (a claimant who is completely deaf),
may receive no more than 200 weeks of compensation for that impairment. 5 U.S.C. § 8107(c)(13)(B). Partial
losses are compensated proportionately. Id. at § 8107(c)(19). Appellant therefore received 66 weeks of
compensation (33 percent times 200 weeks). Although his hearing loss is permanent and he will live it for the rest
of his life, long after the schedule award expired on October 7, 2007, the law limits the compensation that is payable
to a specific number of weeks. Many claimants take issue with how the law is structured, but no claimant may
receive more than the law allows.

2

LEGAL PRECEDENT
Section 8124(b)(1) of the Federal Employees’ Compensation Act provides:
“Before review under section 8128(a) of this title [relating to reconsiderations], a
claimant for compensation not satisfied with a decision of the Secretary under
subsection (a) of this section is entitled, on request made within 30 days after the
date of the issuance of the decision, to a hearing on his claim before a
representative of the Secretary.”3
Initially, the claimant can choose between two hearing formats: an oral hearing or a
review of the written record.4 The request must be sent within 30 days (as determined by
postmark or other carrier’s date marking) of the date of the decision for which a hearing is
sought. The claimant must not have previously submitted a reconsideration request (whether or
not it was granted) on the same decision.5
The Board has held that the Office, in its broad discretionary authority to administer the
Act, has the power to hold hearings in circumstances where no legal provision is made for such
hearings, and that the Office must exercise that discretionary authority.6 Specifically, the Board
has held that the Office has the discretion to grant a hearing request when the request is made after
the 30-day period for requesting a hearing7 or when the request is made after a request for
reconsideration.8 In such cases the Office will determine whether a discretionary hearing or
review should be granted and, if not, will so advise the claimant, explaining the reasons.9 The
Office’s procedures, which require the Office to exercise its discretion to grant or deny a hearing
when the request is untimely or made after reconsideration, are a proper interpretation of the Act
and of Board precedent.10

3

5 U.S.C. § 8124(b)(1).

4

20 C.F.R. § 10.615.

5

Id. at § 10.616(a).

6

Mary B. Moss, 40 ECAB 640 (1989) (untimely request for hearing); Shirley A. Jackson, 39 ECAB 540 (1988)
(hearing request made after request for reconsideration); Johnny S. Henderson, 34 ECAB 216 (1982) (request for a
second hearing); Rudolph Bermann, 26 ECAB 354 (1975) (injury occurring prior to effective date of the statutory
amendments providing right to hearing).
7

Herbert C. Holley, 33 ECAB 140 (1981).

8

James W. Croake, 37 ECAB 219 (1985).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.4.b(3) (June 1997).
10

Jeff Micono, 39 ECAB 617 (1988); Henry Moreno, 39 ECAB 475 (1988).

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ANALYSIS
Appellant had 30 days after the September 25, 2006 schedule award, or until October 25,
2006, to request a review of the written record. His request for a review of the written record,
postmarked October 23, 2007, was therefore a year too late. But the Office denied his request on
other grounds. As the appeal rights attached to the schedule award explained, any request for a
review of the written record must be made before a request for reconsideration. When appellant
made his October 23, 2007 request for a review of the written record, he had already requested
reconsideration of the schedule award. He requested reconsideration in an undated letter
received on November 13, 2006. The Office reconsidered the award but denied modification.
Because appellant previously requested reconsideration of the schedule award, the Office
correctly found that he was not entitled to a review of the written record as a matter of right. The
Office nonetheless retained discretion to grant the request but decided that a review of the
written record was not necessary because appellant could equally well pursue his arguments by
requesting reconsideration through the district Office. Appellant still had two more months, or
until February 9, 2008, to request reconsideration of the Office’s February 9, 2007 merit
decision. The Board finds that the denial of appellant’s request on these grounds was an
appropriate exercise of the Office’s discretionary authority. The Board will affirm the Office’s
December 10, 2007 decision denying a review of the written record.
CONCLUSION
The Board finds that the Office properly denied appellant’s October 23, 2007 request for
a review of the written record.

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ORDER
IT IS HEREBY ORDERED THAT the December 10, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 6, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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