United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.N., Appellant
and
DEPARTMENT OF THE DEFENSE, WRIGHTPATTERSON AIR FORCE BASE, OH,
Employer
__________________________________________

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

Docket No. 10-2042
Issued: July 14, 2011

Case Submitted on the Record

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

JURISDICTION
On August 4, 2010 appellant, through her attorney, filed a timely appeal of a July 14,
2010 Office of Workers’ Compensation Programs’ (OWCP) merit decision. Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of the case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to modify the November 1,
2000 wage-earning capacity decision; and (2) whether she is entitled to wage-loss compensation
from May 25, 2008 through March 28, 2009, July 19 through November 21, 2009 or from
November 23 through December 4, 2009.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. On August 28, 1998 appellant, then a
36-year-old secretary, injured her low back when she slipped in the performance of duty. OWCP
accepted her claim for herniated disc at L5-S1 on October 27, 1998. Appellant underwent a
lumbar laminectomy of L5, discectomy of L5-S1 and posterior lumbar interbody fusion on
May 27, 1999. In a decision dated November 1, 2000, OWCP reduced her compensation
benefits to zero finding that her actual earnings as a secretary fairly and reasonably represented
her wage-earning capacity.
Appellant requested wage-loss compensation from September 17 to 23, 2006 and from
September 25 to 29, 2006 as she was only working six hours a day. OWCP denied her claim on
April 2, 2007. Appellant requested an oral hearing and by decision dated October 11, 2007, the
Branch of Hearings and Review affirmed the denial of compensation. By decision dated
June 19, 2008,2 the Board found that she did not establish that she was partially disabled from
September 17, 2006 through January 20, 2007. The facts and circumstances of the case as the set
out in the Board’s prior decision are incorporated herein by reference.
On March 10, 2008 Dr. Townsend Smith, Board-certified in pain management,
performed a right L4-5 and L5-S1 transforaminal epidural steroid injection due to lumbar back
pain radiating to appellant’s right leg. On April 1, 2008 appellant reported a return of her
headache. She requested wage-loss compensation beginning on March 17, 2008. Appellant
submitted an additional claim on April 11, 2008 requesting compensation as of April 10, 2008.
On April 29, 2008 she filed a third claim for compensation requesting wage-loss compensation
from April 27 through May 14, 2008. Appellant requested compensation from May 12 through
23, 2008.
On May 16, 2008 Dr. Smith stated that appellant had chronic intractable pain due to a
spinal headache following a procedure on March 17, 2008. In a report dated June 12, 2008, he
stated that due to complications from the epidural administered on March 17, 2008 she was
unable to work until May 27, 2008. Dr. Smith noted that her spinal headache symptoms did not
resolve, but were “within the realm of what can occur as a result of undergoing spinal
injections.” He stated that spinal headaches were very debilitating and severely worsened by
standing or sitting upright for short periods of time. OWCP authorized compensation from
March 17 through April 11, 2008 and April 12 through May 24, 2008 on October 28, 2008.
Appellant filed a claim for compensation on April 1, 2009 alleging that she had lost
wages from May 25, 2008 through March 28, 2009. In a letter dated April 10, 2009, OWCP
requested additional medical evidence supporting her claim for partial disability and allowed 30
days for a response. In a report dated May 11, 2009, Dr. H. Todd Kepler, an osteopath, stated
that appellant’s current work restrictions limited her to four hours a day due to significant low
back pain. He stated, “It is felt that any reinjury would jeopardize her recovery. [Appellant] has
the work restriction to help decrease the likelihood of reinjury.”

2

Docket No. 08-324 (issued June 19, 2008).

2

Appellant filed a claim for compensation on July 22, 2009 requesting wage-loss benefits
from March 29 through July 18, 2009. She subsequently requested compensation from July 19
through November 21, 2009. On December 1, 2009 OWCP again requested additional medical
information supporting appellant’s claim for partial disability.
Appellant requested
compensation from November 22 to December 4, 2009.
On February 18, 2010 OWCP denied appellant’s claim for total disability for the periods
May 25, 2008 to March 28, 2009, July 19 to November 21, 2009 and November 23
to December 24, 2009. It found that the medical evidence did not establish her disability for
work four hours a day beginning May 25, 2008. OWCP noted that Dr. Kepler failed to provide
physical findings and attributed appellant’s work restrictions to a fear of future injury.
In a report dated February 16, 2010, Dr. Kepler noted that appellant’s pain had increased
with continued numbness of her legs. He also found increased depression and noted that she
wished to pursue disability retirement.
Appellant diagnosed displacement of lumbar
intervertebral disc without myelopathy, thoracic or lumbosacral neuritis or radiculitis and major
depression disorder.
Counsel requested an oral hearing on February 23, 2010. In a report dated November 16,
2009, Dr. Kepler noted that appellant was requesting a follow up of her chronic pain and a
medical disability. On February 16, 2010 he stated that she was totally disabled from February 6
to March 2, 2010 and could return to work on March 3, 2010. Dr. Kepler examined appellant on
April 7, 2010 due to right trapezius, neck and arm pain. He diagnosed cervical radiculopathy in
addition to her other conditions. On April 23, 2010 Dr. Kepler noted appellant’s complaints of
pain in her lower back, legs and feet with swelling as well as her right arm. He noted that she
was experiencing tremors over her entire body.
Appellant testified at the June 1, 2010 oral hearing. Her pain in the lower back and leg
weakness resulted in work restrictions of four hours a day. Appellant noted that as a secretary
she sat for long periods of time and was restricted from sitting or standing for more than one
hour at a time. She tried to work six hours a day, but was unable to function for the remainder of
the day due to pain and giving way in her legs. Appellant stated that Dr. Kepler provided work
restrictions. She testified that her pain progressively worsened and she was currently working
only two hours a day. Appellant experienced leg pain and tremors with weakness. She stated
that she received compensation for the two months while she had spinal headaches. Appellant
returned to work at six hours due to spinal headaches. Following the oral hearing, she submitted
a report dated May 21, 2010 from Dr. Kepler addressing her cervical condition.
By decision dated July 14, 2010, the Branch of Hearings and Review denied modification
of the November 1, 2000 wage-earning capacity decision. It found that appellant did not allege
that the original decision was in error or that she had been vocationally rehabilitated. While
appellant alleged that her medical condition had materially worsened, she failed to provide
sufficient medical evidence. As to her claims for intermittent periods of total disability, the
hearing representative found that she also failed to provide medical opinion evidence to support
this aspect of her claim. The hearing representative found that the medical evidence supported
appellant’s disability for work from March 17 through May 24, 2008 due to complications from

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spinal headaches as a consequence of a spinal injection administered to treat her back pain. She
affirmed the February 18, 2010 decision, as modified.
LEGAL PRECEDENT -- ISSUE 1
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.3 Compensation for loss of wage-earning capacity is based upon loss of the capacity to
earn and not on actual wages lost.4 Compensation payments are based on the wage-earning
capacity determination, which remains undisturbed until properly modified.5
Modification of a wage-earning capacity determination is not warranted unless there is a
material change in the nature and extent of the injury-related condition, the employee has been
retrained or otherwise vocationally rehabilitated or the original determination was erroneous.6
OWCP’s procedure manual provides that, if a formal loss of wage-earning capacity decision has
been issued, the rating should be left in place unless the claimant requests resumption of
compensation for total wage loss. In this instance, the claims examiner will need to evaluate the
request according to the customary criteria for modifying a formal loss of wage-earning
capacity.7 The burden of proof is on the party attempting to show a modification of the wageearning capacity determination.8
The Board has held that OWCP may accept a limited period of disability without
modifying a standing wage-earning capacity determination.9 This occurs when there is a
demonstrated temporary worsening of a medical condition of insufficient duration and severity to
warrant modification of a wage-earning capacity determination.10 This narrow exception is only
applicable for brief periods of medical disability. It does not apply to situations where there is a
wage-earning capacity determination in place and the employee claims additional wage-loss
compensation due to the withdrawal of light-duty work.11
3

5 U.S.C. § 8115(a); Lee R. Sires, 23 ECAB 12, 14 (1971); K.R., Docket No. 09-415 (issued February 24, 2010);
(the Board held that actual wages earned must be accepted as the measure of a wage-earning capacity in the absence
of evidence showing they do not fairly and reasonably represent the employee’s wage-earning capacity).
4

Ernest Donelson, Sr., 35 ECAB 503, 505 (1984); Roy Matthew Lyon, 27 ECAB 186, 190 (1975); K.R., id.

5

See Sharon C. Clement, 55 ECAB 552, 557 (2004).

6

Sue A. Sedgwick, 45 ECAB 211, 215-16 (1993); Elmer Strong, 17 ECAB 226, 228 (1965).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995). See also FECA Transmittal 10-01 (issued October 5, 2009).
8

Selden H. Swartz, 55 ECAB 272, 278 (2004).

9

See Katherine T. Kreger, 55 ECAB 633, 636 (2004).

10

Id.

11

K.R., supra note 3; K.H., Docket No, 08-2392 (issued April 21, 2009); S.H., Docket No. 07-755 (issued
November 9, 2007).

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ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a herniated disc at L5-S1 on August 28, 1998.
By decision dated November 1, 2000, it reduced her wage-loss benefits to zero finding that her
actual earnings in full-time employment as a secretary fairly and reasonably represented her
wage-earning capacity. Appellant filed claims for compensation alleging that she was totally
disabled from March 17 through May 24, 2008. OWCP granted compensation benefits in
October 2008 for this period due to disability sustained as a consequence of medical treatment
administered to treat her accepted low back condition. In April 2009, appellant requested
compensation for partial disability beginning on May 25, 2008 through March 28, 2009, July 19
through November 21, 2009 and from November 23 through December 4, 2009. The question is
whether the November 1, 2000 wage-earning capacity decision should be modified.
The hearing representative determined that appellant’s claims for disability beginning
May 25, 2008 were not sufficiently supported by the medical evidence to warrant modification
of the November 1, 2000 wage-earning capacity determination. Based upon a thorough review
of the evidence, the Board finds that she did not allege that the original wage-earning capacity
determination was erroneous or that she had been retrained or otherwise vocationally
rehabilitated. Appellant argued that her accepted back condition had materially worsened
resulting in increasing disability for work.
Appellant submitted medical evidence in support of this claim, consisting of reports from
Dr. Kepler, an osteopath, who initially stated that her current work restrictions limited her to four
hours a day due to significant low back pain. Dr. Kepler stated that the restrictions were
necessary to decrease the likelihood of further reinjury. The Board has held that the possibility
of a future injury does not form a basis for the payment of compensation under FECA.12 This
report is not sufficient to meet appellant’s burden of establishing a material change in her
accepted condition, as Dr. Kepler indicated that her work restrictions were to prevent the
possibility of reinjury, rather than due to a change in her accepted condition.
Dr. Kepler found on February 16, 2010 that appellant’s pain had increased with
continued numbness of her legs. He opined that her depression had increased depression and
stated that she wished to pursue disability retirement. Dr. Kepler diagnosed displacement of
lumbar intervertebral disc without myelopathy, thoracic or lumbosacral neuritis or radiculitis and
major depression disorder. On April 23, 2010 he noted appellant’s complaints of pain in her
lower back, legs and feet with swelling as well as her right arm. Dr. Kepler noted that she was
experiencing tremors over her entire body. These reports do not establish a material change in
appellant’s accepted low back condition as he did not provide specific findings on physical
examination supporting her complaints of increased pain. Furthermore, the report is without a
medical explanation of how her low back condition had changed and cannot establish a material
change such that her wage-earning capacity determination should be modified.
In a note dated February 16, 2010, Dr. Kepler stated that appellant was totally disabled
from February 6 to March 2, 2010 and could return to work on March 3, 2010). This report does
12

Manuel Gill, 52 ECAB 282 (2001).

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not provide the necessary physical findings and medical opinion to establish that she had a
material change in her back condition resulting in this disability for work.
LEGAL PRECEDENT -- ISSUE 2
An employee seeking benefits under FECA13 has the burden of establishing the essential
elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.14 The term disability is
defined as the incapacity because of an employment injury to earn the wages the employee was
receiving at the time of the injury, i.e., a physical impairment resulting in loss of wage-earning
capacity.15
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative and substantial medical evidence.16 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled for work. When a
physician’s statements regarding an employee’s ability to work consist only of repetition of the
employee’s complaints that she hurt too much to work, without objective findings of disability
being shown, the physician has not presented a medical opinion on the issue of disability or a
basis for payment of compensation.17 The Board will not require OWCP to pay compensation
for disability in the absence of any medical evidence directly addressing the specific dates of
disability for which compensation is claimed. To do so would essentially allow employees to
self-certify their disability and entitlement to compensation.18
Causal relationship is a medical issue and the medical evidence required to establish
causal relationship is rationalized medical evidence.19 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.20 Neither the fact that
13

5 U.S.C. §§ 8101-8193.

14

G.T., 59 ECAB 447 (2008); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB
1143 (1989).
15

20 C.F.R. § 10.5(f); see, e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).
16

See Fereidoon Kharabi, 52 ECAB 291 (2001).

17

Id.

18

Id.

19

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

20

Leslie C. Moore, 52 ECAB 132 (2000).

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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.21
ANALYSIS -- ISSUE 2
Appellant alleged that she was partially disabled from May 25, 2008 through March 28,
2009, July 19 through November 21, 2009 and from November 23 through December 4, 2009.
In support of her claim, she submitted a report dated June 12, 2008 from Dr. Smith which stated
that due to complications from the epidural administered on March 17, 2008 appellant was
unable to work until May 27, 2008. Dr. Smith explained that appellant’s spinal headache
symptoms did not resolve quickly, but were “within the realm of what can occur as a result of
undergoing spinal injections.” Based on this report, OWCP authorized compensation benefits
through May 25, 2008 based on her prior claims. The Board finds that this report is sufficient to
establish appellant’s total disability for work due to her spinal headaches through May 27, 2008
as stated in the report. The record does not support a period of disability after May 27, 2008.
As noted previously, appellant submitted a series of reports from Dr. Kepler beginning
May 11, 2009. These reports are not sufficient to establish any specific period of disability due
to her accepted employment-related back condition. Dr. Kepler did not provide physical
findings explaining why appellant’s back injury resulted in any disability for work. He restricted
her to four hours of work to prevent future injury, which is not a basis for compensation under
FECA.22 Due to the deficiencies in Dr. Kepler’s reports, the Board finds that appellant has not
established any period of disability after May 27, 2008.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that modification of her wage-earning
capacity determination was warranted. The Board further finds that she has not established
disability causally related to her accepted employment injury after May 27, 2008. Upon receipt
of the case from the Board, OWCP should issue appropriate compensation for May 26 and 27,
2008 in accordance with this opinion of the Board.

21

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

22

Moore, supra note 20.

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ORDER
IT IS HEREBY ORDERED THAT the July 14, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: July 14, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.K., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, Salem, MA,
Employer
__________________________________________

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

Docket No. 09-1827
Issued: April 21, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 3, 2009 appellant filed a timely appeal of an October 30, 2008 decision of the
Office of Workers’ Compensation Programs denying his claim for compensation and a
January 30, 2009 decision denying his request for reconsideration without a merit review.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained a traumatic injury on July 20, 2008, as alleged; and (2) whether the Office properly
denied appellant’s request for reconsideration without further merit review under 5 U.S.C.
§ 8128(a).

FACTUAL HISTORY
On July 22, 2008 appellant, then a 61-year-old laborer, filed a traumatic injury claim
alleging that on July 20, 2008 he sustained toxic smoke inhalation in the performance of duty.
He stopped work on July 21, 2008 and returned on July 22, 2008.
A July 20, 2008 ambulance report from the responding emergency medical technicians
(EMT) noted that appellant was holding a bucket of laker oil that was releasing smoke and
fumes. They also noted appellant’s complaints of dizziness after inhaling smoke and fumes.
Appellant was transported to a local emergency room. In a chest x-ray report of the same date,
Dr. Julie Stiles, a Board-certified diagnostic radiologist, noted a history of smoke inhalation. She
found normal heart size, clear lungs and no pleural effusion or pneumothorax. Dr. Stiles
determined that appellant had no acute cardiopulmonary findings.
In an August 1, 2008 report, Dr. Hon Yee, Board-certified in emergency medicine,
treated appellant for smoke inhalation and dizziness. He indicated that appellant was exposed to
a chemical fire consisting of tar and turpentine within a closed space. Dr. Yee noted that
appellant worked in the building that contained the tar material. He stated that appellant had a
history of asthma. Dr. Yee diagnosed dizziness and “rule out” smoke inhalation.
On September 23, 2008 the Office advised appellant of the factual and medical evidence
necessary to establish his claim and allowed him 30 days to submit additional evidence.
Appellant submitted an undated statement indicating that on July 20, 2008 he and a
coworker entered a shed after smelling smoke. He reported seeing smoke inside of a bucket,
which he removed and felt dizzy afterward. In a July 20, 2008 statement, appellant’s coworker
reiterated that she and appellant found a barrel with smoke. She noted that appellant felt dizzy
after carrying the barrel outside.
In a July 20, 2008 hospital discharge report, a registered nurse determined that appellant
sustained an inhalation injury. She noted that this type of injury was most commonly seen with
smoke or chemicals at work. A September 26, 2008 report from a physician’s assistant noted
that in the past appellant had intermittent episodes of asthma that were triggered by upper
respiratory infection. The physician’s assistant advised that appellant was last seen for asthma
by his primary care physician in 2004 and had not had any flare-ups since then.
In an October 30, 2008 decision, the Office denied appellant’s claim. It found that the
July 20, 2008 incident occurred as alleged; however, the medical evidence did not provide a firm
diagnosis that could be connected to this event.
On November 25, 2008 appellant requested reconsideration, noting that he was
submitting hospital discharge papers with an attending physician’s signature to establish that he
was treated for inhaling toxic fumes. He attached the July 20, 2008 hospital discharge report,
already of record, that also contained Dr. Yee’s signature dated November 21, 2008.
In a January 30, 2009 decision, the Office denied appellant’s request for reconsideration
without a merit review. It found that the evidence submitted was duplicative and that appellant
did not otherwise meet the requirements for reconsideration.
2

LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his claim, including the fact that the individual is
an “employee of the United States” within the meaning of the Act; that the claim was filed
within the applicable time limitation; that an injury was sustained while in the performance of
duty as alleged and that any disability and/or specific condition for which compensation is
claimed are causally related to the employment injury. These are the essential elements of each
and every compensation claim regardless of whether the claim is predicated on a traumatic injury
or an occupational disease.2
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a “fact of injury” has been established.
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. Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.3
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. 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 the specific employment factors identified by the employee.4
ANALYSIS -- ISSUE 1
The record supports that on July 20, 2008 appellant was exposed to smoke and fumes
while in the performance of duty. However, the medical evidence does not establish that the
accepted exposure caused or aggravated appellant’s claimed condition.
In an August 1, 2008 report, Dr. Yee noted that appellant was exposed to a chemical fire
and complained of smoke inhalation and dizziness. He diagnosed dizziness and to rule out
smoke inhalation. To the extent that he described dizziness as a symptom on examination,

1

5 U.S.C. §§ 8101-8193.

2

S.P., 59 ECAB ___ (Docket No. 07-1584, issued November 15, 2007); Joe D. Cameron, 41 ECAB 153 (1989).

3

Id.

4

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).

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Dr. Yee did not provide a firm medical diagnosis.5 He did not specifically address whether any
diagnosed medical condition was caused or aggravated by the accepted workplace exposure.6
Dr. Yee did not provide a medical opinion which explained the reasons why appellant’s fume
exposure on July 20, 2008 caused or contributed to a diagnosed condition. Consequently, his
report is insufficient to establish appellant’s claim.
In a July 20, 2008 chest x-ray report, Dr. Stiles noted a history of smoke inhalation. She
noted normal diagnostic findings with no acute cardiopulmonary findings. As noted, appellant’s
burden of proof includes submitting sufficient medical evidence to establish that the accepted
employment incident caused a personal injury. Dr. Stiles did not address whether appellant
sustained an injury caused by his July 20, 2008 fume exposure at work. Her report is insufficient
to establish his claim.7 For these reasons, appellant did not submit sufficient medical evidence to
establish that he sustained a traumatic injury on July 20, 2008 in the performance of duty.
The Board notes, however, that the issue of reimbursement of appellant’s medical
expenses is not in posture for decision.
This case is similar to Val D. Wynn.8 The employee experienced weakness and chest
pain as a result of his employment and was transported from the employing establishment health
unit to a local community hospital. The Board affirmed the denial of the employee’s claim for
compensation as no firm medical diagnosis had been established. The Board remanded the case
to the Office for development on whether he was entitled to reimbursement of medical expenses.
The Board stated:
“Ordinarily, when an employee sustains a job-related injury which may require
medical treatment, the designated agency official shall promptly authorize such
treatment by giving the employee a properly executed CA-16 within four hours.
However, ‘cases of a doubtful nature, so far as compensability is concerned, shall
be referred ... using a CA-16 for medical services.... In cases of an emergency or
cases involving unusual circumstances the Office may, in the exercise of its

5

See Deborah L. Beatty, 54 ECAB 340 (2003) (where the Board found that a treatment note without a firm
diagnosis was of insufficient probative value); see also Larry M. Leudtke, Docket 03-1564 (issued September 2,
2003) (where the Board found that the diagnoses of dizziness, headache, light-headedness and anxiety described
symptoms and did not constitute a firm diagnosis of a medical condition).
6

See S.E., 60 ECAB ___ (Docket No. 08-2214, issued May 6, 2009) (medical evidence that does not offer any
opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
7

The record also contains reports from a registered nurse, physician’s assistant and emergency medical
technicians. However, these reports are of no probative value as none of these care providers is a physician as
defined under the Act and, therefore, they are not competent to provide a medical opinion. See David P. Sawchuk,
57 ECAB 316 (2006) (lay individuals such as physicians’ assistants, nurses and physical therapists are not
competent to render a medical opinion under the Act); Charley V.B. Harley, 2 ECAB 208 (1949) (the Board held
that medical opinion, in general, can only be given by a qualified physician). See also 5 U.S.C. § 8101(2).
8

40 ECAB 666 (1989).

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discretion, authorize treatment otherwise … than by a Form CA-16, or it may
approve payment for medical expenses incurred other than by a Form CA-16.’
“In this case, the medical personnel at the employing establishment’s health unit
authorized appellant’s transport by government personnel and vehicle to
Muhlenberg Community Hospital for examination by a physician within four
hours of the employment incident. The Office has failed to determine whether,
under these facts, such emergency or unusual circumstances were present in a
case of a ‘doubtful nature.’”9
Although the Office adjudicated and denied appellant’s claim of injury, it did not
adjudicate the issue of whether appellant should be reimbursed for medical expenses incurred.
The case will be remanded for further development of this issue.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a), the
Office’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.10 Section 10.608(b) of Office
regulations provides that when an application for reconsideration does not meet at least one of
the three requirements enumerated under section 10.606(b)(2), the Office will deny the
application for reconsideration without reopening the case for a review on the merits.11
ANALYSIS -- ISSUE 2
Appellant’s reconsideration request consisted of a November 25, 2008 statement
indicating that he was submitting a hospital discharge report signed by a physician who noted he
was treated for inhaling toxic fumes. However, his assertions did not advance a relevant legal
argument not previously considered by the Office. Appellant also did not demonstrate that the
Office erroneously applied or interpreted a specific point of law.
The hospital discharge report of November 21, 2008 is new since the previous version of
the report was only signed by a nurse and not a physician, however, is not relevant because it
does not provide support that appellant’s fume exposure at work on July 20, 2008 caused or
aggravated a diagnosed medical condition. Instead, it provides general information and
discharge instructions for a person who has had an inhalation injury. This report is insufficient
to require reopening of the claim for a merit review.

9

This policy is found in the Office’s Federal Procedure Manual, Part 3 -- Medical, Authorizing Examination and
Treatment, Chapter 3.300.3(a)(3) (October 1990).
10

D.K., 59 ECAB ___ (Docket No. 07-1441, issued October 22, 2007).

11

K.H., 59 ECAB ___ (Docket No. 07-2265, issued April 28, 2008).

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Because appellant’s request for reconsideration does not meet at least one of the criteria
required to reopen a case, the Board finds that the Office properly denied appellant’s request for
reconsideration without a merit review.
On appeal, appellant notes that he has submitted a new report from Dr. Yee. However,
the Board may not consider this evidence for the first time on appeal. It may only review
evidence that was of record at the time the Office issued its final decision.12
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a traumatic injury on July 20, 2008 in the performance of duty. The Office properly
denied appellant’s request for reconsideration without a merit review. The case will be returned
for consideration of whether appellant’s medical expenses should be reimbursed.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated January 30, 2009 and October 30, 2008 are affirmed in finding that appellant did
not meet his burden of proof and set aside as to the issue of reimbursement. The case is
remanded for further action in conformance of this decision.
Issued: April 21, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

12

20 C.F.R. § 501.2(c).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.S., Appellant
and
DEPARTMENT OF HOUSING & URBAN
DEVELOPMENT, Alexandria, VA, Employer
__________________________________________

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

Docket No. 09-468
Issued: August 21, 2009

Case Submitted on the Record

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

JURISDICTION
On December 8, 2008 appellant filed a timely appeal of the decision of the Office of
Workers’ Compensation Programs dated December 1, 2008 denying her claim for a traumatic
injury. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether appellant established that she sustained an injury in the performance
of duty on September 26, 2008. On appeal, she asks that her x-ray bills be paid.
FACTUAL HISTORY
On October 3, 2008 appellant, then a 58-year-old support services specialist, filed a
traumatic injury claim (Form CA-1) alleging that on September 26, 2008, she tripped and fell
into an elevator that was not even with the building floor thereby injuring her left elbow. On the
reverse of the claim form, appellant’s supervisor indicated that appellant was seen in the
emergency room that day at North Shore Medical Center, Union Hospital by Dr. Andrew J.

Barton, a Board-certified emergency medicine specialist. The supervisor also completed a Form
CA-17, duty status report, delineating appellant’s work requirements.
By letter dated October 21, 2008, the Office advised appellant to submit medical
evidence in support of her claim.
In response, appellant submitted emergency room records for the September 26, 2008
admission. Dr. Barton reported a history of a slip and fall earlier that day where appellant landed
on her left elbow and that since that time she has had pain in her left elbow. He noted the results
of physical examination and the results of the x-rays taken of the left elbow which showed “no
definitive fracture.” Dr. Barton also noted, “There is an anterior fat pad sign, fracture. However,
this would not be clinically significant.” He placed appellant’s arm in a sling. The emergency
records also include a report of x-rays taken on the same date by Dr. Alvin Yamamoto, a
radiologist, at Dr. Barton’s request, evincing “displacement of the anterior fat pad without
evidence of fracture deformity. An occult fracture or soft tissue injury is suspected.”
By decision dated December 1, 2008, the Office found that the incident occurred as
alleged. However, appellant’s claim was denied as the medical evidence did not provide a
diagnosis other than “left elbow injury.” The Office found that in the absence of medical
opinion evidence containing a diagnosis in connection with the workplace exposure, appellant
failed to establish that she sustained an injury on September 26, 2008 as alleged.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including the fact that an
individual is an employee of the United States within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained
in the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury. 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.2
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place and in the manner alleged.3 Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.4

1

5 U.S.C. § 8122(a).

2

Id.

3

John J. Carlone, 41 ECAB 345 (1989).

4

Shirley A. Temple, 48 ECAB 404 (1997).

2

Causal relationship is a medical issue5 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion of the physician must be based on a complete
factual and medical background of the claimant,6 must be one of reasonable medical certainty,7
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the established incident or factor of employment.8
ANALYSIS
Appellant filed a claim alleging that she was injured on September 26, 2008 when she
tripped on an elevator. The Office accepted that the September 26, 2008 incident occurred at the
time, place and in the manner alleged. The Board must therefore consider on appeal whether
appellant sustained an injury causally related to the September 26, 2008 employment incident.
In support of her claim, appellant submitted emergency room records from her
emergency visit of September 26, 2008 by Dr. Barton. These records do not explain how the
employment-related incident caused any diagnosis and any resultant disability or need for
treatment. There is no medical evidence confirming its origin and its relationship to the accepted
employment incident.
As the Board noted earlier, appellant must submit a narrative medical report from a
physician with a complete factual and medical history which explains how the September 26,
2008 work incident caused a diagnosed medical condition. The physician’s medical rationale
explaining causal relationship is critical to appellant’s claim. As appellant has not provided a
medical opinion finding a specific diagnosis and explaining how this condition is related to the
September 26, 2008 employment incident, appellant has not met her burden of proof in
establishing the claim.
Appellant requests payment or reimbursement of her x-ray bills. In order to be entitled to
reimbursement of medical expenses it must be shown that the expenditures were incurred for
treatment of the effects of an employment-related injury or condition.9 Proof of causal
relationship in a case such as this must include supporting rationalized medical evidence.10 As
found above, there is no rationalized medical evidence establishing that the incident caused an
injury. The Board notes that the employing establishment may authorize medical treatment in
5

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

6

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

7

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

8

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

9

Bertha L. Arnold, 38 ECAB 282, 284 (1986).

10

Vicky C. Randall, 51 ECAB 357 (2000); Zane H. Cassell, 32 ECAB 1537, 1540-41 (1981); John E. Benton,
15 ECAB 48, 49 (1963).

3

emergency situations with the use of a Form CA-16 which would form a contractual obligation
on the part of the Office to pay for appellant’s medical expenses for the period specified on the
form.11 The Board further notes, however, that the employing establishment did not issue a
Form CA-16 in this case but instead issued a Form CA-17 which, unless intended by the
employing establishment to authorize medical treatment in emergency situations, does not
otherwise form a contractual obligation.12 The Board finds that there is no evidence currently of
record which establishes that the Form CA-17 was to serve as authorization for medical
treatment. It was devoid of both the name of a medical institution and physician and only
contained appellant’s work requirements and contained no reference to the authorization of
medical treatment.13
CONCLUSION
The Board finds that appellant has not established that she sustained an injury in the
performance of duty on September 26, 2008, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 1, 2008 is affirmed.
Issued: August 21, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

11

See 20 C.F.R. § 10.300.

12

Compare George Witte, 38 ECAB 585, 588 (1987) where the Board remanded the case for a determination as
to whether the employing establishment intended the CA-17 to serve as an authorization for medical treatment.
13

The CA-17 provides in pertinent part: “This form is provided for the purpose of obtaining a duty status report
for the employee named below. This request does not constitute authorization for payment of medical expenses by
the [Office]....”

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
TENNESSEE VALLEY HEALTH CARE
SYSTEM, Nashville, TN, Employer
__________________________________________

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)
)
)
)

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

Docket No. 07-2082
Issued: February 12, 2008

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 August 8, 2007 appellant filed a timely appeal of the January 29 and June 28, 2007
merit decisions of the Office of Workers’ Compensation Programs, finding that she did not
sustain an injury in the performance of duty on December 11, 2006. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction of the merits of this case.
ISSUE
The issue is whether appellant has established that she sustained a back injury in the
performance of duty on December 11, 2006.
FACTUAL HISTORY
On December 12, 2006 appellant, then a 37-year-old practical nurse, filed a traumatic
injury claim. She alleged that on December 11, 2006 she felt a pull and experienced pain in her
lower back while transferring a patient from a recliner to a merry-walker. Appellant reported the
injury to the employing establishment on December 12, 2006. An employing establishment

supervisor controverted the claim contending that there were different stories about what
happened. The supervisor stated that a charge nurse asked appellant for assistance and that she
did not put her hands on the patient. The supervisor further stated that appellant just stood there.
By letter dated December 22, 2006, the Office advised appellant that the evidence
submitted was insufficient to establish her claim. It requested that she submit a medical report
from an attending physician which included dates of examination and treatment, a history of
injury, a detailed description of findings, x-ray and laboratory test results, a diagnosis and
clinical course of treatment followed and an opinion supported by medical explanation of how
the reported work incident caused or aggravated the claimed injury. The Office advised
appellant that the medical explanation was crucial to her claim.
The Office received a December 27, 2006 medical report of Dr. T. Allen Polk, a Boardcertified family practitioner, who stated that on December 11, 2006 appellant sustained thoracic
and lumbar strains.
Appellant submitted a December 12, 2006 treatment note of Linda Langhern, an
employing establishment medical unit practical nurse. Ms. Langhern provided a history that on
December 11, 2006 appellant sustained a thoracic spine injury while assisting in the transfer of a
patient. In reports dated December 13 and 19, 2006, Ms. Langhern stated that appellant could
perform limited-duty work with restrictions related to lifting, carrying, pushing and pulling.
Records from the employing establishment’s medical unit, which contained illegible
signatures, include a December 11, 2006 treatment note providing a history that appellant
sustained a low back injury while transferring a patient from a wheelchair to a recliner to a
merry-walker. An undated report stated that appellant could perform limited-duty work with
restrictions. She could sit, stand, climb stairs and walk. Appellant could also perform simple
grasping and fine manipulation and reach above the shoulder. She was restricted from lifting,
carrying, stooping, twisting, pulling and pushing.
The December 12 and 19, 2006 and undated form reports and treatment notes of Dr. T.
Michael Helton, a Board-certified family practitioner, provided a history that on December 11,
2006 appellant hurt her lower back while lifting a patient into a merry-walker. He opined that
she sustained lumbar and thoracic strains. In the form reports, Dr. Helton indicated with an
affirmative mark that the diagnosed conditions were work related. He found that appellant could
perform limited-duty work with restrictions. In a January 3, 2007 treatment note, Dr. Helton
indicated that appellant returned for examination regarding a back injury she sustained at the
employing establishment on December 11, 2006. He opined that her lumbar and thoracic strains
had resolved. Dr. Helton concluded that appellant could return to full-duty work.1
In a January 3, 2007 form report, Dr. Helton reiterated his prior history of injury and
opinion that appellant’s lumbar and thoracic strains were work related by an affirmative mark.
In a report of the same date, Ms. Langhern released appellant to full-duty work.

1

On January 4, 2007 appellant accepted the employing establishment’s December 22, 2006 offer of limited-duty
work.

2

By letters dated January 11 and 18, 2007, the employing establishment contended that
appellant failed to submit rationalized medical evidence establishing that she sustained an injury
in the performance of duty. It further contended that the supervisor’s statement indicated that
different stories were received from the charge nurse on duty and appellant regarding what
actually took place at the time of the December 11, 2006 incident which established that the
alleged injury was not related to her employment factors or conditions.
In a January 17, 2007 letter, Davona G. Skaar, a charge nurse, described the
December 11, 2006 incident. She stated that she was not sure about the date of the alleged
incident. Ms. Skaar asked appellant to help her with a resident who was sitting in a geri-chair
and trying to stand up. She told appellant that they needed to get a merry-walker to help the
resident walk around without the risk of falling and injuring himself. Ms. Skaar held onto the
resident’s right hand while he stood and held onto a table in the center of the room. She told him
to keep standing while she moved the geri-chair out of the way and grabbed the merry-walker
which she placed directly under his buttocks. The resident sat down in the merry-walker and
Ms. Skaar secured the safety bar and center clip in place. She stated that it was not necessary to
try to lift the resident because he was cooperative with our requests. Ms. Skaar stated that she
lifted and pulled more than appellant. She related that she did not see appellant try to lift the
resident which was unnecessary since he was cooperative. Ms. Skaar noted that appellant had
her hand on his left arm and asked him to keep standing. She concluded that she did not know
that appellant was hurt until a nurse on duty called her and asked what happened.
In a January 10, 2007 report, Dr. Polk reiterated the diagnoses of thoracic and lumbar
strains. Reports dated January 15 and 22, 2007 from Karen Frost, appellant’s physical therapists,
addressed appellant’s lumbar and thoracic conditions. A report signed by Ms. Frost on
January 11, 2007 and by Dr. Helton on January 12, 2007 provided a history of injury that on
December 11, 2006 appellant sustained thoracic and lumbar spines after transferring a patient at
work.
By decision dated January 29, 2007, the Office found that appellant did not sustain an
injury in the performance of duty. The factual evidence of record failed to establish that the
December 11, 2006 incident occurred at the time, place and in the manner alleged.
The Office received Ms. Frost’s January 25, February 13 and 19, 2007 reports, which
addressed appellant’s progress.
In an April 4, 2007 letter, appellant requested reconsideration of the Office’s January 29,
2007 decision. She stated that Ms. Skaar was unpleasant towards her since she asked Ms. Skaar
about being assigned to administer medications. Appellant further described the December 11,
2006 incident. On that date, Ms. Skaar asked appellant to assist her with a patient who was
attempting to get out of a recliner. She wanted to place him in a merry-walker. Appellant stated
that she and Ms. Skaar lifted the patient into the merry-walker and Ms. Skaar placed the seat belt
around him. After the patient was secured, appellant experienced pain and difficulty with
walking while going to a shower room to assist showering patients. She tried to remove a
patient’s shoes in the shower room but could hardly bend down. Appellant immediately advised
Ms. Skaar that her back was hurting due to lifting the patient she had transferred to a merrywalker and requested that she complete an incident report. Ms. Skaar responded that appellant

3

should complete the report. Appellant then informed Brenda Anderson, a nurse on duty, about
her injury. Ms. Anderson advised her to go to triage for an evaluation. Appellant stated that a
coworker overheard Ms. Skaar tell Ms. Anderson that she did know how appellant’s injury
occurred because she just stood there and watched. She contended that Ms. Skaar later accused
her of making untrue statements about her. She told appellant about the unfavorable comments
that were made about her job performance on the weekends. Appellant further contended that
Ms. Skaar changed her version of the December 11, 2006 incident by denying any knowledge of
her back injury prior to being advised about it by Ms. Anderson.
Appellant submitted duplicate copies of the employing establishment’s records,
Dr. Helton’s December 12 and 19, 2006 treatment notes and December 12 and 19, 2006 and
January 3, 2007 undated reports and Ms. Langhern’s December 13 and 19, 2006 reports. In a
January 30, 2007 treatment note, Ms. Langhern listed appellant’s complaints of left earache and
stress incontinence. She diagnosed left otitis media and stress incontinence.
By letter dated May 24, 2007, the employing establishment reiterated its prior contention
that the evidence submitted by appellant was insufficient to establish that she sustained an injury
in the performance of duty on December 11, 2006.
In a June 28, 2007 decision, the Office denied modification of the January 29, 2007
decision. The evidence submitted by appellant was insufficient to establish that she sustained an
injury in the performance of duty on December 11, 2006.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an employee of the United States within the meaning of the Act; that the claim was
filed within applicable time limitation; that an injury was sustained while in the performance of
duty as alleged; and that any disability and/or specific condition for which compensation is
claimed are causally related to the employment injury.3 These are the essential elements of each
and every compensation claim regardless of whether the claim is predicated on a traumatic injury
of an occupational disease.4
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components, which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident or exposure, which is alleged to have occurred.5
2

5 U.S.C. §§ 8101-8193.

3

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

4

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999); Elaine Pendleton, supra
note 3.
5

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (June 1995).

4

In order to meet her burden of proof to establish the fact that she sustained an injury in the
performance of duty, an employee must submit sufficient evidence to establish that she actually
experienced the employment injury or exposure at the time, place and in the manner alleged.6
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.7 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing a causal relationship between the claimed condition and the
identified factors.8 The belief of the claimant that a condition was caused or aggravated by the
employment is insufficient to establish a causal relationship.9
ANALYSIS
Appellant alleged that she sustained a back injury in the performance of duty on
December 11, 2006. The Board finds that she established that the employment incident occurred
on December 11, 2006, as alleged.
The Board finds that there are no such inconsistencies in the evidence as to cast serious
doubt upon the validity of appellant’s claim that she experienced an employment incident on
December 11, 2006. Appellant consistently claimed that she sustained a back injury on
December 11, 2006 when transferring a patient from a recliner to a merry-walker. She received
medical treatment contemporaneous to the December 11, 2006 incident and related a history of
injury. On December 11 and 12, 2006 the employing establishment’s medical unit and
Ms. Langhern, an employing establishment practical nurse, recorded that appellant sustained low
back and thoracic injuries while transferring a patient from a wheelchair to a recliner to a merrywalker. In addition, Dr. Helton’s medical reports stated that appellant hurt her lower back while
lifting a patient into a merry-walker on December 11, 2006. Appellant also provided notice to
the employing establishment on December 12, 2006, which was contemporaneous to the injury.
Ms. Skaar acknowledges that she asked appellant to help her transfer a resident from a
geri-chair to a merry-walker. However, she contends that neither she nor appellant had to lift the
resident because he was cooperative with their requests. Ms. Skaar stated that she placed and
secured him in the merry-walker. She also stated that she lifted and pulled more than appellant.
Ms. Skaar related that she did not see appellant try to lift the resident. She stated that appellant
had her hand on his left arm and asked him to keep standing. Ms. Skaar did not know that
appellant had sustained an injury until the nurse on duty called her and asked what happened.
The Board finds that appellant’s statements are consistent with the contemporaneous
medical records. The evidence reflects a consistent statement of injury, i.e., an employment
6

Linda S. Jackson, 49 ECAB 486 (1998).

7

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined).
8

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

9

Charles E. Evans, 48 ECAB 692 (1997).

5

incident of transferring a patient from a recliner to a merry-walker on December 11, 2006. The
statement of Ms. Skaar is not sufficient to rule out appellant’s description of assisting in the
transfer of the patient on that day.
The Board, however, finds that appellant did not submit sufficient medical evidence to
establish that she sustained a back injury due to the accepted December 11, 2006 employment
incident. On December 27, 2006 and January 10, 2007 Dr. Polk stated that appellant sustained
thoracic and lumbar strains on December 11, 2006. However, he failed to address how the
thoracic and lumbar strains were caused or contributed to by the accepted employment incident.
Medical reports not containing rationale on causal relation are entitled to little probative value
and are generally insufficient to meet an employee’s burden of proof.10
As noted, the employing establishment’s medical records of December 11, 2006 provided
a history of the December 11, 2006 employment incident and stated that appellant sustained a
back injury. Similarly, Dr. Helton opined in a January 12, 2007 report that appellant sustained
thoracic and lumbar spine injuries after transferring a patient at work. His January 3, 2007
treatment note found that the lumbar and thoracic strains appellant sustained on December 11,
2006 had resolved and that she could return to full-duty work. The medical unit treatment note
failed to provide a diagnosis for appellant’s back condition. None of these reports provide
medical rationale explaining how and why the December 11, 2006 employment incident caused
or contributed to a back injury.11 The Board finds that the employing establishment’s medical
unit treatment note and Dr. Helton’s report and treatment note are insufficient to establish
appellant’s claim.
Dr. Helton’s reports provided a history of the December 11, 2006 employment incident.
He indicated with an affirmative mark that appellant’s lumbar and thoracic strains were caused
by the December 11, 2006 employment incident. The Board finds that Dr. Helton’s reports are
insufficient. A report which only addresses causal relationship with a checkmark without more
by way of medical rationale explaining how the incident caused the injury, is insufficient to
establish causal relationship and is of diminished probative value.12
The undated report from the employing establishment’s medical unit stated that appellant
could perform limited-duty work with restrictions. Moreover, as the signatures are illegible, it is
unclear whether they were signed by a physician. Therefore, they do not constitute competent
medical evidence. The Board finds that the medical unit report is insufficient to establish
appellant’s claim.

10

Elizabeth H, Kramm (Leonard O. Kramm), 57 ECAB ___ (Docket No. 05-715, issued October 6, 2005).

11

Id.

12

See Frederick H. Coward, Jr., 41 ECAB 843 (1990); Lillian M. Jones, 34 ECAB 379 (1982).

6

The treatment note and reports of Ms. Langhern, a nurse practitioner, and the reports of
Ms. Frost, a physical therapist, are of no probative medical value because a nurse practitioner13
and a physical therapist14 are not considered a physician under the Act.
Appellant did not submit sufficient medical evidence to establish a causal relationship
between her back condition and the accepted December 11, 2006 employment incident. The
Board finds that there is insufficient rationalized medical evidence of record to establish that
appellant sustained an injury in the performance of duty on December 11, 2006. Therefore, she
has failed to meet her burden of proof.
CONCLUSION
The Board finds that appellant has failed to establish that she sustained a back injury in
the performance of duty on December 11, 2006.
ORDER
IT IS HEREBY ORDERED THAT the June 28 and January 29, 2007 decisions of the
Office of Workers’ Compensation Programs are affirmed as modified.
Issued: February 12, 2008
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
13

5 U.S.C. § 8101(2) which defines physician as including surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined by State law.
See also Joseph N. Fassi, 42 ECAB 231 (1991) (medical evidence signed only by a registered nurse or nurse
practitioner is generally not probative evidence).
14

Vickey C. Randall, 51 ECAB 357, 360 (2000) (a physical therapist is not a physician under the Act).

7


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE INTERIOR, BUREAU )
OF LAND MANAGEMENT, COOS BAY, North )
Bend, OR, Employer
)
___________________________________________ )
K.D., Appellant

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

Docket No. 08-1898
Issued: May 12, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 21, 2008 appellant filed a timely appeal of an April 9, 2008 decision of the
Office of Workers’ Compensation Programs which found an overpayment of compensation and a
May 13, 2008 decision which denied his request for an oral hearing. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether the Office properly determined that appellant received an
overpayment of $4,835.57 from November 14 to December 22, 2007; (2) whether the Office
properly denied waiver of the overpayment; and (3) whether the Office properly denied
appellant’s request for an oral hearing.
FACTUAL HISTORY
On February 10, 2005 appellant, then a 51-year-old forestry technician, sustained injury
while measuring tree heights when the soil collapsed under his left foot causing him to fall and

injure his low back. The Office accepted appellant’s claim for a lumbar strain. Appellant
stopped work on February 10, 2005 and returned to work part time, four hours per day on
February 14, 2005. He was placed on the periodic rolls for temporary partial disability on
December 24, 2006.
On December 20, 2007 the employing establishment advised the Office that appellant
returned to work full time on November 14, 2007. It noted that appellant worked in the field for
the first two days and then in the office until November 29, 2007. The employing establishment
advised that it did not have a light-duty position to accommodate appellant and his position was
subsequently terminated.
In a worksheet dated January 2, 2008, the Office noted that appellant was released and
returned to work full-time regular duty on November 14, 2007 but remained on the periodic rolls
cycle until December 22, 2007. It noted that appellant was entitled to compensation through
November 13, 2007. Appellant’s weekly pay rate was $934.69 and his compensation rate was
three-quarters. The Office calculated that, from October 28 to December 22, 2007, a period of
56 days, he was paid $6,640.00 in compensation. For the period October 28 to November 13,
2007, a period of 17 days, appellant was entitled to $1,804.43, which created an overpayment
of $4,835.57.
On January 7, 2008 the Office issued a preliminary determination that appellant received
a $4,835.57 overpayment of compensation. It found that, for the period November 14 to
December 22, 2007, appellant was overpaid compensation as he returned to work full time on
November 14, 2007 but continued to receive total temporary disability compensation. The
Office determined that appellant was without fault in the creation of the overpayment. In an
attached memorandum it noted that appellant was never issued a CA-1049 when he was placed
on the periodic rolls effective December 24, 2006, which instructs a claimant to contact the
Office when he returns to work to avoid an overpayment. The Office allotted appellant 30 days
to request a prerecoupment hearing and to submit a completed overpayment recovery
questionnaire (Form OWCP-20), together with supporting financial information to support any
request for waiver.1
In a January 31, 2008 letter, appellant noted that his wife was unwilling to provide her
financial information for the overpayment questionnaire. He noted that he did not cash the
compensation check for $3,034.30 issued December 22, 2007 and requested the Office confirm
receipt before determining the overpayment amount. Appellant advised that he had no income or
assets other than benefits and retirement funds, deferred compensation and his personal home
and joint personal possessions. In a letter dated February 5, 2008, he indicated that he was in
receipt of and never cashed a compensation check in the amount of $3,034.30 issued
December 22, 2007. Appellant indicated that he worked only 10 days because his employer
could not accommodate his work restrictions and currently had no income. He noted returning
the check to the Office.

1

On January 31, 2008 the Office issued a decision denying appellant’s claim for recurrence of disability. On
February 10, 2008 appellant requested an oral hearing for this decision. The Board notes that this decision is not
before the Board in the present appeal. See 20 C.F.R. § 501.2(c).

2

In a letter dated February 21, 2008, the Office requested that appellant return the
December 22, 2007 compensation check. On March 7, 2008 the claims examiner acknowledged
receipt of the treasury check for the period November 25 to December 22, 2007 in the amount of
$3,034.30. The Office requested that appellant complete the overpayment questionnaire attached
to the correspondence. Without this document, there was no basis to consider undue hardship
and assured appellant that any financial information provided would be private. The Office
advised that the overpayment of $4,835.57 would be reduced by the returned check of $3,034.30
and the remaining balance would be $1,801.27.
In an electronic mail dated March 13, 2008, the employing establishment noted that the
compensation check issued to appellant in the amount of $3,034.30 on December 22, 2007 was
cancelled by the Department of Treasury.
By decision dated April 9, 2008, the Office determined that appellant received a
$4,835.57 overpayment of compensation. It advised that for the period November 14 to
December 22, 2007 appellant was overpaid compensation in the amount of $4,835.57 because he
returned to work full time on November 14, 2007 during a period in which he was in receipt of
total temporary disability compensation. The Office determined that appellant was without fault
in the creation of the overpayment but denied waiver of recovery of the overpayment on the basis
that he failed to completed the overpayment questionnaire and provide any additional documents
or financial information in support of waiver. As appellant returned a compensation check in the
amount of $3,034.30, this reduced the outstanding balance to $1,801.27. The Office requested
that appellant send a $1,801.27 check or contact the Office regarding repayment.
On March 15, 2008 appellant submitted the overpayment questionnaire. He also sent a
letter dated March 17, 2008 noting that he had no income. On May 5, 2008 appellant requested a
prerecoupment hearing and asserted that the overpayment occurred through no fault of his own.
In a decision dated May 13, 2008, the Office denied appellant’s prerecoupment hearing
request, as it was not postmarked until May 5, 2008, more than 30 days after the January 7, 2008
preliminary repayment notice and following the April 9, 2008 final overpayment decision. It
advised appellant that a final overpayment decision was not subject to the hearing provision of
5 U.S.C. § 8124(b). The Office noted that appellant could appeal to the Board if he disagreed
with the Office’s decision.2
LEGAL PRECEDENT -- ISSUE 1
The Federal Employees’ Compensation Act provides that the United States shall pay
compensation for the disability or death of an employee resulting from personal injury sustained
while in the performance of duty.3 When an overpayment has been made to an individual

2

The Office noted it was still processing his hearing request of the January 31, 2008 recurrence denial. See supra
note 1.
3

5 U.S.C. § 8102(a).

3

because of an error of fact or law, adjustments shall be made under regulations prescribed by the
Secretary of Labor by decreasing later payments to which the individual is entitled.4
A claimant is not entitled to receive temporary total disability and actual earnings for the
same period.5 Office procedures provide that an overpayment in compensation is created when a
claimant returns to work but continues to receive wage-loss compensation.6
ANALYSIS -- ISSUE 1
The record establishes that appellant’s claim was accepted for a lumbar sprain and he was
paid compensation benefits under Act. Appellant was released and returned to work full-time
regular duty on November 14, 2007 at full salary but continued to receive wage-loss
compensation for total disability through December 22, 2007. Thus, an overpayment was
created as he received wage-loss compensation for the same period in which he received
earnings from his employment. Appellant did not dispute that an overpayment occurred and
returned the December 22, 2007 compensation check that he had not cashed. The Office
calculated that, from October 28 to December 22, 2007, appellant received $6,640.00 in total
disability compensation but should have received only $1,804.43 for partial disability. It
subtracted $1,804.43 from $6,640.00 and found that the difference between the amount of
compensation appellant received and the amount he should have received was $4,835.57. The
Board will affirm the overpayment in this amount. The Office explained how the overpayment
occurred and provided this to appellant with the preliminary notice of overpayment. As
appellant returned the compensation check for the period November 25 to December 22, 2007 in
the amount of $3,034.30, this reduced the outstanding balance to $1,801.27. The Board finds
that the Office properly determined that appellant received an overpayment of compensation in
the amount of $4,835.57 for the period November 14 to December 22, 2007.
LEGAL PRECEDENT -- ISSUE 2
The waiver or refusal to waive an overpayment of compensation by the Office is a matter
that rests within the Office’s discretion pursuant to statutory guidelines.7 These statutory
guidelines are found in section 8129(b) of the Act, which states, “Adjustment or recovery [of an
overpayment] by the United States may not be made when [an] incorrect payment has been made
to an individual who is without fault and when adjustment or recovery would defeat the purpose
of [the Act] or would be against equity and good conscience.”8 Since the Office found that
appellant to be without fault in the creation of the overpayment, then, in accordance with section

4

Id. at § 8129(a).

5

Danny E. Haley, 56 ECAB 383 (2005); Donna M. Rowan, 54 ECAB 698 (2003).

6

Haley, id.; Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions,
Chapter 6.200.2(a) (May 2004).
7

See Robert Atchison, 41 ECAB 83, 87 (1989).

8

See 5 U.S.C. § 8129(b); Carroll R. Davis, 46 ECAB 361, 363 (1994).

4

8129(b), it may only recover the overpayment if it determined that recovery of the overpayment
would neither defeat the purpose of the Act nor be against equity and good conscience.
Section 10.436 of the implementing regulations9 provide that recovery of an overpayment
will defeat the purpose of the Act if such recovery would cause hardship to a currently or
formerly entitled beneficiary because: (a) the beneficiary from whom the Office seeks recovery
needs substantially all of his or her current income (including compensation benefits) to meet
current or ordinary and necessary living expenses; and (b) the beneficiary’s assets do not exceed
a specified amount as determined by the Office from data furnished by the Bureau of Labor
Statistics.10 An individual is deemed to need substantially all of his or her income to meet
current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00.11
Section 10.437 provides that recovery of an overpayment is considered to be against
equity and good conscience when an individual who received an overpayment would experience
severe financial hardship attempting to repay the debt; and when an individual, in reliance on
such payments or on notice that such payments would be made, gives up a valuable right or
changes his or her position for the worse.12
Section 10.438 of the regulations provide that: “[t]he individual who received the
overpayment is responsible for providing information about income, expenses and assets as
specified by [the Office]. This information is needed to determine whether or not recovery on an
overpayment would defeat the purpose of the Act or be against equity and good conscience.”
Failure to submit the requested information within 30 days of the request shall result in denial of
waiver.13
ANALYSIS -- ISSUE 2
On January 7, 2008 the Office notified appellant of the preliminary overpayment and
requested that she provide necessary financial information by completing an overpayment
recovery questionnaire, Form OWCP-20, together with supporting financial documentation, if he
sought waiver of the overpayment. Appellant did not respond with a completed OWCP-20 form
or submit financial information supporting his income and expenses. Moreover, he did not
request a prerecoupment hearing. On January 31, 2008 appellant advised that his wife refused to
submit any financial information and he alleged that he had no income or assets other than his
benefits, retirement funds, his home and joint personal possessions. As a result, the Office did
not have the necessary financial information to determine whether recovery of the overpayment
9

20 C.F.R. § 10.436.

10

An individual’s assets must exceed a resource base of $3,000.00 for an individual or $5,000.00 for an
individual with a spouse or one dependent plus $600.00 for each additional dependent. This base includes all of the
individual’s assets not exempt from recoupment. See Robert F. Kenney, 42 ECAB 297 (1991).
11

See Sherry A. Hunt, 49 ECAB 467, 473 (1998).

12

20 C.F.R. § 10.437.

13

Id. at § 10.438.

5

would defeat the purpose of the Act or if recovery would be against equity and good
conscience.14
As appellant failed to submit the requested financial information, under section 10.438,
the Office properly denied waiver of recovery of the overpayment. The individual who receives
an overpayment is responsible for providing information about income, expenses and assets.
Failure to submit such information within 30 days of the request shall result in a denial of
waiver.15 The Board finds that the Office properly denied waiver of recovery of the
overpayment of compensation in the amount of $1,801.27.
On appeal, appellant asserts that the recovery of the overpayment would be inequitable
and against good conscience because he has no assets. However, he failed to timely submit a
completed overpayment questionnaire. Therefore, there was no basis for finding that the
overpayment would constitute a financial hardship or that he relinquished a valuable right or
detrimentally relied on the payments in question.16
The Board further finds that it does not have jurisdiction regarding repayment of the
overpayment as the Office is not seeking recovery from continuing compensation benefits. The
Board’s jurisdiction to review recovery of an overpayment is limited to the situation where
recovery is made from continuing Act benefits.17
LEGAL PRECEDENT -- ISSUE 3
Section 10.440(b) of the Office’s regulations provide that the only review of a final
decision concerning an overpayment is to the Board. The provisions of 5 U.S.C. § 8124(b)
(concerning hearings) and 5 U.S.C. § 8128(a) (concerning reconsiderations) do not apply to such
a decision.18 The Board has found that the implementation of this regulations is a proper
exercise of the Director’s discretion and that a claimant has no further right to review by the
Office once a final decision on the issue of overpayment has been issued.19
ANALYSIS -- ISSUE 3
The Office issued a final overpayment decision in this case on April 9, 2008. Appellant
requested a prerecoupment hearing regarding his overpayment on May 5, 2008. In a decision
dated May 13, 2008, the Branch of Hearings and Review denied his request for an oral hearing
14

See id.

15

See Madelyn Y. Grant, 57 ECAB 533 (2006).

16

Following issuance of the April 9, 2008 decision, appellant submitted an overpayment recovery questionnaire
and other evidence. However, as the Office has not considered this evidence in reaching a decision, the Board may
not consider it for the first time on appeal. See 20 C.F.R. § 501.2(c).
17

Albert Pineiro, 51 ECAB 310 (2000); Lorenzo Rodriguez 51 ECAB 295 (2000).

18

20 C.F.R. § 10.440(b). See also Jan K. Fitzgerald, 51 ECAB 659 (2000).

19

Charles E. Nance, 54 ECAB 447 (2003); Philip G. Feland, 48 ECAB 485 (1997).

6

on the grounds that the only review of the April 9, 2008 overpayment decision was by the Board.
As noted, this decision is in accordance with the Office’s regulations and the findings of the
Board. As appellant was not entitled to an oral hearing following the final overpayment decision
of April 9, 2008, the Branch of Hearings and Review properly denied his request on
May 13, 2008.
CONCLUSION
The Board finds that the Office properly found that appellant received an overpayment of
compensation and that he was not entitled to waiver of the overpayment and properly denied his
request for an oral hearing.
ORDER
IT IS HEREBY ORDERED THAT the May 13 and April 9, 2008 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: May 12, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.E., Appellant
and
DEPARTMENT OF THE INTERIOR, BUREAU
OF INDIAN AFFAIRS, Sacramento, CA,
Employer
__________________________________________

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

Docket No. 15-0787
Issued: October 20, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 24, 2015 appellant filed a timely appeal from a November 12, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP) and a February 10, 2015
nonmerit decision. 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
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish an injury
causally related to factors of his federal employment; and (2) whether OWCP properly refused to
reopen appellant’s case for further reconsideration of the merits pursuant to 5 U.S.C. § 8128(a).
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the February 10, 2015 OWCP decision and on appeal, appellant
submitted new evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time
it issued its final decision. See 20 C.F.R. § 501.2(c)(1).

On appeal, appellant contends that he submitted sufficient evidence to establish his claim
and further submitted additional medical evidence.
FACTUAL HISTORY
On September 26, 2014 appellant, a 57-year-old highway engineer, filed an occupational
disease claim (Form CA-2), alleging that he sustained an injury to his back and shoulder area due
to factors of his federal employment, including electronic drafting. He became aware of his
condition on April 3, 2014 and first attributed it to his federal employment on May 5, 2014.
In a September 30, 2014 narrative statement, appellant indicated that computer-aided
design was not a part of his job duties as a construction engineer, yet electronic drafting was
requested of him for the past nine months and caused him a lot of pain during the month of
August 2014.
Appellant submitted two prescriptions dated September 19, 2014 from Dr. Andres Pena,
a Board-certified physiatrist, who diagnosed myofascial neck and shoulder pain, ordered
physical therapy, and recommended an ergonomic evaluation.
In an August 27, 2014 report, Dr. James Abshire, a Board-certified internist, noted that
appellant was evaluated on August 26, 2014. He advised that appellant was “to refrain from
assignments relating to drawing graphs on the Google Earth and Excel programs due to medical
problems.”
In an October 9, 2014 letter, OWCP notified appellant that the evidence submitted was
insufficient to support his claim and requested additional factual and medical evidence. It
allotted 30 days for appellant to respond to its inquiries and submit additional evidence.
Appellant resubmitted the August 27, 2014 report from Dr. Abshire and the
September 19, 2014 prescriptions from Dr. Pena.
By decision dated November 12, 2014, OWCP denied the claim on the basis that
appellant failed to establish fact of injury. It found that the evidence was insufficient to establish
the implicated employment factors, specifically the frequency and duration of the electronic
drafting he had indicated on his claim form.
On December 2, 2014 appellant requested reconsideration and submitted an x-ray of the
cervical spine dated August 26, 2014.
In reports dated November 7, 2014 through January 27, 2015, Dr. Franklin Chinn, Jr., an
occupational medicine specialist, diagnosed aggravation of preexisting cervical arthritis and
degenerative disc disease due to work activities, cervical radiculitis and chronic pain, and left
hand numbness. He noted that appellant’s left hand numbness appeared to be a result of his
cervical radiculitis, but noted that peripheral entrapment neuropathy could not be totally
excluded. Dr. Chinn opined that appellant was “not able to do computer graphic design without
repeatedly aggravating [his] condition.” He released appellant to modified duty and
recommended an evaluation of his workstation for ergonomic improvements.

2

By decision dated February 10, 2015, OWCP denied appellant’s request for
reconsideration of the merits finding that he did not submit pertinent new and relevant evidence
and did not show that OWCP erroneously applied or interpreted a point of law not previously
considered by OWCP. It found that the medical evidence he submitted was irrelevant and
immaterial as it failed to address the frequency and duration of the implicated employment
factors.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, and that an injury4 was sustained in the performance of duty. These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in a claim for an
occupational disease claim, an employee must submit the following: (1) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; (2) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical evidence. 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 the specific employment factors
identified by the employee.7
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish an injury in
the performance of duty.

3

Supra note 1.

4

OWCP regulations define an occupational disease or illness as a condition produced by the work environment
over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).
5

See O.W., Docket No. 09-2110 (issued April 22, 2010); Ellen L. Noble, 55 ECAB 530 (2004).

6

See D.R., Docket No. 09-1723 (issued May 20, 2010). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005);
Ruby I. Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
7

See O.W., supra note 5.

3

The evidence of record does not contain the duties appellant performed in the course of
his federal employment or explain how often and how long he performed the duties. Appellant
merely stated that he sustained medical conditions due to electronic drafting at work. He stated
that computer-aided design was not a part of his job duties, but there is no evidence to establish
that fact. OWCP informed appellant of the deficiencies in his claim, but he did not provide the
required documentation prior to OWCP’s issuance of its November 12, 2014 decision.
Accordingly, the Board finds that he failed to meet his burden of proof to establish fact of
injury.8
An award of compensation may not be based on surmise, conjecture, or speculation.
Neither the fact that appellant’s claimed conditions became apparent during a period of
employment, nor his belief that the conditions were caused by his employment, is sufficient to
establish a causal relationship.9 Since appellant failed to establish the first component of fact of
injury, it is not necessary to discuss whether he submitted medical evidence sufficient to
establish that a medical condition existed.10
On appeal, appellant contends that he submitted sufficient evidence to establish his claim.
For the reasons stated above, the Board finds appellant’s argument is not substantiated.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA does not entitle a claimant to a review of an OWCP decision as
a matter of right; it vests OWCP with discretionary authority to determine whether it will review
an award for or against compensation.11 OWCP, through regulations, has imposed limitations on
the exercise of its discretionary authority under section 8128(a).12
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,
OWCP regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.13 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant’s application for review must
8

See M.L., Docket No. 12-957 (issued December 7, 2012).

9

See Richard B. Cissel, 32 ECAB 1910, 1917 (1981); William Nimitz, Jr., 30 ECAB 567, 570 (1979).

10

See Bonnie A. Contreras, 57 ECAB 364, 368 n.10 (2006).

11

Supra note 1. Under section 8128 of FECA, the Secretary of Labor may review an award for or against
payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
12

See Annette Louise, 54 ECAB 783, 789-90 (2003).

13

20 C.F.R. § 10.606(b)(3). See A.L., Docket No. 08-1730 (issued March 16, 2009).

4

be received within one year of the date of that decision.14 When a claimant fails to meet one of
the above standards, OWCP will deny the application for reconsideration without reopening the
case for review on the merits.15
The Board has held that the submission of evidence or argument which repeats or
duplicates evidence or argument already in the case record16 and the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case.17
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly refused to reopen appellant’s case for further
reconsideration of the merits pursuant to 5 U.S.C. § 8128(a).
In support of his December 2, 2014 reconsideration request, appellant submitted an x-ray
of the cervical spine and medical reports from Dr. Chinn. The Board finds that submission of
this evidence did not require reopening appellant’s case for merit review as they did not address
the frequency and duration of the implicated employment factors, which was the issue before
OWCP. Therefore, they do not constitute relevant and pertinent new evidence and are not
sufficient to require OWCP to reopen the claim for consideration of the merits.
Appellant did not submit any evidence to show that OWCP erroneously applied or
interpreted a specific point of law or advanced a relevant legal argument not previously
considered by OWCP, nor did he submit any relevant and pertinent new evidence not previously
considered. The Board finds that he did not meet any of the necessary requirements and is not
entitled to further merit review.18
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an injury in
the performance of duty. The Board further finds that OWCP properly refused to reopen his case
for further reconsideration of the merits pursuant to 5 U.S.C. § 8128(a).

14

Id. at § 10.607(a).

15

Id. at § 10.608(b).

16

See A.L., supra note 13. See also Eugene F. Butler, 36 ECAB 393, 398 (1984).

17

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

18

See L.H., 59 ECAB 253 (2007).

5

ORDER
IT IS HEREBY ORDERED THAT the February 10, 2015 and November 12, 2014
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: October 20, 2015
Washington, DC

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

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

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

6