United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bedford Park, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-0629
Issued: February 26, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 27, 2017 appellant filed a timely appeal from a January 3, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
traumatic injury in the performance of duty on December 30, 2015.
FACTUAL HISTORY
On February 10, 2016 appellant, then a 39-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that, on December 30, 2015, she sustained a left knee strain when
she slipped when stepping down while delivering mail on her route. She first received medical
care on January 1, 2016, stopped work on January 2, 2016, and notified her supervisor on
1

5 U.S.C. § 8101 et seq.

February 10, 2016. On the reverse side of the claim form, appellant’s supervisor controverted
the claim, stating that the incident was not reported within 30 days of the injury.2
A January 1, 2016 emergency department report was submitted which documented
appellant’s treatment for left knee pain.
In a January 14, 2016 note, Dr. George Branovacki, a Board-certified orthopedic surgeon,
reported that appellant was treated that same date and could return to work without restrictions
on February 2, 2016.
By letter dated March 15, 2016, the employing establishment again controverted the
claim arguing that appellant had not established fact of injury because she had not notified her
immediate supervisor of the alleged injury until February 10, 2016, more than 30 days after the
December 30, 2015 incident.
By letter dated March 23, 2016, OWCP informed appellant that the evidence of record
was insufficient to establish that she provided timely notification of her work injury.
Furthermore, there was no evidence of a diagnosis of any injury, nor was there a physician’s
opinion as to the cause of her alleged injury. OWCP provided a development questionnaire for
appellant’s completion and requested that she submit a response in order to substantiate the
factual basis of her claim. Appellant was afforded 30 days to submit the requested evidence.
In a January 1, 2016 venous duplex scan of the left lower extremity, Dr. Michael Flisak,
Board-certified in internal medicine, reported no evidence of deep vein thrombosis (DVT) in the
left leg above the knee.
In a January 1, 2016 diagnostic report, Dr. Scott Grossberg, a Board-certified radiologist,
reported that an x-ray of the left knee revealed mild tricompartmental osteoarthritis, small knee
effusion, and no fracture or dislocation.
In a January 7, 2016 medical report, Dr. Branovacki reported that appellant was treated
for left knee pain. He stated that appellant worked for the employing establishment and about
eight days prior, did a lot of walking in the snow. Appellant began limping approximately two
days later, causing her to seek emergency medical treatment on January 1, 2016. She reported a
history of a fall roughly two years prior. It involved the left knee, which had healed successfully
without any symptoms until this recent injury. Dr. Branovacki provided findings on physical
examination, noted possible tendinitis synovitis or meniscus tear, and recommended a magnetic
resonance imaging (MRI) scan of the left knee.
A January 7, 2016 x-ray of the left knee revealed no evidence of fracture, bone lesions,
deformity, arthritic change, or soft tissue abnormalities.
In a January 7, 2016 diagnostic report, Dr. Matthew Eisenstein, a Board-certified
diagnostic radiologist, reported that an MRI scan of the left knee revealed findings suspicious for

2

The Board notes that appellant has three other traumatic injury claims and one occupational disease claim with
dates of injury ranging from November 25, 2002 to July 7, 2015. Those claims are not presently before the Board
and the case record contains no other information pertaining to those prior claims.

2

tear of the periphery of the medial meniscus adjacent to the free edge, mild degenerative changes
involving the posterior patella, small effusion, and Baker’s cyst.
In a January 7, 2016 medical report, Dr. Branovacki reported that appellant complained
of right knee pain and diagnosed right knee degenerative joint disease.
Physical therapy notes from Midwest Orthopedic Consultants dated January 29 and
February 11, 2016 were submitted documenting appellant’s treatment for left knee pain after
slipping and stepping on snow/ice while working.
By decision dated April 28, 2016, OWCP denied appellant’s claim, finding that the
evidence of record failed to establish a diagnosed condition causally related to the accepted
December 30, 2015 employment incident. It noted that the statement she provided regarding the
mechanism of injury, specifically slipping on a step, differed from that noted by Dr. Branovacki
who reported that she had injured herself while walking in the snow.
On October 12, 2016 appellant requested reconsideration of OWCP’s decision. In
support of her claim, appellant submitted medical reports dated June 16 and July 1, 2016 from
Dr. Eugene Lopez, a Board-certified orthopedic surgeon.
In the June 16, 2016 report, Dr. Lopez reported that appellant presented for treatment of
left knee pain which began suddenly on December 30, 2015. He noted that she had been
employed by the employing establishment for 18 years. On December 30, 2015 the weather was
rainy and snowy and while walking her mail route, appellant slipped on some ice. Appellant did
not fall and caught herself, but continued to slip on ice the rest of the day. She finished her mail
route, but had difficulty walking, causing her to seek emergency medical treatment for left knee
pain. Dr. Lopez provided findings on physical examination and noted review of diagnostic
testing. He diagnosed work-related left knee medial meniscal tear and minor osteoarthritis.
In a July 1, 2016 medical report, Dr. Lopez reported that appellant’s injury occurred on
December 30, 2015 when she slipped on ice while walking her mail route. Appellant did not fall
and caught herself, but twisted/jerked her left knee while doing so. The following day she was
unable to walk due to severe left knee pain. Dr. Lopez discussed appellant’s treatment history
noting that a June 6, 2016 x-ray of the left knee revealed mild arthritis with slight loss of joint
space and a January 7, 2016 MRI scan revealed medial meniscus tear. He diagnosed left medial
meniscus tear and left knee osteoarthritis. Dr. Lopez opined with a reasonable degree of medical
certainty that appellant sustained a work-related injury to her left knee due to the slip on ice on
December 30, 2015. He explained that the osteoarthritis in her left knee developed over time
from the constant walking and standing, but was aggravated when she slipped on ice. Dr. Lopez
reported no knowledge of any other left knee injury prior to working for the employing
establishment.
By decision dated January 3, 2017, OWCP affirmed the April 28, 2016 decision, as
modified, finding that the evidence of record failed to establish that the December 30, 2015
employment incident occurred as alleged. It noted that appellant had established the fifth basic
element of her claim for causal relationship. However, OWCP denied her claim for fact of injury
because she failed to respond to the questionnaire provided with the March 23, 2016
development letter, which requested that she provide more details concerning the circumstances
of the claim filed.
3

LEGAL PRECEDENT
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 filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.4 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.5
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.6 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
When an employee claims that he or she sustained an injury in the performance of duty
he or she must submit sufficient evidence to establish that he or she experienced a specific event,
incident, or exposure occurring at the time and place, and in the manner alleged. He or she must
also establish that such event, incident, or exposure caused an injury.7 Once an employee
establishes that they sustained an injury in the performance of duty, they have the burden of
proof to establish that any subsequent medical condition or disability from work, for which
compensation is claimed is causally related to the accepted injury.8
To establish that an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
circumstances and his or her subsequent course of action. In determining whether a case has
been established, such circumstances as late notification of injury, lack of confirmation of injury,
and failure to obtain medical treatment may, if otherwise unexplained, cast serious doubt on the
employee’s statements. The employee has not met his or her burden of proof when there are such
inconsistencies in the evidence as to cast serious doubt on the validity of the claim.9

3

Supra note 1.

4

Gary J. Watling, 52 ECAB 278 (2001).

5

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

6

Elaine Pendleton, 40 ECAB 1143 (1989).

7
See generally John J. Carlone, 41 ECAB 354 (1989); see also 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R.
§ 10.5(q) and (ee) (1999) (occupational disease or illness and traumatic injury defined). See Victor J. Woodhams, 41
ECAB 345 (1989) regarding a claimant’s burden of proof in an occupational disease claim.
8

Supra note 3.

9

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

4

ANALYSIS
While OWCP’s April 28, 2016 decision accepted that the December 30, 2015
employment incident occurred as alleged, the January 3, 2017 decision modified this finding and
determined that appellant failed to establish fact of injury. OWCP denied her claim based on her
failure to respond to the March 23, 2016 development questionnaire which it claimed requested
that she provide additional detail concerning her claim.
The Board finds that this case is not in posture for decision.
While appellant did not respond to OWCP’s development questionnaire, the
questionnaire did not request greater detail pertaining to the factual circumstances of the
December 30, 2015 employment incident as alleged by OWCP in its January 3, 2017 decision.
The Board notes that the employing establishment controverted the claim arguing that she failed
to provide notice to her supervisor within 30 days of the December 30, 2015 employment injury.
OWCP’s questionnaire only requested that appellant submit evidence which established that her
claim was filed within 30 days of the December 30, 2015 injury. The Board notes that, while the
employing establishment controverted appellant’s claim as untimely filed, there is no
requirement that a claim be filed on the date of injury.10 In cases of injury on or after
September 7, 1974, section 8122(a) of FECA provides that an original claim for compensation
for disability or death must be filed within three years after the injury or death.11
With respect to the details surrounding the employment incident, appellant’s February 10,
2015 Form CA-1 alleged that she slipped off a step on December 30, 2015. Dr. Lopez’s medical
reports document that on December 30, 2015 appellant slipped on ice while walking her mail
route in snowy and rainy conditions. While appellant’s description of the employment incident
is vague, it is not so contradictory with that of her medical reports to establish that the
December 30, 2015 employment incident did not occur as alleged.12 Moreover, she sought
medical treatment shortly after her injury, just two days following the employment incident.
Thus, the Board finds that given the above-referenced evidence, appellant has alleged with
specificity that the incident occurred at the time, place, and in the manner alleged.13
As there is no dispute that appellant slipped on ice while delivering mail on
December 30, 2015, the Board finds that the first component of fact of injury, the claimed
incident, occurred as alleged.14 Given that appellant has established that the December 30, 2015
employment incident occurred as alleged, the question becomes whether this incident caused an
injury. While OWCP’s January 3, 2017 decision indicated that causal relationship had been
established, this decision did not review the medical evidence of record and make appropriate
10

J.S., Docket No. 15-1618 (issued March 7, 2016).

11

5 U.S.C. § 8122(a); section 10.100(b) of OWCP regulations also provides that for injuries sustained on or after
September 7, 1974, a notice of injury must be filed within three years of the injury. 20 C.F.R. § 10.100(b). See also
A.D., Docket No. 15-0732 (issued September 29, 2015).
12

See Willie J. Clements, 43 ECAB 244 (1991).

13

Id.

14

James R. Flint, Docket No. 05-0587 (issued June 10, 2005).

5

factual findings. It is a well-established principle that OWCP must make findings of fact and
offer a statement of reasons in its final decision.15
Thus, the Board will set aside OWCP’s January 3, 2017 merit decision and remand the
case for further development of the medical evidence.16 After further development as deemed
necessary, OWCP shall issue a de novo final decision on appellant’s traumatic injury claim.
CONCLUSION
The Board finds that appellant has established that the December 30, 2015 employment
incident occurred as alleged. The Board further finds that this case is not in posture for decision
as to whether appellant sustained an injury causally related to the accepted employment incident.
On remand, OWCP will consider the medical evidence and issue a de novo decision.
ORDER
IT IS HEREBY ORDERED THAT the January 3, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion.17
Issued: February 26, 2018
Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

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

15

20 CFR § 10.126.

16

T.F., Docket No. 12-0439 (issued August 20, 2012).

17

Colleen Duffy Kiko, Judge, participated in this decision, but was no longer a member of the Board effective
December 11, 2017.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.D., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION AGENCY,
Westbury, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 13-2168
Issued: February 20, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 20, 2013 appellant filed a timely appeal of a March 25, 2013 decision of
the Office of Workers’ Compensation Programs (OWCP) denying his hearing loss claim.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
traumatic injury in the performance of duty on August 22, 2012.
On appeal appellant contends that he has established his claim based on the medical
evidence submitted.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 22, 2012 appellant, then a 36-year-old air traffic control specialist, filed a
traumatic injury claim alleging that he sustained right ear pain due to multiple loud tones on
frequency that day. He stopped work on August 31, 2012 and was released to full-duty work on
September 8, 2012.
In correspondence dated September 6, 2012, OWCP informed appellant that the evidence
of record was insufficient to support his claim. Appellant was advised as to the medical and
factual evidence required to establish his claim and given 30 days to provide additional
information.
In a September 7, 2012 e-mail, Jeffrey Brooks, operations manager, noted that appellant’s
headset had been tested and his noise suppressor was shown to be working correctly. He
attached a copy of an August 23, 2012 incident report showing that there was a change of one
decibel and the transmission decibel level was within acceptable levels. Mr. Brooks noted that
the sound was electronic radio interference and not a tone.
In an August 23, 2012 New York incident report addressing the August 22, 2012 tone
incident, a technician noted that, while the sound appeared to be pronounced, this was due to it
being “a single pitch as opposed to normal modulation.” He stated that it “[s]ounded like a data
burst and not a test tone.” The frequency of the tone was .999 Hertz (Hz) -1.30 Hz and the level
of tone was -4.0 decibels. The technician stated that the test tone would be 1,004 Hz and
normally would be found a T-8 decibels or -13.0 decibels. He indicated that the tone level was
one decibel above the aircraft audio or position/controller.
On October 4, 2012 OWCP received an August 31, 2012 attending physician’s report
(Form CA-20) from Dr. Robert A. Feld, a treating Board-certified otolaryngologist, who
diagnosed right ear sensorineural hearing loss due to sound trauma. Under history of injury,
Dr. Feld stated that appellant had been exposed to an extremely loud sound in his right ear
headset. He checked “yes” to the form question of whether the condition was employment
related. Dr. Feld advised that appellant was totally disabled from working from August 31 to
September 7, 2012.
By decision dated October 16, 2012, OWCP denied appellant’s claim finding that he was
not exposed to loud noise on his headset on August 22, 2012.
On November 11, 2012 appellant requested an oral hearing before an OWCP hearing
representative, which was held on February 4, 2013.
In a January 28, 2013 report, Dr. Feld stated that appellant was first seen on
August 31, 2012. Appellant related being exposed to an extremely loud noise on his headset
while at work. He experienced a persistent ringing sound and pain. Dr. Feld diagnosed right ear
hearing loss based on audiologic examination. He stated that, due to the excessive sound,
appellant sustained a traumatic acoustic nerve injury.

2

On February 7, 2013 OWCP received reports dated August 31 and September 7, 2012
from Dr. Feld. Appellant related that on August 22, 2012 he was exposed to loud noise in his
right ear due to a head set used at work. Dr. Feld diagnosed acoustic trauma and mild
sensorineural loss and that appellant was currently disabled from work. He was released to
return to work, as of September 7, 2012.
By decision dated March 25, 2013, an OWCP hearing representative affirmed the denial
of appellant’s claim, on the grounds that he failed to establish that he had been exposed to loud
noises on his headset as alleged.2
LEGAL PRECEDENT
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 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.4 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.5
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.6
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.7 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.8
ANALYSIS
Appellant alleged that he sustained right ear pain on August 22, 2012 due to exposure to
multiple loud tones on frequency while working as an air traffic control specialist. OWCP
denied his claim on October 16, 2012 finding that the injury did not occur in the manner alleged.
2

The Board notes that, following the March 25, 2013 decision, OWCP received additional evidence. However,
the Board may only review evidence that was in the record at the time OWCP issued its final decision. See 20
C.F.R. § 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58
ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
3

5 U.S.C. § 8101 et seq.

4

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

5

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

6

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 4.

7

D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

8

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra
note 4.

3

On March 25, 2013 an OWCP hearing representative affirmed the denial of appellant’s claim as
the evidence of record failed to establish that the noise exposure was above the permissible level.
The Board finds that the factual evidence of record does not support appellant’s claim
that he was exposed to loud noise in his headset on August 22, 2012. Mr. Brooks, operations
manager, stated that appellant’s headset had been tested for the period in question and that the
test showed the noise suppressor for the headset was working correctly. In addition, Mr. Brooks
provided a copy of an August 23, 2012 incident report which showed that at the time of the
alleged incident that the transmission decibel level was within acceptable levels and the actual
deviation was one decibel. Appellant has not submitted sufficient evidence that he was exposed
to loud noise in his headset on August 22, 2012.
Although an employee’s statement which alleges that an injury occurred at a given time
and in a given manner is generally accorded great probative value, there is strong and persuasive
evidence refuting appellant’s account of the August 22, 2012 event.9 The Board finds that he has
not established the occurrence of the August 22, 2012 work incident in the manner alleged and,
therefore, has not established that he sustained an injury in the performance of duty.
On appeal appellant argued that the medical evidence establishes his claim. In order to
establish his claim, he must first demonstrate that the incident occurred in the manner alleged.
The factual evidence consists of an incident report and testing of his headset which do not
substantiate appellant’s allegation that he was exposed to loud noise. As the factual evidence
negates exposure to the alleged loud noise, the Board finds that he failed to establish that the
employment incident occurred in the manner alleged.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained a traumatic injury in the performance of duty on August 22, 2012.

9

Robert A. Gregory, 40 ECAB 478 (1989); Thelma S. Buffington, 34 ECAB 104 (1982).

4

ORDER
IT IS HEREBY ORDERED THAT the March 25, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 20, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.R., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, San Francisco, CA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 07-1949
Issued: February 26, 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 July 17, 2007 appellant filed a timely appeal from the January 23, 2007 decision of
the Office of Workers’ Compensation Programs denying his occupational disease claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.1
ISSUE
The issue is whether appellant has established that he was injured in the performance of
duty, causally related to factors of his federal employment.

1

The Board notes that appellant requested an oral hearing on April 27, 2007 and submitted medical evidence. By
nonmerit decision dated July 2, 2007, the Office hearing representative informed appellant that he was not entitled to
an oral hearing because his request was made more than 30 days after the Office’s January 23, 2007 decision. The
Board has no jurisdiction to review the evidence submitted following the January 23, 2007 decision. 5 U.S.C.
§ 501.2(c). The Board notes that appellant only appealed the January 23, 2007 denial of his claim.

FACTUAL HISTORY
On November 1, 2006 appellant, then a 49-year-old laborer custodian, filed an
occupational disease claim, Form CA-2, alleging that he sustained a left shoulder condition in
November 2003. He stated that he did not file a claim within 30 days of his realization of his
condition because he was under a 90-day probation period and could not miss days from work
for injuries. On an insurance form dated October 26, 2006, appellant stated that his job duties
consisted of sweeping, mopping and overhead dusting. He identified his injury as a spur in his
right shoulder.2 On October 27, 2006 Dr. Todd Pope, a Board-certified internist, stated that
appellant’s shoulder impingement symptoms had appeared a year previously and that his first
consultation was on October 12, 2006. He stated that appellant was disabled from work from
October 6 to November 30, 2006.
The employing establishment controverted appellant’s claim. In a letter dated
November 1, 2006, Bonnie Noble, the supervisor of maintenance operations, stated that appellant
had been detailed as an acting supervisor from May 20 to October 7, 2006. In that position,
appellant would not have done sweeping, mopping or overhead dusting. When he was told that
he would be returning to his regular position, he became stressed and sought counseling from the
Employee Assistance Program. Appellant did not return to his normal assignment and was on
leave from October 7, 2006. Ms. Noble stated that appellant informed her on November 1, 2006
that he felt pain in late November 2003 while performing his duties, but was afraid to report his
condition during probation for fear of termination. Appellant felt better with medication and
home remedies. When his condition intensified, approximately three years later, he went to the
doctor and reported his injury to the employing establishment. The employing establishment and
Ms. Noble stated that appellant’s workers’ compensation claim appeared to be retaliation for
being returned to his custodial duties.
On November 13, 2006 the Office requested additional factual and medical information
about appellant’s claim.
In a work release form dated October 6, 2006, Dr. Pope stated that appellant was under
significant stress from having his work shift changed. Appellant was active as a deacon in his
church, which would be impossible if his schedule was changed. Dr. Pope requested that
appellant be allowed to work his previous schedule, as he would benefit from continuing church
activity. On October 12, 2006 he indicated that appellant would be unable to work from
October 16 to 27, 2006. Dr. Pope did not provide any explanation. On October 24, 2006 he
stated that appellant would be unable to work from October 24 to November 30, 2006. On
November 8, 2006 Dr. Pope provided the employing establishment with a duty status report
indicating that, because of appellant’s left shoulder impingement syndrome, he was limited to
lifting 10 pounds and prohibited from pushing, pulling, reaching above his shoulder, driving a
vehicle or operating machinery. Despite providing these limitations, he did not then recommend
that appellant return to work.

2

The Board notes that this appears to be an error, as his treating physicians consistently diagnosed a left shoulder
condition.

2

On November 14, 2006 the employing establishment offered appellant a light-duty job
based on the physical limitations indicated by Dr. Pope. The position involved wiping clean
door frames, door jams, window ledges, bathroom sinks and mirrors and restocking paper
supplies and soap in restrooms. The Office sent a copy of the job description to Dr. Pope for his
approval.
On November 24, 2006 Dr. Pope stated that appellant would be out of work through
December 24, 2006. On November 29, 2006 Susan Bolton, a nurse case manager assigned to
appellant, memorialized a telephone conversation she had with Dr. Pope who stated that
appellant was placed off work starting October 24, 2006 for a torn rotator cuff. Dr. Pope stated
that it was not clear that the tear was associated with appellant’s employment, but that he had
encouraged him to report the condition, as it could have some relationship to his work. On
November 29, 2006 he agreed that Ms. Bolton had accurately memorialized the conversation.
On November 29, 2006 the employing establishment stated that appellant had not yet
returned to work. Appellant reported that his physician had not yet released him to work and that
he would need surgery.
On December 1, 2006 appellant stated that his workers’ compensation claim was not
made in retaliation against the employing establishment’s decisions. As an acting supervisor, his
duties included showing new employees cleaning duties such as sweeping, mopping, and
overhead dusting. Appellant was scheduled for shoulder surgery in January 2007.
On December 6, 2006 Dr. Pope removed appellant from work until January 31, 2007.
By decision dated January 23, 2007, the Office denied appellant’s claim on the grounds
that he had not established employment exposure or an injury. It found that appellant had not
adequately detailed his employment activities and that he did not establish how these
employment factors affected his shoulders. The Office found further that the medical evidence
was insufficient to establish the claim because Dr. Pope was uncertain as to whether appellant’s
left shoulder impingement was employment related.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act3 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 the applicable time limitation, that an injury was sustained while in the performance
of duty as alleged and that any disability or specific condition for which compensation is claimed
is causally related to the employment injury.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
3

5 U.S.C. §§ 8101-8193.

4

Caroline Thomas, 51 ECAB 451 (2000); Elaine Pendleton, 40 ECAB 1143 (1989).

3

presence or existence of the disease or condition for which compensation is claimed;5 (2) a
factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition;6 and (3) medical evidence establishing that
the diagnosed condition is causally related to the employment factors identified by the claimant.7
When determining whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors, the Office generally relies on the
rationalized opinion of a physician.8 To be rationalized, the opinion must be based on a
complete factual and medical background of the claimant9 and must be one of reasonable
medical certainty,10 explaining the nature of the relationship between the diagnosed condition
and the specific employment factors identified by the claimant.11
ANALYSIS
The Office did not accept that appellant experienced the alleged employment factors or
that he sustained an injury as a result of these factors. Therefore the issues are whether he has
established mopping, sweeping and dusting overhead as employment factors and that he
sustained a compensable injury.
Appellant attributed his left shoulder condition to his employment duties of sweeping,
mopping and overhead dusting in November 2003. He did not report it at the time because he
was in a probationary period and could not miss any days for accident or illness. Appellant
treated his shoulder pain with medical and home remedies. The employing establishment
controverted his claim on the grounds that he would not have dusted, mopped or swept when he
was an acting supervisor from May to October 2006 and that he filed the claim in retaliation for
the withdrawal of the supervisory position. However, the employing establishment did not
controvert appellant’s claim that his November 2003 duties included sweeping, mopping and
dusting. The Board has held that an employee’s statement alleging that an injury occurred at a
given time and in a given manner is of great probative value and will stand unless refuted by
strong or persuasive evidence.12 The Board finds that appellant has established sweeping,
mopping and overhead dusting as factors of his employment in November 2003. Appellant’s
description of his employment duties is consistent and there is no basis to refute it.

5

Solomon Polen, 51 ECAB 341 (2000).

6

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

7

Ernest St. Pierre, 51 ECAB 623 (2000).

8

Conrad Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

9

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

10

John W. Montoya, 54 ECAB 306 (2003).

11

Judy C. Rogers, 54 ECAB 693 (2003).

12

Constance G. Patterson, 41 ECAB 206 (1989).

4

The issue is whether appellant has established that he sustained an injury causally related
to the accepted factors of his federal employment. This issue is medical in nature.
On October 6, 2006 Dr. Pope, a Board-certified internist, stated that appellant was under
significant stress from having his work shift changed, because the change would preclude him
from participating as a deacon in his church. On an insurance claim form dated October 27,
2006, he stated that appellant first consulted him on October 12, 2006 for his shoulder
impingement symptoms, which had appeared a year previously. In a November 8, 2006 duty
status report, Dr. Pope stated that appellant’s left shoulder impingement syndrome limited him to
10 pounds of lifting and prohibited him from pushing, pulling, reaching above his shoulder,
driving a vehicle or operating machinery. He recommended that appellant not return to work at
that time. On November 29, 2006 Dr. Pope informed a nurse case manager that appellant was
placed off of work starting October 24, 2006 for a torn rotator cuff. He stated that it was not
clear that the tear was work related, but that he had encouraged appellant to report the condition,
as it might have some relationship to his employment. Dr. Pope removed appellant from work
from October 16, 2006 to January 31, 2007. He did not provide an explanation for this period of
disability.
The Board finds that the medical evidence of record is insufficient to establish that
appellant’s left shoulder condition is related to his mopping, sweeping and overhead dusting.
The Board has held that a physician’s opinion on causal relationship must be one of reasonable
certainty, supported with affirmative evidence, explained by medical rationale and based on a
complete and accurate medical and factual background.13 Dr. Pope did not submit a rationalized
medical opinion diagnosing appellant’s condition, describing his accepted employment factors or
explaining how the factors related to the left shoulder impingement. His opinion that there might
be some relationship with appellant’s employment is inadequate because it is equivocal.14
The Board finds that appellant has not met his burden of proof to establish fact of injury
under the Act.
CONCLUSION
The Board finds that appellant has established dusting, mopping, and sweeping as the
implicated factors of his employment. However, he has not established that he was injured in the
performance of duty causally related to these implicated employment factors.

13

Robert Broome, 55 ECAB 339 (2004).

14

See Michael R. Schaffer, 55 ECAB 386 (2004) (“[a]n opinion on causal relationship can be neither speculative
nor equivocal”).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 23, 2007 is affirmed as modified.
Issued: February 26, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF THE AIR FORCE,
LOGISTICS READINESS SQUAD,
ROBINS AIR FORCE BASE, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 10-1965
Issued: May 16, 2011

Case Submitted on the Record

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

JURISDICTION
On July 21, 2010 appellant filed a timely appeal from March 23 and July 7, 2010 merit
decisions of the Office of Workers’ Compensation Programs which denied his occupational
disease claim. Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly denied appellant’s occupational disease claim on
the grounds that it was not timely filed under 5 U.S.C. § 8122.
FACTUAL HISTORY
On January 8, 2010 appellant, then a 49-year-old equipment specialist, filed an
occupational disease claim alleging that he developed bilateral tennis elbow over a 17-year
1

5 U.S.C. § 8101 et seq.

period as a result of using rivet guns, drill motors and hand tools at work. He listed his date of
injury as June 1, 2008, but stated that he did not realize it was caused or aggravated by his
employment until December 2, 2009. Appellant’s last day of exposure to the alleged factors of
employment was on March 1, 2002, at which time he was promoted to a new position. His
supervisor indicated that the date of last exposure was March 1, 2002 and that appellant first
reported the injury on December 4, 2009.
In a January 15, 2010 letter, the Office requested additional evidence from the employing
establishment regarding appellant’s claim, including comments from a knowledgeable supervisor
regarding the accuracy of appellant’s statements and when he informed management that he
sustained a job-related condition.
On January 19, 2010 the Office received the employer’s response and a description of
appellant’s position. It agreed with appellant’s statements regarding his claim and listed his
aircraft mechanic tasks as daily use of hand tools, including wrenches, hammers, and
screwdrivers, daily riveting and bucking rivets, and daily drilling out fasteners with a drill motor
such as steel and aluminum. Appellant wore leather gloves to minimize the vibrations and
constant pounding.
In an e-mail dated December 31, 2009, appellant’s supervisor provided additional
comments. He stated that appellant informed him that he was suffering from old injuries he
sustained while working as an aircraft mechanic and that he was diagnosed by clinic personnel
with tennis elbow on March 1, 2009.
By letter dated January 15, 2010, the Office advised appellant that the evidence submitted
was insufficient to establish his claim and requested additional information.2 It specifically
asked him to provide a description of his duties as an aircraft mechanic, the date he first noticed
his elbow condition, the date he realized his elbow condition resulted from his employment and
the date of last exposure. The Office also requested that appellant provide a comprehensive
medical report from his treating physician which described his symptoms, results of
examinations and tests, a clear diagnosis, and an opinion, with stated medical reasons, on how
appellant’s work activities caused his condition.
On January 19, 2010 appellant responded by e-mail to the Office’s development letter.
He described his aircraft mechanic duties as including using a drill motor, rivet gun, and bucking
bar and noted that the only precaution was to wear leather gloves. Appellant used these tools
daily for several hours from 1986 until 2001. He also provided a history of injury. Appellant’s
elbow pain began while working at Kelly Air Force Base in 1998. He described the pain as
continuous and ranging from moderate to very painful. Appellant explained that the pain
worsened when using a lawn blower, raking, driving, bumping the area “or almost anything.”
His treatments included cortisone shots, physical therapy, electro treatment, and prescription
medication but none were effective.

2

In a letter dated January 21, 2010, corrected copies of the Office’s development letter were sent to appellant and
the employing establishment with the correct medical condition listed.

2

In an undated statement, appellant noted that he no longer worked as an aircraft mechanic
but had a desk job with mostly computer duties. He listed 2003 as the date of last exposure to
his mechanic duties.
In a November 11, 2009 report, Dr. C. Scott Edenfield, Board-certified in internal
medicine, noted that he had examined appellant that day and that appellant was new to his
practice. Appellant’s chief complaint of bilateral elbow pain, first developed about two years
ago, and that his condition worsened when participating in any activity, including blowing the
lawn or driveway, holding a cup, or any type of labor with his hands. To relieve pain, appellant
had used a transcutaneous electrical nerve stimulation (TENS) unit and brace and took a number
of nonsteroidal anti-inflammatory drugs. He stated that none provided him with relief.
Dr. Edenfield noted that appellant had never seen an orthopedic surgeon for this condition. He
noted that appellant worked as a sheet metal mechanic and frequently used various hand tools,
such as a riveter and drill. Dr. Edenfield also observed that appellant had degenerative joint
disease and a problem with his lumbosacral spine for the past 18 years. Upon physical
examination, he observed that appellant was tender over both lateral epicondyles with a little bit
of swelling. Dr. Edenfield diagnosed appellant with bilateral lateral epicondylitis.
In a December 2, 2009 health record, Dr. Marvin E. Taylor, Board-certified in
occupational medicine, stated that appellant was in his clinic for a follow-up injury. He noted
that appellant worked as an equipment specialist doing sheet metal work from 1986 to 2002 and
currently worked as a lead equipment specialist. Appellant first noticed pain when he was a
mechanic working at Kelly Air Force Base, but did not report it. Dr. Taylor also reviewed
appellant’s medical history and noted that appellant was receiving medical treatment from
various doctors over the years who diagnosed tennis elbow. His treatments include cortisone
shots, anti-inflammatory crème and prescription medication. Dr. Taylor released appellant to
return to work immediately. In another December 2, 2009 medical note, a registered nurse stated
that she saw appellant that day.
In a December 17, 2009 letter, Dr. George Arimah, a Board-certified family practitioner,
confirmed that appellant was his patient and stated that he might have chronic and progressive
bilateral epicondylitis as a result of his occupation.
In a January 8, 2010 note, a physical therapist stated that she was treating appellant for
bilateral lateral epicondylitis. She noted that he had tenderness over lateral epicondyle bilaterally
with pain with resisted wrist extension. The physical therapist further reported that due to
appellant’s poor response to physical therapy she recommended appellant see an orthopedist.
Appellant provided a February 9, 2010 memorandum written by his supervisor to the
employing establishment. His supervisor stated that appellant informed him of old injuries he
sustained when he worked as an aircraft mechanic for 17 years. Appellant also stated that a
doctor at a local clinic diagnosed tennis elbow and informed him to fill out a claim form. He
reported that the date of his most recent medical care was March 1, 2009 with Dr. Marvin Taylor
at Robins Air Force Base and that he also had an appointment on December 2, 2009 with a
registered nurse.

3

In a decision dated March 23, 2010, the Office denied appellant’s claim on the grounds
that it was not timely filed. It found that the date of injury was March 1, 2002 and that he should
have been aware of the relationship between his employment and his condition by
March 1, 2005.
On June 2, 2010 the Office received appellant’s request for reconsideration. Appellant
explained that he did not file a claim within three years because he was unaware of the three-year
time limitation for filing a claim and further described his medical condition. He developed
chronic pain when he worked as an aircraft mechanic but decided to seek other job opportunities
instead of seeking medical attention for his condition. Appellant reported that the pain in his
arms had progressively worsened and affected his daily activities. He provided additional
medical evidence from Dr. Todd E. Kinnebrew, a Board-certified orthopedic surgeon, and
resubmitted the January 8, 2010 physical therapy note and December 17, 2009 Dr. Arimah note.
In a May 4, 2010 note, Dr. Kinnebrew reported that appellant was seen for an initial
evaluation regarding pain over the lateral elbow. Appellant described the pain as moderate to
severe dull aching occurring in a persistent pattern for several years. Dr. Kinnebrew also
reviewed appellant’s medical background, noting his previous medical evaluations and physical
therapy treatments. He confirmed that appellant had chronic lateral epicondylitis that had not
responded to conservative treatment.
In a May 10, 2010 medical note, Dr. Kinnebrew stated that he evaluated appellant on
May 4, 2010 for chronic lateral epicondylitis. As appellant had not responded to conservative
treatment he was scheduled for surgery. Dr. Kinnebrew opined that it was certainly plausible
that appellant’s condition was a result of repetitive stress and use while employed as a sheet
metal worker. He explained that the work history appellant described could certainly have led to
this chronic injury.
In a letter dated June 16, 2010, the Office informed the employing establishment that
appellant filed a request for reconsideration and asked the employing establishment to comment
on the evidence newly submitted. It did not receive a response.
By decision dated July 7, 2010, the Office denied modification of its March 23, 2010
decision finding that the evidence submitted did not establish that her claim was timely filed
pursuant to 5 U.S.C. § 8122.
LEGAL PRECEDENT
Section 8122(a) of the Act3 states that an original claim for compensation for disability or
death must be filed within three years after the injury or death.4 In a case of occupational
disease, the time for filing a claim begins to run when the employee first becomes aware, or
reasonably should have been aware, of a possible relationship between his condition and his
employment. When an employee becomes aware or reasonably should have been aware that he
3
4

5 U.S.C. § 8122(a).
Id.

4

or she has a condition which has been adversely affected by factors of his federal employment,
such awareness is competent to start the limitation period even though the employee does not
know the precise nature of the impairment or whether the ultimate result of such affect would be
temporary or permanent.5 If an employee continues to be exposed to injurious working
conditions after such awareness, the time limitation begins to run on the last date of this
exposure.6
Appellant’s claim would still be regarded as timely under section 8122(a)(1) of the Act if
her immediate supervisor had actual knowledge of the alleged employment-related injury within
30 days. The knowledge must be such as to put the immediate supervisor reasonably on notice
of appellant’s injury.7 An employee must show not only that her immediate supervisor knew that
she was injured, but also knew or reasonably should have known that it was an on-the-job
injury.8
ANALYSIS
Appellant alleged that he developed bilateral tennis elbow as a result of his employment
as an equipment specialist. By decisions dated March 23 and July 7, 2010, the Office denied
appellant’s occupational disease claim on the grounds that it was not timely filed within three
years of March 1, 2002, the date of last exposure. The Board finds that appellant timely filed a
claim for compensation.
The Office found that appellant should have filed his claim within three years of the date
of last exposure; therefore, his claim should have been filed by March 1, 2005. As stated
however, in a case of occupational disease, the time for filing a claim begins to run when the
employee first becomes aware, or reasonably should have been aware, of a possible relationship
between his condition and his employment. Appellant noted on his claim form, that he first
became aware of his condition on June 1, 2008 and first realized that his elbow condition was a
result of his employment on December 2, 2009.
Regarding whether appellant should have reasonably been aware of a possible
relationship between his condition and his employment within three years of March 1, 2002, the
record lacks evidence establishing that appellant should have reasonably known prior to
December 2, 2009 that his bilateral tennis elbow was a result of his employment. The evidence
of record reflects that appellant experienced elbow pain while he worked as an aircraft mechanic
from 1986 until 2002 and received medical treatment for this pain. While the employing
establishment stated that appellant had spoken of an old injury he sustained while working as an
aircraft carrier, the record does not contain any medical evidence dated before the December 2,
5

See Larry E. Young, 52 ECAB 264 (2001); Duet Brinson, 52 ECAB 168 (2000).

6

See Mitchell Murray, 53 ECAB 601 (2002); Alicia Kelly, 53 ECAB 244 (2001); Larry E. Young, id.;
Garyleane A. Williams, 44 ECAB 441 (1993).
7

5 U.S.C. § 8122(a)(1); see also Jose Salaz, 41 ECAB 743 (1990); Kathryn A. Bernal, 38 ECAB 470 (1987); see
also Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.3(a)(3) (March 1993).
8

Charlene B. Fenton, 36 ECAB 151 (1984).

5

2009 report demonstrating that appellant should have realized this elbow condition was a result
of his employment.9 A supervisor’s statement indicates that appellant was diagnosed with tennis
elbow on March 1, 2009, but this report is not of record and there is no indication that the cause
of the diagnosis was discussed. Although appellant may have been generally aware of his
bilateral tennis elbow, this knowledge, along with the lack of contemporaneous evidence
indicating his elbow condition was caused or aggravated from his employment, is insufficient to
establish that he should have known prior to December 2, 2009 that he had an employmentrelated elbow condition.10 There are no medical reports or other evidence prior to Dr. Taylor’s
December 2, 2009 reports which suggest that appellant’s elbow condition was a result of his
employment.
The record establishes that appellant first became aware that his elbow condition resulted
from his employment activities on December 2, 2009 and no other evidence demonstrates that he
should have been aware of a causal relationship prior to that date. Appellant’s claim filed on
January 8, 2010 was timely. The case will be remanded for the Office to address the merits of
the claim.
CONCLUSION
The Board finds that appellant’s claim filed on January 8, 2010 is timely.

9

The only medical evidence of record dated before December 2, 2009 is Dr. Edenfield’s November 11, 2009
report. Although Dr. Edenfield diagnosed appellant with bilateral lateral epicondylitis, he did not give an opinion as
to the cause of this condition.
10

See William C. Oakley, 56 ECAB 519 (2005) (the Board found that the lack of audiogram evidence indicating
that appellant suffered from a noise-induced hearing loss was insufficient to establish that appellant should have
known earlier than August 26, 2003 that his hearing loss was a result of his employment); see also L.C., 57 ECAB
740 (2006) (the Board found that a diagnosis of an ear infection does not establish that appellant should have been
aware of the causal relationship between his federal employment and hearing loss before the date indicated on the
claim form).

6

ORDER
IT IS HEREBY ORDERED THAT the March 23 and July 7, 2010 decisions of the
Office of Workers’ Compensation Programs are set aside and remanded for further action
consistent with this decision.
Issued: May 16, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Farmington Hills, MI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-2015
Issued: August 20, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On September 28, 2017 appellant, through counsel, filed a timely appeal from a
September 12, 2017 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP).2 As more than 180 days elapsed from the last merit decision dated August 25, 2016 to

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

The Board notes that appellant did not appeal from OWCP’s August 1, 2017 merit decision.

the filing of this appeal, pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.4
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On May 17, 2013 appellant, a 51-year-old city carrier assistant, filed a traumatic injury
claim (Form CA-1) alleging that she sustained injuries to her head, shoulder, and arms on May 16,
2013 as a result of a truck lift breaking while she was standing on it. OWCP accepted the claim
for neck sprain, thoracic sprain, lumbar sprain, face contusion, brachial neuritis or radiculitis, and
closed fracture of rib (5th rib anterior chest wall).
By decision dated March 2, 2016, OWCP terminated appellant’s compensation benefits
based on a second opinion report dated October 2, 2015 from Dr. Emmanuel Obianwu, a Boardcertified orthopedic surgeon, who found that appellant’s employment-related conditions had
ceased without residuals.
On March 29, 2016 appellant requested a review of the written record by a representative
of the Branch of Hearings and Review.
By decision dated August 25, 2016, an OWCP hearing representative affirmed the prior
decision, finding that Dr. Obianwu’s opinion represented the weight of the medical evidence.
Appellant submitted reports dated January 20, 2017 from Dr. Ritu Zacharias, a Boardcertified physiatrist, who diagnosed left rotator cuff tear arthropathy, cervical facet joint syndrome,
myofascial pain, and cervical strain.
On May 30, 2017 counsel requested reconsideration of the August 25, 2016 decision and
resubmitted the January 20, 2017 reports from Dr. Zacharias in support of appellant’s claim.
By decision dated September 12, 2017, OWCP denied appellant’s request for
reconsideration of the merits of her claim, finding that she failed to advance a relevant legal
argument or submit any relevant and pertinent new evidence. Rather, the evidence submitted was
substantially similar to evidence previously considered.

3

5 U.S.C. § 8101 et seq.

4
The record provided to the Board includes evidence received after OWCP issued its September 12, 2017 decision.
The Board’s review of a case is limited to the evidence that was before OWCP at the time of its final decision.
Therefore, the Board is precluded from considering this additional evidence for the first time on appeal. 20 C.F.R.
§ 501.2(c)(1).

2

LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.5 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.6 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.7
A timely application for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (i) shows that OWCP erroneously applied or
interpreted a specific point of law; (ii) advances a relevant legal argument not previously
considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously
considered by OWCP.8 When a timely application for reconsideration does not meet at least one
of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits.9
ANALYSIS
Appellant’s May 30, 2017 request for reconsideration neither alleged, nor demonstrated
that OWCP erroneously applied or interpreted a specific point of law. Additionally, she did not
advance a relevant legal argument not previously considered by OWCP. Consequently, appellant
is not entitled to further review of the merits of her claim based on the first and second abovenoted requirements under section 10.606(b)(3).
Appellant also failed to submit relevant and pertinent evidence not previously considered
by OWCP. She resubmitted reports dated January 20, 2017 from Dr. Zacharias which were
already of record in support of her reconsideration request. In this report, Dr. Zacharias diagnosed
left rotator cuff tear arthropathy, cervical facet joint syndrome, myofascial pain, and cervical strain.
He did not provide any new medical rationale related to appellant’s employment-related
conditions. The Board finds that submission of this evidence did not require reopening appellant’s
case for merit review because it failed to address the point at issue before OWCP. OWCP
terminated appellant’s compensation benefits based on the lack of supportive medical evidence
establishing continuing residuals from her accepted conditions. Therefore, the Board finds that
these reports do not constitute new and relevant evidence. Accordingly, this evidence is not
sufficient to require OWCP to reopen appellant’s claim for consideration of the merits.

5
This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
6

20 C.F.R. § 10.607.

7

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the “received date” in the Integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
8

20 C.F.R. § 10.606(b)(3).

9

Id. at § 10.608(a), (b).

3

The Board finds that OWCP properly determined that appellant was not entitled to further
review of the merits of her claim pursuant to any of the three requirements under section
10.606(b)(3) and properly denied her request for reconsideration.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the September 12, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 20, 2018
Washington, DC

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

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.F., Appellant
and
DEPARTMENT OF AGRICULTURE,
AGRICULTURAL MARKETING SERVICE,
Fresno, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 08-1906
Issued: February 11, 2009

Case Submitted on the Record

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

JURISDICTION
On July 1, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ May 27, 2008 decision in which an Office hearing representative
affirmed the denial of his claim for compensation. 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 met his burden of proof in establishing that he sustained a
traumatic injury in the performance of duty on September 24, 2007.
FACTUAL HISTORY
On October 12, 2007 appellant, then a 58-year-old inspector, filed a traumatic injury
claim alleging that he reinjured his lower back and sustained a herniated disc after probing bins
and lifting baskets of raisins into a sampler on September 24, 2007. He stopped work on
September 26, 2007 and did not return.

In a September 27, 2007 work restriction form, Dr. Ali Fayed, a Board-certified internist,
stated that appellant could return to work on October 1, 2007. He also issued an October 29,
2007 work restriction stating that appellant was out of work September 24 through
October 29, 2007.
On November 5, 2007 the Office advised appellant of the type of factual and medical
evidence needed to establish his claim and allowed him 30 days to submit such evidence.
Rodger Winslow, the inspector in charge of appellant’s workplace, submitted an undated
letter stating that he starting working with appellant on September 24, 2007 and on the following
day appellant informed him that he was having trouble with his back and that he had been having
trouble with it for a while.
Appellant also submitted several medical records in support of his claim. In a
September 27, 2007 progress note, Dr. Fayed noted appellant’s complaint of low back pain after
lifting a heavy object at work and diagnosed low back strain. He stated in an October 11, 2007
progress note that appellant still complained of low back pain and he had a history of old lumbar
disc problems in 1984. Dr. Fayed also diagnosed low back pain with mild radicular symptoms in
the lower left quadrant. An October 18, 2007 magnetic resonance imaging (MRI) scan history
and screening form indicated that appellant had stabbing pain and numbness in his lower back
for 20 years caused by motorcycle accidents. On October 18, 2007 Dr. Phillip Tran, a Boardcertified radiologist, interpreted the MRI scan results of appellant’s lumbar spine and diagnosed
an acute compression fracture deformity of the L2 vertebra. In an October 25, 2007 treatment
note, Dr. Chandra Venugopal, a Board-certified radiologist, noted appellant’s complaint of
significant back pain since being involved in a “small accident” approximately a month and a
half ago. She concluded that appellant’s back pain was secondary to the L2 compression
fracture. Dr. Venugopal stated that the etiology of the fracture was most likely secondary to
osteoporosis. She also recommended vertebroplasty.
In a November 16, 2007 Form CA-20, attending physician’s report, Dr. Fayed noted that
appellant lifted a heavy object at work and diagnosed acute compression fracture, L2 vertebra.
He also checked a box “yes” indicating that appellant’s condition was caused or aggravated by
an employment activity. A November 19, 2007 work restriction from Dr. Fayed advised that
appellant could not return to work until January 1, 2008.
In a December 10, 2007 decision, the Office denied appellant’s claim for compensation
on the grounds that he had not submitted medical evidence sufficient to establish causal
relationship between a diagnosed condition and employment incidents.1
Appellant requested a hearing on January 8, 2008. In support of his request, he submitted
a January 2, 2008 work restriction from Dr. Fayed stating that he could return to work on
March 3, 2008.

1

The Office noted that the claim was initially received as a simple uncontroverted case and that, initially, it
administratively allowed medical payments up to $1,500.00. However, it noted that, because appellant had claimed
wage loss and his medical bills exceeded $1,500.00, it must formally adjudicate the claim.

2

On March 12, 2008 an Office hearing representative conducted an oral hearing by
telephone. Appellant stated that he claimed a herniated disc injury based on his supervisor’s
advice. He listed “reinjury” because he believed that his back pain was the result of an old back
pulled muscle that affected him every once in awhile. Appellant further stated that
Dr. Venugopal concluded that his fracture was related to his work injury and not caused by
osteoporosis. The Office hearing representative kept the record open for 30 days to allow
submission of further medical evidence.
On May 27, 2008 an Office hearing representative affirmed the Office’s December 10,
2007 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his claim, including the fact that 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.3
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.4
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.5

2

5 U.S.C. §§ 8101-8193.

3

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

4

Id.

5

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

3

ANALYSIS
The record supports that appellant is an inspector who was lifting baskets of raisins into a
sampler on September 24, 2007 when he felt pain in his lower back. However, appellant has not
submitted sufficient medical evidence to establish that this employment incident caused a
personal injury.
Appellant submitted several reports from Dr. Fayed. In a November 16, 2007 attending
physician’s report, Dr. Fayed described the history of appellant’s injury as the result of lifting a
heavy object at work and diagnosed acute compression fracture at L2. He also supported causal
relationship by checking a box “yes” on a form report to indicate that appellant’s L2 fracture was
caused or aggravated by lifting baskets into a sampler. However, Dr. Fayed did not provide any
medical rationale explaining the reasons why he believed that the September 24, 2007
employment incident caused or aggravated the diagnosed fracture. Without medical rationale,
this opinion has little probative value and is insufficient to establish a causal relationship.6 This
is especially important in a situation where the record indicates that appellant has a prior history
of back conditions. In a September 27, 2007 progress note, Dr. Fayed noted appellant’s
complaint of low back pain after lifting a heavy object at work and diagnosed low back strain.
However, he did not specifically opine that lifting at work caused or aggravated a particular
condition. To the extent that Dr. Fayed’s statement constitutes an opinion on causal relationship,
he did not provide any medical reasoning to support his opinion. The mere fact that work
activities may produce symptoms revelatory of an underlying condition does not raise an
inference of an employment relation. Such a relationship must be shown by rationalized medical
evidence of causal relation based upon a specific and accurate history of employment conditions
which are alleged to have caused or exacerbated a disabling condition.7
Other reports from Dr. Fayed are insufficient as they did not specifically address whether
the September 24, 2007 employment incident caused or aggravated a diagnosed condition.8
Similarly, reports of other physicians do not specifically support that the September 24,
2007 employment incident caused or aggravated the diagnosed medical condition.
Dr. Venugopal’s October 25, 2007 report noted appellant’s complaint of significant back pain
since being involved in a small accident and he diagnosed an L2 compression fracture.
However, she opined that the etiology of the fracture was most likely secondary to osteoporosis.
Dr. Tran’s October 18, 2007 MRI scan report did not address whether appellant’s employment
was the cause of any diagnosed condition.

6

See Lucrecia Nielsen, 42 ECAB 583 (1991); Lillian Jones, 34 ECAB 379 (1982) (an opinion on causal
relationship which consists only of a physician checking “yes” to a medical form report question on whether the
claimant’s disability was related to the history given is of little probative value).
7

Patricia Bolleter, 40 ECAB 373 (1988).

8

A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006) (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).

4

For these reasons, the medical evidence is insufficient to establish that the September 24,
2007 employment incident caused or aggravated a diagnosed medical condition. Therefore,
appellant has not met his burden of proof in establishing that he sustained a traumatic injury in
the performance of duty.9
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
sustained a traumatic injury in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated May 27, 2008 and December 10, 2007 are affirmed.
Issued: February 11, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

9

Following the Office’s May 27, 2008 decision, appellant submitted new to the Office. However, the Board may
not consider this evidence as it may only review evidence that was in the record at the time the Office issued its final
decision. See 20 C.F.R. § 501.2(c).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Little Rock, AR, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-205
Issued: October 5, 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 October 26, 2009 appellant filed a timely appeal of a May 8, 2009 decision of the
Office of Workers’ Compensation Programs denying his claim for compensation and an
August 19, 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 this
case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained an occupational disease in the performance of duty; and (2) whether the Office
properly denied appellant’s request for reconsideration without a merit review.
FACTUAL HISTORY
On July 30, 2007 appellant, then a 54-year-old mail handler, filed an occupational disease
claim alleging that he injured his left wrist due to repetitive heavy lifting in the performance of
duty. He first became aware of his condition on April 19, 2000 and that his employment

activities caused or aggravated his condition in October 2000. Appellant stopped work on
July 13, 2007 and returned intermittently. On April 17, 2008 he stopped work and did not return
as light duty was not available. The employing establishment controverted the claim.
On August 30, 2007 the Office advised appellant of the factual and medical evidence
necessary to establish his claim and allowed him 30 days to submit such evidence.
In a July 23, 2007 statement, appellant noted that lifting and carrying bags weighing
between 80 and 90 pounds for six years caused strain on his wrist and required him to have
surgery to relieve the pain. A May 8, 2000 left wrist x-ray report from Dr. Michael Angela
Rivero, a Board-certified diagnostic radiologist, revealed nonunited scaphoid fracture with
probable proximal segment necrosis. An April 19, 2000 left wrist x-ray report from Dr. Rajesh
Sethi, a Board-certified diagnostic radiologist, found nonunited diagnosis of left scaphoid,
changes of avascular necrosis present in the proximal fracture fragment and a Herbert screw
present in the distal fragment. He noted osteoarthritic changes in the radiocarpal joint and
findings consistent with decreased joint space and marginal osteophytes. Dr. Sethi advised that
disc deformity was present.
On May 12, 2005 Dr. Samuel Berry Thompson, a Board-certified orthopedic surgeon,
noted appellant’s complaint of left wrist pain that appellant related to a 1975 military injury
where he sustained a wrist fracture and underwent a bone graft and screw fixation. Upon
examination, he found that appellant’s wrist was tender over the radial side with prominence
over the area of the scaphoid and scapholunate area dorsally which is very tender. X-rays
performed during examination revealed the left wrist showed scaphoid nonunion, a very short
screw in the distal pole of the scaphoid that did not appear to cross the fracture site, chronic
scaphoid nonunion and ulnar translocation of the wrist with lunate 50 percent uncovered by the
radius, radial styloid scaphoid arthritic changes and changes in the rest of the wrist joint that
represented scaphoid nonunion and advanced collapse pattern. Dr. Thompson recommended
surgery. He noted that appellant appeared to also have carpal tunnel syndrome symptoms.
Dr. Thompson opined that all of these problems related to the original scaphoid fracture and that
appellant currently had sufficient arthritis in his wrist for disability rating purposes.
In a May 25, 2007 left wrist x-ray report, Dr. John Livoni, a Board-certified diagnostic
radiologist, found postsurgical, post-traumatic and degenerative changes. He indicated that the
overall appearance of the wrist was unchanged from an October 26, 2004 x-ray. In a June 6,
2007 report, Dr. Karmen Hopkins, Board-certified in family medicine, noted appellant’s
complaint of left wrist and elbow pain for several years that had become worse. He noted a
history of low back pain, a back injury in 1994 and left wrist degenerative joint disease only in
the winter that was repaired with a bone graft in 1975. An unsigned June 4, 2007 treatment note
indicated that appellant’s current problems included lumbar spine sprain, chronic wrist pain,
chronic back pain, alopecia areata and depression. It further noted that the chronic left wrist pain
had become worse and interfered with appellant’s ability to work. Left wrist pain was
diagnosed. Appellant also submitted a July 17, 2007 hospital discharge summary signed by a
nurse.
On July 17, 2007 Dr. Thompson noted that appellant had been under his care for wrist
fusion and would be off work for three months.

2

In an undated statement, appellant attributed his left wrist condition to lifting overweight
sacks since 2000 for 40 to 60 hours per week. He first noticed his condition in 2000 after
visiting a physician. Appellant indicated that prescribed treatment had not been effective so he
underwent left wrist fusion on July 16, 2007. He noted that he underwent prior orthopedic
surgery in 1975.
In an October 22, 2007 decision, the Office denied appellant’s claim finding that the
medical evidence did not demonstrate that the claimed medical condition was causally related to
the established work-related events.
On November 6, 2007 appellant requested an oral hearing. On August 30, 2008 he
requested reconsideration.1 Appellant indicated his request was based on new evidence and a
legal document not made previously in his request for a schedule award.2 He noted that the
employing establishment hired him on November 7, 1998 knowing that he had a surgically
repaired wrist fracture. Appellant indicated that, after years of working at the employing
establishment, his wrist condition developed further problems. He noted filing numerous safety
complaints about his workstation that went unresponsive. Appellant explained that he needed
additional surgery to eliminate his pain for which he underwent a complete infusion process. He
noted that his treating physician opined that the cause of his condition was more likely than not
attributed to lifting heavy mailbags and was the direct cause for surgery. Appellant noted that
the employing establishment denied his request for light duty after the Office denied his claim.
In a July 14, 2008 x-ray report of the left wrist, Dr. Richard Fitzrandolph, a Boardcertified diagnostic radiologist, identified minor abnormality and found no definitive solid bony
union and evidence of motion around the scaphoid lag screw.
On July 14, 2008 Dr. Pramod Nelluri, a hand surgeon, stated that, according to appellant,
he had a left scaphoid fracture for which he underwent a left scaphoid fixation 30 years prior
while in the military. He noted appellant’s report of lifting heavy mailbags at work whereby he
developed wrist pain and arthritis and underwent left wrist fusion in July 2007. Dr. Nelluri first
evaluated appellant on April 17, 2008, nine months after his wrist fusion. He opined that, based
on the information that appellant presented, his scaphoid fracture was more likely than not the
direct cause of his later need for wrist fusion surgery. Dr. Nelluri further opined that workrelated activities including lifting heavy mailbags more likely than not contributed to wrist pain
and deterioration that served the basis for the need for wrist fusion surgery.
In a May 8, 2009 decision, an Office hearing representative affirmed the October 22,
2007 decision finding insufficient medical evidence to establish causal relationship.
On July 30, 2009 appellant requested reconsideration. He asserted that the Office
erroneously indicated that he had 40 percent service-connected disability for his wrist injury as
1

In a September 22, 2008 letter, the Office notified appellant that it had located his oral hearing request that had
been submitted to the wrong address. In another letter of the same date, it informed appellant that it would proceed
with his timely hearing request. A telephonic hearing was held on February 10, 2009.
2

The Office notified appellant that he could not pursue a schedule award claim for an unaccepted condition.

3

the Department of Veterans Affairs had given him 70 percent disability. Appellant also
indicated that Dr. Nelluri’s knowledge of his condition preceded Dr. Thompson’s knowledge.
He noted that he was submitting a letter from the Postal Workers’ Union providing an overview
of conditions that appellant sustained while awaiting the Office’s decision regarding his claim.
Appellant submitted a July 22, 2009 statement from a union official who noted that
appellant filed a grievance with the employing establishment on November 9, 2007 for the
employing establishment’s failure to provide him with light duty.
In an August 19, 2009 decision, the Office denied appellant’s request for reconsideration
finding the evidence and argument submitted was insufficient to warrant a merit review.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act 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 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.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.4
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.5

3

J.E., 59 ECAB ___ (Docket No. 07-814, issued October 2, 2007); Elaine Pendleton, 40 ECAB 1143 (1989).

4

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Roy L. Humphrey, 57 ECAB 238 (2005).

5

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

4

ANALYSIS -- ISSUE 1
The record supports that appellant’s job as a mail handler required that he frequently lift
bags of mail. However, the medical evidence is insufficient to establish that lifting bags of mail
caused or aggravated his claimed left wrist condition.
In a July 14, 2008 report, Dr. Nelluri indicated that appellant reported undergoing left
scaphoid fixation for a fracture sustained 30 years prior while in the military. Appellant also
reported developing wrist pain and arthritis from lifting heavy mailbags at work. Dr. Nelluri,
who first evaluated appellant on April 17, 2008, opined that, based on the information provided
by appellant, his work activities more likely than not contributed to his wrist pain and
deterioration requiring wrist fusion surgery. Although this general opinion supports causal
relationship, a physician’s opinion must be independent from appellant’s belief regarding causal
relationship.6 Dr. Nelluri did not provide a reasoned opinion explaining the reasons why
appellant’s work duties would have caused or aggravated his diagnosed condition. He did not
note which examination findings supported his opinion on causal relationship. The need for
reasoning or rationale is especially important where appellant has more than a 30-year history of
a significant left wrist condition. Dr. Nelluri’s opinion is of diminished probative value and
insufficient to establish appellant’s claim.
Dr. Thompson’s May 12, 2005 report noted that appellant related his current left wrist
pain to a 1975 wrist fracture military injury. He diagnosed chronic scaphoid nonunion, scaphoid
arthritis, ulnar translocation and carpal tunnel syndrome. Dr. Thompson opined that appellant’s
problems related to his original scaphoid fracture and that his current arthritis was sufficient for
disability purposes. He does not support appellant’s claim as he did not specifically address
appellant’s employment as a cause or aggravator of any diagnosed condition.7 Dr. Thompson’s
July 17, 2007 report also did not address the cause of appellant’s condition and disability.
Similarly, Dr. Hopkins’ report is of limited probative value as it did not address whether
particular employment factors caused or aggravated a diagnosed condition.
The record also contains several x-ray reports of appellant’s left wrist finding nonunited
scaphoid fracture and degenerative joint disease. However, none of these reports address the
issue of causal relationship or discuss whether appellant’s employment activities caused or
aggravated these diagnosed conditions. As noted, medical evidence without an opinion on
causal relationship is of limited probative value.
Additionally, an unsigned June 4, 2007 report diagnosing left wrist pain is of no
probative value as it does not demonstrate that it was from a physician as defined under the Act.8
6

See Earl David Seal, 49 ECAB 152, 155-56 (1997) (a medical opinion is of little probative value where it is
based on appellant’s beliefs concerning the cause of his injuries rather than the doctors independent reasoning).
7

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).
8

See D.D., 57 ECAB 734 (medical reports lacking proper identification do not constitute probative medical
evidence).

5

Similarly, a July 17, 2007 nurse’s report has no probative value as registered nurses and licensed
practical nurses are not “physicians” as defined under the Act.9
For these reasons, the medical evidence is insufficient to establish that appellant’s
employment activities caused his left wrist condition.
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 consists of a statement asserting that the Office
erroneously noted that he received 40 percent disability for his left wrist injury through the
Department of Veterans Affairs. He also asserted that Dr. Nelluri’s knowledge of his condition
preceded Dr. Thompson’s knowledge. However, neither of these assertions satisfies the criteria
necessary to reopen a case for merit review as they do not show that the Office erroneously
applied a specific point of law and they do not advance any new legal arguments.
Although the July 22, 2009 statement from a union official constitutes new evidence, it
does not constitute relevant evidence as it does not address the underlying issue, which is
medical in nature, regarding whether appellant’s employment duties caused his left wrist
condition. The Board has held that evidence that does not address the pertinent issue in a claim
does not warrant a reopening of the case for a merit review.12 Appellant submitted no new
medical evidence addressing the cause of his claimed condition. The Office properly denied a
merit review of the claim as appellant did not meet one of the three regulatory criteria for
reopening his claim for a merit review.
On appeal, appellant asserts that a physician provided medical evidence of causal
relationship based on a specific and accurate history of his employment condition and that the
9

Roy L. Humphrey, 57 ECAB 238 (2005); see 5 U.S.C. § 8101(2) (defining the term “physician”); see also
Charley V.B. Harley, 2 ECAB 208 (1949) (the Board held that medical opinion, in general, can only be given by a
qualified physician).
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).

12

See E.M., 60 ECAB ___ (Docket No. 09-39, issued March 3, 2009) (where the Board held that new evidence
submitted upon a reconsideration request that does not address the pertinent issue is not relevant evidence).

6

physician indicated that being a mail handler exacerbated appellant’s wrist pain resulting in wrist
fusion surgery. As noted, the medical evidence of record is insufficient to meet appellant’s
burden of proof as appellant did not submit a physician’s reasoned opinion explaining the
reasons why appellant’s claimed left wrist condition was caused or aggravated by his
employment. Appellant also asserts that the record shows that the Department of Veterans
Affairs has increased his disability rating since working for the employing establishment.
However, the findings of other government agencies are not determinative of regard to questions
arising under the Act as other statutes have differing standards for determining eligibility for
benefits.13
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an occupational disease in the performance of duty. The Board also finds that the
Office properly denied appellant’s request for reconsideration without a merit review.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated August 19 and May 8, 2009 are affirmed.
Issued: October 5, 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

13

See Andrew Fullman, 57 ECAB 574 (2006); Daniel Deparini, 44 ECAB 657 (1993).

7