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

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Appearances:
Paul Kalker, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1236
Issued: June 18, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On June 1, 2018 appellant, through counsel, timely appealed from a May 2, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.3

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
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the May 2, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence for
the first time on appeal. Id.

ISSUE
The issue is whether OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and entitlement to schedule award benefits, effective May 3, 2018, as he refused an
offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2).
FACTUAL HISTORY
On December 4, 2015 appellant, then a 62-year-old letter/mail carrier, filed an occupational
disease claim (Form CA-2) alleging that he sustained injury due to his federal employment duties.
He indicated that he went to work on November 12, 2015, and presented a note to his supervisor
which indicated that he could not lift or carry heavy items after first becoming aware of his
condition on November 11, 2015. Appellant stopped work on November 12, 2015. In a separate
statement dated December 1, 2015, he alleged that he had neck pain and pain in the left shoulder,
rotator cuff syndrome in the left shoulder, cervicalgia and herniated discs of the cervical spine due
to his federal employment duties.
In a November 11, 2015 report, Dr. David Weissberg, a Board-certified orthopedic
surgeon, noted that appellant had complaints of left shoulder pain. He advised that appellant
repeatedly reached back in his mail truck to get mail and reached into boxes. Dr. Weissberg noted
that by the end of the day, appellant had excruciating pain. He diagnosed rotator cuff syndrome
and cervicalgia. Dr. Weissberg indicated that appellant could work light duties, with limited use
of his upper extremities, and avoiding repetitive motions.
Dr. Weissberg performed an arthroscopy of the left shoulder, synovectomy, chondroplasty
of the glenohumeral joint, arthroscopic subacromial decompression with acromioplasty, and
partial distal claviculectomy on November 23, 2015.
In a December 15, 2015 report, Dr. Paul R. Alongi, a Board-certified orthopedic surgeon,
noted that appellant was under his care for lumbar spondylosis, low back pain, spinal stenosis,
lumbar region, and radiculopathy, lumbar region. He indicated that appellant was unable to work
from December 15, 2015, until further notice.
On June 15, 2016 OWCP accepted appellant’s claim for impingement syndrome of the left
shoulder and bicipital tendinitis of the left shoulder.4 Appellant received wage-loss compensation
and medical benefits, and was placed on the periodic rolls.
The record reflects that appellant had preexisting medical conditions which included: right
knee medial and lateral meniscus arthritis with arthroscopic surgery on February 6, 2012;
degenerative cervical disc disease; cervical radiculitis; left ﬁfth trigger ﬁnger; lumbar spinal
stenosis at L1-2, L2-3, L3-4, and L4-5; and large lumbar disc bulges.
In a December 6, 2016 treatment note, Dr. Weissberg diagnosed sprain of unspeciﬁed
rotator cuff capsule, and other cervical disc displacement. He indicated that appellant was 100
percent disabled and unable to work.

4

The claim was initially denied by decision dated February 9, 2016, but vacated by decision dated June 15, 2016.

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On December 6, 2016 OWCP referred appellant, a statement of accepted facts (SOAF),
and a list of questions for a second opinion evaluation with Dr. Leon Sultan, a Board-certified
orthopedic surgeon. It requested that he assess appellant’s current condition and work capacity,
and provide restrictions, if any, due to the work-related conditions as well as preexisting conditions
In a December 27, 2016 report, Dr. Sultan provided findings based upon a review of the
medical evidence, the SOAF, and an examination of appellant. He determined that appellant was
not capable of performing his regular employment duties for at least another six months. However,
Dr. Sultan indicated that appellant was capable of sedentary work for eight hours per day or light
duty with the avoidance of lifting or carrying more than 20 pounds at a time using both hands, and
avoidance of overhead work activity in regard to his left shoulder. He also noted that appellant
required additional orthopedic attention to follow his progress in regard to his physical therapy to
his left shoulder. Dr. Sultan also indicated that appellant did not require a functional capacity
evaluation or a work-hardening program.
In a January 5, 2017 treatment note, Dr. Weissberg repeated his diagnoses and indicated
that appellant was 100 percent disabled and unable to work.
In a letter dated January 13, 2017, addressed to the employing establishment, OWCP
requested that they provide appellant with a job offer within the restrictions set forth by Dr. Sultan
in his December 27, 2016 report.
In a January 26, 2017 treatment note, Dr. Weissberg repeated his diagnosis and indicated
that appellant was 100 percent disabled and unable to work.
On January 30, 2017 the employing establishment offered appellant a job as a modified
city carrier which was based on the work restrictions of Dr. Sultan. The duties of the position
required appellant to case, sort, and deliver mail. The physical requirements of the position
included casing and sorting for one to eight hours; delivering mail weighing up to 20 pounds, for
one to eight hours; and lifting, pushing, and pulling up to 35 pounds, for one to eight hours.
Appellant refused the offer on February 1, 2017.
On February 7, 2017 OWCP confirmed that the job offer remained available and notified
appellant that he had 30 days to accept the offered position or provide his reasons for refusal. It
informed him that failure to accept suitable work would result in the loss of wage-loss
compensation benefits and entitlement to a schedule award.
In a letter dated March 2, 2017, counsel indicated that appellant was unable to perform the
modified job offer. He explained that the offered position was not sedentary and failed to comply
with the restrictions of OWCP’s referral physician, Dr. Sultan.
In a letter dated March 7, 2017, OWCP explained that additional evidence was needed to
support that appellant was unable to perform the offered suitable employment position.
On March 7, 2017 OWCP received a letter from counsel noting that additional evidence
from Dr. Weissberg and Dr. Alongi supported that appellant remained unable to perform the
modified job offer.

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In a February 28, 2017 report, Dr. Alongi explained the letter carrier duties and noted that
appellant suffered an injury to his left shoulder at work. He noted that appellant had surgery to
the left shoulder and that three days after the shoulder surgery, appellant developed worsening and
severe lower back pain which radiated to his buttocks and down both legs. Dr. Alongi diagnosed
low back pain, lumbar spondylosis, lumbar canal stenosis, and lumbar radiculopathy and explained
that appellant would require ongoing treatment and possibly surgery. He opined that appellant
continued to be disabled from work.
In a March 1, 2017 report, Dr. Weissberg explained that along with his shoulder injury,
which was permanent and prevented him from returning to work as a letter carrier, appellant also
had a lumbar spine condition and developed a severe pain syndrome in his lower extremities
following shoulder surgery. He noted that he disagreed with Dr. Sultan’s findings that appellant
could perform restricted duties. Dr. Weissberg reviewed Dr. Sultan’s findings and opined that
appellant would never be able to return to work as a letter carrier “in any capacity whatsoever.”
He explained that appellant’s medical conditions over the years included problems with his lower
and upper extremities, and upper and lower spinal regions. Dr. Weissberg opined within “a
reasonable degree of medical certainty that the patient is unable to return to work as a postman,
and should go on permanent disability status.” He explained that he was not arguing that appellant
would be unable to work in a sedentary position, but that “with a reasonable degree of medical
certainty that [appellant] is unable to perform his work as a letter carrier.” Dr. Weissberg
continued to treat appellant and opined that he was 100 percent disabled due to bilateral shoulder
pain. He completed a duty status report (Form CA-17) on July 18, 2017, and diagnosed bilateral
shoulder tears. Dr. Weissberg indicated that appellant had clinical findings of “pain” and opined
that he was unable to work.
In a letter dated April 28, 2017, addressed to the employing establishment, OWCP
explained that the modified job offer was not suitable because it did not take into consideration all
of appellant’s conditions, whether work related or not. As such, it explained that the job offer did
not comply with Dr. Sultan’s restrictions. OWCP noted that Dr. Alongi indicated that appellant
suffered from a lumbar spine condition, which also must be considered, as he must be taken as a
whole person when considering an offer of employment.
On June 27, 2017 OWCP prepared an updated SOAF which noted the accepted and
preexisting or subsequently acquired conditions. In a letter dated July 26, 2017, it referred
appellant, the SOAF, and a list of questions for a second opinion evaluation with Dr. David
Benatar, a Board-certified orthopedic surgeon. OWCP requested that he assess appellant’s
ongoing disability and need for continuing treatment and his taking in to consideration all of his
conditions, his capacity for work.5 In a report dated September 1, 2017, Dr. Benatar responded to
the questions from OWCP. He indicated the objective findings “are very obvious.” With regard
to the left shoulder, Dr. Benatar noted appellant’s prior surgery. With regard to the lumbar spine,
he noted two magnetic resonance imaging (MRI) scans showed spinal stenosis. Dr. Benatar
5

In a July 27, 2017 e-mail to the medical consultant responsible for scheduling the second opinion examination,
OWCP asked that the second opinion physician address a possible lumbar spine condition. It inquired into whether
Dr. Benatar would be able to address the questions regarding the spine. OWCP explained that, if he were unable to
do so, then another examination needed to be scheduled, so that the shoulder and lumbar spine conditions were
addressed. In a July 31, 2017 response, the medical consultant confirmed that Dr. Benatar was a spinal specialist and
able to address the updated questions.

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diagnosed the lumbar spine relates to disc degeneration and the left shoulder also appeared “in the
vast majority to be degenerative.” He stated the left shoulder was causally connected to a work
injury based on it being an accepted condition and “the resultant surgical procedure.”
With regard to the lumbar spine, Dr. Benatar indicated that he could not relate the lumbar
complaints to the event of November 11, 2015. He noted the September 2, 2015 MRI scan
predated the work event by two months. Furthermore, Dr. Benatar noted that Dr. Alongi’s
narrative indicated that appellant’s lumbar spine issues went back 10 years to 2005. He indicated
that, “[i]f that is the circumstance, clearly it is not repetitive trauma.” Dr. Benatar also noted the
September 2, 2015 MRI scan “shows stenosis most severe at L3-4” and “based on this, I cannot at
this time establish a causal relationship to the lumbar spine.” He indicated that “further records
would be needed to establish causal relationship to the lumbar spine.”
Dr. Benatar noted that the work-related shoulder condition had not resolved, and “can never
fully resolve.” Therefore, he advised that appellant could not return to full duty as a letter carrier,
but could return to a light-duty position. Dr. Benatar recommended that appellant not engage in
significant over-the-shoulder lifting or carrying of 10 pounds or less; below the shoulder lifting of
more than 20 pounds; carrying for no more than 50 feet; and no climbing or on unprotected heights.
He also prescribed protective limitations for the lumbar spine. Dr. Benatar indicated that staying
in one position too long should be avoided. He also noted that lifting and carrying was already
protected by the left shoulder limitations.
In an attached work capacity evaluation form (OWCP-5c), Dr. Benatar indicated that
appellant had permanent work restrictions, but was capable of working a sedentary position with
significant restrictions including sitting, walking, standing, and reaching for no more than 4 to 6
hours; no more than 30 minutes of reaching above the shoulders; no more than 15 minutes of
bending and stooping; pushing, pulling and lifting of no more than 30 minutes to 1 hour; and no
climbing. He also indicated that appellant had lumbar stenosis and radiculopathy.
On January 26, 2018 the employing establishment offered appellant a job as a modified
city carrier, which was based upon the work restrictions provided by Dr. Benatar. The duties of
the position required appellant to case and sort mail for one to two hours and deliver mail weighing
up to 20 pounds with no climbing and no steps. The position included that appellant deliver to
neighborhood delivery collection box units (NDCBU) and wall units and engage in curbside and
park and loop delivery. The physical requirements for the position were listed as lifting, pushing,
and pulling up to 20 pounds for up to an hour; sitting, walking, and standing for 45 to 60 minutes
continuously from 1 to 6 hours; reaching above the shoulder for no more than 30 minutes; and no
climbing. The job offer also included a provision that it was for up to five hours a day, providing
there was work available within the said restrictions.
Appellant refused the offered position on January 30, 2018. He explained that he was
“medically unable to accept as a result of continuing work related disability.”
In a letter dated January 31, 2018, counsel disputed the employment position was suitable.
He argued that the job duties exceeded those set forth by Dr. Benatar. Counsel further argued that
the position was not a valid position as the job offer indicated that it was for up to five hours a day,
providing there was work available within the said restrictions.

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In a letter dated February 6, 2018, the employing establishment confirmed that, at the most,
they would be able to offer appellant up to five hours a day.
In a letter dated February 9, 2018, the employing establishment requested that OWCP
obtain clarification with regard to the modified job offer, which remained available to appellant.
It was noted that the most that appellant would have to climb would be to “step up onto a curb.”
In a letter dated February 9, 2018, OWCP requested that Dr. Benatar clarify the assigned
work restrictions. It requested specific clarification with regard to his restriction for climbing.
OWCP also provided Dr. Benatar with a copy of the modified city carrier position and requested
his opinion with regard to whether appellant was capable of performing the modified position.6
In a February 23, 2018 clarification report, Dr. Benatar noted that he had not reexamined
appellant since his examination on September 1, 2017. Regarding climbing, he explained that
appellant was unable to go up on a ladder or scaffold at unprotected heights. Dr. Benatar explained
that appellant was able to get out of a car and he was able to go up and down steps. He also
indicated that climbing steep hills was prohibited. Regarding the modified job offer, Dr. Benatar
explained that it seemed to be within appellant’s limitations, but that he was “not an expert at job
evaluations.” He noted the position appeared to be reasonable. Dr. Benatar also noted that this
was based solely upon the left shoulder, not the other noted conditions. He completed an OWCP5c form, which was similar to his September 1, 2017 form and added that steps were “o.k.”
In a letter dated February 28, 2018, OWCP advised appellant that it found the modified
city carry position offered on January 26, 2018, to be suitable as it was in accordance with the
medical restrictions as provided by Dr. Benatar. It noted that the offered position remained
available and afforded him 30 days to accept the offered position or provide his reasons for refusal.
OWCP further advised appellant that, if he refused a suitable work position, he would forfeit any
further compensation for wage loss or entitlement to a schedule award.
In a letter dated March 9, 2018, counsel responded and indicated that appellant was unable
to perform the duties of the offered position. He questioned the report of Dr. Benatar. Counsel
noted that Dr. Benatar had not reexamined appellant, that he only provided orthopedic limitations,
and indicated that he was not an expert with regard to job evaluations. He also argued that
Dr. Benatar clearly limited carrying to a maximum of 20 pounds and for no more than 50 feet.
Counsel argued that this was inconsistent with appellant’s modified carrier duties. He asserted
that the modified carrier position required that appellant case mail for up to two hours and lift up
to 20 pounds for up to one hour, which was inconsistent with appellant’s restrictions. Counsel
also asserted that the job was not a firm offer, as it was only available for up to five hours a day,
and provided there was work within appellant’s restrictions.
In a letter dated April 13, 2018, OWCP advised appellant that he had 15 days to accept the
position or his compensation would be terminated. It noted that they had received notice that his
refusal to accept the job offer continued. OWCP explained that they had reviewed his stated
reasons for refusal of the position and that they did not consider them valid. It further explained
that they had not received medical evidence from the treating physician establishing that the
6

The letter to Dr. Benatar contained the name of another individual, which appears to be a scrivener’s error.

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modified carrier position was unsuitable. OWCP afforded appellant an additional 15 days to
accept the job offer. It explained that, if appellant did not accept and report to the position during
the allotted period, his entitlement to wage-loss compensation and schedule award benefits would
be terminated.
In a memorandum of telephone call dated April 27, 2018, OWCP confirmed that the job
was still available and that appellant had not returned to work.
By decision dated May 2, 2018, OWCP found that appellant had refused suitable work. It
terminated his wage loss and schedule award effective May 3, 2018 pursuant to 5 U.S.C.
§ 8106(c)(2).
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.7 After it has determined that an employee has a disability
causally related to his or her federal employment, it may not terminate compensation without
establishing that the disability has ceased or that it is no longer related to the employment.8 Section
8106(c) of FECA9 provides that a partially disabled employee who refuses or neglects to work
after suitable work is offered to, procured by, or secured for the employee is not entitled to
compensation.
Section 10.517 of the applicable regulations10 further provides that an employee who
refuses or neglects to work after suitable work has been offered or secured for the employee, has
the burden of proof to show that such refusal or failure to work was reasonable or justified, and
shall be provided with the opportunity to make such showing before a determination is made with
respect to termination of entitlement to compensation.
To justify termination of compensation, OWCP must show that the work offered was
suitable and must inform appellant of the consequences of refusal to accept such employment. 11
Section 8106(c) will be narrowly construed as it serves as a penalty provision, which may bar an
employee’s entitlement to compensation based on a refusal to accept a suitable offer of
employment.12

7

L.L., Docket No. 17-1247 (issued April 12, 2018); Mohamed Yunis, 42 ECAB 325, 334 (1991).

8

G.R., Docket No. 16-0455 (issued December 13, 2016).

9

5 U.S.C. § 8106(c)(2).

10

20 C.F.R. § 10.517(a).

11

L.L., supra note 7; Arthur C. Reck, 47 ECAB 339, 341-42 (1995).

12

L.L., supra note 7.

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According to OWCP’s procedures, a job offer must be in writing and contain a description
of the duties to be performed and the specific physical requirements of the position.13 Its
regulations provide factors to be considered in determining what constitutes suitable work for a
particular disabled employee, including the employee’s current physical limitations, whether the
work is available within the employee’s demonstrated commuting area, the employee’s
qualifications to perform such work, and other relevant factors.14 The issue of whether an
employee has the physical ability to perform a modified position offered by the employing
establishment is primarily a medical question that must be resolved by medical evidence. All
impairments, whether work related or not, must be considered in assessing the suitability of an
offered position.15
ANALYSIS
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and entitlement to schedule award compensation benefits, effective May 3,
2018, as he refused an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2).
OWCP accepted that appellant sustained impingement syndrome of the left shoulder and
bicipital tendinitis of the left shoulder. It also authorized arthroscopic surgery of the left shoulder
to include synovectomy, chondroplasty of the glenohumeral joint, arthroscopic subacromial
decompression with acromioplasty, and partial distal claviculectomy, which occurred on
November 23, 2015.
The Board finds that OWCP failed to establish that appellant was capable of performing
the position of a modified city carrier, given his other medical conditions including: right knee
medial and lateral meniscus arthritis which had required arthroscopic surgery on February 6, 2012;
degenerative cervical disc disease; cervical radiculitis; left ﬁfth trigger ﬁnger; lumbar spinal
stenosis at L1-2, L2-3, L3-4 and L4-5; and large lumbar disc bulges.16
In terminating benefit entitlement OWCP relied on the second opinion report of
Dr. Benatar, who provided work restrictions solely based on appellant’s accepted left shoulder
conditions. He opined that those conditions had resolved.
Dr. Benatar addressed appellant’s lumbar conditions and suggested that the lumbar
condition was preexisting. He found complaints consistent with radiculopathy. While he advised
that the restrictions for the shoulder would also protect appellant with regard to the lumbar spine,
as he had provided lifting and carrying restrictions, the Board finds that it is unclear how
Dr. Benatar could form this conclusion without the records pertaining to appellant’s lumbar spine

13

L.L., supra note 7; T.S., 59 ECAB 490 (2008); Ronald M. Jones, 52 ECAB 190 (2000).

14

L.L., supra note 7; J.J., Docket No. 17-0410 (issued June 20, 2017); Rebecca L. Eckert, 54 ECAB 183 (2002).

15

Id.

16

See S.Y., Docket No. 17-1032 (issued November 21, 2017); D.H., Docket No. 17-1014 (issued October 3, 2017).

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conditions. The Board also finds that appellant also had preexisting knee conditions and they were
not addressed.
The issue of whether a claimant is able to perform the duties of the offered employment
position is a medical one and must be resolved by probative medical evidence.17 While OWCP
found that Dr. Benatar’s opinion contained sufficient medical rationale to support that appellant
could perform the physical duties contained in the offered position,18 the Board finds his opinion
lacks sufficient rationale to meet OWCP’s burden of proof. OWCP did not secure a medical report
that reviewed the job offer and provided a reasoned opinion as to its suitability for appellant
considering all existing and relevant conditions.19 The medical evidence of record, therefore, fails
to establish that the offered position was suitable.
As a penalty provision, section 8106(c)(2) of FECA must be narrowly construed.20 Based
on the evidence of record, the Board finds that OWCP improperly determined that the modified
position offered to appellant constituted suitable work within his physical limitations and
capabilities. Consequently, OWCP has not met its burden of proof to justify the termination of his
compensation benefits and entitlement to a schedule award.
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s
entitlement to wage-loss compensation and schedule award compensation benefits, effective
May 3, 2018, as he refused an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2).

17

F.B., Docket No. 17-0216 (issued February 13, 2018); Gayle Harris, 52 ECAB 319 (2001).

18

F.B., id.; Maurissa Mack, 50 ECAB 498 (1999).

19

See S.Y., Docket No. 17-1032 (issued November 21, 2017).

20

D.H., Docket No. 17-1014 (issued October 3, 2017).

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ORDER
IT IS HEREBY ORDERED THAT the May 2, 2018 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: June 18, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
DEPARTMENT OF THE ARMY, ANDREW
RADER U.S. ARMY HEALTH CLINIC,
Fort Myer, VA, Employer
__________________________________________

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

Docket No. 19-0047
Issued: April 16, 2019

Case Submitted on the Record

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

JURISDICTION
On October 9, 2018 appellant filed a timely appeal from a May 23, 2018 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 has met her burden of proof to establish an occupational
disease causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On April 21, 2017 appellant, then a 35-year-old medical support assistant, filed an
occupational disease claim (Form CA-2) alleging that she sustained a medical condition causally
1

5 U.S.C. § 8101 et seq.

related to factors of her federal employment. She first became aware of her condition on
December 22, 2011 and first attributed it to her federal employment duties on October 1, 2013.
On the reverse side of the claim form the employing establishment advised that appellant had
previously worked as a pharmacy technician. Appellant subsequently began working as a medical
support technician due to back and neck injuries.
In an undated statement received by OWCP on July 3, 2017, appellant related that she had
sustained a prior employment injury, assigned OWCP File No. xxxxxx511. When she resumed
work after this injury, she had experienced pain in her low back, bilateral shoulders, and neck,
swelling in her bilateral legs, ankles, and feet, and high blood pressure. Appellant attributed her
conditions to extensive standing, reaching, bending, and using a high chair without support for her
back or feet while performing her job duties. She related that she had initially filed a notice of
recurrence of disability, but a supervisor had instructed her to file an occupational disease claim.
A notification of personnel action (SF-50) indicated that appellant’s position changed from
pharmacy technician to medical support assistant effective January 26, 2014. The form indicated
that she had requested the action taken.
On October 1, 2013 a physician assistant treated appellant at the emergency department for
neck, back, and ankle pain.
In a report dated November 21, 2014, Dr. Joshua A. Thomas, an osteopath, related that
appellant had sustained an injury to her back and neck on December 22, 2010 after a stool that she
was sitting on had slipped. He found that she required work restrictions. In a report dated
August 31, 2016, Dr. Thomas again found that appellant required work restrictions due to a
December 22, 2010 employment injury.
In a development letter dated July 6, 2017, OWCP advised appellant that the evidence was
insufficient to establish that she had provided timely notification of injury, actually experienced
the alleged employment factor, or sustained a diagnosed condition due to an employment activity.
It notified her of the type of additional evidence needed, including a detailed factual statement
describing the activities that she believed contributed to her condition and a report from her
attending physician addressing the causal relationship between any diagnosed condition and
factors of her federal employment. OWCP afforded appellant 30 days to submit the requested
evidence. No response was received.
By decision dated September 21, 2017, OWCP denied appellant’s claim as she had failed
to submit sufficient factual evidence to establish the occurrence of the events she described. It
noted that she had failed to provide medical evidence establishing a diagnosed condition due to
her employment. OWCP also noted that appellant had initially filed a notice of recurrence
claiming disability under OWCP File No. xxxxxx511 on April 28, 2016 and thus, determined that
she had filed an original claim form within three years from January 25, 2014, the date of last work
exposure as a pharmacy technician.
Appellant, on October 1, 2017, requested a telephonic hearing before an OWCP hearing
representative.

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A telephonic hearing, was held on March 9, 2018, where appellant related that she worked
in the position of medical support assistant at the time she filed her occupational disease claim, but
that her initial injury had been aggravated while she was working in the pharmacy. She advised
that the position required long periods of sitting and repetitively getting up to assist patients.
Appellant indicated that she had previously filed a claim, assigned OWCP File No. xxxxxx511,
for an injury that had occurred when a stool collapsed and she had fallen to the floor. She began
working as a medical support assistant as an accommodation. Appellant asserted that sitting for
extended periods caused poor circulation and nerve pain, that answering the telephone caused neck
tension, and that getting up and down helping patients with paperwork had caused increased pain,
tingling, headaches, and stiffness. The hearing representative informed her that OWCP had not
administratively combined her claims and advised that she needed to submit medical evidence
addressing whether she sustained a diagnosed condition due to the identified work duties. In a
report dated March 26, 2018, Dr. Thomas related that he had begun treating appellant in
October 2013 for low back and neck pain after a stool that she had been sitting on slipped. He
diagnosed cervical disc disorder at C5-6 with radiculopathy, myalgia, lumbar spondylolisthesis,
right shoulder impingement, and sacroiliitis. Dr. Thomas related, “[Appellant’s] work does
require long periods of sitting, constant getting up and down from a chair in a short time frame,
[and] constant use of [the] [tele]phone which aggravates the pain in her neck and shoulders.” He
advised that she required modified duty.
By decision dated May 23, 2018, OWCP’s hearing representative affirmed the
September 21, 2017 decision. She found that appellant had established the occurrence of the
identified work factors, but that the medical evidence was insufficient to establish that she had
sustained a diagnosed condition causally related to the accepted factors of her federal employment.
The hearing representative noted that OWCP had accepted lumbar sprain and neck sprain under
OWCP File No. xxxxxx511.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was 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.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
In an occupational disease claim, appellant’s burden requires submission of the following:
(1) a factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition; (2) medical evidence establishing the presence
or existence of the disease or condition for which compensation is claimed; and (3) medical
2

5 U.S.C. § 8101 et seq.

3

M.S., Docket No. 18-1280 (issued March 12, 2019).

4

S.C., Docket No. 18-1242 (issued March 13, 2019).

3

evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.5
The medical evidence required to establish causal relationship is rationalized medical
opinion evidence. The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable 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.6
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish an occupational
disease causally related to the accepted factors of her federal employment.
Appellant submitted an October 1, 2013 report from a physician assistant, who treated her
at the emergency department for neck, back, and ankle pain. However, this report has no probative
value as a physician assistant is not considered a physician as defined under FECA.7
In 2014 and 2016 reports, Dr. Thomas advised that appellant required work restrictions due
to a December 22, 2010 employment injury. As Dr. Thomas did not opine whether she had
sustained a diagnosed condition causally related to the accepted employment factors, his opinion
is insufficient to meet her burden of proof.8
In a report dated March 26, 2018, Dr. Thomas noted that appellant had experienced neck
and back pain after a stool that she had been sitting on slipped. He diagnosed cervical disc disorder
at C5-6 with radiculopathy, myalgia, lumbar spondylolisthesis, right shoulder impingement, and
sacroiliitis. Dr. Thomas found that appellant’s employment duties, including extensive sitting,
repeatedly getting up and down from a chair, and using the telephone, had aggravated her neck
and shoulder pain. He did not, however, attribute a specific condition to the accepted employment
duties or provide rationale for his causation finding. Medical conclusions unsupported by rationale
are of little probative value.9 Additionally, Dr. Thomas diagnosed increased pain due to
appellant’s employment duties, but a diagnosis of pain does not constitute the basis for the payment
of compensation under FECA as pain is considered a symptom rather than a diagnosis.10

5

P.D., Docket No. 17-1885 (issued September 17, 2018).

6

R.P., Docket No. 17-1914 (issued November 27, 2018).

7
5 U.S.C. § 8101(2) (this subsection defines a physician as surgeons, podiatrists, dentist, clinical psychologists,
optometrist, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law); see
also K.S., Docket No. 18-0954 (issued February 26, 2019).
8

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

9

See T.A., Docket No. 18-0431 (issued November 7, 2018).

10

T.T., Docket No. 17-0681 (issued March 13, 2018).

4

On appeal appellant notes that she submitted a report from her attending physician,
Dr. Thomas. As discussed, however, his report is insufficiently reasoned to establish causation
between a diagnosed condition and the accepted employment factors. As appellant has not
submitted rationalized medical evidence, the Board finds that she has not met her burden of proof
to establish an occupational disease claim.11
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 her burden of proof to establish an occupational
disease causally related to the accepted factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the May 23, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 16, 2019
Washington, DC

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

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

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

11

P.D., supra note 5.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.L., Appellant
and
DEPARTMENT OF THE AIR FORCE,
EDWARDS AIR FORCE BASE, CA, Employer
__________________________________________

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

Docket No. 18-0125
Issued: May 17, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 23, 2017 appellant filed a timely appeal from a May 11, 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 to
consider the merits of the case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a traumatic injury
causally related to the accepted March 18, 2017 employment incident.
FACTUAL HISTORY
On March 27, 2017 appellant, then a 51-year-old aircraft mechanic, filed a traumatic injury
claim (Form CA-1) alleging that on March 18, 2017 he sustained a back sprain or strain resulting
from lifting a manifold from a crate with a coworker. He explained that, after the manifold cleared
1

5 U.S.C. § 8101 et seq.

the crate, his coworker lowered it to the ground without notifying him and that the weight forced
his back to bend. Appellant stopped work on March 18, 2017 and returned on March 27, 2017.
In support of his claim, appellant submitted spine x-rays from Dr. Ambarish Bhat, a
radiologist, which provided “no evidence of acute injury in lumbosacral spine.” He also provided
a form report from Lamin Seisay, a physician assistant, dated March 18, 2017.
In an April 5, 2017 development letter, OWCP requested additional factual and medical
evidence in support of appellant’s traumatic injury claim. It notified him that nurse practitioners
and physician assistants were not considered qualified physicians under FECA. OWCP afforded
appellant 30 days for a response.
Appellant subsequently provided an undated work release form signed by Debra Ford, a
registered nurse.
By decision dated May 11, 2017, OWCP accepted that the March 18, 2017 employment
incident occurred as alleged, but denied appellant’s claim as he had not submitted any medical
evidence containing a medical diagnosis in connection with the accepted employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation of FECA, that an injury was sustained 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. These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. Second, the employee must submit medical evidence to
establish that the employment incident caused a personal injury.4
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical

2

Id.

3

A.D., Docket No. 17-1855 (issued February 26, 2018); Gary J. Watling, 52 ECAB 357 (2001).

4

A.D., id.; T.H., 59 ECAB 388 (2008).

2

rationale explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.5
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a traumatic
injury causally related to the accepted March 18, 2017 employment incident.
It is undisputed that on March 18, 2017 appellant, with a coworker, was lifting a manifold
which his coworker unexpectedly lowered to the ground. However, the Board finds that he failed
to submit sufficient medical evidence to establish that this work incident caused or aggravated his
back condition.6
Appellant submitted a report from a physician assistant dated March 18, 2017 and an
undated report from a registered nurse. However, the Board has held that reports by a physician
assistant and a registered nurse are not considered medical evidence as those health care providers
are not considered physicians under FECA.7
Appellant has provided no medical evidence, from a physician, diagnosing a condition as
the result of his March 18, 2017 employment incident and has, therefore, failed to meet his burden
of proof to establish a traumatic injury claim.8
An award of compensation may not be based on surmise, conjecture, speculation, or on the
employee’s own belief of causal relation.9 Appellant’s honest belief that the April 4, 2014
employment incident caused his medical conditions is not in question, but that belief, however
sincerely held, does not constitute the medical evidence to establish causal relationship.10
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.

5

A.D., supra note 3; I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

6

M.E., Docket No. 17-1857 (issued February 2, 2018).

7

See K.E., Docket No. 17-1216 (issued February 22, 2018); M.M., Docket No. 17-1641 (issued February 15, 2018);
David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses and physical
therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection defines a
physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic
practitioners within the scope of their practice as defined by state law).
8

O.R., Docket No. 17-1735 (issued January 2, 2018).

9

G.E., Docket No. 17-1719 (issued February 6, 2018); D.D., 57 ECAB 734 (2006).

10

G.E, id.; H.H., Docket No. 16-0897 (issued September 21, 2016).

3

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a traumatic
injury causally related to the accepted March 18, 2017 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the May 11, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 17, 2018
Washington, DC

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

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

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

4


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

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

Docket No. 15-1445
Issued: November 23, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 24, 2015 appellant filed a timely appeal from a December 31, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last OWCP merit decision of May 16, 2013 to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for further merit review
of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board. By decision dated May 20, 2014, the
Board affirmed OWCP’s May 16, 2013 decision which found that the evidence of record failed
1

5 U.S.C. § 8101 et seq.

to establish total disability due to appellant’s accepted conditions of bilateral plantar fasciitis and
heel spurs.2 The facts of the case, as set out in the Board’s prior decision, are incorporated
herein by reference.
On August 28, 1998 appellant, then a 40-year-old data collection technician, filed an
occupational disease claim (Form CA-2) alleging a bilateral foot condition due to factors of her
federal employment.
She had been employed as a data collection technician since
October 1, 1983. In May 1999, appellant was officially reassigned to a distribution clerk
position. The employing establishment provided her modified work and she continued to work
in the distribution clerk position until February 11, 2000, when she stopped work for
nonwork-related surgery.
On May 31, 2000 appellant resigned from the employing
establishment. In July 2002, OWCP accepted her 1998 claim for bilateral plantar fasciitis and
heel spurs. By decision dated November 18, 2002, it granted appellant a schedule award for 19
percent permanent impairment of each lower extremity, which was paid for 109.44 weeks over
the period August 19, 2002 to September 23, 2004.
On June 27, 2006 appellant filed a Form CA-7 claiming wage-loss compensation for the
period September 24, 2004 through June 27, 2006. In a July 12, 2006 letter, the employing
establishment stated that she retired on May 31, 2000 and her resignation was not related to her
on-the-job injury. It advised that it had accommodated appellant during her February 2000
surgery. The employing establishment also noted that, while her physician had provided work
restrictions on August 19, 2002, no job offer was made as appellant had resigned her
employment.
By decision dated November 15, 2006, OWCP denied appellant’s claim for
compensation commencing September 24, 2004 as the evidence of record failed to establish total
disability due to the accepted conditions under this case. Appellant requested reconsideration
several times. In decisions dated May 30 and November 5, 2007, January 8 and July 28, 2009,
September 7, 2010, November 21, 2011, March 21 and December 19, 2012 and May 16, 2013,
OWCP denied modification of its prior decisions.
The Board affirmed OWCP’s May 16, 2013 decision on May 20, 2014. The Board found
that appellant had not established a recurrence of total disability as of September 24, 2004, due to
her accepted employment conditions. The Board noted that she was performing light duty as of
the date that she resigned her employment, that appellant had not established a change in the
nature and extent of her injury-related conditions, and she had not established a change in the
nature and extent of the limited light-duty requirements. Finally, the Board explained that as she
had resigned her employment in May 2000, OWCP was not obligated to offer her a position in
2004.
Following the Board’s May 20, 2014 decision, OWCP received a November 24, 2014
letter from appellant on December 1, 2014 requesting reconsideration. Evidence received in
support of the reconsideration request included duplicative medical evidence dated January 7,
1998, May 12 and September 22, 1999, May 30, 2000, June 26, 2002, and December 15, 2004.
2

Docket No. 14-233 (issued May 20, 2014).

2

Other evidence, previously of record, was also received. This included: intra-office
correspondence dated November 29, 1979, a June 29, 1999 Equal Employment Opportunity
Agreement, an October 14, 1998 light-duty job offer, an April 22, 1999 request for light duty; a
May 8, 1999 reassignment paperwork, May 13, 1999 letter, July 29, 1999 temporary light-duty
job offer, August 23, 1999 letter regarding leave grievance, November 14, 2001 letter from
OWCP, June 28, 2002 memorandum from the employing establishment responding to hearing
transcript, an October 6, 2004 Form EN1032, a July 12, 2005 letter regarding shoes, and a
July 12, 2005 letter from Randy Wilson.
Additional evidence submitted included: intra-office correspondence dated August 30,
1995, July 10, August 4 and 22, November 5 and 8, 1997, January 23, June 17, September 10
and October 1, 1998; leave slips dated June 23, 1989, July 30, 1997, June 1 and October 14,
1999; a May 26, 1999 job ID printout; a September 9, 1999 light-duty job form; an October 9,
1999 reassignment document; copies of paycheck stubs with notes indicating that she worked
overtime, used leave, and was reprimanded; an April 14, 1999 police report regarding a break-in
at her house; a November 20, 1999 position reassignment history; a December 16, 2004 letter
from the Office of Personnel Management; a November 15, 2006 record of telephone call to
Randy Wilson, with a note stating that the downgrade from level 6 to level 5 needed to be
compensated; an April 21, 2008 position description for distribution clerk with a note indicating
she was unable to do the job as it was too strenuous; a September 8, 2009 position description for
data conversion operator; and a March 6, 2013 e-mail from American Postal Workers Union
discussing the data conversion and keyer titles.
In an October 9, 2014 statement, appellant requested claim expansion to include the low
back and neuropathy. She stated that she had resigned from her employment because her work
schedule and the nonchallenging job resulted in stress. Appellant contended that the modified
position did not pay what she was earning when she was injured and did not conform to her
restrictions. She alleged that she had back issues and that wearing closed toe shoes caused
chronic pain. Appellant stated that the employing establishment requested that she come back to
work in June 2000 per USPS form letter dated June 12, 2000. She mentioned numerous
personnel problems and allegations of a hostile work environment. Appellant demanded answers
to questions she had raised regarding her previous position and disputed findings made in prior
decisions. She also faulted OWCP for not offering her an open election and for implying
entitlement to future OWCP benefits when she received a Form EN1032 in October 2004
erroneously. In two other statements, appellant discussed that she did not have a large enough
locker at the employing establishment, she had encountered a hostile work environment, and had
other problems with her light-duty job. She argued that the excessive use of leave proved her
case “from a Social Security standpoint.”

3

By decision dated December 31, 2014, OWCP denied reconsideration of the March 26,
2014 decision3 without reviewing the merits of the case.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.5
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a
claimant also must file his or her application for review within one year of the date of that
decision.6 However, a right to reconsideration within one year accompanies any subsequent
merit decision on the issues. This includes any hearing or review of the written record decision,
any denial of modification following reconsideration, any merit decision by the Board, and any
merit decision following action by the Board.7
If the request is timely but fails to meet at least one of the requirements for
reconsideration, OWCP will deny the request for reconsideration without reopening the case for
review on the merits.8
ANALYSIS
On December 1, 2014 OWCP received appellant’s November 24, 2014 request for
reconsideration. To be entitled to a merit review of OWCP’s decision denying or terminating a
benefit, a claimant’s application for review must be received within one year of the date of that
decision.9 The Board has held, however, that OWCP procedures10 should be interpreted to mean
3

This case does not contain a March 26, 2014 decision. Such decision is contained in appellant’s claim number
xxxxxx454. Under claim number xxxxxx454, appellant had filed a traumatic injury claim on August 21, 2001
alleging a back injury. By decision dated January 7, 2005, the Board affirmed OWCP’s decision dated October 17,
2003 which found appellant had failed to meet her burden of proof to establish that her back condition was caused or
aggravated in the performance of duty and OWCP’s May 4, 2004 decision which declined to reopen appellant’s
claim for consideration of the merits. Docket No. 04-1608 (issued January 7, 2005). In a March 26, 2014 decision,
the Board found OWCP properly denied appellant’s March 1, 2013 reconsideration request finding it was untimely
filed and failed to establish clear evidence of error. Docket No. 13-1681 (issued March 26, 2014).
4

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

20 C.F.R. § 10.606(b)(3).

6

Id. at § 10.607(a).

7

D.G., 59 ECAB 455 (2008); see also C.J., Docket No. 12-1570 (issued January 16, 2013).

8

20 C.F.R. 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

9

Supra note 6.

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(a) (October 2011).

4

that a right to reconsideration within one year accompanies any subsequent merit decision on the
issues, including any merit decision by the Board.11 As the Board’s May 20, 2014 decision was
the last merit decision of record and the November 24, 2014 request for reconsideration was
received on December 1, 2014, within one-calendar year of the last merit decision, appellant’s
request was timely. The question for determination is whether her request met at least one of the
three standards for obtaining a merit review of her case.
The Board finds that appellant has not shown that OWCP erroneously applied or
interpreted a specific point of law, has not advanced a relevant legal argument not previously
considered by OWCP, and has not submitted relevant and pertinent new evidence not previously
considered by OWCP.
By decision dated May 20, 2014, the Board found appellant had not met her burden of
proof to establish a recurrence of total disability commencing September 24, 2004 causally
related to her accepted conditions of bilateral plantar fasciitis and heel spurs. Appellant
submitted numerous pieces of duplicative medical evidence and other evidentiary material
previously considered. The Board has found that the submission of evidence which repeats or
duplicates evidence already in the case record does not constitute a basis for reopening a case.12
The new evidence consists of arguments and evidence which are irrelevant and
immaterial to the issue of recurrence of total disability, due to the accepted conditions in this
case. The arguments, questions, and allegations raised by appellant concerning position
reassignment, compensation for downgrading, personnel problems, allegations of a hostile work
environment, and questions related to the job from which she resigned are outside the scope of
the recurrence claim which alleged disability as of September 24, 2004. The Board therefore
finds that the arguments and evidence submitted to support appellant’s reconsideration request
do not constitute relevant and pertinent new evidence. As the Board explained in its prior
decision, the evidence of record establishes that appellant resigned from her employment on
May 31, 2000 after nonwork-related surgery. It is appellant’s burden of proof to establish that
she was totally disabled as of September 24, 2004 due to her accepted work-related conditions.
None of the new evidence appellant submitted in support of her request for reconsideration
addresses this narrow issue.
Appellant did not establish that OWCP erroneously applied or interpreted a specific point
of law. She did not advance a relevant legal argument not previously considered by OWCP and
she did not submit relevant and pertinent new evidence not previously considered by OWCP.
On appeal, appellant presented arguments that her light duty, temporary or modified-duty
position was not suitable work. She asserted it violated her restrictions and she was forced to
work overtime and that these were changes in the nature of the light-duty job. However, the
Board does not have jurisdiction over the merits of the claim on the present appeal.

11

See Mary E. Schipske, 43 ECAB 318 (1991); see also John W. O'Connor, 42 ECAB 797 (1991).

12

E.M., Docket No. 09-39 (issued March 3, 2009); D.K., 59 ECAB 141 (2007).

5

Accordingly, as appellant’s reconsideration request did not meet any of the requirements
for reopening her case, the Board finds that OWCP properly denied a merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for merit review under
5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the December 31, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 23, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket No. 15-1832
Issued: February 11, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 8, 2015 appellant filed a timely appeal of an April 17, 2015 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 has more than two percent permanent impairment of her
left upper extremity.
FACTUAL HISTORY
Appellant, a 46-year-old letter carrier, experienced pain, tingling, and numbness in her left
shoulder, both arms and fingers while delivering mail on May 7, 2012. OWCP accepted the claim
for left shoulder sprain/strain and cervical herniated disc at C6-7.
1

5 U.S.C. § 8101 et seq.

In a report dated May 21, 2012, Dr. Gregory H. Lee, Board-certified in orthopedic surgery,
diagnosed cervical spine radiculopathy. In a June 8, 2012 report, he noted that appellant had
complaints of pain running down the left upper extremity. Dr. Lee reiterated his diagnosis of
cervical spine radiculopathy and recommended that she undergo a magnetic resonance imaging
(MRI) scan of the cervical spine to evaluate for nerve root impingement or disc herniation.
A June 19, 2012 report indicated that appellant underwent a cervical MRI scan. The report
showed multi-level degenerative changes, most severe at C6-7, where disc-osteophyte complex
was noted with superimposed disc protrusion.
On January 9, 2013 appellant underwent an authorized surgical fusion and discectomy
procedure at the C5-6 and C6-7 levels. The procedure was undertaken to ameliorate cervical
degenerative disc disease, spinal stenosis conditions, and herniated discs at the C5-6 and C6-7
levels.
On February 21, 2014 appellant filed a claim for schedule award (Form CA-7) based on a
permanent impairment of her left upper extremity.
In a May 1, 2014 report, Dr. Plas T. James, an orthopedic surgeon, found that appellant had
15 percent whole person impairment stemming from her cervical degenerative disc disease and
spinal stenosis conditions, pursuant to the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides) (sixth edition).
In a May 15, 2014 report, an OWCP medical adviser noted that the January 9, 2013
cervical discectomy and fusion procedure had yielded good results with no radiculopathy. He
advised that appellant had left shoulder impingement syndrome, which had been treated
nonoperatively and did not warrant an impairment rating under the A.M.A., Guides.
By decision dated May 29, 2014, OWCP denied appellant’s request for a schedule award,
finding that she had not sustained any permanent impairment to a scheduled member of her body
causally related to her accepted left shoulder sprain and herniated discs at C6-7.
On July 18, 2014 appellant requested reconsideration of the May 29, 2014 decision.
In an August 25, 2014 report, Dr. James noted that during his initial history and physical
examination, appellant presented with upper extremity weakness, decreased range of motion of the
cervical spine, decreased deep tendon reflexes, a positive Spurling sign, and decreased pinprick
sensation of the left arm in multiple areas. He diagnosed C3-7 multifactorial spinal stenosis,
herniated disc, and disc-osteophyte complexes, in addition to ongoing radiculopathy. Dr. James
advised that, because appellant was initially treated conservatively without any success, she
underwent a C5-7 anterior cervical discectomy and fusion in January 2013. He reported that after
she began taking topical NSAIDS and undergoing physical therapy she was ultimately released to
begin work activities. Dr. James calculated 15 percent permanent impairment rating for the neck,
shoulders, arms, and hands by using the A.M.A., Guides Newsletter “Rating Spinal Nerve
Extremity Impairment using the sixth edition” (July/August 2009). He noted that he based this
rating on appellant’s herniated discs at the C5-6 and C6-7 levels, cervical degenerative disc
disease, and spinal stenosis conditions, which resulted in her January 9, 2013 surgical fusion and

2

discectomy procedure at the C5-6 and C6-7 levels. Dr. James did not explain, however, how he
specifically rated appellant’s shoulder, arm, or hand impairments pursuant to the A.M.A., Guides.
In order to determine whether appellant had any permanent impairment stemming from her
accepted left shoulder strain and cervical herniated discs at C6-7 conditions, OWCP referred her to
Dr. Alexander N. Doman, Board-certified in orthopedic surgery, for a second opinion examination
and impairment evaluation. In a report dated November 6, 2014, Dr. Doman diagnosed left
shoulder rotator cuff residual tendinitis, in addition to mild subjective sensory radiculopathy of the
left upper extremity following anterior cervical fusion. He reported that appellant had complaints
of tingling in her fingers and pain in her left shoulder with overhead activities. Dr. Doman took
x-rays of the cervical spine which showed solid anterior cervical fusion of C5 through C7 with
plate fixation. Appellant also underwent x-ray examination of the left shoulder, the results of
which were normal with no degenerative changes. In addition, Dr. Doman conducted nerve
conduction velocity studies of the left upper extremity involving the ulnar nerve and median nerve.
The results of these tests were normal.
Dr. Doman calculated one percent upper extremity impairment for the left shoulder by
rating a class 1 impairment for rotator cuff tendinitis at Table 15-5, page 402 of the A.M.A.,
Guides, the shoulder regional grid for rating upper extremity impairments. He found that appellant
had a grade B impairment which corresponded to one percent impairment rating, for a history of
painful injury to the left shoulder without consistent objective findings; i.e., objective residual loss
of function. Dr. Doman rated one percent impairment for radiculopathy based on her sensory
complaints of paresthesias in the left upper extremity involving the fingers of her left hand. He
relied on Table 1 of the July and August 2009 The Guides Newsletter, finding that appellant had a
class 1 impairment for a mild sensory deficit at C6, which yielded a default grade C. Dr. Doman
found that appellant had no objective motor impairment. He opined, however, that her subjective
sensory complaints of the left upper extremity were consistent and represented a mild sensory
deficit which corresponded to one percent impairment rating at Table 1. Dr. Doman combined this
rating with the one percent impairment for rotator cuff tendinitis for a total left upper extremity
impairment rating of two percent.
In a November 13, 2014 report, an OWCP medical adviser concurred with Dr. Doman’s
findings and his rating of two percent left upper extremity impairment.
By decision dated November 17, 2014, OWCP vacated the May 29, 2014 decision and
found, based on Dr. Doman’s October 23, 2014 report, that appellant was entitled to a schedule
award for two percent permanent left upper extremity.
By decision dated November 19, 2014, OWCP granted appellant a schedule award for
two percent permanent impairment of the left upper extremity for the period October 23 to
December 5, 2014, for a total of 6.24 weeks of compensation.
In a January 20, 2015 report, Dr. James essentially reiterated his previous findings and
conclusions, including his previously submitted 15 percent left upper extremity permanent
impairment rating.

3

On January 29, 2015 appellant requested reconsideration of the November 19, 2014
decision.
In a February 11, 2015 report, an OWCP medical adviser reviewed Dr. James’
January 20, 2015 report and found that it did not provide a basis for an impairment rating greater
than the two percent already awarded. The medical adviser noted that Dr. James did not provide
a rating in conformance with the sixth edition of the A.M.A., Guides.
By decision dated April 17, 2015, OWCP denied modification of the November 19, 2014
decision.
LEGAL PRECEDENT
The schedule award provision of FECA2 and its implementing regulations3 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members, or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.4 The claimant has the burden of proving
that the condition for which a schedule award is sought is causally related to her employment.5
ANALYSIS
OWCP accepted the conditions of cervical herniated discs at C6-7 and left shoulder sprain.
With regard to peripheral nerve impairments to the upper or lower extremities resulting from
spinal injuries, OWCP procedures indicate that The Guides Newsletter “Rating Spinal Nerve
Extremity Impairment using the sixth edition” (July/August 2009) is to be applied.6 The Board
notes that an impairment rating can be issued based on findings of radiculopathy pursuant to the
July/August 2009 sixth edition of The Guides Newsletter. Dr. Doman rated one percent
impairment for radiculopathy based on appellant’s sensory complaints of paresthesias in the left
upper extremity involving the fingers of her left hand. He relied on Table 1 of the July and
August 2009 The Guides Newsletter, finding that a C6 impairment rating for the nerve is a class 1
injury with a mild sensory deficit with the default grade C. Dr. Doman found no motor impairment
objectively and that appellant’s subjective sensory complaints of the left upper extremity were
consistent and represented a mild sensory deficit corresponding to one percent impairment rating;
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404. Effective May 1, 2009, OWCP began using the A.M.A., Guides (6th ed. 2009).

4

Id.

5

Veronica Williams, 56 ECAB 367, 370 (2005).

6

See G.N., Docket No. 10-850 (issued November 12, 2010); see also Federal (FECA) Procedure Manual,
Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (August 2011).

4

this amounted to a combined left upper extremity rating of two percent. The record indicates that
she was diagnosed with cervical spine radiculopathy in May 2012 and that a June 19, 2012 MRI
scan showed multi-level degenerative changes.7 Dr. Doman calculated one percent upper
extremity impairment for the left shoulder by relying on Table 15-5 on page 402 of the A.M.A.,
Guides. He found that appellant had a class 1 impairment for rotator cuff tendinitis, a grade B
impairment which corresponded to one percent permanent impairment rating for a history of
painful injury to the left shoulder without objective residual loss of function.8
The Board finds that Dr. Doman’s November 6, 2014 impairment rating was rendered in
conformance with the sixth edition of the A.M.A., Guides.
The reports from Dr. James, appellant’s treating physician, rated 15 percent permanent
impairment of appellant’s left upper extremity based on impairments to the shoulder, arm, and
hand. However, Dr. James did not provide sufficient detail to enable an OWCP medical adviser
or the Board, to visualize any permanent impairment.9 His reports were general in nature and did
not contain detailed findings on examination from which a determination could be made as to
whether appellant had a permanent impairment of her upper extremities as derived under the
standards of the A.M.A., Guides.10 Thus, this rating was not rendered in accordance with proper
OWCP and Board procedures.
Accordingly, as Dr. Doman provided the only impairment rating of record rendered in
accordance with the applicable protocols and tables of the A.M.A., Guides, appellant was not
entitled to a schedule award greater than two percent impairment for which she received a
schedule award.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established that she has more than two percent
permanent impairment of her left upper extremity.

7

It is well established that in determining entitlement to a schedule award, preexisting impairments to the
schedule member are to be included. Michael C. Milner, 53 ECAB 446 (2002).
8

While there is no indication in the record that appellant had any preexisting tendinitis in her left shoulder prior
to the May 8, 2012 work injury, Dr. Doman’s impairment rating based on rotator cuff tendinitis, which is not an
accepted condition, was adopted by OWCP and its medical adviser and will be left undisturbed by the Board, as it
was not challenged by the employing establishment on appeal.
9

See A.L., Docket No. 08-1730, (issued March 16, 2009) (an impairment description must be in sufficient detail
so that the claims examiner and others reviewing the file will be able to clearly visualize the impairment with its
restrictions and limitations). See also Joseph D. Lee, 42 ECAB 172 (1990).
10

See C.B., Docket No. 09-0447 (September 14, 2009).

5

ORDER
IT IS HEREBY ORDERED THAT the April 17, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 11, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Birmingham, AL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 11-956
Issued: November 9, 2011

Case Submitted on the Record

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

JURISDICTION
On March 7, 2011 appellant filed a timely appeal from a January 20, 2011 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant filed a timely claim for occupational disease.
FACTUAL HISTORY
On August 24, 2010 appellant, then a 53-year-old retired mail handler, filed an
occupational disease claim alleging that he sustained carpal tunnel syndrome (CTS) of his right
hand as a result of his federal employment. He explained that he first became aware of the

1

5 U.S.C. § 8101 et seq.

condition on July 20, 2004, and that he first realized the condition was caused or aggravated by
his employment on August 2, 2010.
Along with his claim, appellant submitted an incomplete, unsigned medical report,
bearing a “print” date of July 19, 2006 from the Birmingham Veterans Administration (VA)
Medical Center. This report noted that his right hand locked when gripping and pulling during
employment and that he wore a right wrist brace during employment and at night.
Appellant also submitted a position description for the mail handler position, which
stated that duties required pushing, lifting, pulling and constant use of fingers.
An electromyography nerve conduction study performed on July 21, 2010 by
Dr. David B. O’Neal, a neurologist, diagnosed appellant with right ulnar neuropathy, with mild
compression of the elbow and right median and ulnar sensory neuropathy.
In a supplemental statement dated August 24, 2010, appellant explained that in July 2010
he visited his family doctor, Dr. Michael Vaughn, Board-certified in occupational medicine, for
his wrist pain. Dr. Vaughn then referred him to a specialist, Dr. Stephen R. Steinmetz, Boardcertified in plastic surgery.
In a medical note dated July 19, 2010, Dr. Steinmetz diagnosed appellant with CTS after
noting findings of positive Tinel’s and Phalen’s tests. The note went on to state that most likely
he would proceed with a carpal tunnel release and excision of ganglion cyst. On August 2, 2010
Dr. Steinmetz reported that nerve conduction studies revealed mild ulnar compression at the
elbow. He stated that he would proceed with carpal tunnel release and excision of ganglion cyst.
Appellant underwent surgery at the St. Vincent’s Hospital on August 9, 2010, for carpal
tunnel release, which was recorded in a medical memorandum from Dr. Steinmetz.
In an October 6, 2010 note, R.C. Johnson, appellant’s former supervisor, stated that he
had no knowledge of any complaints appellant had regarding carpal tunnel symptoms. OWCP
also received an e-mail exchange dated October 19, 2010, from the employing establishment
verifying that appellant retired on October 10, 2006.
On November 15, 2010 the employing establishment controverted appellant’s claim,
noting that it was untimely filed and that appellant never mentioned to his supervisor that he had
problems with his arms or hands while working at the employing establishment.
OWCP, by letter dated November 19, 2010, requested that appellant submit further
evidence regarding the timeliness of his claim letter. It advised him of the deficiencies in his
claim, specifically that he had not submitted evidence supporting that he provided timely
notification of his work injury.
In response to this letter, appellant submitted an August 12, 2004 medical report from the
Birmingham VA Medical Center. This report stated appellant’s diagnosis as CTS and noted that
he had been referred for a wrist splint. Appellant had advised when given the wrist splint for
CTS that he had never worn a splint before and was not “sure what CTS was.” He was then
given an explanation of CTS. This report also indicated that appellant’s CTS was rated as
2

between 50 percent to 100 percent service connected. Appellant’s goals were noted as
fulfillment of job physical demands until eligible for retirement in nine years.
In a statement dated December 9, 2010, appellant explained that he “began to notice
problems in July 2004,” and that “the condition began to worsen over the next couple years,” and
that he experienced “tingling, numbness, locking of fingers, swelling and severe pain.” Further,
he noted that “the pain was worsened by any gripping or grabbing with [his] right hand and
repetitive flexing of my right wrist.”
OWCP also received a note dated December 16, 2010 from Dr. Vaughn, who asserted
that appellant’s carpal tunnel syndrome “may have been caused by the work that he does with the
United States Postal Service.”
By a January 20, 2011 decision, OWCP denied appellant’s claim on the grounds that
appellant’s claim was not timely filed. It found that the August 12, 2004 medical report, which
included his statement that his “right hand ‘locks’ with repeated full intensity gripping/pulling
required in employment” established his awareness of his condition and that the condition was
causally related to his work activities. OWCP concluded that appellant’s awareness of the
condition was in fact on August 12, 2004, rather than August 2, 2010 as appellant asserted on his
occupational disease claim.
LEGAL PRECEDENT
The issue of whether a claim was timely filed is a preliminary jurisdictional issue that
precedes any determination on the merits of the claim.2 In cases of injury on or after
September 7, 1974, section 8122(a) of FECA3 provides that an original claim for compensation
for disability or death must be filed within three years after the injury or death. Compensation
for disability or death, including medical care in disability cases, may not be allowed if a claim is
not filed within that time unless:
(1) the immediate superior had actual knowledge of the injury or death within 30
days. The knowledge must be such as to put the immediate superior reasonably
on notice of an on-the-job injury or death; or
(2) written notice of injury or death as specified in section 8119 was given within
30 days.
Section 8119 of FECA4 provides that a notice of injury or death shall be given within 30
days after the injury or death, be given to the immediate superior of the employee by personal
delivery or by depositing it in the mail properly stamped and addressed, be in writing; state the
name and address of the employee, state the year, month, day and hour when and the particular
locality where the injury or death occurred; state the cause and nature of the injury, or in the case
2

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

3

5 U.S.C. § 8122(a).

4

Id. at § 8119.

3

of death, the employment factors believed to be the cause and be signed by and contain the
address of the individual giving the notice.5 Actual knowledge and written notice of injury under
section 8119 serve to satisfy the statutory period for filing an original claim for compensation.6
For actual knowledge of a supervisor to be regarded as timely filing, an employee must show not
only that the immediate superior knew that he or she was injured, but also knew or reasonably
should have known that it was an on-the-job injury.7
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 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.8
Section 8122(b) provides that the time for filing in latent disability cases does not begin
to run until the claimant is aware, or by the exercise of reasonable diligence should have been
aware, of the causal relationship between the employment and the compensable disability, and
the Board has held that the applicable statute of limitations commences to run although the
employee does not know the precise nature of the impairment.9
Where the employee continues in the same employment after he or she reasonably should
have been aware that he or she has a condition which has been adversely affected by factors of
federal employment, the time limitation begins to run on the date of the last exposure to the
implicated factors.10 Section 8122(b) of FECA provides that the time for filing in latent
disability cases does not begin to run until the claimant is aware or by the exercise of reasonable
diligence should have been aware, of the causal relationship between the employment and the
compensable disability.11 The requirement to file a claim within three years is the claimant’s
burden and not that of the employing establishment.12
ANALYSIS
As noted above, an original claim for compensation for disability must be filed within
three years after the injury. The Board finds that appellant’s claim was untimely filed.
5

Larry E. Young, 52 ECAB 264 (2001).

6

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

7

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

8

Larry E. Young, supra note 5.

9

5 U.S.C. § 8119(b); Delmont L. Thompson, supra note 7.

10

Id.

11

5 U.S.C. § 8122(b); see Luther Williams, Jr., 52 ECAB 360 (2001).

12

Debra Young Bruce, 52 ECAB 315 (2001).

4

Appellant was diagnosed with CTS on August 12, 2004, but did not file his claim until
August 24, 2010, and there is no evidence of record to suggest that his supervisor received any
notice with regard to his medical condition within 30 days of the injury. The supervisor asserted
that appellant never reported any physical problems. As such, appellant’s claim can only be
considered timely if appellant did not have actual or constructive knowledge that his carpal
tunnel condition was caused by his federal employment at any time before August 2007, three
years before he filed an occupational disease claim.
As appellant filed for an occupational disease claim, the time for filing his claim begins
to run when the he first becomes aware, or reasonably should have been aware, of a possible
relationship between his condition and his employment. The August 12, 2004 report from the
Birmingham VA Hospital establishes that appellant’s carpal tunnel syndrome was diagnosed at
that time. This report also noted that appellant indicated that he did not know what CTS was,
and that appellant was given an explanation of the condition. While this report noted that the
condition was 50 to 100 percent service connected, no history was provided linking the diagnosis
to appellant’s military service. Rather, appellant’s goal of continuing in his employment was
discussed and appellant was given a wrist splint to wear at work. The incomplete VA Hospital
record, bearing a print date of July 19, 2006, indicates that appellant had worn a wrist splint at
work and that appellant reported complaints of his right hand locking when gripping and pulling
at work. Furthermore, in his statement dated December 9, 2010, appellant noted that, after the
August 12, 2004 carpal tunnel diagnosis, “the condition began to worsen over the next couple
years ... [t]he pain was worsened by any gripping or grabbing with my right hand and repetitive
flexing of my right wrist.” Given that the condition was diagnosed in 2004 and appellant
admitted his awareness that his condition was exacerbated by his activities at work from 2004 to
2006,13 it therefore follows that appellant became aware, or should have been aware of the causal
connection sometime between 2004 and 2006.
As appellant knew or should have known of the connection between the work and his
occupational disease while he was still employed, the time limitation begins to run on the date of
the last exposure, or appellant’s retirement date, October 10, 2006. However, he did not file his
claim until August 24, 2010, more than three years after the date of the last exposure.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.

CONCLUSION
The Board finds that appellant’s occupational disease claim was untimely filed.

13

The work description for the mail handler dictates that the employee needed to perform pushing, heavy lifting,
pulling and constant use of fingers.

5

ORDER
IT IS HEREBY ORDERED THAT the January 20, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 9, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6