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

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

Docket No. 17-0828
Issued: December 20, 2017

Case Submitted on the Record

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

JURISDICTION
On February 27, 2017 appellant filed a timely appeal from an October 12, 2016 merit
decision and a February 15, 2017 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP).1 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.
ISSUES
The issues are: (1) whether appellant has established that she was disabled from work as
of July 9, 2016 causally related to her accepted employment injury; and (2) whether OWCP
properly denied appellant’s request for a review of the written record as untimely filed.

1

The Board notes that appellant submitted new evidence on appeal. However, the Board’s jurisdiction is limited
to evidence that was in the record at the time OWCP issued its final decision. Thus, the Board is precluded from
reviewing this new evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 27, 2017 appellant, then a 60-year-old rural carrier associate, filed a
traumatic injury claim (Form CA-1) alleging that, on February 8, 2016, she injured her right
upper arm while lifting a tub in the performance of duty. She did not indicate on the claim form
whether she had stopped work. On May 13, 2016 OWCP accepted appellant’s claim for right
triceps strain. Appellant received wage-loss compensation on the supplemental rolls from
April 16 through June 24, 2016.
In a report dated May 26, 2016, Dr. Michael Dolecki, a Board-certified orthopedic
surgeon, examined appellant and diagnosed mild right elbow ulnar neuropathy. He found a
positive Tinel’s test and cubital tunnel on the right side. Dr. Dolecki recommended a nerve
block, and stated, “I think if she has a block she will be able to return to full-duty work. Follow
back after the block for full work release.”
On July 7, 2016 Dr. Glenn Heyman, an osteopathic physician, diagnosed appellant with
right ulnar mononeuropathy at the elbow and performed a right ulnar nerve block.
By letter dated July 21, 2016, the employing establishment requested that OWCP obtain a
second opinion regarding the status of appellant’s right triceps claim, noting that she had not
worked since March 12, 2016.
On July 26, 2016 appellant filed a claim for compensation (Form CA-7) for disability for
the period from July 9 through 28, 2016.
In a statement of accepted facts dated July 27, 2016, OWCP noted that appellant had
stopped work on March 12, 2016 and had not returned.
By letter dated August 1, 2016, OWCP informed appellant that the evidence of record
was insufficient to support a claim for disability for the period July 9, 2016 and continuing. It
noted that the report of Dr. Dolecki of May 26, 2016 did not relate her diagnosed mild right
elbow ulnar neuropathy to her accepted injury. Appellant was afforded 30 days to submit
additional evidence in support of her claim.
On September 9, 2016 Dr. Spencer D. Greendyke, a Board-certified orthopedic surgeon
and second opinion physician, responded to OWCP’s inquiries regarding appellant’s accepted
injury. He noted that appellant had been examined on that day and he provided an extensive
summary of appellant’s prior medical treatment and examination findings. Dr. Greendyke
explained that appellant had a history of repeat right shoulder surgery with findings of complete
tear of the rotator cuff, which was not employment related. He further explained that appellant’s
work-related diagnosis was strain to the previously scarred biceps long head muscle belly.
Dr. Greendyke opined that she continued to have residuals from her accepted work-related
condition, along with temporary work restrictions of lifting no more than 10 pounds with her
right arm. He related that this restriction would be lifted after eight weeks of physical therapy,
following which appellant could perform full duty.

2

By decision dated October 12, 2016, OWCP denied appellant’s claim for disability for
the period commencing July 9, 2016. It found that she had not submitted the necessary medical
evidence to establish that she was disabled from work due to the accepted employment injury.
On January 17, 2017 appellant requested a review of the written record before an OWCP
hearing representative. The certified mail tracking number indicated that appellant sent the letter
on January 17, 2017 and it was received by OWCP’s Branch of Hearings and Review on
January 24, 2017.
By decision dated February 15, 2017, OWCP’s hearing representative denied appellant’s
request for a review of the written record as untimely filed. She noted that OWCP had issued its
decision on October 12, 2016, while appellant’s request for a review of the written record was
“postmarked” on January 17, 2017. Consequently, the hearing representative found that
appellant was not entitled to a review of the written record as a matter of right, as the request was
submitted more than 30 days after issuance of OWCP’s decision. She also considered whether to
grant appellant a discretionary hearing, but determined that the issue in appellant’s case could
equally well be addressed by her requesting reconsideration before OWCP.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for
which compensation is claimed is causally related to the employment injury.4
Under FECA, the term disability means the incapacity, because of an employment injury,
to earn the wages that the employee was receiving at the time of injury.5 Whether a particular
injury causes an employee disability for employment is a medical issue which must be resolved
by competent medical evidence.6 Whether a particular injury causes an employee to be disabled
from work and the duration of that disability, are medical issues that must be proved by a
preponderance of the reliable, probative, and substantial medical evidence.7
For each period of disability claimed, the employee has the burden of proof to establish
that she was disabled from work as a result of the accepted employment injury.8 The Board will
not require OWCP to pay compensation for disability in the absence of medical evidence directly
addressing the specific dates of disability for which compensation is claimed. To do so, would

3

Id.

4

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

5

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

6

Donald E. Ewals, 51 ECAB 428 (2000).

7

Tammy L. Medley, 55 ECAB 182 (2003); see id.

8

See David H. Goss, 32 ECAB 24, 27 (1980).

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essentially allow an employee to self-certify his or her disability and entitlement to
compensation.9
To establish causal relationship between the disability claimed and the employment
injury, an employee must submit rationalized medical evidence, based on a complete factual and
medical background, supporting such causal relationship.10 Causal relationship is a medical
issue and the medical evidence required to establish causal relationship is rationalized medical
evidence.11 The opinion of the physician must be one of reasonable medical certainty, and must
be supported by medical rationale explaining the nature of the relationship.
ANALYSIS -- ISSUE 1
Appellant’s February 8, 2016 traumatic claim was accepted for right triceps strain. She
bears the burden of proof to establish by the weight of the substantial, reliable, and probative
evidence that she was disabled from work for the period commencing July 9, 2016 due to her
accepted injuries.12
The Board finds that appellant has failed to establish that she was disabled from work
commencing July 9, 2016 causally related to the accepted employment injury.
On September 9, 2016 Dr. Greendyke responded to OWCP’s inquiries regarding her
accepted injury. He opined that appellant continued to have residuals from her accepted workrelated condition, along with temporary work restrictions of lifting no more than 10 pounds with
her right arm, which would be lifted after eight weeks of physical therapy.
The weight of medical evidence is determined by its reliability, its probative value, its
convincing quality, the care of the analysis manifested, and the medical rationale expressed in
support of the physician’s opinion.13 The Board finds that the weight of medical evidence rests
with Dr. Greendyke, as he examined appellant on September 9, 2016 and provided extensive
review of the medical record and examination findings. Dr. Greendyke explained that appellant
still had residuals of the strain of the previously scarred biceps muscle; however, he explained
that she was not totally disabled from work at that time, and could work in a light-duty position
with a 10-pound lifting restriction. He also noted that appellant could return to full duty after six
additional weeks of physical therapy. As such, Dr. Greendyke’s report establishes that appellant
was not totally disabled from work for the claimed time period. As he carefully reviewed the
medical evidence of record, his opinion reflected sufficient reliability, probative value, care of
analysis, and medical rationale and is entitled to the weight of the medical evidence.14
9

See William A. Archer, 55 ECAB 674, 679 (2004); Fereidoon Kharabi, 52 ECAB 291, 293 (2001).

10

Kathryn E. DeMarsh, 56 ECAB 677 (2005).

11

Elizabeth Stanislaw, 49 ECAB 540 (1998).

12

Alfredo Rodriguez, 47 ECAB 437 (1996).

13

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

14

See id.; Naomi A. Lilly, 10 ECAB 560, 573 (1959).

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The Board will not require OWCP to pay compensation for disability in the absence of
any medical evidence directly addressing the specific dates of disability for which compensation
is claimed. To do so would essentially allow employees to self-certify their disability and
entitlement to compensation.15
Appellant submitted no probative evidence contemporaneous to the alleged dates of
disability that would indicate she was disabled from work either directly due to her accepted
injuries or due to a medical appointment.16
In a report dated May 26, 2016, Dr. Dolecki examined appellant and diagnosed her with
mild right elbow ulnar neuropathy. He found a positive Tinel’s test and cubital tunnel on the
right side. Dr. Dolecki recommended a nerve block, and stated, “I think if she has a block she
will be able to return to full-duty work. Follow back after the block for full work release.”
While Dr. Dolecki stated that appellant would be capable of returning to full-duty work after a
nerve block, he did not address the accepted condition of right triceps strain and explain why this
accepted condition caused any specific dates of disability. As such, this report does not establish
that appellant was totally disabled from work for the claimed time period.17
On July 7, 2016 Dr. Heyman diagnosed appellant with right ulnar mononeuropathy at the
elbow and performed a right ulnar nerve block. Again, he did not address appellant’s accepted
condition nor did he offer an opinion regarding appellant’s ability to work on the specific dates
of disability. As such, this report also does not establish that appellant was totally disabled from
work for the claimed time period.18
As appellant has not submitted medical evidence containing medical rationale relating
her claimed dates of disability to her accepted conditions, she has not met her burden of proof to
establish disability for the period beginning July 9, 2016.19
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
A claimant injured on or after July 4, 1966, who has received a final adverse decision by
OWCP, may obtain a hearing by writing to the address specified in the decision.20 The hearing
15

N.G., Docket No. 16-1421 (issued December 12, 2016).

16

An injured employee may be entitled to compensation for lost wages incurred while obtaining authorized
medical services. See 5 U.S.C. § 8103(a); Gayle L. Jackson, 57 ECAB 546 (2006).
17

Id.

18

Id.

19

Supra note 8.

20

20 C.F.R. § 10.616(a).

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request must be sent within 30 days (as determined by postmark or other carrier’s date marking)
of the date of the decision for which a hearing is sought. The claimant must not have previously
submitted a reconsideration request (whether or not it was granted) on the same decision. If the
request is not made within 30 days, a claimant is not entitled to a hearing as a matter of right.
However, the Branch of Hearings and Review may exercise its discretion to either grant or deny
a hearing.21
ANALYSIS -- ISSUE 2
Appellant’s request for a review of the written record was sent, according to the certified
mail tracking number, on January 17, 2017. OWCP issued its last merit decision on
October 12, 2016. The regulations provide that “[t]he hearing request must be sent within 30
days […] of the date of the decision for which a hearing is sought.” Because appellant’s request
sent on January 17, 2017 was untimely filed, she was not entitled to a review of the written
record as a matter of right. A representative of OWCP’s Branch of Hearings and Review also
denied appellant’s request because it found that the issue of her claimed dates of disability could
be equally well addressed by requesting reconsideration before OWCP. The Board finds that the
hearing representative properly exercised her discretionary authority in denying appellant’s
request for a hearing.22
CONCLUSION
The Board finds that appellant has not established that she was disabled from work as of
July 9, 2016 causally related to her accepted employment injury. The Board also finds that
OWCP did not abuse its discretion by denying appellant’s request for review of the written
record as untimely filed.

21

5 U.S.C. §§ 8124(b)(1) and 8128(a); Hubert Jones Jr., 57 ECAB 467, 472-73 (2006); Herbert C. Holley, 33
ECAB 140 (1981).
22

Mary B. Moss, 40 ECAB 640, 647 (1989). Abuse of discretion is generally shown through proof of manifest
error, clearly unreasonable exercise of judgment, or actions taken which are contrary to both logic and probable
deductions from known facts. See André Thyratron, 54 ECAB 257, 261 (2002).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 17, 2017 and October 12, 2016 are affirmed.
Issued: December 20, 2017
Washington, DC

Patricia H. Fitzgerald, Deputy 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.Z., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
NATIONAL GUARD, Houston, TX, Employer
__________________________________________

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

Docket No. 09-1233
Issued: December 4, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 10, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated December 12, 2008 denying his traumatic injury
claim. 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 sustained a traumatic injury while in the performance of
duty on October 28, 2008.
FACTUAL HISTORY
On October 29, 2008 appellant, a 32-year-old surface maintenance repairer, filed a
traumatic injury claim (Form CA-1) alleging that he cut the top left side of his head while
climbing on a military vehicle on October 28, 2008. Coworker Gary Palmberg stated that he
was working with appellant on the date in question when he hit his head on a wench bar after
unbolting a five-ton spare tire.

By letter dated November 10, 2008, the Office advised appellant that the evidence
submitted was insufficient to establish that he had sustained a traumatic injury in the
performance of duty. It requested additional information, including medical evidence providing
a diagnosis and a physician’s opinion explaining a causal relationship between the diagnosed
condition and the alleged October 28, 2008 incident.
In a decision dated December 12, 2008, the Office denied appellant’s claim. It accepted
that the incident occurred as alleged, but found that he had submitted no medical evidence which
provided a diagnosis that could be connected to the accepted event.1
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of proof to establish the essential elements of the claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act; that the claim
was timely filed within the applicable time limitation period of the Act, that an injury was
sustained in the performance of duty as alleged; and that any disability or specific condition for
which compensation is claimed is causally related to the employment injury.2 When an
employee claims that she sustained a traumatic injury in the performance of duty, he must
establish the “fact of injury,” namely, he must submit sufficient evidence to establish that he
experienced a specific event, incident or exposure occurring at the time, place and in the manner
alleged, and that such event, incident or exposure caused an injury.3
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.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 that includes a physician’s rationalized opinion on whether there is a causal relationship
between the claimant’s diagnosed condition and the established incident or factor of
employment. The opinion must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical

1

The Board notes that appellant submitted additional evidence after the Office rendered its November 18, 2005
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before the Office at the time of its
final decision. Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 501.2(c);
Dennis E. Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). Appellant may submit
this evidence to the Office, together with a formal request for reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20
C.F.R. § 10.606(b)(2).
2

Robert Broome, 55 ECAB 339 (2004); see also Elaine Pendleton, 40 ECAB 1143 (1989).

3

Betty J. Smith, 54 ECAB 174 (2002); see also Tracey P. Spillane, 54 ECAB 608 (2003). The term “injury” as
defined by the Act, refers to a disease proximately caused by the employment. 5 U.S.C. § 8101(5). See 20 C.F.R.
§ 10.5(q), (ee).
4

Katherine J. Friday, 47 ECAB 591, 594 (1996).

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rationale explaining the nature of the relationship between the diagnosed condition and the
established incident, or factor of employment.5
An award of compensation may not be based on appellant’s belief of causal relationship.
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish a causal relationship.6
ANALYSIS
The Office accepted that appellant was a federal employee, that he timely filed his claim
for compensation benefits, and that the workplace incident occurred as alleged. The issue,
therefore, is whether he has submitted sufficient medical evidence to establish that the
employment incident caused an injury. Appellant submitted no medical evidence in support of
his claim prior to the Office’s December 12, 2008 decision. Therefore, he failed to establish a
prima facie claim for compensation.
An award of compensation may not be based on surmise, conjecture, speculation, or upon
appellant’s own belief that there is a causal relationship between his claimed condition and his
employment.7 To establish causal relationship, he must submit a physician’s report in which the
physician reviews those factors of employment identified by him as causing his condition and,
taking these factors into consideration, as well as findings upon examination and appellant’s
medical history, explain how these employment factors caused or aggravated any diagnosed
condition, and present medical rationale in support of his opinion.8 Appellant failed to submit
such evidence and, therefore, failed to satisfy his burden of proof. The Board finds that the
Office properly denied his claim for benefits under the Act.
CONCLUSION
Appellant has not met his burden of proof to establish that he sustained a traumatic injury
in the performance of duty on October 28, 2008.

5

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

6

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

7

Patricia J. Glenn, 53 ECAB 159 (2001).

8

Robert Broome, supra note 2.

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ORDER
IT IS HEREBY ORDERED THAT the December 12, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 4, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 07-365
Issued: June 7, 2007

Case Submitted on the Record

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

JURISDICTION
On November 24, 2006 appellant filed a timely appeal from April 27 and October 26,
2006 nonmerit decisions of the Office of Workers’ Compensation Programs denying her request
for reconsideration. The most recent merit decision is the Office’s February 1, 2005 decision.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board only has jurisdiction to review the
April 27 and October 26, 2006 nonmerit decisions.
ISSUE
The issue is whether the Office, in its April 27 and October 26, 2006 decisions, properly
refused to reopen appellant’s case for further merit review of her claim pursuant to 5 U.S.C.
§ 8128.
FACTUAL HISTORY
This is the fourth time this case has been before the Board. On February 8, 1999
appellant, then a 43-year-old clerk, fell backwards while going down an escalator at work. The
Office accepted the claim for multiple contusions and appellant received wage-loss

compensation from February 8, 1999 to July 14, 2001 when the Office terminated compensation
benefits on the basis that her injury-related medical conditions had resolved. In a decision dated
November 1, 2002, the Board affirmed the Office’s termination of benefits finding that the
weight of the medical evidence rested with the April 16, 2001 report of Dr. David M. Shenker, a
Board-certified neurologist and an impartial medical specialist.1 The Board, however, remanded
the case to resolve medical conflict between Dr. Dixon F. Spivy, a Board-certified psychiatrist,
and Dr. Charles Turk, a Board-certified neurologist and psychiatrist, regarding whether
appellant’s claimed emotional condition was causally related to the February 8, 1999
employment injury.2 In a decision dated April 13, 2004, the Board affirmed the Office’s
September 5, 2003 decision which found that the weight of the medical evidence, as represented
by the impartial medical examiner, Dr. Nelson Borelli, a Board-certified psychiatrist, established
that appellant’s emotional condition did not arise out of the February 8, 1999 employment
injury.3 In the third appeal, by decision dated October 11, 2005, the Board affirmed the Office’s
decisions dated August 6 and November 10, 2004 and February 1, 2005 which found that
appellant did not meet her burden of proof in establishing that she had any physical or emotional
condition causally related to her February 8, 1999 employment injury.4 The complete facts of
this case are set forth in the Board’s November 1, 2002, April 13, 2004 and October 11, 2005
decisions and are herein incorporated by reference.
In letters received by the Office on January 27 and February 1, 2006, appellant requested
reconsideration of the Office’s February 1, 2005 decision. She repeated her previous allegation
that Dr. Borelli, the impartial medical examiner, acted inappropriately. Appellant submitted: a
copy of a report from Northwestern Memorial Hospital dated February 8, 1999 previously of
record; a copy of November 18, 2004 police report also previously of record; a magazine article;
an October 22, 2005 Albertsons Health screening information and consent form; and a report
from Operation Diabetes dated October 24, 2005.
In a January 11, 2006 medical report, Dr. Darrell Troupe, a psychiatrist, noted the history
of injury and presented his examination findings. He diagnosed appellant with schizoaffective
disorder, depressed with psychosis and post-traumatic stress disorder.
In a January 24, 2006 report, Dr. Jason Smith, an osteopath and appellant’s treating
physician, noted the history of injury and diagnosed an Axis I delusional disorder, an Axis II
histrionic personality and several Axis III diagnoses. He stated that appellant’s original injuries
have been self-sustaining and noted that appellant had been permanently disabled since
February 1999. Dr. Smith explained that the accepted fall from the escalator and appellant’s
subsequent incapacity was in reality a co-morbid condition with her carpal tunnel disease. He
stated that total recovery was not possible given her physical profile (a tendency to develop
chronic musculoskeletal processes) coupled with the historical significance of carpal tunnel
disease (in general). Dr. Smith also opined that appellant’s psychiatric condition was secondary
1

Dr. Shenker resolved the conflict of medical opinion between appellant’s treating physician, Dr. Jason Smith, an
osteopath, and the Office referral physician, Dr. Julie M. Wehner, a Board-certified orthopedic surgeon.
2

Docket No. 02-1542 (issued November 1, 2002).

3

Docket No. 04-242 (issued April 13, 2004), petition for recon. denied (issued June 16, 2004).

4

Docket No. 05-766 (issued October 11, 2005).

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to the evolving nature of her current musculoskeletal symptoms, which now included rheumatic
disease. He explained that appellant’s physical injuries and psychiatric condition were a
“precipitation” phenomena in that the originally accepted work injury caused a decomposition of
an underlying psychotic mental structure. Dr. Smith stated that the combined physical injuries
(blunt trauma of the dorsal/lumbar, shoulder, neck and head along with the carpal tunnel
syndrome) have continued to develop acute on chronic, chronic on chronic physiologically
concentric interactions.
By decision dated April 27, 2006, the Office denied appellant’s request for
reconsideration finding that, the medical evidence submitted was of no evidentiary value to
warrant further merit review. The Office found that, “while there are two medical reports
submitted with this request, one does not have a legible signature and therefore cannot be
considered to be of probative value. The other medical report is from the claimant’s treating
physician who is an osteopath and therefore has no probative value over a report from a medical
specialist in the field of psychiatry.”
In undated letters received by the Office on May 15 and September 18, 2006, appellant
requested reconsideration. She reiterated her previous allegation that Dr. Borelli, the impartial
medical examiner, acted inappropriately. Appellant submitted a copy of the November 18, 2004
police report, previously of record. In a January 11, 2006 note, Dr. Troupe noted appellant’s
complaints and requested that she be evaluated for treatment.
By decision dated October 26, 2006, the Office denied appellant’s request for
reconsideration finding that her letter raised no substantive legal questions nor included new and
relevant evidence.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,5 the Office regulation provides that 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.6 To be entitled to a merit
review of an Office 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.7 When a claimant fails to
meet one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.8
The requirements for reopening a claim for merit review do not include the requirement
that a claimant submit all evidence which may be necessary to discharge his or her burden of
5

5 U.S.C. §§ 8101-8193. Section 8128(a) of the Act provides that [t]he Secretary of Labor may review an award
for or against payment of compensation at any time on her own motion or on application.
6

20 C.F.R. § 10.606(b)(2).

7

Id. at § 10.607(a).

8

Id. at § 10.608(b).

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proof.9 The requirements pertaining to the submission of evidence in support of reconsideration
only specifies that the evidence be relevant and pertinent and not previously considered by the
Office.10 If the Office should determine that the new evidence lacks substantive probative value,
it may deny modification of the prior decision, but only after the case has been reviewed on the
merits.11
ANALYSIS
Appellant’s reconsideration requests received by the Office on January 27 and
February 1, 2006 neither alleged nor demonstrated that the Office erroneously applied or
interpreted a specific point of law. Additionally, she did not advance a relevant legal argument
not previously considered by the Office. In appellant’s January 27 and February 1, 2006
requests for reconsideration, she alleged that Dr. Borelli, the impartial medical examiner, acted
inappropriately. The evidence of file reflects that this argument had previously been addressed
by the Board in its October 11, 2005 decision. Thus, appellant’s argument pertaining to the
Office’s reliance on Dr. Borelli was previously considered and is repetitious of earlier
arguments. Consequently, she is not entitled to a review of the merits of her claim based on the
first and second above-noted requirements under section 10.606(b)(2).12
With regard to the submission of new and relevant evidence, appellant submitted a
February 8, 1999 report from Northwest Memorial Hospital and a November 8, 2004 police
report which were previously of record and previously considered. Evidence that repeats or
duplicates evidence already in the case record has no evidentiary value and does not constitute a
basis for reopening a case.13 Appellant also submitted an October 24, 2005 report from
Operation Diabetes, an October 22, 2005 screening information and consent form from
Albertsons Health and a magazine article. However, the underlying issue is medical in nature
and neither of these submissions offered an opinion from a physician regarding the causal
relationship between appellant’s current conditions and her work-related injury of
February 8, 1999. The Board has held that the submission of evidence which does not address
the particular issue involved in a case does not constitute a basis for reopening the claim.14
Appellant also submitted a January 11, 2006 medical report from Dr. Troupe. The Office
found that this report was of no probative value because it did not have a legible signature.
While Dr. Troupe’s signature is legible, the Board finds that this report, while new, fails to
address the pertinent issue in this case of whether any of appellant’s current conditions are
9

Donald T. Pippin, 53 ECAB 631 (2003).

10

Id.

11

See Annette Louise, 53 ECAB 783 (2003).

12

20 C.F.R. § 10.608(b)(2)(i) and (ii).

13

Johnnie B. Causey, 57 ECAB ___ (Docket No. 06-49, issued February 7, 2006); Richard Yadron, 57 ECAB
___ (Docket No. 05-1738, issued November 8, 2005).
14

Patricia G. Aiken, 57 ECAB ___ (Docket No. 06-75, issued February 17, 2006); Johnnie B. Causey, supra note
13; Bonnie A. Contreras, 57 ECAB ___ (Docket No. 06-167, issued February 7, 2006).

4

causally related to her February 8, 1999 work injury. Thus, Dr. Troupe’s January 11, 2006
report cannot constitute a basis for reopening the claim.15
Appellant also submitted a January 24, 2006 report from Dr. Smith. The Office found
that this report had no probative value over a report from a medical specialist in the field of
psychiatry. The issue of whether Dr. Smith is a specialist in the appropriate field would go to the
weight of the medical evidence, the standard to be applied when reviewing the merits of the
claim. In his report, he essentially opined that appellant’s ongoing physical conditions and
emotional problems were causally related to her February 8, 1999 work injury and rendered her
totally disabled. Dr. Smith also offered some reasoning in support of his opinion. The record,
however, does not contain a previous report from him providing medical reasoning for his
opinion on causal relationship. Dr. Smith’s report is relevant, pertinent and new to the issue of
whether appellant’s conditions are causally related to the February 8, 1999 work injury. The
requirement for reopening a claim for merit review does not include the requirement that a
claimant shall submit all evidence necessary to discharge her burden of proof. The claimant
need only submit evidence that is relevant and pertinent and not previously considered.16 As
Dr. Smith’s January 24, 2006 report constituted new and relevant medical evidence, the Office
improperly denied appellant’s request for review of the merits of the claim. The case will be
remanded to the Office to conduct an appropriate merit review of the claim. Following this and
such other development as deemed necessary, the Office shall issue a merit decision on the
claim.17
CONCLUSION
The Board finds that the Office improperly denied appellant’s request for further review
of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

15

Johnnie B. Causey, supra note 13; Bonnie A. Contreras, supra note 14; Patricia G. Aiken, supra note 14.

16

See Donald T. Pippin, supra note 9; Sydney W. Anderson, 53 ECAB 347 (2002).

17

In view of the Board’s action in this matter, it is not necessary to address whether the Office properly denied
appellant’s reconsideration requests that were received by the Office on May 15 and September 18, 2006.

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated October 26 and April 27, 2006 are set aside and the case is
remanded for further proceedings consistent with this decision of the Board.
Issued: June 7, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.K., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Seattle, WA, Employer
__________________________________________

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

Docket No. 16-1850
Issued: January 9, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On September 19, 2016 appellant filed a timely appeal from an August 17, 2016 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 merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish an injury or
medical condition causally related to factors of her federal employment.

1
2

5 U.S.C. § 8101 et seq.

The record provided the Board includes evidence submitted after OWCP issued its August 17, 2016 decision.
The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision.
Therefore, the Board lacks jurisdiction to review this additional evidence. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On July 1, 2016 appellant, then a 52-year-old time and leave clerk, filed an occupational
disease claim (Form CA-2) alleging that she injured her lower back on or about June 16, 2016.
She attributed her lower back condition to using her office desk chair.
Evidence submitted with the claim included an application for employment, a position
description, a January 10, 2016 notification of personnel action, and a June 23, 2016 incident
report, which noted that appellant had an ergonomic chair with lumbar support that she claimed
no longer worked and had exchanged it for a different chair.
In a July 14, 2016 letter, OWCP advised appellant of the deficiencies in the claim and
afforded her 30 days to submit additional evidence. Appellant was asked to submit additional
factual and medical evidence, including her responses to a development questionnaire.
On July 27, 2016 appellant responded to OWCP’s development questionnaire. She
indicated that she worked on the computer five days a week, eight hours a day and while sitting
on a chair with limited stand and break time. Appellant stated that, from 2007 to June 16, 2016,
she had a chair with no support curve. She further indicated that she was uncomfortable and in
pain for two weeks until a new chair was ordered. No other evidence was submitted.
By decision dated August 17, 2016, OWCP denied appellant’s claim. It found that the
medical component of fact of injury had not been met as appellant had submitted no medical
evidence containing a diagnosis in connection with the employment factors.
LEGAL PRECEDENT
A claimant seeking benefits under FECA has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (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 identified employment factors.4

3

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

4

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

2

A physician’s opinion on whether there is a causal relationship between the diagnosed
condition and the implicated employment factors must be based on a complete factual and
medical background.5 Additionally, the physician’s opinion must be expressed in terms of a
reasonable degree of medical certainty and must be supported by medical rationale, explaining
the nature of the relationship between the diagnosed condition and appellant’s specific
employment factors.6
ANALYSIS
Appellant alleged that she developed back pain for approximately two weeks as a result
of sitting in her chair for eight hours a day while performing her work duties. She alleged her
chair had no support curve. The evidence supports that appellant’s work duties primarily
required computer work, for which she remained seated. However, appellant has failed to
submit any medical evidence to establish a back condition.
As there is no medical evidence explaining how sitting in a nonergonomic chair for two
weeks caused or aggravated a medical condition involving her back, appellant has not met her
burden of proof to establish her claim.7
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

Id.

6

Id.

7

See K.G., Docket No. 15-1139 (issued September 28, 2016).

3

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an injury
causally related to factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the August 17, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 9, 2017
Washington, DC

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

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

Colleen Duffy Kiko, 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,
Athens, GA, Employer
__________________________________________

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

Docket No. 16-1842
Issued: July 14, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On September 15, 2016 appellant filed a timely appeal from a June 17, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 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

Appellant timely requested oral argument pursuant to section 501.5(b) of Board procedures. 20 C.F.R.
§ 501.5(b). By order dated May 23, 2017, the Board exercised its discretion and denied the request, finding that the
arguments on appeal could adequately be addressed based on a review of the case record. Order Denying Request
for Oral Argument, Docket No. 16-1842 (issued May 23, 2017). (rd5/23/17, docket file)
2
3

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted evidence with her appeal to the Board. The Board cannot consider this
evidence as its jurisdiction is limited to the evidence that was before OWCP at the time it issued its final decision.
20 C.F.R. § 501.2(c)(1); P.W., Docket No. 12-1262 (issued December 5, 2012).

ISSUE
The issue is whether appellant met her burden of proof to establish an employmentrelated injury on October 20, 2014.
On appeal appellant asserts that her supervisor made false statements regarding the
circumstances of her claimed injury.
FACTUAL HISTORY
On October 27, 2014 appellant, then a 41-year-old rural carrier associate, filed a
traumatic injury claim (Form CA-1) alleging that at 10:00 a.m. on October 20, 2014, after lifting
heavy trays several times, her right shoulder and neck burned, and she felt numbness down to her
hand. A supervisor, G.M., signed the claim form on October 27, 2014. He noted that appellant
gave conflicting stories regarding the claimed injury. G.M. related that on Monday or Tuesday
of the previous week appellant had related that she would be going to the doctor for her shoulder.
Appellant also stated that she had car trouble and could not get to work. The supervisor noted
that appellant came into work on October 27, 2014 requesting light duty and, when told this was
not available, asked for a CA-1. G.M. related that appellant verbally indicated that her shoulder
injury occurred by throwing heavy packages and on the claim form indicated that it was caused
by lifting heavy mail trays. He did not recall appellant previously mentioning a shoulder injury.
Subsequently, in an attached handwritten statement, appellant indicated that on Saturday,
October 18, 2014 pain started when she lifted a tray of mail and, by the end of the day, her hand
was swelling. She related that on Monday, October 20, 2014 she related to a “Ms. R.” that she
had to go to the doctor because her arm hurt, and that on October 22, 2014 she had a right
shoulder scan.
Dr. Alvin T. Wilson, an osteopath, advised on October 27, 2014 that appellant could not
work. An October 29, 2014 form report of an orthopedic physician’s assistant, indicated that
appellant had been seen that day and could return to restricted duty.
By letter dated November 4, 2014, OWCP informed appellant of the evidence needed to
establish her claim.
Dr. John Manfredi, a Board-certified orthopedic surgeon, completed an attending
physician’s report (Form CA-20) on November 12, 2014. He diagnosed right rotator cuff tear
and checked a form box marked “no,” advising that the condition was not caused by employment
activity. Dr. Manfredi determined that appellant could not work beginning October 18, 2014.4
In correspondence dated November 14, 2014, the employing establishment controverted
the claim.

4

Appellant also submitted a physical therapy prescription signed by Dr. Alonzo T. Sexton, a Board-certified
orthopedic surgeon and an associate of Dr. Manfredi, along with a list of discharge medications.

2

By decision dated December 9, 2014, OWCP denied the claim. It accepted the work
incident, but found the medical evidence insufficient to establish a medical condition due to this
incident.
On July 24, 2015 appellant, through his counsel at that time, requested reconsideration.
Counsel indicated that the claimed injury occurred on October 18, 2014 when appellant was
lifting heavy mail trays weighing 50 to 60 pounds. He asserted that the medical evidence
supported causal relationship and submitted additional medical evidence.
In an undated handwritten timeline, appellant indicated that on October 18, 2014 due to
pain in her right shoulder, she dropped a tray of mail while working. She further noted that on
October 22, 2014 she had visited the doctor and had a magnetic resonance imaging (MRI) scan
of the shoulder, that on October 23, 2014 she had gone to an emergency room for arm pain and
numbness, that on October 29, 2014 she had seen an orthopedist for torn rotator cuff which was
shown on MRI scan, that the employing establishment had refused her request for light-duty
work, and that on November 6, 2014 she had right shoulder surgery with follow-up appointments
through January 30, 2015.
An October 22, 2014 MRI scan of the right shoulder demonstrated an old injury versus
changes due to repetitive motion in the acromioclavicular joint, and a partial thickness tear of the
rotator cuff.
In correspondence dated February 27, 2015, Dr. Sexton noted that appellant was initially
seen on October 29, 2014 for a rotator cuff tear after an employment injury on October 18, 2014
when she lifted a tray weighing 50 to 60 pounds and felt an immediate sharp pain. He related
that she had surgical repair of the tear on November 6, 2014. Dr. Sexton advised that appellant
had continued restrictions on lifting and overhead activities and needed continued physical
therapy and rehabilitation.
In a September 15, 2015 merit decision, OWCP again denied appellant’s claim. It noted
that she claimed that the injury occurred on October 18, 2014 yet on the claim form she wrote
that it occurred on October 20, 2014. OWCP further found the medical evidence of record
insufficient to establish causal relationship, noting that Dr. Manfredi indicated, before the
surgery, that the diagnosed rotator cuff tear was not employment related, and that Dr. Sexton’s
February 27, 2015 report was completed after her November 2014 surgery.
Appellant, through counsel, again requested reconsideration on March 18, 2016. In a
handwritten new patient history dated October 29, 2014, she related that she had symptoms of
right shoulder, neck, and hand and constant burning, numbness, and tingling that had occurred
for one to two weeks since an October 18, 2014 injury. Appellant submitted a copy of the
November 6, 2014 operative notes and reports dated November 9, 2014 to April 24, 2015 in
which physician assistants described her right shoulder care. On May 22, 2015 Dr. Sexton
reported that appellant’s shoulder was no longer causing problems and advised that she could
return to full duty with no restrictions.
In correspondence dated December 29, 2015, Dr. Sexton noted that appellant was first
seen in their clinic on October 29, 2014 and provided a history that suggested an injury to her

3

shoulder on October 18, 2014 at work. Appellant reported that, when lifting a mail tray that
weighed 50 to 60 pounds, she felt a sharp immediate pain in her shoulder and, when seen 11 days
after the injury, complained of continued shoulder pain and weakness. Dr. Sexton described the
MRI scan findings, subsequent to surgery, and follow-up care. He related that on one follow-up
visit appellant was seen by a Mr. Joslyn, but was never seen by Dr. Manfredi. Dr. Sexton
concluded that, based on his clinical examination as well as the history provided by appellant, he
believed that appellant’s rotator cuff tear was due to the injury she sustained at work on
October 18 2014. He advised that, considering the acute nature of appellant’s pain symptoms,
the objective findings on the MRI scan, and subsequent surgery, appellant’s injury was work
related. Dr. Sexton opined that Dr. Manfredi’s comments were based on incomplete information
and were not related to his own clinical examination of the patient.
By letter dated April 15, 2016, the employing establishment contended that, due to
appellant’s conflicting stories as to how her injury occurred, the claim should be denied.
In a merit decision dated June 17, 2016, OWCP modified that prior decision to indicate
that, because the facts of the claim were in question, the claim was denied because appellant had
not established that she experienced the employment incident at the time, place, and in the
manner alleged.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of reliable, probative, and substantial
evidence,5 including that he or she is an “employee” within the meaning of FECA and that he or
she filed a claim within the applicable time limitation.6 The employee must also establish an
injury occurred in the performance of duty as alleged and that disability for work, if any, was
causally related to the employment injury.7
OWCP regulations at 20 C.F.R. § 10.5(ee) define a traumatic injury as a condition of the
body caused by a specific event or incident or series of events or incidents within a single
workday or shift.8 To determine whether an employee sustained a traumatic injury in the
performance of duty, OWCP must determine whether “fact of injury” has been established.
First, an employee has the burden of demonstrating the occurrence of an injury at the time, place,
and in the manner alleged, by a preponderance of the reliable, probative, and substantial
evidence. Second, the employee must submit sufficient evidence, generally only in the form of
medical evidence, to establish a causal relationship between the employment incident and the
alleged disability and/or condition for which compensation is claimed. An employee may
establish that the employment incident occurred as alleged, but fail to show that his or her

5

J.P., 59 ECAB 178 (2007).

6

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

7

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

8

20 C.F.R. § 10.5(ee); Ellen L. Noble, 55 ECAB 530 (2004).

4

disability and/or condition relates to the employment incident.9 It is the employee’s burden to
establish that her injury occurred at the time, place, and in the manner alleged.10
OWCP cannot accept fact of injury if there are such inconsistencies in the evidence as to
seriously question whether the specific event or incident occurred at the time, place, and in the
manner alleged, or whether the alleged injury was in the performance of duty,11 and OWCP
cannot find fact of injury if the evidence fails to establish that the employee sustained an “injury”
within the meaning of FECA. An injury does not have to be confirmed by eyewitnesses in order
to establish the fact that an employee sustained an injury in the performance of duty, as alleged,
but the employee’s statements must be consistent with surrounding facts and circumstances and
her subsequent course of action.12
ANALYSIS
The Board finds that appellant has not established fact of injury because of
inconsistencies in the evidence that cast serious doubt as to whether the specific event or incident
occurred at the time, place, and in the manner alleged. Appellant did not establish that on either
October 18 or October 20, 2014 she injured her right shoulder while performing employment
duties.
On her claim form, submitted on October 27, 2014, appellant indicated that at 10:00 a.m.
on October 20, 2014, after lifting heavy trays several times, her right shoulder and neck burned,
and she felt numbness down to her hand. On a handwritten statement attached to the claim form,
appellant indicated that on October 18, 2014 pain started when she lifted a tray of mail, and by
the end of the day her hand was swelling. She also indicated that she told a “Ms. R.,” on
October 20, 2014 that her arm was hurting. In the handwritten statement submitted with the
July 24, 2015 reconsideration request, appellant described an October 18, 2014 incident in which
she dropped a tray of mail while working due to pain in her right shoulder. On a new patient
history form dated October 29, 2014, submitted on October 26, 2015, she wrote that she had
symptoms of right shoulder, neck, and hand constant burning, numbness, and tingling that had
occurred for one to two weeks, since an October 18, 2014 injury.
Although appellant indicated that she told a “Ms. R.,” about her shoulder on October 20,
2014, the record does not include a statement from this individual. Supervisor G.M. related on
the claim form, which he had signed on October 27, 2014, that on Monday or Tuesday the
previous week appellant related that she would be going to the doctor for her shoulder. The
supervisor noted that appellant came in on October 27, 2014 requesting light duty and, when told
this was not available, asked for a CA-1. He related that she verbally indicated that the shoulder
injury occurred by throwing heavy packages, and on the claim form indicated that it was caused

9

Gary J. Watling, 52 ECAB 278, 280 (2001).

10

H.G., 59 ECAB 552 (2008).

11

Elaine Pendleton, supra note 8.

12

See Joseph H. Surgener, 42 ECAB 541 (1991).

5

by lifting heavy mail trays.
mentioned a shoulder injury.

The supervisor concluded that appellant had not previously

Dr. Manfredi signed an attending physician’s report on November 12, 2014 advising that
the diagnosed condition of rotator cuff tear was not employment related. While Dr. Sexton
maintained that appellant was not seen by a Dr. Manfredi, the record contains no clarification
from Dr. Manfredi disavowing this report or supporting a history of a work incident consistent
with any of appellant’s accounts of the claimed injury.
Although Dr. Sexton was consistent in his opinion that appellant injured her shoulder on
October 18, 2014 when she lifted a tray of mail weighing 50 to 60 pounds and felt an immediate
sharp pain, he based his opinion on a history of injury provided by appellant. As his reports only
recite the facts as told to him as a physician, and do not offer any further independent evidence
that the claimed work incident caused the alleged injury, they are insufficient to establish that the
claimed incident or injury occurred.13
Given the inconsistencies as to how appellant described her injury, the Board finds that
the varying accounts of throwing and lifting cast serious doubt as to the validity of appellant’s
claim. As such, the Board finds that appellant failed to meet her burden of proof to establish the
factual component of fact of injury. As appellant has not established an incident, as alleged, the
Board need not evaluate the medical evidence submitted.14
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 did not meet her burden of proof to establish an
employment-related injury on October 20, 2014.

13

See D.T., Docket No. 15-143 (issued February 18, 2015).

14

Paul Foster, 56 ECAB 208 (2004).

6

ORDER
IT IS HEREBY ORDERED THAT the June 17, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 14, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.T., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PATROL,
Columbus, NM, Employer
__________________________________________

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

Docket No. 15-1579
Issued: November 18, 2015

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 July 15, 2015 appellant filed a timely appeal from the May 6, 2015 nonmerit 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 the case.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for an oral hearing.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted new evidence following OWCP’s May 6, 2015 decision. However, as
OWCP did not consider this evidence in reaching a final decision, the Board may not consider it for the first time on
appeal. See 20 C.F.R. § 501.2(c)(1); Joseph F. McHale, 45 ECAB 669 (1994).

FACTUAL HISTORY
On April 24, 2013 appellant, then a 30-year-old border patrol officer, filed a traumatic
injury claim (Form CA-1), alleging that on April 11, 2013 while participating in training drills
which included running and doing lunges, she twisted her left knee. Appellant’s supervisor did
not dispute the factual elements of her claim. The employing establishment did not indicate that
appellant stopped work at that time.
In a statement dated July 11, 2014, appellant indicated that she was injured in 2013 while
attending the employing establishment’s basic training at the Federal Law Enforcement Training
Center (FLETC). She was treated by an orthopedist on April 24, 2014 and was placed on light
duty and prescribed physical therapy. Appellant reported being pregnant. She submitted
employing establishment health unit notes dated April 12 and 23, 2013 prepared by a physician
assistant, who treated her for left knee pain. Appellant reported doing lunges and jumping jacks
while training and injuring her left knee. The physician assistant diagnosed left knee pain,
possible meniscal involvement.
Appellant came under the treatment of Dr. Ralph W. Morales, an osteopath and Boardcertified orthopedist, on April 23, 2013, for a left knee injury. She reported twisting her left knee
on April 11, 2013 during physical training exercises at the FLETC. Dr. Morales diagnosed left
knee capsular strain and anterior cruciate ligament tear.
Appellant was treated by Dr. David J. Mansfield, a Board-certified orthopedist, on
July 22 and August 25, 2014, for moderate bilateral knee pain located in the patella femoral area.
She reported sustaining a work-related hyperflexion injury occurring on March 1, 2013.
Dr. Mansfield diagnosed bilateral knee pain and left anterior cruciate ligament tear and
recommended a functional left knee brace for stability. He returned appellant to sedentary lightduty work.
By letter dated August 28, 2014, OWCP advised appellant of the type of factual and
medical evidence needed to establish her claim. It specifically requested that she substantiate the
factual elements of her claim and respond to a questionnaire.
Appellant submitted reports from Dr. Morales dated August 25, 2014, previously of
record. She also submitted a narrative statement providing additional factual information
concerning the incident on April 11, 2013.
In a decision dated November 19, 2014, OWCP denied appellant’s claim finding that the
evidence did not support that the injury or events occurred in the performance of duty.
In an appeal request form dated March 12, 20153 and postmarked March 27, 2015,
appellant requested an oral telephone hearing before an OWCP hearing representative. She also
submitted additional evidence.
3

The Board notes that appellant indicated March 12, 2014 as the date of her oral hearing request. However, as
the appeal request form reflected that it was attached to the November 19, 2014 OWCP decision, the Board
concludes that appellant meant March 12, 2015.

2

In a decision dated May 6, 2015, OWCP denied appellant’s request for an oral hearing as
it found that the request was untimely filed. Appellant was informed that her request was denied
as she had not made her request for oral hearing within 30 days of November 19, 2014, and that
the request was further denied because the issues in this case could equally well be addressed by
requesting reconsideration from OWCP and submitting evidence not previously considered.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides that “a claimant for compensation not satisfied
with a decision of the Secretary ... is entitled, on request made within 30 days after the date of
the issuance of the decision, to a hearing on his claim before a representative of the Secretary.”4
Sections 10.617 and 10.618 of the federal regulations implementing this section of FECA
provide that a claimant shall be afforded a choice of an oral hearing or a review of the written
record by a representative of the Secretary.5 A claimant is entitled to a hearing or review of the
written record as a matter of right only if the request is filed within the requisite 30 days as
determined by postmark or other carrier’s date marking and before the claimant has requested
reconsideration.6 Although there is no right to a review of the written record or an oral hearing if
not requested within the 30-day time period, OWCP may within its discretionary powers grant or
deny appellant’s request and must exercise its discretion.7
ANALYSIS
Appellant requested a telephone hearing in a request dated March 12, 2015 and
postmarked on March 27, 2015. This was more than 30 days after the November 19, 2014
OWCP decision. Section 8124(b)(1) is unequivocal on the time limitation for requesting a
hearing.8 Because the hearing request was untimely filed, appellant was not entitled to an oral
hearing.
OWCP has the discretionary power to grant an oral hearing when a claimant is not
entitled to one as a matter of right. It exercised this discretion in its May 6, 2015 decision,
finding that appellant’s issue could be addressed by requesting reconsideration and submitting
additional evidence. This basis for denying her request for a hearing is a proper exercise of
OWCP’s authority.9 Accordingly, the Board finds that OWCP properly denied appellant’s
request for an oral hearing.

4

5 U.S.C. § 8124(b)(1).

5

20 C.F.R. §§ 10.616, 10.617.

6

Id. at § 10.616(a).

7

Delmont L. Thompson, 51 ECAB 155 (1999); Eddie Franklin, 51 ECAB 223 (1999).

8

William F. Osborne, 46 ECAB 198 (1994).

9

Mary B. Moss, 40 ECAB 640, 647 (1989).

3

On appeal, appellant indicated that her injury was directly related to her job and occurred
while training at FLETC. She referenced additional evidence submitted in support of her claim.
However, as noted, the Board does not have jurisdiction over the merits of the claim.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for an oral hearing.
ORDER
IT IS HEREBY ORDERED THAT the May 6, 2015 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: November 18, 2015
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

4


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

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

Docket No. 07-960
Issued: August 1, 2007

Case Submitted on the Record

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

JURISDICTION
On February 26, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ April 20, 2006 and January 30, 2007 merit decisions denying his
emotional condition claim. 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 to establish that he sustained an
emotional condition in the performance of duty.
FACTUAL HISTORY
On November 17, 2005 appellant, then a 52-year-old mail carrier, filed an occupational
disease claim alleging that he sustained major depression, generalized anxiety disorder and
somatoform disorder in the performance of duty. He asserted that he sustained “stress caused by
my supervisor and substitute worker on about August 15, 2005 and September 9, 2005.”
Appellant stopped work on July 23, 2005 and did not return. He submitted several medical

reports, dated beginning in September 2005, produced by Dr. Joseph D. Perry, an attending
clinical psychologist, and Dr. Rodney Altman, an attending osteopath.
In a November 30, 2005 letter, Martin F. Kuboff, the postmaster for the employing
establishment, stated that appellant advised him in August 2005 that he did not have any medical
problems but that he wished to resign from the employing establishment to pursue other work
opportunities. In a November 30, 2005 letter, Van F. Esenwein, a supervisor provided a similar
account of appellant’s actions around this time period.
In a December 12, 2005 letter, the Office requested that appellant submit additional
factual and medical evidence in support of his claim.
In undated statements received by the Office in January 2006, appellant alleged that
Mr. Kuboff committed discrimination and that he provided a female coworker, Paula Wozniak,
with a regular substitute carrier, but did not provide him with the same support.1 He asserted that
Mr. Kuboff violated the union contract by not providing him with a regular substitute carrier so
that he could take regular days off, plan vacations and schedule doctors’ appointments as well as
avoid working more than 2080 hours per year. Appellant claimed that Mr. Kuboff violated the
union contract by not ensuring that he took his 30-minute lunch break each day and asserted that
nobody ever directly told him that not eating was unhealthy and unsafe. He claimed that
Mr. Kuboff disclosed appellant’s private medical information with everyone at the workplace
and told them he was a “nut.” Appellant asserted that Mr. Kuboff harassed him by repeatedly
telling him to be “careful.” He also submitted the first page of a letter of mutual understanding
regarding article 30.2.G.7 of the National Agreement between the union and management.
In a March 24, 2005 statement, Mr. Kuboff indicated that Ms. Wozniak served as
appellant’s substitute carrier in accordance with the strictures of the union contract. He indicated
that since he became postmaster appellant had never been denied any form of leave and that he
worked substantially fewer than 2080 hours per year. Mr. Kuboff asserted that appellant tended
to take 15-minute smoking breaks away from his work area twice per day and claimed that he
never recorded these time periods as part of his lunch break even though such time away from
his work area would be considered part of his lunch break. He asserted that he never discussed
appellant’s private medical situation on the work floor and indicated that he treated him with
dignity and respect at all times.
In a decision dated April 20, 2006, the Office denied appellant’s emotional condition
claim on the grounds that he did not establish any compensable employment factors.
At a November 21, 2006 hearing before an Office hearing representative, appellant
provided additional details regarding his claimed employment factors. He denied Mr. Kuboff’s
assertion that he often took 15-minute smoking breaks at work. Appellant submitted a
November 19, 2004 memorandum in which an employing establishment official indicated that
there were no provisions that permitted employees to “waive” their right to a lunch break and
that all employees were entitled to at least a 30-minute lunch break for each continuous 6-hour
period of work. He also submitted additional medical reports of Dr. Perry and Dr. Altman.
1

He indicated that Ms. Wozniak would only substitute for him if he was in “desperate need.”

2

In a decision dated and finalized January 30, 2007, the Office hearing representative
affirmed the Office’s April 20, 2006 decision.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.2 On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or his frustration from not being permitted to work in a
particular environment or to hold a particular position.3
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which he claims compensation was caused or
adversely affected by employment factors.4 This burden includes the submission of a detailed
description of the employment factors or conditions which appellant believes caused or adversely
affected the condition or conditions for which compensation is claimed.5
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.6 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.7
The Board has found that administrative or personnel matters generally are unrelated to
the employee’s regular or specially assigned work duties and do not fall within the coverage of

2

5 U.S.C. §§ 8101-8193.

3

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler,
28 ECAB 125 (1976).
4

Pamela R. Rice, 38 ECAB 838, 841 (1987).

5

Effie O. Morris, 44 ECAB 470, 473-74 (1993).

6

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

7

Id.

3

the Act.8 Although the handling of leave requests, the provision of work support, the assignment
of work duties and other administrative actions are generally related to the employment, they are
administrative functions of the employer and not duties of the employee.9 However, the Board
has also found that an administrative or personnel matter will be considered to be an employment
factor where the evidence discloses error or abuse on the part of the employing establishment. In
determining whether the employing establishment erred or acted abusively, the Board has
examined whether the employing establishment acted reasonably.10
To the extent that disputes and incidents alleged as constituting harassment and
discrimination by supervisors are established as occurring and arising from an employee’s
performance of his regular duties, these could constitute employment factors.11 However, for
harassment or discrimination to give rise to a compensable disability under the Act, there must
be evidence that harassment or discrimination did in fact occur. Mere perceptions of harassment
or discrimination are not compensable under the Act.12
ANALYSIS
Appellant alleged that he sustained an emotional condition as a result of a number of
employment incidents and conditions. By decisions dated April 20, 2006 and January 30, 2007,
the Office denied appellant’s emotional condition claim on the grounds that he did not establish
any compensable employment factors. The Board must, thus, initially review whether these
alleged incidents and conditions of employment are covered employment factors under the terms
of the Act.
Appellant asserted that Mr. Kuboff violated the union contract by not providing him with
a regular substitute carrier so that he could take regular days off, plan vacations, schedule
doctors’ appointments and avoid working more than 2080 hours per year. He claimed that
Mr. Kuboff also violated the union contract by not ensuring that he took his 30-minute lunch
break each day and asserted that Mr. Kuboff shared his private medical information with
everyone at the workplace.
Regarding appellant’s allegations that the employing establishment failed to give proper
work support, wrongly denied leave, improperly assigned work duties and engaged in prohibited
sharing of private information, the Board finds that these allegations relate to administrative
matters. However, he did not submit sufficient evidence to establish that the employing
establishment committed error or abuse with respect to these matters.13 Appellant submitted the
8

See Janet I. Jones, 47 ECAB 345, 347 (1996); Jimmy Gilbreath, 44 ECAB 555, 558 (1993); Apple Gate,
41 ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 1266-67 (1988).
9

Id.

10

See Richard J. Dube, 42 ECAB 916, 920 (1991).

11

David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, 42 ECAB 603, 608 (1991).

12

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).

13

See supra notes 9 and 10 and accompanying text.

4

first page of a letter of mutual understanding regarding article 30.2.G.7 of the union contract and
a November 19, 2004 memorandum in which an employing establishment official indicated that
there were no provisions that permitted employees to “waive” their right to a 30-minute lunch
break for each continuous 6-hour period of work. However, these documents of general
application do not provide any indication that the employing establishment committed
wrongdoing in the manner claimed by appellant and he did not submit any particularized
evidence, such as the favorable findings of a grievance, to support his claim.
In addition, Mr. Kuboff indicated that Ms. Wozniak properly served as appellant’s
substitute carrier, that he never denied appellant any form of leave and that he never discussed
his private medical situation on the work floor. He noted that appellant tended to take 15-minute
smoking breaks and was not required to record these time periods as part of his lunch break, but
there is no indication that this practice violated appellant’s rights under the union contract. For
these reasons, appellant has not established a compensable employment factor under the Act with
respect to administrative matters.
Appellant alleged that Mr. Kuboff committed discrimination in that he provided
Ms. Wozniak with a regular substitute carrier, but did not provide him with the same support.
He claimed that Mr. Kuboff harassed him by telling coworkers that he was a “nut” and by
repeatedly telling him to be “careful.” The establishment denied that appellant was subjected to
harassment or discrimination and appellant has not submitted sufficient evidence to establish that
he was harassed or discriminated against by Mr. Kuboff.14 Appellant alleged that Mr. Kuboff
made statements and engaged in actions which he believed constituted harassment and
discrimination, but he provided no corroborating evidence, such as witness statements, to
establish that the statements actually were made or that the actions actually occurred.15 With
respect to his claim that Mr. Kuboff discriminated against him in favor of Ms. Wozniak,
appellant did not submit evidence, such as the favorable findings of a grievance, to support his
claim.16 Thus, appellant has not established a compensable employment factor under the Act
with respect to the claimed harassment and discrimination.
For the foregoing reasons, appellant has not established any compensable employment
factors under the Act and, therefore, has not met his burden of proof in establishing that he
sustained an emotional condition in the performance of duty.17

14

See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a claimant must substantiate allegations of
harassment or discrimination with probative and reliable evidence).
15

See William P. George, 43 ECAB 1159, 1167 (1992).

16

As previously noted, Mr. Kuboff indicated that Ms. Wozniak properly served as a substitute carrier for
appellant.
17

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record; see Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).

5

CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an emotional condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
January 30, 2007 and April 20, 2006 decisions are affirmed.
Issued: August 1, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket No. 07-1772
Issued: December 21, 2007

Case Submitted on the Record

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

JURISDICTION
On June 20, 2007 appellant filed a timely appeal from the March 28 and May 31, 2007
merit decisions of the Office of Workers’ Compensation Programs, which, respectively, denied
authorization for a change of physicians and denied compensation for partial disability. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of appellant’s
case.
ISSUES
The issues are: (1) whether the Office properly denied authorization for a change of
physicians; and (2) whether appellant is entitled to compensation for partial disability beginning
March 21, 2007.
FACTUAL HISTORY
On December 14, 2004 appellant, then a 51-year-old registry clerk, filed a claim alleging
that she developed a cumulative knee injury in the performance of duty: “Because of the
extended amount of standing, stooping and the weight and amount of heavy lifting during my

career, it has exacerbated the condition of my knees to the point where I need knee replacement
at an early age evidenced by an accelerated advance of the loss of cartilage and mobility.”
On December 13, 2004 Dr. John A. Osterkamp, the attending orthopedic surgeon,
reported that the frequent bending and stooping in appellant’s employment had exacerbated her
bilateral knee arthritis. He restricted her from any bending, stooping or kneeling and advised
that she could work at the front desk as long as she had a stool to sit on. On March 15, 2005
appellant stated that she was unable to get a job at the front desk because of her knees and
inability to walk well.
On August 16, 2005 Dr. Osterkamp reported that appellant wanted to go ahead with total
right knee replacement X-rays on September 13, 2005 showed close to complete loss of joint
space. On November 16, 2005 Dr. William C. Boeck, Jr., an orthopedic surgeon and Office
referral physician, agreed that appellant’s employment had permanently aggravated the severe
degenerative arthritis in both knees. He stated that her prognosis without further medical
treatment was poor and that symptoms were expected to improve only with a successful outcome
of total knee joint replacement arthroplasties. Dr. Boeck found that a right total knee
replacement was a reasonable and proper management of the knee problem and felt that the left
knee should be similarly operated on after a suitable period of time for recovery on the right.
On April 4, 2006 the Office accepted appellant’s claim for permanent aggravation of
bilateral degenerative knee arthritis. On August 22, 2006 Dr. Osterkamp reported that appellant
was incapable of performing her usual job and was unable to work eight hours a day with
restrictions. He stated that this restriction applied “till surgery.”
On September 29, 2006 the Office approved a right total knee arthroplasty. On
October 26, 2006 Dr. Osterkamp advised that appellant would be disabled for six months
following surgery. Appellant filed a claim for wage loss for the period November 9, 2006 to
April 9, 2007. On November 9, 2006 she underwent a total knee replacement on the right. The
Office paid compensation for temporary total disability on the daily compensation rolls.
On February 20, 2007 Dr. Osterkamp projected a return to work:
“[Appellant] is here for follow-up. She continues to have pain in her knee.
[Appellant] says it is feeling better, but the therapist worked on her yesterday and
she said that it was hurting so badly last night she had to take Vicodin and was
still drowsy from the Vicodin this morning. She still needs another two weeks of
therapy.”
***
“I do not believe that she can go to work as long as she is still taking the Vicodin
and I think she will need that for another two weeks. [Appellant] is upset with the
physical therapist because she tried to flex her so hard yesterday, so she refuses to
go back to this therapist again. I think she still needs another two weeks, so I am
going to leave it up to her adjuster to find a physical therapist that will take her. I
am putting her return to work date as March 19, 2007 because of her continued
need for narcotic medication, which is against [employing establishment] rules.
2

[Appellant] is going to return to see me in one month. When she does return to
work her restrictions will consist of no walking more than two hours per day, no
standing more than one hour per day, no bending or stooping and no squatting or
kneeling.”
Appellant returned to full-time limited duty on March 19 and 20, 2007. However, on
March 21, 2007, Dr. Osterkamp advised that she was able to work only four hours a day.
Appellant filed a claim for wage loss beginning March 21, 2007.1
On April 18, 2007 the Office gave appellant 30 days to provide additional information to
support her claim:
“In order for this Office to pay four hours of compensation per day from
March 21 to April 2, 2007, you must provide contemporaneous medical evidence
of an increase in disability as demonstrated by objective findings and/or evidence
of your employing agency’s inability to provide work within the physical
limitations related to the accepted work-related condition in your case.”
On March 20, 2007 Dr. Osterkamp reported that appellant had not been to physical
therapy (PT) for the last several days because she went back to work on March 19, 2007. He
noted that she was improving slowly but had quite a bit of soreness after working.
Dr. Osterkamp stated: “I believe that her work should be limited to four hours per day for the
next month. [Appellant] is to return to see me in one month.”
In a decision dated March 28, 2007, the Office denied appellant’s request to change
physicians. The Office noted appellant’s reasons: the time it took Dr. Osterkamp’s nurse to
obtain surgery authorization; she did not want to be treated by the assistant surgeon, Dr. Kenneth
Head; she was not automatically prescribed pain medication after surgery; she was asked to put
weight on her leg while in the hospital and experienced pain when she did so; she was placed on
a diet and lost 11 pounds in 10 days; and she was not given an order concerning PT until her
follow-up appointment after surgery. The Office stated that, in the interest of sound medical
practice, it was not the policy of the Office to transfer medical supervision unless there was some
compelling reason to do so. “Even when viewed in the most favorable light,” the Office
explained: “the reasons why you wish to switch treating physicians cannot be considered
‘compelling.’ There is no evidence to indicate that the treatment you are receiving at present is
other than proper and adequate.”
On April 2, 2007 Dr. Osterkamp explained that appellant could not work eight hours a
day:
“I only want her working four hours a day. I think that she needs further [PT].
[Appellant] has only had therapy for two weeks. I would like her to continue PT
twice a week for another month. For that reason, I would like [her] only to work
1

Appellant also filed a claim alleging that she sustained a right arm injury in the performance of duty on or about
April 3, 2007: “Injury caused by casing continuously for a longer period of time than on registry job.” That claim is
not before the Board on this appeal.

3

four hours a day. [Appellant] is restricted from standing to one hour per day and
walking to one hour per day. She is not to do any climbing and no kneeling.
[Appellant] is not to do any pushing or pulling more than 100 pounds
intermittently.
“She is going to continue the PT and see me on April 17th as scheduled.”
Appellant sought the opinion of another orthopedic surgeon, Dr. Jacob E. Tauber. On
May 8, 2007 Dr. Tauber related appellant’s history and his findings on examination. He offered
the following:
“This patient underwent total knee replacement by Dr. Osterkamp. The patient
attempted to return to work and was unable to tolerate this. This is most
reasonable given the fact that the patient does have slight laxity at her knee and is
still limping. It was appropriate to return the patient to employment, but this
should have been done on a trial basis. In fact, the patient has been unable to
tolerate eight hours of work per day due to her knee and, therefore, she should
have been returned to a four-hour-per-day schedule when this was attempted and
was unsuccessful. The patient has a continuing limp and should only be working
four hour per day for her knee.”
In a decision dated May 31, 2007, the Office denied compensation for partial disability
beginning March 21, 2007. The Office found that the medical evidence failed to establish that
she experienced an increase in objective findings that prevented her from working the light-duty
position. The Office also found no evidence that the employing establishment was unable to
provide limited duty full time. The Office noted Dr. Tauber’s May 8, 2007 report, but did not
review it because it was not contemporaneous to the period of disability claimed. The Office
found that none of the contemporaneous medical reports indicated an increase in objective
findings that would prevent appellant from working eight hours a day “as you had been before
you went to see Dr. Osterkamp after working eight hours on March 20, 2007.” Soreness, the
Office explained and her doctor’s recommendation that she work only four hours because she
had to attend PT, were insufficient reasons to support payment.
LEGAL PRECEDENT -- ISSUE 1
The United States shall furnish to an employee who is injured while in the performance
of duty, the services, appliances and supplies prescribed or recommended by a qualified
physician, which the Secretary of Labor considers likely to cure, give relief, reduce the degree of
the period of any disability or aid in lessening the amount of any monthly compensation.2
The 1974 amendment to the Federal Employees’ Compensation Act adopted the
recommendation of the National Commission on State Workmen’s Compensation Laws that “the
worker be permitted the initial selection of his physician, either from all the licensed physicians
in the state or from a panel of physicians selected or approved by the workmen’s compensation
agency.” But Congress did not restrict the Office’s power to approve appropriate medical care
2

5 U.S.C. § 8103(a).

4

after the initial choice of a physician. The Office still has the general objective of ensuring that
an employee recovers from the injury to the fullest extent possible in the shortest amount of time.
The Office, therefore, has broad administrative discretion in choosing means to achieve this goal
within the limitation of allowing an employee the initial choice of a doctor.3
Section 10.316 of Title 20 of the Code of Federal Regulations is an appropriate exercise
of that discretion that does not conflict with 5 U.S.C. § 8103(a).4 This section provides:
“(a) When the physician originally selected to provide treatment for a
work-related injury refers the employee to a specialist for further medical care,
the employee need not consult [the Office] for approval. In all other instances,
however, the employee must submit a written request to [the Office] with his or
her reasons for the desired change of physician.
“(b) [The Office] will approve the request if it determines that the reasons
submitted are sufficient. Requests that are often approved include those for
transfer of care from a general practitioner to a physician who specializes in
treating condition like the work related one or the need for a new physician when
an employee has moved. The employer may not authorize a change of
physicians.”5
ANALYSIS -- ISSUE 1
The Office gave due consideration to appellant’s reasons for requesting a change of
physicians. However, there is no evidence that the treatment she was receiving from her
orthopedic surgeon, Dr. Osterkamp, was other than proper and adequate, notwithstanding her
complaints prior to or following surgery. The Office found no compelling reason to authorize
such a change. The Board finds that the Office properly exercised its discretion in the matter and
will affirm the March 28, 2007 decision denying authorization. This does not mean appellant
may not seek medical care elsewhere, only that the Office will not be financially responsible for
unauthorized services, appliances or supplies.

3

Wayne D. Kramp, 32 ECAB 1115, 1118 (1981).

4

See id. (holding the same with respect to the section 10.400(b), the current section’s predecessor).

5

20 C.F.R. § 10.316 (1999).

5

LEGAL PRECEDENT -- ISSUE 2
The Act provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.6 “Disability” means the incapacity, because
of an employment injury, to earn the wages the employee was receiving at the time of injury. It
may be partial or total.7
ANALYSIS -- ISSUE 2
The Office denied compensation for partial disability on the grounds that appellant had
returned to full-time limited duty and, therefore, had a burden to show either an increase in
objective findings or the employing establishment’s inability to provide limited duty full time.
The Office thus adjudicated the matter as one of recurrence.8 The Board finds this analysis
flawed. It mischaracterizes the essential facts of the case. It cannot reasonably be argued that
appellant had successfully demonstrated her capacity to work limited duty on a full-time basis.
Appellant underwent a total knee replacement on November 9, 2006, surgery that disabled her
for six months as her surgeon Dr. Osterkamp estimated. After a prolonged period of total
disability and still well short of the six-month estimate, appellant attempted a return to limited
duty but was unable to tolerate full-time work more than two days. Such a short-lived and
unsuccessful attempt to return to duty does not place a burden on appellant to establish a
recurrence of disability.9 Instead, the case is analogous to one in which a totally disabled
claimant is medically cleared to return to part-time duty.
Dr. Osterkamp supported that appellant was incapable of working eight hours a day. The
explanation, he reported, was that she needed further PT due to limitations following surgery.
Appellant had only two weeks of therapy and needed more. Dr. Tauber, another orthopedic
surgeon, agreed that appellant should be working only four hours a day. He examined her and
explained that her inability to tolerate an eight-hour workday was “most reasonable,” given the
fact that she had slight laxity at her knee and was still limping. While it was appropriate to
return her to work on a trial basis, Dr. Tauber reported that she should have been returned to a
four-hour schedule when that proved unsuccessful.

6

5 U.S.C. § 8102(a).

7

20 C.F.R. § 10.5(f) (1999).

8

When an employee who is disabled from the job he held when injured on account of employment-related residuals
returns to a light-duty position or the medical evidence of record establishes that he can perform the light-duty position,
the employee has the burden to establish by the weight of the reliable, probative and substantial evidence a recurrence
of total disability and to show that he cannot perform such light-duty work. As part of this burden, the employee must
show a change in the nature and extent of the injury-related condition or a change in the nature and extent of the
limited-duty job requirements. Terry R. Hedman, 38 ECAB 222, 227 (1986).
9

Fred Reese, 56 ECAB ___ (Docket No. 05-586, issued June 9, 2005); Janice F. Migut, 50 ECAB 166 (1998)
(claimant attempted to return to work for two days and then claimed compensation for total disability); see also
Cheryl A. Weaver, 51 ECAB 308 (2000) (claimant stopped work after only one day); Carl C. Graci, 50 ECAB 557
(1999) (claimant stopped work after only two hours).

6

The weight of the medical evidence establishes that appellant was capable of working
limited duty only four hours a day beginning March 21, 2007. There is no medical opinion to the
contrary and no indication that appellant’s inability to work full time was due to any factor other
than her employment-related condition.10 The Board will reverse the Office’s May 31, 2007
decision denying compensation for partial disability.
CONCLUSION
The Board finds that the Office properly denied authorization for a change of physicians.
The Board also finds that appellant is entitled to compensation for partial disability beginning
March 21, 2007.
ORDER
IT IS HEREBY ORDERED THAT the May 31, 2007 decision of the Office of
Workers’ Compensation Programs is reversed and the case remanded of further action consistent
with this opinion. The Office’s March 28, 2007 decision is affirmed.
Issued: December 21, 2007
Washington, DC

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

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

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

10

Janice F. Migut, supra note 9.

7