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

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

Docket No. 19-1767
Issued: March 18, 2020

Case Submitted on the Record

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

JURISDICTION
On August 20, 2019 appellant filed a timely appeal from a July 8, 2019 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish a diagnosed medical
condition causally related to the accepted May 15, 2019 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the July 8, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

FACTUAL HISTORY
On May 22, 2019 appellant, then a 33-year-old city letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on May 17, 2019 she developed anxiety and stress because she
was caught in the middle of a shooting while in the performance of duty. On the reverse side of
the claim form her supervisor controverted her claim, asserting that the date of the incident was
incorrect and that there was no evidence that appellant needed to miss work.
In an accompanying narrative statement, appellant noted that she was caught in the middle
of a shootout while delivering mail. She indicated that she notified her manager of the incident
and attempted to complete her route. Appellant asserted that she noticed “mysterious, tinted
vehicles speeding from one end to the next with their guns toted and shooting,” along her route.
She related that she was unable to complete her route and stopped work for the day after informing
her manager.
In a May 23, 2019 letter, appellant’s supervisor controverted her claim. She clarified that
the employment incident took place on May 15, 2019, not May 17, 2019. Appellant’s supervisor
also alleged that appellant had not been seen by a physician to diagnose an injury or determine if
she needed to stop work for any length of time. She further argued that appellant’s emotional
condition could have been caused by a personal issue and not the employment incident.
Appellant’s supervisor noted that appellant stopped work on May 15, 2019 because she did not
feel safe. She indicated that appellant returned to work on May 22, 2019 and continued to deliver
mail on the same route.
In a development letter dated May 31, 2019, OWCP informed appellant that the evidence
of record was insufficient to establish her claim. It advised her of the type of factual and medical
evidence needed and provided a questionnaire for her completion. In a separate development letter
of even date, OWCP notified the employing establishment of appellant’s emotional condition
claim. It requested comments from a knowledgeable supervisor and any additional information
such as witness statements or corroborating documents. OWCP afforded both parties 30 days to
submit the necessary evidence.
In response, appellant submitted two documents that verified that she saw Veronica M.
Kirkland, Ph.D., a licensed clinical professional counselor, on May 21 and 30, 2019.
In a June 30, 2019 e-mail, the employing establishment responded to OWCP’s
development letter. It noted that appellant was able to perform her required duties. It indicated
that there were no witness statements or additional supporting documents.
By decision dated July 8, 2019, OWCP denied appellant’s claim, finding that, while she
had established that the May 15, 2019 incident occurred in the performance of duty, as alleged,
she had not submitted medical evidence diagnosing a medical condition in connection with the
accepted incident. As such, it concluded that appellant had not established the medical component
of fact of injury.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,4 that an injury was sustained in the performance of duty, as
alleged, and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.5 These are the essential elements of each and every
compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.6
To establish an emotional condition in the performance of duty, a claimant must submit:
(1) factual evidence identifying an employment factor or incident alleged to have caused or
contributed to his or her claimed emotional condition; (2) medical evidence establishing that he or
she has a diagnosed emotional or psychiatric disorder; and (3) rationalized medical opinion
evidence establishing that the accepted compensable employment factors are causally related to
the diagnosed emotional condition.7
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.8 The opinion of the physician must be based on a complete factual
and medical background of the claimant, must be one of reasonable medical certainty, and must
be supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment incident identified by the claimant.9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a diagnosed
emotional condition causally related to the accepted May 15, 2019 employment incident.
Appellant alleged that she developed an emotional condition, experiencing anxiety and
stress after being caught in the middle of a shooting while delivering mail in the performance of
duty. OWCP accepted that the May 15, 2019 employment incident occurred, as alleged, in the
3

Supra note 1.

4

R.S., Docket No. 19-1484 (issued January 13, 2020); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
5

L.L., Docket No. 19-1106 (issued October 18, 2019); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6
20 C.F.R. § 10.115; M.S., Docket No. 19-1096 (issued November 12, 2019); L.M., Docket No. 13-1402 (issued
February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
7

M.K., Docket No. 19-0498 (issued October 3, 2019); J.N., Docket No. 19-0215 (issued July 15, 2019); George H.
Clark, 56 ECAB 162 (2004).
8

J.D., Docket No. 19-0382 (issued January 3, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

9

M.H., Docket No. 18-0873 (issued December 18, 2019); Leslie C. Moore, 52 ECAB 132 (2000).

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performance of duty. However, it noted that appellant failed to establish a diagnosed medical
condition causally related to the accepted incident.
Appellant submitted two documents that showed she saw Dr. Kirkland on May 21 and
30, 2019. The reports from Dr. Kirkland do not constitute competent medical evidence. Section
8101(2) of FECA defines the term “physician” to include surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their
practice as defined by state law.10 However, there is no evidence that Dr. Kirkland, a licensed
counselor, is a licensed clinical psychologist, which would qualify her as a “physician” as defined
by FECA.11 Accordingly, as appellant has not submitted medical evidence diagnosing an
emotional condition in connection with the accepted employment incident, the Board finds that
she has not met her burden of proof to establish her claim.12
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a diagnosed
medical condition causally related to the accepted May 15, 2019 employment incident.

10

5 U.S.C. § 8101(2).

11

T.M., Docket No. 17-1525 (issued January 10, 2018). The Board also notes that these documents did not contain
a diagnosis.
12

See L.L., supra note 5.

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ORDER
IT IS HEREBY ORDERED THAT the July 8, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 18, 2020
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
BUSTLETON STATION, Philadelphia, PA,
Employer
__________________________________________

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Appearances:
Richard A. Daniels, for the appellant
Office of Solicitor, for the Director

Docket No. 14-604
Issued: July 2, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 24, 2014 appellant, through her representative, filed a timely appeal from an
October 28, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP)
finding that she did not establish continuing disability for work after the prior termination of her
compensation benefits. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that she was disabled for work on and after
May 5, 2013 due to accepted cervical and lumbar sprains, bilateral shoulder and knee contusions,
a torn left medial meniscus and temporary aggravation of bilateral knee arthritis.
On appeal, appellant’s representative contends that OWCP improperly characterized
Dr. Joseph A. Jelen, Jr., a Board-certified orthopedic surgeon, as an impartial medical examiner
1

5 U.S.C. § 8101 et seq.

as there was no conflict of medical evidence at the time of his selection. Alternatively, he asserts
that Dr. Jelen’s opinion should not be accorded the weight of the medical evidence because his
reports were poorly rationalized.
FACTUAL HISTORY
OWCP accepted that on April 2, 2009 appellant, then a 55-year-old vending technician,
sustained cervical and lumbar sprains, bilateral shoulder and knee contusions, a torn left medial
meniscus and a temporary aggravation of bilateral knee arthritis when a cart of boxes filled with
coins toppled over on her.
Dr. Walter W. Dearolf, III, an attending Board-certified orthopedic surgeon, followed
appellant beginning on April 3, 2009.2 He diagnosed cervical and thoracic strains and bilateral
shoulder and knee contusions, directly related to the April 2, 2009 incident. In reports through
August 17, 2009, Dr. Dearolf diagnosed right-sided sciatica and a left rotator tear. He prescribed
periodic lumbar epidural injections and bilateral Synvisc injections.
In reports from May 12 to July 10, 2009, Dr. Leonard A. Bruno, an attending
neurosurgeon, held appellant off work beginning on May 13, 2009. He diagnosed a chronic
herniated disc at C5-6 exacerbated by the April 2, 2009 cervical sprain and lumbar degenerative
disc disease with facet arthropathy and right-sided sciatica aggravated by the April 2, 2009
lumbar sprain.
Appellant returned to part time, limited-duty work on May 18, 2009. Dr. Dearolf
continued to limit her to working four hours a day light duty. On October 16, 2009 he performed
an arthroscopic repair of the left rotator cuff. Dr. Dearolf held appellant off work through
June 2010.3 Appellant received appropriate wage-loss compensation through October 2010,
when she returned to full-time light-duty work. OWCP accepted a March 5, 2011 recurrence of
disability regarding the left knee. Appellant returned to part-time light-duty work in April 2011
and was separated from the employing establishment effective August 3, 2011 as there was no
light duty available within her restrictions.4 OWCP placed her case on the periodic rolls
effective October 22, 2011.
On December 8, 2011 Dr. Dearolf performed an arthroscopic repair of a medial meniscal
tear of the left knee and performed steroid injections in the right knee to address degenerative
joint disease. Appellant underwent periodic lumbar epidural steroid injections through
May 2012.
2

An April 30, 2009 magnetic resonance imaging (MRI) scan showed degenerative disc disease with disc
protrusions and osteophytes from C3-7 and a fluid collection impacting the thecal sac at T7-8.
3

A May 4, 2010 MRI scan of the left knee showed a torn posterior medial meniscus with Baker’s cyst and soft
tissue swelling. On September 30, 2011 OWCP obtained a second opinion from Dr. Robert Franklin Draper, Jr., a
Board-certified orthopedic surgeon, who recommended left knee arthroscopy.
4

An August 19, 2011 electromyography (EMG) and nerve conduction velocity (NCV) studies showed moderate
chronic denervation from L4 to S1. September 12, 2011 EMG and NCV studies showed right C4-6 denervation,
indicative of right C4, C6 radiculopathy.

2

In March 19, 2012 reports, Dr. Dearolf opined that appellant was developing a frank
cervical radiculopathy with numbness in the right fourth and fifth fingers.5
On May 24, 2012 OWCP obtained a second opinion from Dr. Robert Allen Smith, a
Board-certified orthopedic surgeon, who found appellant able to perform full-time light-duty
work. In a June 17, 2012 supplemental report, Dr. Smith opined that appellant had no active
residuals of the accepted injuries. He attributed her symptoms to idiopathic degenerative
osteoarthritis, unrelated to the accepted injuries.
In a July 10, 2012 report, Dr. Dearolf opined that the accepted injuries aggravated
appellant’s preexisting degenerative arthritis and likely accelerated the degenerative process.
OWCP found a conflict between Dr. Dearolf, for appellant, and Dr. Smith, for the
government. To resolve the conflict, it selected Dr. Jelen, a Board-certified orthopedic surgeon,
as impartial medical examiner. Dr. Jelen provided an August 21, 2012 report reviewing the
medical record and statement of accepted facts. On examination, he noted limited cervical and
lumbar motion and a loss of 15 degrees internal rotation of the left arm. Dr. Jelen diagnosed a
cervical strain and cervical radiculopathy superimposed on degenerative joint disease, a
lumbosacral strain, right-sided lumbar radiculopathy superimposed on degenerative disc disease.
He opined that the accepted injuries had ceased without residuals and that appellant’s symptoms
were due to preexisting degenerative arthritis. Dr. Jelen found her able to perform full-time duty
with lifting restricted to 35 pounds.
In September 11, 2012 reports, Dr. Dearolf noted that appellant still related significant
lumbar pain, left knee discomfort and a positive sitting root test. He restricted her to working
four hours a day sedentary duty. On January 9, 2013 appellant underwent a right L3-S1 steroid
facet block. In a February 11, 2013 report, Dr. Dearolf opined that she was totally disabled for
work for a minimum of six months.
OWCP referred appellant to Dr. Jelen for an updated examination after the facet block.
In a February 19, 2013 report, Dr. Jelen found full cervical motion, inconsistent lumbar
tenderness, inconsistent strength testing of the lower extremities and medial tenderness of the left
knee. He diagnosed resolved cervical and lumbar strains with radiculopathy and a resolved
aggravation of left knee arthritis. Dr. Jelen found appellant able to return to full duty with no
restrictions attributable to the accepted injuries.
By notice dated March 4, 2013, OWCP advised appellant that it proposed to terminate
her wage-loss and medical compensation benefits because the accepted injuries had ceased
without residuals, based on Dr. Jelen’s opinion as the weight of the medical evidence.
Appellant’s representative responded by April 3, 2013 letter, asserting that appellant
continued to be partially disabled for work. He submitted a March 27, 2013 report from
Dr. Dearolf finding that appellant could perform sedentary duty for two to four hours a day. He
5

An April 4, 2012 MRI scan showed mild disc bulges at all levels from C2-7 with degenerative changes from
C5-7. A May 29, 2012 MRI scan showed disc bulges at L1-2, L3-4 and L4-5. An April 20, 2012 EMG and NCV
study showed moderate right-sided C6 radiculopathy.

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reviewed Dr. Jelen’s opinion and explained that appellant still had right-sided lumbar
radiculopathy requiring periodic epidural injections and left knee pain.
OWCP then requested a supplemental report from Dr. Jelen regarding the cause of
appellant’s symptoms. Dr. Jelen submitted an April 5, 2013 report opining that appellant’s pain
symptoms were not related to the accepted injuries. He noted that her pain was tolerable and did
“not represent a significant disability that would prevent her from working.”
By decision dated April 10, 2013, OWCP terminated appellant’s wage-loss and medical
benefits effective May 5, 2013, based on Dr. Jelen’s opinion as the weight of the medical
evidence.
In an April 15, 2013 letter, appellant’s representative requested a telephonic hearing, held
August 12, 2013. During the hearing, he asserted that Dr. Jelen could not serve as impartial
medical examiner as there was no conflict of medical opinion when he was selected. Appellant’s
representative contended that Dr. Smith’s second opinion examination pertained only to whether
the left knee arthroscopy was work related. Therefore, Dr. Jelen was only a second opinion
physician regarding all other issues. Following the hearing, appellant’s representative submitted
March 2 and May 6, 2013 reports from Dr. Dearolf finding a positive siting root test on the right,
mild medial joint line tenderness in the left knee and mild left quadriceps weakness. He also
provided December 12, 2012 and March 25, 2013 physical therapy prescriptions from
Dr. Dearolf.
By decision dated and finalized October 28, 2013, OWCP denied modification on the
grounds that the additional medical evidence submitted was insufficient to establish that
appellant continued to have residuals of the accepted injuries on and after May 5, 2013. It found
that Dr. Dearolf’s additional reports were insufficient to shift the weight of the medical evidence
or require additional development.
LEGAL PRECEDENT
Once OWCP has accepted a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.6 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.7
After termination or modification of benefits, clearly warranted on the basis of the
evidence, the burden for reinstating compensation benefits shifts to the claimant. In order to
prevail, the claimant must establish by the weight of reliable, probative and substantial evidence
that he or she had an employment-related disability that continued after termination of

6

Bernadine P. Taylor, 54 ECAB 342 (2003).

7

Id.

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compensation benefits.8 For conditions not accepted by OWCP as being employment related, it
is the employee’s burden to provide rationalized medical evidence sufficient to establish causal
relation.9 The fact that a condition’s etiology is unknown or obscure neither relieves appellant of
the burden of establishing a causal relationship by the weight of the medical evidence, nor shifts
the burden of proof of OWCP to disprove an employment relationship.10
Section 8123(a) of FECA provides that when there is a disagreement between the
physician making the examination for the United States and the physician of the employee, a
third physician shall be appointed to make an examination to resolve the conflict.11 When there
are opposing medical reports of virtually equal weight and rationale, the case must be referred to
an impartial medical specialist, pursuant to section 8123(a), to resolve the conflict in the medical
evidence.12
ANALYSIS
OWCP accepted that appellant sustained cervical and lumbar sprains, bilateral shoulder
and knee contusions, a torn left medial meniscus and a temporary aggravation of bilateral knee
arthritis on April 2, 2009 when her coin cart toppled over on her. Dr. Bruno, an attending
neurosurgeon, opined that the incident aggravated a preexisting C5-6 disc herniation and
right-sided lumbar sciatica. Dr. Dearolf, an attending Board-certified orthopedic surgeon,
performed an arthroscopic repair of the left medial meniscus on December 8, 2011. He held
appellant off work or limited her to part-time sedentary duty due to active residuals of the
accepted injuries. On May 24, 2012 OWCP obtained a second opinion from Dr. Smith, a
Board-certified orthopedic surgeon, who found that accepted conditions had resolved. To
resolve the conflict of medical opinion, it selected Dr. Jelen, a Board-certified orthopedic
surgeon, who submitted August 21, 2012, February 19 and April 5, 2013 reports explaining in
detail that appellant no longer had any residuals of the accepted injuries as her subjective
symptoms were due to idiopathic degenerative arthritis.
Based on Dr. Jelen’s opinion as the weight of the medical evidence on April 10, 2013
OWCP terminated appellant’s wage-loss and medical compensation benefits effective
May 5, 2013 on the grounds that the accepted injuries ceased without residuals or work
limitations. The burden now shifts to appellant to demonstrate that she continued to be disabled
for work on and after May 5, 2013 due to the accepted injuries.13
At an August 12, 2013 hearing request, appellant’s representative asserted that there was
no conflict of medical opinion between Dr. Smith and Dr. Dearolf and that Dr. Jelen therefore
8

See Virginia Davis-Banks, 44 ECAB 389 (1993); see also Howard Y. Miyashiro, 43 ECAB 1101, 1115 (1992).

9

Alice J. Tysinger, 51 ECAB 638 (2000).

10

Judith J. Montage, 48 ECAB 292, 294-95 (1997).

11

5 U.S.C. § 8123(a); Robert W. Blaine, 42 ECAB 474 (1991).

12

Delphia Y. Jackson, 55 ECAB 373 (2004).

13

Virginia Davis-Banks, supra note 8.

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should be considered merely a second opinion physician and not an impartial medical examiner.
The Board finds, however, that there was a clear conflict of medical opinion between Dr. Smith
and Dr. Dearolf regarding the nature and extent of the accepted injuries. Therefore, OWCP
properly selected Dr. Jelen to serve as an impartial medical examiner.14
Following the hearing, appellant’s representative submitted new reports and physical
therapy prescriptions from Dr. Dearolf, noting right-sided lumbar sciatica, mild medial joint line
tenderness in the left knee and mild left quadriceps weakness. However, Dr. Dearolf did not
explain the medical reasons why those findings were caused by the accepted injuries and not
preexisting osteoarthritis and degenerative disc disease. His opinion is therefore insufficient to
shift the weight of the evidence in appellant’s favor. Also, as Dr. Dearolf was on one side of the
conflict resolved by Dr. Jelen, Dr. Dearolf’s additional reports are insufficient to overcome the
weight accorded to the impartial medical examiner or to create a new conflict.15 Therefore,
OWCP’s October 28, 2013 decision finding that appellant did not establish that she continued to
have residuals of the accepted injuries on and after May 5, 2013 is appropriate under the law and
facts of the case.
On appeal, appellant’s representative contends that OWCP improperly characterized
Dr. Jelen as an impartial medical examiner as there was no conflict of medical evidence at the
time of his selection. Alternatively, he asserts that Dr. Jelen’s opinion should not be accorded
the weight of the medical evidence because his reports were poorly rationalized. As stated,
OWCP properly denied modification as Dr. Dearolf’s opinion was insufficient to shift the weight
of the medical evidence in appellant’s favor or to require further development by OWCP.
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 establish continuing work-related disability on and
after May 5, 2013.

14

5 U.S.C. § 8123(a); supra note 12.

15

See Virginia Davis-Banks, supra note 8, Dorothy Sidwell, 41 ECAB 857 (1990).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 28, 2013 is affirmed.
Issued: July 2, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.P., Appellant
and
NEW YORK CITY POLICE DEPARTMENT,
New York, NY, Employer
__________________________________________
Appearances:
Appellant, pro se
Miriam D. Ozur, Esq., for the Director

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Docket No. 06-1274
Issued: January 29, 2007

Oral Argument November 16, 2006

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

JURISDICTION
On May 8, 2006 appellant filed a timely appeal of a May 23, 2005 merit decision of the
Office of Workers’ Compensation Programs which denied his claim. He also appealed an
April 13, 2006 Office decision denying merit review. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant’s September 12, 2001 injury falls within the
purview of 5 U.S.C. § 8191; and (2) whether the Office properly refused to reopen appellant’s
claim for further review of the merits pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On February 26, 2004 appellant, then a 45-year-old retired New York Police Department
(NYPD) detective, filed a Form CA-721, law enforcement officer’s claim. He alleged that on
September 12, 2001, during the recovery efforts at the World Trade Center, he injured his right
shoulder while lifting a large piece of metal. In support of his claim, appellant submitted

medical evidence showing that he sustained a right rotator cuff tear for which he underwent
surgery on June 6, 2002. Appellant also submitted documentary evidence showing that he was
injured in the line of duty and a Department of Justice credential dated September 30, 1999
stating that he was deputized as a U.S. Marshal, with the appointment to expire
October 31, 2001. On January 15, 2004 accidental disability retirement was approved by the
NYPD. By letter dated March 24, 2004, Lieutenant Joseph F. Campisi of the NYPD noted that
appellant had been working with the arson/explosives squad on September 11, 2001 and was a
first responder to the World Trade Center. He stated that appellant was requesting coverage
under section 8191 of the Federal Employees’ Compensation Act.1
By letter dated April 1, 2004, the Office informed appellant of the specific requirements
of section 8191. In an April 21, 2004 letter, Lieutenant Campisi opined that appellant fulfilled
the requirements of section 8191 as he was both preventing a crime against the United States and
was also attempting to apprehend those who committed the crime.
In a June 7, 2004 decision, the Office denied the claim, finding that the evidence did not
establish that appellant’s injury was covered by section 8191.
On June 26, 2004 appellant requested a review of the written record. In a November 24,
2004 decision, an Office hearing representative affirmed the June 7, 2004 decision. On
March 22, 2005 appellant requested reconsideration, alleging that he additionally sustained a
nasal polyp condition in the line of duty and submitted supportive medical evidence. By
decision dated May 23, 2005, the Office denied modification of the previous decisions.
On April 7, 2006 appellant again requested reconsideration, reiterating his argument that
his claim fell under the purview of section 8191. In an April 13, 2006 decision, the Office
denied his request for reconsideration of the merits.
LEGAL PRECEDENT -- ISSUE 1
Under the Act, an individual seeking compensation benefits has the burden of proof to
establish the essential elements of his claim, including the fact that he is an employee of the
United States within the meaning of the Act.2 Appellant makes no claims to federal employment
and asserts that he is covered as an officer as explained below.
In pertinent part, 5 U.S.C. § 8191 provides that an eligible officer is any person who is
determined by the Secretary of Labor in her discretion to have been on any given occasion:
“(1) A law enforcement officer and to have been engaged on that occasion in the
apprehension or attempted apprehension of any person -(A) for the commission of a crime against the United States; or

1

5 U.S.C. §§ 8101-8193.

2

See Louis T. Blair, Jr., 54 ECAB 348 (2003).

2

(B) who at that time was sought by a law enforcement authority of the
United States for the commission of a crime against the United States; or
(C) who at that time was sought as a material witness in a criminal
proceeding instituted by the United States; or
“(2) a law enforcement officer and to have been engaged on that occasion in
protecting or guarding a person held for the commission of a crime against the
United States or as a material witness in connection with such a crime; or
“(3) a law enforcement officer and to have been engaged on that occasion in the
lawful prevention of or lawful attempt to prevent, the commission of a crime
against the United States....”3
Office regulations provide that benefits are available to law enforcement officers who are
not “employees” under 5 U.S.C. § 8101, who are determined in the discretion of the Office to
have been engaged in the activities listed in section 8191 of the Act.4 Benefits are payable when
an officer is injured while apprehending or attempting to apprehend an individual for the
commission of a federal crime. The fact that an injury is related in some way to the commission
of a federal crime does not necessarily bring the injury within the coverage of the Act.5 For
benefits to be payable when an officer is injured preventing or attempting to prevent a federal
crime, there must be objective evidence that a federal crime is about to be committed.6 Based on
the facts available at the time of the event, the officer must have an awareness of sufficient
information which would lead a reasonable officer, under the circumstances, to conclude that a
federal crime was in progress or about to occur and there must be sufficient evidence that the
officer was in fact engaged in actual or attempted apprehension of a federal criminal or
prevention of a federal crime.7
The Board has recognized that the issue of whether a law enforcement officer was
attempting to apprehend someone for or prevent the commission of a federal crime turns initially
on the question of whether, at the time the injury was sustained, the local law enforcement
officer knew that a federal crime or potential federal crime was being committed and, therefore,
formed the intent to apprehend someone for or to prevent the commission of a federal crime.
Knowledge of a potential federal crime at the time of injury or death does not, alone establish
eligibility to receive benefits under the Act. The claimant must establish that the activities in

3

5 U.S.C. § 8191.

4

20 C.F.R. § 10.735(b).

5

20 C.F.R. § 10.738(a).

6

20 C.F.R. § 10.738(b).

7

20 C.F.R. § 10.739.

3

which he was engaged at the time of injury constituted the apprehension or attempted
apprehension of a federal offender or the lawful prevention of or lawful attempt to prevent the
commission of a federal crime.8
ANALYSIS -- ISSUE 1
The Board finds that appellant is not entitled to coverage under section 8191 of the Act
for the shoulder injury he sustained on September 12, 2001 at the World Trade Center.
Appellant alleged that he was engaged in the apprehension or attempted apprehension of a
person for the commission of a crime against the United States because he was specifically
looking for an Arabic male and was thus entitled to coverage under parts (1) or (2) of section
8191. The record, however, supports that on September 12, 2001 he was working in his capacity
as an NYPD detective engaged in search and rescue efforts at the World Trade Center site
following after the September 11, 2001 terrorist attack. He sustained his right rotator cuff injury
while moving a large section of metal from a collapsed building. Language in the legislative
history of section 8191 indicates that Congress intended this section to apply to injuries sustained
by local law enforcement officials “where the injury was sustained in active pursuit of a federal
law breaker.”9 There is no evidence of record that appellant was injured while actively engaged
in the apprehension or attempted apprehension of a person who had committed a crime against
the United States but was rather performing laudable search and rescue duties at the World Trade
Center site.10
Appellant also contends that he is entitled to coverage under part (3) of section 8191 as
on September 12, 2001 he was engaged in the lawful prevention of a crime against the United
States because he was part of an effort to identify, locate and prevent other attacks. This is not
supported by the record. The Board has recognized that the issue of whether a local law
enforcement office was attempting to prevent the commission of a federal crime turns initially on
the question of whether, at the time the injury was sustained, the officer had knowledge that a
federal crime was being or about to be committed and, therefore, formed the intent to prevent the
commission of a federal crime.11 The Board has held that section 8191 requires that the threat
must be actual and imminent.12 In this case, the record does not reflect that appellant had the
intent to prevent the commission of a federal crime or that he knew a federal crime was being
committed at the time he was injured on September 12, 2001. Rather, the terrorist attack had
occurred on September 11, 2001. At the time appellant sustained his shoulder injury, he was
engaged in rescue and recovery efforts. Appellant, therefore, did not establish that he was
entitled to coverage under part 3 of section 8191.

8

Michael Kosowski, 57 ECAB ____ (Docket No. 04-2263, issued November 22, 2005).

9

Statement by Congressman Poff, Congressional Record, March 27, 1968, cited in Kenneth Dudonis, 37 ECAB
287 (1986) at note 7.
10

Id.

11

See Morris W. Farlow, 48 ECAB 659 (1997).

12

See Alfred A. Danna, 47 ECAB 789 (1996).

4

While the Act is remedial in nature and should be broadly and liberally construed in
accord with its purpose, the primary rule of statutory construction is to give effect to legislative
intent.13 The Board has held that section 8191 was not intended to cover every event that could
be remotely connected to the real or alleged commission of a federal crime, but rather to cover
the specific occurrence or prevention of a federal crime.14 Although section 8191 does not
explicitly state that in order to be eligible an officer must be aware of a federal link, the
legislative history supports that the local officer must be purposely, not accidentally, engaged in
the federal law enforcement activity.15 The purpose of section 8191 is to provide compensation
benefits for state and local law enforcement officers who expose themselves to the dangers of
enforcing federal laws or who provide assistance to federal authorities.16
Appellant’s argument that he prevented the commission of a crime against citizens of the
United States on September 12, 2001 is not convincing. His search and rescue effort cannot be
construed as “the lawful prevention of or lawful attempt to prevent the commission of a crime
against the United States.”17 While his actions were certainly praiseworthy, he did not act with
the necessary intent to prevent the commission of a federal crime. The Board finds this lack of
intent precludes coverage under part 3 of section 8191.
The Board has no power to enlarge upon the specific terms or the statute or to grant
benefits on a basis other than those provided by the Act.18 At the time of his shoulder injury on
September 12, 2001, appellant was not attempting to apprehend someone for or to prevent the
commission of a federal crime. He, therefore, is not eligible to receive compensation benefits
under section 8191 of the Act.19 The Board will not rule on the question of the significance, if
any, of the Intergovernmental Personnel Act or appellant’s status, at the time of his injury, as a
special Deputy United States Marshal.20 These questions were raised only obliquely in the
record and were not asserted by appellant as a basis for eligibility nor developed by the Office.
13

Michael Kosowski, supra note 8.

14

See Michael Ponenti, 34 ECAB 319 (1982).

15

See Lance D. Coleman, 41 ECAB 604 (1990) (listing congressional comments to this effect).

16

Michael Kosowski, supra note 8.

17

5 U.S.C. § 8191(3).

18

Morris W. Farlow, supra note 11.

19

With his March 22, 2005 reconsideration request, appellant also contended that his nasal condition should be
covered under section 8191. The Board has no jurisdiction over this claim as the Office has not adjudicated whether
his nasal condition was related to federal employment. The Board’s jurisdiction is limited to the deliberation of
appeals from final decisions of the Office. 20 C.F.R. § 501.2c. The Board notes that this claim would also not fall
within the purview of section 8191 of the Federal Employees’ Compensation Act for the reasons stated above. The
record also does not support that appellant established entitlement under the Intergovernmental Personnel Act,
which permits temporary assignments between eligible governments and institutions and the Federal Government.
5 U.S.C. § 3371 et seq.; see Cary S. Brenner, 55 ECAB 739 (2004).
20

The Intergovernmental Personnel Act establishes a process for the temporary assignment or State of municipal
employees to Federal Government activities or projects. 5 U.S.C. § 3371 et seq., see Cary S. Brenner, supra
note 19.

5

LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of the Federal Employees’ Compensation Act vests the Office with
discretionary authority to determine whether it will review an award for or against compensation,
either under its own authority or on application by a claimant.21 Section 10.606(b)(2) of Office
regulations provides that a claimant may obtain review of the merits of the claim by either:
(1) showing that the Office erroneously applied or interpreted a specific point of law;
(2) advancing a relevant legal argument not previously considered by the Office; or
(3) submitting relevant and pertinent new evidence not previously considered by the Office.22
Section 10.608(b) provides that when an application for reconsideration does not meet at least
one of the three requirements enumerated under section 10.606(b)(2), the Office will deny the
application for reconsideration without reopening the case for a review on the merits.23 Evidence
or argument that repeats or duplicates evidence previously of record has no evidentiary value and
does not constitute a basis for reopening a case.24 Likewise, evidence that does not address the
particular issue involved does not constitute a basis for reopening a case.25
ANALYSIS -- ISSUE 2
With his April 7, 2006 reconsideration request, appellant merely reiterated his arguments
that his claim fell under the purview of section 8191 of the Federal Employees’ Compensation
Act, arguments that had been previously considered by the Office. The submission of evidence
or argument that repeats or duplicates that already in the case record does not constitute a basis
for reopening a case.26 He, therefore, did not allege or demonstrate that the Office erroneously
applied or interpreted a specific point of law or advance a relevant legal argument not previously
considered by the Office and consequently was not entitled to a review of the merits of his claim
based on the first and second above-noted requirements under section 10.606(b)(2).27
Furthermore, appellant submitted no additional evidence. As he did not submit relevant and
pertinent new evidence not previously considered by the Office, he did not meet the
requirements of the third above-noted element of section 10.606(b)(2)28 and the Office properly
denied his reconsideration request.29

21

5 U.S.C. § 8128(a).

22

20 C.F.R. § 10.606(b)(2).

23

20 C.F.R. § 10.608(b).

24

Helen E. Paglinawan, 51 ECAB 591 (2000).

25

Kevin M. Fatzer, 51 ECAB 407 (2000).

26

Helen E. Paglinawan, supra note 24.

27

20 C.F.R. § 10.606(b)(2)(1), (2).

28

20 C.F.R. § 10.606(b)(2)(3).

29

20 C.F.R. § 10.606(b)(3).

6

CONCLUSION
The Board finds that appellant’s September 12, 2001 injury does not fall within the
purview of 5 U.S.C. § 8191. The Board further finds that the Office properly refused to reopen
appellant’s case for further consideration of the merits of his claim pursuant to 5 U.S.C.
§ 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 12, 2006 and May 23, 2005 be affirmed.
Issued: January 29, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Short Hills, NJ, Employer
__________________________________________

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)

Appearances:
James D. Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-546
Issued: October 6, 2014

Case Submitted on the Record

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

JURISDICTION
On January 13, 2014 appellant, through counsel, filed a timely appeal from the July 17,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP) denying an
emotional condition claim. He also timely appealed a November 14, 2013, OWCP decision
denying reconsideration. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant established that she sustained an emotional
condition in the performance of duty due to the accepted employment factors; and (2) whether
OWCP properly refused to reopen appellant’s case for further review of the merits pursuant to 5
U.S.C. § 8128(a).
On appeal, appellant’s counsel argues that the medical evidence established that her
stress was caused by the accepted work factors, including an unreasonable workload.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 10, 2010 appellant, then a 57-year-old supervisor of customer service,
filed an occupational disease claim alleging that her severe depression was caused by her
employment. She attributed it to additional assignments and duties, increased workload, the
inability to complete her duties in the time allotted, cuts in supervisory staff and answering the
telephone. Appellant first became aware of her condition on April 1, 2005, but did not realize it
was caused by her employment until January 1, 2010. She stopped work on August 14, 2010.
On September 17, 2010 OWCP received an August 3, 2010 predisciplinary report
regarding appellant’s failure to perform certain duties in a timely fashion.
By letter dated September 20, 2010, OWCP informed appellant that the evidence of
record was insufficient to establish her claim. Appellant was advised to submit additional
medical and factual evidence and given 30 days to provide this information.
In an August 20, 2010 hospital report from Holy Name Medical Center, Dr. Syed A.
Zaidi, a treating psychiatrist, performed an initial psychiatric evaluation. He reported that
appellant was admitted to Overlook Hospital following an overdose of pills she took at work.
Appellant stated that it had been her intention to die at work. Under history of illness, Dr. Zaidi
related a long history of depression and noted that she was taking medication for this condition
for approximately seven years. Appellant related having multiple stressors, including raising a
teenage grandson with severe medical problems and who was in a special school program. The
examination revealed her to be apathetic and depressed with poor eye contact. Dr. Zaidi
diagnosed severe recurrent depression. On August 21, 2010 appellant stated that she had a
history of bipolar disease and that she cried everyday going to work. On August 25, 2010
Dr. Zaidi reported that she was improving. He stated that appellant’s bipolar depression
worsened due to work stress.
On October 7, 2010 OWCP received a September 10, 2010 investigative report by the
employing establishment regarding appellant’s conduct on August 14, 2010 involving her
overdose of drugs at work.
In an October 12, 2010 evaluation, Dr. Zaidi provided a psychiatric history and mental
status examination findings. Appellant related stressors including an increased workload and
raising her teenage grandson, who had severe medical problems. She stated that her supervisory
workload had increased tremendously and that she was unable to handle it. At the time of
appellant’s admission, Dr. Zaidi reported that she was sad and extremely depressed. Appellant
was unable to talk about “her work without crying profusely and had to stop talking.” Following
her discharge from the hospital, Dr. Zaidi stated that she was able to discuss her work stressors
due to the reduction of her depression. Appellant related feeling overwhelmed at work, helpless,
crying on the way to work and unable to function at home after work. She had no assistant, there
was too much work for her do and that her breakdown was due to pressure to perform.
By decision dated November 29, 2010, OWCP denied appellant’s claim. It found that
she failed to establish any compensable factors of employment.

2

In a December 22, 2010 letter, appellant’s counsel requested a telephonic hearing before
an OWCP representative
By decision dated February 24, 2011, an OWCP hearing representative made a
preliminary determination that the case was not in posture for a hearing. The hearing
representative vacated the November 29, 2010 decision and remanded the case for further
development on the issue of whether appellant established any compensable factors.
On March 16, 2011 Postmaster Gerard J. Del Colle responded to appellant’s allegations.
He confirmed that reductions were made in the supervisor, clerk and carrier staff due to revenue
and mail volume decreases. Mr. Del Colle stated that appellant was assigned to cover Saturdays
alone with duties including answering the telephone and corrective action service talks. He
noted that approximately 25 e-mails were sent to supervisors daily. The e-mails concerned
notices, changes, deadlines, reminders, alters and instructions. Mr. Del Colle denied that any of
the e-mails were threatening. As to appellant staying late, he noted that she may have done so
for personal reasons such as avoiding traffic. Mr. Del Colle confirmed that she was responsible
daily for fleet concerns, including repairs, inoperative vehicles and replacements. He stated that
passports did not require appointments and the only role appellant played was scheduling a clerk
when needed.
In a March 17, 2011 letter, Sheila J, Owens, supervisor of customer service, responded to
appellant’s allegations. She concurred with appellant’s statement regarding a heavier workload
and additional stress. Ms. Owens stated that appellant did not complete her day load and
received additional help from the acting supervisor. She agreed that the staff reductions and
shortages impacted everyone and that adjustments had to be made to ensure delivery of the mail
and customer service with fewer people. Ms. Owens agreed that vehicle fleet paperwork was
part of her duties and that she did not timely complete such paperwork. She confirmed that
appellant worked alone on Saturdays from June to August 2010. During this time, customers
filed complaints stating that appellant was rude to them and hung up the telephone on them.
While agreeing that, all management received a large volume of e-mail, Ms. Owens denied being
aware of appellant receiving any threating e-mails. With respect to passport work, she stated that
appellant was only responsible for daily scheduling. Ms. Owens set up an appointment with the
Employee Assistance Program (EAP) after appellant told her that she felt like she was going to
have a breakdown.
By decision dated July 28, 2011, OWCP found that appellant established 10 compensable
factors of employment: (1) her workload increased when the supervisory staff was reduced to
two people from four; (2) due to a reduction in staff, she was short on clerks and carriers which
resulted in having to daily pivot two to three routes; (3) the inability to complete her work tasks
in the allotted timeframe; (4) in order to complete her tasks, she worked late; (5) from June to
August 2010 she had to work alone on Saturdays from open to close; (6) she assisted in
answering busy telephone calls; (7) she had to deal with customer service alone (the employing
establishment verified that on Saturdays she dealt with customer service issues alone, but stated
that it received multiple customers complaints saying she hung up on them or was rude);
(8) appellant was responsible for an old vehicle fleet which broke down constantly causing her to
make repairs and find replacements; (9) she was responsible for the service talks and edit books;
and (10) on August 3, 2010 a predisciplinary interview was performed. OWCP found that the

3

medical evidence was insufficient to establish that her depression was causally related to the
accepted work factors.
In an August 2, 2011 letter, appellant’s counsel requested a telephone hearing before an
OWCP hearing representative, which was held on November 17, 2011
By decision dated January 26, 2012, an OWCP hearing representative affirmed the denial
of appellant’s claim. She found that medical evidence failed to establish that appellant’s
emotional condition was causally related to the accepted employment factors.
In a June 8, 2012 letter, appellant’s counsel requested reconsideration. In a May 2, 2012
report, Dr. Zaidi stated that appellant was seen for depression and unstable mood. He attributed
her depression to work stress. Dr. Zaidi related that appellant’s stress had increased during the
summer 2010 due to the reduction of supervisors and she was left in charge on Saturdays. He
noted that the employing establishment provided passports for the whole area and was very busy.
Appellant also had to deal with reduced staffing due to people being on vacation or sick and
being in charge. She was also stressed by a meeting with the officer-in-charge who referred her
to the EAP. At the meeting on August 3, 2010 appellant cried throughout and reiterated that she
was under stress from her work duties. On August 14, 2010 the pressure became overwhelming
and she took an overdose of pills at work. Dr. Zaidi stated that these work incidents led to
appellant’s breakdown, severe depression and suicide attempt.
By decision dated September 18, 2012, OWCP denied the prior decisions denying the
claims.
In a letter dated June 12, 2013, appellant’s counsel requested reconsideration. In a
March 10, 2013 report, Dr. Zaidi noted appellant’s history and that she was first seen following
her suicide attempt at work. He related that her depression first occurred approximately six to
seven years before she was totally overwhelmed. Appellant attributed her stress to her work
duties. While she stated that there was some stress involved in raising her teenage grandson, she
denied feeling overwhelmed by it or complaining about it. Dr. Zaidi stated that there were
distinct stressors, which led to appellant’s suicide attempt and breakdown. He identified the
stressors as an increased workload due to the reduction in the supervisor staff to two from four,
being short staffed on clerks and carriers, working alone on Saturday from opening to closing
and having to work late to catch up on her work. Dr. Zaidi opined that appellant’s work stressors
caused her depression, which led to her breakdown and suicide attempt.
By decision dated July 17, 2013, OWCP denied modification of its prior decisions.
In November 6, 2013 letter, appellant’s counsel requested reconsideration. He submitted
an October 2, 2013 statement from appellant addressing her workload.
By decision dated November 14, 2013, OWCP denied reconsideration without further
merit review.

4

LEGAL PRECEDENT -- ISSUE 1
To establish a claim that he or she sustained an emotional condition in the performance of
duty, an employee must submit the following: (1) medical evidence establishing that he or she
has an emotional or psychiatric disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to his or her condition; and (3) rationalized
medical opinion evidence establishing that the identified compensable employment factors are
causally related to his or her emotional condition.2
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment.3 There are situations where an injury or an
illness has some connection with the employing establishment but nevertheless does not come
within the concept or coverage of workers’ compensation.4 Where the disability results from an
employee’s emotional reaction to his or her regular or specially assigned duties or to a
requirement imposed by the employing establishment, the disability comes within the coverage
of FECA.5 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 or her frustration from not being permitted to
work in a particular environment or to hold a particular position.6
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, 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.7 If a claimant does implicate a factor of
employment, it should then determine whether the evidence of record substantiates that factor.8
When the matter asserted is a compensable factor of employment and the evidence of record
establishes the truth of the matter asserted, OWCP must base its decision on an analysis of the
medical evidence.9
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially

2

V.W., 58 ECAB 428 (2007); Donna Faye Cardwell, 41 ECAB 730 (1990).

3

L.D., 58 ECAB 344 (2007); Robert Breeden, 57 ECAB 622 (2006).

4

A.K., 58 ECAB 119 (2006); David Apgar, 57 ECAB 137 (2005).

5

5 U.S.C. §§ 8101-8193; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

6

J.F., 59 ECAB 331 (2008); Gregorio E. Coned, 52 ECAB 410 (2001).

7

D.L., 58 ECAB 217 (2006).

8

K.W., 59 ECAB 271 (2007); David C. Lindsey, Jr., 56 ECAB 263 (2005).

9

Robert Breeden, supra note 3.

5

assigned work duties of the employee and are not covered under FECA.10 However, the Board
has held that, where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.11
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.12
ANALYSIS -- ISSUE 1
When appellant filed her occupational disease claim, she worked as a supervisor of
customer service at the employing establishment. She had multiple responsibilities supervising
this branch of the employing establishment. Appellant alleged that various factors of her
employment caused stress, aggravated her depression and led to an attempted suicide while at
work. In a July 28, 2011 decision, OWCP accepted that she had established compensable factors
of employment which included: (1) an increased workload as the result of the supervisory staff
being reduced from four to two; (2) being short of clerical and carrier staff due a reduction in
staff which resulting in having to daily pivot two to three routes; (3) an inability to complete her
work tasks in the allotted timeframe; (4) working late to complete her work tasks; (5) from June
to August 2010 she had to work Saturdays from open to close alone; (6) assisted in answering
busy telephone calls; (7) having to deal with customer service alone on Saturdays she dealt;
(8) she was responsible for an old vehicle fleet which were breaking down constantly and she
had to make repairs and find replacements; (9) responsibility for the service talks and edit books;
and (10) on August 30, 2010 a predisciplinary interview was performed. The Board finds the
above incidents were compensable factors of employment under Cutler as they pertain to her
regular and specially assigned duties as a supervisor.13
As appellant has established compensable factors of employment, the remaining question
is whether the medical evidence is sufficient to establish that she sustained an emotional
condition causally related to the accepted facts.
The Board finds that the case is not in posture for decision. The medical evidence of
record generally supports accepted compensable employment factors caused or aggravated
appellant’s emotional condition.
Appellant submitted reports from Dr. Zaidi dated August 20, 2010 to March 10, 2013.
Dr. Zaidi diagnosed depression which he attributed to her work stress. He identified the work
stress as appellant having increased work duties as the result of a reduction in supervisors in the
summer 2010, being overwhelmed with her work duties and being left in charge on Saturdays.
Appellant also had stress from dealing with the reduction of staff due to people being on vacation
10

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon.,
42 ECAB 556 (1991).
11

See William H. Fortner, 49 ECAB 324 (1998).

12

Ruth S. Johnson, 46 ECAB 237 (1994).

13

See Lillian Cutler, supra note 5.

6

or sick. Dr. Zaidi concluded that, as a result of these stressors, she felt overwhelmed, which
caused her breakdown, depression and a suicide attempt at work. While appellant acknowledged
stress with raising her teenage grandson, she denied feeling overwhelmed.
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
arbiter.14 While appellant has the burden to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence to see that justice is done.15 While Dr. Zaidi’s
medical reports do not contain sufficient medical reasoning to overcome her burden of proof,
explaining how the accepted compensable factors caused or aggravated her depression, his
reports are generally supportive of her claim and raise an uncontroverted inference of causal
relationship sufficient to required further development by OWCP.16
On remand, OWCP should refer appellant, the case record and a statement of accepted
facts, to an appropriate Board-certified psychiatric specialist for an evaluation and rationalized
medical opinion concerning the cause of her claimed emotional condition. After such further
development as deemed necessary, it should issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for a decision.17

14

R.B., Docket No. 08-1662 (issued December 18, 2008); A.A., 59 ECAB 726 (2008); Donald R. Gervasi, 57
ECAB 281 (2005); Vanessa Young, 55 ECAB 575 (2004).
15

D.N., 59 ECAB 576 (2008); Richard E. Simpson, 55 ECAB 490 (2004).

16

See also E.J., Docket No. 09-1481 (issued February 19, 2010); see John J. Carlone, 41 ECAB 354 (1989);
Horace Langhorne, 29 ECAB 820 (1978).
17

In view of the Board’s disposition on the first issue, the issue of whether OWCP properly denied merit review
is moot.

7

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 14 and July 17, 2013 are set aside and the case
remanded for further proceedings consistent with the above opinion.
Issued: October 6, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.E., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF
FEDERAL CONTRACT COMPLIANCE,
Detroit, MI, Employer
__________________________________________

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

Docket No. 15-1918
Issued: December 14, 2015

Case Submitted on the Record

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

JURISDICTION
On September 25, 2015 appellant filed a timely appeal of a May 19, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
has elapsed since the last merit decision on March 11, 2014, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2 (c) and 501.3, the
Board lacks jurisdiction over the merits of this case.
On appeal appellant briefly refers to participating in training and a delay in filing. To the
extent that she is alleging that she was unable to file an appeal in a timely manner, she has not
demonstrated compelling circumstances to extend the time period.2

1

5 U.S.C. § 8101 et seq.

2

See 20 C.F.R. § 501.3(e).

ISSUE
The issue is whether OWCP properly denied appellant’s request for a hearing before an
OWCP hearing representative.
FACTUAL HISTORY
On December 10, 2013 appellant, then a 46-year-old supervisory equal opportunity
specialist, filed an occupational disease claim (Form CA-2) alleging that she sustained an
emotional condition, as well as chest pains and headaches, as a result of her federal employment.
On the claim form, she alleged that her duties had changed and the stress of meeting goals and
managing staff became unbearable.
By decision dated March 11, 2014, OWCP denied the claim for compensation. It found
that appellant had not established a compensable work factor. Appeal rights were properly
enclosed. Appellant submitted additional medical evidence on March 13 and 17, 2014.
On April 11, 2014 appellant faxed to OWCP a letter stating that she “would like to file
for a hearing” regarding her claim. She also wrote that if possible she would “like a
reconsideration of my claim.”
By letter dated April 18, 2014, OWCP advised appellant that she could only pursue one
appeal procedure at a time. It indicated that she needed to specify which appeal right she wanted
to pursue, and if a hearing was requested, the request must be sent to Washington, DC.
The record indicates that appellant faxed a letter to OWCP on August 6, 2014 requesting
a hearing. The letter was stamped as received by OWCP’s Branch of Hearings and Review on
August 12, 2014.3
By decision dated September 3, 2014, OWCP found that the request for a hearing was
untimely. It found the hearing request was postmarked on August 11, 2014, more than 30 days
after the March 11, 2014 decision. OWCP indicated that it had considered the request and
determined that the issue could equally well be addressed by requesting reconsideration and
submitting new and relevant evidence.
The September 3, 2014 decision was sent to appellant’s last known address. The record
contains a memorandum of telephone call (Form CA-110) indicating that she had inquired about
her claim and reported that she did not receive a September 3, 2014 decision. OWCP indicated
that another copy would be mailed.
On December 22, 2014 appellant requested reconsideration. She submitted additional
evidence on January 15, 2015.

3

It appears that the letter was forwarded to the Branch of Hearings and Review by envelope with a postmark of
August 11, 2014.

2

By decision dated March 19, 2015, OWCP denied merit review of the claim. It found the
evidence was insufficient to warrant merit review.
In a decision dated May 19, 2015, OWCP again found that the hearing request
postmarked August 11, 2014 was untimely filed. The decision is identical to the September 3,
2014 decision.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides in pertinent part:
“Before review under section 8128(a) of this title, a claimant for compensation
not satisfied with a decision of the Secretary under subsection (a) of this title is
entitled, on request made within 30 days after the date of the issuance of the
decision, to a hearing on [her] claim before a representative of the Secretary.”4
As section 8124(b)(1) is unequivocal in setting forth the time limitation for requesting a
hearing, a claimant is not entitled to a hearing as a matter of right unless the request is made
within the requisite 30 days.5
ANALYSIS
On the present appeal, the only decision over which the Board has jurisdiction is the
May 19, 2015 denial of a hearing request. OWCP issued a merit decision dated March 11, 2014
denying appellant’s claim for compensation. On April 11, 2014 appellant faxed a letter which
requested both a hearing and reconsideration. After OWCP requested clarification, she
submitted a letter postmarked August 11, 2014 requesting a hearing. OWCP found the
August 11, 2014 request was untimely.
When OWCP receives a letter that both requests a hearing and reconsideration, it should
properly consider the request for a hearing first. As the Board explained in Johnny R. Mullins,6
since a hearing may be granted only before a reconsideration review under 5 U.S.C. § 8128(a),
OWCP must first consider the request for a hearing. If the original request for a hearing was
timely, then OWCP should properly grant the hearing request.7
The Board finds that appellant faxed a hearing request to OWCP’s Branch of Hearings
and Review on April 11, 2014. However, under 5 U.S.C. § 8124(b)(1), the hearing request must
be made within 30 days after OWCP’s decision. The 30th day after the March 11, 2014 OWCP
4

5 U.S.C. § 8124(b)(1).

5

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

6

Docket No. 05-475 (issued June 14, 2005). See also Mary G. Allen, 40 ECAB 190 (1988).

7

In Mullins, appellant requested a hearing and reconsideration of a July 14, 2004 OWCP decision in a July 27,
2004 letter. He subsequently submitted a hearing request postmarked August 25, 2004. The Board found that the
July 27, 2004 hearing request was timely and remanded the case for an oral hearing.

3

decision was Thursday, April 10, 2014. Since appellant faxed the letter on April 11, 2014, it is
untimely filed.
The Board has held that OWCP, in its broad discretionary authority to administer FECA,
has power to hold hearings in circumstances where no legal provision is made for such hearings,
and OWCP must exercise its discretion in such circumstances.8 In this case, OWCP advised
appellant that she could submit additional relevant evidence on the issue through the
reconsideration process. This is considered a proper exercise of OWCP’s discretionary
authority.9 The Board accordingly finds that OWCP properly denied the request for a hearing in
this case.
On appeal appellant asserted that her request for reconsideration was denied and her
documents were not properly reviewed. The only issue on appeal is the denial of the request for
a hearing. As discussed, the hearing request in this case was untimely.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for a hearing as
untimely.

8

Mary B. Moss, 40 ECAB 640 (1989); Rudolph Bermann, 26 ECAB 354 (1975).

9

See Mary E. Hite, 42 ECAB 641, 647 (1991).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 19, 2015 is affirmed.
Issued: December 14, 2015
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.M., Appellant
and
DEPARTMENT OF THE INTERIOR,
U.S. GEOLOGICAL SURVEY, Reston, VA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 20-0241
Issued: August 25, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On November 11, 2019 appellant filed a timely appeal from an October 2, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.

1

Appellant timely requested oral argument before the Board. 20 C.F.R. § 501.5(b). By order dated August 20,
2020, the Board exercised its discretion and denied the request, finding that the arguments on appeal could adequately
be addressed based on the case record. Order Denying Request for Oral Argument, Docket No. 20-0241 (issued
August 20, 2020). The Board’s Rules of Procedure provide that an appeal in which a request for oral argument is
denied by the Board will proceed to a decision based on the case record and the pleadings submitted. 20 C.F.R.
§ 501.5(b).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to expand acceptance of the
claim to include additional right upper extremity conditions as causally related to her November 7,
2016 employment injury.
FACTUAL HISTORY
On June 6, 2019 appellant, then a 59-year-old financial specialist, filed a traumatic injury
claim (Form CA-1) alleging that on November 7, 2016, she cut her right knee and bruised her right
hand when she tripped and fell while, landing on her right hand and knee due to a crevice on an
asphalt path while in the performance of duty.
In a June 12, 2019 development letter, OWCP advised appellant that the evidence of record
was insufficient to establish her claim. It advised her of the type of factual and medical evidence
needed and provided a questionnaire for her completion. OWCP afforded appellant 30 days to
submit the necessary evidence.
In a report dated November 7, 2016, a registered nurse diagnosed a knee abrasion.
On June 8, 2019 Dr. Fuad Alykhan, a specialist in internal medicine, examined appellant
for complaints of pain and swelling in the right palm related to repetitive work. He noted that she
told him she injured her right hand on November 7, 2016 when she tripped and fell on an asphalt
path. On examination, Dr. Alykhan noted mild swelling, tenderness, and ecchymosis of the right
hand. He diagnosed right hand pain, tingling, and swelling. Dr. Alykhan repeated these diagnoses
in a discharge instruction sheet of even date.
In a prescription note dated June 8, 2019, Dr. Alykhan referred appellant to physical
therapy for a diagnosis of right hand swelling, overuse, and strain. In a work status form of even
date, he diagnosed right hand pain and swelling and restricted appellant from performing repetitive
motion.
An x-ray of appellant’s right hand taken on June 10, 2019 demonstrated mild osteoarthritis,
but no fracture or subluxation. An x-ray of his left hand of even date demonstrated mild
osteoarthritis.
On June 19, 2019 appellant replied to OWCP’s inquiries. She noted that after her fall on
the pathway on November 7, 2016 her right hand was sore and bruised. Appellant submitted
photographs of hand and knee injuries taken on the date of injury. She explained that she had not
filed her traumatic injury claim until June 2019 because she had been experiencing worsening pain
and swelling in her right hand when performing repetitive tasks at home and at work. Appellant
also submitted e-mails dated November 8, 2016, in which she informed her supervisor that on
November 7, 2016 she had tripped and had gone to the health unit because her knee was bleeding.
In a letter dated June 20, 2019, Dr. Alykhan noted that he had seen appellant on June 8,
2019 for complaints of right hand pain and swelling. Appellant recalled a work-related injury on
November 7, 2016 when she tripped and fell on an asphalt path. She was treated for right knee
abrasion and noted that her hand had been bruised and sore with full range of movement, which
2

resolved after one day. Appellant had no gross symptoms until about a year and a half before the
date of Dr. Alykhan’s letter, when she began to develop symptoms of pain with use of her right
hand at work and when cleaning at home. On physical examination of the right hand, Dr. Alykhan
observed minimal to mild swelling/edema to the base of her right thumb with full range of motion
and no point tenderness, ecchymosis, erythema, soft tissue/bony crepitus, or bony deformity. He
provisionally diagnosed right hand pain and swelling with a history of right hand injury after a fall,
likely due to right thumb tenosynovitis and possible concomitant right hand arthritis. Dr. Alykhan
opined that it was possible that her fall “may have been” the precipitating event to her current right
hand symptoms, which were noted to recur when she performed repetitive movements at work or
at home.
In a note dated July 8, 2019, Dr. Subir S. Jossan, a Board-certified hand surgeon, noted that
appellant had suffered a ground level fall and contusion to her right thumb and hand two and a half
years prior. Appellant stated that she had experienced hand pain at that time, which persisted, and
which increased in the right thumb with strenuous activity including pinching and gripping
activities. On physical examination of the right hand and wrist, Dr. Jossan observed tenderness
over the carpometacarpal (CMC) joint with a positive grind test, mild tenderness over the
scaphotrapeziotrapezoidal (STT) joint with full wrist motion, and slight pain with resisted wrist
flexion over the flexor carpi radialis (FCR) tendon. He diagnosed post-traumatic arthritis of the
right thumb and wrist.
On July 17, 2019 OWCP accepted the claim for right knee abrasion.
Appellant subsequently submitted a revised version of Dr. Jossan’s July 8, 2019 note.
Dr. Jossan diagnosed post-traumatic arthritis of the right thumb and wrist. He opined that it was
a work-related condition resulting from appellant’s injury of November 7, 2016. Dr. Jossan
recommended a permanent restriction of no repetitive motion of the right hand/wrist, including no
data entry work.
In a development letter dated August 21, 2019, OWCP advised appellant of the type of
evidence required to support that the acceptance of her claim should be expanded, including
submission of a rationalized medical report explaining how the diagnosed condition(s) was work
related, bridging medical documentation from 2016 through 2019, and answers to its inquiries. It
afforded her at least 30 days to submit the necessary evidence.
In a letter dated August 28, 2019, Dr. Jossan noted that he had seen and treated appellant
for conditions of her right thumb and wrist. He opined that, based on her history, physical
examination, and diagnostic studies that her post-traumatic osteoarthritis of the right thumb and
wrist were a direct result of the work injury dated November 7, 2016. Dr. Jossan explained that
this injury caused cartilage damage that had been gradually progressing since that time, and that
post-traumatic arthritis was a chronic, slow-developing condition.
Appellant responded to OWCP’s inquiries in a September 5, 2019 letter. She stated that
she had noticed that the November 7, 2016 report signed by a nurse did not include reference to a
hand injury. Appellant noted that she had photos of her knee and hand from her date of injury and
that the hand injury should have been noted as well. She observed that she first experienced
symptoms of right hand swelling and pain in May 2018 when she moved from one residence to

3

another and thoroughly cleaned the residences in a short time period. Appellant stated that her
right hand swelled from the repetitive motion of wiping down cabinets, scrubbing bathrooms,
mopping, and vacuuming within a short time frame. She further noted that her normal duties at
work had not included repetitive motion, but that when she was occasionally asked to process
invoices, which involved data entry, her right hand would swell and hurt from the repetitive
motion.
By decision dated October 2, 2019, OWCP denied appellant’s request to expand the
acceptance of her claim to include right thumb and wrist osteoarthritis causally related to the
November 7, 2016 employment injury.
LEGAL PRECEDENT
When an employee claims that a condition not accepted or approved by OWCP was due to
an employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury.3
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.4 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and an accepted injury 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 which, explains
the nature of the relationship between the diagnosed condition and the accepted employment
injury.6
ANALYSIS
The Board finds that appellant has not met her burden of proof to expand the acceptance
of her claim to include additional right upper extremity conditions as causally related to the
accepted November 7, 2016 employment injury.
In a report dated June 8, 2019, Dr. Alykhan diagnosed right hand pain, tingling, and
swelling. He repeated these diagnoses in a discharge instruction sheet of even date. On the same
date, Dr. Alykhan referred appellant to physical therapy for a diagnosis of right hand swelling,
overuse, and strain. In a work status form of even date, he diagnosed right hand pain and swelling.
Dr. Alykhan did not, however, provide an opinion as to the cause of the additional conditions. The
Board has held that medical evidence offering no opinion regarding the cause of an employee’s

3
A.A., Docket No. 19-1165 (issued December 16, 2019); M.B., Docket No. 19-0485 (issued August 22, 2019); R.J.,
Docket No. 17-1365 (issued May 8, 2019); Jaja K. Asaramo, 55 ECAB 200 (2004).
4

E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

5

M.V., Docket No. 18-0884 (issued December 28, 2018); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

6

Id.

4

condition is of no probative value on the issue of causal relationship.7 As Dr. Alykhan did not
offer an opinion regarding the cause of appellant’s diagnosed conditions, these documents are of
no probative value on the issue of causal relationship.8
In a letter dated June 20, 2019, Dr. Alykhan opined that it was possible that her fall “may
have been” the precipitating event to her right hand symptoms. The Board has held that medical
opinions that suggest that a condition was “likely” or “possibly” caused by work activities are
speculative or equivocal in character and have limited probative value.9 Thus, Dr. Alykhan’s letter
of June 20, 2019 is insufficient to establish appellant’s claim.
Appellant also submitted a July 8, 2019 note and a revised note of even date from
Dr. Jossan. Dr. Jossan diagnosed post-traumatic arthritis of the right thumb and wrist and opined
that it was a work-related condition resulting from her injury of November 7, 2016. The Board
has held that a mere conclusion without the necessary rationale as to whether a condition is due to
an accepted employment incident is insufficient to meet a claimant’s burden of proof.10 Because
Dr. Jossan did not provide rationale to support his opinion in his July 8, 2019 note, it is insufficient
to meet appellant’s burden of proof.
OWCP also received a report dated August 28, 2019 from Dr. Jossan in which he opined
that based on her history, physical examination, and diagnostic studies, appellant’s post-traumatic
osteoarthritis of the right thumb and wrist were a direct result of the work injury on
November 7, 2016. Dr. Jossan explained that this injury caused cartilage damage that had been
gradually progressing, and that post-traumatic arthritis was a chronic, slow-developing condition.
However, his report is insufficiently rationalized as he failed to address the pathophysiological
mechanism by which the accepted employment incident caused, aggravated, or accelerated
appellant’s diagnosed osteoarthritis of the right thumb and wrist.11 Dr. Jossan failed to provide a
sufficiently rationalized explanation of why appellant’s osteoarthritis of the right thumb and wrist
was work related, given that appellant also had osteoarthritis of the left hand as demonstrated by
x-ray on June 10, 2019. As such, his August 28, 2019 report is of limited probative value and is
insufficient to meet appellant’s burden of proof.12
Appellant submitted diagnostic reports dated June 10, 2019, demonstrating bilateral mild
osteoarthritis of the hands. The Board has held that diagnostic tests, standing alone, lack probative

7

See R.G., Docket No. 18-0792 (issued March 11, 2020); L.B., Docket No. 18-0533 (issued August 27, 2018);
D.K., Docket No. 17-1549 (issued July 6, 2018).
8

R.Z., Docket No. 19-0408 (issued June 26 2019); P.S., Docket No. 18-1222 (issued January 8, 2019).

9

J.W., Docket No. 18-0678 (issued March 3, 2020).

10

A.T., Docket No. 19-0410 (issued August 13, 2019); E.L., Docket No. 17-1632 (issued January 3, 2018).

11

See A.P., Docket No. 19-0224 (issued July 11, 2019).

12

Id.

5

value as they do not provide an opinion on causal relationship between the traumatic incident and
the diagnosed conditions.13 These reports are therefore insufficient to establish the claim.
Appellant submitted a November 7, 2016 report signed by a registered nurse. Certain
healthcare providers, such as nurses, are not considered “physician[s]” as defined under FECA.14
Consequently, their medical findings and/or opinions will not suffice for purposes of establishing
entitlement to FECA benefits.15 Moreover, this report did not reference any right hand condition.
The Board finds that appellant has not submitted sufficient medical evidence to establish
causal relationship between the accepted November 7, 2016 employment injury and the claimed
osteoarthritis of the right thumb and wrist. As such, appellant has not met her burden of proof to
expand the acceptance of her claim.16
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to expand the acceptance
of her claim to include additional right upper extremity conditions as causally related to her
November 7, 2016 employment injury.

13

See J.M., Docket No. 17-1688 (issued December 13, 2018).

14

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
5 U.S.C. § 8101(2). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter
2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician
assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA); R.L., Docket
No. 19-0440 (issued July 8, 2019) (nurse practitioners and physical therapists are not considered physicians under
FECA); K.W., 59 ECAB 271, 279 (2007).
15

16

See O.M., Docket No. 18-1055 (issued April 15, 2020).

6

ORDER
IT IS HEREBY ORDERED THAT the October 2, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 25, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7