United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Indianapolis, IN, Employer
__________________________________________

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

Docket No. 17-0424
Issued: August 22, 2017

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 December 16, 2016 appellant, through counsel, filed a timely appeal from August 16,
2016 merit and November 10, 2016 nonmerit decisions of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish a traumatic
injury in the performance of duty on August 31, 2015 as alleged; and (2) whether OWCP
1

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

5 U.S.C. § 8101 et seq.

properly denied appellant’s request for reconsideration of the merits of his claim pursuant to
5 U.S.C. § 8128(a).
FACTUAL HISTORY
On August 31, 2015 appellant, then a 55-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on March 13, 2015 his “right side gave out (leg and hand)” and
he scraped his right knee and right side of his face. He stopped work on March 14, 2015 and
returned on June 15, 2015.3
Appellant underwent a head computerized tomography (CT) scan by Dr. William I.
Babchuk, a Board-certified diagnostic radiologist, who indicated in a March 13, 2015 report that
the “patient fell.” He reported that the CT scan was negative. On an x-ray scan of appellant’s
right knee, Dr. Babchuk noted a negative right knee study with no dislocation, fracture, or
degenerative changes.
Appellant provided examination and work status notes dated March 13 and 16, 2015 from
a nurse practitioner, who related that appellant had a slip and fall on March 6, 2015 provided
examination findings, and diagnosed neck strain. The nurse practitioner recommended that
appellant return to work on March 18, 2015 with restrictions of no lifting or carrying more than
20 pounds.
By letter dated September 30, 2015, OWCP advised appellant that the evidence of record
was insufficient to establish his claim. It requested that he respond to the attached questionnaire
in order to substantiate that the March 13, 2015 incident occurred as alleged and provide medical
evidence to establish a diagnosed condition causally related to the alleged incident. Appellant
was afforded 30 days to submit this evidence.
Dr. Khaled Hammoud, Board-certified in psychiatry and neurology, treated appellant and
in reports dated April 24 to May 15, 2015, indicated that he last examined appellant for
complaints of neck pain and right-sided weakness resulting from a fall in January 2015. He
related that a magnetic resonance imaging (MRI) scan showed cervical myelopathy, a large disc
herniation at the C4-5 level with compression of the spinal cord, and large disc bulges at C3-4
and C4-5. Dr. Hammoud noted that appellant currently complained of worsening right-sided
weakness and increased trouble walking. He reviewed appellant’s history and conducted an
examination. Dr. Hammoud reported sensory examination of decreased palpation and light
touch in right upper and lower extremities. He diagnosed cervical myelopathy evident on MRI
scan of the cervical spine resulting in worsening right-sided weakness and severe cervicogenic
headache. Dr. Hammoud recommended cervical decompression surgery. On May 28, 2015
appellant underwent cervical surgery.

3

Appellant has a previously accepted traumatic injury claim under OWCP File No. xxxxxx523 due to a
January 10, 2015 employment injury. The case was accepted for head and right arm contusion. Appellant was
currently receiving medical treatment and physical therapy for the accepted claim at the time of the alleged
March 13, 2015 employment incident. He provided physical therapy treatment notes dated February 25 to
March 13, 2015.

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Appellant underwent a cervical spine MRI scan by Dr. Steven Marchioni, a Boardcertified diagnostic radiologist, who noted in a June 10, 2015 report that appellant had anterior
plate and screw fixation of C3 through C6. Dr. Marchioni reported no fragmentation of
hardware, fracture, or bone destruction. He indicated that the scan showed satisfactory
postoperative findings.
In a July 8, 2015 cervical spine MRI scan, Dr. David R. Martin, a Board-certified
diagnostic radiologist, related that he compared appellant’s scan to the June 10, 2015 scan and
noted slight ventral subluxation of C6 on C7 and slight loss of height of the disc space at C6-7.
He reported no prevertebral soft tissue swelling and no fracture. Dr. Martin diagnosed a grade 1
degenerative subluxation of C6 ventral on C7.
Dr. Hammoud continued to treat appellant and in an August 14, 2015 report related that
appellant no longer had right-sided weakness or abnormal gait following cervical spine surgery.
He reviewed appellant’s history and reported motor examination of 5/5 in the bilateral upper and
lower extremities. Dr. Hammoud indicated that sensory examination showed decreased to
palpation and light touch in the right upper and lower extremities and slightly reduced vibration
sensation over the right side of the forehead. He diagnosed cervical myelopathy evident on MRI
scan with complete resolution of right-sided weakness after cervical decompression surgery.
In an August 19, 2015 cervical spine MRI scan, Dr. Martin reported that the height of the
vertebral bodies, the alignment of the cervical spine, the mineralization, and the atlantoaxial
relationship appeared normal.
OWCP denied appellant’s claim by decision dated November 5, 2015 finding that the
evidence of record was insufficient to establish that the March 13, 2015 incident occurred as
alleged. It further determined that the medical evidence submitted was insufficient to establish a
diagnosed condition causally related to the employment incident.
On December 7, 2015 appellant requested a hearing before an OWCP hearing
representative.
Appellant provided a November 18, 2015 cervical spine MRI scan by Dr. Martin who
noted “no adverse change” when compared to the August 19, 2015 MRI scan.
In a December 1, 2015 report, Dr. Mario P. Brkaric, a Board-certified orthopedic
surgeon, indicated that appellant was evaluated for a cervical spine problem. He noted that an xray scan showed good position of appellant’s cervical fusion surgery. Dr. Brkaric related that
appellant was back to work full time.
On July 11, 2016 a hearing was held. Appellant related that on March 13, 2015 he was
delivering mail on a walking route when his leg suddenly gave out and he fell down, scraping his
face and knee. He explained that he did not trip or slip on anything, but his knee just suddenly
gave out causing him to fall on the right side of his body. Appellant noted that he currently had a
claim for an accepted January 10, 2015 employment injury and explained that the January 10,
2015 injury did not involve any problems with his right leg or right lower extremity. He
described the medical treatment he had received, including the cervical and upper spine surgery
in May 2015. Appellant asserted that his physicians, Dr. Hammoud and Dr. Brkaric, had
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attributed his neck condition to the fall. He further explained that he delayed filing a claim
because the employing establishment was in the midst of changing postmasters.
By decision dated August 16, 2016, an OWCP hearing representative affirmed the
November 5, 2015 decision. He determined that the evidence of record was insufficient to
establish that appellant sustained a work-related injury on March 13, 2015. The hearing
representative noted that appellant had delayed filing his claim and had not submitted any
evidence to factually corroborate that the March 13, 2015 incident occurred as alleged.
On November 1, 2016 OWCP received appellant’s request, through counsel, for
reconsideration in a letter dated October 31, 2016. He noted that he was submitting an
October 23, 2016 medical note by Dr. Hammoud. Counsel asserted that OWCP should vacate its
decision based on the new evidence.
In a handwritten note dated October 23, 2016, Dr. Hammoud related that appellant
reported slipping on ice and falling backwards in January 2015 and “sustaining another fall
shortly afterwards.” He noted appellant’s complaints of right-sided weakness and neck pain.
Dr. Hammoud reported examination findings of mild weakness in the right upper and lower
extremities and leaning to the right side while ambulating. He indicated that a cervical spine
MRI scan showed a large disc bulge from C3 through C5 and cord compression signal.
Dr. Hammoud diagnosed cervical myelopathy. He signed a paragraph, which stated: “the facts
of injury are the direct and proximate cause of the diagnosis that I cited above … there may be
other causes for this medical problem, but one of the causes is clearly the activities of work
described.”
By decision dated November 10, 2016, OWCP denied appellant’s November 1, 2016
reconsideration request. It found that the new medical evidence was irrelevant or immaterial to
the issue of fact of injury.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA4 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,5 including that he or she is an “employee” within the meaning of FECA6 and that a
claim was filed within the applicable time limitation.7 An employee must also establish that he
or she sustained an injury in the performance of duty and that any specific condition or disability
for work for which he or she claims compensation is causally related to that employment injury.8

4

Supra note 2.

5

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

6

See M.H., 59 ECAB 461 (2008); Emiliana de Guzman (Mother of Elpedio Mercardo), 4 ECAB 357, 359 (1951).

7

R.C., 59 ECAB 42 (2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954).

8

G.T., 59 ECAB 447 (2008); M.M., Docket No. 08-1510 (issued November 25, 2010).

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To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether “fact of injury” has been established.9
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place, and in the manner alleged.10 Second, the employee must submit
evidence, generally only in the form of probative medical evidence, to establish that the
employment incident caused a personal injury.11
The employee has the burden of proof to establish the occurrence of an injury at the time,
place, and in the manner alleged, by a preponderance of the reliable, probative, and substantial
evidence. 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 the surrounding facts and circumstances and his or her
subsequent course of action.12 An employee has not met his or her burden of proof establishing
the occurrence of an injury when there are such inconsistencies in the evidence as to cast serious
doubt upon the validity of the claim. Such circumstances as late notification of injury, lack of
confirmation of injury, continuing to work without apparent difficulty following the alleged
injury, and failure to obtain medical treatment may, if otherwise unexplained, cast sufficient
doubt on an employee’s statement in determining whether a prima facie case has been
established. An employee’s statement alleging that an injury occurred at a given time and in a
given manner is of great probative value and will stand unless refuted by strong or persuasive
evidence.13
ANALYSIS -- ISSUE 1
Appellant alleged that on March 13, 2015 he injured his neck and scraped the right side
of his body when he fell down while delivering mail at work. OWCP denied his claim, finding
that the evidence of record was insufficient to establish that the March 13, 2015 incident
occurred as alleged. OWCP further found that the evidence of record failed to establish a
diagnosed condition causally related to the alleged incident. The Board finds that appellant has
failed to meet his burden of proof to establish that he sustained a traumatic injury on
March 13, 2015.
In his Form CA-1, appellant reported that his “(right) side gave out (leg and hand)” and
he scraped his right knee and right side of his face. During the July 11, 2016 hearing, he further
testified that he did not trip or slip while delivering mail on his walking route, but his knee

9

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

10

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

11

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

12

Joseph H. Surgener, 42 ECAB 541, 547 (1991); Gene A. McCracken, Docket No. 93-2227 (issued
March 9, 1995).
13

D.B., 58 ECAB 529 (2007).

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suddenly gave out, causing him to fall down on his right knee and scrape the right side of his
face.
The Board finds that there is no detailed account of the alleged injury sufficient to
establish that the incident occurred in the manner alleged.14 In its September 30, 2015
development letter, OWCP advised appellant of the deficiencies of his claim and requested
additional evidence to establish a traumatic injury on March 13, 2015. It specifically requested
that appellant respond to a questionnaire in order to establish the factual element of his claim.
Appellant did not respond to the questionnaire, nor did he provide any supplemental statement or
detailed information surrounding the alleged March 13, 2015 incident. The Board finds that
appellant’s vague description does not provide adequate detail to establish that the March 13,
2015 employment incident occurred as alleged and caused a work-related injury.15
The Board further finds that the contemporaneous medical evidence of record fails to
establish fact of injury. Appellant submitted examination notes and work status notes dated
March 13 and 16, 2015 with illegible signatures, which indicated that appellant had a “slip and
fall” and noted a date of injury of March 6, 2015. The Board notes that these medical reports
provide a different history of injury that appellant’s right side suddenly gave out on
March 13, 2015.16
Dr. Hammoud further noted in various reports that appellant began to experience
symptoms after a fall in January 2015. As these reports attributed appellant’s symptoms to a
January 2015 fall, and not the alleged March 13, 2015 employment incident, they are insufficient
to establish fact of injury. Dr. Hammoud’s report failed to provide a sufficient explanation as to
the mechanism of injury pertaining to this traumatic injury claim, namely, how walking would
have caused appellant’s leg to give out resulting in an injury.17 He provided no specific details
describing the incident of March 13, 2015, which could have caused appellant’s alleged injury.

14

See S.R., Docket No. 15-1274 (issued August 25, 2015); M.B., Docket No. 11-1785 (issued February 15, 2012);
Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).
15

See Paul Foster, 56 ECAB 1943 (2004); Betty J. Smith, 54 ECAB 174 (2002); 5 U.S.C. § 8101(5).

16

James Mack, 43 ECAB 321 (1991). The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the specific employment
factors identified by the claimant. This medical opinion must include an accurate history of the employee’s
employment injury and must explain how the condition is related to the injury. The weight of medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of analysis manifested, and the
medical rationale expressed in support of the physician’s opinion.
17

L.S., Docket No. 16-0036 (issued May 23, 2016). See also L.R., Docket No. 16-736 (September 2, 2016)
wherein the Board found that appellant’s treating physician had described the mechanism of injury due to walking.
He explained that hard surfaces impact forces to the medial and lateral joint compartments to the knee that incites
the inflammatory response, and results in synovitis of the knee. This resulting synovitis is the basis of the
inflammatory response and it produced microscopic cartilaginous wear debris; thinning of the medial and lateral
compartment articular cartilage. This cartilaginous wear debris produces the stimulus to the inflammatory response
that, while metabolizing the debris also damages the cartilage of the femoral condyles, producing the current
fragmentation and fissuring of the patellar cartilage damage.

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The various CT and MRI scan reports and Dr. Brkaric’s reports are also insufficient to
establish fact of injury as none of the medical reports mention or provide any description of the
alleged March 13, 2015 employment incident.18
Neither appellant, nor any of the medical providers who treated him, provided a
consistent, detailed history of injury describing the time, place, and manner in which the alleged
March 13, 2015 injury occurred.19 Accordingly, the evidence of record is insufficient to
establish that the incident occurred as alleged.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.606 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation.20 OWCP regulations provide that it may review
an award for or against compensation at any time on its own motion or upon application. The
employee shall exercise his right through a request to the district office.21
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.22
A request for reconsideration must also be received by OWCP within one year of the date
of OWCP’s decision for which review is sought.23 If OWCP chooses to grant reconsideration, it
reopens and reviews the case on its merits.24 If the request is timely, but fails to meet at least one
of the requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.25
18

See T.C., Docket No. 17-353 (issued March 22, 2017).

19

Supra note 13.

20

5 U.S.C. § 8128(a); see also D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB
372 (2008).
21

20 C.F.R. § 10.605; see also R.B., Docket No. 09-1241 (issued January 4, 2010); A.L., Docket No. 08-1730
(issued March 16, 2009).
22

20 C.F.R. § 10.606(b); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
23

20 C.F.R. § 10.607(a).

24

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

25

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

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ANALYSIS -- ISSUE 2
By decisions dated November 5, 2015 and August 16, 2016, OWCP denied appellant’s
traumatic injury claim, finding that the evidence of record did not establish fact of injury. On
November 1, 2016 it received appellant’s request for reconsideration. OWCP denied further
merit review in a decision dated November 10, 2016, finding that the evidence submitted on
reconsideration neither raised a substantive legal question, nor constituted relevant and pertinent
new evidence sufficient to warrant merit review.
The Board finds that appellant did not submit any evidence along with his request for
reconsideration to show that OWCP erroneously applied or interpreted a specific point of law.
Along with his reconsideration request, appellant submitted an October 23, 2015 report
by Dr. Hammoud who related that appellant had two falls, provided physical examination
findings, and offered an affirmative opinion on causal relationship. This medical report,
however, is not relevant and pertinent to the issue in this case and is insufficient to require
OWCP to reopen his claim for consideration of the merits.26 Because Dr. Hammoud failed to
address the specific issue of describing the time, place, and manner in which the alleged
March 13, 2015 injury occurred, his report is irrelevant and does not constitute a basis for
reopening a case.27
The Board further finds that appellant did not submit any evidence along with his request
for reconsideration to show that OWCP erroneously applied or interpreted a specific point of
law, or advance a relevant legal argument not previously considered by OWCP. Because
appellant did not meet any of the necessary requirements under 20 C.F.R. § 10.606(b)(3), he is
not entitled to further merit review. Therefore, OWCP properly denied his request for
reconsideration of the merits of his claim under 5 U.S.C. § 8128.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a traumatic
injury in the performance of duty on March 13, 2015 as alleged. The Board further finds that
OWCP properly denied appellant’s request for reconsideration of the merits of his claim
pursuant to 5 U.S.C. § 8128(a).

26

See James W. Scott, 55 ECAB 606 (2004).

27

See Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

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ORDER
IT IS HEREBY ORDERED THAT the November 10 and August 16, 2016 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: August 22, 2017
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.W., Appellant
and
U.S. POSTAL SERVICE, RIO GRANDE
PERFORMANCE CLUSTER, San Antonio, TX,
Employer
__________________________________________

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

Docket No. 11-530
Issued: November 7, 2011

Case Submitted on the Record

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

JURISDICTION
On December 28, 2010 appellant filed an appeal of a November 16, 2010 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying his claim. Pursuant to the
Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish that he sustained
an injury in the performance of duty on May 19, 2010, as alleged.
FACTUAL HISTORY
On May 25, 2010 appellant, then a 47-year-old temporary carrier, filed a traumatic injury
claim alleging that on May 20, 2010 at approximately 10:45 a.m. he reinjured his lower back.
1

5 U.S.C. § 8101 et seq.

He stated that he returned to the loading dock after pulling uprights weighing 50 to 200 pounds
and felt pain in his lower back when he stooped down to lift and put the ramp plate in place.
Appellant previously injured his back at work on April 30, 2010. He submitted a May 19, 2010
note from Dr. Matthew Hill, an osteopath and Board-certified internist, who indicated that
appellant could work with restrictions for one week. Appellant also submitted a June 3, 2010
duty status report from a physician with an illegible signature and a May 26, 2010 diagnostic
test.
Appellant’s supervisor, James Dodd, customer service manager, controverted the claim.
He indicated that appellant stopped work at 11:00 a.m. on May 19, 2010. Mr. Dodd denied that
appellant was injured in the performance of duty on May 20, 2010 as he had “left work on
May 20, 2010 angry at supervisor for assignment that day.” He stated that appellant did not
report any injury. In a May 25, 2010 statement, Dr. Dodd noted at approximately 11:00 a.m. on
May 19, 2010 that appellant told him, in front of Supervisor Wilbert Wright, that he disagreed
with the collection schedule for that day. Supervisor Wright informed appellant that he had
already discussed the schedule with him and instructed him to do the collection run as scheduled.
Appellant stated that he was not going to do collections and that he would go to a doctor and get
a note that he could not do collections. Supervisor Wright told appellant that, “if he walked out
of the door without permission, not to come back, because he would not have a job.” Appellant
left and did not perform his carrier duties for the rest of the day. The next day, May 20, 2010, he
gave Supervisor Wright a medical note advising that he was seen on May 19, 2010. When
appellant asked what his schedule was for the rest of the week, Mr. Dodd indicated that appellant
was not on schedule for the rest of the week. Appellant subsequently indicated that the accident
occurred on May 20, 2010 but the incident he described and the doctor’s slip were dated
May 19, 2010. Mr. Dodd advised that appellant stated that his condition was a reinjury of an
April 30, 2010 event for which the employer had no paperwork.
In a June 14, 2010 letter, OWCP advised appellant of the deficiencies in his claim and
requested additional factual and medical evidence.
In an undated statement, appellant noted that he reported to work at 9:46 am on May 20,
2010 and was told by Supervisor Wright to check the two-ton mail truck. He indicated that the
mail truck with the lift was out of service, but the other mail truck, which did not have a lift,
worked. Appellant stated that he had been working in pain since he injured his back on
April 30, 2010. He retrieved mail from the mail clerks to make the unit run and felt pain in his
back when he rolled the mail uprights onto the two-ton mail truck. Appellant completed the unit
run and the pain in his lower back became greater when he stooped down to place the steel ramp.
He went inside and spoke to Mr. Dodd, when Supervisor Wright told him he would do the unit
run for the rest of the week. Appellant stated that he told Mr. Dodd and Supervisor Wright that
he was going to the doctor. He indicated that Supervisor Wright told him not to come back and
that a conversation ensued. Appellant left because he needed medical attention and did not quit
his job.
In a June 24, 2010 statement, Dale Delaney, a union vice president, indicated that on
June 24, 2010 he asked Rebecca Curb, a clerk, if she knew what happened to appellant.
Ms. Curb stated that in early May she saw appellant hold his back in extreme pain. She indicated
that appellant laid down on the floor and she got him some padded envelopes to use as a pillow.

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Ms. Curb also stated that Anthony Palimino, a manager, was notified of appellant’s condition.
Mr. Delaney further indicated that appellant had told him that he had to use both two-ton mail
trucks, the one with a lift gate and the one without a lift gate, and that the mail truck without a
lift gate put a lot of strain on his back because everything had to be done manually.
In a June 24, 2010 report, Dr. Les Benson, a specialist in occupational and emergency
medicine, noted that appellant related injuring his lower back pulling/pushing uprights while
working as a letter carrier on May 20, 2010. He had immediate pain that radiated down his leg
and across his back and he was unable to complete his shift. Appellant had previous back pain
on May 6, 2010 while pitching mail into box on route five and, when he sneezed, his back “went
out.” He also had back pain while in the armed forces, but had no service-connected disability.
Dr. Benson diagnosed intervertebral disc injury with spinal stenosis due to pushing/pulling 80- to
180-pound uprights on May 20, 2010. He further opined that appellant was totally disabled for 8
to 12 weeks.
In a June 25, 2010 statement, appellant’s mother and father in-law stated on May 3, 2010
that their daughter called them saying appellant was hurt on the job and was unable to drive.
They drove their daughter to appellant’s work and Mr. Grove and their daughter went inside.
Mr. Grove indicated that they found appellant lying on the floor in lots of pain with Mr. Dodd
standing over him saying appellant had injured his back. They got appellant in the car and took
him to Scott & White Hospital.
In a June 25, 2010 statement, appellant’s wife indicated that appellant called her on
May 3, 2010 and stated that he hurt his back on the job and he could not drive home. She stated
that she called her parents and they took her to appellant’s office to pick him up. Appellant’s
wife stated that she went in with her father and Mr. Dodd led them to appellant, who was lying
on the floor. She stated that they took him to the hospital. Appellant’s wife also indicated that
appellant told her he was pitching mail and when he sneezed, his back locked up. She asked
appellant whether he filled out the proper paperwork and appellant indicated that his supervisor,
Mr. Dodd, did not know the proper papers and would handle it later.
In a June 9, 2010 statement, Lauren Chambers, a clerk, indicated that on May 20, 2010
she overheard Supervisor Wright tell appellant that he was to do the unit run and come back and
do a hand off for one of the routes. Supervisor Wright informed appellant that the lift on the
truck was broken and appellant stated that it might take longer to finish because his back was
still hurting and he might need some help. Ms. Chambers stated that appellant then did his unit
run.
In a June 14, 2010 statement, Brian McCaster, a distribution clerk, stated on May 20,
2010 between 10:45 and 11:00 a.m. that he saw appellant on the loading dock unloading the mail
from the unit run. Appellant was limping at the time and told him his back was bothering him,
when he asked him if he was alright. Mr. McCaster stated that appellant went in the building
over to the supervisor desk where Mr. Dodd was standing and Supervisor Wright was on the
computer. When Mr. Dodd asked appellant how it was going, appellant responded that he did
not know. Appellant then asked Mr. Dodd when the lift on the truck would get fixed and was
told two weeks. He then told Mr. Dodd he would be a little slower or it would take a little longer
to finish the rest of the run and carry a handoff. Supervisor Wright turned from his computer and

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told appellant that he would do the unit run and carry a handoff for the next 10 days. Appellant
then stated that he was leaving and Supervisor Wright told him that, if he left, not to come back.
In a July 1, 2010 statement, Gaye Gresham, a senior health and resource management,
advised that the employing establishment had no record of an April 30, 2010 work injury and
appellant did not work on May 20, 2010.
OWCP also received a copy of a May 28, 2010 magnetic resonance imaging (MRI) scan.
By decision dated July 16, 2010, OWCP denied appellant’s claim on the grounds that he
had not established that he sustained an injury at work on May 20, 2010 at the time, place and in
the manner alleged as the employing establishment indicated that he was not at work on the day
of the alleged injury.
On July 29, 2010 appellant requested a review of the written record. In an August 14,
2010 statement, he wrote that “after going over and over in his mind why the post office did not
have the May 20, 2010 down on his time card, as the day of injury, I finally realized that my
injured happened on May 19, 2010, which I went to the VA emergency room right after it
happened.” Appellant stated that the medication had made him drowsy and incoherent. He
apologized noting that a simple mistake was made because of the pain and stress his family had
been under.
Medical information from Scott & White Emergency Department was received. In an
April 30, 2010 report, Dr. Craig Cowan, an osteopath specializing in emergency medicine,
prescribed ibuprofen and Vicodin. An April 30, 2010 leave slip indicated that appellant was
seen in the Scott & White Emergency Department on April 30, 2010 and could return to work on
May 3, 2010.
In a May 19, 2010 report, Dr. Matthew S. Hill, an osteopath specializing in family
medicine, indicated that appellant had chronic low back pain, acutely worse past three weeks.
He noted that appellant was recently prescribed pain medication and was requesting more.
Dr. Hill noted that appellant works at the post office and is required to lift, push and pull heavy
boxes. Acute chronic low back pain was diagnosed. In a May 24 2010, report, Dr. Benson noted
his initial evaluation of appellant and set forth the history of the May 20, 2010 injury as set forth
in his June 24, 2010 report and opined that appellant’s condition was due to his work duties.
By decision dated November 16, 2010, an OWCP hearing representative affirmed the
July 16, 2010 decision denying appellant’s claim. The hearing representative found there were
serious unexplained inconsistencies in the evidence as the witnesses did not submit new
statements rescinding their prior statements and the May 19, 2010 medical report did not provide
a history of work injury occurring that day.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time

4

limitation period of FECA2 and that an injury was sustained in the performance of duty.3 These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.4
An injury does not have to be confirmed by eyewitnesses in order to establish the fact
that the employee sustained an injury in the performance of duty, but the employee’s statements
must be consistent with the surrounding facts and circumstances and his subsequent course of
action.5 Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury and failure to obtain
medical treatment may cast doubt on an employee’s statements in determining whether he or she
has established a prima facie case.6 However, an employee’s statement alleging that an injury
occurred at a given time and in a given manner is of great probative value and will stand unless
refuted by strong or persuasive evidence.7
When an employee claims that he sustained an injury in the performance of duty 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. He must establish that such event,
incident or exposure caused an injury.8 Once an employee establishes that he sustained an injury
in the performance of duty, he has the burden of proof to establish that, any subsequent medical
condition or disability for work, for which he claims compensation, is causally related to the
accepted injury.9
ANALYSIS
OWCP denied appellant’s claim finding that he did not establish fact of injury and that
the May 19, 2010 incident did not happen at the time, place and in the manner alleged. It found
that there were inconsistencies in the various statements of record and the medical report of
May 19, 2010 did not provide a history of injury. On appeal, appellant’s counsel argues that
OWCP’s decision is contrary to fact and law. The Board finds that the evidence of record is
sufficient to establish that the May 19, 2010 incident occurred as alleged.

2

Joe D. Cameron, 41 ECAB 153 (1989).

3

James E. Chadden, Sr., 40 ECAB 312 (1988).

4

Delores C. Ellyet, 41 ECAB 992 (1990).

5

See Early David Seal, 49 ECAB 152 (1997); Mary Jo Coppolino, 43 ECAB 551 (2002).

6

Merton J. Sills, 39 ECAB 572, 575 (1988).

7

Thelma S. Buffington, 34 ECAB 104 (1982).

8

See generally John J. Carlone, 41 ECAB 354 (1989); see also 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R.
§ 10.5(q) and (ee) (1999) (occupational disease or illness and traumatic injury defined). See Victor J. Woodhams, 41
ECAB 345 (1989) regarding a claimant’s burden of proof in an occupational disease claim.
9

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

5

Appellant originally claimed that he was injured on May 20, 2010 and submitted witness
statements from Ms. Chambers and Mr. McCaster claiming that appellant worked on
May 20, 2010. However, the record reflected that appellant did not work on May 20, 2010.
Appellant then claimed he was injured on May 19, 2010, explaining that he made a simple
mistake because of pain and stress. OWCP focused on the fact that Ms. Chambers and
Mr. McCaster did not submit new statements rescinding their prior statements; however, this, in
and of itself, does not weaken appellant’s allegation that the injury occurred on May 19, 2010 at
the time, place and in the manner alleged as the witnesses reported what they saw and heard.
Ms. Chambers reported that appellant went to do a unit run after Mr. Wright told him the
lift on the truck was broken. She also reported overhearing appellant tell Supervisor Wright it
might take longer to finish because his back hurt and he might need some help. Mr. McCaster
reported seeing appellant limping after he completed a unit run and appellant told him that his
back bothered him. He also overheard the conversation between appellant and Mr. Dodd as to
when the lift would be fixed and that appellant stated that he would be slower at work. He also
heard Mr. Wright instruct appellant to do the unit run and carry a handoff for the next 10 days
and the ensuing exchange between appellant and Mr. Wright. Mr. Dodd’s May 25, 2010
statement confirms that on May 19, 2010 Mr. Wright told appellant to do the collection run for
that day and for the rest of the week, as scheduled, and appellant indicated that he was leaving to
go to the doctors. These statements establish that on May 19, 2010 appellant completed a unit
run, after which he reported to Mr. McCaster and his supervisors that his back hurt and he was
going to the doctors. This is consistent with appellant’s statement that he made the unit run in
the mail truck that did not have the forklift. Appellant felt pain in his back when he rolled the
mail uprights onto the two-ton mail truck and his lower back pain increased, after he completed
the unit run, when he stooped down to place the steel ramp. The fact that he may have had a
preexisting back condition or the fact that no one witnessed when he injured his back, does not
preclude a finding that the May 19, 2010 incident occurred as alleged.10 The record also reflects
that appellant sought prompt medical attention on May 19, 2010. While the May 19, 2010 report
does not provide a history of injury, a May 24, 2010 report from Dr. Benson indicates that
appellant injured his low back pulling/pushing uprights while at work. The evidence does not
contain such inconsistencies as to cast doubt on the validity of appellant’s claim.
The Board finds that the evidence of record establishes that the May 19, 2010 incident,
loading and unloading mail on a truck with no forklift, occurred at the time, place and in the
manner alleged. The inconsistencies as noted by OWCP are insufficient to deny that the May 19,
2010 incident occurred as alleged.11 The case will be returned to OWCP for further development
of the medical evidence and an appropriate decision regarding whether the May 19, 2010
incident caused or aggravated appellant’s back condition.
CONCLUSION
The Board finds that the May 19, 2010 incident occurred as alleged. The case is
remanded to OWCP for further development.
10

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

11

See M.H., 59 ECAB 461 (2008): Bill H. Harris, 41 ECAB 216 (1989).

6

ORDER
IT IS HEREBY ORDERED THAT the November 16, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and remanded to OWCP for further action in
conformance with this decision.
Issued: November 7, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.B., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, DALLAS/FORT WORTH
INTERNATIONAL AIRPORT, TX, Employer
__________________________________________

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

Docket No. 20-0148
Issued: July 23, 2020

Case Submitted on the Record

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

JURISDICTION
On October 24, 2019 appellant filed a timely appeal from an October 11, 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

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the October 11, 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.

ISSUE
The issue is whether OWCP properly suspended appellant’s wage-loss compensation
benefits, effective October 12, 2019, for failure to complete an EN1032 form as requested.
FACTUAL HISTORY
On April 19, 2004 appellant, then a 47-year-old transportation security screener, filed an
occupational disease claim (Form CA-2) alleging that she sustained a bulging L5-S1 disc as a
result of factors of her federal employment including twisting her waist when moving the
belongings of passengers from a table to a conveyer belt. OWCP initially accepted her claim for
lumbar strain/sprain and dislocation of the lumbar vertebra, and later expanded acceptance of the
claim to include right hip and thigh sprain, chronic pain syndrome, degeneration of the lumbar or
lumbosacral intervertebral disc, and displacement of the lumbar intervertebral disc without
myelopathy. It paid appellant wage-loss compensation on the periodic rolls commencing
October 16, 2016.
On August 12, 2019 OWCP provided appellant a Form EN1032 and informed her that
federal regulations required her to report any improvement in her medical condition, any
employment, any change in the status of claimed dependents, any third-party settlement, and any
income or change in income from federally-assisted disability or benefit programs. It notified her
that she was required to fully answer all questions on the EN1032 form and return it within 30
days or her benefits would be suspended. The letter was mailed to appellant’s last known address.
However, OWCP received no response.
By decision dated October 11, 2019, OWCP suspended appellant’s compensation benefits,
effective October 12, 2019, for failing to complete the EN1032 form as requested. It noted that, if
she completed and returned an enclosed copy of the form, her compensation benefits would be
restored retroactively to the date they were suspended.
LEGAL PRECEDENT
Section 8106(b) of FECA authorizes the Secretary of Labor to require a partially disabled
employee to report his or her earnings from employment or self-employment, by affidavit or
otherwise, in the manner and at the times the Secretary specifies.3
Under section 10.528 of OWCP’s implementing federal regulations, an employee in receipt
of compensation benefits must complete an affidavit as to any work or activity indicating an ability
to work, which the employee has performed for the prior 15 months.4 If an employee who is
required to file such a report fails to do so within 30 days of the date of the request, his or her right
to compensation for wage loss is suspended until OWCP receives the requested report. At that
3

5 U.S.C. § 8106(b).

4

20 C.F.R. § 10.528. See also H.B., Docket No. 19-0405 (issued June 26, 2019); M.S., Docket No. 18-1107 (issued
December 28, 2018); C.C., Docket No. 17-0043 (issued June 15, 2018); A.H., Docket No. 15-0241 (issued
April 3, 2015).

2

time, OWCP will reinstate compensation retroactive to the date of suspension if the employee
remains entitled to compensation.5
ANALYSIS
The Board finds that OWCP properly suspended appellant’s wage-loss compensation
benefits, effective October 12, 2019, for failure to complete an EN1032 form as requested.
On August 12, 2019 OWCP provided appellant with an EN1032 form. It properly advised
her that, if she did not completely answer all of the questions and return the statement within 30
days, her benefits would be suspended. The record reflects that OWCP’s letter was properly sent
to appellant’s last known address and there is no indication that it was returned as undeliverable.6
Under the mailbox rule, a document mailed in the ordinary course of the sender’s business
practices to the addressee’s last known address is presumed to be received by the addressee.7
The record indicates that appellant failed to timely submit the EN1032 form within 30 days
of OWCP’s request. Appellant was receiving wage-loss compensation and she was therefore
required to complete the EN1032 form. Her failure to file an EN1032 form within 30 days resulted
in the suspension of compensation. Thus, the Board finds that OWCP properly suspended
appellant’s compensation benefits, effective October 12, 2019, pursuant to 20 C.F.R. § 10.528.
CONCLUSION
The Board finds that OWCP properly suspended appellant’s wage-loss compensation
benefits, effective October 12, 2019, for failure to complete an EN1032 form as requested.

5

Id.

6

See H.B., supra note 4; J.J., Docket No. 13-1067 (issued September 20, 2013); Kenneth E. Harris, 54 ECAB 502,
505 (2003).
7

Id.

3

ORDER
IT IS HEREBY ORDERED THAT the October 11, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 23, 2020
Washington, DC

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

Patricia H. Fitzgerald, 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
__________________________________________
E.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Durham, NC, Employer
__________________________________________

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

Docket No. 11-1364
Issued: December 28, 2011

Case Submitted on the Record

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

JURISDICTION
On May 16, 2011 appellant filed a timely appeal from merit decisions of the Office of
Workers’ Compensation Programs (OWCP) dated December 15, 2010 and April 13, 2011
denying her claim for an employment-related injury. 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 that her left wrist,
left knee and right hip conditions are causally related to a June 22, 2010 employment incident, as
alleged.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the April 13, 2011 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On July 14, 2010 appellant, then a 60-year-old lead medical technician, filed a traumatic
injury claim Form CA-1 alleging a left wrist, left knee and right hip injury when she fell on
June 22, 2010. She turned her foot due to rocks on the ground while in the performance of duty.
By letter dated July 20, 2010, OWCP requested additional factual and medical evidence.
It allotted appellant 30 days to submit the evidence and respond to its inquiries.
In a July 13, 2010 report, Dr. Elaine Hart-Brothers, a Board-certified internist, advised
that appellant was out of work after a fall on July 6, 2010 for wrist, hip and back pain. She
released appellant to work on July 14, 2010 with restrictions.
On August 6, 2010 Dr. Hart-Brothers indicated that appellant was unable to work
indefinitely and underwent an osteoporosis bone scan on July 22, 2010.
By decision dated August 27, 2010, OWCP denied appellant’s claim finding that the
factual and medical evidence submitted was insufficient to establish fact of injury. It found that
evidence submitted was insufficient to establish that the described employment incident occurred
as alleged and that there was no medical evidence that provided a diagnosis which could be
connected to the claimed incident.
Appellant submitted an August 19, 2010 report by Dr. Hart-Brothers, who diagnosed
slight elevated blood pressure and pain in the left arm, shoulder and neck. Dr. Hart-Brothers
indicated that an injury occurred on June 22, 2010. In a follow-up report of August 23, 2010, she
diagnosed arm and neck pain. Dr. Hart-Brothers checked a box “yes” indicating that the
condition was caused or aggravated by employment activity and stated that it would not have any
permanent effects. On August 30, 2010 she reported diagnoses of right arm spasms, chronic
right hip pain, neck and shoulder pain, left knee pain, left arm, wrist and fingers pain.
Dr. Hart-Brothers checked a box “yes” indicating that the conditions were caused or aggravated
by employment activity and opined that appellant was permanently disabled for work.
On September 18, 2010 appellant requested a review of the written record by OWCP’s
hearing representative.
By decision dated December 15, 2010, OWCP’s hearing representative affirmed the
August 27, 2010 decision finding that the evidence submitted failed to establish fact of injury.
On February 1, 2011 appellant requested reconsideration. She submitted a July 13, 2010
report by Dr. Hart-Brothers diagnosing pain in left wrist, hands, right hip and left knee due to a
fall on June 22, 2010. Dr. Hart-Brothers indicated that appellant did not have true arthritis, no
joint abnormalities and possible gastroesophageal reflux disease.
On August 30 and
September 2, 2010 she reiterated her opinion that appellant’s condition was due to an accident
related to her employment and that she was permanently disabled for work. In an October 1,
2010 report, Dr. Hart-Brothers restricted appellant from lifting over 10 pounds, climbing,
walking or standing for long periods and ordered her to rest at intervals.

2

Appellant also submitted an August 6, 2010 report from Deborah Dawn Smith, a nurse
practitioner, and resubmitted reports by Dr. Hart-Brothers dated August 19 and 23, 2010.
On March 2, 2011 the employing establishment submitted a response to appellant’s
request for reconsideration. Subsequently, appellant submitted a March 25, 2011 narrative
statement, noting that while in the performance of duty on June 22, 2010, she fell while stepping
on rocks and an employing establishment employee assisted her in getting up. A statement by
Larry R. Johnson, a coworker, who witnessed her trip and fall on June 22, 2010, noted he
assisted her in getting up.
By decision dated April 13, 2011, OWCP affirmed, as modified, the August 27, 2010
decision finding that the incident occurred, as alleged, appellant fell on June 22, 2010 after
turning her foot on rocks while in the performance of duty. However, it found that the medical
evidence submitted did not establish causal relationship.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury4 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
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit sufficient
evidence, generally only in the form of medical evidence, to establish that the employment
incident caused a personal injury. An employee may establish that the employment incident
occurred as alleged but fail to show that his or her condition relates to the employment incident.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
3

5 U.S.C. §§ 8101-8193.

4

OWCP’s regulations 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. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
5

T.H., 59 ECAB 388 (2008).
1143 (1989).
6

See Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB

Id. See Shirley A. Temple, 48 ECAB 404 (1997); John J. Carlone, 41 ECAB 354 (1989).

3

compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.7
ANALYSIS
OWCP has accepted that the employment incident of June 22, 2010 occurred at the time,
place and in the manner alleged. The issue is whether appellant’s left wrist, left knee and right
hip conditions resulted from the June 22, 2010 employment incident. The Board finds that she
did not meet her burden of proof to establish a causal relationship between the conditions for
which compensation is claimed and the June 22, 2010 employment incident.
Dr. Hart-Brothers submitted several reports in which she diagnosed slightly elevated
blood pressure and pain in the left fingers, hand, wrist and arm, left knee, shoulder, neck and
right hip due to a fall at work on June 22, 2010. She indicated that appellant did not have true
arthritis, no joint abnormalities and possible gastroesophageal reflux disease. On August 30 and
September 2, 2010 Dr. Hart-Brothers opined that appellant’s condition was due to an accident
related to her employment and that she was permanently disabled for work. The Board has held
that medical evidence that does not offer any opinion regarding the cause of an employee’s
condition is of limited probative value on the issue of causal relationship.8 The Board finds that
Dr. Hart-Brothers failed to directly address the issue of causal relationship as she did not explain
how the mechanism of the June 22, 2010 employment incident caused or aggravated appellant’s
conditions. Dr. Hart-Brothers did not provide medical rationale explaining how appellant’s
wrist, knee and hip conditions were caused or aggravated by turning her foot due to rocks on the
ground on June 22, 2010. Lacking thorough medical rationale on the issue of causal relationship,
the reports are of limited probative value and not sufficient to establish that appellant sustained
an employment-related injury in the performance of duty on June 22, 2010. Similarly,
Dr. Hart-Brothers’ August 23 and 30, 2010 reports, wherein the box was marked “yes” for an
employment-related injury, are of limited probative value. The Board has held that a check mark
without more, by way of rationale, is insufficient to establish a claim for compensation.9 As
such, the Board finds that appellant did not meet her burden of proof with these submissions.
The report from Ms. Smith, a nurse practitioner, is of no probative value as she is not a
physician under FECA.10 As such, the Board finds that appellant did not meet her burden of
proof with this submission.

7

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

8

See C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

9

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

10

5 U.S.C. § 8101(2). Section 8101(2) of FECA provides as follows: “(2) ‘physician’ includes surgeons,
podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic practitioners within the scope
of their practice as defined by State law.” See also Paul Foster, 56 ECAB 208, 212 n.12 (2004); Joseph N. Fassi,
42 ECAB 677 (1991); Barbara J. Williams, 40 ECAB 649 (1989).

4

As appellant has not submitted any rationalized medical evidence to support her
allegation that she sustained an injury causally related to a June 22, 2010 employment incident,
she has failed to meet her burden of proof.
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 submitted sufficient rationalized medical opinion
evidence to establish that her left wrist, left knee and right hip conditions were sustained on
June 22, 2010 in the performance of duty, as alleged. Therefore, appellant has failed to meet her
burden of proof to establish a claim for compensation.
ORDER
IT IS HEREBY ORDERED THAT the April 13, 2011 and December 15, 2010
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: December 28, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

5


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

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

Docket No. 14-1371
Issued: October 22, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 30, 2014 appellant timely appealed the April 17, 2014 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 sustained an injury in the performance of duty on or about
December 30, 2013.
FACTUAL HISTORY
On February 27, 2014 appellant, a 64-year-old custodial laborer, filed a claim for injury
to his lower back and feet, which arose on or about December 30, 2013. He explained that he
1
2

5 U.S.C. §§ 8101-8193 (2006).

The record on appeal contains evidence received after OWCP issued its April 17, 2014 decision. The Board is
precluded from considering evidence that was not in the case record at the time OWCP rendered its final decision.
20 C.F.R. § 501.2(c)(1) (2012).

was on his feet maintaining two offices with no help and few breaks. As a result, appellant
experienced increased lower back pain, as well as pain in the balls of his feet and bilateral heel
pain.3
On March 12, 2014 OWCP informed appellant that it had not received any
documentation in support of his latest claim. It advised him to submit a statement describing the
employment-related activities he believed contributed to his condition. Appellant was also
instructed to submit medical evidence from a qualified physician regarding his claimed
condition(s). OWCP afforded him 30 days to submit the necessary factual and medical
information.
OWCP did not receive any additional information within the allotted time frame.4
By decision dated April 17, 2014, OWCP denied appellant’s occupational disease claim.
He failed to establish fact of injury. OWCP noted that it had not received any medical evidence.
LEGAL PRECEDENT
A claimant seeking benefits under FECA has the burden of establishing 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.5
To establish that an injury was sustained in the performance of duty, 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.6
ANALYSIS
Appellant claimed to have aggravated his lower back and bilateral foot condition on or
about December 30, 2013. He explained that he was on his feet maintaining two offices with no
help and few breaks. However, appellant did not submit any medical evidence in support of his
claim. On March 12, 2014 OWCP advised him to submit medical evidence from a qualified
3

Appellant had a previously accepted occupational disease claim for bilateral plantar fibromatosis, which arose
on or about September 1, 2005 (xxxxxx524). He also had previously injured his left foot and lower back on
May 25, 2000 (xxxxxx043). With respect to his current bilateral foot and lumbar complaints, appellant filed a notice
of recurrence (Form CA-2a) under claim number xxxxxx524. Given his description of events, OWCP treated his
February 27, 2014 claim as a new occupational disease injury rather than a recurrence.
4

Appellant signed and returned OWCP’s March 12, 2014 questionnaire, but he did not provide the requested
factual information.
5

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996). Causal relationship is a
medical question, which generally requires rationalized medical opinion evidence to resolve the issue. See
Robert G. Morris, 48 ECAB 238 (1996).
6

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

2

physician regarding his claimed condition(s). It afforded appellant a reasonable amount of time
to substantiate his claim, but no medical evidence was received within the 30-day period.
Consequently, OWCP denied his occupational disease claim because the record was devoid of a
medical diagnosis related to his reported occupational exposure. Under the circumstances, the
Board finds that appellant failed to establish that he sustained an injury in the performance of
duty.
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
Appellant failed to establish that he was injured in the performance of duty on or about
December 30, 2013.
ORDER
IT IS HEREBY ORDERED THAT the April 17, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 22, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.R., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. CUSTOMS SERVICE, New York, NY,
Employer
__________________________________________

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

Docket No. 06-1975
Issued: January 18, 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 August 23, 2006 appellant filed a timely appeal from the May 17, 2006 merit decision
of the Office of Workers’ Compensation Programs, which denied her claim for compensation.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of
her case.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty.
FACTUAL HISTORY
On May 1, 2002 appellant, then a 50-year-old intelligence research specialist, filed a
claim for compensation alleging that she sustained an injury in the performance of duty on
April 30, 2002: “I was at my work area (cubicle desk) writing a memo[random] when the
middle section of my desk flipped over and striked both of my arms, wrist area and legs. When I

tried backing my chair away, I twisted my right side of my neck and strained my back.”
Appellant disclosed that she had a back injury in May 2001 and had not recovered when the
April 30, 2002 incident occurred.
A supervisor reported that appellant’s statement was consistent with his knowledge of the
facts and that appellant had injured herself in the performance of duty. He added that appellant
first sought medical care on May 1, 2002 but lost no time from work.
The Office asked for more information. It gave appellant questions to answer and
advised that her physician had to explain whether the incident caused or aggravated a diagnosed
condition: “This evidence is crucial in consideration of your claim. You may wish to discuss the
contents of this item with your physician.”
On March 2, 2005 the Office denied appellant’s claim. Noting that appellant had
submitted a claim form and nothing else, the Office found that the evidence failed to establish
that the incident occurred at the time, place and in the manner alleged. The Office also found
that appellant failed to submit a comprehensive, reasoned medical opinion to establish causal
relationship.
Additional evidence followed. The employing establishment authorized medical
treatment on May 1, 2002. On the back of that authorization, a physician, whose signature is
illegible, related that a cubicle fell on appellant “yesterday at work.” Findings included bruises
and muscle swelling, bilateral upper arms and [bilateral?] ankle. With an affirmative mark, the
physician opined that the described employment injury caused contusions on both arms and legs.
The physician found that appellant was totally disabled on May 1, 2002 but able to resume
regular work on May 2, 2002.
On November 1, 2003 Dr. Avraham H. Uncyk, a family practitioner, diagnosed contusion
of the right wrist and hand. He circled “yes” to indicate that this injury was related to the work
accident on April 30, 2002. X-rays on November 3, 2003 showed a skeletally intact right hand.
Appellant received medical attention after November 2003.
Dr. Jonathan Gordon, an orthopedic surgeon, described her history:

On December 16, 2003

“The patient is a 51-year-old who comes in today complaining of right wrist pain.
The patient has a longstanding history of pain and swelling in the patient’s right
wrist. She had something fall on her at work and has had pain ever since.”
Dr. Gordon diagnosed right wrist pain with extensor pollicis longus tendinitis and placed
appellant in a splint. On July 22, 2004 he diagnosed right de Quervain’s disease. Appellant
requested reconsideration.
On May 17, 2006 the Office reviewed the merits of appellant’s claim and denied
modification of its prior decision. The Office found no medical documentation that appellant
sustained an injury as a result of the April 30, 2002 incident.

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LEGAL PRECEDENT
The United States shall pay compensation for the disability of an employee resulting
from personal injury sustained while in the performance of duty.1 An employee seeking benefits
under the Federal Employees’ Compensation Act has the burden of proof to establish the
essential elements of her claim. When an employee claims that she sustained an injury in the
performance of duty, she must submit sufficient evidence to establish that she experienced a
specific event, incident or exposure occurring at the time, place and in the manner alleged. She
must also establish that such event, incident or exposure caused an injury.2
To establish that an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
her subsequent course of action.3 An employee’s statement alleging that an injury occurred at a
given time and in a given manner is of great probative value and will stand unless refuted by
strong or persuasive evidence.4
Causal relationship is a medical issue5 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion of the physician must be based on a complete
factual and medical background of the claimant,6 must be one of reasonable medical certainty7
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the established incident or factor of employment.8
Not all medical opinions require rationale. In a simple traumatic injury, such as a knife
cut that, is reported to and seen by the physician promptly, there is no need to obtain a
rationalized explanation of causal relationship. When the relationship is not obvious or when

1

5 U.S.C. § 8102(a).

2

See Walter D. Morehead, 31 ECAB 188, 194 (1979) (occupational disease or illness); Max Haber, 19 ECAB
243, 247 (1967) (traumatic injury). See generally John J. Carlone, 41 ECAB 354 (1989).
3

Carmen Dickerson, 36 ECAB 409 (1985); Joseph A. Fournier, 35 ECAB 1175 (1984). See also George W.
Glavis, 5 ECAB 363 (1953).
4

Caroline Thomas, 51 ECAB 451 (2000).

5

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

6

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

7

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

8

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

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there may have been an intervening nonoccupational cause, it is essential that the physician give
his or her medical reasons for relating the condition to the history obtained.9
ANALYSIS
Appellant’s claim that she sustained an injury in the performance of duty on April 30,
2002 is consistent with the surrounding facts and her subsequent course of action. She promptly
filed a claim for compensation. No witness provided a statement, but a supervisor confirmed
that appellant’s claim was consistent with his knowledge of the facts. The employing
establishment authorized medical care and when appellant saw the physician on May 1, 2002,
she related a consistent history of injury. As there is no evidence refuting appellant’s account of
events, the Board finds that she has met her burden to establish that the incident occurred as
alleged. The question that remains is whether the middle section of her cubicle desk caused an
injury when it flipped over and struck her arms and legs on April 30, 2002.
The physician who examined her on the following day thought so. The physician found
bruises and muscle swelling. Noting that, a cubicle had fallen on appellant the previous day at
work, the physician opined that the incident caused contusions on both arms and legs.10 The
physician offered no rationale to explain how such an incident, medically speaking, caused
bruises and muscle swelling. But this is a simple traumatic injury, reported to and seen by the
physician promptly. Given the nature of the injury and the rather obvious relationship, the Board
finds that there is no need for appellant to obtain a rationalized medical explanation of the cause
of her contusions. Appellant has met her burden of proof to establish that she bruised her legs
and upper arms on April 30, 2002 while in the performance of duty.
Although there is no reason to doubt that she tried backing her chair away after being
struck, no medical evidence shows that she twisted the right side of her neck or strained her back
on April 30, 2002, as alleged. The evidence establishes only a contusion injury to her legs and
upper arms.
Appellant submitted later medical evidence to support that the April 30, 2002 incident
caused additional injury. She saw Dr. Uncyk, the family practitioner, on November 1, 2003 for a
contusion of the right wrist and hand. Dr. Uncyk circled “yes” to indicate that this injury was
related to the work accident on April 30, 2002, but he reported no history of the April 30, 2002
injury and so failed to demonstrate a basic understanding of what happened that day. Medical
conclusions based on inaccurate or incomplete histories are of little probative value.11

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.6.d (April 1993).
10

For the purpose of establishing an injury in the performance of duty, it matters little whether the cubicle or part
of the cubicle desk struck appellant’s arms and legs.
11

James A. Wyrick, 31 ECAB 1805 (1980) (physician’s report was entitled to little probative value because the
history was both inaccurate and incomplete). See generally Melvina Jackson, 38 ECAB 443, 450 (1987) (addressing
factors that bear on the probative value of medical opinions).

4

Dr. Uncyk also failed to acknowledge that appellant’s examination on May 1, 2002 found
bruises and muscle swelling on the upper arms, not on the right wrist and hand. He offered no
explanation for the different location of the contusion he saw on November 1, 2003 and no
explanation why a contusion sustained on April 30, 2002 would persist for a year and a half. As
appellant’s examination on May 1, 2002 revealed no right wrist or hand contusion and given the
apparent failure of the contusion to resolve within a reasonably short period of time, the causal
connection between the April 30, 2002 incident at work and the condition Dr. Uncyk found on
examination a year and a half later is not obvious. Dr. Uncyk must provide sound medical
reasoning for his opinion that the April 30, 2002 incident caused and the findings he made in
November 2003. He provided none. Medical conclusions unsupported by rationale are of little
probative value and are insufficient to establish the critical element of causal relationship.12
On December 16, 2003 Dr. Gordon, the orthopedic surgeon, diagnosed right wrist pain
with extensor pollicis longus tendinitis. On July 22, 2004 he diagnosed right de Quervain’s
disease. He related neither of these conditions to the April 30, 2002 incident. His reports do
nothing, therefore, to support a causal connection to appellant’s federal employment.
CONCLUSION
The Board finds that appellant has discharged her burden of proof to establish that she
sustained a contusion injury to her legs and upper arms on April 30, 2002 while in the
performance of duty. The Board further stated that appellant has not met her burden of proof to
establish that she also injured her right wrist that day. The evidence fails to establish that the
later diagnosis of right wrist contusion, extensor pollicis longus tendinitis or right de Quervain’s
disease is causally related to the April 30, 2002 incident at work.

12

Ceferino L. Gonzales, 32 ECAB 1591 (1981); George Randolph Taylor, 6 ECAB 968 (1954).

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ORDER
IT IS HEREBY ORDERED THAT the May 17, 2006 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for the payment of any
compensation benefits to which appellant may be entitled as a result of her April 30, 2002
employment injury.
Issued: January 18, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.M., Appellant
and
DEPARTMENT OF THE ARMY, JOINT
MUNITIONS & LETHALITY COMMAND,
McAlester, OK, Employer
__________________________________________

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

Docket No. 15-1812
Issued: April 12, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 1, 2015 appellant filed a timely appeal from a July 31, 2015 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish binaural hearing loss
in the performance of duty, causally related to factors of his federal employment.
On appeal, appellant contends that when he went to work at the employing establishment
in 2003 his hearing was in good shape, it worsened from 2004 to 2007, and in 2010 he was told
that he needed to change jobs because his hearing loss was more severe than before.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 18, 2013 appellant, a 66-year-old explosives worker, filed an occupational
disease claim (Form CA-2) alleging that he sustained additional hearing loss due to noise
exposure in the course of his federal employment. On the claim form, the employing
establishment indicated that he was reassigned to a light-duty position in storage on
January 11, 2011. A statement of accepted facts confirmed that appellant was employed as an
explosives worker from 2003 to 2011, that he was a participant in the hearing conservation
program, and had a previously accepted claim for binaural hearing loss under OWCP File No.
xxxxxx108.
In a September 3, 2013 letter, OWCP notified appellant of the deficiencies of his claim
and afforded him 30 days to submit additional evidence and respond to its inquiries. Appellant
did not respond.
By decision dated November 26, 2013, OWCP denied appellant’s claim as the evidence
was insufficient to establish that the claimed work events occurred as alleged.
On January 14, 2014 appellant requested reconsideration and submitted audiograms dated
January 15, 2004 through February 13, 2013 from the employing establishment’s hearing
conservation program.
By decision dated February 25, 2014, OWCP denied modification of its prior decision.
On August 25, 2014 appellant again requested reconsideration and submitted an
August 15, 2014 narrative statement and memoranda from the employing establishment dated
October 20, 2010, September 8, 2011, and May 2, 2012 regarding noise exposure in the
workplace and the availability of hearing protection. He also resubmitted audiograms dated
January 15, 2004 through December 4, 2013 from the employing establishment’s hearing
conservation program.
OWCP referred appellant to The Scholl Center for diagnostic testing to evaluate his
hearing. An audiological evaluation dated July 6, 2015 demonstrated mild-to-moderate-severe
sensorineural hearing loss in the right ear and mild-to-severe sensorineural hearing loss in the left
ear. The July 6, 2015 audiogram exhibited the following decibel (dB) losses at 500, 1,000,
2,000, and 3,000 Hertz (Hz): 35, 35, 35, and 45 for the right ear and 30, 30, 35, and 45 for the
left ear.
OWCP referred appellant to Dr. Charles Heinberg, a Board-certified otolaryngologist, for
a second opinion evaluation to determine the nature and extent of appellant’s employmentrelated hearing loss. In his July 6, 2015 report, Dr. Heinberg reviewed a statement of accepted
facts, appellant’s medical records and history, and conducted a physical examination. He
diagnosed bilateral sensorineural hearing loss based on the July 6, 2015 audiogram performed on
his behalf. Dr. Heinberg reported appellant’s percent of hearing loss according to the formula
derived by the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides),2 as 19 percent monaural hearing loss in the right ear,
2

A.M.A., Guides (6th ed. 2009).

2

15 percent monaural hearing loss in the left ear, and 16 percent hearing loss binaurally. He noted
that appellant had a long history of hearing loss since 2004. Dr. Heinberg concluded, however,
that appellant’s pattern of hearing loss was “more consistent with presbycusis than noise trauma”
and opined that it was not due to noise exposure encountered during the course of his federal
employment. In response to OWCP’s question, “Was the workplace exposure, as described in
the material provided, sufficient as to intensity and duration to have caused the loss in
question?,” Dr. Heinberg replied “Yes.” However, he also opined that, “The sensorineural
hearing loss seen is, in part or all, in my opinion NOT DUE to noise exposure encountered in this
claimant’s [f]ederal civilian employment.” (Emphasis in the original.) Dr. Heinberg determined
that the date of maximum medical improvement was July 6, 2015 and recommended hearing
aids.
On July 28 2015 Dr. H. Mobley, an OWCP medical adviser, reviewed Dr. Heinberg’s
report and audiometric test of July 6, 2015. He concurred with Dr. Heinberg’s findings and
calculations under the sixth edition of the A.M.A., Guides and concluded that appellant had 16
percent binaural hearing loss. Dr. Mobley concurred with Dr. Heinberg that appellant’s hearing
loss was compatible with presbycusis and, therefore, it was not causally related to his federal
employment. He further opined that hearing aids should not be authorized as appellant’s hearing
loss was not employment related. Dr. Mobley determined that the date of maximum medical
improvement was July 6, 2015.
By decision dated July 31, 2015, OWCP denied appellant’s claim as the medical
evidence of record failed to establish a causal relationship between his hearing loss and factors of
his federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, and that an injury3 was sustained in the performance of duty. These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in a claim for an
occupational disease claim, an employee must submit the following: (1) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; (2) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; and (3) medical

3

OWCP regulations define an occupational disease or illness as a condition produced by the work environment
over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).
4

See J.C., Docket No. 09-1630 (issued April 14, 2010). See also Ellen L. Noble, 55 ECAB 530 (2004).

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evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical evidence. The opinion of the physician must
be based on a complete factual and medical background of the employee, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the employee.6
ANALYSIS
The Board finds that this case is not in posture for decision due to inconsistencies in
Dr. Heinberg’s second opinion report.
OWCP referred appellant to Dr. Heinberg for a second opinion evaluation to determine
the nature and extent of appellant’s employment-related hearing loss. In his July 6, 2015 report,
Dr. Heinberg diagnosed bilateral sensorineural hearing loss and noted that appellant had a long
history of hearing loss since 2004. In response to OWCP’s question, “Was the workplace
exposure, as described in the material provided, sufficient as to intensity and duration to have
caused the loss in question?,” Dr. Heinberg replied “Yes.” However, he also opined that, “The
sensorineural hearing loss seen is, in part or all, in my opinion NOT DUE to noise exposure
encountered in this claimant’s [f]ederal civilian employment.” (Emphasis in the original.)
Dr. Heinberg indicated that appellant’s pattern of hearing loss was “more consistent with
presbycusis than noise trauma” and opined that it was not due to noise exposure encountered
during the course of his federal employment.
The Board finds that OWCP’s referral physician, Dr. Heinberg, provided contradictory
findings regarding the cause of appellant’s hearing loss by opining that appellant’s hearing loss
was not work related yet also opining that workplace noise exposure was sufficient to have
caused appellant’s hearing loss. The Board has held that once OWCP undertakes development
of the record, it must do a complete job in procuring medical evidence that will resolve the
relevant issues in the case.7 Accordingly, the Board will set aside OWCP’s July 31, 2015
decision and remand the case to OWCP to resolve the issue.
The Board further finds that OWCP previously accepted appellant’s claim for binaural
hearing loss as an explosives worker from 2003 to 2011 under OWCP File No. xxxxxx108.
Upon return of the case, OWCP should combine the current case record with File No.

5

Id. See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

6

See I.J., 59 ECAB 408 (2008). See also Victor J. Woodhams, 41 ECAB 345 (1989).

7

See Richard F. Williams, 55 ECAB 343, 346 (2004).

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xxxxxx544.8 Following any necessary further development, OWCP should issue a de novo
decision.
CONCLUSION
The Board finds that this case is not in posture for decision. Further development of the
evidence is warranted.
ORDER
IT IS HEREBY ORDERED THAT the July 31, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further development
consistent with this decision of the Board.
Issued: April 12, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8

See Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter
2.400.8(c)(1) (February 2000) (cases should be doubled when a new injury case is reported for an employee who
previously filed an injury claim for a similar condition or the same part of the body).

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