United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Baton Rouge, LA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-208
Issued: September 17, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 5, 2012 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ (OWCP) decision dated September 26, 2012. 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 sustained a gynecological condition in the
performance of duty, causally related to her accepted psychological conditions; and (2) whether
appellant has sustained any permanent impairment to a scheduled member of her body, thereby,
entitling her to a schedule award under 5 U.S.C. § 8107.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This the second appeal before the Board. This case entails a lengthy factual history; on
November 18, 1994 appellant, then a 31-year-old maintenance control clerk, filed a Form CA-2
claim for benefits, alleging that she developed an emotional condition causally related to
employment factors. She further alleged that she developed a menorrhagia condition, which
required emergency surgery on October 28, 1994. Appellant stated that she experienced anemia,
headache, weakness, shortness of breath, depression and stomach ulcers had to undergo two
dilation and curettage procedures due to sexual harassment by Larry Hamilton, an injury
compensation specialist. She asserted that she became depressed and experienced stress when
Mr. Hamilton returned to the employing establishment on October 11, 1994 after serving a
disciplinary suspension due to his sexual harassment of appellant. Appellant stated that she
experienced identical symptoms beginning in February 1988 due to sexual harassment at work
on the part of Mr. Hamilton.
In a July 15, 1988 report, Dr. Francis H. Henderson, Board-certified in obstetrics and
gynecology and appellant’s treating physician, stated that appellant had a six-month history of
intermittent inenorrhagia, undergoing an emergency dilation and curetage on April 14, 1988.
She advised that stress could be a factor in causing appellant’s abnormal bleeding, stating that
emotional stress can greatly influence menstrual regulation.
In an April 18, 1994 decision, the Equal Employment Opportunity Commission (EEOC)
found that appellant had established a prima facie case of sexual harassment by Mr. Hamilton
sufficient to cause a hostile work environment. The employing establishment transferred him to
a different employing establishment from July 25 to October 10, 1994. On September 14, 1994
the employing establishment modified Mr. Hamilton’s proposed reduction in grade from
September 24 to October 7, 1994 to a suspension. Mr. Hamilton returned to duty on October 10,
1994 at his regular position.
In an October 18, 1994 letter, appellant noted that Mr. Hamilton had returned to the
employing establishment and with him she demanded his removal. She asserted that working in
the same employing establishment caused a recurrence of her mental and physical symptoms.
In a December 1, 1994 report, Dr. Henderson noted an onset of abnormal uterine
bleeding on September 21, 1994, requiring dilation and curetage and transfusions for anemia in
October 1994.
By decision dated March 6, 1995, OWCP denied appellant’s claim. Appellant requested
an oral hearing, which was held on February 14, 1996.
In a November 9, 1995 report, Dr. F.A. Silva, an attending psychiatrist, indicated that
appellant was unable to perform all of her job duties as of September 13, 1995 and continuing
due to generalized anxiety disorder and possible post-traumatic stress syndrome (PTSD) related
to work stress; this was aggravated by having to work at the same location as Mr. Hamilton. He
advised that her onset of symptoms occurred in August 1995. Dr. Silva opined that appellant
could return to full-time work if she did not have to work at the same facility as Mr. Hamilton
and was able to obtain work within her orthopedic restrictions.

2

By decision dated May 17, 1996, OWCP set aside the March 6, 1995 decision. It
remanded for further development of the medical evidence and directed the district Office to
refer appellant to a Board-certified psychiatrist for a second opinion examination.
In an August 13, 1996 statement of accepted facts, it was indicated that OWCP accepted
EEOC’s finding that Mr. Hamilton sexually harassed appellant from 1985 to 1988. OWCP
accepted as factual, but not compensable, her frustration over what she felt was insufficient
disciplinary action against him. The statement of accepted facts indicated that appellant returned
to work on October 24, 1988 and missed little or no time from work due to the harassment until
November 8, 1994, when she filed her occupational disease claim.
In order to determine whether appellant had a gynecological condition caused by
employment factors, appellant was referred to Dr. Louis Cenac, a Board-certified psychiatrist,
who stated in an August 27, 1996 report that she was experiencing insomnia, crying spells,
hostile thoughts toward Mr. Hamilton, difficulty concentrating and loss of interest in activities.
Dr. Cenac diagnosed factitious disorder with combined psychological and physical signs and
symptoms and histrionic personality; he found that her current condition was not work related
since she was able to return to work after the harassment ceased in 1988.
In a September 11, 1996 report, Dr. Cenac stated that, based on appellant’s complaints,
she should have been symptom-free from the stressor caused by Mr. Hamilton by 1990. He
advised that she had a long history of histrionic personality disorder and was considered
uncomfortable in situations where she was not the center of attention. Dr. Cenac indicated that
her symptoms recurred when Mr. Hamilton was promoted; this caused more attention to be
focused on him than on appellant, which triggered her recurrence.
By decision dated September 19, 1996, based on Dr. Cenac’s reports, OWCP accepted
that appellant sustained a condition; i.e., a psychological factor affecting medical condition
secondary to sexual harassment. It found, however, that the effects of this condition had ceased
as of December 31, 1989.
In a September 24, 1996 report, Dr. Silva stated that he began treating appellant on
September 13, 1995, when she was referred for emergency treatment due to stress symptoms
related to her return to work at the employing establishment. He stated that her symptoms and
efforts to avoid activities that arouse recollections of the trauma were characteristic of PTSD.
Dr. Silva advised that appellant had an extreme physiological reaction, which intensified when
she had to work in the same building as Mr. Hamilton and had to come in contact with him. He
diagnosed PTSD disorder and major depression, single episode, which required hospitalization
on September 21, 1996. Dr. Silva opined that appellant’s current condition arose from incidents
of sexual harassment which occurred between 1985 and 1988.
On September 30, 1996 appellant requested reconsideration of the September 19, 1996
decision.
She alleged that her depression, PTSD and menorrhagia persisted after
December 31, 1989.

3

By decision dated October 22, 1996, OWCP denied modification of the September 19,
1996 decision. In an October 23, 1998 decision,2 the Board set aside OWCP’s September 19 and
October 22, 1996 decisions. The Board found that there was a conflict in the medical evidence
between Dr. Cenac and Dr. Silva regarding whether appellant’s physical and psychological
symptoms as of December 31, 1989 and continuing were causally related to sexual harassment
by Mr. Hamilton from 1985 to 1988, the accepted psychiatric condition or other factors of her
employment.3 The Board remanded and directed OWCP to refer appellant to an impartial
medical examiner to resolve the medical conflict in the medical evidence. The facts of this case
prior to October 23, 1998 are set forth in the Board’s decision of that date and are herein
incorporated by reference.
A hysterectomy and bilateral salpingo-oophorectomy were performed on
December 9, 1996. In an impartial medical report dated August 31, 1999, Dr. James H.
Blackburn, a Board-certified psychiatrist, stated that appellant’s current condition was directly
related to factors of her employment and precluded her from any form of employment with the
employing establishment. He stated that this included, but was not limited to, the years she was
exposed to sexual harassment and the equally traumatic aftermath in which she attempted to have
that situation resolved. Dr. Blackburn explained that he did not agree that appellant stopped
work only after she became dissatisfied with the disciplinary action rendered to Mr. Hamilton; he
stated that she appeared to have stopped work due to a number of factors reflected in her medical
history. He opined that there was sufficient information in the record to document a continuum
of emotional upset and disorder from 1989 through the present, noting that the employing
establishment’s records indicated that appellant barely worked for extensive periods during 1989
through 1991, through 1995. Dr. Blackburn stated that, concomitantly, her physical condition,
which continued to be aggravated, did not permit her to return to work on a physical basis. He
concluded that appellant had an emotional disorder directly related to her working conditions.
On July 1, 2000 appellant filed a Form CA-7 claim for a schedule award.
In a memorandum dated January 23, 2001, an OWCP claims examiner stated that he had
advised appellant that, if she wanted to claim a schedule award for her hysterectomy, she needed
to submit a report from her treating physician, which included a reasoned medical opinion
indicating how/whether the hysterectomy was related to any accepted conditions.
In an April 26, 2001 report, Dr. Henderson stated that appellant had a severe case of
menorrhagia, which was causally related to her diagnoses of severe depression, anxiety disorders
and PTSD caused by sexual harassment on the job.
By letter dated July 13, 2001, OWCP asked Dr. Henderson for an evaluation of whether
appellant had any permanent impairment stemming from an accepted condition.
2

Docket No. 97-566 (issued October 23, 1998).

3

The Board noted that Dr. Cenac, in his September 11 and 18, 1996 reports, opined that appellant’s
recrudescence of symptoms was a histrionic response due to Mr. Hamilton’s “promotion,” which deflected attention
from appellant. The Board found that this opinion was erroneous and based on an inaccurate history, as there was
no indication in the record that Mr. Hamilton was promoted; appellant was reacting to Mr. Hamilton’s reinstatement
after his two-week disciplinary suspension, not a promotion.

4

By letter dated August 24, 2001, OWCP informed appellant that her claim for a schedule
award could not be processed. It advised her that her only accepted conditions were depression
and PTSD and that there was no provision under FECA for schedule awards for nonphysical
impairments.
In a March 15, 2002 report, Dr. Henderson reiterated that appellant sustained a severe
case of menorrhagia which was causally related to her severe depression, anxiety disorders and
PTSD caused by sexual harassment on the job. She stated that appellant’s history made it
necessary to perform a total abdominal hysterectomy and bilateral salpingo-oophorectomy.
Dr. Henderson found that as a result of the surgical procedures appellant had a 35 percent
permanent impairment under the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides), due to the fact that she was of childbearing age and
was no longer to bear children and had to remain on hormonal therapy for the rest of her life.
She stated that Table 3 in Chapter 7 was used partly to help provide this percentage of permanent
impairment, which was not a whole body rating.
By letter dated July 22, 2004, OWCP asked its medical adviser to evaluate
Dr. Henderson’s March 15, 2002 report, assess the date of maximum medical improvement and
determine whether appellant had an impairment rating under A.M.A., Guides.
In a July 29, 2004 report, an OWCP medical adviser reviewed Dr. Henderson’s
March 15, 2002 report and the medical history. He opined that there was inadequate evidence in
the record to support a causal relation between her accepted PTSD and major depressive disorder
conditions and her menorrhagia and subsequent hysterectomy. OWCP’s medical adviser advised
that menorrhagia was a common disorder of females that was thought to be due to hormonal
imbalances. He opined that the hysterectomy was not related to appellant’s job or to the
accepted conditions related to her sexual harassment from 1985 to 1988.
By letter dated August 12, 2004, OWCP advised appellant that in order to be entitled to a
schedule award she needed to establish that she had permanent impairment due to a physical
condition. It stated that there was a conflict in the medical evidence regarding whether her
alleged physical condition was causally related to her employment and that it was referring her
for a referee medical examination with an urologist to resolve the conflict in medical opinion.
In a letter to OWCP dated August 17, 2004, appellant requested that a female physician
be appointed to examine her. She indicated that due to her psychological condition she was
unable to allow herself to be examined by a male physician.
By letter dated April 12, 2005, OWCP informed appellant that it was unable to locate a
female gynecologist to conduct the impartial examination and indicated that she would be
referred to a male Board-certified gynecologist for her impartial medical examination. Appellant
refused such examination and requested that her medical records be reviewed by a Boardcertified physician.
In a report dated May 9, 2005, Dr. James D. Boyd, Board-certified in obstetrics and
gynecology, provided handwritten answers to an OWCP questionnaire regarding the work
relatedness of appellant’s claimed gynecological condition to her accepted psychiatric

5

conditions. He indicated that menorrhagia was usually hormonal and opined that the
hysterectomy was not causally related to January 1, 1998 employment incident.
By decision dated May 16, 2005, OWCP denied appellant’s claim for a schedule award,
finding based on Dr. Boyd’s opinion that she did not have any permanent impairment causally
related to an accepted employment condition.
On May 20, 2005 appellant requested a hearing, which was held on December 20, 2006.
By decision dated February 20, 2007, an OWCP hearing representative set aside the
May 16, 2005 decision. She found that OWCP failed to resolve the conflict in the medical
evidence by referring her to a female gynecologist and found that Dr. Boyd’s opinion did not
merit the weight of a referee medical examiner as it was generalized, contained no rationale and
was not based on a proper factual and medical background. The hearing representative
remanded for OWCP to reinitiate efforts to obtain evaluation by a female gynecologist and
directed the district Office to reflect the fact that appellant was off work for intermittent periods
from 1991 through 1995. She stated that, if OWCP was not able to locate a female gynecologist,
it should refer the statement of accepted facts and the medical records to a Board-certified
gynecologist for an opinion as to whether the claimed menorrhagia condition and hysterectomy
was causally related to factors of employment due to the sexual harassment experienced by
appellant. If the physician did find a causal relationship, he or she physician should then be
asked to determine whether appellant had any permanent impairment stemming from her
hysterectomy under the fifth edition of the A.M.A., Guides.
OWCP scheduled appellant for an impartial medical evaluation with Dr. Xercerla A.
Littles, Board-certified in obstetrics and gynecology.4 In an August 25, 2008 report, Dr. Littles
found that appellant’s gynecological conditions and hysterectomy were not causally related to
her accepted psychiatric conditions and that she had no permanent impairment under the A.M.A.,
Guides. She advised that, as no records were available from the appellant’s gynecologist during
the time of her treatment for menorrhagia, it was unclear what her thought process was at the
time which necessitated her hysterectomy procedure. Dr. Littles stated that, although multiple
articles detailed a contribution between acute and chronic life stresses and a worsening of
dysfunctional uterine bleeding due to likely hormone changes resulting from the stressful event,
objective data was relatively scarce regarding this connection. She asserted that it was
impossible to determine what part of appellant’s life stresses at the time may have contributed to
her symptoms. Dr. Littles stated that, although stress may contribute to dysfunctional uterine
bleeding, she was unable to determine whether or not a hysterectomy was necessary or the most
the appropriate option for appellant, noting that her work injury occurred eight years prior to the
time of surgery. She opined that appellant’s gynecologic issues had resolved and were not
currently contributing to her inability to resume work.
By decision dated February 5, 2009, OWCP denied appellant’s claim for a schedule
award, finding based on Dr. Littles’ opinion that there was no causal relationship between
appellant’s accepted psychiatric conditions and her gynecological condition and that therefore
4

Dr. Littles did not conduct a physical examination of appellant.

6

she did not have any permanent impairment causally related to an accepted employment
condition.
On February 11, 2009 appellant requested an oral hearing, which was held on
April 29, 2009.
By decision dated June 16, 2009, an OWCP hearing representative set aside the
February 5, 2009 decision, finding that Dr. Littles’ report was of diminished probative value and
did not merit the weight of an impartial medical examiner. She remanded the case and directed
the district Office to obtain a supplemental report from Dr. Littles for her to clarify whether
appellant’s menorrhagia and hysterectomy were causally related to work stress she experienced
due to sexual harassment at the workplace from 1985 to 1988, whether treatment for the workrelated menorrhagia eventually necessitated the 1996 hysterectomy and if so, whether appellant
had any permanent impairment due to the removal of female reproductive organs under the sixth
edition of the A.M.A., Guides.
In an October 5, 2009 report, Dr. Littles reviewed the medical literature pertaining to
appellant’s issues and essentially reiterated her previous findings and conclusions. She stated
that there was not sufficient evidence to suggest that the reason for appellant’s irregular bleeding,
which was refractory to hormone therapy and two prior dilation and curettage procedures were
due to sexual harassment and/or stress at work which began three years prior to the patient’s first
dilation and curettage and concluded eight years prior to her hysterectomy. Dr. Littles noted that
appellant had multiple risk factors for the pathologic causes which were separate from and not
related to any work stress or PTSD. She stated that no component of appellant’s current
disability had a gynecologic origin and her treating physician never stated that the hysterectomy
was performed due to “stress” but due to refractory menorrhagia and failed medical and
conservative surgical therapy. Dr. Littles further noted that stress, PTSD and sexual harassment
were not listed as discharge diagnoses after the 1996 hysterectomy. She concluded that, from
her interpretation of these findings and records, appellant’s work injuries did not cause her
bleeding issues, though her symptoms may have been exacerbated due to lifestyle issues, as well
as other medications or treatments given. Dr. Littles opined that the amount of exacerbation
would be impossible to quantify and any event would likely not have changed appellant’s
ultimate need for hysterectomy, given prior precancerous changes noted on biopsy prior to
hysterectomy.
By decision dated October 29, 2009, OWCP denied modification of the February 5, 2009
decision, based on Dr. Littles’ supplemental report.
On November 3, 2009 appellant requested an oral hearing, which was held on
March 10, 2009.
By decision dated April 21, 2010, an OWCP hearing representative set aside the
October 29, 2009 decision and remanded to obtain further clarification from Dr. Littles regarding
whether appellant’s emotional condition contributed in any part to her menorrhagia and
subsequent hysterectomy. He also directed that the statement of accepted facts be corrected to
include appellant’s assertion that she did not work from November 1991 until she was required
to return to work in August or October 1995; provide further details regarding the nature of

7

Mr. Hamilton’s sexual harassment; stipulate that Mr. Hamilton was subsequently charged with
sexual assault; and delete facts pertaining to appeals and administrative actions taken in this case.
Dr. Littles did not provide an additional report.
In order to resolve the conflict in the medical evidence regarding whether appellant’s
accepted psychiatric conditions were the primary cause of her claimed gynecological condition
and whether the accepted condition was causally related to her menorrhagia and hysterectomy,
OWCP referred her medical records and the statement of accepted facts to Dr. Patrick Allen,
Board-certified in obstetrics and gynecology, for a referee medical evaluation. In an impartial
medical report dated January 4, 2011, Dr. Allen concluded that “in all medical probability”
appellant’s original work injury was not the primary cause of the her gynecologic condition.
By decision dated January 27, 2011, OWCP denied modification of its previous
decisions, finding that Dr. Allen’s impartial medical opinion represented the weight of the
medical evidence.
On January 29, 2011 appellant requested a hearing, which was held on May 25, 2011.
By decision dated August 24, 2011, an OWCP hearing representative set aside the
January 27, 2011 decision and remanded the case for further development. She found that
Dr. Allen did not present a clear, nonspeculative opinion regarding the relationship of the
claimant’s menorrhagia and her employment. The hearing representative noted that Dr. Allen
opined that the original work injury was not the primary cause of her gynecological condition but
did not indicate whether the employment exposure contributed in any way to the condition by
aggravation, precipitation or acceleration. She therefore remanded to obtain further clarification
from Dr. Allen regarding whether appellant’s emotional condition contributed in any part to her
menorrhagia and subsequent hysterectomy.
In a supplemental report dated March 28, 2012, Dr. Allen was asked whether the
accepted work injury was or was not the primary cause of appellant’s gynecological condition
and whether the accepted work injury contributed by direct causation, aggravation, precipitation
or acceleration to appellant’s menorrhagia and subsequent hysterectomy. He responded:
“It is my opinion that the January 1, 1998 work injury was not the cause of
[appellant’s] menorrhagia and subsequent hysterectomy. The accepted work
injury did not contribute by first causation or acceleration or precipitation. The
first claim is [appellant] can no longer bear children: this is true since she had a
hysterectomy, but essentially she was unable to bear children since 1983 when
she underwent a tubal ligation doing (sic) her second Caesarian section. The
second claim is that her hysterectomy was secondary to stress causing her
bleeding issues. There is nothing in [appellant’s] records about why she might
have been anovulatory. Since her original incident was in 1985 [to] 1988 and the
claimant did not experience her hysterectomy until 1996, it is unlikely she
experienced stress for this prolonged amount of time to cause her anovulation.
Stress can affect the release of Corticotropin-releasing hormone (CRH), which
can limit Gonadotropin-releasing hormone (GnRH) secretion, but this would lead
to amenorrhea and not menorrhagia. [Appellant] did experience anovulatory

8

bleeding, but this was more likely caused from the hormonal therapy [she]
underwent.”
By decision dated March 28, 2012, OWCP denied appellant’s claim for a schedule award.
It found based on Dr. Allen’s opinion that there was no causal relationship between her accepted
psychiatric conditions and her subsequent uterine bleeding, menorrhagia or her need for a
hysterectomy and that therefore she did not have any permanent impairment causally related to
an accepted employment condition.
In a letter dated April 2, 2012, appellant requested a hearing, which was held on
July 16, 2012.
By decision dated September 26, 2012, an OWCP hearing representative affirmed the
March 28, 2012 decision.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA5 has the burden of establishing that 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 injury was sustained in the performance of duty as
alleged and that any disability and/or specific condition for which compensation is claimed are
causally related to the employment injury.6 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.7
Appellant has the burden of establishing by the weight of the substantial, reliable and
probative evidence, a causal relationship between her claimed gynecologic conditions and her
federal employment. This burden includes providing medical evidence from a physician who
concludes that the disabling condition is causally related to employment factors and supports that
conclusion with sound medical reasoning.8
Section 8123(a) provides that, if there is a disagreement between the physician making
the examination for the United States and the physician of the employee the Secretary shall
appoint a third physician who shall make an examination.9 It is well established that, when a
case is referred to an impartial medical specialist for the purpose of resolving a conflict, the

5

5 U.S.C. §§ 8101-8193.

6

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

7

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

8

See Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

9

Regina T. Pellecchia, 53 ECAB 155 (2001).

9

opinion of such specialist, if sufficiently well rationalized and based on a proper factual and
medical background, must be given special weight.10
ANALYSIS -- ISSUE 1
The Board finds that appellant failed to submit sufficient medical evidence to establish
that her claimed menorrhagia condition and subsequent hysterectomy were causally related due
to her accepted psychiatric conditions. For this reason, she has not discharged her burden of
proof.
In order to resolve the conflict in the medical evidence, appellant’s medical records were
referred to Dr. Allen, the impartial medical examiner, for review. After reviewing her factual
and medical history, the statement of accepted facts and the numerous medical reports in the
record, he concluded that her sexual harassment and accepted psychiatric conditions did not
cause or contribute to her menorrhagia and subsequent hysterectomy. Dr. Allen stated that the
reason appellant was unable to bear children was attributable to her hysterectomy; he noted,
however, that she essentially had been unable to bear children since 1983 when she underwent a
tubal ligation doing her second Caesarian section. He further opined that the record did not
establish that her hysterectomy was secondary to stress causing her bleeding issues, finding that
there was nothing in her records regarding why she might have been anovulatory. Dr. Allen
explained that, since her original incident was from 1985 to 1988 and she did not undergo her
hysterectomy until 1996, it was unlikely that she experienced stress for this prolonged amount of
time to result in her anovulation. He advised that, while stress can affect the release of CRH
which can limit GnRH secretion, this would lead to amenorrhea and not menorrhagia. Dr. Allen
opined that appellant’s anovulatory bleeding was more likely caused from her hormonal therapy.
The weight of medical opinion is determined by the opportunity for and thoroughness of
examination, the accuracy and completeness of the physician’s knowledge of the facts of the
case, the medical history provided, the care of analysis manifested and the medical rationale
expressed in support of stated conclusions.11 The Board finds that Dr. Allen’s impartial opinion
negates a causal relationship between appellant’s accepted psychiatric conditions and her
claimed menorrhagia condition and subsequent hysterectomy. Dr. Allen’s opinion is sufficiently
probative, rationalized and based upon a proper factual background. Therefore, OWCP properly
accorded his opinion the special weight of an impartial medical examiner.12 The Board therefore
finds that Dr. Allen’s opinion constituted the weight of medical opinion and supports OWCP’s
March 28, 2012 decision finding that her claimed gynecological conditions were not causally
related to her accepted psychiatric conditions.
Appellant subsequently requested an oral hearing but did not submit any additional
medical evidence. Thus the Board will affirm the hearing representative’s September 26, 2012
decision.
10

Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001).

11

See Anna C. Leanza, 48 ECAB 115 (1996).

12

It is well established that the opinion of an impartial medical specialist is to be given special weight. See
Anna M. Delaney, 53 ECAB 384 (2002).

10

An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated or aggravated by her employment is
sufficient to establish causal relationship.13 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
Dr. Allen’s well-rationalized impartial medical opinion resolved the conflict in medical
evidence regarding whether appellant’s claimed menorrhagia condition and subsequent
hysterectomy were causally related to her accepted psychiatric conditions. Accordingly, OWCP
properly found in its March 28 and September 26, 2012 decisions that appellant did not sustain
these conditions 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.
LEGAL PRECEDENT -- ISSUE 2
The schedule award provision of FECA14 and its implementing regulations15 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.16 The claimant has the burden of proving
that the condition for which a schedule award is sought is causally related to his or her
employment.17
ANALYSIS -- ISSUE 2
In the instant case, appellant claimed a schedule award based on her claimed menorrhagia
condition and subsequent hysterectomy. As noted above, however, a claimant has the burden of
proving that the condition for which a schedule award is sought is causally related to his or her
employment.18 In light of the Board’s decision above, which found based on Dr. Allen’s
impartial medical opinion that her claimed gynecological conditions were not causally related to
her accepted psychiatric conditions, OWCP’s finding that there is no basis for a schedule award
13

Id.

14

5 U.S.C. § 8107.

15

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

16

Id.

17

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

18

Id.

11

in this case is affirmed. The Board finds that there is no probative medical evidence establishing
that appellant sustained any permanent impairment from an accepted condition.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant did not sustain a gynecological condition in the
performance of duty, causally related to her accepted psychological conditions. The Board finds
that appellant has not sustained any permanent impairment to a scheduled member of her body,
thereby entitling her to a schedule award under 5 U.S.C. § 8107.
ORDER
IT IS HEREBY ORDERED THAT the September 26, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 17, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.N., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Westhampton, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Glenn L. Smith, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0497
Issued: May 19, 2017

Case Submitted on the Record

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

JURISDICTION
On January 7, 2017 appellant, through counsel, filed a timely appeal from a July 25, 2016
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

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.

ISSUE
The issue is whether appellant established a back injury in the performance of duty as
alleged.
FACTUAL HISTORY
On October 20, 2015 appellant, then a 74-year-old rural carrier,3 filed a traumatic injury
claim (Form CA-1) alleging that he tripped and fell over a tub of mail at work on October 13,
2015, twisting his low back. He also struck his head on a table. Dr. Andrew Wackett, an
attending physician Board-certified in emergency medicine, treated appellant in a hospital
emergency room immediately after the incident. He obtained computerized tomography (CT)
scans showing no significant findings in the brain and no acute lumbar or cervical spine fracture.
Dr. Wackett diagnosed a head injury and a back sprain/strain. The employing establishment
issued an authorization for examination and/or treatment (Form CA-16) on October 31, 2015.
In a November 4, 2015 letter, OWCP notified appellant of the additional evidence needed
to establish his claim, including his attending physician’s explanation of how and why the
October 3, 2015 fall would cause the diagnosed conditions. It afforded appellant 30 days to
submit such evidence.
In response, appellant provided a November 2, 2015 duty status report (Form CA-17)
from Dr. Meciko A. Muharemovic, an attending Board-certified internist. On examination,
Dr. Muharemovic found lumbosacral tenderness and paraspinal muscle spasm. He diagnosed an
exacerbation of lumbar radiculopathy and a muscle strain of the low back. Dr. Muharemovic
checked a box marked “yes” indicating his support for causal relationship between the diagnosis
and the October 13, 2015 fall.
By decision dated December 10, 2015, OWCP accepted that the October 13, 2015 fall
occurred at the time, place, and in the manner alleged, but it denied the claim because the
medical evidence of record failed to establish causal relationship. It found that appellant’s
physicians failed to explain how and why the accepted October 13, 2015 incident would have
caused a back injury.
In a December 30, 2015 letter, appellant requested an oral hearing, held May 6, 2016.
During the hearing, he contended that he continued to be totally disabled from work due to the
claimed back injury. The hearing representative explained the importance of providing his
attending physician’s opinion setting forth the medical mechanics of how the October 13, 2015
fall would cause a lumbar injury. Appellant submitted additional medical evidence.
Dr. Wackett provided an October 13, 2015 emergency room report, noting that appellant
sustained a facial abrasion when he fell at work earlier that day.
An October 26, 2015 lumbar magnetic resonance imaging (MRI) scan demonstrated
paraspinal osseous and soft tissue contusions with possible associate muscle or ligament strains
3

Appellant’s date of birth was misstated on the claim form.

2

at T12-L1, a possible spinous process fracture, lumbar spondylosis with severe narrowing at
L4-5, and severe foraminal narrowing at L3-4 and L4-5.
Dr. Muharemovic completed the Form CA-16 and a chart note on November 2, 2015. He
noted the October 13, 2015 fall, and that appellant had preexisting lumbar radiculopathy. On
examination, Dr. Muharemovic found lumbar tenderness and restricted motion. He diagnosed
lumbar radiculopathy with paraspinal muscle spasms, lumbar disc disease without myelopathy,
lumbosacral spondylosis, spinal stenosis, osteoarthritis, and bursitis of an unspecified hip. On
the Form CA-16, Dr. Muharemovic checked a box marked “yes,” indicating his support for
causal relationship. He noted on December 17, 2015 that appellant’s lumbar pain persisted
despite epidural injections. Dr. Muharemovic diagnosed lumbar disc disease and lumbar
stenosis. He prescribed physical therapy. Dr. Muharemovic held appellant off work through
December 22, 2015 and referred him for additional lumbar epidural steroid injections.4
In an April 13, 2016 report, Dr. Morgan Chen, an attending Board-certified orthopedic
surgeon specializing in spine surgery, noted a history of the October 13, 2015 fall and
subsequent treatment. He first examined appellant on January 13, 2016. Dr. Chen opined that
the October 26, 2015 lumbar MRI scan showed multilevel degenerative disc disease and facet
hypertrophy consistent with degenerative arthritis. He explained that it was “within reasonable
medical certainty that his fall aggravated his arthritic changes in the lumbar spine, causing him to
have pain after his fall. It is also within reasonable medical certainty that the fall at his
workplace has a causal relationship with his current symptoms.”
Dr. Chen also submitted a June 3, 2016 report, noting appellant’s history of injury and
treatment. He explained that flexion and extension of the lumbar spine during the October 13,
2015 fall was consistent with a mechanism that would exacerbate or reveal symptoms of lumbar
arthritis. “Flexion of the lumbar spine caused shearing forces to be applied to the anterior
osteophytes, which caused inflammation of those osteophytes and resulted in pain. Extension of
the lumbar spine caused shearing forces to be applied to the facet joints, promoting inflammation
and also causing pain.” Dr. Chen opined that, based on this pathophysiologic mechanism, the
accepted fall aggravated preexisting lumbar arthritis, causing appellant’s symptoms.
By decision dated July 25, 2016, OWCP’s hearing representative affirmed OWCP’s
December 10, 2015 decision, finding that the medical evidence was insufficiently rationalized to
establish causal relationship.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an “employee of
the United States” within the meaning of FECA, that the claim was filed within the applicable
time limitation, that an injury was sustained while in the performance of duty as alleged, and that
any disability and/or specific condition for which compensation is claimed are causally related to

4

Appellant underwent an L4-5 epidural steroid injection on January 8, 2016.

3

the employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
To determine whether an employee sustained a traumatic injury in the performance of
duty, OWCP begins with an analysis of whether “fact of injury” has been established. Generally,
fact of injury consists of two components that must be considered conjunctively. First, the
employee must submit sufficient evidence to establish that he actually experienced the
employment incident that is alleged to have occurred.7 Second, the employee must submit
sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.8
The medical evidence required to establish causal relationship is generally rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. 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.9
ANALYSIS
Appellant claimed that he sustained a lumbar injury when he tripped and fell over a tub of
mail on October 13, 2015. In support of his claim, he submitted October 13, 2015 emergency
room reports signed by Dr. Wackett, an attending physician Board-certified in emergency
medicine, diagnosing a back sprain/strain and a head contusion.
Dr. Muharemovic, an attending Board-certified internist, diagnosed an exacerbation of
lumbar radiculopathy. He checked boxes on a November 2, 2015 duty status report (Form
CA-17) and November 2, 2015 authorization for treatment (Form CA-16) indicating his support
for a causal relationship between the October 13, 2015 fall and a lumbar injury. However, the
Board has held that when a physician’s opinion on causal relationship consists only of checking
a box marked “yes” to a form question, without the addition of adequate medical rationale, that
opinion has little probative value and is insufficient to establish causal relationship.10
Appellant also provided April 13 and June 3, 2016 reports from Dr. Chen, an attending
Board-certified orthopedic surgeon specializing in spinal surgery. Dr. Chen described the
5

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

6

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

7

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

8

Deborah L. Beatty, 54 ECAB 340 (2003).

9

Solomon Polen, 51 ECAB 341 (2000).

10

See D.D., 57 ECAB 734, 739 (2006); supra note 8.

4

October 13, 2015 fall and reviewed appellant’s medical records. He opined that the flexion -extension mechanism of the fall aggravated arthritic changes in the lumbar spine. Dr. Chen
explained that lumbar flexion caused shearing forces on the anterior osteophytes, and extension
caused shearing force on the facet joints, resulting in inflammation of both sets of structures. He
opined that this inflammation constituted an objective aggravation of preexisting lumbar arthritis.
The Board finds that although Dr. Chen’s opinion is insufficiently rationalized to meet
appellant’s burden of proof in establishing causal relationship,11 it is uncontroverted and of
sufficient probative quality to warrant additional development.12 Dr. Chen provided a detailed
explanation of how the physical forces of the accepted October 13, 2015 fall resulted in
inflammation of lumbar facet joints and anterior osteophytes. His opinion is of convincing
probative quality. However, OWCP did not undertake further development of the medical
record, such as referring the record to an OWCP medical adviser, or referring appellant for a
second opinion examination.
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden of proof to establish entitlement to compensation,
OWCP shares responsibility in the development of the evidence. It has the obligation to see that
justice is done.13 The case must be remanded to OWCP for preparation of a statement of
accepted facts concerning the accepted October 13, 2015 fall and appellant’s medical history,
and referral of the matter to an appropriate medical specialist, consistent with OWCP’s
procedures, to determine whether appellant sustained a back injury as alleged. Following this
and any other development deemed necessary, OWCP shall issue an appropriate merit decision
in the case.
CONCLUSION
The Board finds that the case is not in posture for a decision.

11

See Frank D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).
12

John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 280 (1978).

13

Jimmy A. Hammons, 51 ECAB 219 (1999); Marco A. Padilla, 51 ECAB 202 (1999); John W. Butler, 39 ECAB
852 (1988).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 25, 2016 is set aside, and the case is remanded to OWCP for
additional development consistent with this opinion.
Issued: May 19, 2017
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.T., Appellant
and
U.S. POSTAL SERVICE, VEHICLE
MAINTENANCE FACILITY, Miami, FL,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 14-1299
Issued: October 8, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 21, 2014 appellant filed an application for review of the Office of Workers’
Compensation Programs’ (OWCP) nonmerit decision dated January 29, 2014. Because more
than 180 days elapsed from August 6, 2012, the date of the most recent merit decision, to the
filing of this appeal; and pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this case.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s claim for further
review of the merits as it was untimely filed and failed to establish clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 19, 2012 appellant, then a 54-year-old automotive technician, filed a traumatic
injury claim (Form CA-1) alleging that on June 12, 2012, he sustained hearing loss of the left ear
after the backfire of an air compressor. Appellant’s supervisor noted that his knowledge of the
facts about appellant’s claimed injury did not agree with appellant’s statements, writing that
there was reason to believe that he had preexisting hearing loss because he had applied to the
Veteran’s Administration (VA) for hearing loss.
In a statement dated June 18, 2012, appellant described the incident alleged to have
caused his hearing loss. On June 12, 2012 he was sent on a road call to replace a flat tire. When
appellant had finished replacing the tire, he prepared to turn off an air compressor, which
backfired at close range, causing a loud ringing in his left ear. He reported it to his supervisor,
who asked him to wait a few days to see if his condition would change. Appellant stated that the
ringing continued, causing some discomfort.
By letter dated June 29, 2012, OWCP advised appellant that the evidence was insufficient
to establish his claim. It requested that he respond to a questionnaire and address the employing
establishment’s concerns about the circumstances of his injury. OWCP also requested medical
evidence. Appellant was afforded 30 days to submit the requested evidence.
In a report dated June 19, 2012, Dr. Theresa H. Blanco, an osteopath, noted that appellant
stated an air compressor backfired at close range to his left ear.2 Appellant denied any previous
injury to his left ear, but stated that his left ear had a prior history of decreased hearing.
Dr. Blanco stated, “There is no direct trauma or injury that is directly related to this injury.” She
diagnosed appellant with tinnitus. In subsequent progress notes, Dr. Blanco observed that his
tinnitus was improving.
In an August 6, 2012 decision, OWCP denied appellant’s claim. It found that the
evidence was insufficient to establish that the June 12, 2012 incident occurred as alleged because
he had failed to respond to OWCP’s questionnaire, raising doubt as to the validity of the claim.
Appellant submitted a witness statement with an illegible signature dated June 26, 2012.
He wrote at the top of the statement that it was from “the mailman himself.” The statement read,
“On [June 12, 2012], the compressor made a loud noise when the mechanic turn[ed] it off. It
sound[ed] like a loud explosion.”
In a medical report dated July 11, 2012, Dr. Adrien A. Eshraghi, a Board-certified
otolaryngologist, noted that appellant had previously experienced intermittent tinnitus on the
right side, but not the left side, until the alleged incident of June 12, 2012. He recommended
tinnitus cognitive therapy and to avoid coffee, stress, silence or thinking about the noise. In a
review of an audiological test of that date, an audiologist noted that appellant had normal hearing
sensitivity at all frequencies in both ears, except for mild sensorineural hearing loss at 4000 hertz
in the right ear.
2

Dr. Blanco’s certification as a osteopath could not be confirmed by the American Board of Medical Specialties
or the American Osteopathic Association.

2

On August 14, 2012 appellant responded to OWCP’s inquiries. He stated that the air
compressor backfired when he turned it off. Appellant asserted that he had no prior history of
hearing problems before the filing of this claim, adding “not with constant ringing in my left
ear.” He stated that he had never applied for hearing loss through the VA.
In a record of a telephone conversation dated January 3, 2014, appellant informed a
claims examiner that he had submitted a request for reconsideration in June 2013. The claims
examiner told him that she could not locate the form in the case record, but that she would see if
she could get his telephone call treated as a reconsideration request. On January 8, 2014 a claims
examiner left a message for appellant to inform him that the request had to be in writing.
On January 27, 2014 appellant requested reconsideration of his claim. He did not submit
additional evidence.
By decision dated January 29, 2014, OWCP denied appellant’s request for
reconsideration. It found that his request was not timely filed and failed to present clear
evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit,
an application for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.3 The Board has found that the imposition of the
one-year limitation does not constitute an abuse of the discretionary authority granted OWCP
under section 8128(a) of FECA.4 When review is sought for merit decisions issued on or after
August 29, 2011, timeliness is determined by the document receipt date of the reconsideration.
If the request for reconsideration is received more than one year after the last decision, the
request must be considered untimely.5
OWCP may not deny an application for review solely on the grounds that the application
was not timely filed. When an application for review is not timely filed, it must nevertheless
undertake a limited review to determine whether the application establishes clear evidence of
error.6 OWCP regulations and procedures provide that OWCP will reopen a claimant’s case for
merit review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if
the claimant’s application for review shows clear evidence of error on the part of OWCP.7
3

20 C.F.R. § 10.607(a).

4

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

5

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

6

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

7

20 C.F.R. § 10.607(b); Federal (FECA) Procedure Manual, see supra note 5 at Chapter 2.1602.5(a)
(October 2011). OWCP’s procedure further provides, “The term ‘clear evidence of error’ is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP made a mistake. For
example, a claimant provides proof that a schedule award was miscalculated, such as a marriage certificate showing
that the claimant had a dependent but the award was not paid at the augmented rate.”

3

To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.8 The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error.9 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.10 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.11 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of OWCP.12
In order to establish clear evidence of error, the evidence submitted must not only be of
sufficient probative value to create a conflict in medical opinion or establish a clear procedural
error, but must be of sufficient probative value to prima facie shift the weight of the evidence in
favor of the claimant and raise a substantial question as to the correctness of OWCP’s decision.13
The Board makes an independent determination of whether a claimant has submitted clear
evidence of error on the part of OWCP such that it abused its discretion in denying merit review
in the face of such evidence.14
ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
application for review. OWCP’s procedures provide that the one-year time limitation period for
requesting reconsideration begins on the date of the original OWCP decision.15 A right to
reconsideration within one year also accompanies any subsequent merit decision on the issues.16
When review is sought for merit decisions issued on or after August 29, 2011, timeliness is
determined by the document receipt date of the reconsideration. If the request for
reconsideration is received more than one year after the last decision, the request must be
considered untimely.17 As OWCP received appellant’s request for reconsideration on
January 27, 2014, more than one year after August 6, 2012, his request for reconsideration was

8

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

9

20 C.F.R. § 10.607(b); Leona N. Travis, 43 ECAB 227, 240 (1991).

10

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

11

See Leona N. Travis, supra note 9.

12

See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

13

See Velvetta C. Coleman, 48 ECAB 367, 370 (1997).

14

See Pete F. Dorso, 52 ECAB 424, 427 (2001); Thankamma Matthews, 44 ECAB 765, 770 (1993).

15

20 C.F.R. § 10.607(a).

16

Robert F. Stone, 57 ECAB 292, 295 (2005).

17

Supra note 5.

4

untimely.18 Consequently, he must demonstrate clear evidence of error by OWCP in denying his
claim for compensation.19
The underlying claim for compensation was denied on the grounds that appellant had not
established a factual basis for his claim. On reconsideration, he provided a witness statement
and responses to OWCP’s inquiries. The only factual evidence received by OWCP regarding
appellant’s injury prior to the denial of his claim on August 6, 2012 was his statement dated
June 18, 2012 and the Form CA-1. In OWCP’s June 29, 2012 development letter, appellant was
informed of the information required to establish his claim and provided a questionnaire to
complete describing the factual circumstances surrounding his claim.
In requesting
reconsideration, he contended that the additional evidence, i.e., the witness statement and his
response to the development letter established his claim. The Board finds however that appellant
did not submit sufficient evidence to establish clear evidence of error in OWCP’s denial of his
claim. While these statements are generally supportive of his claim to establish that injury
occurred on June 12, 2012 at the time, place and in the manner alleged, they do not establish
clear evidence of error on the part of OWCP.20 As noted, it is not enough merely to show that
the evidence could be construed so as to produce a contrary conclusion. The evidence, on its
face, must be positive, precise and explicit that the injury occurred as alleged. Appellant did not
show clear evidence of error in OWCP’s finding as to the occurrence of an employment incident
on June 12, 2012 and that this incident caused his tinnitus.
While appellant submitted various medical reports documenting tinnitus in his left ear,
this evidence is insufficient to establish that OWCP erred in its denial of his claim, as it does not
establish, on its face, that his tinnitus was caused by the incident of June 12, 2012. Thus, the
factual and medical evidence of record does not raise a substantial question as to the correctness
of OWCP’s denial of his claim.21
As none of the evidence raises a substantial question as to the correctness of OWCP’s
decision, appellant has failed to establish clear evidence of error on the part of OWCP in denying
further merit review.22
CONCLUSION
The Board finds that appellant’s request for reconsideration was untimely filed and did
not demonstrate clear evidence of error.

18

The Board notes that appellant stated that he submitted a request for reconsideration in June 2013. While new
evidence was received at that time, there is no evidence of record indicating that appellant requested reconsideration
until January 27, 2014.
19

Supra note 7; see D.G., 59 ECAB 455, 458 (2008).

20

See V.W., Docket No. 12-1901 (issued March 5, 2013).

21

See G.B., Docket No. 13-1260 (issued December 2, 2013); J.V., Docket No. 12-90 (issued July 2, 2012).

22

A.S., Docket No. 11-356 (issued September 16, 2011).

5

ORDER
IT IS HEREBY ORDERED THAT the January 29, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 8, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cincinnati, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 15-1681
Issued: December 24, 2015

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 August 4, 2015 appellant filed a timely appeal from an April 16, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed between November 25, 2013, the date of the most recent merit decision, and 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 appellant’s claim.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits of his claim because his request was untimely filed and failed to
demonstrate clear evidence of error.
FACTUAL HISTORY
On August 30, 1999 appellant, then a 42-year-old supervisor of operations, filed a
traumatic injury claim (Form CA-1) alleging that he sustained a lower back injury at work on
August 30, 1999 due to falling to the floor from a chair while reaching for objects on his desk.
1

5 U.S.C. § 8101 et seq.

OWCP accepted his claim for a lumbosacral strain. Appellant later stopped work and, after
extensive development of the evidence, OWCP accepted appellant’s claim for disability and he
received disability compensation on the daily rolls beginning October 10, 2000.2
In late 2011, OWCP referred appellant for participation in a vocational rehabilitation
program designed to return him to work. Appellant’s vocational rehabilitation counselor
reported that appellant failed to participate in essential preparatory vocational rehabilitation
efforts as he claimed that his health prevented him from participating. The counselor asserted
that appellant had not submitted probative medical evidence supporting such incapacity.
In a March 20, 2013 letter, OWCP advised appellant that, under 5 U.S.C. § 8113(b) and
20 C.F.R. § 10.519, if an individual without good cause fails or refuses to participate in essential
preparatory vocational rehabilitation efforts, it is assumed, in the absence of evidence to the
contrary, that the vocational rehabilitation effort would have resulted in return to work at the
same or higher wages than for the position held when injured. OWCP provided appellant 30
days to participate in vocational rehabilitation efforts or submit evidence of good cause for his
failure to participate in such efforts. No response was received.
By decision dated April 29, 2013, OWCP reduced appellant’s compensation to zero
effective May 5, 2013 based on its determination that he had failed to participate in essential
preparatory vocational rehabilitation efforts.
Appellant filed a request for reconsideration and submitted medical evidence which he
believed showed that he was physically incapable of participating in vocational rehabilitation
efforts.
In a November 25, 2013 decision, OWCP affirmed its April 29, 2013 decision reducing
appellant’s compensation to zero for failure to participate in essential preparatory vocational
rehabilitation efforts.
In a letter and form dated November 21, 2014 and received by OWCP on November 25,
2014, appellant requested reconsideration of OWCP’s November 25, 2013 decision. He argued
that the medical evidence of record showed that his compensation should be reinstated. In
support of his reconsideration request, appellant submitted additional medical evidence,
including an August 2, 2013 report in which Dr. Larry L. Houts, an attending osteopath and
Board-certified family practitioner, detailed the findings of his July 24, 2013 physical
examination. Dr. Houts indicated that appellant’s lumbar region showed tenderness upon light
pressure and pain upon bending which constituted findings consistent with the history of injury.
He noted that he reviewed a functional capacity examination report which showed that appellant
was “unemployable at this time.”
By decision dated April 16, 2015, OWCP denied appellant’s request for further review of
the merits of his claim because his request was untimely filed and failed to demonstrate clear
evidence of error. It found that appellant’s reconsideration request, received on November 25,
2014, was not timely filed with respect to its November 25, 2013 decision. OWCP also found
that the evidence appellant submitted in support of his reconsideration request did not show clear
evidence of error in its November 25, 2013 decision.
2

Appellant received disability compensation on the periodic rolls beginning November 23, 2008.

2

LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a
claimant’s application for review must be received within one year of the date of that decision.3
The Board has found that the imposition of the one-year limitation does not constitute an abuse
of the discretionary authority granted OWCP under section 8128(a) of FECA.4
OWCP, however, may not deny an application for review solely on the grounds that the
application was not timely filed. When an application for review is not timely filed, OWCP must
nevertheless undertake a limited review to determine whether the application establishes “clear
evidence of error.”5 OWCP regulations and procedure provide that OWCP will reopen a
claimant’s case for merit review, notwithstanding the one-year filing limitation set forth in 20
C.F.R. § 10.607(a), if the claimant’s application for review shows “clear evidence of error” on
the part of OWCP.6
ANALYSIS
OWCP accepted appellant’s claim for an August 30, 1999 lumbosacral strain and paid
compensation for periods of disability. By decision dated April 29, 2013, OWCP reduced
appellant’s compensation to zero effective May 5, 2013 based on its determination that he failed
to participate in essential preparatory vocational rehabilitation efforts. It affirmed this decision
on November 25, 2013 and appellant requested reconsideration of the November 25, 2013
decision. By decision dated April 16, 2015, OWCP denied appellant’s request for further review
of the merits of his claim because his reconsideration request was untimely filed and failed to
demonstrate clear evidence of error.
The Board finds that OWCP improperly found that appellant filed an untimely request for
further review of the merits of his claim. Appellant’s request for reconsideration of OWCP’s
November 25, 2013 decision was filed on November 25, 2014 because it was received by OWCP
on that date.7 Therefore, the reconsideration request was filed precisely one year after the
issuance of the November 25, 2013 decision and OWCP incorrectly found that the request was
not filed within one year.
3

20 C.F.R. § 10.607(a).

4

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

5

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

6

See 20 C.F.R. § 10.607(b). OWCP procedures provide, “The term ‘clear evidence of error’ is intended to
represent a difficult standard. The claimant must present evidence which on its face shows that OWCP made a
mistake. For example, a claimant provides proof that a schedule award was miscalculated, such as a marriage
certificate showing that the claimant had a dependent but the award was not paid at the augmented rate. Evidence
such as a detailed, well-rationalized medical report which, if submitted before the denial was issued would have
created a conflict in medical opinion requiring further development, is not clear evidence of error.” Federal (FECA)
Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5a (October 2011).
7

OWCP’s regulations at 20 C.F.R. § 10.607(a) establish a one-year time limit for requesting reconsideration.
The one-year period begins on the date of the original decision, and an application for reconsideration must be
received by OWCP within one year of the date of OWCP’s decision for which review is sought for merit decisions
issued on or after August 29, 2011. Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.4 (October 2011).

3

Because OWCP incorrectly found that appellant filed an untimely reconsideration
request, it improperly applied the clear evidence of error standard in refusing to reopen
appellant’s case for further review of the merits of his claim.8 The case shall be remanded to
OWCP for evaluation of appellant’s reconsideration request under the standards for a timely
filed reconsideration request. After carrying out this development, OWCP shall issue an
appropriate decision.
CONCLUSION
The Board finds that OWCP improperly found that appellant filed an untimely request for
further review of the merits of his claim. The case is not in posture for decision regarding
whether OWCP properly refused to reopen appellant’s case for further review of the merits of his
claim and the case is remanded to OWCP for further development.
ORDER
IT IS HEREBY ORDERED THAT the April 16, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: December 24, 2015
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 supra notes 5 and 6.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
E.M., Appellant
)
)
and
)
)
DEPARTMENT OF VETERANS AFFAIRS,
)
SAN JUAN MEDICAL CENTER,
)
San Juan, PR, Employer
)
___________________________________________ )
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 12-950
Issued: September 25, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JURISDICTION
On March 27, 2012 appellant filed a timely appeal from the January 3, 2012 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 met his burden of proof to establish that he sustained an
injury causally related to factors of his federal employment.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted evidence subsequent to the January 3, 2012 OWCP decision. The
Board cannot consider this evidence, however, as its review of the case is limited to the evidence of record which
was before OWCP at the time of its final decision. 20 C.F.R. § 501.2(c).

FACTUAL HISTORY
On September 28, 2011 appellant, then a 53-year-old diagnostic radiologic technologist,
filed an occupational disease claim alleging that he sustained a right knee and right shoulder
conditions after 28 years in the performance of duty. He first became aware of the injury and its
relation to his work on March 1, 2011.
In an August 1, 2011 magnetic resonance imaging (MRI) scan report of the right
shoulder, Dr. Eduardo Acosta, a Board-certified diagnostic radiologist, diagnosed supra and
infraspinatus tendinopathy, focal small undersurface supraspinatus tear, anterior superior labral
tear with associated paralabral cyst, bursitis and hypertrophic changes at the acromioclavicular
joint impressing upon the supraspinatus tendon.
In an August 29, 2011 x-ray, Dr. Luis Alonso-Dafauce, a Board-certified diagnostic
radiologist, diagnosed right shoulder peritendinosis calcarea. He also provided an x-ray of the
right knee on the same date and diagnosed severe degenerative osteoarthritis with an associated
small suprapatellar effusion.
In a September 5, 2011 report, Dr. Magdiel Mayo Urdaz, a treating physician and
orthopedic sports medicine specialist, noted that appellant was scheduled for right knee
arthroscopic surgery on September 16, 2011. He advised that appellant had right knee swelling
and locking right shoulder pain. Appellant had mechanical locking in the knee with decreased
range of motion in the shoulder. He diagnosed right meniscal tear, rotator cuff tear, meniscal
tear and rotator cuff tear. Dr. Urdaz also recommended a right shoulder steroid injection.
In a September 6, 2011 statement, appellant noted that, during the month of March, he
began to feel pain around his right shoulder. His position required the use of his right arm by
typing on the keyboard or when he needed to lift patients, most of whom were incapacitated.
Appellant moved patients from their wheelchairs to the MRI scan table, from patient stretchers to
the MRI scan stretchers and then to the machine table and vice-versa. His work required
“repetitively sitting, standing, walking, bending, pushing and lifting multiple accessories and
‘coils’ constantly. Some of these coils, used for each patient, weighed close to 30 pounds.”
Appellant explained that these activities were necessary to perform the diversity of MRI scan
studies, and that he saw approximately 30 patients every day, for five or six days every week for
25 years in MRI scan and 3 years in computerized automated tomography (CAT) scan and x-ray.
He indicated that he felt aching sensation in the right shoulder joint and an inability to move,
when lifting his arm or lifting moderate to heavy objects accompanied with swelling and
bruising. Appellant further explained that the pain in his right knee began in February.
In a September 6, 2011 physician’s report form, Dr. Urdaz indicated that appellant was
capable of working eight hours per day with restrictions from September 6 through
December 6, 2011. He diagnosed right knee medial tear and right rotator cuff tear.
On October 11, 2011 OWCP received additional statements from appellant and
photographs of the machines utilized to accomplish his work duties. Appellant reiterated his
duties as a diagnostic radiologist technician over the past 28 years.

2

OWCP also received an MRI scan of the right knee from Dr. Jorge Gago, a Boardcertified diagnostic radiologist, who determined that appellant had a torn degenerated medial
meniscus of the anterior horn and body, a complex tear of the posterior horn, a medial
displacement of meniscus tissue, high grade chondromalacia medial femoral condyle and tibial
plateau with subchondral edema and subchondral cysts. Dr. Gago noted that appellant had an
unremarkable lateral meniscus and lateral tibiofemoral cartilage within normal limits. He
indicated that appellant had mild partial thickness cartilage loss at the medial patellar articular
facet and no focal cartilage defect. Dr. Gago advised that appellant’s anterior and posterior
cruciate ligaments, medial and lateral collateral ligaments, quadriceps and patellar tendons were
normal.
In a September 12, 2011 statement, Juan Vega, appellant’s supervisor, confirmed that
appellant worked for the employing establishment since 1988. Appellant’s duties included
frequently transferring patients from their wheelchairs to the MRI scan machines and stretchers.
Mr. Vega indicated that the position required heavy lifting, walking and long hours in front of
the computer monitor and keyboarding system.
In a December 13, 2011 report, Dr. Urdaz noted that he was treating appellant for his
right knee meniscal tear for which he underwent arthroscopic surgery on September 16, 2011.
He noted that appellant had a medial meniscal tear with “associated probable traumatic arthritis
versus degenerative.” Dr. Urdaz opined that this could be attributed to constant trauma while
working with lifting heavy materials and constant bending and standing up. He indicated that
appellant would need a total knee replacement in the future and provided light-duty work
restrictions.
By decision dated January 3, 2012, OWCP denied appellant’s claim. It found that the
medical evidence did not establish that the claimed medical conditions were related to the
accepted work-related activities. OWCP also noted that, while appellant claimed a right arm
condition, the medical evidence generally pertained to a right knee condition.
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, that an injury was sustained in the performance of duty as alleged and
that any disability and/or specific condition for which compensation is claimed are causally related
to the employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
3

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

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

3

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 employment
factors identified by the claimant were the proximate cause of the condition for which
compensation is claimed or, stated differently, medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant. The medical
evidence required to establish causal relationship, generally, is rationalized medical opinion
evidence. Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. 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.5
ANALYSIS
The evidence establishes that appellant engaged in activities that included using his right
arm by typing on a keyboard, as well as lifting patients back and forth from the stretchers and
wheelchairs to the machinery utilized in his duties as a diagnostic radiologic technologist.
However, appellant submitted insufficient medical evidence to establish that his right knee or
right arm or shoulder condition was caused or aggravated by these activities or any other specific
factors of his federal employment.
Appellant submitted several reports from Dr. Urdaz dating from September 5 to
December 13, 2011. In his September 5 and 6, 2011 reports, Dr. Urdaz indicated that appellant
was scheduled for right knee arthroscopic surgery on September 16, 2011. He diagnosed right
meniscal tear, rotator cuff tear, meniscal tear and rotator cuff tear. However, the Board notes
that these reports do not specifically address whether any factors of appellant’s employment
caused his diagnosed condition.6 Consequently, the Board finds that this evidence is insufficient
to establish appellant’s claim. In his December 13, 2011 report, Dr. Urdaz noted that he was
treating appellant for his right knee meniscal tear for which he underwent arthroscopic surgery
on September 16, 2011. He stated that appellant had a medial meniscal tear with associated
probable traumatic or degenerative arthritis which was attributable to constant trauma while
working with lifting heavy materials and constant bending and standing up. The Board notes
that, while Dr. Urdaz linked appellant’s knee condition to factors of his employment, the
physician’s report was insufficiently rationalized as he did not adequately explain the reasons
why particular work factors caused or aggravated the diagnosed condition. Dr. Urdaz also did
not address appellant’s right arm condition in this report. As explained above, part of appellant’s
burden of proof includes the submission of rationalized medical opinion evidence establishing
causal relationship. Here, Dr. Urdaz has not explained the reasons why particular work factors
have caused or aggravated a particular diagnosed medical condition.

5

Id.

6

K.W., 59 ECAB 271 (2007) (medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).

4

Appellant also provided several diagnostic reports to include: an August 1, 2011 MRI
scan of the right shoulder from Dr. Acosta; an August 29, 2011 x-ray from Dr. Alonso-Dafauce,
who diagnosed right shoulder peritendinosis calcarea and severe right knee degenerative
osteoarthritis with an associated small suprapatellar effusion and an MRI scan of the right knee,
read by Dr. Gago. However, these reports merely reported findings and did not contain an
opinion regarding the cause of the reported condition.
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.7
Neither the fact that the condition became apparent during a period of employment nor the belief
that the condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.8 Causal relationship must be substantiated by reasoned medical
opinion evidence, which is appellant’s responsibility to submit.
As there is no reasoned medical evidence explaining how appellant’s employment duties
caused or aggravated a medical condition involving his shoulder or knee, appellant has not met
his burden of proof in establishing that he sustained a medical condition in the performance of
duty causally related to factors of his employment.
On appeal, appellant generally disagrees with OWCP’s findings and asserted that
Dr. Urdaz’s opinion was sufficient to establish his claim. However, as noted above, the medical
evidence is insufficient to establish his claim. Appellant may submit evidence or argument with
a written request for reconsideration within one year of this merit decision pursuant to 5 U.S.C.
§ 8128 (a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained an injury in the performance of duty causally related to factors of his federal
employment.

7

See Joe T. Williams, 44 ECAB 518, 521 (1993).

8

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the January 3, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 25, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.O., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL AIR MARSHAL SERVICE,
Orlando, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 17-0093
Issued: March 22, 2018

Case Submitted on the Record

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

JURISDICTION
On October 24, 2016 appellant, through counsel, filed a timely appeal from a
September 28, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this claim.

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.

ISSUE
The issue is whether appellant has met his burden of proof to establish that his right deep
vein thrombosis (DVT) and blood clot were causally related to accepted factors of his federal
employment.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts of the case as presented in the
Boards prior decision are incorporated herein by reference. The relevant facts are as follows.
On October 8, 2014 appellant, then a 53-year-old retired supervisory federal air marshal,
filed an occupational disease claim (Form CA-2) alleging that many years of flights as an air
marshal caused his right DVT and subsequent blood clot in his lung. He retired from the
employing establishment effective February 29, 2012.
By decision dated January 9, 2015, OWCP denied the claim, finding the medical evidence
of record did not establish a causal relationship between appellant’s accepted factors of his federal
employment and the diagnosed medical conditions. On January 20, 2015 counsel requested a
telephonic hearing before an OWCP hearing representative. A hearing was held on July 1, 2015.
Appellant testified that his former air marshal position included flying missions and also
performing managerial tasks while seated primarily at a desk. By decision dated August 12, 2015,
OWCP’s hearing representative affirmed OWCP’s January 9, 2015 decision. The hearing
representative found that appellant had not established causal relationship between the accepted
factors of his federal employment and his diagnosed medical conditions.
On January 4, 2016 appellant appealed to the Board. By decision dated June 20, 2016, the
Board affirmed the August 12, 2015 OWCP hearing representative’s decision denying appellant’s
claim.4 The Board noted that, while appellant established that his job involved numerous hours of
being seated while flying and doing desk work, there was insufficient medical evidence to establish
causal relationship between those employment factors and the claimed right DVT and blood clot.
Specifically, the Board found that the medical reports from Dr. Thomas E. Chambers, an osteopath
and Board-certified family practitioner, who noted that prolonged periods of inactivity and/or
sitting were generally believed to be contributing factors in DVT illness, failed to provide the
necessary medical rationale which described appellant’s work duties and medically explained the
pathophysiological process by which those duties would have caused or aggravated his condition.
Appellant, through counsel, requested reconsideration on September 23, 2016.
OWCP thereafter received an August 29, 2016 report wherein Dr. Samuel P. Martin,
Board-certified in general and vascular surgery, related that appellant was seen on August 22, 2016
for a history of two previous DVTs involving the right leg. The first DVT occurred approximately
December 15, 2011, when he was an air marshal engaged in air travel. Appellant had made a 163

Docket No. 16-0423 (issued June 20, 2016).

4

Id.

2

hour trip to France, turned around and flew back. Afterwards, he noted swelling and pain in the
right leg and was seen at a Florida hospital where an ultrasound was performed. Dr. Martin noted
he did not have the complete history of that encounter, but appellant was told he had a DVT and,
surprisingly, he was placed on just aspirin. The second DVT occurred in August 2014, while
appellant was working as a counselor in the Recovery Village of Eustis and had traveled back and
forth from Maitland, approximately an-hour trip. Dr. Martin indicated that these episodes of DVT
impacted appellant’s work status, as he was not working partly because he developed blood clots
while traveling. He opined that given appellant’s history, his current condition was the result of
his two previous DVTs. Dr. Martin also noted, however, that he did not have complete information
regarding appellant’s first episode in 2011, but noted that appellant did have a significant DVT in
2014.
By decision dated September 28, 2016, OWCP denied modification of its prior decision.
It found that Dr. Martin’s opinion was of diminished probative value. OWCP determined that
Dr. Martin had not explained the mechanism of injury nor had he distinguished between
appellant’s alleged federal and private employment injuries.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.6 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.7
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.8 To establish fact of injury in an
occupational disease claim, an employee must submit: (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 evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.9
The medical evidence required to establish causal relationship is generally rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
5

Supra note 2.

6

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

7

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

8

See S.P., 59 ECAB 184, 188 (2007).

9

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); see also P.W., Docket No. 10-2402 (issued August 5, 2011).

3

between the claimant’s diagnosed condition and the implicated employment factors. The opinion
of the physician must be based on a complete factual and medical background of the claimant,
must be one of reasonable medial 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.10
ANALYSIS
The Board finds that appellant did not meet his burden of proof to establish that his right
DVT and resulting pulmonary embolism were caused by the accepted factors of his federal
employment as a federal air marshal.
In its previous decision, the Board had reviewed several medical reports of record,
including a number of reports from Dr. Chambers, who noted that prolonged periods of inactivity
and/or sitting were generally believed to be contributing factors in DVT illness. The Board found
that as Dr. Chambers had failed to provide the necessary medical rationale which described
appellant’s work duties and medically explained the pathophysiological process by which those
duties would have caused or aggravated his condition, his opinion was of diminished probative
value. Findings made in prior Board decisions are res judicata absent any further review by
OWCP under section 8128 of FECA.11
On reconsideration following the Board’s June 20, 2016 decision, appellant submitted an
August 29, 2016 report from Dr. Martin. In that report, Dr. Martin related that appellant had two
DVT’s, one on December 15, 2011 and the other in August 2014. He indicated that the first DVT
occurred approximately on December 15, 2011, when appellant was an air marshal and had made
a 16-hour trip to France, turned around and flew back. Dr. Martin, however, noted that he did not
have the complete history of that encounter and knew only that appellant was told he had a DVT.
He further indicated his surprise that appellant was placed on just aspirin. Dr. Martin’s statements
indicate that he did not have a complete history of appellant’s 2011 DVT condition, which occurred
during his federal employment. The Board has held that medical reports must be based on a
complete and accurate factual and medical background. Medical opinions based on an incomplete
or inaccurate history are of limited probative value.12 The Board also noted that Dr. Martin did
not explain why he believed that appellant’s federal employment caused or contributed to his
diagnosed condition. Dr. Martin did not offer sufficient rationalized explanation as to how a 16hour flight or excessive sitting resulted in appellant’s DVT conditions. A mere conclusion without
the necessary rationale explaining how and why the physician believes that appellant’s work
activities could result in the diagnosed condition is insufficient to meet his burden of proof.13

10

Solomon Polen, 51 ECAB 341 (2000).

11

See H.G., Docket No. 16-1191 (issued November 25, 2016).

12

C.L., Docket No. 14-1585 (issued December 16, 2014); J.R., Docket No. 12-1099 (issued November 7, 2012);
Douglas M. McQuaid, 52 ECAB 382 (2001).
13

See Beverly A. Spencer, 55 ECAB 501 (2004).

4

Dr. Martin further indicated that appellant experienced a second DVT in August 2014,
while working as a counselor in private employment. He did not clearly distinguish between the
residuals from the first DVT, which occurred during appellant’s federal employment, and the
second DVT, which occurred in subsequent private employment. Therefore, Dr. Martin’s opinion
does not provide the necessary medical rationale to establish that the residuals from appellant’s
first DVT caused or contributed to the significant DVT he suffered in 2014. Without a rationalized
medical report describing why appellant sustained a second DVT caused by his accepted federal
employment factors, appellant has not met his burden of proof.14
The opinion of a physician supporting causal relationship must be one of reasonable
medical certainty that the condition for which compensation is claimed is causally related to a
claimant’s federal employment and such relationship must be supported with affirmative evidence,
explained by medical rationale and be based upon a complete and accurate medical and factual
background of the claimant.15 Dr. Martin did not adequately explain or describe the
pathophysiological process by which the December 2011 DVT employment incident or appellant’s
work duties as a federal air marshal caused or contributed to his claimed conditions, his opinion is
of diminished probative value.16
An award of compensation may not be based on surmise, conjecture, speculation, or on the
employee’s own belief of causal relation.17 Appellant’s honest belief that his employment duties
caused his medical injury is not in question, but that belief, however sincerely held, does not
constitute the medical evidence necessary to establish causal relationship.18
It is appellant’s burden of proof to establish that the claimed DVT and blood clot conditions
are causally related to factors of his federal employment. Appellant has submitted insufficient
evidence to establish that the claimed conditions were caused by his employment factors.
On appeal appellant, through counsel, argues that OWCP’s decision was contrary to fact
and law as causation was clearly stated. However, for the reasons discussed above, the submitted
evidence is insufficient to establish appellant’s claim.
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.

14

See W.S., Docket No. 14-1022 (issued July 1, 2014).

15

A.D., 58 ECAB 149 (2006).

16

Solomon Polen, 51 ECAB 341 (2000) (rationalized medical evidence must relate specific employment factors
identified by the claimant to the claimant’s condition, with stated reasons by a physician). See also S.T., Docket No.
11-0237 (issued September 9, 2011).
17

D.D., 57 ECAB 734 (2006).

18

See J.S., Docket No. 17-0967 (issued August 23, 2017).

5

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that his right
DVT and blood clot were causally related to accepted factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated September 28, 2016 is affirmed.
Issued: March 22, 2018
Washington, DC

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

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

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

6